[2008] 17 5.C.R. 475

OM PRAKASH A

r -1

\I.

STATE OF U.P. (Criminal Appeal No. 1022 of 2204)

DECEMBER 12, 2008 B

[S.B. SINHA AND CYRIAC JOSEPH, JJ.]

-~ Penal Code, 1860 - ss 148, 452, 302, rw 149 - Conviction under -'Appellant and other accused armed with deadly weapons trespassing house of father of deceased - c Shots fired resulting in death of deceased - Conviction by trial court - High Court upholding conviction of appellant only - Sustainability of - Held: Not sustainable - High Court erred in holding that shots fired by appellant caused fatal injuries

- It did not analyse evidence on record as to who caused D other firearm injuries - There were discrepancies in the time

~ of lodging of FIR - Investigation did not start immediately - ..

Scribe of FIR not examined - There is nothing to show that appellant had any animosity against deceased whereas other accused had direct enmity with deceased's father and his family - Thus, order of High Court set aside.

It is the prosecution case that DK, RR, RP and GK are sons of MR. On 15-8-1979 at 9.30 p.m. when RL-MR's wife, DK, GK, RR and his wife were offering puja, the appellant and others armed with weapons entered the house of MR. Appellant fired at RR. Other accused also F tfired at RR. Members of the family saw them under the .._

torch light, lantern and kerosene box wick. The injuries inflicted resulted in the death of RR. GS-brother of MR who is not the resident of the village where the incident took place scribed the FIR. MR lodged FIR. He stated that G RS-son of accused no. 1 had lodged FIR u/s. 307 IPC against his sons. They were convicted and later released on bail. Also there was a property dispute between K father of accused no. 7 and MR and his sons.

475 H

A Prosecution relied on evidenc~ of PW 1-MR, PW 2-SP son of GS and PW 4-DK. Trial court convicted all the accused persons for committing murder of RR. However, High Court found the appellant ony guilty of firing of a shot at the deceased, holding that participation of other

8 accused in the commission of the said offence was not proved beyond doubt. It upheld the conviction of the appellant and acquitted others. Hence, the present appeal.

Allowing the appeal, the Court

C HELD:1.1. High Court committed a serious error insofar as it proceeded on the basis that shots fired by the appellant caused the fatal injury. The High Court did nof analyze the evidence on record as to who caused the other firearm injuries. It erred in

1 drawing an inference that

0 appellant had rightlybeen held, guilty for commission of offence of murder of RR as anin:iosity between the parties was proved. It failed to notice 1 th.at there is nothing on record to show that the appellant had been bearing any animosity against the deceased. On the other hand, other accused were having animosity towards the deceased- E MR and his family. If the pros; ecution witnesses, who were said to be the eye-witnesses, were to be believed, 6 out of 7 accused could not liave been acquitted and particularly those who .had direc~ enmity with MR and his sons. [Paras 13 and 14] [484-F-G]

F 1.2. It is difficult to believe that in a case of this nature the investigation did not start immediately. Inquest report, preparation of seizure memo etc. were to be carried

I routinely, and as such there was no reason as to why they were not brought on recolid. While examining the G original records of the case, some interpolations made in

the records maintained at the pblice station have been noticed. [Paras 13 and 14] [485-A-C]

. 1.3. The prosecution case proceeded on the basis that immediately after occurrence and after shifting the H dead body under a shed, the informant got the FIR

OM PRAKASH v. STATE OF U.P. 477

scribed by GS and immediately thereafterproceeded on A foot to the Police Station. If this part of the story is correct, the prosecution's case would not be subject to much doubt. But if the scribe of-the FIR was residing in a separate village which is 10 kms. away from the place of occurrence, and it was at that place the FIR was scribed 8 whereafter PW1 arrived at the Police Station, it would be impossible for him to reach by 4.30 in the morning. The

prosecution did not examine the scribe of the FIR although his son has been examined as an eye-witness.

If he was residing at the relevant time in the village where .C the incident had taken place, it was expected that either he had witnessed the occurrence or had reached the place of occurrence immediately after the accused fled away. Therefore, the prosecution should have made attempts to clarify this anomaly. [Patil 15] [486-A-B]

