1. The present appeal has been preferred for setting aside the Judgment of conviction and order of sentence dated 30.01.2019 and 31.01.2019 respectively passed by learned Additional Sessions Judge, Buxar in Sessions Trial no. 196/2016 arising out of Dumrao (New Bhojpur) P.S. Case no 171/2015 registered under sections 147, 148, 149, 447, 323, 336, 337, 302 of Indian penal code (in short ‘IPC’) and Section 27 of arms act.
2. By the Judgment under appeal (hereinafter referred to as the ‘impugned Judgment’), learned trial court has convicted the appellant under section 302 IPC and section 27 of Arms Act and sentenced to undergo life imprisonment and fine of Rs. 25000/- under section 302 of IPC and in default of payment of fine the appellant has to undergo imprisonment for six months and he has been been further sentenced to undergo three years rigorous imprisonment and fine of Rs. 1000/- under section 27 of Arms Act and in default of payment of fine the appellant has to undergo three months of imprisonment. Both the sentences have been directed to run concurrently.
Prosecution story:-
3. As per the prosecution story, fardbeyan of the informant Kamaldev Singh (PW -3) was recorded on 26.05.2015 at 13:30 hours by S.I. Devanand Sharma, O. P. Incharge of Naya Bhojpur O. P. at Sadar Hospital. It is stated by the informant that on 26.05.2015 in morning the boys of the informant's village were playing cricket and while playing a dispute arose between them due to which Manoj Yadav caused head injury to the informant's cousin Ramashish Yadav, who was grazing buffalo in fields, by lathi. Thereafter, the informant provided him treatment at local level and they complained to the family members of Manoj Yadav in this regard. It is further alleged that around 9:00 A.M. in morning when the informant’s side were sitting at ‘palani’ (hut made of straw) his villagers namely, Nayan Kumar @ Sadhu Yadav, Bhim Yadav, Jagdish Yadav, Gama Yadav, Upendra Yadav (appellant), Birendra Yadav, Guruj Yadav, Munna Yadav Manoj Yadav, Ramayan Yadav all armed with sticks, bricks and licensee gun came at palani (hut) of the informant and attacked on them with such weapons. It is alleged that due to such assault Birbal Yadav and Ramashish Yadav suffered injuries. In the meantime Jagdish Yadav and Nayan Kumar @ Sadhu Yadav instigated “ns[k D;k jgs gks xksyh ekjks” on which Upendra Yadav (appellant) with the licensee gun fired 2-3 shots aiming informant’s son Ajit Kumar who was standing on the roof which hit him and he fell down. Thereafter the villagers started gathering then all the accused persons ran away from the place of occurrence. After this, the informant and other persons rushed to Sadar Hospital Buxar for treatment of his son where doctors declared him dead.
4. On the basis of the fardbeyan (Ext. 5) of the informant (P.W.3) formal FIR bearing No. 171 of 2015 dated 26.05.2015 was registered at Dumrao (New Bhojpur) Police Station under sections 147, 148, 149, 447, 323, 326, 337, 307 of IPC and section 27 of Arms Act. After investigation the police submitted Chargesheet no. 281/2015 dated 21.08.2015 and 46/2016 dated 29.02.2016. Whereupon cognizance of the offences was taken by learned C.J.M., Buxar on 16.03.2016 and the records were committed to the Court of Sessions on 21.06.2016 where charges were explained to other accused and the appellant on 20.09.2016 under sections 147, 148, 323/149, 447/149, 336/149, 337/149 while charge under Section 302/149 IPC was framed against seven (‘7’) accused, a charge under Section 302 IPC and Section 27 of the Arms Act were explained to Upendra Yadav (appellant) to which he pleaded not guilty and claimed to be tried.
5. In this case the prosecution has examined altogether twelve witnesses, they are :-
P.W. 1 Kapildeo Singh
P.W. 2 Ramashish Yadav (Injured witness and cousin of informant)
P.W. 3 Kamaldeo Singh (Informant)
P.W. 4 Birbal Yadav ( injured witness and cousin of informant)
P.W. 5 Dr. Anil Kumar (examined the injured Birbal Yadav PW 4)
P.W. 6 Dr. Upendranath (examined the injured Ramashish Yadav PW 2)
P.W. 7 Kamlesh Kumar Singh
P.W. 8 Sujeet kumar Singh (I.O.)
P.W. 9 Devendra Sharma (I.O)
P.W. 10 Taj Ahmed Khan
P.W. 11 Sri Bhagwan Yadav (Chowkidar)
P.W. 12 Dr Ravi Bhushan Srivastava (Doctor who conducted post autopsy on the dead body of deceased)
The following documents has been exhibited by the prosecution:-
Ext. 1. - Signature of informant (P.W.3) Kamaldeo Singh on fardbeyan
Ext. 1/1 - Signature of witness Mandev on the fardbeyan
Ext. 1/2 - Signature of S.H.O Raghan Dayal Singh on formal FIR
Ext. 2 - Injury Report of Birbal Yadav (P.W. 4)
Ext. 3 - Injury Report Ramashish Yadav (P.W. 2)
Ext. 4 & 4/1 - Signature of witnesses Kamlesh Kumar Singh (P.W.7) and Rajdev Singh on inquest report
Ext. 5 - Handwriting and signature of S.I. Devanand Sharma on fardbeyan.
Ext. 6 - Inquest Report.
Ext. 7 - Forwarding of F.I.R
Ext. 8 - Pagination of F.I.R
Ext. 9 - Signature and writing of seizure list this case on relating to 12 volt double barrel gun.
