JUDGMENT
Gopal Krishna Sharma, J.
1. This appeal is directed against the judgment dated 15-10-1987 by which, the Additional Sessions Judge, No. 2, Bharatpur, convicted the appellant as under : Charan Singh : under Section 302, IPC and Bachchu Singh under Section, 302/34, IPC. Both the appellants have been sentenced to life imprisonment and a fine of Rs. 200/- in default of payment of fine, to undergo two months’ rigorous imprisonment.
2. Ram Charan on 15-6-1986 at 2 p.m. lodged Station Roop was alleging that on the same day in village Nagla Khan in the P morning while taking bath in the village pond some Nagla Khan in the between Han Singh s/o Mangi Ram and Durga Singh s/o Patriva. He developed reported the matter to his mother Mst. Harpyari and his brother Hari Singhh Singh. Charan Singh and Harpyari went to Mst. Rama his brother Charan Singh and wife of Patriya (deceased). The two ladies while discussing up quarrel and on intervening by others the situation Charan Singh called his younger brother Bachchu Singh Patriya boarded his wife in the bus to lodge the report and the mine bicycle to Police Station. Then Charan Singh and Bachchu Singh was going on village, took Lathis in their hands and stated that they will kill came in the his arrival at the Police Station. Charan Singh and Bachchu Singh took before and followed Patriya. After some time there was rumour that Singh took cycles murdered by Charan Singh and Bachchu Singh The villagers that Patriya was trolly and came to the spot where they found the cycle of Patriya took a tractor were informed that the dead body of Patriya has been taken to and they When the villagers were coming towards Roop was, near the shop to Roopwas. Singh Sarpanch they found the dead body Patriya lying the shop of Ravindra Singh Sarpanch they found the dead body of Patriya lying on the ground and by the side of dead body Gopal, Mangia, Ramji Lal and Mst. Rama wife of Patriya were found. They took the dead body of Patriya in the tractor and came to the Police Station. On his report the Police registered a case Under Section 341 and 302, IPC and started the investigation. The post-mortem of the dead body was conducted and according to the opinion of the doctor Patriya died on account of throattling leading to asphyxia & death. After completing the usual investigation the Police submitted challan against the appellants.
3. The trial Court framed charge against Charan Singh under Section 302, IPC and against Bachchu Singh under Section 302/34, IPC. Both the accused pleaded not guilty and claimed trial.
4. The prosecution has examined 9 witnesses in support of its case. The accused-persons have denied all the allegations and no defence evidence was adduced by them. The learned trial Court found accused Charan Singh guilty under Section 302, IPC and accused Bachchu Singh guilty under Section 302/34, IPC and sentenced them as mentioned above.
5. The learned Counsel for the appellants argued that there is no evidence against accused-appellant Bachchu Singh and the learned trial court has committed error in convicting him. It was also argued that according to prosecution there are only three eye-witnesses i.e. Ramji Lal PW 2, Mangia PW 3 brother of deceased and Gopal brother-in-law of deceased. According to the prosecution story some quarrel had taken place between Hari Singh and Durga Singh while taking bath in the pond, then some quarrel took place between Mst. Rama and Mst. Rampyari and then when Patriya and his wife were going to report the matter the accused-persons murdered Patriya.
6. We have perused the statements of these eye-witnesses and Ram Charan PW 1. According to Ex. P2, the Panchnama, Patriya had injuries on the back in the form of contusions, swelling on the right elbow, swelling on the testicals and marks of contusions on the neck. According to post-mortem report Ex.P4 the cause of death was throatting In the report Ex.P1 Ramcharan has not mentioned that the accused-persons pressed the neck of Patriya who died on account of throattling. What he has stated in the report that he heard in the village that Charansingh & Bachchusingh & then along with other village people went in the tractor and came to the spot where the dead body was living So Ram Charan is not an eye-witness. He could not say whether before lodging the report he was informed by Ramji Lal, Mangia and Gopal that Patriya was beaten and murdered by the accused-persons. Ram Charan was informed that Patriya was murdered by throattling. Inspite of this information he has not mentioned this fact in the report Ex. P1.
7. There are only three eye-witnesses and their statements have been minutely perused and we have also gone through the entire evidence Ramji Lal (PW 2) has stated that he saw Charan Singh and Bachchu Singh going on cycle. They were empty handed and it means that they were not carrying any weapon in their hands. The village people told him to follow the accused-persons in order to avoid any further quarrel. He followed the accused persons on cycle while Mangla and Gopal followed him on feet. When he reached at a distance of one mile he saw the accused-persons beating Patriya with stones. On account of stones beating Patriya received injuries, he fell down on the ground and died. He has also stated that accused Charan Singh pressed the neck of Patriya, Gopal and Mangia arrived there and then the accused person ran away In the cross-examination he has stated that from a distance of one furlong he saw Patriya being beaten by both the accused persons with stones. According to him they were hitting stones at the back of Patriya. Then he stated that Charan Singh sat on the chest of Patriya and pressed the neck. He has also stated that he has not seen any mark of injury on the neck of Patriya He was confronted with the statement Ex.D 2 recorded during investigation where he has not mentioned that the accused persons were hitting stones at Patriya. He has also stated that the accused persons ran away from the place of incident before the arrival of Mangla and Gapal. In the statement Ex. D2 he has stated that both brothers were beating Patriya. Bachchu Singh was hitting by Lathi but he has denied to have given this statement and thus contradicted his statement. In the cross-examination-in-chief he has deposed that when Charan Singh was pressing the neck of Patriya Gopal and Mangla also arrived there and then the accused persons ran away. But from the cross-examination it reveals that Ramji Lal reached there and asked Gulab to bring water and at that time Mangla and Gopal arrived there. Both the accused-persons ran away before the arrival of Mangla and Gopal. So according to Ramji Lal. Mangla and Gopal are not the eye-witnesses. They arrived at the spot when the accused persons after beating Patriya ran away. Then Ramji Lal has stated that Charan Singh and Bachchu Singh were empty handed. It means that they were not carrying any weapon with them but according to statement Ex.D 2, Bachchu Singh was having Lathi in his hand.
