ORDER
G.N. Ray, J.
1. This appeal is directed against the judgment dated January 20,1982 passed by the Division Bench of Allahabad High Court in Government Appeal No. 2256 of 1974 preferred against the judgment of acquittal dated June 20, 1974 passed by the learned Sessions Judge, Bareilly in Sessions Trial No. 247 of 1973. The four accused, namely, Maharaj Singh, Kalyan Singh, Gaya Singh and Munney Singh were charged under Section 302 read with Section 34 I.P.C. for murdering Narendra Singh on March 6, 1973 at about 9.00 A.M. near the Tiraha of Badaun-Bareilly road. Soon after the acquittal by the learned Sessions Judge, the accused No. 1, Maharaj Singh, was murdered and service against Munney Singh, accused No. 4, not having been effected, the appeal against acquittal against him was separated and the High Court considered the appeal against accused No. 2, Kalyan Singh, and accused No. 3, Gaya Singh, in the said Government Appeal No. 2256 of 1974. It may be stated here that Maharaj Singh and Kalyan Singh were the real brothers and Gaya Singh is the son of Maharaj Singh and Munney Singh is the son-in-law of Maharaj Singh.
2. The prosecution case as disclosed in the First Information Report is to the effect that the deceased, Narendra Singh, and his brother, Gopi Singh, who lodged the First Information Report had been coming to Bareilly along with others on bicycles to attend the hearing of the case against Narendra Singh under the Arms Act. Jagdish Singh, Ram Pal Singh and Rajju Singh of Chaubari were also with Gopi Singh and Narendra Singh. When they reached Tiraha at about 9.00 A.M., four persons emerged from their hiding place behind the bushes from the western side of the road. Maharaj Singh and Munney Singh were armed with guns and Kalyan Singh and Gaya Singh were armed with Bhalas. Maharaj Singh declared to Narendra Singh that he had got his son murdered, it would be his chance now. Immediately Maharaj Singh and Munney Singh fired at Narendra Singh and being hit by the gun shots, Narendra Singh fell down. Kalyan Singh and Gaya Singh then struck bhallas to Narendra Singh and Narendra Singh died on the spot. Gopi Singh and the other companions retreated due to fear. At that time, Brij Bhushan Singh and Rampal Singh of village Kaili had also come from the side of Ram Ganga Bridge and they had also witnessed the occurrence. Alarm being raised by Gopi Singh, the accused persons escaped towards east. After that, other co-villagers of Gopi Singh including Brijpal Singh, Rajpal Singh and Rohan Singh also reached the place of occurrence. After leaving the dead body in the charge of other companions, Gopi came to lodge the First Information Report. A case under Section 302 read with Section 34 I.P.C. was registered by the police and the statement of the informant, Gopi Singh, was recorded at the Kotwali itself and the spot was inspected by the Police Officer. Two chappals, two cartridges and three broken teeth of the deceased and some other articles were found lying near the dead body. The said articles and samples of blood stained earth were collected. Inquest was held by the police officer and the report was prepared. The dead body was sent for post-mortem examination and Dr. R.S. Rajdhan conducted the post-mortem examination and he noted in the report 11 injuries including gun shot injuries and incised wounds.