Ext. 10 - Sanha
Ext. 11 – Post Mortem Report.
6. After closure of prosecution Evidence, the statement of accused persons were recorded under Section 313 Cr.P.C. in which he claimed innocence and denied his presence in the village.
7. The defence has examined two witnesses and got exhibited some documents :-
D.W. 1 – Jagdish Yadav
D.W. 2 – Ajit Kumar Singh
The Defence has brought following documentary evidence on records:-
Exhibit -‘A’ - Signature of Barister Singh at Xerox copy of Gun house register
Exhibit- ‘A/1’- Signature of S.I. Taj Ahmed on true copy of Gun house register.
Exhibit – ‘A/2’- Signature of S.I. Taj Ahmed on another Gun house register.
Exhibit - ‘B’ - F.S.L. Report.
Findings of the Trial Court:-
8. The learned trial court has found that from the fardebyan (Exhibit ‘5’) no prior enmity or motive behind the occurrence may be found. The occurrence took place on the dispute which arose among the children while playing cricket on 25.06.2015.
9. The learned trial court found that there are three places of occurrence. The first place is the badhar, the second place is the rural concrete road (Dhailaya road) to the informant and the third one is the roof of the house of the informant.
10. The trial court rejected the contention of the defence that the witnesses produced on behalf of the prosecution are related and interested witnesses. The trial court has recorded from the evidence of the prosecution witnesses that there was no motive behind the occurrence and the occurrence has taken place between the parties in a sudden and open fight.
11. The trial court has, upon analyzing the evidences of the prosecution witnesses, held that if the presence of Kapildeo Singh (PW- 1) is believed then the second place of occurrence is his door not the ‘palani’ as claimed in fardbeyan and in the occurrence which took place at the second place of occurrence resulted in injury to Birbal Yadav (PW-4) only. Ramashish Yadav (PW-2) had already suffered injury at the first place of occurrence. The learned trial court further held that so far as the accused Bhim Yadav, Guruj Yadav, Manoj Yadav, Gama Yadav and Upendra Yadav are concerned, they had not caused any injury to Birbal Yadav (PW-4), therefore, their presence at the second place of occurrence is doubtful. Ramashish Yadav (PW-2) has not stated that at the second place of occurrence who had assaulted him and by what means. The trial court has found that PW-2 is contradicting his own evidence. It has been held that Ramashish Yadav’s (PW-2) presence at the second place of occurrence is doubtful.
12. Upon analyzing the evidence of Birbal Yadav (PW-4), learned trial court has held that this witness has suffered simple injuries which were not dangerous to his life and from his evidence, it would appear that he was assaulted by Jagdish Yadav, Birendra Yadav, Munna Yadav by danda, brick and stone. Ramashish Yadav (PW-2) suffered injury by assault in the ‘badhar’ by Manoj Yadav. The trial court, therefore, found that the presence of Bhim Yadav, Guruj Yadav, Manoj Yadav, Gama Yadav and Upendra Yadav (the appellant) at the second place of occurrence is doubtful. The trial court held that if at the first place of occurrence only one accused Manoj Yadav and at the second place of occurrence, only four accused, namely, Nayan Kumar, Jagdish Yadav, Birendra Yadav, and Munna Yadav were present, then no unlawful assembly within the meaning of section 149 IPC was formed. The trial court relied upon the judgment of the Hon’ble Supreme Court Dahari v. State of U.P., reported in (2012) 10 SCC 256, Darbara Singh Vs. The State of Punjab reported in (2012) 10 SCC 476 and Sanichar Sahni Vs. The State of Bihar reported in (2009) 7 SCC 198. Having said so, the trial court held that the accused persons may be held guilty only with the aid of Section 34 IPC.
13. Learned trial court further held that from the evidence of PW-4 (paragraph ‘5’) and PW-9 (I.O.), it would appear that the second place of occurrence is not the ‘palani’ but the concrete road (dhalaiya sadak) where both the parties had indulged in free fight and in which three persons from the informant’s side and three persons from the defence side had suffered injuries and they were treated in the Sub-Divisional Hospital, Dumraon. Out of the three injured persons from the prosecution side, one had died. The trial court acquitted the accused persons of the charges under Sections 147, 148 and 447 /149 IPC for the reason that the number of accused persons at the place of occurrence was less than five and the weapons in their hand would not fall in the category of dangerous weapon. Since the second place of occurrence has been found to be the rural concrete road which is not in possession of the prosecution side, the trial court held that the offence of criminal trespass would not be attracted.
14. Learned trial court held that the accused Nayan Kumar, Jagdish Yadav, Birendra Yadav and Munna Yadav were guilty of the offence under Section 323/34 IPC whereas accused Manoj Yadav is guilty of the offence punishable under Section 323 IPC. They were not held guilty under Sections 147, 148, 323/149, 447/149, 336/149, 337/149, 302/149 IPC 447, 336, and 337/149 IPC.
15. As regards the occurrence which took place on the roof of the house of the informant, learned trial court held that the allegations of instigation by Nayan Kumar and Jagdish Yadav, Upendra Yadav (appellant) to fire is doubtful. The trial court held that the evidence of PW-1 is doubtful and this has not been corroborated by any independent witness. The prosecution had not examined any villager or independent witness in this regard.
16. The trial court has further found that the presence of Ramashish Yadav (PW-2) at the third place of occurrence becomes doubtful from his own statement in paragraph ‘4’ of his cross examination. Further the trial court held that the informant (PW-3) has made contradictory statement in paragraph ‘7’ of his cross examination. He could not say the time of death and the cause of death of Ajit (deceased). The trial court held that the statement of PW-7 that on the instigation of Jagdish Yadav and Nayan Kumar, Upendra Yadav fired becomes doubtful. The trial court has given benefit of doubt to Jagdish Yadav and Nayan Kumar.
