JUDGMENT
A.R. Tiwari, J.
1. This appeal has been directed against the judgment, delivered by the Sessions Judge, Ratlam in Sessions Trial No. 143/86 on 3-8-1987 thereby convicting the appellant under Section 302 of the Indian Penal Code and sentencing him to suffer imprisonment for life.
2. Briefly stated, the prosecution case at the trial was that on 1-2-1986, the appellant and Rajan alias Abdul Wahab (since acquitted by the Trial Court) acted in preconcert and jointly murdered in broad day light one Ayub by assaulting him with a knife in Pathan Toli Mohalla at Jaora. The report (Ex.P/1) was lodged by Sayed Habib (PW-1). The post mortem was performed by Dr. Dhannalal Rathore (PW-11) who gave the report (Ex.P/17). Clothes were seized. The report of Chemical Examiner is Ex.P/16. The knife was seized from the appellant on 4-2-1986 vide seizure memo Ex.P/3. After completion of investigation, challan was filed. The appellant as also the acquitted accused were charged under Section 302 and in the alternative under Section 302/34 of the Indian Penal Code, to which appellant too pleaded not guilty and urged that at the relevant time he was not even present on the spot and has been falsely implicated in the case.
3. On trial, co-accused Rafan alias Abdul Wahabon on benefit of doubt was acquitted of the charges under Section 302/34 of the Indian Penal Code whereas the appellant, young student aged 22 years, stands convicted for an offence punishable under Section 302 of the Indian Penal Code and sentenced as aforesaid.
4. We have heard Shri Ashok Shukla, learned counsel for the appellant as also Shri G. S. Chauhan, learned Dy. Government Advocate for State and have also perused the record.
5. Shri Shukla pointedly urged that:
(a) the judgment is vitiated because conviction of the appellant is based simply on conjectures and surmises.
(b) itlthe conclusion of guilt rests on unsafe and undependable testimonies of the so-called eye-witnesses PW-7 Babu and PW-8 Munna who admittedly did not disclose the incident for six days from the date of the alleged incident and who are also “interested” witnesses, and
(c) itlthere is lack of independent evidence. Developing these points, he persuasively submitted that the conviction as also the sentence deserve to be set aside.
6. Shri Chauhan on the other hand, laboriously supported the impugned judgment and vigorously submitted that no interference in the impugned judgment is warranted.
7. We shall proceed to examine the polemic points. However, right at the threshold it may be pointed out that the prosecution version as per First Information Report (Ex.P/l)is that the acquitted accused caught hold of both the hands of the deceased from behind and in that posture the appellant inflicted knife injury on the right side of the neck. One Hameed Miya (PW-2) intervened by shouting and on this both the accused persons ran away. This is then the alleged manner of assault. PW-7 and PW-8 Babu and Munna respectively have been partly disbelieved by the Trial Court itself as regards the complicity of the acquitted accused, (para 34 of the judgment). PW-2 Hamid does not support the prosecution. It is, therefore, clear that a very cautious scrutiny of the statements of PW-7 and PW-8 is essential. We say cautious, because the maxim “falsus in uno, falsus in omnibus” is neither a sound rule of law nor a rule law of practice. In . assessing the worth of the evidence furnished by these two witnesses, it would, therefore, be pertinent to bear in mind the undernoted features as a note of caution :
(a) The Statements of PW-7 and PW-8 were recorded under Section 161 of the Code of Criminal Procedure only after six days from the date of incident i.e. on 6-2-1986. They did not disclose the incident till then and observed silence.
(b) PW-7 and PW-8 are not named in the First Information Report as eye-witnesses.
(c) Their versions are at variance with the statements made to the police (Ex.D/2 and D/3.)
(d) PW-7 Babukhan had gone to Pakistan with the deceased and as such was very close to the deceased. Similarly PW-8 Munna worked with the brother of the deceased.
(e) PW-7 and PW-8 have not been found wholly reliable by the Trial Court resulting in acquittal of the co-accused.
(f) PW-7 and PW-8 both participated in the funeral ceremony and other religious rites of the deceased as per the sworn testimony of none else than PW-8 (Para 8) himself-and as such the excuse or explanation with regard to delay in making disclosure stood ipso facto falsified.
(g) The Trial Court noticed and listed the prodigious number of infirmities associated with the evidence of PW-7 and PW-8 in para 18 of the judgment all right, but then proceeded to treat these witnesses reliable.
8. Apart from the belated disclosure, interestedness and mysterious omission of the names in the First Information Report, it may be additionally observed that Section 39 of the Code of Criminal Procedure itself imposed the obligations on persons like PW-7 and PW-8 to give information to the nearest Magistrate or police officer. Relevant portion is extracted below :-
39(1) Every person aware of the commission of ….. any offence punishable under any of the following sections of the Indian Penal Code, namely : –
(i)…….
(ii)…….
(iii)…….
(iv)…….
(v) Sections 302, 303 and 304 (that is to say, offence affecting life)
(vi to-xii)…….
shall in the absence of any reasonable excuse, the burden of proving which excuse shall lie upon the person so aware, forthwith give information to the nearest Magistrate or Police officer of such commission or intention.
