The Allahabad High Court, while stating that the prosecution case is full of contradictions and lapses, acquitted the accused due to a double presumption of innocence.
The Division Bench of Justice Vivek Kumar Birla and Justice Rahul Chaturvedi passed this order while hearing a Government Appeal filed by the State.
The government appeal has been preferred against the order dated 07.09.1983, passed by the Additional District and Sessions Judge, Bareilly in Session Trial, arising out of Case under Section 302/34 and 307/34 IPC, Police Station Baheri, District Bareilly, whereby the accused persons have been acquitted by the Trial Court.
The prosecution story is that Dayal Singh- complainant, who is the resident of village Pandra, Police Station-Baheri, Bareilly has given a written report before the Station House Officer, Police Station Baheri, District Bareilly, stating therein, that he had some land dispute with the deceased- Pooran Singh and Others.
A week prior to the incident, a panchayat was convened and that panchayat decided the dispute regarding the land but the accused Pooran Singh has not accepted the award of the panchayat. Pooran Singh thereafter, had threatened the complainant to regain the land in dispute by whatever means.
On this very ground, Pooran Singh nursed a grudge against Dayal Singh. For this very reason on 22.06.1982 at 8.00 am. accused Pooran Singh armed with Rifle, Kashmir Singh armed with D.B.B.L gun, accused Jaswant Singh and Man Singh both armed with their S.B.B.L guns came towards the house of Dayal Singh and hurled abuses.
On seeing the accused coming towards them, Dayal Singh with his son Randhir Singh (deceased) and his brother-in-law, Balbindra Singh (injured) ran towards the house of Jugendra Singh, who is Sadhu raising alarm. Randhir Singh and Balbindra Singh climbed up on the roof top and Dayal Singh remained on the ground floor. On hearing the alarm of the aforesaid person, Jugendra Singh, Dalip Singh and Nishan Singh arrived at the scene of occurrence. The accused Pooran Singh, with intention to kill Randhir Singh (deceased), son of the complainant, fired a shot from his rifle at Randhir Singh, which hit on his left leg causing a wound. Kashmir Singh, accused, also fired from his D.B.B.L gun causing gunshot injuries to Balbindra Singh. The accused- Jaswant Singh and Man Singh have also fired from their respective guns. On being challenged by the witnesses, the accused escaped towards the Eastern side.
Thereafter the complainant Dayal Singh went to the roof where his son Randhir Singh was lying injured with a gunshot wound. The complainant wrapped his leg from cloth and got him down. Dayal Singh thereafter went to the police station with a written report which was written by Jasbir Singh on the dictation of Dayal Singh. The complainant left Balbinder Singh at the house. He had submitted the written report to the police station and on the basis of that written report, a chik report was prepared. On the basis of that report, a case under section 307 IPC was registered against the accused persons. The complainant took the injured Randhir Singh in a trolley to Budia Farm.
Injured Balbindra Singh did not accompany the complainant -Dayal Singh from the village. At Budia Farm the injured Randhir Singh (deceased) was put in a car belonging to Lala Bisambhar Nath and was thus carried to Police Station Baheri. The report was lodged to the police station at 1.10 am. The distance of the police station from the place of occurrence is 9 miles. Randhir Singh was initially examined by the doctor at Baheri and thereafter the doctor has advised that his injuries are serious so he should be shifted to the District Hospital, Bareilly. On the advice of the doctor, Baheri, Randhir Singh was brought to the District Hospital, Bareilly for his treatment, where he died on the same day.
The post mortem of his body was conducted on 22.06.1982 at 4.30 pm by Dr Balbir Singh of the District Hospital, Bareilly.
Later on, the case under Section 307 IPC was converted into 302 IPC vide G.D. entry.
After completing the investigation of the case, Investigating Officer, Pal Singh, submitted a charge sheet against the accused Pooran Singh, Kashmir Singh Jasbir Singh and Man Singh on 26.06.1982. After inquiry, they were committed to the court of trial.
