JUDGMENT
M.C. Jain, J.
1. Eight persons were tried in Sessions Trial No. 37 of 1980 before the III Additional Sessions Judge, Varanasi Sri D. N. Sharma. They were 1. Kanhaiya Pandey, 2. Chandra Bali Pandey, 3. Bachnu, 4. Ramjit, 5. Sarju, 6. Ram Charan, 7. Ganpat and 8 Chhedi Pandey. Learned trial Judge acquitted Bachnu and Sarju giving them benefit of doubt. However, by judgment and order dated 5-12-1980 he convicted and sentenced the remaining other accused-appellants named above. All of them have been convicted under Section 147, I.P.C. and 302, I.P.C. read with Section 149, I.P.C. Each of them has been sentenced to one year’s rigorous imprisonment under Section 147, I.P.C. and life imprisonment under Section 302, I.P.C. read with Section 149, I.P.C. Both the sentences of each of them have been directed to run concurrently.
2. The victim of the offence was Nand Lal The incident took place on 21-11-1979 at about 6.30 a.m. at the outskirts of village Kashipur Karahua, Police Station Rohania, District Varanasi. The first information report was lodged at Police Station Kotwali, Varanasi on 21-11-1979 at 4.30 p.m. which was taken down under Section 395/397, I.P.C. As the case related to the jurisdiction of Police Station, Rohania, the papers were transmitted there and the case was registered. The victim was alive by the time the report was lodged. The role of exhortation was assigned to the accused-appellants Kanhaiya Pandey and Chandra Bali Pandey, Ramjit and Ram Charan allegedly had lathis. Ganpat and Chhedi Pandey were alleged armed with pieces of bamboos divided from the middle. Bachnu and Sarju (acquitted) were armed with spear and gandasa respectively. The prosecution case was that all of them formed an unlawful assembly, common object of which was to rob Nand Lal Pandey and to commit his murder. All of them were residents of Kashipur Karahua, Police Station, Rohania, District Varanasi. The deceased Nand Lal Pandey was married to the daughter of Ram Surat who was also a resident of the same village. The deceased used to live in the aforesaid village at the house of his father-in-law and looked after his cultivation. After the death of Ram Surat Pandey the deceased Nand Lal Pandey got the property of his father-in-law. Sri Dhar Pandey- father of the accused-appellant Kanhaiya Pandey and Ram Surat Pandey aforesaid were real brothers. The accused-appellant Chandra Bali Pandey was the Pattidar of the accused-appellant Kanhaiya Pandey. The accused-appellant Chhedi also belonged to their family. All the accused-appellants allegedly belonged to one group. The accused-appellant Kanhaiya Pandey and his Pattidar were annoyed of the deceased Nand Lal Pandey owing to his having got the property of his father-in-law.
3. On 21-11-1979 at about 6.30 a.m. the deceased Nand Lal Pandey was proceeding from village Kashipur Karahua to village Nariya on a bicycle to attend his duty as a teacher. After covering a distance of nearby one furlong he reached near a Jamun tree situated towards the north of the village. There he was accosted by the accused-appellants who were armed as detailed hereinabove. The accused-appellant Kanhaiya Pandey and Chandra Bali Pandey exhorted their confederates to kill Nand Lal Pandey. All of them chased him upto a distance of about 200 yards and he was then assaulted by them with their respective weapons. An alarm was raised by him. Chunni P. W. 2 who after easing himself in the field of Raj Narain was tying his Dhoti, Nikhaddi Ram P. W. 3 and several other persons arrived at the scene of occurrence. The accused persons then ran away after injuring Nand Lal and relieving him of his wrist watch and Rs. 1,000/- that he had with him. Nand Lal who was in injured condition was then taken to S. S. P. G. Hospital, Varanasi by his son Kamal Deo. There he got written report Ex. Ka 1 scribed by Rajendra Prasad P. W. 1 who took the same to Police Station, Kotwali where he handed it over at 4.30 p.m. As we mentioned earlier, the papers were subsequently sent to the concerned Police Station, Rohania. S. I. Aditya Giri, P. W. 8 of Police Station, Rohania took up the investigation and reached S. S. P. G. Hospital where he learnt that Nand Lal had succumbed to his injuries. The statements of the witnesses were recorded. The dead body of the deceased was sent for post-mortem after preparation of inquest report and other relevant papers. The spot was inspected by him and he engaged himself in other activities relating to the investigation. Ultimately, chargesheet was submitted against the accused-appellants.