Now, if PW-7 and PW-8 had really seen the incident as claimed by them and thus had become “aware” of the commisssion of an offence, affecting life, then they were under obligation, as imposed by the law, to give information forthwith to the specified authorities. No excuse, much less reasonable one is made out. In fact, explanation itself is found to be unnatural and untrue as noted above. In our view this renders the testimony of PW-7 and. PW-8 as tainted and wholly unreliable. Silence on their part is unnatural. The Division Bench of this court has taken the view in State of M. P. v. Babulal, 1985 Weekly Notes 114 as under : –
“This witness has also admitted that he did not lodge a report of the incident which he had allegedly witnessed, in the police station. In view of Section 39 of the Code of Criminal Procedure, it was obligatory on Saudansingh (PW-1) to have lodged the report of this incident with the police if in fact he had witnessed the occurrence. These two factors are sufficient to discard his testimony.”
9. The aforesaid breach of obligation is itself enough to treat their evidence worthless. The Trial Court wrongly ignored the infirmities on untenable grounds. Added to this, is the vital lapse in terms of Section 39 of the Code of Criminal Procedure as well which remained unnoticed by the Trial Court. This is the fatal flaw. Moreover, PW-1 Sayed Habib, father of the deceased, would have surely known as to who had witnessed the incident yet names of PW-7 and PW-8 are not mentioned in the First Information Report ((Ex-P/1). It is laid down in AIR 1975 SC 1026, Ramkumar Pande v. State of M. P. as under : –
“No credence to the version of the alleged eye-witness could be given as they were not mentioned of eye-witnesses in the FIR made in the circumstances.”
10. In passing, we may observe that failure to substantiate or even probablies the plea of alibi does not absolve the prosecution from its obligation to prove the charge beyond reasonable doubt. Late interrogation is another serious infirmity. We may refer to Ganesh Bhavan Patel and Anr v. State of Maharashtra, AIR 1979 SC 135 : –
“Delay of a few hours, simpliciter, in recording the statements of eye-witnesses may not, by itself, amount to a serious infirmity in the prosecution case. But it may assume such a character, if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to case and the eye-witnesses to be introduced. Thus, under the facts and circumstances of the case delay in recording the statements of the material witnesses, casts a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story”…………….
“Normally, in a case where the commission of the crime is alleged to have been seen by witnesses who are easily available, a prudent investigator would give to the examination of such witnesses precedence over the evidence of other witnesses.”
11. The Trial Court has commented that the Police does not investigate the case properly (para 28). It is also pained to see that witnesses have not come forward to depose (para, 17). It further observed that the incident has occurred in broad day light (1.30 P.M. in a crowded locality being witnessed by many (para 27) yet none has come forward to depose in support of the prosecution story.
12. The Trial Court also pointed out several infirmities and contradictions (para 18). Yet it has chosen to ignore the same and believe the story which already suffered a dent, almost beyond repair, by acquittal of the co-accused on the same evidence. In so doing the Trial Court has constructed a new. story inconsistent with the First Information Report. This is palpably wrong. It is, thus, quite unsafe to sustain conviction on evidence furnished by PW-7 and PW-8.
13. We are thus, of the opinion that the learned Sessions Judge has not applied the correct judicial principles in evaluating the evidence and as such take conclusions reached by him are clearly vitiated being unwarranted from the material on record. We find that the evidence is not only unreliable, but is also insufficient and inconclusive. The reliance on decision cited in the impugned judgment is demonstrably misplaced. They are just inapplicable to these facts. It is also strange indeed that no report was obtained from the Chemical Examiner with regard to the use of the alleged knife so as to confirm the presence of blood on it. The judgment, in short, is based on conjectures and surmises and the learned Judge has drawn inferences out of “airy-nothing” (sic). One is obvioulsy obliged to get rid of the riddle.
14. When such is the position in the case, we have compelling reasons to reverse the judgment impugned herein.
15. In such a quagmire, we may also observe that there did not seem to be any motive either worth the name which could have lent assurance to the prosecution case. PW-7 and PW-8, the principal witnesses, are found to be unreliable for the reasons stated above. Our doubts are thus, not dispelled and as such we remain quite, unsatisfied on such slender evidence. There is, thus, no legal evidence to sustain the conviction. The appellant is, consequently, entitled to get benefit of doubt.
16. Upto a point, we may share the concern of the learned Sessions Judge that the society is becoming totally indifferent even to such ghastly and gruesome murders and none even shows the surge of an urge to speak the truth so as to assist and aid the course of justice. But then verdict of guilt on less than legal and sufficient material is no answer to this concern. And every case needs to be examined objectively without being obsessed by any concern whatsoever. Who can dispute that pious job of the Judge is only to “Judge” the case and not to sermonise at all. Periphery is clear. He tries the case, not the man. So much for the day.
17. For the foregoing reasons, we must exterminate the verdict. We thus set aside the judgment of the Trial Court and acquit the appellant of the charges levelled against him. The conviction and sentence are thus quashed. The appellant is on bail. His bail-bonds are discharged.