JUDGMENT
S.L. Bhayana, J.
1. This is an appeal arising out of the judgment of the Additional Sessions Judge, Delhi dated 30-08-99 where the learned ADJ has acquitted all the accused persons giving them benefit of doubt under Section 304/325/324/323/34 IPC.
2. The brief facts of the prosecution case are that all the accused persons including Namberdar, Sushil Kumar, Yad Ram, Ved Ram and Anil Kumar committed murder of Kishori Lal and they also caused injuries to the witnesses present there. It is alleged that on 28-08-91 Jamna Prasad PW3 made statement before the police that on 28-08-91 he was coming back from his duty at 8.40 p.m. At that time, accused Ved Ram was sitting at his shop at Gujjar Dairy while Yad Ram and his brother Namberdar were standing outside the shop. Namberdar stopped PW3 and told him that during the day time he had made allegation against him about the liquor to which PW3 replied that it was not good to fight. PW3 further alleged in his statement that on that day accused Namberdar had alleged that his father Kishori Lal had instigated his younger brother from whom Namberdar had purchased the land stating that Hira Lal had sold the land at cheaper rate to Namberdar. Namberdar, accused slapped him twice. His father who was sitting in his house came to his rescue. In the mean time, accused Ved Ram and accused Anil Kumar also came there and both of them caught hold of his father Kishori Lal. Accused Anil Kumar caught hold of his father by his hand and accused Ved Ram caught hold of his father by his neck and they started pushing him. Accused Namberdar also brought a danda from the shop and shouted on them. Surender Kumar PW1 and Jitender Kumar PW2 in the mean time came there and they tried to save his father. Accused Sushil Kumar @ Babu hit both PW1 and PW2 with a hockey stick as a result of which Surender Kumar received injuries on his head and Jitender Kumar on his right shoulder and other parts of his body. Yad Ram also exhorted lalkara ”Maro Salon Ko”. His nephew Ashok Kumar also came there and accused Anil Kumar caught hold of Ashok Kumar and caused injuries on his left shoulder. He picked up his father and took him to his house. In the mean time, police came there and the accused persons ran away. His father was declared dead at the hospital.
3. A charge Under Sections 304/325/323/324/34 IPC was framed against the accused persons to which they pleaded guilty and claimed trial.
4. The prosecution in support of its case has examined as many as 17 witnesses. After examining 17 witnesses, learned prosecutor closed the prosecution evidence. Thereafter, statements of all the accused persons were recorded Under Section 313 Cr.PC and the accused persons claimed themselves to be innocent and they denied their involvement in the commission of the crime. The accused persons did not examine any witness in their defense.
5. After going through the statements of the witnesses, learned trial court came to the conclusion that the prosecution has failed to prove its case beyond any reasonable doubt against all the accused persons and the trial court gave benefit of doubt to the accused persons and acquitted them of the charged offence.
6. We have heard learned prosecutor for the appellant and have also heard the learned Counsel for the accused persons and perused the record carefully. Learned Counsel for the appellant has stated that learned trial court has not applied its mind and has acquitted all the five accused persons although there was sufficient evidence on record which could result in the conviction of the accused persons. Learned prosecutor has further made submission that the prosecution has been able to establish its case beyond reasonable doubts against all the accused persons and it is the accused persons who are responsible for causing the death of Kishori Lal and also for causing grievous and simple injuries to the witnesses. It is a fit case where all the accused persons should be convicted and sentenced according to law. On the other hand, learned Counsel for the accused persons has stated that the prosecution has misrably failed to prove its case beyond reasonable doubts against any of the accused persons and the learned trial court has rightly acquitted the accused persons giving them benefit of doubt.
