JUDGMENT
M. C. Jain, J.
1. This appeal has been preferred from jail by the accused/appellant, Lachchhu against judgment and order dated 19/20-4-1999 passed by Sri P. S. Chhabara, 1st Additional Sessions Judge/Special Judge (D.A.A.), Lalitpur in Sessions Trial No. 9 of 1998, convicting him under Section 302/34, I.P.C. and sentencing him to undergo life imprisonment and to pay a fine of Rs. 15,000/-. He has been ordered to undergo further R.I. for three years’ in case of non-payment of fine.
2. Broad essentials of prosecution case culminating into the conviction of the accused-appellant may be set forth. The incident took place on 15-9-1997 at about 6.45 a.m. in village Gauna, Police Station, Saujana District Lalitpur. The report was lodged the same day at the concerned police station at 1.00 p.m. by Mathua son of Daulat. The deceased was Anoopa resident of village Sukalquwa, Police Station, Madora. In the previous evening, he had come to the house of Kamauda son of Mathua in village Gauna and had taken his dinner there. Because of lack of space there, he had slept in the night at the house of the informant Mathua son of Daulat though he wanted to leave for his own village the next day even when there was darkness, but Mathua advised him to go after the rising of the sun. Anoopa acted on his advice and left after it had dawned. Mathua became busy in his own work and reached his field with his bullocks. At about 7.30 a.m. he Was informed by Mahesh son of Chhotey Lal Sahu of his village and Village Pradhan that the dead body of Anoopa Was lying two kilometers away in the eastern side of the village near Kakarau Nariya. Mathua reached there and identified that it was the dead body of the Anoopa. As mentioned in the F.I.R., it could not be stated as to how he died. On the lodging of the F.I.R. by Mathua P.W. 1 a case was registered and the police swung into action. The Investigating Officer reached the spot and investigation followed. The appellant and one Kaptan Singh figured as culprits of the crime as a result of investigation. Kaptani Singh happened to die and only the appellant-Lachchhu came to toe tried after the submission of the charge sheet by the police. It may also be relevant here to relate the outcome of the post-mortem report over the dead body of the deceased, which was conducted by P.W. 8, Dr. Rajendra Singh on 17-9-1997 at 2.00 p.m. The deceased was, about 45 years of age and 1 – 1 1/2 day had passed since he died. The following ante-mortem injuries were found on the post-mortem :–
(1) Abraded left cheek, clotted blood present and mandible was fractured.
(2) Lacerated wound present on right elbow joint posteriorly. Right humurus bone found fractured.
(3) Lacerated wound on forehead on left side above 8 cm. from left eye-brow.
(4) Lacerated wound seen on posterior aspect of right eblow, size 3 x 2 cm. Wound found on elbow joint anterior to posterior, left side humerus found fractured.
(5) Lacerated wound on right leg, tibia shaft fractured.
(6) Multiple contusions on all over back of chest found L-R with abrasions.
(7) Both right and left shoulders bone clavicle fractured.
3. On internal examination, base of the left skull was found fractured and was full of blood. Four ribs of the right side were fractured. The cause of death was shock and haemorrhage resulting from external and internal injuries.
4. At the trial, the prosecution examined as many as 11 witnesses including informant Mathua P.W. 1, Dr. Rajendra Singh, P.W. 8 (who conducted autopsy on the dead body of the deceased) and the Investigating Officer, Radha Kamal tripathi, P.W. 10. The eye-witnesses examined by the prosecution were Harjua P.W. 2, Chimna P.W. 3 and Gulab Singh P.W. 4, Durjuwa P.W. 9, though not an eye-witness, is the younger brother of the deceased. Rest were formal witnesses. The defence of the accused-appellant was of denial and according to his statement under Section. 313, Cr. P.C., he had been falsely implicated at the instance of the police.