4. The learned Court below charged all the eight accused under Section 396, I.P.C. In the alternative, they were charged under Section 302, I.P.C. read with Section 149, I.P.C. Two of them namely, Bachnu and Sarju (acquitted) were charged under Section 148, I.P.C. whereas the rest were charged for rioting under Section 147, I.P.C.
5. It was Asha Ram Tripathi P. W. 4 who had initially examined Nand Lal on 21-11-1979 at 10.30 a.m. The following injuries were found on his person :
1. Lacerated wound 1 cm. x 1/2 cm. x scalp deep on the left side forehead 6 cm., above left eyebrow.
2. Lacerated wound 1 cm. x 1/2 cm. x muscle deep on the back of left upper arm.
3. Abrasion 4 cm. x 1/2 cm. on the back of left lower forearm.
4. Contusion 9 cm. x 4 cm. on the dorsum of left hand, X-ray advised.
5. Lacerated wound 1 cm. x 1/2 cm. x muscle deep on the back of right lower forearm. X-ray advised.
6. Contusion 8 cm. x 4 c m. on the dorsum of right hand, X-ray advised.
7. 3 lacerated wounds (a) 2 cm. 1 cm. x bone deep; (b) 2 cm. x V2 cm. x muscle deep and (c) 1 cm x V2 cm x muscle deep on the front and inner aspect of right lower Jeg with fracture of both bones underneath. X-ray advised.
8. 2 lacerated wounds (a) 2 cm. x V2 cm. x bone deep and (b) 1 cm. x 1/2 cm. x bone deep, 2 cm. apart on the front and lower left leg with fracture of both bones underneath. X-ray advised.
9. Abrasion 8 cm. x V2 cm. on front of left upper leg 6 cm. below left knee joint. All the injuries had been caused by blunt object and injuries No. 4, 5, 6, 7 and 8 were kept under observation, Injuries No. 1,2,3 and 9 were simple.
It may also be related here that autopsy on the dead body of the deceased was performed on 22-11-1979 at 3 p.m. by Dr. Nar Singh Sharma P. W. 7. The deceased was aged about 35 years and about one day had passed since he died. The following ante-mortem injuries were found on his person :
1. Lacerated wound 1 cm. x 1/2 cm. x scalp deep on the left side forehead, 6 cm. above left eyebrow and 10 cm. above left ear.
2. Abrasion 3’c.m. x V2 cm. at the root of left side back, just above middle of left collar bone.
3. Abraded contusion 5 cm. x 1 cm. on the back of left forearm, 4 cm. below left elbow joint.
4. Abrasion 6 cm. x 1/2 cm. on the back of left forearm 2 cm. above wrist joint.
5. Multiple abrasion in an area of 9 cm. x 2 cm. on the outer aspect of left forearm, just above wrist joint.
6. Contusion 9 cm. x 4 cm. on the dorsum of left hand.
7. Lacerated wound 1 cm. x 1/2 cm. x muscle deep on the back of left hand index finger just in the middle.
8. Lacerated wound 2 cm. x V2 cm. x muscle deep at the tip of left hand little finger.
9. Lacerated wound 1 1/2 cm. x 1/2 cm. x muscle deep on the back of right arm 6 cm. above right elbow joint.
10. Lacerated wound 1 cm. x V2 cm. x muscle deep on the back of right forearm, 2 cm. above wrist joint.
11. Contusion 10 cm. x 9 cm. on the dorsum of right hand.
12. Abrasion 2 cm. x 1/2 cm. on the frontal aspect of right leg 8 cm. below knee joint.
13. Lacerated wound 2 cm. x 1/2 cm. x muscle deep on the frontal aspect of right leg, 17 cm. below knee joint.
14. Lacerated wound 2 cm. x 1 1/2 cm. x bone deep on the frontal aspect of right leg 2 cm. below injury No. 13. Fracture of both bones of leg.