3. The learned Sessions Judge inter alia came to the finding that the prosecution case had fairly established that the murder had been perpetrated by the accused party. The learned Sessions Judge however held inter alia that the testimony of the eye-witnesses could not be believed about the commission of the offence by the accused although there were great suspicion about the complicity of the accused persons. The learned Sessions Judge noted that as many as six persons including Gopi Singh who lodged the First Information Report had all proceeded by double riding on the bicycles but he held that it was a common feature that one person would drive the bicycle in the village and another person would sit on pillion or on the carrier of the cycle, and there was nothing unusual in such double riding in a village. The prosecution examined Gopi Singh, PW.1, Jagdish Singh, PW.2, Rajpal Singh alias Rajju, PW.5 who were all eye-witnesses and all the said witnesses were residents of the village Chaubari. The learned Sessions Judge examined three more witnesses as Court witnesses. Such witnesses are Brijpal Singh, CW.1, Rajpal Singh, CW.2, Shyampal Singh, CW.3. According to the learned Sessions Judge, the medical evidence revealed that most of the gun shot wounds on the person of the deceased were on the right side. Referring to the account of the eye-witnesses the learned Sessions Judge held that the gun shot injuries were fired at the victim when he had been facing the north. In such state of affairs, the gun shot injuries found on the right side of the deceased ran counter to the evidence of the eye-witnesses about the manner in which injuries were alleged to have been caused by the accused. The learned Sessions Judge was of the view that the gun shot injuries found on the right side of the deceased being in conflict with the account of occurrence as given by the eye-witnesses, the veracity of the testimony of the eye-witnesses was doubtful. The learned Sessions Judge also noted that Gopi Singh, P.W. 1, went to the police station to lodge the First Information Report on the bicycle on which the deceased had been riding. It was observed by the learned Sessions Judge that it was unusual that instead of leaving it untouched on the spot the bicycle on which the deceased was riding, would be taken by Gopi Singh to lodge the First Information Report. The learned Sessions Judge had also expressed doubt about the veracity of the statement of Gopi Singh in view of the fact that when he went to lodge the First Information Report, he crossed the police station for the purpose of procuring a paper from a shop ahead of Kotwali Police Station for lodging the complaint. The learned Sessions Judge was of the view that the prosecution had failed to establish the case against the accused beyond all reasonable doubts. Accordingly the order of acquittal was passed hy him in favour of all the four accused persons.
4. As aforesaid, the State of U.P. preferred appeal against the order of acquittal before the Allahabad High Court being Government Appeal No. 2256 of 1974. The High Court has analysed the observations and findings made by the learned Sessions Judge and has inter alia come to the finding that the finding of the learned Sessions Judge was not only unreasonable but the same was perverse and against the weight of the evidence. The High Court has held that Gopi Singh PW.1, has given graphic account of the occurrence and he has stated on oath that while the deceased was going to attend the hearing of the criminal case under the Arms Act, the accused persons emerged from the bushes from the western side of the road and two of them, namely, Kalyan Singh and Gaya Singh, forced him to dismount from the cycle. Gopi Singh has categorically stated in his evidence that all the four assailants were in front of the deceased before causing the injuries on his person. PW.2, Jagdish Singh, has also disclosed that the persons who were carrying guns had fired on the deceased from the front and the other eye-witness Rajpal Singh, PW.5, has also not disclosed anything to the contrary. The High Court has, therefore, held that it cannot be legitimately inferred from the evidence of the eye-witnesses that the shots at the deceased were fired from the west while the deceased himself was facing the north. Accordingly, the High Court has come to the finding that there was no conflict between the medical report noting the injuries on different parts of the body and the evidences given by the eye-witnesses. The High Court has also held that there was nothing unusual in the conduct of Gopi Singh to leave the dead body and rush to lodge the First Information Report. According to the High Court, it was also not very unnatural on the part of Gopi Singh to take the bicycle on which the deceased had been riding to go to the police station for lodging the First Information Report. The High Court has noted that Gopi Singh was less than 18 years of age at the time of occurrence and the bicycle on which the deceased was riding was not the subject matter of any offence. Possibly it did not occur to young Gopi Singh that the bicycle should better be left at the place of occurrence. He had natural anxiety to bring the fact of his brother’s murder to the police as early as possible and as he came to the spot on double riding on a bicycle which belonged to another, the cycle on which the deceased was riding was the cycle he could take. He, therefore, took the bicycle and rushed to the police station to lodge the report at the earliest possible time. Coming to the incident of purchase of paper from the shop ahead the police station the High Court has observed that there was nothing unusual in the conduct of Gopi Singh. There is no evidence on record from which a finding can be made that the paper could be obtained from any other place before Kotwali. Hence, if the paper was procured from a shop beyond Kotwali, there was nothing unusual. The High Court has come to the finding that the prosecution case has been clearly established by the evidences given by the eye-witnesses and such evidences not being contrary to the medical evidences on the gun shot injuries found on the person of the deceased, the judgment of acquittal passed by the learned Sessions Judge cannot be sustained. In that view of the matter, the appeal was allowed against the assailants Kalyan Singh and Gaya Singh and the order of the acquittal in their favour was set aside by the High Court and both were guilty and punished under Section 302 read with Section 34 I.P.C. and the High Court has passed a sentence of life imprisonment against both the appellants.
