JUDGMENT
V.N. Mehrotra, J.
1. Criminal Appeal No. 236 of 1980 has been filed by appellants Basudeo and Digambar against the judgment and order dated 22-12-1979 by Sri K. K. Sharnia IV Additional Sessions Judge, Mathura by which he has convicted appellant Basudeo under Section 302, I.P.C. and appellant Digambar under Sections 302/34, I.P.C. Both the appellants have been sentenced to undergo imprisonment for life. The State of U.P. has filed Government Appeal No. 650 of 1980 against Ramesh and Randhir, respondents, as both of them have been acquitted by the learned Additional Sessions Judge by the same judgment. Both these appeals have been heard together.
2. According to the prosecution allegations, all the four accused persons were residents of village Loriha Patti, Police Station Magorrah, District Mathura. Deceased Girraj Singh, who was the resident of the same village and was brother of informant Nek Ram, was serving as a teacher in the primary school situated in village Dom Pura. It is said that he used to proceed from his house in the morning every day for attending the school. It is alleged that on 22-9-1978, the deceased was proceeding from his village for village Dom Pura on a bicycle, and when he reached Sonka-Goverdhan culvert,, at about 6.00 a.m., the four accused persons hiding in the way, came out and fired their country made pistols aimed at the deceased. The deceased tried to run away but he was chased by the assailants. Accused Digamber then fired another shot aimed at the victim. Girraj Singh fell down and died on the spot. It is alleged that the occurrence was witnessed by Golu, Sohan Lal and Damodar. The assailants ran away from the place of occurrence afer killing the victim. It is alleged that there was previous enmity between the deceased and his brother Nek Ram on one side, and the accused persons on the other, in respect of civil litigation relating to land.
3. Nek Ram lodged the FIR at Police Station Nogorrah at 9.05 a.m. on 22-9-1978. The case was registered. The Investigating Officer reached the spot and prepared Pan-chayatnama of the dead body. He sent the same for post-mortem examination along-with necessary papers. The Investigating Officer also prepared the site plan and took in his possession the blood stained and plain clay. Later on, the statements of the eyewitnesses were recorded and thereafter charge sheet was submitted against all the four accused persons.
4. The post-mortem-examination of the dead body of Girraj Singh was conducted By Dr. Dinesh Kumar (PW 6) on 23-9-1978 a 11.00 a.m. The following ante mortem injuries were found on the body of deceased :
1. Gun shot wound of entry 1.5 cm. x 0.5 cm. x cavity of mouth on the left side face.
2. Gun shot wound of exit 2.5 cm. x 2.5 cm. on the back neck near the level of 6th cervical vertebra.
3. Multiple abraded contusion on the right cheek extending up to the right ear. The abrasions were ranging in an area between 0.25 c.m. x 0.25 c.m. x 1.5 x 0.5 cms.
4. Gun shot wound of entry 3 c.m. x 1 c.m. x abdominal cavity on the left side back between 12th and 13th ribs. The under lying bone was fractured.
5. Gun shot wound of exit 3.5 c.m. x 1.5 cm. on the front of abdomen 4 cm. below the right coastal margin.
6. Incised wound 7 c.m. x 4 c.m. x bone on the right side mandible 3 cm. below the right ear. The edges were clear cut and the under lying mandible was fractured.
7. Multiple abraded contusions on the right shoulder out side in ah area of 8 c.m. x 6 cm. 8. Multiple abraded contusions on the palmer aspect of the left knee and lower part of the forearm. They were spreading in an area of 20 c.m. x 4 cm. 9. Multiple abrasions on the upper part of the foot in an area of a 8 c.m. x 6 cm.
5. On internal examination, the carotid vessels were found lacerated and six bones of the cervix were found fractured. The abdomen and kidney were found lacerated. The stomach and small intestines were empty and faecal matter was present in the large intestines. According to the doctor, the death was caused due to shock and haemorrhage as a result of the ante mortem injuries. Dr. Dinesh Kumar has stated that the deceased had died about one and half day earlier.
6. The prosecution examined Damodar (PW 1); Golu (PW 3) and Sohan Lal (PW 4) as eye witnesses of the occurrence. Nek Ram (PW 2) is the informant who had lodged the FIR on receiving the information about the incident. He has also stated about the motive for the crime. The prosecution also examined the doctor who had conducted the postmortem examination as well as the Investigating Officers.
7. The accused persons pleaded not guilty to the offence charged. They alleged that they have been falsely implicated in this case due to the earlier litigations.
8. The learned Additional Sessions Judge believed the prosecution evidence as against appellants Basudeo and Digambar. However, the other two accused persons, namely, Ramesh and Randhir, were given benefit of doubt and were acquitted. The reason for which accused Ramesh was acquitted, was that he was the son of accused Basudeo and that his false implication could not be ruled out as he was the son of accused Basudeo who was the arch-enemy of the deceased and his brother. The reason for acquitting accused Randir was that he was infirm and was suffering from Polio of right leg and would not have been in a proper and physical state to have taken part in the crime and to run from the spot.
9. In the appeal filed on behalf of appellants Basudeo and Digambar, it has been argued that the evidence produced by the prosecution to prove their guilt was highly interested and inimical and was totally insufficient to prove that they had participated in the commission of the offence. In the appeal filed by the State, it has been argued that the prosecution evidence was reliable and was sufficient to prove the guilt of all the four accused persons and so the learned Additional Sessions Judge was wrong in giving the benefit of doubt to two of them.