17. Regarding the accusation against this appellant and evidence against him, the trial court held that from the evidence of PW-1 to PW-4 and in the medical evidence, it has been proved that the accusation against this appellant is proved. The trial court rejected the contention that the gun which was seized by the I.O. from the gun house, Chapra had been deposited in the gun house on 15.05.2015 itself, the owner of the gun is Barister Singh (brother of Upendra Yadav) and the Forensic Science Laboratory report (Exhibit ‘B’) did not find any sign of firing by the said gun. The trial court held that the defence has got exhibited the FSL report (Exhibit ‘B’) which is not in accordance with law. Relying upon the judgment of the Hon’ble Supreme Court in the case of reported in 2000 Cr.L.J. 2303 SC the trial court held that the Exhibit ‘B’ can not be relied upon.
Submissions on behalf of the appellant
18. Mr. Vindhya Keshari Kumar, learned Senior counsel assisted by Mr. Manendra Kumar Sinha, learned Advocate for the appellant submits that the learned trial court has committed grave error in saying that the accusation against this appellant would be proved from the evidence of PW-1 to PW-4. It is submitted that the trial court has held that if PW-1 is believed then second place of occurrence would be his door and not the ‘palani’. After perusal of the prosecution evidence, particularly that of PW-4 and PW-9, the trial court has held that the second place of occurrence is the rural concrete road where both the parties had a free fight by lathi, danda, brick and stone. The trial court has disbelieved PW-1 saying that the presence of PW-1 at the third place of occurrence is doubtful because he had himself stated in his evidence that at the time of occurrence which took place at the third place of occurrence, he was in his palani in between 9-9:30 am. Thus, the learned senior counsel submits that when the trial court has doubted the presence of PW-1 at the third place of occurrence, relying upon him to convict the appellant in this case would be a travesty of justice.
19. Learned Senior counsel further submits that as regards the presence of PW-2, the learned trial court has found that Ramashish Yadav (PW-2) had not suffered any injury at the second place of occurrence, he was assaulted by Manoj at the first place of occurrence and had suffered injury there. Regarding PW-2, it has been found that he has made statement in his cross-examination (paragraph ‘4’) that he had gone to the first place of occurrence at 6:00 am with his she- buffalo and had stayed there till evening/8:00 pm. Thus, the trial court has doubted the presence of PW-2 at the second place of occurrence. Thus, it is submitted that once the presence of PW-2 has been doubted by the learned trial court at the second place of occurrence and there being no evidence on the record that he was present at the third place of occurrence, reliance upon his evidence to prove the guilt against this appellant would not be safe.
20. Learned Senior counsel submits that the informant (PW-3) made statement in paragraph ‘1’ of his examination-in-chief that Jagdish Yadav and Nayan Kumar instigated Upender Yadav saying “banduk kahe laye ho goli maro saale ko” then Upendra Yadav made 2-3 rounds of firing which hit his son and he fell down on the roof of his house. But the trial court noted the contradiction in his evidence and even doubted his evidence giving benefit of doubt to accused Jagdish Yadav and Nayan Kumar.
21. Learned Senior counsel further submits that so far as Birbal Yadav (PW-4) is concerned, he has stated in examination-in-chief that Ajit was hurling abuses and was throwing stones from his roof. Nayan Kumar and Jagdish Yadav instigated Upendra upon which Upendra fired 3-4 rounds which hit Ajit and he fell down on the roof. In his cross-examination, he has stated that the second occurrence took place at about 8.45 -9:00 am, he was present at the second place of occurrence at 9:00 am. He stayed there for 5-6 minutes. It is stated that in paragraph ‘16’ of his cross-examination, PW-4 has stated that three firings were done from down to up side. At the time of firing at the north-east corner of the roof of the house of Suraj, Suraj was present with him. He and Suraj had gone on the roof of Ajit after he received the firing. In paragraph ‘18’ this witness has stated that at the place of occurrence no blank cartridge was found and there was no sign of firing at the house of Ajit. PW-4 denied the suggestion that it was the informant himself who had shot at Ajit.
22. Learned Senior counsel submits with reference to the evidence of this witness that if the firing had taken place from down to up and 3-4 rounds of firing were done by this appellant then there must have been some sign of firing on the house of Ajit. It is submitted that this witness had left the second place of occurrence after staying 5-6 minutes only in injured condition, thus he had not seen the occurrence, hence a conviction based on his sole testimony would not be safe.
23. Learned Senior counsel has further drawn the attention of this court towards the evidence of Doctor (PW-11). PW-11 has conducted the autopsy on the dead body, he found pea size (about ¼ cm diameter) round shaped, numerous lacerated wound about 50 in no; with inverted margin and charring and blackening of margin of wound. Scattered on anterior part of chest, both arm and abdomen and thigh. PW 11 has opined that all wound were due to firearm, he extracted 10 round shaped pellets from body cavities of the deceased. PW-11 has stated that he cannot say whether the injury was horizontal or vertical. In paragraph ‘12’ of his cross-examination, he has stated that he cannot say as to from how much distance the firing was done. In paragraph ‘15’ of his evidence, PW-11 has stated that he cannot say whether injury was from down to up or up to down. Learned Senior counsel submits that the charring and blackening of wound would be possible if the firing is discharged within a distance of three feet. According to him, Ajit was shot at from a close range. It is his submission that there being no independent or eyewitness in this case and the postmortem report (Exhibit ‘11’) not corroborating the prosecution case that firing was done from down to up, it must be recorded that the prosecution has failed to prove the manner of occurrence. It is submitted that if the prosecution case is believed that firing had taken place from 10-15 feet, no blackening or charring wound would have been possible.