5. Sri Apul Mishra was appointed as Amicus Curiae to defend accused-appellant in this appeal. We have heard him on behalf of the appellant and learned A.G.A. from the side of fee State. We have also carefully examined record of the case. After careful conideration, we are in judgment that prosecution case is weak on all fronts, rendering it impossible to sustain the conviction of the accused-appellant. In the discussion that follows, we intend to deal with relevant aspect of the matter with reasons for forming such opinion.
6. It is first to be pointed out that nobody is named as culprit in the F.I.R. which was lodged by a person who was not an eye-witness and had reached at the spot on gaining information of the dead body of the deceased being lying at the spot. The accused-appellant having not been named as culprit in the F.I.R., the testimony of the so-called eye-witnesses has to be examined with great caution. It is also to be noted side by side that the informant Mathua, P.W. 1 has contradicted himself as to the recital made in the F.I.R. As per the F.I.R. he had been informed at his field at 7.30 a.m. by Mahesh and Village Pradhan that dead body of Anoopa was lying in the eastern side of the village two kms. away near Kakarau Nariya. But while deposing as P.W. 1, he testified that he was informed by Pradhan Pratap Singh at 10.00 a.m. that the dead body of Anoopa was lying in the Jungle of Kakarau. It was thereafter that he had gone to the spot and seen the dead body of Anoopa thereafter he had gone to lodge the F.I.R. When asked in his cross-examination, he specifically stated that none else had given him the information and that it was wrong that Mahesh had informed him about it. So, it is somewhat obscure as to when and on whose information the informant had actually reached at the spot and at what time he found the dead body of the deceased. The report was lodged at 1.00 p.m. without naming anybody, meaning thereby that till the lodging of the F.I.R. no one named the appellant as the culprit, even on suspicion.
7. Secondly, we note from the testimony of Durjuwa P.W. 9, who is younger brother of the deceased, that the deceased, was the head of the caste. According to him, the motive for the murder of his brother was that the deceased-Anoopa had declined to supply hen/cock to Kaptan Singh at his demand ten or twelve days before the incident. Though he was not present at the time of such demand made by Kaptan Singh, but he has been informed by his brother Anoopa in this behalf. It has to be recalled that Kaptan Singh was figured as co-culprit of this crime in investigation. Now, the motive assigned for the crime is too insignificant to, be believed. The so-called motive has been assigned only against Kaptan Singh and not against the present appellant. It is also against the natural and probable human conduct that Kaptan Singh with the accused-appellant-Lachchhu would take into his head to commit murder of Anoopa over this small issue.
8. Thirdly, it is to be noted from the postmortem report of the deceased that the fatal injury sustained by the deceased was ante-mortem injury No. 3. As per the prosecution, accused-appellant-Lachchhu and non-appellant, Kaptan Singh had assaulted the deceased with lathis. It is not known as to who had actually caused this fatal injury.
