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Om Prakash Vs. State of U.P. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAllahabad High Court
Decided On
Judge
Reported in1981CriLJ636
AppellantOm Prakash
RespondentState of U.P.
Excerpt:
.....from the side of the tube-well. he went towards the tube-well and saw his son lying injured with gunshot injuries on his body, virendra singh was present there with a pistol in his hand. our impression is that this witness had not seen anything and is no better than a got up witness. he is a bad character as several cases are pending against him. a person with such bad antecedents can be prevailed upon to say anything against anybody. 2) is concerned we think that she too is not at all a dependable witness. 15. from the above it is clear that both the witnesses examined by the prosecution have failed to give a satisfactory explanation about the gunshot injuries received by kushal pal. 16. it is a well settled principle of criminal law that an accused can be convicted only when on the..........when it is alleged that the appellant took out a country made pistol and fired twice at virendra singh. virendra singh died then and there. virendra singh's sister raj-bala (p.w. 2) was there and when she tried to intervene she too was beaten. there was a hue and cry and then the appellant had his son took to their heels,3. rajbala (p. w. 2) returned to her house and informed her father niranjan singh about the incident. niranjan singh got a report written out by one vijaipal singh and armed with that report he went to the police station where he lodged it at 12.35 p. m. on the basis of that report a case was registered against the appellant and his son kushal pal. s. i. narottam singh (p. w. 7) was pre sent at the police station and he immediately took charge of the investigation. he.....
Judgment:

V.N. Varma, J.

1. This is an appeal from the judgment and order of Sri Harish Chandra Saxena. VI Additional Sessions Judge, Meerut by which he convicted the appellant (Om Prakash) under Section 302, I.P.C. and sentenced him to imprisonment for life.

2. The person who lost his life in this case was one Virendra Singh son of Niranjan Singh (P. W. 5). On the morning of 18-6-1975, Virendra Singh borrowed the hose-pipe of the appellant and started irrigating his sugarcane field from the tube well of one Sukhbir Singh. It is said that at about 11 A.M. appellant's son Kushal Pal asked Virendra Singh to give back his hose-pipe as he also needed it for irrigating his field Virendra Singh told him that he will not return the hose-pipe as he was busy irrigating his sugarcane field. He promised to return it later. Kushal Pal, however, insisted on taking back his hose-pipe at that very time. This led to an exchange of hot words followed by a scuffle between them. Kushal Pal then left the place threatening Virendra Singh with dire consequences. After some time Kushal Pal returned to the tube well accompanied by the appellant. The appellant immediately put off the engine and asked his son to disconnect the hosepipe. Kushal Pal did as was directed by his father. Virendra Singh again tried to come in the way of Kushal Pal when it is alleged that the appellant took out a country made pistol and fired twice at Virendra Singh. Virendra Singh died then and there. Virendra Singh's sister Raj-bala (P.W. 2) was there and when she tried to intervene she too was beaten. There was a hue and cry and then the appellant had his son took to their heels,

3. Rajbala (P. W. 2) returned to her house and informed her father Niranjan Singh about the incident. Niranjan Singh got a report written out by one Vijaipal Singh and armed with that report he went to the police station where he lodged it at 12.35 P. M. On the basis of that report a case was registered against the appellant and his son Kushal Pal. S. I. Narottam Singh (P. W. 7) was pre sent at the police station and he immediately took charge of the investigation. He recorded the statement of Niranjan Singh at the police station and then went to the spot. He first held an inquest on the dead body of Virendra Singh and then sent it duly sealed to Mortuary for post-mortem examination. Having done that he recorded the statement of the material witnesses, inspected the locality and drew the site plan (Ex. Ka-7).

4. The post-mortem examination on the dead body of Virendra Singh was conducted by Dr. Vinai Matin (P. W, 3) on 19 6-1975 at 3.15 P. M. He found the following ante-mortem injuries on the dead body:

1. Multiple gunshot wounds of entrance in an area of 15 cm x 10 cm. on the left side of chest.

2. Multiple gunshot wounds of entrance in an area of 10 cm. x 6 cm. on the right side of the chest.

3. Gun shot wound of entrance in an area of 7 cm. x 5 cm. on the left forearm ulnar side 3 cm. above the wrist.

5. According to the autopsy surgeon death was due to shock and haemorrhage as a result of the gunshot injuries.

6. Rajbala (P. W. 2) had also received injuries and her injuries were examined by Dr. S. K. Sharma. He found five minor bruises and one minor abrasion on her body.

7. The appellant as also his son Kushal Pal pleaded not guilty and claimed to be tried. The appellant gave his own version of the incident. He alleged that on 17-6-1975, Virendra Singh deceased had borrowed his hose-pipe and had promised to return it on the following day. On that day (18-6-1975) his son went to the tube-well of Sukhbir Singh to get back the hose-pipe from Virendra Singh. After some time he heard the report of a gunshot coming from the side of the tube-well. He went towards the tube-well and saw his son lying injured with gunshot injuries on his body, Virendra Singh was present there with a pistol in his hand. Virendra Singh tried to shoot at him also but he, caught hold of his pistol and a scuffle ensued. In that scuffle the pistol in the hand of Virendra Singh again discharged and Virendra Singh was hit with the shot of his own pistol.

