IMPORTANT POINT
Evidence of chance eye witness cannot be brushed aside.

JUDGMENT

A. K. Patnaik, J.-This is an appeal by way of special leave under Article 136 of the Constitution of India against the judgment and order dated 06.02.2007 of the Allahabad High Court in Criminal Appeal No.178 of 1981.

2. The facts very briefly are that on 22.09.1979 at 8.05 p.m. Balbir Singh, the complainant, lodged an FIR with Police Chowki Dhata, P.S. Khakhreru in District Fatehpur. The prosecution story as stated in the FIR was that on 22.09.1979 the complainant was returning home after purchasing crude oil from Khaga and Raja Ram Singh (his father) and Kunj Behari Singh were waiting for him at Dhata and he left the oil at Dhata and the three sat on the Motorcycle No.UTY 3213. Kunj Behari Singh drove the motorcycle and when they reached near bamboo clumps ahead of Kanya Pathshala on Dhata-Hinauta Road at about 6.00 P.M., Hira Pandey, Subhash Pandey @ Bodhan and Surendra Nath Pandey, the three appellants herein, who were waiting with single barrel gun, double barrel gun and rifle respectively and cartridge belts, started firing at them. As soon as Kunj Behari was shot, the Motorcycle lost balance and he and his father jumped off from the bike and while his father ran towards the west into the paddy fields, he ran towards Harijan Basti. From Dhata end, Sunder Lal Singh, Hari Prasad Singh, Lakhpat Sonar and Shisuvir Narain were coming and many other persons were coming from Kabraha side and on their exhortation, the appellants ran away to hide in the fields. Raja Ram and Kunj Behari died at the spot as a result of the firing. He had lodged a case against two of the appellants, Subhash and Surendra under Sections 323, 325 and 147 of the Indian Penal Code (for short ‘IPC’) and they had asked him to compromise several times but he had not compromised and to take revenge they had fired upon them. The complainant has also stated in the FIR that his pant got torn while running to save his life.

3. The FIR was registered. The investigation was entrusted to Pyare Lal Sharma, S.I. (for short ‘the IO’). The IO reached the place of occurrence at 7.30 A.M. on 23.09.1979 where the complainant was present. He recorded the statement of the complainant and wrote the Panchnamas of the deceased Raja Ram and the deceased Kunj Behari in the presence of the witnesses and seized the bodies of the two deceased persons and sent them for post mortem to the District Hospital through Constable Jamil Ahmad. He also collected blood- stained earth and sealed them in containers. He recorded the statements of Raghupat Singh, Sunder Lal Singh, Hari Prasad Singh and a few other persons of the Harijan Basti. The remaining investigation was completed by S.O. Ram Mohan Ramand a charge-sheet was filed against the appellants under Section 302 read with 34, IPC.

4. At the trial, the complainant was examined as PW-1, who fully supported the prosecution case as alleged in the FIR. Hari Prasad Singh was examined as PW-2 and he also supported the prosecution case as alleged in the FIR. Dr. Anand Swarup of the District Hospital, who carried out the post mortem, was examined as PW-3. He described in details the ante-mortem gun shot injuries in the chest and abdominal cavity and the thighs of the deceased Raja Ram and opined that the cause of his death was due to shock and hemorrhage as a result of the injuries sustained by him. PW-3 also described the ante-mortem gun shot injuries on left side of the chin and below the left ear and the left side of the neck of the deceased Kunj Behari Singh and opined that the cause of his death was due to shock and hemorrhage. Ram Prakash, the constable who received the complaint at Dhata Chowki of P.S. Khakheru, was examined as PW-4. The IO was examined as PW-5 and Jamil Ahmad, the constable, who carried the dead body for the post mortem, was examined as PW-6. In defence, the appellants examined a resident of the Harijan Basti of village Dhata, Shiv Balak, as DW-1 who stated that he had heard some voice coming from the road