JUDGMENT
1. The accused appeals.
2. Saiful Sheikh, the appellant in this appeal was found guilty for an offence under Section 302 IPC and was sentenced to imprisonment for life on the allegation that he murdered the deceased, Atul Sheikh, on the early hours of 25.3.1984. The present appeal is against the said conviction and sentence.
3. The case of the prosecution can be briefly summarized as follows:
PW 7 Sabiuddin is the paternal uncle of the deceased. There was a land dispute pending between PW 7 and his brother, who is the appellant in this appeal. On 25.3.1984, the deceased Atul Sheikh left the house for his field. While he was at the field, the appellant went there and cut the deceased on his neck with hasua. It was witnessed by PW 5 Ilyas Sheikh. Thereafter PW 5 ran away from the place on seeing the attack on the deceased. PW 7 later went to the field only to find his nephew lying dead with injuries. He informed the Village Muk-hiya who advised him to go to the police station and give a complaint. PW 7 went to the police station and gave Ext. 3, the fardbeyan. A crime was registered and investigation was taken up by PW 8 Shive Kumar Ratna. He conducted inquest over the dead body on reaching the scene of occurrence and prepared the inquest report, Ext. 6. After the inquest, the dead body was sent to the hospital for autopsy.
4. On receipt of the requisition, PW 6, Dr. Madan Mohan Prasad Sinha, conducted autopsy on the dead body and he found a cut injury on the root of the back of the neck cutting the structures including the bone. He noticed another cut injury on the back of the neck at the level of the ear measuring 4″ x 2-1/2″ x 1″. The Doctor issued Ext. 2, the post-mortem certificate, with his opinion that the deceased would have died on account of hemorrhage due to the injury No. 1.
5. After completion of the investigation, the final report was filed against the appellant. When the appellant was questioned under Section 313, Cr PC on the incriminating circumstances appearing against him, he denied all the incriminating circumstances.
6. Learned Counsel appearing for the appellant submits that the evidence of PW 5 that he saw the occurrence is too artificial to be believed and in fact, he was a chance witness. According to the counsel, the findings of the post-mortem Doctor, when he conducted autopsy on the dead body of the deceased, which are found noted in the postmortem certificate, Ext. 2, will belie the theory of the prosecution that the deceased was cut on the morning of 25.3.1984 and it was witnessed by PW 5. On the above contention, we have heard Mr. T.N. Verma, learned Counsel appearing for the State.
7. There is no dispute that Atul Sheikh died on account of homicidal violence and the same stands proved through the medical evidence of the Doctor, PW 6, who conducted autopsy and issued Ext. 2, the post-mortem certificate, wherein we find that the Doctor noted the injuries found on the dead body, when he conducted autopsy. We, on the medical evidence, hold that the deceased Atul Sheikh died on account of homicidal violence.
8. The prosecution, in order to establish that Atul Sheikh was murdered by the accused-appellant, relied upon the evidence of PW 5. According to PW 5, he saw the appellant cutting the deceased with hansua on the neck and that thereafter he informed the Village Mukhiya. It is the evidence of PW 7, paternal uncle of the deceased, that when he went to the field, he found his nephew lying dead with injuries and that he informed the Village Mukhiya, who advised him to give a complaint at the police station and that he gave Ext. 3, the fardbeyan. We have now to consider the evidence of PW 5 to find out whether he is a real eye-witness and whether the occurrence could have taken pace on the morning of 25.3.1984. Though PW 5 claimed that the deceased was cut to death by the accused on the morning of 25.3.1984, we find it difficult to accept his evidence. In his evidence, PW 5 has stated that on seeing the attack, he ran away from the place and later informed the Village Mukhiya. According to the prosecution, the Village Mukhiya was, in fact, informed by PW 7 to the effect that his nephew is lying dead with injuries. Had any information to the Village Mukhiya been given by PW 5 about the attack on the deceased by the appellant, then PW 7 would have been informed by the Village Mukhiya that he has already received information about the murder of Atual Sheikh and that the said Atul Sheikh was cut to death by the appellant. There is no such evidence available on record. We are unable to accept the prosecution case that the deceased was cut to death on the morning of 25.3.1984. If the deceased was cut with hansua by the accused on the morning of 25.3.1984, then the Doctor could not have found undigested food in the stomach of the deceased. There is no evidence on record to show that the deceased had taken meal in the early hours of 25.3.1984 before he left for his field. In the absence of any evidence to show that the deceased had his meal before he left for his field and in view of the fact that no person normally takes meal in the early hours of the morning, we find it difficult to comprehend the fact that the deceased was murdered at the early hours of 25.3.1984. The undigested food found in the stomach of the deceased makes us believe that Atul Sheikh must have met his end on the previous night after he had his meal and the prosecution has project PW 5 as a witness to the occurrence. We, therefore, do not accept the evidence of PW 5 and we find it unsafe to uphold the conviction of the appellant on his evidence. We, accordingly, set aside the order of conviction and sentence imposed upon the appellant and acquit him. It is reported that the appellant is on bail. He is discharged from his bail bonds. The appeal is allowed.