1. The Court is informed that of the four appellants, appellant No. 2 (Jwala) and appellant No. 4 (Nar Singh) have died during the pendency of the appeal. Accordingly, the appeal abates for these two deceased appellants. Therefore in the present hearing, we are concerned only with the challenge laid by Amar Nath (appellant No. 1) and Sheo Dayal (appellant No. 3).
2. The appellants challenge the judgment and order of the High Court passed on 12.09.2013 whereby the High Court upheld the conviction of the appellants ordered by the trial court vide order dated 08.07.1993.
3. We have heard Mr. Rakesh Kumar Singh and Ms. Sandhya Kukreti, the learned counsel for the appellants. Representing the State of Uttar Pradesh, Mr. Namit Saxena, learned standing counsel makes crucial submissions by giving reference to the available evidence and their bearing on this appeal.
4. The present case arose out of the FIR lodged at 7 p.m. on 30.06.1985 by one Onkar Nath (PW-1) at the PS Kotwali Dehat, Gonda. Following conclusion of the investigation, the prosecution arranged for trial of 6 accused namely, Amar Nath, Triyugi, Jwala, Nar Singh, Sheo Dayal and Jagdamba under Sections 147, 148, 302, 307 and 120-B of IPC. The learned trial court under its judgment dated 08.07.1993 in the Sessions Trial No. 259 of 1985 convicted Amar Nath (appellant No. 1) under Sections 148, 302 and 324 of the IPC. Sheo Dayal (appellant No. 3) was convicted under Sections 147, 302 read with Sections 149 and 324 of IPC. Appropriate sentence of life imprisonment etc. was then awarded against the six convicted persons, by the order dated 09.07.1993.
5. The convicted accused filed the Criminal Appeal No. 294 of 1993 in the High Court and under the impugned judgment dated 12.09.2013, the criminal appeal came to be dismissed upholding the conviction of all the six accused.
6. The trial court based the conviction of the appellants primarily on the basis of the testimonies of the four eye-witnesses i.e., Onkar Nath (PW-1), Sahdev (PW-2), Raj Dutta (PW-3) and Shiv Kumar (CW-1). It transpires from their evidence that on 30.06.1985, the deceased Asroni together with the eye-witnesses was loading onto a truck, cut logs from a tree bought by Sahdev (PW-2). At that time, the armed accused came there in a tractor. Then Amar Nath (appellant No. 1) took out a double barrel gun from the bonnet of the tractor and shot at the deceased Asroni and also at Shiv Kumar (CW-1). Sheo Dayal (appellant No. 3) is stated to be armed with a Lathi. The appellants fired at the deceased from a distance of about 10-12 feet and thereafter when the deceased Asroni was fleeing, another round was fired and eventually, when Asroni fell down, two shots were fired at the injured from close quarter to ensure that he is dead. When appellant Amar Nath first fired, Shiv Kumar (CW-1) was also hit by firing.
7. Dr. D.A. Khan (PW-8) who conducted the post mortem noticed the following seven injuries on the body of the deceased Asroni:
“(1) Multiple fire arm wound in the area of 9 centimetre × 4 centimetres left side face joint below ear. All are small circular in shape.
(2) Multiple fire arm wounds all over front of chest and abdomen, all are small and circular.
(3) Fire arm wound 2.5 centimetres × 2 centimetres × cavity deep on leH side abdomen 14 centimetres below nipple at 6 o'clock position .. There is evidence of charring and tattooing around wound. This is wound of entry with inverted margin. On exploring the tract gunpowder was found around the cavity.
(4) Fire arm wound of exit 3 centimetres × 3 centimetres on front of right side abdomen 8 centimetres from chin at 9 o'clock position. Part of intestine is protruding.
(5) Fire arm wound 2.5 × 2 centimetres cavity deep on right side abdomen 15 centimetres above umbilicus at 10 o'clock position. There is charring and tattooing all around wound. One “Golla” and 1 “Dhebri” obtained from track of the wound.
(6) Abrasion 11 centimetres × 1 centimetre lateral to left forearm 6 centimetres above wrist.
(7) Multiple fire arm wound all at the back in an area of 30 centimetres × 22 centimetres and all are srnall and circular and dense on left side back.”
8. Insofar as the gun shot injury on Shiv Kumar (CW-1) is concerned, the said person was examined on the same evening at the District Hospital, Gonda but such medical evidence is not produced by the prosecution. However, Dr. P.C. Shukla, the Radiologist who on the next day i.e. 1.7.1985 had done X-ray on the left thigh and left forearm of Shiv Kumar (CW-1) noticed the following in the X-ray plate (Exh.1):—
“Shades of 2 metallic density were found in the x-ray of left thigh. There was a single shade of metallic density in the x-ray of left forearm.”
9. The motive for murdering Asroni according to the prosecution was because Asroni's brother was implicated in the murder of Amar Nath's father in 1971 but the said brother was eventually acquitted for which reason, Amar Nath and his group were inimical towards Asroni. Moreover, in 1980 and 1983, Amar Nath is stated to be involved with the murder of the uncle of Onkar Nath (PW-1) but as Amar Nath was acquitted, being emboldened, the Asroni's group was attacked. Besides, there was also a dispute regarding a Well located in front of the house of one of the accused.
