State of Uttar Pradesh v. Mooley — 1992 DIGILAW 1089 (ALL)

S. K. MOOKERJI, J. ( 1 ) THIS Government Appeal has been file against the accused Mooley and Om Pal alias Pali, both residents of Pabla, Police-station Incholi, district Meerut, who have been acquitted by the learned V Additional District and Sessions Judge, Meerut, under section 307, I. P. C. and accused Om pal under section 25 Arms Act by judgment dated 1. 3. 1979. It is also relevant to point out that another accused Ram Phal was also acquitted of the charge punishable under Indian Penal However, no appeal against the acquittal order passed in favour of co-accused Ram phal is before us. ( 2 ) BEFORE going in to the details it is necessary to point out that the occurrence took place on 19. 4. 1977 at about 12 noon and the order of acquittal has been passed on 1. 3. 1979. The aforesaid Government Appeal No. 1774 of 1979 was admitted by this Court on 5. 10. 1979. We have heard learned counsel for the State and also Sri Ram Niwas Sharma, learned counsel for the accusedrespondents-Mooley and Om pal alias Pali at length. ( 3 ) IT is also relevant to point out that there are five witnesses in the present case and one witness Kasim Ali has been procured on behalf of the defence as D. W. 1. P. W. 1, Baboo Ram and his brother P. W. 2, Ram Saran Das, are injured eye witnesses P. W. 1, Baboo Ram, was aged about 87 years and P. W. 2, Ram Saran Das, was aged about 55 years at the time of their depositions: There is another eye witness. P. W. 3, Saghir Ahmad, P. W. 4, Jagat Singh is Investigating Officer and P. W. 5, Dr. G. D. Sharma is Medical Officer. It is averred that both the respondents. Mooley and Om pal alias Pali were armed with pharsas. In addition, accused Om Pal alias Pali was also armed with revolver. It is also relevant to point out that accused Om Pal alias Pali was aged about 35 years. According to P. W. 1, Baboo Ram, he knew accused Mooley. Om Pal alias Pali and Ram Phal from before the present occurrence. In addition, accused Om Pal alias Pali was also armed with revolver. It is also relevant to point out that accused Om Pal alias Pali was aged about 35 years. According to P. W. 1, Baboo Ram, he knew accused Mooley. Om Pal alias Pali and Ram Phal from before the present occurrence. ( 4 ) HE has also stated that a litigation was going on with them for cutting the crops, which was also registered as police case and on the date of the occurrence the above case was fixed for recording the evidence against the accused persons. It is also stated by him that 45 days before the present occurrence Mooley, Pali and two others had cut away the gram crop from his field. P. W. 1 Baboo Ram, had also lodged a written report with the police in respect of the above matter and the police had registered a case against Mooley, Om Pal alias Pali and two others. He has further stated that about 1-1/4 years before the date of his deposition (2. 1. 1979) the occurrence took place at 12 p. m. (noon) in which he (Baboo Ram) and his brother Ram Saran Das, were assaulted. ( 5 ) ON the date of occurrence, it is stated that Baboo Ram was accompanied by his brother and had gone to the police-station in the morning and, thereafter, had gone to his chaks which are situated in the jungle of village Pabla along with the police. They had gone to the chak as accused had cut away the wheat crop after cutting gram crops. He has also made an application regarding that incident a day before the date of the present occurrence. He has gone to the police-station for making inquiry about this matter and had also gone to the chak along with the police personnel. Baboo Ram-and Ram Saran Dass were returning from there on a motor-cycle, which was driven by P. W. 1, Baboo Ram, and his brother P. W. 2, Ram Saran Das, was sitting on the pillion. It is further disclosed by him that when they entered the bridge on the river of village Saini, they saw accused on the other side blucking the road by placing a BUGGI. The bridge runs north-south. It is further disclosed by him that when they entered the bridge on the river of village Saini, they saw accused on the other side blucking the road by placing a BUGGI. The bridge runs north-south. It is further stated that after blocking the road Om Pal alias Pali opened fire on them which did not hit Baboo Ram and he escaped narrowly. Thereafter, P. W. 2, Ram Saran Das, brother of P. W. 1, Baboo Ram,jumped out from the pillion of the motor -cycle and caught held the hands of Dm Pal alias Pali in which he was holding the revolver. Thereafter, second shot was fired which did not hit anyone. This revolver was snatched away by Ram Saran Das from accused Om Pal alias Bali. Thereafter all the three accused attacked both P. W. 1. Baboo Ram and P. W. 2, Ram Saran Das, with pharsa; He clarified that after Om Pal alias Pali was received of the revolver he had taken. out a pharsa from the buggi. He added that on his raising alarm witnesses from the direction of Mauja Saini had appeared on the scene of the occurrence. On seeing the witnesses, the accused got down of the bridge and ran away towards the west. When accused Mooley