8. Mangla (PW 3) is the brother of deceased Patriya. In his examination-in-chief he has stated that village people told him, Gopal and Ramji Lal to see that they may not quarrel and so Ramji Lal went on cycle while Gopal on foot following the accused-persons. He and Gopal from a distance of 70-80 paces saw both the accused-persons beating Patriya with fist and stones. Bachchu gave leg blow also. Charan pressed the neck of Patriya, then the accused-persons ran away. He has also stated that when the accused-persons were going they uttered that they will murder Patriya before his arrival at the Police Station. When confronted with the Police statement Ex.D 3 he has stated that he has deposed in the same manner but he does not know why this has not been written in the Police statement. Then he was confronted with the portions A to B C to D, E to F and he has denied to have given this statement. So he has contradicted his own Police statement.
9. Gopal (PW 5) in his examination-in-chief deposed the same statement as of Mangla. In the Court statement he has stated that he saw Charan Singh pressing the neck of Patriya so he claimed himself to be an eye-witness But in the Police statement Ex. D1 he has stated that Ramji Lal had reached before them at the place where Patriya was lying and when they reached there Ramji Lal told them Charan Singh has throattled the neck of Patriya. It means that Gopal was not an eye-witness. Gopal and Mangla both reached together so Mangla was also not an eye-witness. Both these witnesses were informed by Ramji Lal that his neck was pressed by Charan Singh.
10. Mst. Rama (PW 2) has stated that there was a quarrel between his son Durga Singh and Hari Singh at the pond of the village. Charan Singh and Harpyari came to her house and told that Durga Singh has beaten Hari Singh. Then the quarrel took place between both the ladies. Charan Singh told his mother that he will finish Durga Singh just now. Then husband told her to have bandage in the hand from Roopwas and at 8 a.m. her husband took her to bus-stand Roopwas and she was made to sit in the bus. She came to bus-stand Roopwas and waited for her husband for about an hour. When she was returning in the way near a house she saw the dead body of her husband where Ramji Lal, Mangla and Gopal were sitting. These three persons informed her that Charan Singh and Bachchu Singh had murdered her husband. In the cross-examination she has stated that in her presence Ramji Lal Mangla and Gopal told the S.H.O. that Charan Singh and Bachchu had murdered Patriya. She has stated that she has no relationship with Gopal and Mangla She has stated that she does not know the name of father of Gopal. She does not know whether father’s name of Gopal is Teja. Then she as admitted that Gopal is her real brother. So this is the character of this witness. Mst. Rama. So according to her statement she is not an eye-Witness.. . Mangla(PW 3)in the cross-examination has stated that Sarpanch reached at the shop where the dead body was lying and village people arrived there. Ram Charan Shobba Ram, Lekha and Shyam Lal also came here and saw the dead body of Patriya and along with there persons Mst. Rama also arrived there. He has stated that when he followed Ramji Lal from the village Mst. Rama was in the village. It means that accused-persons Slowed Patriya on cycle and at the instance of Villagers when Ramjilal followed them Mangla and Gopal followed Ramji Lal and at that time Mst. Rama was in the village. So the entire story that Mst. Rama and her husband Patriya went to village Roopwas is incorrect.
11. The Investigating Officer Ale Ahmed (PW7) has admitted that Ram Charan while lodging report Ex. P1 and giving statement Ex.D 1 has not stated that Charan Singh pressed the neck of Patriya. So it seems that the prosecution has developed the story of pressing the neck because according to post-mortem report Patriya died on account of throttling. There was no case of pressing neck or throattling but in order to corroborate the post-mortem report the witnesses were made to say that Charan Singh pressed the neck of Patriya. This development creates doubt in the prosecution story. Unless a case is made out or is established against the accused-person beyond reasonable doubt, it will be unsafe to convict the accused-persons. In this present case after going through the entire prosecution evidence minutely we are of this opinion that the prosecution has failed to establish its case beyond reasonable doubt. The witnesses are unreliable and have not come with true version in the Court. The learned trial Court has failed to appreciate the evidence and has committed error in convicting the appellants and finding that the case has been established against them.
12. In view of our discussion above we find that the prosecution has failed to prove its case beyond reasonable doubt. prosecution has
13. As a result, the appeal is accepted. Accused Charan Singh is not found guilty under Section 302, IPC and accused Bachchu Singh under Section 302/34, IFC. therefore conviction by the trial Court is set aside and both the appellants are acquitted. Accused Bachchu Singh is on bail. His bail bonds are cancelled. He need not surrender. Accused appellant Charan Singh is in jail. He be released forthwith, if not required in any other case