JUDGMENT
M.C. Jain, J.
1. This appeal has been preferred against the judgment and order dated 30-7-1980 passed by Sri M. N. Kulshrestha, the then Vth Addl. Sessions Judge, Budaun in Sessions Trial No. 316 of 1979. The accused-appellants are 1. Jai Singh, 2. Atar Singh ,3. Lal Singh, 4. Mohar Singh, 5, Beer Singh, 6. Ramesh, and 7. Baburam. Each of them has been convicted and sentenced to life imprisonment under Section 302, I.P.C. read with Section 149, I.P.C., three months’ rigorous imprisonment under Section 323, I.P.C. read with Section 149, I.P.C., six months’ rigorous imprisonment under Section 324, I.P.C. read with Section 149, I.P.C. and two years’ rigorous imprisonment under Section 452, I.P.C. Accused-appellants-Jai Singh, Atar Singh, Mohar Singh, Beer Singh and Baburam have further been convicted under Section 147, I.P.C. and each of them has been sentenced to nine months’ rigorous imprisonment. The remaining two accused-appellants-Ramesh and Lal Singh have been further convicted under Section 148, I.P.C. and each of them has been sentenced to one year’s rigorous imprisonment. All the substantive sentences have been ordered to run concurrently.
2. One Ram Murti lost his life in the incident whereas three others, namely, Shyam Pal P.W. 1, Sohan Pal P.W. 3 and Katori Devi sustained injuries. The incident took place on 4-5-1979 at about 6.30 p.m. in village Balli Nagla, Police Station Qadar Chowk, District Budaun. The report of the incident was lodged by Shyam Pal P.W. 1 on 5-5-1979 at 3.15 a.m. The distance of police station from the place of occurrence is 8 kms. The accused-appellants-Lal Singh and Ramesh were allegedly armed with spears whereas rest had lathis. The accused-appellants-Jai Singh, Atar Singh, Lal Singh, Mohar Singh and Beer Singh are the sons of Dallu who also allegedly participated in the incident but died after few days of the incident. Baburam and Ramesh are father and son. Baburam is the brother of Dallu. The prosecution case was that about 6 months before this incident, Durgpal brother-in-law (Sala) of Shyam Pal P.W. 1 had abducted Dhika daughter of Dallu. Accused-appellants began to bear ill-will against him and his family members on this account. On 4-5-1979 at about 6.30 p.m., there took place exchange of hot words and abuses between Shyam Pal P.W. 1 and Dallu at the Chaupal of Nek Ram in connection with abduction of Dhika. Some persons intervened in the matter and Shyam Pal went to his home. A little while later, all the accused-appellants along with Dallu deceased entered the house of Shyam Pal. As mentioned earlier, Lal Singh and Ramesh were armed with spears whereas rest had lathis. Dallu asked the other accused persons to teach a lesson to Shyam Pal and his family members for defaming him. All the accused-appellants then started assaulting Shyam Pal P.W. 1 and his brother Sonpal and Ram Murti who were present there. When their mother Katori Devi came to their rescue, she was also beaten up. Nathu Singh P.W. 2, Ulfat, Irfan, Prem Pal and others also arrived there. Shyam Pal P.W. 1, Ram Murti, Sohan Pal P.W. 3 and their mother Katori Devi sustained injuries. Shyam Pal P.W. 1 with his nephew Prempal went to the Police Station and lodged a report by oral narration on 5-5-1979 at 3.15 a.m. which was taken down by Head Constable Baburam P.W. 4.
3. The investigation was taken up by S.I. K. C. Sharma P.W. 11. He reached the spot and recorded the statements of the witnesses including the injured. All the injured were subjected to medical examination, the result whereof shall be related (referred) a little while later. The spot was inspected by the Investigating Officer, Ram Murti ultimately died in the hospital in the evening of 7-5-1979. The case was then converted, inter alia, under Section 302, I.P.C. and after preparation of inquest report by S.I. Shakti Singh P.W. 10, his dead body was subjected to post-mortem which was conducted by Dr. R. P. Jauhari P.W. 6 on 8-5-1979 at 4.20 p.m.