7. In this case, the prosecution has examined four eye witnesses who are PW1 Jitender Kumar, PW2 Surender Kumar, PW3 Jamna Prasad and PW4 Ashok Kumar Gautam. PW1 Jitender Kumar has deposed before the court that on 28-08-91 at about 8.40 p.m. he heard noise from the gali. On hearing noise, he and his brother Surender Kumar went to the gali where he saw Ved Ram and Anil Kumar accused persons had caught hold of Kishori Lal. Sushil Kumar, accused was standing with a hockey stick at the spot. He and Surender Kumar tried to rescue Kishori Lal but Sushil Kumar gave a hockey blow on his person and also on the person of Surender Kumar. He was declared hostile by the APP and was cross-examined by the APP. In the cross-examination, he stated that he does not remember if Namberdar and Yad Ram had caught hold of Jamna Prasad or not. He also does not know if Namberdar and Yad Ram had given hockey blows to Jamna Prasad. This portion of the statement was got confronted with the statement made by him before the police where it was so recorded. This witness further stated that he did not see Namberdar and Yad Ram at the place of occurrence. He had not seen Anil Kumar and Ashok Kumar. He had not seen Anil Kumar bringing danda and hitting the same to Ashok Kumar and also to Sushil Kumar. We have also gone through the statement of Surender Kumar. He has also stated that he saw accused Ved Ram strangulating Kishori Lal and Anil Kumar was keeping hold of Kishori Lal. He asked Ved Ram to leave Kishori Lal and he also pushed Ved Ram. Thereafter, accused Anil Kumar hit him with hockey stick as a result of which he sustained injury in his right arm. He was declared hostile by the APP. In the cross-examination by APP he stated that he did not see accused Sushil giving hockey blow to Jitender Kumar. He further stated that Ved Ram did not receive injury at the hands of Sushil Kumar in his presence. He did not see Ashok Kumar trying to rescue Kishori Lal nor did he see Anil Kumar giving teeth bite to Ashok Kumar. He had not seen Anil Kumar beating Ashok Kumar with a Danda or hitting Sushil Kumar with a danda. He denied the suggestion that Subhash had removed them to the hospital. The entire statement of this witness was got confronted with the statement made by him before the police Under Section 161 Cr.PC. We have also gone through the statement of PW3 Jamna Prasad. He is son of deceased Kishori Lal and he has stated that all the accused persons were present at the spot who were responsible for the murder of his father Kishori Lal. We have also gone through the statement of PW4 Ashok Kumar Gautam. He is nephew of deceased Kishori Lal. He has also supported the version given by PW3 Jamna Prasad. We have gone through the statements of all these four witnesses. We have found that there are very material discrepancies which have appeared in the statements of these four witnesses on very material points. PW1 Jitender Kumar has categorically stated that when he went to the spot he did not find accused Yad Ram and accused Namberdar at the spot and he had only found accused Ved Ram, Anil Kumar who had caught hold of Kishori Lal while accused Sushil Kumar was having a hockey stick in his hand and was present at the spot. Similarly, PW2 Surender Kumar also stated that he had seen accused Ved Ram strangulating Kishori Lal and accused Anil Kumar keeping hold of Kishori Lal while Sushil Kumar attacked him with a hockey. He stated that he did not see accused Namberdar and Yad Ram at the spot. PW3 Jamna Prasad has stated that all the four accused persons including Yad Ram and Namberdar were present at the spot. PW4 Ashok Kumar Gautam has also admitted the presence of Namberdar and Yad Ram along with other accused persons at the spot. So, there is a material contradiction in the statements of these five witnesses on the point of presence of accused Namberdar and Yad Ram at the spot and they having participated in the commission of crime. This is very material contradiction which goes to the root of the case. PW1 Jitender Kumar and PW2 Surender Kumar have also denied that accused Anil Kumar gave teeth bite to Ashok Kumar. Both the witnesses also denied that accused Anil Kumar gave danda blow to Ashok Kumar. This further contradicts the statement of the eye witnesses about the role played by another accused Anil Kumar in the commission of crime. Two of the accused persons namely Ved Ram and Sushil Kumar had also received injuries in this incident but none of the witnesses could explain as to how these two accused persons received injuries in this incident. However, PW3 Jamna Prasad has deposed before the court that accused persons blindly continued with danda blows and those blows had hit accused Ved Ram and Sushil Kumar. This version given by PW3 Jamna Prasad can not be accepted to be truthful and reliable as accused persons would not hit their own companions at the time of incident when a fight is going on between the accused persons and the complainant party. So, the injuries received by the accused persons namely Ved Ram and Sushil Kumar have not been explained by the prosecution at all which casts doubt on the story of the prosecution. We have also gone through the post mortem report. We have gone through the statement of