24. Learned Senior Counsel has further pointed out in the evidence of the I.O. (PW-9) that in paragraph ‘3’ of his evidence, the I.O. has given the description of the second place of occurrence. It is the rural concrete road going from east to west in front of the house of Suraj Yadav and Rajdeo Yadav. In paragraph ‘4’ of his evidence, PW-9 has stated that third place of occurrence is the joint house of Suraj and Rajdeo Yadav which is single-storied building and it is the roof of this building where Ajit Kumar had received the shot. It is submitted that from the evidence of the prosecution witnesses, it would appear that their case is that the firing was done from the second place of occurrence and in the said firing Ajit standing on the roof of the house of the informant was killed, but once the learned trial court doubted the presence of this appellant at the second place of occurrence, to say that this appellant had fired from the licensee gun cannot be said to have been proved beyond all reasonable doubts. PW-9 has stated in his evidence that from the defence side also, three persons were injured and they were treated in the Sadar Hospital.
25. Learned Senior Counsel has further pointed out from the statement under Section 313 Cr.P.C. that the learned trial court could not appreciate that all the incriminating materials which were brought by the prosecution in course of trial were put to the appellant. Referring to the questions put to this appellant at the stage of Section 313 Cr.P.C., learned Senior Counsel submits that this appellant was told that the informant and the witnesses have given evidence that he along with his family members and others had assembled at the ‘palani’ which is situated adjacent to the house of the informant, the appellant was told that he was carrying a licensee gun and had attacked which resulted in the injuries caused to Ramashish Yadav and Birbal Yadav. This appellant was further told that there are evidences that Jagdish Yadav and Nayan Kumar @ Sadhu Yadav had instigated him and on that instigation he had fired from the licensee gun aiming Ajit Kumar, the son of the informant.
26. It is submitted that as per I.O., the second place of occurrence was the rural concrete road passing east to west in front of the house of Suraj Yadav and Rajdeo Yadav where according to prosecution case this appellant was present and had fired upon the deceased son of the informant but in 313 Cr.P.C. statement second place has been stated as ‘palani’ was not placed before the appellant and no explanation was called for. Relying upon the judgment of the Hon’ble Supreme Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra reported in (1984) 4 SCC 116, learned Senior Counsel submits that the failure of the prosecution to place all the incriminating circumstances/evidences to the notice of the appellant would prove fatal to the prosecution.
27. Learned Senior Counsel submits that in this case it is evident that the prosecution witnesses were deliberately making false statement about their presence at the second place of occurrence which they claimed to be the ‘palani’ but learned trial court has disbelieved their presence at the second place of occurrence which has been found to be the rural concrete road. It is, thus, submitted that the witnesses who make deliberate false statement are not reliable. Reference has been made to the judgment of the Hon’ble Supreme Court in the case of V.C. Shukla Vs. State (Delhi Administration) reported in AIR 1980 SC 1382 paragraph ‘24’.
Submissions on behalf of the State:-
28. On the other hand, Mr. Bipin Bihari, learned Additional P.P. for the State, submits that in this case the prosecution witnesses (PW-1 to PW-4) are the eyewitnesses and they have supported the place, time and manner of occurrence. It is submitted that it was a planned attack by the accused and the eyewitnesses account of the occurrence cannot be disbelieved on the basis of the postmortem report. Learned APP has relied upon judgment of the Hon’ble Supreme Court in the case of State of Punjab Vs. Rajinder Singh reported in 2009 15 SCC 612.
Consideration
29. We have heard learned Senior Counsel for the appellant, learned Additional Public Prosecutor for the State and have perused the trial court’s records.
30. It is evident from the prosecution story as contained in the fardbeyan (Exhibit ‘1’) of the informant (PW-3) that on 26.05.2015, in the morning, the first occurrence took place in the ‘badhar’ where the boys of the informant’s village were playing cricket. In the said occurrence, Ramashish Yadav (PW-2) was assaulted by Manoj Yadav. PW-2 is said to have sustained head injury, he was provided treatment at local level. As regards the injury, the prosecution has not led any evidence in course of trial. There is no role of this appellant in the first occurrence.
31. The second occurrence took place at about 9:00 A.M. in the morning when the informant claims himself sitting with other persons at the ‘palani’. It is this time, according to the informant, the accused, namely, Nayan Kumar @ Sadhu Yadav, Bhim Yadav, Jagdish Yadav, Gama Yadav, Upendra Yadav (appellant), Birendra Yadav, Guruj Yadav, Munna Yadav, Manoj Yadav and Ramayan Yadav all armed with sticks, bricks and licensee gun came there and assaulted with such weapons. The informant (PW-3) claimed that in the second occurrence which took place at ‘palani’ (hut) of the informant, Birbal Yadav (PW-4), Ramashish Yadav (PW-2) suffered injury.