9. Fourthly and lastly, the testimony of the so-called eye-witnesses, namely, Harjua P.W. 2, Chimna P.W. 3 and Gulab Singh P.W. 4 does not inspire judicial confidence when tested on the anvil of reliability and probabilities. In the first instance, this itself is not clear as to how they could be located as the eye-witnesses of this crime by the Investigating Officer. Two of them, Harjua P.W. 2 and Chimna P.W. 3 are the residents of village Gauna whereas Gulab Singh P.W. 4 is the resident of village Kushmarh. All of three witnesses have stated that they were grazing their cattle nearby the place of occurrence when the incident occurred. Harjua P.W. 2 and Chimna P.W. 3 belonged to the caste of deceased and Gulab Singh P.W. 4 has claimed himself to be a ‘Thakur.’ Allegedly, there was a fourth eye-witness, Jag Bhan Singh who too was a ‘Thakur.’ According to Harjua P.W. 2, he witnessed the incident from a distance of 30 or 40 paces. These three witnesses as well as the fourth one Jag Bhan Singh were all together and had lathis. The accused-appellant-Lachchhu and his companion Kaptan Singh also had lathis with which they assaulted the victim. Chimna P.W. 3 had even been slapped by the accused. His own statement is that Kaptan Singh had given him a slap not to disclose anything about the incident to anybody, as else he would also be dealt with in the same manner as Anoopa. Thus, as per the version of the eye-witnesses, the accused-appellant with his companion Kaptan Singh (two in number) were faced by four persons with lathis (three of them examined as eye-witnesses and fourth one Jag Bhan Singh). One of the witnesses, namely, Chimna P.W. 3 had also even been slapped by Kaptan Singh companion of the accused-appellant-Lachchhu. However, none of them protested. None of them even made use of his lathi. It does not fit in the scheme of things that they would have been holding lathis only for a show. There could hardly be any point in being armed with lathis if they did not or could not intend to use the same even when pitched against two persons who, too, were only holding lathis and not with any other more dangerous weapon. The witnesses allegedly went away and did not inform anybody about the incident. The deceased Anoopa was allegedly head of the community and it was most uncommon for Harjua P.W. 2 and Chimna P.W. 3 who belonged to his own caste, to have assumed a passive posture when he was being assaulted with lathis, though they also had lathis. Then, it also goes unexplained as to how could they be located by the Investigating Officer as the eye-witnesses of the incident. The clear statement of Harjua P.W. 2 is that the Investigating Officer had interrogated him 10 or 15 days later and then he had informed him about the incident. According to him, he did not mention the incident to anyone in his village out of fear. He is the resident of village Gauna itself where the deceased had slept in the night preceding the incident. The version of Chimna P.W. 3 who is also resident of village Gauna is that he did not speak about the incident to anybody because of fear of the accused. The version of Gulab Singh P.W. 4 is that he was interrogated by the police the following day in village Gauna and then he disclosed the incident to the Daroga and the Constables. However, the Investigating Officer, Sri Radha Kamal Tripathi, P.W. 10 has stated that he recorded the statement of Harjua, P.W. 2 on 20-9-1997 and that of Chimna P.W. 3 on 4-10-1997. The statement of Jag Bhan Singh (not examined as witness) was also recorded by him on 4-10-1997 as per his testimony. It is also there in his deposition that he could come to know about the names of the culprits only on 4-10-1997 on the statements of Chimna and Jag Bhan Singh. Earlier thereto he had no information as to who had committed this crime. It leads to the inference that Harjua P.W. 2 whose statement was allegedly recorded on 20-9- 1997 did not disclose to him the name of the accused-appellant-Lachchhluand his companion Kaptan Singh. Nor Had their names been disclosed by Gulab Singh P.W. 4 who claims that he had been interrogated by the Police on the following day of the incident in village Gauna and that he had relatetd the police of the incident.
10. The analytical scrutiny of the, testimony of the so-called eye-witnesses in an adjudicatory manner, as discussed above, renders it quite doubtful that actually they were present at the scene of occurrence and witnessed it. Our view is that the Investigating Officer only did patch-work in his zeal to show the crime as worked out in a blind murder case and cooked up these witnesses branding them as those who had witnessed the occurrence. It is not possible to place reliance on the testimony of the so-called eye-witnesses.
11. As a cumulative result of the above discussion, we find the prosecution case to be suffering from a number of weaknesses all of which strike at its bottom. No doubt, Anoopa was the victim of the crime. But the evidence on record is absolutely meagre to hold the accused-appellant to be guilty of the crime. We shall, therefore, allow this appeal.
12. In conclusion, we allow this appeal and set aside the impugned judgment and order. The accused-appellant is hereby acquitted. He is in jail. He shall be set at liberty, if not wanted in any connection.
13. Sri Apul Mishra, who argued the appeal on behalf of the accused-appellant as amicus curiae, shall be paid Rs. 1,000/-as his fee.
14. Let a copy of this judgment along with record of the case be sent to the Court be low for ensuring compliance under intimation to this Court within one month positively.