1.4. High Court did not pose unto itself the correct D

question, namely, the time of lodging the FIRwhether it, .... had in fact been lodged at 4.45 a.m. or 4.45 p.m. If it was • lodged at 4.45 p.m., the entire edifice of the prosecution , case would fall to the ground. Delay in lodging the FIR has a great importance in a case of this nature. There. E exists a discrepancy as regards timing of the lodging of the FIR P.W.3 Head Constable testified that it was lodged at 4.45 a.m. However, records show otherwise. In the FIR, it is shown to have been lodged at 4.45 p.m. There are some interpolations but according to the Investigating' F t- Officer, he recorded the FIR at 9.30 p.m. on 16.8.1979. • Moreover, if the FIR was lodged early in the morning,· there was absolutely no reason as to why the investigation did not start immediately thereafter. If Head Constable is correct that the copies of the FIR had been G sent to all concerned including the court, there was absolutely no reason as to why the same would reach the ..._ court on the next date. There is failure to comprehend as to why the dead body was sent for post mortem only on

17th instead of 15th itself. The seizure memo does not

A contain any. date. The original inquest report is not on record. Furthermore, except the appellant all other accused have been acquitted. Therefore, High Court did not rely upon the prosecution case in its entirety. While doing so, unfortunately, the High 1Court did not conside~ B these vital aspects of the matter. which were crucial for determination of the issue. The jmpugned judgment of the High Court cannot be susta•ned and is set aside. [Paras 14~ 15, 16, 17 and 18] [486:-D-H; 487-D-H] ...\- CRIMINAL APPELLATE JURISDICTION : Criminal Appeal c No. 1022 of 2004.

From the Judgment and Order daed 14.5.2004 of the High Court of Judicature at Allahabad in Criminal No. 14 72 of 1981.

I Rakesh K. Khanna, S.S. Chowdhary, Faizy Ahmad Syed, Surya Kant and Dr. "Rashmi Khanna fpr the Appellant.

D Pramod Swarup, Prashant Chaqdhary, Anuvrat Sharma and Alka Sinha for the Respondent. ,

The Judgment of the Court was qelivered by

~· ..

S.B. SINHA, J. 1. This appeal' is directed against a

E judgment and order dated 14.5.2004 pssed by the High Court

of Judicature at Allahabad in Criminal Appeal No. 1472of1981 whereby and whereunder the appeal prrferred by the appellant . herein against a judgment of conviction and sentence dated 30.6.1981 passed by Sri R.K. Mishra,

1 111 Additional Sessions

F Judge, Shahjahanpur in Sessions Trial No. 418of1980 holding

· that the appellant was guilty for commission of offences under Sections 148, 452 and 302 read with St;!ction 149 of the Indian -1 Penal Code and sentencing him to undergo rigorous ..

imprisonment for 18 months, 18 months and life imprisonment respectively,.was dismissed.

2. Appellant wasprosecuted in respect of commission of offences; the incident whereof took place, on or about t5.8.1979 at about 9.30 p.m. in the house c;:>f one Mewa Ram. _..

Janamashtami festival was being celebrated on that night.

Dinesh Kumar and Girish Kumar, the sons of the informant H Mewa Ram, Smt. Ramlali, his wife, son' Ram Rakshapal, the

deceased and his wife Smt. Neha were busy in offering puja

A.- to the deity. Allegedly, Dinesh Kumar, Ram Rakshpal, Ram Pal "'-1 and Girish Kumar, sons of Mewa Ram were found guilty for commission of an offence under Section 307 wherefor Ram Shanker son of Chhotey Lal (accused No. 1) had lodged a First Information Report (FIR). All the four sons of the informant B preferred an appeal against the said judgment of co_nviction and were released on bail. Admittedly, there existed a dispute with regard to a house property between Shri Krishna, father of t-~ Pappu (accused No. 7) on the one hand, and the informant as well as his four sons on the other, wherefor a proceedings under c Section 107 of the Code of Criminal Procedure had been initiated.

3. Before adverting to the details of the prosecution case, we may notice the inter se relationship amongst the accused. ·Accused Ram Shanker and Ram Bharosewere real brothers; D accused Dharmandera was son of Ram Shanker and others were family members or relatives of Ram Shanker. Appellant

"" before us was not concerned with the aforementioned dispute. ..

We may furthermore notice that whereas all the 7 accused had been found guilty of commission of the offence of murder of E Ram Rakshapal (deceased), son of Mewa Ram by the learned trial judge, the High Court had found the appellant only guilty of firing of a shot at the deceased, opining that participation of other accused in the commission of the said offence was not proved beyond doubt. We may furthermore notice that during pendency of the appeal before the High Court Ram Bharose F son of Chhotey Lal and Ram Shanker, son of Rudra Prasad

I f

~ expired.

4. The First Information Report, as noticed above, was lodged by Mewa Ram (P.W.1) on 16.8.1979, stating:-

''This is to bring to your kind notice that approximately four G years ago Rama Shankar s/o Chotte Lal Brahman lodged a criminal case u/s 306 against my son Dinesh Kumar, ..