was attacking them his brother, Ram Saran Das, had snatched the pharsa also from the hands of Mooley. Both, P. W. 1, Baboo Ram and P. W. 2, Ram Saran Das, suffered injures caused by pharsa. The country made revolver, which was snatched away by P. W. 2, Ram Saran Das, from Om Pal alias Pali, contained two fired cartridges in Ext. 1 and the pharsa, which was snatched, is Ext. 2. He has identified these weapons. He has further stated that blood was present on the bridge. He has further stated that his brother Ram Saran Das and other witnesses helped him Baboo Ram to board on a bus, which had arrived soon thereafter for going to the hospital. He has further added that he got noted the names of the persons, who had arrived there. He was sent to the hospital as his condition deteriorated. He got himself medically examined at the Government Hospital, Meerut on that date, In the evening, the Investigating officer took into his possession the blood stained clothes of Ram Saran Das, A recovery memo was prepared which is marked as Ex. He was sent to the hospital as his condition deteriorated. He got himself medically examined at the Government Hospital, Meerut on that date, In the evening, the Investigating officer took into his possession the blood stained clothes of Ram Saran Das, A recovery memo was prepared which is marked as Ex. Ka. 1. He stated that names of the witnesses were also told to the Investigating officer. ( 6 ) P. W. 2 is, Ram Saran Pas, aged about 55 years, has deposed that the occurrence had taken place at about 12 noon. He and his brother Baboo Ram were coming on a motor-cycle, which was driven by Baboo Ram and he was sitting on its pillion. When they reached near the bridge in, village Saini and Just entered the bridge he saw accused blocking the passage by placing BUGGI and pali fired from his revolver. He stated that he pounced upon pali and took possession of the revolver, simultaneously, second shot was fired and he snatched away the revolver from Pali. Thereafter the accused stated attacking with their pharsa. There were three persons, who were attacking with the pharsa and out of them P. W. 2, Ram Saran Das, knew Pali and Mooley, who were present in the court. The third accused was not known to him. The third accused was also armed with pharsa. He has stated that he and his brother received pharsa injuries. He has also stated that third accused (Ram Phal) was identified by him in the jail. Ram Phalwas also identified by him in the court. After the shot was fired P. W. 2, Ram Saran Das and his brother raised alarm, which attracted 10-15 persons from the side of the village Saini. On seeing them, the accused persons ran away towards west. Thereafter he had sent his brother to Meerut Hospital by bus. He has also stated that he had gone to the police station Incholi for lodging the First Information Report. He had carried with him both the revolver and pharsa, Ex. 1 and Ext. II, which were snatched by him. He disclosed that he orally made the report, which was taken by head Constable and after writing the same it was read out to him. He had also proved his signature on the report, which is Ext Ka-2. He had carried with him both the revolver and pharsa, Ex. 1 and Ext. II, which were snatched by him. He disclosed that he orally made the report, which was taken by head Constable and after writing the same it was read out to him. He had also proved his signature on the report, which is Ext Ka-2. He has stated that he had deposited both the pharsa and revolver along with two fired cartridges at the police station. He submitted that in the evening he got himself medically examined at the Government Hospital, He thereafter added that both he and his brother had given blood stained clothes to the police. ( 7 ) P. W. 3 is Saghir Ahmad. He identified the accused in the court. He submitted that on the date of the occurrence he had gone to village Saini and while he was returning around 12 noon and waiting for the bus he heard the noise of firing. Others were also standing there and they ran towards the bridge from where the sound of gun shot was heard. He saw that Ram Saran Das, who was presentin the court, was holding wrists of Pati, who was holding a revolver. The shot was fired in the air and thereafter Ram Saran Das snatched away the revolver from Pali. All the three accused were armed with pharsa. They attacked both Baboo Ram and Ram Saran Das with Pharsa which resulted in their injures. Thereafter Ram Saran Das again snatched away, the pharsa from the hands of Mooley. He shouted for help. There upon the accused tied towards the west. Both Ram Saran Das and Baboo Ram received injuries. He has also stated that when he arrived at the place of the occurrence the BUGGI was standing on the bridge. He also deposed that the injured was sent for medical aid by bus. P. W. 5, Dr. G. D. Sharma, examined the injured witnesses and prepared medical reports, Ext. Ka-13 and Ext Ka-14. No doubt, he stated that when he examined the injuries he had received the same in the Accident Register. Thereafter, P. W. 4. Jagat Singh, Investigating Officer investigated the matter and registered