15. Abrasion 2 cm. x l cm. on the outer aspect of left knee.
16. Multiple abraded contusion in an area of 12 cm. x 7 cm. on the frontal and outer aspect of left leg, 6 cm. below knee joint. Fracture of both bones of legs.
17. Lacerated wound 1 cm. x 1/2 c. m. x 2000 Cri. L. J./244 x bone deep on the frontal aspect of left leg 16 cm. below knee joint.
18. Lacerated wound 2 cm. x 1 cm. x bone deep on the frontal aspect of left leg l/2 cm. below injury No. 17.
19. Lacerated wound 1 cm. x1/2 cm. x bone deep on the medial aspect of left leg 2 c. m. medial to injury No. 18.
20. Lacerated wound 1 cm. x V2 cm. on the dorsum of left foot on small toe.
21. Multiple abrasions in an area of 6 cm. x 2 cm. on back 3 cm. outer to midline and 4 cm. above hip bone.
6. There was fracture of both bones (tibia and fibula) of both legs. Ulna of right forearm was also fractured. On internal examination of the dead body, some clotted blood was found in the right chamber and the left side was empty. In the opinion of the Doctor, death had occurred due to shock and haemorrhage as a result of multiple injuries.
7. The defence was of denial and of false implication. The prosecution in all examined ten witnesses. Out of them Rajendra Prasad P. W. 1 was the scribe of the first information report, Chunni P. W. 2 and Nikhaddi Ram P. W. 3 were the eye-witnesses and rest were Doctors and police personnel including Investigating Officers. The accused-appellants did not tender any evidence in defence but filed a few documents. As we said above, on appraisal of the evidence on record the learned Additional Sessions Judge found the case of the prosecution to be proved as against six accused-appellants, but not against Bachhu and Sarju who were acquitted on being given benefit of doubt. Naturally, the six accused-appellants named in the earlier part of the judgment are aggrieved of their conviction and sentences and have challenged before this Court by means of this appeal.
8. We have heard Sri A. D. Giri, learned counsel for the accused-appellants and learned A. G. A. in opposition of the appeal who has supported the impugned judgment and order. The evidence on record has also been carefully scrutinised by us to appreciate the arguments made in support of and in opposition of the appeal. On giving our thoughtful consideration, we find that the prosecution case suffered from apparent weaknesses with unpatchable holes striking at its bottom with the result that the impugned judgment of conviction and sentences of the accused-appellants cannot be sustained. We proceed forthwith to relate below the reasons in this behalf.