Ram Rakshapal, Rampa! and Girish Kumar in which matter the four were convicted. They were released on bail by the

=l High Court. Ever since Rama Shankar and his son H

Dharmendra and Ram Bhar:ose and Om Prakash s/o Ramch.andar and Satish s/o Rameshwar. and Ram Shankar s/o Rudraprasad and Pappu alias Suresh s/o Sri Krishna were seeking revenge; Sri Krishna also involved us in the matter of partition of house under 107 which took place in the court of Pargandhibari, Tilhar. This further aggravated the enmity, so-that tonight around half past nine when I was sitting on the cot in front of the door under the roofwhile my son Dinesh Kumar, Shashi Kumar, my wife

Ramlali and my son Ramrakeshpal and his wife Neha were performing Janamashtami puj~ in the 2 kitchens, then Om Prakash, Ram Bharose-each carrying their licensed guns and Dharmendra and Sati$h carrying small guns

(tamancha) and Pappu alias Suresh and Ramashankar carrying guns in their hands ehtered my house from the eastern gate on which doors wre not attached. Near the thatched roof a lantern was alight and in front of Girish

umar's room a kerosene wicked box was burning. On nearing the foot steps of above named.accused I inquired, On rl)Y query my son Ram Rakshpal came out from kitchen ' and Om Prakash instantly fired! at my son from his gun. I and my family raised alarm. dn hearing the shouts my nephew lshwar Chanctand Suraj Prasad came to the roof carrying a battery. They saw under the power of the torch that Rambharose and Dharmendra, Satish, Ramshankar, Pappu alias Suresli and Ramshankar also fired at my son Ram. R.akshapal, from their guns and small guns . (tam;:tncha). My son re.ceived gn shots and he fell down there only. My son Dinesh Kumr. Shashi Kumar, my wife Ramlali, Neha w/o Ram Rakshpal and my nephew lshwar Char:id and Suraj Prasad also saw these peopie under the light of torch, Lantern and kerosene box wick and clearly recognized them. After the accused ran away from the eastern side we went and saw and founq that Ram Rakshpal had died. I could not care to report the incident because of the fear of the accused. Now I came to lodge the report written by. my brother. Report be registered and

legal action be taken now. Because of rain the corpse of

~-I

I t

,, I

I-- I

~--

Ram Rakshpal was removed from the courtyard to the A -; roof."

5. There exists a controversy as to whether the said report was.lodged at4.45 a.m. or4.45 p.m. on 16.8.1979. Typed copy of the FIR, however, show that it was lodged at 4.45 p.m. and not at 4.45 a.m. We may also notice that the Investigating Officer B while lodging the FIR stated that the same had been lodged at 9.30 p.m. on 16.8.1979. Admittedly, the FIR was sent to the court of Chief Judicial Magistrate only on 17.8.1979. Neither any inquest report nor any seizure memo had been proved. The documents relating to post-mortem examination of the dead c body was received by the Autopsy Surgeon at about 10.45 a.m. on 17.8.1979. The dead body, however, was received at about 2.20 p.m. on that day and post-mortem was conducted at 2.30 p.m. Interestingly, the death, according to the Doctor, is said to have taken place 3-4 days prior to the post-mortem D examination. In the said report, it was stated:

_,.( "Averageage built body Eyes closed, Mouth half open,

~ Abdomen scrotum and Penis distended Blister present at places skin peeling off at places. Rigor Mortis passed off from both upper extremities but slightly present in lower E extremities."

6. The FIR was scribed by one Ganga Sahai. He was brother of Mewa Ram. He was, however, not ordinarily a resident of village Parawnia where the incident took place but was a resident of Tilhar.

F r

7. The manner in which the incident had taken place was .., noticed by the High Court, which is reads as under:

"Dinesh Kumar and Girish Kumar sons of Mewa Ram, Smt.

Ramlali, wife of Mewa Ram, Ram Rakshapal son of Mewa Ram and Smt. Neha wife of Ram Rakshapal were busy in G worship; Om Prakash and Ram Bharosey armed with their licensed guns; Dharmendra, Satish and Ram Shanker sons of Shhotey Lal armed with country made pistols and Pappu alias Suresh and Ram Shanker son of Rudra Prasad armed with guns entered into the house of the H informant through eastern side where there was no gate.

A Lantern and Dhibari were glowing. When Mewa Ram, informant objected to it his son Ram Rakshpal came out r-- of the kitchen. Om Prakash fired on him and the shot hit him (Ram Rakshapal). Therefter, other accused also fired and Ram Rakshapal fell down on the spot. When alarm

B was raised by Mewa Ram, his nephews lshwar Chand and Suraj Pal PW2 with their torches reached the roof and saw

..,.

the accused persons inside the house of the informant.