4. Dr. Shiv Kumar Saxena P.W. 5 had examined Shyam Pal on 5-5-1979 at 3.45 a.m. and found the following injuries on his person :
1. Abraded contusion 3 cm. x 1 cm. on the middle of left upper arm. Middle l/3rd part outer side.
2. Punctured wound 1.4 cm. x 0.6 cm. X depth on the right side chest lower part 8 cm. away from right nipple at 5 O’clock position. Kept under observation.
3. Lacerated wound 1 cm. x 0.5 cm. x scalp on the scalp in midline 11 cm. above the bridge of nose.
5. His injuries Nos. 1 and 3 were caused by blunt weapon, whereas injury No. 2 had been caused by some sharp penetrative object. Injury No. 1 was simple and other two had been kept under observation.
6. It was Dr. B. Narayan, P.W. 7 who had initially examined Ram Murti on 5-5-1979 at 12.15 p.m. The following injuries were found on his person :
1. Lacerated wound 3 cm. x .5 cm. x scalp left side of head 11 cm. above the ear.
2. Lacerated wound 4.5 cm. x .75 cm. x scalp on left side head 1 cm. behind injury No. 1.
3. Abrasion 1.5 cm. x 1 cm. on the top of right shoulder.
4. Abraded contusion 9 cm. x 3 cm. left supra scapula.
5. Two punctured wounds 1.5 cm. x 1 cm, 1.3 cm. left side chest.
6. One punctured wound 1.3 cm. x 1 cm. above 5.5 cm. on right chest at 3 O’clock position.
7. Punctured wound .8 cm. x .4 cm. x 1 cm. on right side of chest 8.5 cm. from right nipple at 9 O’clock position.
7. Injuries Nos. 1 and 2 had been caused by blunt object, injuries Nos. 3 and 4 by friction and injuries Nos. 5, 6 and 7 by sharp pointed object. X-ray of chest had been advised.
8. The same Doctor had examined injuries on Sohan Pal on 5-5-1979 at 12.25 p.m. The following injuries were found on his person :
1. Lacerated wound 3 cm. x .5 cm. X bone deep on left side head 11 cm. above the left ear.
2. Lacerated wound 4 cm. x .5 cm. x bone 3 cm. above parallel to injury No. 1.
3. Lacerated wound 4.5 cm. x .5 cm. x bone deep up to head 11 cm. above right ear.
4. Abrasion 1 cm. x .5 cm. on left side of forehead.
5. Abrasion 1 cm. x 1 cm. left eyebrow.
6. Contusion 3 cm. x 1 cm. on left forearm. Injuries Nos. 1, 2, 3 and 6 had been caused by blunt object whereas injuries Nos. 4 and 5 had been sustained by friction. Injuries Nos. 1 and 3 had been kept under observation.
9. The injuries of Katori Devi were also examined by the same Doctor on 5-5-1979 at 12.35 p.m. The following injuries were found on his person :
1. Lacerated wound 4 cm. x .5 cm. x bone right side of head.
2. Contusion 6 cm. x 3 cm. on top of left shoulder.
Both the injuries were found simple and caused by blunt object.
10. Accused-Mohar Singh had also sustained some injuries which were examined by Dr. S. K. Saxena, P.W. 5 on 5-5-1979 at 5.20 p.m. The following injuries were found on his person ;
1. Incised wound with clean cut margins 5 cm. x 2.5 cm. on the right side forearm lower l/3rd part outer side.
2. Incised wound with clean cut margins 3 cm. x 1.5 cm. on the right side forearm lower l/3rd part on outer side, 3 cm. below the injury No. 1. Injuries Nos. 1 and 2 were intercommunicating with each other.
3. Contusion 0.5 cm. x 0.5 cm. on the outer side of left little finger nail bed.
4. Abraded contusion 4 cm. x 1.5 cm. on the right knee front part.
5. Abraded contusion 2 cm. x 1 cm. on the right knee front part, 3 cm. below injury No. 4..
6. Abraded contusion 1 cm. x 1 cm. on the right left outer part upper l/3rd.
Injuries Nos. 1 and 2 had been kept under observation and he was referred to District Hospital, Budaun for treatment. Injuries Nos. 1 and 2 had been caused by sharp perforating object whereas rest had been caused by blunt object.
