JUDGMENT
M.C. Jain, J.
1. The following eleven persons, (1) Maseet, (2) Nathu, (3) Haggu, (4) Ashfaq, (5) Kundan, (6) Kallu, (7) Hukura Husain, (8) Fateh Ullah, (9) Raji Ullah, (10) Daggu and (11) Kohrey were tried before VII Additional Sessions Judge, Shahjahanpur in S.T. No. 90 of 1980. He acquitted them of the charges of rioting and murder by the impugned judgment dated 15.5.1981 which has been challenged by the State by means of this government appeal. Out of eleven accused-respondents-Nathu, Kundan, Hukum Husain and Fateh Ullah have died during the pendency of the appeal. Abatement order with regard Nathu was passed on 18.8.05 and on 4.10.2005 against the other three named above. Presently, therefore, the appellate court is concerned with remaining seven accused-respondents.
2. The profile of the prosecution case may be summarized: The incident occurred on 2.12.1979 at about 2 P.M. in village Karnaiyapur, Police Station Sindhauli, district Shahjahanpur and the F.I.R. was lodged the same day at 4.15 P.M. at Police Station Shindhauli by Musarraf Ali PW 1-eyewitness. The deceased was one Sadiq Ali alias Tundai. All the accused were residents of the village where the incident occurred. Maseet, Nathu, Haggu, Ashfaq and Raji Ullah were allegedly armed with guns. Kallu had a country made pistol. Kundan, Hukum Husain, Fateh Ullah and Daggu were armed with lathis and Kohrey was armed with Kanta. The background was that complainant’s and Sadiq’s own nephew Siddiq had been murdered on 19.8.1974. In respect of that incident, the present accused Ashfaq, Maseet, Haggu and one Ishhaq came to be prosecuted and convicted with sentence of life imprisonment. They had filed appeal before this Court and were on bail. The deceased had done pairvi in that case. These persons, therefore, nursed grudge against him.
3. On the eventful day, the deceased was sowing and getting sown wheat seeds in his field. The sowing was being done with the help of two yokes. One of the yokes was being ploughed by the deceased who was being helped by Man PW 2 in spreading the seeds. The second yoke was being ploughed by Sharafat and he was assisted by Idrish. The complainant Musarraf PW 1 had taken the seeds to the field and was sitting with seed bag on the eastern mend of the field of the deceased. At about 2.00 P.M. eleven abovenamed accused persons emerged from complainant’s sugarcane field situated just to the west of the field in question. They were armed with weapons as detailed above. Referring to Sadiq Ali, the accused Maseet exhorted his companions to murder him. So saying, Maseet atonce fired shot towards Sadiq hitting him in his left thigh. On being so hit, Sadiq left the plough and ran towards east. All the accused chased him and overtook him at a distance of some forty steps in the vacant field of Sharafat. There, Kohrey gave Kanta blow on Sadiq’s head. On receiving the said injury, Sadiq fell down whereafter Haggu fired shot hitting Sadiq on the left side of chest. The complainant Musarraf, his nephews Sharafat and Idrish and their relation Man PW 2 raised alarm. Firing shots in the air, all the accused ran away towards north-west.
4. After the departure of the accused, the complainant and his companions reached near Sadiq’s body and found him dead. The complainant atonce started for his house and reaching their he got scribed report of the incident by his another nephew Lata-fat. Within half an hour of the murder, he started for the Police Station Sindhauli on a cycle and reaching there he lodged the F.I.R. at 4.15 P.M. the same day. The chick report was prepared in the presence of Shriniwas Vashishtha S.O. PW 4 who took up the investigation of the case and examined the complainant at the police station itself. Then he started for the spot in his Jeep and reached there at about 5.00 P.M. to find the dead body of the deceased. He held inquest proceedings in respect of dead body with preparation of other relevant documents. The dead body was sealed and sent for post mortem through constables Sone Lai and Om Shanker. He found blood around the dead body and took it in possession. An empty cartridge shell was found lying near the dead body and Anr. in the ploughed field of Sadiq. They were also taken into possession by the Investigating Officer. Site plan was prepared. The following day other witnesses were examined.