9. In the first place, we take up the aspect of motive. Though motive is not evidence in a case but it satisfies the judicial mind about the authorship of a particular crime. In the case at hand, the motive assigned by the prosecution against the accused-appellants for the commission of this crime is like a square peg in a round hole. The motive is said to be that the deceased Nand Lal Pandey was the son-in-law of Ram Surat Pandey who was the uncle of the accused-appellant Kanhaiya Pandey. Accused-appellant Chandra Bali Pandey is said to be pattidar of Kanhaiya Pandey. They were allegedly annoyed of the deceased on the score of his having got the property of their close relative Ram Surat Pandey and having started living, in his village looking after his cultivation. It is significant to point out that Radha wife of the deceased Nand Lal was alive. She was the daughter of Ram Surat Pandey-father-in-law of the deceased Nand Lal. Therefore, the accused-appellants Kanhaiya Pandey and Chandra Bali Pandey could not get the property belonging to Ram Surat Pandey as his daughter Radha wife of Nand Lal was alive. It is also pertinent to observe that Nand Lal had a son too. It is noted from his injury report that he was admitted in the hospital by his son Kamal Deo. To say in other words, during the life time of the wife and son of the deceased Nand Lal the property of Ram Surat Pandey could not devolve on any of the accused-appellants, therefore, the motive assigned by the accused-appellants does not carry conviction. It is further to be observed in the same context that the above motive was assigned by the prosecution only against Kanhaiya Pandey and Chandra Bali Pandey but according to the prosecution case as set up in the first information report the role of exhortation was assigned to these two accused-appellants. It sounds to be somewhat incongruous that though they had the motive to commit the crime, yet they would only play a second fiddle in the commission of this crime. It is against the natural probabilities of the situation that the other accused-appellants, without any a parent reason, would have assumed the major role of inflicting injuries on the victim permitting the prime and motivated actors (Kanhaiya Pandey and Chandra Bali Pandey) only to perform a secondary role. In the natural course either Kanhaiya Pandey and Chandra Bali Pandey would not have been there at the scene of occurrence and would have kept behind the scene or if they were present they would have played the main and primary role in the incident.
10. There is yet another circumstance which negative the motive assigned by the prosecution. It is this that no common bond could be established that all the accused persons which could have united them to participate in this crime. As per Ex. Kha-1 the deceased Nand Lal had filed a complaint under Section 452/354/323/504/506, IPC on 12-8-1977 against Chandra Bali Pandey, Kanhaiya Pandey (accused-appellants) and two others. In that complaint one of the accused, namely, Bachnu (acquitted) was also cited as a witness from his side. As per Ex. Kha 3, he even tendered evidence under Section 262, IPC in that case in favour of Nand Lal deceased. At a later stage also, he appeared as a witness from the side of Nand Lal in that case. Obviously, it is beyond comprehension that he could have later on joined Chandra Bali Pandey and others in assaulting Nand Lal in the present incident without any apparent cause. Though Bachnu accused was acquitted by the learned Additional Sessions Judge but one cannot escape from the conclusion that the accused-appellants formed a heterogeneous group with no common bond. It is an indicator that right from the beginning the prosecution presented a twisted picture of the incident. Moreover it was not shown by the prosecution that there was some quick igniting cause for the present incident. In other words, there was no evidence to the effect that something untoward had happened in the immediate past whereby Nand Lal deceased had incurred the displeasure of the accused-appellants which could actuate them to join hands and commit the offence. Judged in the light of above relevant factors, the absence of a firm motive gives a serious jerk to the prosecution case.
11. Secondly, the origin of the first information report is shrouded in dubious circumstances. It could not be proved that actually Rajendra Prasad P.W. 1 had written it at the instance of deceased Nand Lal and that the latter was its author. He made fluctuating statement that he had reached the hospital at about 3-30 p.m. on 21-11-1979. According to him, he had written the first information report Ex. Ka-1 at the instance of Nand Lal and other persons present there. However, he also stated that after writing it he had not read it over to Nand Lal. His statement goes on that a blank paper containing thumb mark had been brought to him on which he had scribed the report. He thus admitted that Nand Lal had not thumb marked in his presence. He also stated in his reply to a Court question that Nand Lal was not present at the place where he had written the first information report outside the hospital. It has come in the prosecution evidence that Nand Lal was an educated person and was employed as a teacher. Then it was somewhat unnatural that instead of signing, he would thumb mark it. To explain it, learned A.G.A. reasoned that at the time of his postmortem his right ulna bone had been found fractured and it could be the reason for his having thumb marked it instead of signing it. We may, however, point out that the first information report contains a note in the end regarding the delay that the accused had been offering threats to him and out of fear he did not directly go to the Police Station from the place of occurrence. Instead, he came to the hospital. In case such a note could be written in the first information report, then there could be no hitch in mentioning this fact also that owing to fracture he was not in a position to sign the first information report and just thumb-marking it. Not only this, we find that the scribe Rajendra Prasad PW. 1 himself also made interpolation in the first information report by mentioning the last sentence to this effect.