At the trial accused persons pleaded not guilty and attributed their false implication on account of enmity.
From perusal of record, the Court found that the names of three eyewitnesses were mentioned in the first information report but they are not produced before the trial court though they are closely related and explanation for their non production is not satisfactory. There was only one entry and exit wound and recovery of weapon was from Kasmira Singh, although was disbelieved by the trial court, and the empty cartridge as per balletic report was fired from the gun recovered from Kasmira Singh only hence, the involvement of the sole surviving accused Man Singh is not proved beyond shadow of doubt. As already noticed that there was no recovery of firearms from Man Singh. There was no allegation that his fire caused any injury to anyone or even caused damage to any property.
The Court further found that Balkar Singh had narrated the motive behind the crime and had stated that in the panchayat where the land dispute between Pooran Singh and Dayal Singh was settled he was also present although he was not called for such a panchayat. Dayal Singh, father of the deceased, who is the informant has narrated the motive and manner of crime. He had taken Randhir Singh to the hospital in a car and Balbindra Singh was present in the house. Balbindra Singh has also narrated the manner of the incident. Both the witnesses have stated that Man Singh was carrying SBBL Gun and had also fired from his gun, however, as already recorded, no recovery was made from the sole surviving accused Man Singh and his shot had not caused any injury to anyone. Sub Inspector Ram Chandar is the formal witness.
Dr Balbir Singh had conducted the post mortem and had certified that there was only one gun shot entry wound of 7cm x 6cm and one gun shot exit wound of 12cm x 11 cm, Dr Janki Prasad Gangwar had also certified that there was one gunshot entry wound and one gunshot exit wound and one lacerated wound 1.5 cm x .25 cm x skin deep 2 cm.
The Court observed that,
This clearly reflect that there was only one gunshot entry wound and one gunshot exit wound meaning thereby there was only single firearm injury caused to the deceased whereas as per the prosecution case, accused Pooran Singh armed with Rifle, accused Kashmir Singh armed with D.B.B.L gun, accused Jaswant Singh and Man Singh both armed with their S.B.B.L guns. The post mortem report clearly reflects that the injuries were caused by a .12 bore gun and not by the Rifle.
Therefore, the prosecution story that the injuries caused by the Rifle is false has rightly been held by the trial court. It is also noticeable that as per prosecution case DBBL gun was recovered from the possession of accused Kashmir Singh on 23.06.1982. The recovered gun and cartridges were brought from police station Kitcha to police station Baheri, District Bareilly by Constable Prem Pal Sharma as late on 24.01.1983 and there was no explanation for such a lapse.
“Thereafter the same was sent from the police Station Baheri to ballistic expert, Lucknow as late on 03.04.1983. This is a clear lacuna on the part of the Investigating Agency though by itself may not be a ground of acquittal, however, coupled with the fact that Constable Hari Nandan Murari in his examination in chief has admitted that the cloth in which the recovered gun was packed was torn therefore, he has changed the same and resealed the aforesaid articles and thereafter handed over to the Constable Prem Pal. This creates doubt in the prosecution story connecting the weapon recovered with the crime.
Therefore, the prosecution case is full of contradictions and lapses on part of the prosecution. There has also been lapse on the part of the investigating agency in preparation of site plan as well as explanation offered for non production of the eye witnesses mentioned in the first information report. The explanation that eye witness Nishan Singh had left the place immediately after the incident and had gone to Punjab and his whereabouts are not known is not convincing at all. Dayal Singh and Nishan Singh are closely related and are first degree relations, therefore, the explanation for their non production is not satisfactory. Other eye witness Jogendra Singh, explanation for non production given was that he fell seriously ill, however, no medical documents were produced in respect of such serious illness, which may suggest that he was not in position to appear in the witness box.
In the totality of circumstances, we find that prosecution has failed to prove its story beyond doubt.
It is the settled law that after acquittal by the trial court there is a double presumption of innocence in favour of the accused which, in our opinion, cannot be overlooked in the case”, the Court further observed while dismissing the government appeal.