5. The post mortem over the dead body of the deceased was conducted by Dr P.K. Gupta PW 3 on 3.12.1979 at 2.00 P.M. The deceased was aged about 40 years and about one day had passed since he died. The following ante mortem injuries were found on the person of the deceased Sadiq:
1. Incised wound 7 cm x 1 cm bone deep on skull middle in mid parietal region.
2. Gunshot wound of entry 2 cm x 1 cm x cavity deep with inverted margins, blackening & charring (in an area of 8 cm x 7 cm) on the left side of chest anteriorly at the middle of it. Direction from front upward to downwards & backward. Left clavicle was fractured under the injury.
3. Gunshot wound 18 cm x 8 cm x muscle deep through x through on the left thigh anteriorly in the middle and lower third part. Lower half of the wound shows inverted margins with blackening & charring of skin, muscles & tissues, upper half of wound margins are everted. No blackening or charring present. Muscle part (lacerated) coming out of wound.
4. Multiple (3) gunshot wounds of exit, each of 1.5. cm x 1.5 cm x through & through to injury No. 3 with everted margins in an area of 6 cm x 5 cm on the upper and medial aspect of left thigh.
6. On internal examination, fourth and fifth ribs of left side were found fractured. Pleura was lacerated and full of blood. Left lung was also lacerated. In the opinion of the Doctor, the deceased died due to shock and hemorrhage as a result of ante mortem injuries. Two wadding pieces and 17 pellets were recovered from the dead body of the deceased. The ante mortem injuries were caused to him by guns and some sharp edged weapon like Kanta.
7. The defence was of denial and of false implication because the complainant and his family members had grudge against them and their family members. They also denied that Sadiq was doing pairvi against the accused Maseet and Ors. According to defence, the case arising from Siddiq’s murder was a made up affair.
8. The prosecution in all examined four witnesses. Musarraf PW 1 and Man PW 2 were the eye-witnesses. Dr. P.K. Gupta PW 3 had conducted autopsy on the dead body of the deceased. Sriniwas Vashishtha PW 4 S.O. was the Investigating Officer of the case.
9. The evidence adduced by the prosecution did not commend itself to the trial judge who recorded acquittal.
10. We have heard Miss N.A. Moonis learned A.G.A. from the side the appellant-State. Sri P.N. Misra, senior advocate advanced arguments for the accused-respondent No. 11, Kohrey whereas Sri R.L. Verma has appeared to argue out the appeal for all the remaining surviving accused-respondents.
11. It has been argued by the learned A.G.A. that impugned judgment is perverse and unreasonable being based on faulty appreciation of evidence. She urged vehemently that convincing evidence and material have unjustifiably been ignored by the trial judge. The evidence, she argued, has to be reappreciated in appeal to reach the bottom of the truth and to uphold justice. On the other hand, the argument from the side of the accused respondents is that the learned trial judge has given cogent and convincing reasons for finding the accused to be not guilty of charges levelled against them. It has been submitted for them that the judgment of the lower court does not call for any interference.
12. After going through the evidence on record thoroughly, we are of the firm view that far from being perverse or illegal, the findings of the trial court are perfectly justified being based on judicious appraisal of the evidence on record. Solid grounds and factors are lined up to justify acquittal. We propose to deal with the same in the succeeding discussion.