8. Kushal Pal also gave the same version of the incident as given by his father.

9. The appellant had also made a report at the police station giving the same details of the incident as stated by him above,

10. Kushal Pal had received gunshot injuries and the police sent him to Pyare lal Sharma Hospital Meerut for medical examination. On the same day he was examined by Dr. Om Prakash and he found the following injuries on his body:

1. Gunshot wound of entry 0.3 x 0.3 cm. x not probed on back of right forearm in middle, advised X'ray, kept under observation. No tattooing or scorching present around the wound.

2. Gunshot injury of wound of entrance 0.3 x 0.3 cm. Depth not probed on right front of abdomen 8 O'clock1 position and 11 cm, away from umbilicus. Kept under observations, advised X'ray. No scorching or tattooing present around the wounds.

11. After the investigation was over the Appellant as also his son Kushal Pal were sent up to stand their trial.

12. The learned Additional Sessions Judge found no case made out against Kushal Pal and, he, therefore, acquitted him. He, however, found the case fully proved against the appellant and so he convicted and sentenced him as indicated above. Aggrieved, he has come up in appeal to this Court.

13. We have heard the learned Counsel for the appellant at sufficient length and after doing so we are firmly of the view that this appeal must be allowed. We find that the Court below has not appreciated the evidence adduced in this case in a proper manner with the result that it fell in error and passed a wholly wrong order of conviction against the appellant. Two witnesses were examined by the prosecution to prove its case against the appellant, they were Nepal Singh (P. W. 1) and Rajabala (P. W. 2), Nepal Singh has stated that he had been returning to his house from his field at about 11 A. M. on 18-6-1975, when in the way he saw the appellant and his son Kushal Pal quarrelling with Virendra Singh deceased regarding a hose-pipe. The hose-pipe belonged to the appellant and he wanted to take it back but Virendra Singh was resisting him in this regard. The appellant asked his son to disconnect the hose-pipe but Virendra Singh deceased would not allow him to do so. The appellant then tried to strike him with the butt end of his pistol but Virendra Singh caught his hand. A scuffle followed and in that scuffle the pistol discharged hitting Kushal Pal due to which he was injured. The appellant then fired twice at Virendra Singh and he fell down dead. We have gone through his statement very carefully and we may say here at once that he has not in the least impressed us to be a truthful witness. The story given by him in regard to the manner in which Kushal Pal received his injuries is too dressed up and artificial to merit credence. It has been coined just with a view to explain the gunshot injuries received by Kushal Pal. Our impression is that this witness had not seen anything and is no better than a got up witness. He is a bad character as several cases are pending against him. He is being prosecuted in three different cases - a theft case, a kidnapping case and a murder case. A person with such bad antecedents can be prevailed upon to say anything against anybody.

14. So far as Rajbala (P. W. 2) is concerned we think that she too is not at all a dependable witness. She claims herself to be an injured witness but her injuries appear to us to be fabricated ones. According to her she had received her injuries when she was repeatedly pushed down by the appellant but her injuries belie this thing. She could not have received so many bruises had she just been pushed down on the ground. Further, she has given the same story in regard to the injuries received by Kushal Pal as the one given by the earlier witness. We do not think that Kushal Pal had received his gunshot injuries in the way as stated by her. She is definitely lying when she stated that Kushal Pal had received gunshot injuries from the pistol of his father.

15. From the above it is clear that both the witnesses examined by the prosecution have failed to give a satisfactory explanation about the gunshot injuries received by Kushal Pal. Likewise, the appellant has also not given a proper and convincing explanation for the gunshot injuries which the deceased had received. According to him, the deceased was having a pistol and in the scuffle between him and the deceased the pistol of the deceased discharged due to which he was hit and he died. Obviously, the explanation offered by the appellant in regard to the injuries received by the deceased is too crude to be accepted. Thus, both the sides have not come to Court with the true picture of the incident.

16. It is a well settled principle of criminal law that an accused can be convicted only when on the evidence produced the Court is in a position to come to a definite conclusion beyond the possibility of reasonable doubt that the accused committed the offence with which he stood charged. No conviction can be, based on mere possibilities. Nor is it permissible for the Court to speculate1 as to what had really happened. If both the parties come to Court with untrue facts and conceal the real truth they have themselves to blame and they cannot expect the Court to arrive at any definite conclusion on the unreliable evidence produced either for or against; either of the parties. In such a case the Court will certainly attempt to separate the grain from the chaff but only if it is possible to do so. In certain circumstances it may be found to be an impossible task. That is particularly so when the evidence of both the parties is thoroughly unreliable and cannot be accepted even in part with safety. In such a case it is not open to the Court to make out a third case which is different from the case set up by the parties, in a situation like this the Court can only say that the matter is doubtful in the extreme and it is not possible to arrive at any conclusion one way or the other. The result of such a finding may be that all the persons who stand as accused in. the case may have to be given the benefit of doubt. But that cannot be helped. The defective investigation and the conduct of the parties themselves are really responsible for the regrettable result. In such a case, there can be no question of recording any conviction,

17. In the result, we allow this appeal and set aside the conviction and sentence passed against the appellant. The appellant is on bail, his bail bonds are discharged and he need not surrender to them.


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