After committing the crime, the accused persons made their escape good. Mewa Ram went near his son Ram

c Rakshpal and found his son to be dead. Due to fear, Mewa Ram could not proceed immdiately to the police station, which was at the distance <i>f about four miles from the village. He ultimately got FIRlscribed from one Ram Sahai resident of the same village . nd lodged it at police station Jaitipur on 16.8.1979 at 4.45

1A.M. against the appellants."

8. The prosecution in support of its case, inter alia, relied upon the evidence of Mewa Ram (PW-1), Surajpal son of )....

Ganga Singh (PW-2), and Dinesh Kumar, son of Mewa Ram 1 ,,.

(PW-4). ' ~

E Mewa Ram (PW-1) in his eamination-in-chief reiterated the averments made in the FIR. 'f'e may, however, notice that according to him Om Prakash anl::I Ram Bharose had licensed guns and all others were having country-made pistols. Whereas ) Om Prakash was said to have fired from a distance of 4-5 "-

paces, other accused allegedly fired from a distance of 2-3 F paces only. PW-1 was supported by the other prosecution -+ witnesses.

°¥' We may also notice that in. the post-mortem report, the following ante-mortem injuries were found.

"1. Gunshot wound of entry b.5 cm x 0.5 cm x bone deep on right side face 0.5 cm ib front of tragus Rt. ear. No blackening around wound: present. Margins inverted.

I' Direction from the Rt. side ramus & Rt. Mandible fractured. \ ..

2. Gunshot wound of entry 0.5 cm x 0.5 cm x muscle deep ·-..

H on Rt. side neck 4 cm below Rt. angle of Jaw Direction

)--\ I

I /

from right back to left. Margins inverted. No blackening or Ar

~ charring present.

3. Gunshot wound of entry 0.5 cm x 0.5 cm x chest cavity deep through and through Rt. side chest 8 cm. Above Rt. nipple at 11 '0 Clock in position from nipple.

4. Gunshot wound of exit 1 cm x 2 cm x cavity deep through B

& through communicating injury No.3 on back of Rt.

Shoulder, 9 cm below tip of Rt. shoulder posteriorly.

- :r.- Margins everted.

9. Dr. M.L. Tandon, Autopsy Surgeon who was examined c before the learned trial judge as PW-6 stated that there were three wounds of entry, whose size and direction were same.

He furthermore opined that injuries caused to the deceased was only possible if shots had been fired from his right side.

He furthermore was of the opinion that the duration of time of death may vary by about 6 hours. We have noticed hereinbefore D that according to the post-mortem report, Blister was found to

.... be present at places and skin was also peeled off at places . • Rigor Mortis passed off from both upper extremities but slightly present in lower extremities.

10. On the date of occurrence, according to the prosecution E witnesses, it was raining and the dead body was kept under the Chappar. The prosecution failed to obtain an explanation from the Autopsy Surgeon as to how he had opined that death had taken place 3-4 days prior to his post-mortem examination although he examined the dead body within 41 hours from the F ttime of occurrence. ' ...

11. It is furthermore evident that all the prosecution witnesses stated that all the accused persons had fired from the respective firearms. According to them at least 7 shots were fired; 3 shots had hit the person of the deceased. If that be so, G more than one gun must have been used. Appellant, as noticed hereinbefore, is said to have been fired a shot from his licensed

~ gun. Its use, however, has not been established by the

r"" prosecution as the report of the ballistic expert is silent in that regard. The empties which were found at the spot had not been H examined by any ballistic expert. The empties which were

e 484

SUPREME COURT REPGRTS

[2008) 17 S.C.R. --

A recovered from the dead body wer~ not matched with the gun

allegedly used. We may notice that two metallic pellets were recovered from the dead body. Empties had ndt been shown to the expert; even the attention of the Autopsy Surgeon was. not drawn B thereto. Although shots were said

1to have been fired from a distance of 2-3 paces, no blackening or charring was found to be present. If the shots were fired from a close range, it was expected that blackening and charring would have been noticed ~-... by the Autopsy Surgeon at the entry point. c

12. Learned Sessions Judge and the High Court, with respect, failed to apply their mind aslregards the time of lodging .,_ of the FIR. Hirdey Narain Shukla, the Head Constable attached with Police Station who was examined as PW-3 before the

learr:ied trial judge stated that the FIR was lodged at 4.45 a.m.

D and he had recorded the same immediately. According to him, the special reports were sent by 6.00 a.m. through a constable.