32. As regards the second occurrence, when the trial court analyzed the evidences of the prosecution witnesses, namely, Kapildeo Singh (PW-1), Ramashish Yadav (PW-2) and Ramadhar Singh (PW-3), learned trial court held that there is a variance in the statement of these witnesses with regard to second place of occurrence. The learned trial court has upon analyzing the evidence of the IO (PW-9) concluded that the second place of occurrence is not the ‘palani’ of the informant, it is rural concrete road which is not in possession of the prosecution side. The trial court has found that it is this road where both the parties had indulged in free fight in which three persons from the informant’s side and three persons from the defence side had suffered injuries and they were treated in the Sub-Divisonal Hospital, Dumraon. Thus, this Court finds that the prosecution witnesses did not give a correct account of the second place of occurrence, they tried to make out a case that the defence side attacked the prosecution party when they were sitting in the palani (hut) of the informant situated adjacent to the informant’s side but the trial court did not believe them in this regard.
33. This Court further finds that the prosecution witnesses claimed that Ramashish Yadav (PW-2) was assaulted at the second place of occurrence but learned trial court has held that PW-2 had already suffered injury at the first place of occurrence and in the occurrence which took place at the second place of occurrence, it was Birbal Yadav (PW-4) only who had suffered injury. There are further reasons behind this finding of the learned trial court that learned trial court found that the PW-2 has contradicted his own statement by saying that he had gone to the first place of occurrence at 6:00 am with his she-buffalo and had stayed there till evening/8:00 pm. It is for this reason the learned trial court doubted the presence of PW-2 at the second place of occurrence. We find that analysis of the evidence as regards presence of PW-1 and PW-2 at the second place of occurrence has been done meticulously by the learned trial court and no fault may be found with the same.
34. We agree with the submissions of learned Senior Counsel for the appellant that the PW-1 and PW-2 both were not present at the second place of occurrence, they cannot be said to be an eye witness to the occurrence which took place at the second place of occurrence. Their trying to depose as eye- witnesses to the occurrence which took place as second and this place is only an attempt to support the prosecution. They are also related witnesses.
35. We have noticed from the evidence of the IO (PW-9) that there is no distance between the second place of occurrence and the third place of occurrence. Both the places are in the neighbourhood (vkl&ikl). Rural concrete road passing east to west which is the second place of occurrence is in front of the house of Suraj Das and Rajdeo Das which is a joint house and it is this house on the roof of which Ajit Kumar (deceased) suffered firearm injuries. The prosecution case as a whole would demonstrate that no doubt, the deceased suffered firearm injury on the roof of the house but according to the witnesses, it was the second place of occurrence where this appellant had come with a licensee gun and on the instigation of Jagdish Yadav and Nayan Kumar, he had fired. As regards the presence of the accused persons at the second place of occurrence, the learned trial court has held that only four accused, namely, Nayan Kumar, Jagdish Yadav, Birendra Yadav and Munna Yadav were present at the second place of occurrence. The trial court held that for this reason, no any unlawful assembly within the meaning of Section 149 IPC was found. In clear words, the learned trial court has found that the presence of Bhim Yadav, Guruj Yadav, Manoj Yadav, Gama Yadav and Upendra Yadav (the appellant) at the second place of occurrence is doubtful. If it is the finding of the learned trial court, we fail to appreciate as to how learned trial court has come to a conclusion that the prosecution has been able to prove that this appellant had come to the second place of occurrence with gun in his hand and fired from there. Learned trial court has already acquitted Nayan Kumar and Jagdish Yadav from the charge that they had instigated the appellant for firing.
36. This Court further finds that Kamaldeo Singh (PW-3) is the informant of this case. In his examination-in-chief, he has also given the description of second place of occurrence as his ‘palani’. He has stated that with planning, Nayan Kumar @ Sadhu Yadav, Bhim Yadav, Ramashray Yadav, Jagdish Yadav, Rama Yadav, Upendra Yadav (appellant), Birendra Yadav, Manoj Yadav, Guruj Yadav, Munna Yadav all came having danda, bricks and stones. In paragraph ‘1’ of his examination-in-chief, this witness initially has not stated that this appellant was carrying a gun but in latter part of his statement, he has stated that his son Ajit Kumar had seen them from the roof of his house and told that “Bhd ugha gksxk” whereafter brick and stone were thrown to him also. PW-3 has stated that Ajit had also given return throw of the same brick and stone from his roof whereafter Jagdish and Nayan instigated this appellant “canwd dkgs yk;s gks xksyh ekjks lkys dks”. This appellant, according to PW-3, had fired 2-3 rounds which hit his son and he fell down on the roof. PW-3 has stated that the third place of occurrence is the door of his brother Suraj Yadav and the firing was done from a distance of 12-15 feet. Thus, PW-3 is himself not sure about the place where his son received firearm injury. While analyzing the evidence of the informant (PW- 3), learned trial court has held that the informant has made contradictory statement in paragraph ‘7’ of his cross-examination. He could not say the time of death and cause of death of Ajit (deceased). The trial court held that the statement of PW-3 that on the instigation of Jagdish and Nayan Kumar, Upender Yadav fired becomes doubtful. This Court has already seen that the learned trial court has recorded a finding doubting the presence of this appellant at the second place of occurrence. This Court finds that no doubt the fact in issue in the present case is as to whether this appellant fired from a gun which he was carrying and the said firing resulted in killing of the son of the informant but the certain facts become relevant and those are forming part of the same transaction. The fact that whether this appellant was present at the second place of occurrence with a gun, the fact that whether the appellant was instigated by Jagdish and Nayan Kumar to fire upon the deceased would be “relevant” within the meaning of Section 2 of the Indian Evidence Act. In a case where a person is accused of murder of another person it would be a relevant fact to establish that the person who has been charged with committing murder of a person intended to cause death of that person.
In the present case, the prosecution has not led any evidence to prove it as a matter of fact that this appellant intended to cause death of Ajit (deceased).