BHARTI KARAKAR MAIN DOCTRI REPORT KE SAATH AAYA HUN.
12. Admitted, the victim Nand Lal had not gone to the police station. It was Rajendra Prasad P.W. 1 who had taken the first information report to the Police Station. The above recital made in the first information report is a clear indicator that after scribing the first information report and after his thumb marking, he made addition in it of his own. To be short, the first information report does not appear to be a spontaneous document. Its contents could not be proved as having been dictated by Nand Lal. Learned trial Judge also rightly held that it could not be relied upon as dying declaration of the deceased.
13. The above facts indicate that the first information report is delayed also, having been lodged at 4-30 p.m. on the day of the incident which took place at 6-30 a.m. The delay sought to be explained by means of the note contained in the first information report is not convincing. It would be recalled that he was admitted in the hospital at 10-30 a.m. on 21-11-1979 by his son Kamal Deo. His closest relative (son) having been available immediately after the incident, the report could be lodged much earlier than at 4-30 p.m.
14. We also do not find any explanation for non-examination of Kamal Deo, son of Nand Lal who had admitted him in the hospital that day at 10-35 a.m. Indeed, he was an important witness to explain as to how he came to be informed of the incident whereafter he reached the spot. It could only be he who could explain as to where and in what condition he had found his father before admitting him in the hospital as also the fact who were others present by his side.
15. Lastly, we come to the testimony of eye-witnesses, namely, Chunni PW. 2 and Nikhaddi Ram P.W. 8. Before proceeding further, we would do well to refer to the decision of the Supreme Court in V. Thevar v. State of Madras AIR 1957 SC 614. As held in the said case, generally speaking, oral testimony may be classified into three categories, namely, (1) wholly reliable; (2) wholly unreliable and (3) neither wholly reliable nor wholly unreliable. In the third category of cases, the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony direct or circumstantial. In the present case, we wish to point out that the presence of Nikhaddi Ram P.W. 3 at the time and place of the incident sounds to be doubtful. The reason is that he is not named in the first information report as an eye-witness of the incident, though the other eye-witness namely, Chunni PW 2 is named therein besides Maha Nand Pandey, Raghunath Pandey and Dangal as witnesses. There does not appear to be any plausible reason as to why his name was omitted to be mentioned as eyewitness in the first information report particularly when other witnesses were named therein. That apart, he appears to be a partisan witness too who was omnipresent to come to the aid of Nand Lal whenever needed. He was a witness under Section 202, Cr. P.C. in the complaint case also that had been filed by the deceased against Chandra Bali Pandey and Kanhaiya Pandey (accused-appellants) and others on 12-8-1977 reference, regarding which has come in the earlier part of the judgment. Even if it is taken for a moment for the sake of argument that he was present at the spot, then he as well as Chunni PW. 2 could only fall in the category of partly reliable witnesses. The reason is that they imputed spear and Gandasa to Bachnu and Sarju accused (acquitted) respectively and insisted that they had used the same in striking blows on the victim from the blunt side. This was stated by them for the first time while deposing before the Court and it was obviously done with the purpose to produce artificial harmony between their ocular version and medical evidence (as no cut weapon injury was found on the person of the deceased). This part of their testimony was rightly disbelieved by the Court below and the accused Bachnu and Sarju were acquitted. We find that testimonial assertions, of these partly reliable witnesses, namely Chunni PW. 2 and Nikhadhi Ram P.W. 3 suffer from material contradictions on crucial points, lacking corroboration from independent sources, leading to the inference that they have spoken out of their imagination. It is worthwhile to observe that the case of the prosecution as set up in the earlier version contained in the first information report was that the accused-appellants Ganpat and Chhedi Pandey were armed with bamboo pieces divided in the