13. The foremost cause for the present incident, as per .the prosecution case and the evidence, allegedly was that on 19.8.1974, the victim Sadiq’s own nephew had been murdered. In respect of the same, present three accused Ashfaq, Maseet and Haggu and one Ishhaq came to be prosecuted. All of them were convicted and sentenced to life imprisonment. They had filed appeal against the said judgment and were on bail by the order of this Court(High Court). The victim Sadiq was allegedly doing pairvi in that case and so these accused had grudge to liquidate him. The eyewitness Musarraf All PW 1 is the brother of the deceased. It came down from his cross-examination that apart from the murder of Siddiq, there were other criminal cases between the parties leading to strained relations. It also came down from his cross-examination that the victim Sadiq had other enemies also besides the present accused. It also came on record that 4-5 years before the present incident, accused Haggu’s brother was murdered. For that crime, the victim of the present crime Sadiq, Irfan PW 2, discharged witness Idrish, Sharafat as also Irshad son of complainant Musarraf PW 1 were prosecuted. Not only this, present accused Maseet’s brother Hasmat was fired upon and for that, Musarraf PW 1, his son Irshad and the present victim Sadiq were prosecuted 1 1/2 years’ back. So, the enmity between the two sides was equally balanced. If the present accused, particularly, Maseet, Ashfaq, Haggu and Nathu had strong motive for murdering Sadiq, it could also be motive for the complainant Musarraf PW 1 and the only other eye-witness Irfan PW 2 for implicating them or at least some of them falsely. Maseet and Nathu were inter se brothers and Haggu and Ashfaq were also brothers inter se.
14. It was also the admission of Musarraf PW 1 that the present deceased had been prosecuted 5 or 6 years’ back for the murder of Hakim Ali and again for attempted murder of Aman Ullah. It suggests that he was not a man of clean and respectable background and persons other than the present accused could equally have motive to liquidate him.
15. Indeed, there was no legal bar in believing the testimony of Musarraf PW 1 and Irfan PW 2 despite being close relatives of the deceased, but close scrutiny of their testimonial assertions judged in the light of medical evidence and other attending circumstances clearly indicated that they did not witness the incident. Instead, they deposed relying on their imagination. The present crime was allegedly committed in the afternoon of the winter month of December, 1979 when Rabi crop had been sown or was being sown. The crime was committed by them just to the south of the chak road. To the north of the chak road, the Investigating Officer found the sown fields of Jagannath, Dibba, Balak Ram, Tota Ram and Shamim. All these five fields had growing crops. Two had wheat crop, one had lahi crop, fourth one had sugarcane crop and the last one had Arhar crop growing there. Just to the south of the complainant Musarraf s and the victim’s fields were the fields of Banke’y, Ram Lai, Karre and Kundan. The trial judge rightly observed that it was unlikely that none of these fields’ owners was present there. It is a matter of record that none of said persons was cited or produced as witness.
16. Further, the present accused had as much motive to murder Musarraf PW 1 and Irfan PW 2 as they had for murdering Sadiq. It was admitted that Sadiq was not a witness in the case against Maseet and others for the murder of Siddiq. The prosecution story that Sadiq had done pairvi in that case did not carry weight. Actually, the complainant Musarraf PW 1 had appeared as circumstantial witness in that case and present PW 2 Irfan’s father was first informant of that crime. So, Sadiq could not be the sole or main target for being liquidated by the accused on account of earlier murder of Siddiq. With a view to come out of the difficult situation, Musarraf PW 1 stated that they all including Sadiq deceased used to do pairvi that case. Musarraf PW 1 had appeared as witness though of circumstantial nature against the present accused Maseet and others in the case regarding the murder of Siddiq. Therefore, they (accused) had strong motive for committing the murder of the complainant and Musarraf than of murdering Sadiq. Similarly, Irfan PW 2 having been an accused for the murder of accused Haggu’s brother, there was very strong motive for the accused Haggu and his other brother accused Ashfaq for murdering him (Irfan PW 2). The truth of the matter, however, is that none of these accused even attempted to cause any injury either to Musarraf PW 1 or to Irfan PW 2. It generates genuine doubt about the presence of-these witnesses at the time and place when Sadiq came to be murdered.
17. As we said, the prosecution did not produce any other corroborative evidence even in respect of time and place of Sadiq’s murder. It may be stated at the risk of repetition that no neighbouring cultivator was cited or produced as witness in the case to support Musarraf PW 1 and Irfan PW 2, even with regard to the place and time of Sadiq’s murder.