10. We have heard the leaarned counsel for the parties and have perused the record of the case. It is in this case not disputed that Girraj Singh had been murdered on the way leading from village Loriha Patti to village Dom Pura. The dead body of Girraj Singh was found by the Investigating Officer at the place of occurrence which is by the side of the road and near the heap of stone ballast. This place is at a distance of about four furlongs from village Loriha Patti Damodar (PW 1) and Golu (PW 3) have asserted that on that day, they were going to village Sonkh for sawing wood. They have also stated that when they were moving in the way, deceased Girraj Singh, who was on a bicycle, crossed them and when he reached a few steps beyond them, the accused persons, who were hiding behind a Babul tree came out and surrounded the deceased. According to them, accused Basudeo was empty handed while other accused persons were armed with country made pistols. Girraj Singh then threw down the bicycle and tried to run away but the accused persons chased him and fired pistols. Even though Girraj Singh was injured, he continued to run for 30-40 paces and fell down on the heap of stone-ballast. Accused Digambar then fired another shot aimed at the deceased. The accused then ran away from that place. In his cross-examination, Damodar (PW 1) has stated that the three shots, which were initially fired by the three accused persons had hit the victim while he was still riding the bicycle. He has also stated that at that time Girraj Singh was at a distance of 30-40 steps from the Babul tree and all the three accused persons were about eight or ten steps behind the deceased. According to Golu (PW 3) and Sohan Lal (PW 4), Girraj Singh was hit while he was running away after leaving his bicycle on the spot. The statements of these witnesses regarding the actual manner and mode of the occurrence does not appear to be plausible and believable. As mentioned earlier, Damodar (PW 1) has first stated that the accused had actually surrounded the deceased and it was then the deceased threw away his bicycle and ran away. His cross-examination, however, paints a different picture.
11. According to the defence, all these three witnesses belong to the same family and had reasons to be inimical to the accused persons. Though these witnesses have tried not to accept the facts about the alleged, enmity, the statement of Nek Ram (PW 2) confirms the defence assertion on this point. It appears that near relatives of Damodar (PW 1) and Golu (PW 3) were parties to other criminal litigation between accused Basudeo on one side and the informant and the deceased on the other. Sohan Lal (PW 4) is also related to the two other alleged eye witnesses.
12. The post-mortem report of the deceased shows that his small intestines was empty while the large intestines contained faecal matter. He must have taken food, several hours before his death. It is said that the deceased used to start from his village for attending his school early in the morning and used to come back in the noon. It will be rather difficult to believe that he would not eat anything before starting for his school, though Nek Ram (PW 2) has made such assertion, it may be that the occurrence had taken place not at 6.30 a.m. but much earlier.
13. There is another very significant fact which throws grave doubt on the truthfulness of- the prosecution witnesses. All the three alleged eye witnesses assert that they had seen the entire occurrence. According to them, three of the assailants were armed with firearms and the fourth was unarmed. It is said that the three assailants, armed with fire arms, had fired shots which had resulted in the death of the victim. None of these witnesses has stated that any of the assailants had sharp edged weapon or had used the same yet, according to the post-mortem report, the deceased had received one incised wound 7 c.m. x 4 cm. x bone deep, 4 cm. below left ear. Blow must have been inflicted with great force as it caused fracture of bone underneath. In order to somehow explain the presence of this injury, it was asserted on behalf of the prosecution that the deceased fell down on the heap of stone-ballast and he might have received this injury while falling. In our view, this explanation does not appear to be acceptable. Merely by falling on the heap of stone-ballast this incised wound could not have been caused. The Investigating Officer has stated that he did not find any sharp edged . object at the place where the dead body, was lying. In fact, the Investigating Officer had found the dead body not on the stone-ballast but on the kuchcha road near the stone-. ballast. Thus this injury has not been explained by the prosecution evidence so it will lead to the inference that the alleged eye witnesses had not-actually seen the occurrence.
14. In this case, the statements of the three alleged eye witnesses were recorded by the Investigating Officer after a lapse of about three days. There was no valid explanation for this delay. Further, in the Panchayatnama of the dead body prepared by the Investigating Officer, the name of informant has been mentioned as Keshav Deo though according to the prosecution assertion, the FIR in this case was lodged by Nek Ram (PW 2). There is no explanation on the record as to in what circumstances the name of informant has been mentioned as Keshav Deo instead of Nek Ram. It may be that some information was furnished at the police station by one Keshav Deo and on that information, the Investigating Officer reached the scene of occurrence. There is nothing to indicate as to actually what information was given by Keshav Deo at the police station.
15. On a consideration of the entire material on record, we are of the view that the prosecutipn evidence is not reliable and convincing and was insufficient to prove the guilt of any of the accused persons beyond reasonable doubt. The appeal filed by appellants Basudeo and Digambar should, therefore, be allowed while the appeal filed by the State should be dismissed.
16. Criminal Apppal No. 236 of 1980 filed by appellants Basudeo and Digambar is hereby allowed. The appellants are held not guilty of the offences charged. They are acquitted of the same. They are on bail. Their bail bonds are discharged. Govt. Appeal No. 650 of 1980 filed by the State of U.P. against Ramesh and Randhir. is dismissed.