37. To this Court, it appears that so far as evidences of PW-1, PW-2 and PW-3 are concerned, they have already been doubted by the learned trial court as regards the second place of occurrence, the presence of this appellant at the second place of occurrence and the instigation by Nayan and Jagdish to this appellant to fire have been disbelieved by the learned trial court and before us the said finding of the trial court has not been assailed.
38. We will now examine the evidence of PW-4 and the extent to which it may be relied upon to convict this appellant. This Court finds that PW-4 had suffered injury at the second place of occurrence. He has stated in his evidence that he was sitting in ‘Palani’ when the accused persons came there and attacked on them. He suffered injuries which are attributed to the other accused and not to this appellant. PW-4 has stated in examination-in-chief that Ajit was hurling abuses and was throwing bricks from his roof. He has stated that Nayan Kumar and Jagdish Yadav instigated the appellant whereupon this appellant fired 3-4 rounds as a result whereof Ajit Kumar fell down on the roof. On hearing the sound of firing, the people from mohalla assembled there but at that time the accused persons had fled away. In his cross-examination, this witness has stated that he was at the second place of occurrence at about 09:00 am. He has stated in paragraph ‘5’ that he stayed there for 5-6 minutes. In his cross examination, he contradicted his own statement saying that the second place of occurrence is the concrete road. We find from the evidence of PW-4 that he stayed at the second place of occurrence only for 5-6 minutes during which he received the injuries in the free fight which took place between the parties at the rural concrete road. We find from the evidence of PW-3 that in paragraph ‘12’ of his cross-examination, he has stated that the third place of occurrence is situated at a distance of 15-20 minute walk on foot from the main road and that the firing was done from down to upside but this witness has contradicted himself in paragraph ‘6’ of his cross- examination where he has stated that the firing was done from a distance of 12- 15 feet and the third place of occurrence is the door of his brother. Contrary to the evidence of PW-3, PW-4 has stated that the third place of occurrence is the roof of the house of Suraj Narayan and the third place of occurrence is situated at a distance of 15-20 feet south to the second place of occurrence. It is, thus, evident from the evidences of these witnesses that the firing was done from the second place of occurrence where the presence of this appellant has been doubted by the learned trial court.
39. To this Court, it appears that the evidence of PW-4 could not prove the presence of this appellant at the second place of occurrence from where the firing is said to have taken place. Further PW-4 had already left the second place of occurrence after 5-6 minutes only, therefore, it cannot be believed that he had seen the entire occurrence which took place at the second place of occurrence between both the sides. He was already injured in the said occurrence and Doctor (PW-5) has found that he had received lacerated wound on posterior aspect of scalp which was bone deep, he had complained of vomiting and giddiness. He was examined by Doctor at 11:00 am at Buxar, he had other injuries on his body and in these circumstances, it cannot be believed that he was standing on the roof along with Suraj when Ajit received the firearm injury. Thus to this Court, it appears that it would not be safe to convict the appellant on the testimonies of PW-1, PW-2, PW-3 and PW-4.
40. Now coming to the medical evidence on the record, Dr. Ravi Bhushan Tripathi (PW-11), who was the Medical Officer in Sadar Hospital, Buxar posted on 26.05.2015, has proved the postmortem report which was prepared in his handwriting and under his signature, as Exhibit ‘9’. In course of autopsy on the dead body, the Doctor (PW-11) observed as under:-
“ (I) Pea size ( about ¼ cm diameter) round shaped, numerous lacerated wounds about 40 in number with inverted margin & charring & blackening of margin of wounds. Scattered on Anterior part of chest, both arms & abdomen & thigh more on left half of body. Some wounds communicate with chest cavity. Some with abdominal cavity & some are muscle deep.
1. On dissection of Chest:-
Chest cavity is filled with blood clot & left lung is pierced at seven places Right lung is pale. Heart:- both chambers empty by pellets.
2. On dissection of Abdomen:-
Abdominal wall at some wound is pierced upto abdominal cavity some upto ant. Abdominal muscle.
Abdominal cavity contains blood & clot, stomach is pierced at 03 places by pellets. Liver is Pale. Spleen is lacerated.
3. Time elapsed since death:- Within 24 hours.
4. Cause:-
All wounds are due to firearm. In my opinion death is due to shock & Hemorrhage due to above wounds.
5. Note:- 10 round shaped pellets are extracted(recovered) from body & body cavity of deceased & sealed & handed over to police. ”
41. In course of his cross-examination, PW-11 has stated that the dead body was brought by the Chowkidar and he had done the postmortem on the basis of the inquest report. It is not possible to say whether the injury was horizontal or vertical and he cannot say as to the distance from which the shot was fired. In paragraph ‘15’ of his cross-examination, PW-11 has stated that he cannot say whether the injury was from down to up or up to down.
42. Learned Senior Counsel for the appellant has submitted that postmortem report (Exhibit ‘9’) does not corroborate the ocular evidence. The Doctor found numerous lacerated wounds of about 50 in numbers with inverted margin and charring and blackening of margin of wounds. It is his submission that a shotgun fired from a distance of 12 feet, the charge of the shot would spread widely and the same would enter in the body as individual pellets producing separate openings entering area of 5 to 8 inches in diameter depending upon the choke, but without causing blackening, scorching or tattooing of the surrounding skin. It is his submission that in this case the prosecution has failed to prove that before autopsy an X-ray examination has been undertaken. It has been submitted that if a shotgun is discharged from a distance of not more than 3 feet then blackening is found. In this case, the ocular evidence is that the firing was done from a distance of 12-15 feet from down to upside, therefore, as per the medical jurisprudence, the charring and blackening margin of wounds would not have been possible from a distance of 12-15 feet. PW-11 has stated in his cross- examination that he cannot say whether the firing was done from down to upside or up to downside. This is an issue of medico legal importance which has not been answered by the Doctor.