18. Medical evidence also gives jerk to the testimony of Musarraf PW 1 and Irfan PW 2. As per the prosecution case and evidence, at the time of receiving first firearm injury in his left thigh Sadiq was driving his plough from north to south and he was at point ‘A’ as depicted in the site plan. He was fired upon from place ‘B’ (western mend). The distance between ‘A’ and ‘B’ places was ten steps as per the site plan i.e. nearly 25 fit. This injury was through and through with blackening and charring of skin. The nature of injury found on the thigh on the victim was not at all in keeping with the said evidence. The whole charge of pellets and wading pieces had entered Sadiq’s thigh causing through and through wound of 18 cm x 8 cm with charring and blackening around its inverted margins. The lower half of this wound was wound of entry while upper half was the wound of exit with everted margins. Besides the said exit, the pellets has come out of thigh by making three wounds of exit, situated at some eight inches above the wound of entry. So, it was clear that shot was fired from very close range and direction of wound was from downward to upwards. It could be only when the victim had been lying down and the assailants were standing towards his feet. Such a wound could not be received by the victim when he was driving his plough and his assailants were 25 feet away from him.
19. The testimonial assertion of Irfan PW 2 was further imaginary that after having received above thigh injury, the victim had run for about 40 steps whereafter he was given Kanta blow. It was most likeiy-that a person having received such a thigh injury with tearing of muscles, blood vessels and with muscle tissues coming out of the wound, could have run for such a distance. The Doctor- who conducted autopsy on the dead body of the deceased positively stated that at the time of receiving thigh injury, the victim must be lying down and must have been fired at from the side of his feet.
20. Though the Investigating Officer reached the spot within three hours of the incident, but he did not find any blood at ‘A’ where the victim was shown to have received the first shot in his thigh. Further, he found no trail of blood between places ‘A’ and ‘D’ (where his dead body was found lying). The only blood found by the Investigating Officer was around the dead body in Sharafat’s field.
21. Sadiq had his father, four brothers and adult nephews. As such there could be no reason for Sadiq taking the help of his cousin’s son Man PW 2 in the sowing of his field. When the Investigating Officer reached the spot, he did not find Man PW 2 even in the village on 2nd December, 1979. So, he had to record his statement the next day. It was immensely doubtful that he was actually present at the spot and witnessed the incident. It appears that only trusted and close relatives were cited as eyewitnesses who could be depended upon to prop up the prosecution case.
22. The situation was that no corroboration was available for the testimony of Musarraf PW 1 and Man PW 2 and the same could not be believed on being tested on the anvil of reliability. We have already indicated that both of these witnesses had long standing enmity against the accused. There was not even circumstantial evidence to support the claim of these witnesses of being present with Sadiq at the time of his murder. As a matter of fact, their version ran opposite to the nature of the injuries found on the dead body of the deceased and remained unsupported by what the Investigating Officer observed and found at the spot. Moreover, there was every possibility of these witnesses having implicated some of the accused falsely in view of the long standing enmity. Even if it is assumed for the sake of argument that some of the accused had participated in the murder of Sadiq, the grain and chaff are inextricably mixed. Four of the accused were allegedly armed with lathis, none of them used the same. There were allegedly 11 assailants and only two out of the six holding firearms used them. The Kanta blow was allegedly given by Kohre accused. Thus, at the most, three persons had taken actual part in the murder of Sadiq, if we go by statements of these witnesses. The number could even be two if the two shots had been fired by one and the same person. So, 8 or 9 persons had falsely been implicated in the present case.
23. On cumulative consideration, the verdict of guilty could not be returned against all or any of the accused persons. The testimony of two so-called eyewitnesses suffered from inherent improbabilities. It was also in conflict with what was found on the autopsy of the dead body of the deceased as also of observation of the Investigating Officer at the spot. No doubt, Sadiq was the victim of violence but the court of law is to be guided by legal evidence adduced before it. It cannot punish Peter for Paul.
24. In view of the above discussion, we do not find any merit in this appeal and are inclined to dismiss it.
25. The Government Appeal is hereby dismissed. It has already abated against the accused respondents Nathu, Kundan, Hukum Husain and Fateh Ullah.
26. Certify the judgment to the lower for incorporating necessary entry in the relevant register, reporting compliance within four weeks from the date of receipt of a copy of this order.