5. The learned counsel for the appellants has very strongly contended that the circumstances may be grave and suspicious and it may appear likely that the appellants had committed the offence of murder of Narendra Singh because of the bad relations between the parties. But however suspicious may be the circumstances, conviction cannot be based unless complicity of the accused persons for murdering Narendra Singh is established beyond all reasonable doubts. No part of the prosecution story can lie in the realm of surmise and conjecture for holding the appellants guilty. The learned Sessions Judge has taken pains in analysing the evidences in great detail and has observed that it was unusual that Gopi Singh should take the bicycle on which the deceased himself was riding for the purpose of lodging the First Information Report, he has also submitted that even if it is assumed that there was no other shop available wherefrom a piece of paper could be procured, there was no earthly reason to go ahead of the police station just to purchase a piece of paper, when on asking, a piece of paper could have been supplied by the police station itself for lodging the complaint. The learned counsel for the appellants has also contended that the assailants came from the western side and it is positive case that the deceased had been proceeding by facing north. Even if the deceased was forced to dismount from the cycle and attacked from the front, the gun shot injuries mostly on the right side could not have been caused if the guns were fired in the manner stated by the witnesses. The learned Sessions Judge, therefore, was justified in holding that the medical evidence of the injuries ran counter to the prosecution case and the testimony of the eye-witnesses could not be accepted. The learned counsel has contended that it is an accepted principle that if on evidence, a view can also be reasonably taken and the learned Sessions Judge has taken a view which is also a possible view and on such view has passed the order of acquittal, the High Court should not have re-appreciated the evidence on its own for the purpose of arriving at a different conclusion. It was therefore not proper on the part of the High Court to set aside the judgment of acquittal on taking a view contrary to a possible view taken by the learned Sessions Judge. The learned counsel has also contended that acceptability of the evidence is tested by taking into consideration various facts and circumstances of the case. Left to itself purchasing a piece of paper from a shop situated beyond the police station or taking a bicycle on which the deceased was riding to the police station, may not be sufficient to discredit the testimony of the eye-witnesses but the cumulative effect of various improbabilities cannot be lost sight of. If such improbabilities coupled with the medical report of the injuries which was incompatible with the manner of causing injuries as stated by the eye-witnesses had been taken note of by the learned Sessions Judge and if on consideration of the facts and circumstances of the case he could not accept the credibility of the prosecution witnesses beyond all reasonable doubts, no exception can be made. In the aforesaid circumstances, this Court should allow the appeal and set aside the order of conviction and sentence passed by the High Court and uphold the order of acquittal passed by the learned Sessions Judge.
6. The learned counsel for the State, however, has disputed such contentions of the learned counsel for the appellants. It has been pointed out that the findings of the learned Sessions Judge being contrary to the evidence adduced in the case and the reasonings for basing the findings not being in conformity of the materials on record, the High Court was quite justified insetting aside the order of acquittal. The learned counsel has therefore submitted that no interference is called for in this appeal the same should be dismissed.
7. After considering the respective contentions of the learned counsels for the parties, we are of the view that the High Court has analysed the findings made by the learned Sessions Judge in detail and has given cogent reasons as to why the account of the incident as given by eye-witnesses indicating the manner in which the injuries were caused on the person of the deceased did not run counter to the medical evidence. In our view, the medical evidence about the injuries found on the person of the deceased stands fully corroborated by the account given by the eye-witnesses. The conduct of Gopi Singh in taking the bicycle on which the deceased brother was riding, for lodging the First Information Report and for going to a shop ahead the police station for purchasing a piece of paper has been rightly explained by the High Court and in our view no unusual conduct can be inferred against Gopi Singh. We do not find any material to hold that the evidences given by the eye-witnesses are not worthy of credence and should be discarded. We therefore, do not find any reason to interfere with the judgment of the High Court. The appeal, therefore fails and is dismissed. Since the appellants have been released on bail by the order of this Court passed on April 29, 1982, both the appellants should be taken into custody to serve out the sentence.