11. Consequent upon the post-mortem over the dead body of the deceased-Ram Murti on 8-5-1979 at 4.20 p.m. by Dr. R. P. Jauhari P.W. 6, the following ante-mortem injuries were found on his person :
1. Lacerated wound 3.5 cm x 0.5 cm x scalp deep on posterior part of left parietal region near midline.
2. Lacerated wound 4.7 cm x 0.5 cm x scalp deep 1 cm behind injury No. 1.
3. Multiple abrasions in an area of 6 cm x 4 cm on upper half of left scapula.
4. Abraded contusion 4 cm x 3 cm on left supra scapular region.
5. Contusion 6 cm x 3 cm on outer aspect of right shoulder.
6. Abrasion 1.5 crax 1 cm on top of right shoulder.
7. Punctured wound 1 cm x 0.5 cm x cavity deep on below mid (sic) of left clavicle (underlying apex of left lung punctured).
8. 2 punctured wounds each 1 cm x 0.5 cm x muscle deep on front of left axilla apex each 13 cm apart.
9. Punctured wound 1 cm x 0.5 cm x 1.5 cm deep on right chest, 8 cm above right nipple.
10. Punctured wound 1.5 cm x 1 cm oval shape x cavity deep 6 cm left to right nipple at 3 O’ clock position.
11. Punctured wound 2 cm x 0.5 cm x cavity deep on mid of left lateral chest.
Death had occurred due to shock and haemorrhage as a result of ante-mortem injuries. Deceased Ram Murti was aged about 35 years.
12. Accused Dallu who was aged about 60 years happened to die on 23-5-1979 owing to tuberculosis. On conclusion of investigation, Investigating Officer submitted charge-sheet against remaining seven accused persons.
13. At the trial, the prosecution examined eleven witnesses besides relying the documentary evidence. The informant Shyam Pal PW-1, Nathu Singh PW-2 and Sohan Pal PW-3 were examined as eye-witnesses. Rest were the formal witnesses including the I.O. and doctors.
14. The defence of the accused-appellants was of complete denial and of false implication. They did not adduce any evidence in defence. The case of the prosecution found favour with the learned trial Judge who convicted and sentenced the accused-appellants as mentioned in the earlier part of the judgment.
15. At the hearing of the appeal, none turned up from the side of accused-appellants to argue out the appeal, though they are represented on record by Sri H. N. Sharma, Advocate. We heard the learned A.G.A. and perused the record and evidence ourselves. On a careful consideration, we are of the opinion that the prosecution case suffers from a number of serious weaknesses as a result of which conviction of the accused-appellants cannot at all be sustained. We proceed to detail below the reasons in this behalf.
16. It deserves mention in the first instance that the motive assigned by the prosecution against the accused-appellants does not stand the test of logic. The incident of kidnapping and abduction of Dhika, daughter of Dallu by Durgpal-brother-in-law of Shyam Pal PW-1 had taken place about six months before. Even no F.I.R. had been lodged against Durgpal from the side of accused persons regarding that incident. Nor had any Panchayat taken place in that connection as admitted by Shyam Pal PW-1 in paragraph 8 of his testimony. He also clearly admitted that there did not take place any quarrel between the two sides during this intervening period of six months. It is further important to note that the houses of the parties are adjacent to each other. It, thus, appears that the accused persons had reconciled to the going of Dhika with Durgpal and they had no grudge against Shyam Pal PW-1 and his family members on the basis of this past incident. It was natural otherwise also because the act of alleged kidnapping or abduction had been committed by Durgpal-brother-in-law of Shyam Pal PW-1. Obviously, Durgpal was not the family member of Shyam Pal PW-1. Shyam Pal or his family members could not be responsible for the alleged kidnapping or abduction committed by Durgpal. Therefore, the grudge if any, could be had by the accused persons against Durgpal, and not against Shyam Pal and his family members who were their neighbours. Taking the extreme view that they suspected the collusion of Shyam Pal or some of his family members in such kidnapping, they would have reacted immediately after the incident of kidnapping or abduction had taken place. They would not have waited for a period of six months to react in the manner alleged by the prosecution side.