Dr. Chandra Kant, PW11 who has deposed that he has conducted post mortem on the body of Kishori Lal and the death in this case was the result of left coronary artery oclusion. He explained that by ”oclusion” he means that there was a blockage in the supply of blood to the heart and this was a case of heart failure on account of blockage in the supply of blood to the heart. The case of prosecution is that deceased was strangulated by the accused persons as a result of which he died. This version of the prosecution does not find support from the post mortem report and also from statement of the doctor who performed the post mortem. It is categorically stated by PW11 that Kishori Lal died on account of heart failure due to blockage in the supply of blood to the heart. We are, therefore, unable to hold the accused persons responsible for causing death of Kishori Lal by strangulation. PW2 Surender Kumar has also stated before the court that he had not seen accused Sushil Kumar causing injury on the person of Jitender Kumar. This witness has further stated that Sushil Kumar had not given any hockey blow on the person of Ved Ram which caused injury on his person. This witness has further stated that he had not seen Ashok Kumar at the spot nor he had seen Ashok Kumar trying to rescue Kishori Lal nor he had seen Anil Kumar giving teeth bite to Ashok Kumar on his left shoulder. This witness further stated that he had not seen Anil Kumar bringing danda from his house nor he saw Anil Kumar hitting danda to Ashok Kumar and to Sushil Kumar. Both Sushil Kumar and Ashok Kumar had not received injuries at the hands of accused Anil Kumar. He has also stated that Kishori Lal had not been removed by Subhash Chandra to the hospital. This witness has also stated that accused Ved Ram had not caught hold of Kishori Lal by his neck. This witness has also admitted the presence of only accused Ved Ram, Anil Kumar and Sushil Kumar at the spot and he has denied the presence of accused Namberdar and Yadram. Similarly, PW1 Jitender Kumar has also deposed before the court that accused Namberdar and Yad Ram were not present at the spot nor they had caught hold of Jamna Prasad nor they were giving slap plows to Jamna Prasad. This witness has further stated that he had not seen Anil Kumar giving teeth bite to Ashok Kumar on his left shoulder nor he had seen accused Anil Kumar bringing danda nor he saw accused Anil Kumar giving beatings with the said danda to Ashok Kumar and Sushil Kumar.
8. We have also gone through the statement of PW4 Ashok Kumar. In the cross-examination, he has deposed that he had stated before the police that Jitender Kumar and Surender Kumar came out of their houses and Sushil Kumar gave danda blow on the person of Surender Kumar. This portion of the statement of this witness was got confronted with the statement made before the police where it was so recorded. He had also told the police that Jitender Kumar and Sushil Kumar came out of their houses to rescue his maternal grand father. This portion of the statement of this witness was got confronted with the statement made before the police where it was so recorded. He does not know if accused Ved Ram and Sushil Kumar had also received injuries on that night. He did not tell so to the police. This portion of the statement of this witness was got confronted with the statement made before the police where it was so recorded. He stated to the police that accused Namberdar gave danda blows at his back. This statement of this witness was got confronted with the statement made before the police where it was so recorded. This witness has also told the police that police had tried to stop the fighting. This portion of the statement of this witness was got confronted with the statement made before the police where it was so recorded.
9. PW3 Jamna Prasad is son of the deceased Kishori Lal whereas PW4 Ashok Kumar is the nephew of deceased Kishori Lal and both of them are interested witnesses in this case. We have seen that there are material contradictions in the statements of all the four witnesses on the point of injured persons having received injuries at the hands of the accused persons. Moreover, the version of the prosecution’s witnesses that Kishori Lal was killed by the accused persons by strangulation, also does not find support from the medical evidence.
10. After going through the statements of the witnesses and after going through the post mortem report, we have come to the conclusion that prosecution has not been able to bring home the guilt against the accused persons. The witnesses produced by the prosecution are interested witnesses and there are serious contradictions in the statements of all the four witnesses who are eye witnesses in this case. Therefore, they cannot be held reliable and trustworthy.
11. We, therefore, hold that the prosecution has miserably failed to prove its case beyond reasonable doubt against the accused persons. The learned trial court has rightly held that the prosecution has not been able to prove its case against the accused persons. We have no reason to differ with the findings given by the learned trial court. There is no merit in the appeal. The same is, therefore, dismissed. Trial court’s record be sent back.