middle (Bans Ka Khamchala). The case set up in the first information report was to the effect that the accused-appellants Kanhaiya Pandey and Chandra Bali Pandey had played the role of exhortation. However, Chunni P.W. 2 imputed lathis to the accused-appellants Ganpat and Chhedi Pandey also (instead of bamboo pieces divided from the middle). If he had witnessed the incident with his own eyes which had taken place in daylight and had been so meticulous as to observe that Bachnu and Sarju (acquitted) were welding spear and Gandasa from the blunt side, he could not miss to notice that Ganpat and Chhedi Pandey did not have lathis. He would have described their weapons as bamboo pieces divided from the middle. He went a step further by imputing the role of actual assault also to the accused-appellants Kanhaiya Pandey and Chandra, Bali Pandey. It is further to be noted that Chunni PW. 2 is a person of criminal antecedents. He had been an accused of dacoity with murder under Section 396, IPC. He had been accused in two or three other cases including one of the Arms Act. He was a partisan witness also being thick with Nand Lal who had cited him as a witness in a complaint case filed by him against Kanhaiya Pandey, Chandra Bali Pandey and others. After the incident, Chunni PW. 2 conducted himself in queer manner which renders his actual presence also at the spot to be most doubtful. He stated that he stayed at the spot for 10-15 minutes and thereafter he went home. From his house he went to see Nand Lal in the hospital at about 3 or 3.30 p.m. It came down from him that he and Nikhaddi Ram P.W. 3 did not render any help to Nand Lal till they remained at the spot. He had left for his home leaving Nand Lal at the spot uncared for. It is obvious that he as well as Nikhaddi Ram P.W. 3 went away without making any effort to remove the injured Nand Lal from the spot to the hospital for medical aid despite the fact that he was badly injured. It would be recalled that Nand Lal was admitted in the hospital by his son Kamal Deo. Had Chunni PW. 2 and Nikhaddi Ram PW. 3 been actually present at the spot, they would have done something to render some assistance to badly injured Nand Lal with whom they were thick from before (instead of leaving him there uncared for). Further none of these two witnesses spoke a word about the accused-appellants having relieved Nand Lal of his wrist watch and Rs. 1000/- as was the case set up in the first information report. In case they were actually the eye-witnesses, they would have noticed this part of the incident also. It appears to us that Chunni PW. 2 and Nikhaddi Ram P.W. 3 belonged to the group of Nand Lal deceased and they were such set of witnesses who could be made use of in favour of Nand Lal deceased at any time of need. There is yawning gap in the form of contradictions in their testimonial assertions on crucial points leaving many things unexplained. The inevitable result is that reliance cannot be placed on what has been stated by these partly reliable witnesses.
16. We have detailed above the reasons for our conclusion that the case of the prosecution against the accused-appellants (1) Kanhaiya Pandey 2. Chandra Ball Pandey, 3. Ramjit, 4. Ram Charan, 5. Ganpat and 6, Chhedi Pandey is not free from doubt. There can be no dispute that Nand Lal suffered a number of Injuries and he was the victim of violence. But it is not amply proved by clinching and convincing evidence that the culprits were all or some of the present accused-appellants, May be that he was assaulted by some of the present accused-appellants, but then the grain is so inextricably mixed with the chaff that it cannot be separated. Benefit of such a situation has necessarily to go to the accused-appellants.
17. In view of the above discussion, we find the appeal to be well merited. We, accordingly, allow this appeal and set aside the judgment and order dated 5-12-1980 passed in S.T. No. 37 of 1980. The accused-appellants 1. Kanhaiya Pandey, 2. Chandra Bali Pandey, 3. Ramjit, 4. Ram Charan 5. Ganpat and 6. Chhedi Pandey are acquitted of the charges framed against them. They are on bail. They need not surrender. Their personal bonds and bail bonds are hereby cancelled and sureties discharged.
18. Let a copy of this judgment along with the record of the case be immediately sent to the Court below for needful compliance in the form of necessary entries in concerned registers under intimation to this Court within two-months positively.