10. With the assistance of the counsel for the parties, we have perused the testimonies of the eye-witnesses. Onkar Nath (PW-1) who lodged the FIR stated that the deceased Asroni is his cousin brother and Sahdev (PW-2) is his Uncle. The witness purchased a tree from the grove land of Kanhaiya and after the said tree was cut, the logs from the tree was being loaded on to a truck and at that point, the accused party came in a tractor. Then Amar Nath took out a double barrel gun from the bonnet of the tractor and he started firing at Asroni and the injured Shiv Kumar. The deceased Asroni who was repeatedly shot at tried to flee but eventually he was killed by shooting from close quarter. PW-1 being illiterate arranged for the information on the incident to be written down with the assistance of Rajman Lekhpal. The other two eye-witnesses Sahdev (PW-2) and Raj Dutt (PW-3) supported the version given by PW-1. Shiv Kumar (CW-1) who allegedly suffered gun shot injuries was not named as a listed witness but eventually in his testimony as a Court witness, he supported the version given by PW-1, PW-2 and PW-3.
11. Apart from the eye-witnesses noted above, we have also considered the evidence of Sita Ram Arya (PW-7) who was the investigating officer of the case and also the evidence of Constable Mohd. Nayeem (PW-5). The testimony of Sambhu (DW-1) and Radhika Prasad (DW-5) are also carefully perused. The FIR has not been translated but the same was read out in Hindi from the original record by Mr. Namit Saxena, learned State counsel.
12. The IO Sita Ram Arya (PW-7) testified that after getting information about the incident on 30.06.1985, he reached the place of occurrence at 20 : 15 hours accompanied by Constable Mohd. Nayeem (PW-5) and others in a jeep and although preliminary enquiry was done at night itself, due to non-availability of light at the place of occurrence, the IO came back. According to the I.O., constables Chandrabhan Ram and Mohd. Nayeem (PW-5) were deputed at the crime scene on 30.6.1985 night to protect the dead body. Next day he returned back to the spot in the early morning hours around 5.30 a.m. On 01.07.1985, the dead body of Asroni was found lying on the ground and the PW7 seized two pellets from the spot. The blood stain and plain clay were also collected by the I.O. and the seizure was done in presence of witnesses Vikramajeet and Kanhaiya. Although, the eyewitnesses mentioned about they being busy with loading of logs in the truck when the firing happened, curiously the IO in his cross-examination acknowledged that in the case diary he failed to mention about any logs and did not seize the logs which were still at the crime scene. The logs were not photographed allegedly because photographers were not available but, in his cross-examination, the IO admitted that there are many photography shops in the Gonda town. More surprisingly, despite the rain and the wet earth and a tractor and truck driven in the crime scene area, the IO in his cross-examination admitted that he had not recorded the marks of wheel of the tractor in which the accused drove to the spot. The IO further stated that he failed to mention in the case diary that the clay in the site was wet or that the clothes of the deceased persons, who as per his version was laid on the ground from afternoon until next morning, were covered with clay. The PW 7 denied the suggestion that he did not come to the place of occurrence on the night of 30.06.1985 but in fact visited the crime scene only at 05 : 30 in the morning on 01.07.1985.
13. While the deceased Asroni died of gun shot injuries and the evidence of the witnesses suggest that a double barrel gun was taken out from the bonnet of the tractor by accused Amar Nath to shoot at the deceased, the IO not only failed to seize the tractor but also the gun with which, the deceased was shot. If the version of the eye-witnesses are to be accepted that it was the appellant Amar Nath who had fired at the deceased with a double barrel gun, evidence should have been made available to connect the ante-mortem gun shot injuries found on the body of Asroni to correlate those with the bullets/pellets fired from the double barrel gun. No ballistic report is made available to show that the bullets/pellets found on the dead body could have been shot or fired from a double barrel gun. Without the gun and the ballistic report, it would not be justified to link the firing by Amar Nath with the wounds on the dead body.
14. At the crime scene the eyewitnesses (as per their version), were loading logs onto a truck. Yet the police failed to recover the truck or to identify the driver and cleaner of that truck. In fact, the IO failed to collect any evidence to show the presence of the truck at the site of the incident such as tyre marks on the wet ground etc.
15. That apart, the tractor in which the assailants group travelled to the place of the incident was also not seized by the IO and nothing is brought on record to show that accused Amar Nath had owned a tractor. None of the weapons allegedly wielded by the accused (including the gun from which firing was done) were seized. As per the version of the PWs the truck driver, cleaner and other labourers were also present at the spot but none of them-who would be in the category of neutral witnesses, were produced in the trial to prove the case against the accused.