17. Moreover, Shyam Pal PW-1 admitted that at the time of exchange of hot words with Dallu at the Chaupal of Nek Ram, Nek Ram and Urman Singh were there who had intervened. None of these witnesses was produced by the prosecution to fortify the origin of the incident. Dallu himself was a T. B. patient and it does not stand to reason that after the alleged exchange of hot words at the Chaupal of Nek Ram, he, almost with all his sons, brother and nephew would have appeared at the house of Shyam Pal PW-1 to assault him and his family members. To be short, there was no immediate motive for the alleged occurrence.
18. Secondly, there is no corroboration of the prosecution story by independent witnesses. Nathu Singh PW-2 is resident of another village Dambar Nagla: He was a chance witness, because the explanation that he put forth is that he had come in the village of the incident to his Sadhu Raj Pal. According to him, the house of Raj Pal was situated at a distance of 15-16 paces from the place of incident. We, however, note that the existence of Raj Pal’s house in the vicinity of place of occurrence has not been shown in the site plan. The suggestion from the side of accused-appellants was that he was a relative of Shyam Pal, his mother and that of Shyam Pal were cousin sisters. This witness denied this relationship, but in any view of the matter, he was no better than a chance witness. The reason assigned by him for his presence in the village of incident does not sound to be convincing. According to him, he had reached the village of incident at about 6.30 a.m. He also stated that he had come to his Sadhu Raj Pal as the latter was about to go to his Sasural and he wanted to send two cows to his Sasural. He wanted to send this information to his Sasural but his Sadhu was not available. He also stated that after some time he had returned to his village Dambar Nagla. His this statement cannot be reconciled with the other part of his statement that he reached the village of incident at 6.30 a.m. and was present at the time of incident which took place at about 6.30 p.m. His presence itself at the spot is rendered to be most doubtful.
19. Thirdly, the eye-witness Sohan Pal PW-3 is the own brother of Shyam Pal PW-1. In a sense, his testimony and that of Shyam Pal PW-1 is to be taken as of one person through two mouths. No independent witness has been examined, though the houses of Nek Ram and Saranam were just across the Rasta. In the first information report also, names of some other witnesses have been mentioned but none has been examined.
20. The statement of Ram Murti allegedly recorded by the Investigating Officer under Section 161, Cr.P.C. could not be treated as dying declaration. The Investigating Officer K. C. Sharma PW-11 stated that when he had reached the spot (in the morning of 5-5-1979 subsequent to the lodging of the first information report at 3.15 a.m.), he had found Ram Murti, Sohan Pal and Katori Devi to be lying there in injured condition. He recorded the statement of Ram Murti (Ex. Ka-20). We note from the bedhead ticket of Ram Murti that his general condition was low when he was admitted in the hospital on 5-5-1979. It is also an admitted fact that the Investigating Officer did not follow the instructions contained in Rule 115 of U. P. Police Regulations while allegedly recording the statement of Ram Murti. The Apex Court has observed in the case of Balak Ram v. State of U.P. AIR 1974 SC 2165, that it is not prudent to base conviction on a dying declaration made to Investigating Officer which is not signed by the person making it and had not been taken in the presence of two witnesses. Rule 115 expressly requires the Investigating Officer to record the dying declaration, if at all, in the presence of two respectable persons, obtaining signature or thumb mark of the declarant and witnesses at the foot of the declaration.
21. It is further to be observed that it is an admitted fact that Ram Murti died on 7-5-1979 at 4 p.m. In case it is taken for the sake of arguments that he was in a position to make dying declaration, it goes unexplained as to why his dying declaration was not got recorded in regular way through a Magistrate. To come to the point, reliance cannot be placed on the so-called dying declaration of the deceased-Ram Murti which is said to be in the form of his statement under Section 161, Cr.P.C.