However, the Investigating Officer did not say so. As we have

')I. noticed hereinbefore, he, in his evidence, categorically stated _..

that he had recorded the FIR at 9.~0 p.m. No evidence had

E been brought on records to show that investigation had started on 16.8.1979. A site plan was prepared but it does not bear any date. The prosecution has not ef plained as to why the FIR was sent to the court of Chief Judicial Magistrate on 17.8.1979 and why the dead body was not sent for post-mortem on 16.8.1979 itself.

13. The High Court, in our opinion, committed a serious -1 error insofar as it proceeded on the basis that shots fired by "' the appellant caused the fatal injufy. The High Court did not analyze the evidence on record as to who caused the other firearm injuries. If the prosecution witnesses, who were said to

I G be the eye-witnesses, were to be believed, 6 out of 7 accused

could not have been acquitted and particularly those who had direct enmity with Mewa Ram and his sons. Although Suraj Pal ,.. ' I (PW-2) son of Ganga Singh denied the suggestion that scribe of the FIR who was admittedly a resident of different village

-.ii

H (said to be at a distance of 1 O kilometers) from the place of

occurrence, the prosecution had not explained as to why he was A not examined. If he was present in the village it was expected that he also had witnessed the occurrence, as his son was said to be an eye-witness. It is difficult to believe that in a case of this nature the investigation did not start immediately. Inquest report, preparation of seizure memo etc. which were to be B carried routinely, and as such there was no reason as to why they were not brought on record.

-... ""-"'

~'>J

14. While examining the original records of the case, we have noticj:id that some interpolations have made in the records maintined at the police station. The High Court, in our c opinion, committed a serious error in drawing an inference that appellant had rightly been held guilty for commission of offence of murder of Ram Rakshpal as animosity between the parties was proved. It failed to notice that there is nothing on record to show that the appellant had been bearing any animosity against D the deceased. On the other hand, other accused were having animosity towards the deceased, Mewa Ram and his family .

. .>f Furthermore, the High Court did not pose unto itself the • correct question, namely, the time of lodging the FIR, i.e., whether it had in fact been lodged at 4.45 a.m. or 4.45 p.m .. If E, it was lodged at 4.45 p.m., the entire edifice of the prosecution case would fall to the ground.

15. Delay in lodging the First Information Report has a great importance in a case of this nature. Enmity between the parties stands admitted. The prosecution case proceeded on F. the basis that immediately after occurrence and after shifting .... the dead body under a shed, the informant got the First ..

Information Report scribed by Ganga Sahai and immediately thereafter proceeded on foot to the Police Station. If this part of the story is correct, the prosecution's case would not be subject to much doubt. But if the scribe of the First Information G Report was residing in a separate village which is 10 kms. away from the place of occurrence, and it was at that place the FIR .... was scribed whereafter PW1 arrived at the Police Station, it would impossible for him to reach by 4.30 in the morning. The prosecution did not examine the scribe of the First Information H

A Report although his son has been examined as an eye-witness.

If he was residing at the relevant time in the village where the

-~ incident had taken place, it was expected that either he had witnessed the occurrence or had reached the place of occurrence immediately after the accused fled away. The

B prosecution, therefore, should have made attempts to clarify this anomaly.

Indisputably, there exists a disbrepancy as regards timing \-

of the lodging of the First Information Report. P.W.3, Head -t\._...,.-- Constable Hriday Narain Shukla, testified that it was lodged at c 4.45 a.m. Records, however how otherwise. In the FIR, it is shown to have been lod ed. at 4.45 p.m. As noticed .

~ hereinbefore, there are some nterpolations but accordng to the Investigating Officer, he recoded the First Information Report at 9.30 p.m. on 16.8.1979. ·

16. Moreover, if the First Information Report was lodged early in the morning, there was absolutely no reason as to why the investigation did not start immediately thereafter. If Head

);._ Constable Hriday Narain Shukla iJ correct that the copies of .. the First Information Report had been sent to all. concerned

E including the court, there was absolutely no reason as to why the same would reach the court on the next date. We also fail to comprehend as to why the dead body was sent for post mortem only on 17th instead of 15th itself. The seizure memo does not contain any date. The original inquest report is not on record.

17. Furthermore, except the appellant all other accused have been acquitted. The High Court, therefore, did not rely -t

upon the prosecution case in its entirety. While doing so, unfortunately, the High Court did not onsider these vital aspects

....

of the matter which were crucial for idetermination of the issue.

18. For the aforementioned: reasons, the impugned judgment of the High Court cannot be sustained and it is set aside accordingly. The appeal is allowed. The Appellant who_

-· is in custody is directed to be set ?t liberty unless wanted in connection with any other case.

H N.J.

Appeal allowed.

...