43. Upon consideration of the evidence of PW-11, we are persuaded to agree with the submissions of learned Senior counsel for the appellant. Modi Textbook of Medical Jurisprudence and Toxicology in its Chapter 25 paragraph 25.7.1.1 reads inter alia as under:-
25.7.1.1 Distance of the Firearm
“…….If a firearm is discharged very close to the body or in actual contact, subcutaneous tissues over an area of two or three inches around the wound of entrance are lacerated and the surrounding skin is usually scorched and blackened by smoke and tattooed with unburnt/partially burnt grains of gunpowder or smokeless propellant powder. The adjacent hairs are singed, and the clothes covering the part are burnt by the flame. If the powder is smokeless, there may be a greyish or white deposit on the skin around the wound. If the area is photographed by infrared light, a smoke halo round the wound may be clearly noticed. Blackening is found, if a firearm like a shotgun is discharged from a distance of not more than three feet and a revolver or pistol discharged within about two feet ”
It further states that “…..At a distance of 12 feet, the charge of the shot spreads widely and enters the body as individual pellets producing separate openings in an area of five to eight inches in diameter depending on the choke, but without causing
blackening, scorching or tattooing of the surrounding skin. ”
44. We find from the evidence of PW-11 that he is unable to say as to from how much distance the firing took place. PW-11 has further failed to say regarding the direction of the firing, whether it was from up to down or down to up.
45. In the case of Budh Singh vs. State of MP reported in (2007) 10 SCC 496, the Hon’ble Supreme Court was dealing with a case where it was alleged that the appellant had fired a shot from his .12 bore double barrel gun on the deceased. The Hon’ble Supreme Court observed in paragraph ‘19’ as under :-
“19. Blackening of the wound can be found only when the shot is fired at from a short distance, namely, about 3 to 4 feet and not beyond the same. Absence of any blackening of the wound has rightly been not found in the post-mortem examination.”
46. In the present case, as per the postmortem report PW-11 found charring and blackening of the margin wounds which could have been possible only if the shotgun would have been discharged from a short distance of about 3- 4 feet.
47. The fact that the postmortem report does not corroborate the ocular evidence gains importance when it is found that the eyewitnesses account of the occurrence has not been found credible and trustworthy. The learned court has already doubted the presence of the appellant at the second place of occurrence.
48. In the case of the State of Uttar Pradesh vs. Krishna Gopal reported in (1988) 4 SCC 302, the Hon’ble Supreme Court has observed in paragraph ‘24’ as under:-
“24. It is trite that where the eyewitnesses' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bentham said, are the eyes and ears of justice. Hence the importance and primacy of the orality of the trial process. Eyewitnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts; the “credit” of the witnesses; their performance in the witness box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.”
49. In paragraph ‘26’ and ‘27’ the judgment in the case of Baso Prasad and Ors. vs. State of Bihar reported in 2006 13 SCC 65, the Hon’ble Supreme Court has observed as under:-
“26. So far as the contention in regard to distance of firing is concerned, it is true, ordinarily, charring would take place, if firing is done from a distance of less than four feet, as has been noticed in some of the judgments of this Court in Subhash v. State of U.P (1976) 3 SCC 629 : 1976 SCC (Cri) 483., Nath Singh v. State of U.P. (1980) 4 SCC 402 : 1980 SCC (Cri) 968, State of Punjab v. Wassan Singh (1981) 2 SCC 1 : 1981 SCC (Cri) 292 and Sidharth v. State of Bihar (2005) 12 SCC 545 : (2006) 1 SCC (Cri) 175” .
“27. In some cases, medical evidence may corroborate the prosecution witnesses; in some it may not. The court, however, cannot apply any universal rule whether ocular evidence would be relied upon or the medical evidence, as the same will depend upon the facts and circumstances of each case. No hard-and-fast rule can be laid down therefor.”
50. Keeping in view the observations of the Hon’ble Supreme Court in the aforementioned judicial pronouncements and the materials on the record, we are of the considered opinion that the injuries noted by PW-11 in course of autopsy on the dead body do not corroborate the manner of occurrence as disclosed by the prosecution witnesses.
51. We have found from the prosecution evidences that the licensee gun was owned by the brother of this appellant namely Barister Singh, who was serving as a Security Guard in the Punjab National Bank. It was a double-barrel gun which was found deposited with the Gun House at Chapra from 15.05.2015. The first I.O. of this case was Devanand Sharma (PW-9) who has stated that he had not conducted any investigation as to whether there is any licensee gun in the house of the accused, he had not seized the gun from the gun shop at Chapra.
52. The subsequent I.O., namely, S.K. Singh (PW-8) had investigated the records of the gun house and found that in the register of 2015 at serial no. 92 dated 15.05.2015 at 11:30 am, the gun number of the Barister Singh has been shown deposited. PW-8 has stated in paragraph ‘17’ of his cross-examination that the gun was deposited at Chapra on 15.05.2015 but he had not brought the gun. This witness has stated that he had not taken sanction either from D.M. of Buxar or D.M. of Chapra. In paragraph ‘22’, he has stated that during his time, gun was not seized. It appears that third I.O. Taj Ahmad Khan (PW-10) had seized the gun from the gun shop of Chapra. The seizure list has been marked Exhibit at his stance as Exhibit ‘8’. He had taken charge of investigation of this case on 25.05.2017, therefore, it is evident from the evidence of PW-10 that for two years from the date of occurrence, the Investigating Agency did not seize the licensee gun. Later on, when the gun was sent for examination to the Forensic Science Laboratory, it has been reported by the Laboratory that no sign of firing from the said gun could be found. In this connection, the report dated 22.08.2017 of the Laboratory has been brought on record at the stance of the defence which has been marked as Exhibit ‘B’. The report interalia says that “as a result of chemical analysis, no firearm discharge residues could be detected in the barrels (left and right) of the regular gun marked ‘A’ noted in item (1) indicating thereby no sign of previous firing it is perfect in working order and can be used as an effective firearm.