22. There is yet another important aspect of the matter which creates a genuine doubt about the truthfulness of the prosecution case as regards its origin, time, place, number of assailants and weapons used by them. That aspect is that the accused Mohar Singh is also an injured whose injuries have not been explained by the prosecution. It would be recalled that he was examined by Dr. Shiv Kumar Saxena PW-5 in P.H.C. Qadar Chauk, Budaun on 5-5-1979 at 5.20 p.m. and he had been produced for medical examination by Kishan Lal CP 351. His injuries were as many as six in number out of which two were incised wounds. Injuries sustained by him could not be deemed to be superficial. The Investigating Officer K. C. Sharma PW-11 has stated that Mohar Singh was arrested on 6-5-1979. It cannot at all be appreciated as to how could he be produced for medical examination before Dr. Shiv Kumar Saxena PW-5 on 5-5-1979 at 5.20 p.m. by a Constable of P.S. Qadar Chauk, if he was arrested by the Investigating Officer on 6-5-79. If reverse was true that he had appeared before the police earlier to 5.20 p.m. on 5-5-1979, then it goes unexplained as to why he was not arrested despite the fact that a first information report had been lodged, inter alia, against him by Shyam Pal PW-1 at 3.15 a.m. that day. We note that a suggestion was made from the side of defence to Sohan Pal PW-3 that he with others assaulted Mohar Singh (in the morning of 5-5-1979) with lathis and spears, apprehended him with the help of policemen and then took him to the Police Station. Of course, he denied the suggestion. What we stated above does create a doubt as to the truthfulness of the statement of Investigating Officer K. C. Sharma PW-11 that Mohar Singh was arrested on 6-5-1979.
23. Learned A.G.A. argued that it was not at all necessary for the prosecution to have explained the injuries of Mohar Singh as they were not shown to have been sustained in the same and the present incident in which persons from prosecution side sustained injuries. He referred to the statement of Mohar Singh made Under Section 313, Cr.P.C. which was to the effect that some miscreants had assaulted Ram Murti and his family members in the night and that in the morning they beat him up with lathis and spears at the Chaupal when he was in the company of his father who was a T.B. patient. The stress has been laid on this aspect that as per the own case of Mohar Singh, he had sustained injuries in the morning, whereas the present incident took place at about 6.30 p.m. on 4-5-79. It is significant to point out in this regard that it is an admitted fact that Mohar Singh-accused was found to be injured and his injuries were not superficial. Two of them were of sharp-edged weapon. It is an established principle of law that the accused has simply to probabilise the defence. The burden on him is not as onerous as that of prosecution which is required to prove its case beyond all the reasonable doubts. In the present case, the prosecution itself has not been able to establish by clinching and satisfactory evidence that the incident took place on 4-5-79 at about 6.30 p.m. at the house of the complainant and that the accused-appellants together with Dallu were the assailants. Dallu, his five sons, brother and nephew came to be implicated viz. almost all the male members of the family of Dallu and his brother were roped in. No doubt, Shyam Pal PW-1 and Sohan Pal PW-3 are the injured witnesses, but their testimonial assertions have not been corroborated by independent sources. The incident allegedly took place at about 6.30 p.m. when the neighbours must have been present at their homes but none came forward to support the prosecution story as stated by these two witnesses. The case was sought to be buttressed by the statement of Nathu Singh PW-2 whom we have found to be unworthy of reliance for the reasons mentioned in the earlier part of the judgment.
24. As a cumulative result of the discussion made above on the relevant aspects of the matter, the position that emerges is that the prosecution has not come out with truthful version. When tested on the anvil of reliability, the prosecution story appears to be full of doubts about the number of assailants and the weapons which were actually used by them. The incident did not appear to have taken place in the manner alleged by the prosecution. The version put forward by the prosecution, including regarding the number of assailants is not free from doubt. We are of the opinion that the prosecution has roped in some innocent persons also. It has also introduced a person as an eye-witness (Nathu Singh PW-2) who had not witnessed the incident at all. The truth is so thickly mixed up with falsehood that the grain cannot be separated from the chaff. This being the state of affairs, it is not at all possible to uphold the conviction of the accused-appellants. They deserve to be afforded the benefit of doubt.
25. In conclusion, we allow this appeal and set aside the judgment and order of conviction and sentences passed by the learned Additional Sessions Judge. The accused-appellants Jai Singh, Atar Singh, Lal Singh, Mohar, Beer Singh, Ramesh and Babu Ram are hereby acquitted. They are on bail. They need not surrender, their personal bonds and bail bonds are cancelled and sureties discharged.
26. Let a copy of this judgment along with the record of the case be immediately sent to the Court below for incorporating necessary entries in the concerned register under intimation to this Court within two months positively.