16. Besides the above, certain improvements are also noticed from what was mentioned in the FIR and the 161 Cr. P.C. statements given by the witnesses. For instance, none of the eye-witnesses had stated that the deceased Asroni was an influential person and was providing protection to the other group. Surprisingly, none had mentioned that the accused group had travelled to the place of occurrence in a tractor and that the tractor was being driven by the accused Jagdamba @ Bekaru. Since the eye-witnesses have stated in their evidence that a double barrel gun was taken out from the bonnet of the tractor by the accused Amar Nath, this vital information was neither mentioned in the FIR nor in the 161 Cr. P.C. statements given by the eye-witnesses. While it is well understood that an FIR need not be an encyclopedia of all the happenings in a particular incident, the essential facts particularly by the eyewitnesses to the incident should have been made available when the FIR itself was prepared by the eye-witnesses with the assistance of the co-villagers.
17. Shiv Kumar who was examined as CW-1 in his testimony did mention that he was also injured in the firing by the accused Amar Nath and he was got examined on the same day by the police at the District Hospital, Gonda. But curiously no medical report is produced on the examination of the injured CW-1 on 30.06.1985. Only the X-ray done on CW-1 on the next day i.e. on 01.07.1985 is available, but the evidence of Dr. P.C. Shukla (PW-4) is inadequate to infer that CW-1 suffered gun shot injuries from a double barrel gun which was fired by the appellant Amar Nath.
18. According to PW-1 and PW-2 (who are closely related), the tree from which logs were cut was purchased by Sahdev (PW-2) from Kanhaiya. But Kanhaiya was not produced as a witness. On the other hand, Sambhu (DW-1) stated that his co-sharer Kedar had sold a dry (dead) mango tree to Karan who is a timber merchant but this transaction happened three months before the incident and all the logs from the said dry mango tree were taken away. Moreover, no other tree was sold in last 3-4 years to Sahdev (PW-2). Radhika Prasad (DW-5) is the son of Kedar Nath and he too has testified that his father has sold a dry mango tree to Karan - timber merchant during Holi season months before the murder of Asroni had taken place on 30.06.1985, and the merchant had transported all the logs. The above evidence of DW-1 and DW-5 clearly suggest the falsity in the versions presented by PW-1, PW-2, PW-3 and CW-1 on the incident having taken place at a time when the witnesses were busy loading wood cut from a tree, brought by Sahdev (PW-2) from Kanhaiya.
19. Multiple loopholes are noticed in the investigation and those need to be evaluated in this appeal. The weapon of assault i.e., the double barrel gun, the tractor in which the assailants had travelled, the truck which was used for loading the logs or even the logs are not recovered. This impacts the credibility of the versions presented by the eye-witnesses particularly in the face of the contrary version projected by the defence witnesses.
20. It is also not certain as to whether the IO actually visited the crime scene on the night of the incident i.e. on 30.06.1985. The IO stated he had deputed two Constables to attend to the dead body at night but Constable Mohd. Nayeem (PW-5) never said that he was asked by the IO to guard the dead body. Instead PW-5 said that he received the dead body on the morning of 01.07.1985 and took the dead body for postmortem examination. The other Constable i.e., Constable Chandrabhan was not even produced as a witness.
21. We are conscious that the challenge here is to the concurrent verdict of conviction and normally this Court would not exercise its special jurisdiction under Article 136 of the Constitution to set aside such concurrent verdict. However, it is also well settled that when there are multiple inconsistencies in the evidence on the basis of which conviction was ordered and possibility of conviction resulting in grave miscarriage of justice, interference with a concurrent verdict is not only possible but it would be well warranted. As we have noticed, the prosecution in the present case has failed to establish with material evidence the versions putforth by the eye-witnesses. More specifically, the weapon of assault i.e., double barrel gun, the tractor in which assailants group had travelled to the place of occurrence, the truck on which cut logs were being loaded, have not been seized. The IO has failed to record in the case diary about the cut logs and in fact no evidence of cut logs in the crime scene is available. From the testimonies of DW-1 and DW-5, it is apparent that the tree was sold to the timber merchant Karan and that too, 3-4 months prior to the incident. It would thus appear that the story of the purchased mango tree and the timber from that tree being loaded on to a truck was introduced by the eyewitnesses, only to justify their presence at the place of occurrence. It is therefore possible that because of past enmity, the eye-witnesses have presented a version which is not supported by the material evidence, presented in the case. This would suggest that the prosecution version if not incorrect is at least attempted to be founded on shaky foundations.
22. We have considered and analysed the materials on record. Also carefully read the impugned judgment of the High Court. Noticeably, the discrepancies/contradictions/improvements in the evidence of the prosecution witnesses have not been appropriately considered and appreciated by the High Court. In fact, indulgence is shown by the learned Judge on the versions of the eye-witnesses by saying that they are illiterate villagers and they need not have made a detailed narration of sequential events. However, when the testimonies of the eye-witnesses suffer from fatal flaws, to sustain conviction on the basis of such unreliable evidence would surely amount to miscarriage of justice. In our judgment, the prosecution in this case has failed to prove the case against the appellants with consistent and acceptable evidence. Both appellants are therefore entitled to the benefit of doubt. Consequently, the appeal is allowed. The conviction of Amar Nath (appellant No. 1) and Sheo Dayal (appellant No. 3) are hereby set aside and we order for their acquittal. They be released forthwith if their detention is not warranted in connection with any other case.
23. Pending application(s), if any, shall stand closed.
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