53. The defence has relied upon Exhibit ‘B’ and has brought two witnesses from its side who are Jagdish Yadav (DW-1) and Ajit Kumar Singh (DW-2). The learned trial court has held that it is a prosecution document but defence has got it exhibited without calling for the expert as a witness in court. Learned court has refused to rely upon the same. This Court finds from the record that vide order dated 05.06.2018 the learned trial court had allowed the application of the defence to mark FSL report as exhibit (with objection). From the records we find that a petition dated 15.05.2018 under Section 233 (3) Cr.P.C. was filed on behalf of the defence with a copy served on learned APP. It was submitted that the prosecution has not adduced evidence of Ssrgent Major and forensic science expert with a malafide intention, therefore, summon be issued compelling the attendance of the Sargent Major and Forensic Science expert to record their statements as a witness. The prosecution replied to this petition and submitted that FSL Report is admissible under Section 293 Cr.P.C. so evidence of expert is not essential. So far as the Sargent Major is concerned, on the record there is no report of the Sargent Major on the record.
54. Thereafter, the defence filed a petition dated 28.05.2018 with a copy served on learned APP under Section 294 Cr.P.C. with a prayer to mark FSL Report as Exhibit without formal proof. The prosecution failed two paragraph petition in which it was submitted that the FSL report submitted by FSL, Patna is not fit to be admitted into the evidence and it did not afford sufficient ground on the basis of which laboratory reach to viable conclusion. On the rejoinder petition filed on behalf of the prosecution there is an endorsement in the left side “Not Pressed”. Meaning thereby that the prosecution withdraw its objection to the petition dated 28.05.2018 filed on behalf of the defence. Under these circumstances there was no reason for the learned trial court to mark FSL Report as Exhibit showing it marked “with objection”. In fact the prosecution itself had submitted that it may be marked exhibit in terms of Sections 293 and 294 Cr.P.C. It was duly marked but the learned trial court erred in not considering the FSL Report in its judgment.
55. DW-1 has deposed that Upendra Yadav was employed in Shiva Shakti Security Force at Hyderabad from 15.01.2015 to 20.08.2015. He has stated that his brother Gama Yadav had lodged counter case against the informant Kamaldeo Yadav and others. DW-2 is the owner of the gun house who has proved the signature of Barister (Exhibit ‘A’) with objection and signature of S.I. Taj Ahmad (Exhibit ‘A/1’) with objection on the register showing deposit and withdrawal of the gun. Prosecution has cross-examined him to create a doubt in his evidence on the ground that he had not given information about the deposit of arms to the Arms Magistrate and S.P., Buxar.
56. We have also perused the statement of the appellant recorded under Section 313 Cr.P.C. The appellant was asked three questions which he answered in negative. In his defense, he has submitted that at the time of occurrence, he was at Hyderabad. The question and answer done under Section 313 Cr.P.C. is being reproduced hereunder for a ready reference:-
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57. While going through the statement of the appellant under Section 313 Cr.P.C we find that the learned trial court did not apprise the appellant with all the incriminating materials which were brought by the prosecution against him. He was suggested that he was being armed with a licensee gun, formed an unlawful assembly with his family members and others who were having lathi, danda, bricks and stones in their hand, attacked on Ramashish and Birbal Yadav at the ‘palani’ situated beside the house of the informant and at the instigation of Jagdish Yadav and Nayan Kumar @ Sadhu Yadav, he fired from the licensee gun 2-3 rounds aiming Ajit Kumar (aged 16 years), son of the informant. This Court finds that the learned trial court did not inform this appellant about the statement of PW-1, PW-3 and PW-4 who claimed their presence at the second place of occurrence, the learned trial court did not place before the appellant that he had fired from the second place of occurrence when Ajit Kumar (deceased) standing on the roof of Suraj Das and Rajdeo Das which is a joint house. Learned trial court did not consider the defence statement of the appellant that he was at Hyderabad on the date of occurrence. Learned trial court could not appreciate that the defence had requested the I.O. to investigate on this point. In paragraph ‘19’ of his cross-examination, PW-8 has stated that he had conducted investigation on the point that on the date of occurrence, the appellant was at Hyderabad. PW-8 has stated that this appellant was working as night guard in Om Shiva Shakti Force, he had not recorded statement of anyone from the Company but he had verified it over telephone. It appears that learned trial court has completely missed out on this part of the deposition of PW-8. No evidence has been led to prove that the appellant intended to kill Ajit (deceased).
58. On analysis of the entire evidences on the record, we find that learned trial court is not correct in holding the appellant guilty of murder of Ajit Kumar, son of the informant in the occurrence which took place on 26.05.2015. The prosecution has failed to prove the guilt of the appellant beyond all reasonable doubts. We, therefore, set-aside the impugned judgment of conviction and order or sentence. The appellant is acquitted of the charges giving him benefit of doubt.
59. The appellant is in custody, he shall be released forthwith if not wanted in any other case.
60. The appeal is allowed.