a case, as indicated above. He had also taken blood stained earth from the placed of the occurrence and also took into his possession BUGGIBHAISA. He had also prepared the site-plan and proved the same. Thereafter, P. W. 4. Jagat Singh, Investigating Officer investigated the matter and registered a case, as indicated above. He had also taken blood stained earth from the placed of the occurrence and also took into his possession BUGGIBHAISA. He had also prepared the site-plan and proved the same. After recording the statement of the witnesses and following the procedure he submitted charge-sheet against all the accused. P. W. 1, Baboo Ram, was sent to Meerut Hospital, as stated above, where he was medically examined by Dr. G. D. Sharma P. W. 5. The injury report is Ext Ka-14. His examination was conducted at 1. 10 P. M. on the same day and the doctor found the following injures, on his person. 1. Incised wound C. shaped 10 cm. x 1 cm. x bone deep on the middle of right side of nose extending to middle of upper lip below and upper part of right side of cheek. Ad. X-ray. 2. Traumatic swelling 8 cm. x 5 cm. abrasion 0. 5 cm. x 0. 5 cm. on the back of right forearm upper part. Ad. X ray. 3. Abrasion 1 cm. x 1 cm. on the lateral part of right side of abdomen 11 cm. above the hip bone ad, X-ray. 4. Abrasion 1 cm. x 1 cm. on the front of left knee. The duration of the injury was reported to be fresh and it was further said that injury No. 1 is caused by sharp-edged weapon and was kept under observation and injuries Nos. 2 and 3 were caused by friction and were, kept under observation and injury No. 4 was also caused by friction. The other injured Ram Saran was examined by the doctor at 1. 45 P. M. vide report Ext. Ka-15 and he had the following injures. 1. Incised wound 7 cm. x 0. 5 cm. x bone deep on the left side front of head and forehead 4 cm above left eye-brow. 2. Incised wound 5 cm. x 0. 5 x bone deep on the left side of face 4 cm. in front of left ear. 3. Abraded contusion 10 cm. x 2. 5 cm. on the front of right upper arm middle. 4. Abrasion 1 cm. x 1 cm. on the front of left knee. 5. Incised wound 3. 5 cm. x 0. 5 cm. x 0. 5 x bone deep on the left side of face 4 cm. in front of left ear. 3. Abraded contusion 10 cm. x 2. 5 cm. on the front of right upper arm middle. 4. Abrasion 1 cm. x 1 cm. on the front of left knee. 5. Incised wound 3. 5 cm. x 0. 5 cm. x skin deep on the medical aspect of left foot. Except injures 3 and 4, the other injures were caused by sharp edged weapon and injury Nos. 3 and 4 were caused by friction and duration was fresh. There is no fire arm injury on any victim. ( 8 ) ULTIMATELY, the matter came up before the learned V Additional District and Sessions Judge, Meerut, who after examining the entire materials on record acquitted all the three accused persons in the case by order dated 1. 3. 1979, as indicated above. ( 9 ) THE learned Sessions Judge held that there have been litigations between the parties in respect of theft of crops and also civil litigation in respect of the land, as such, there was enmity between P. W. 1, Baboo Ram, P. W. 2, Ram Saran Das and the respondents in the case. The learned Sessions Judge also observed that due to the above enmity there was strong suspicion that the present occurrence might have taken place. The learned Sessions Judge held that the relations between the parties were very strained. ( 10 ) NO doubt, enmity is a double edged weapon. On the one hand enmity can be a good reason for committing the crime but on the other hand false implication, due to enmity, cannot be excluded. Thus, the learned Sessions Judge carefully scrutinised the entire evidence on record, after seeing the demesnour of the witnesses in the witness box proceeded before him. The learned Sessions Judge held the presence of P. W. 2, Ram Saran Das, at the spot, doubtful on the ground that he was a chance witnesses. The learned Sessions Judge also pointed out material contradictions on the question of meeting and accompanying P. W. 1, Baboo Ram with Ram Saran Das. It was also held that the prosecution has not been able to prove that the incident has taken place in the manner as stated by the prosecution. The learned Sessions Judge also pointed out material contradictions on the question of meeting and accompanying P. W. 1, Baboo Ram with Ram Saran Das. It was also held that the prosecution has not been able to prove that the incident has taken place in the manner as stated by the prosecution. The court below also found that the evidence on record is not corroborated by the medical evidence. Presence of P. W. 3, Saghir Ahmad, has also been doubted. The learned Sessions Judge has also held that the evidence of the eye witnesses did not inspire confidence. The above, findings have been recorded after discussing the materials on record including the evidence. ( 11 ) WE have heard learned counsel for the State and also learned counsel for the respondents at great length and have also examined the entire material on record. It will be relevant to point out the charges framed against the respondents: charge: i, Harish Chandra Saxena, V Addi. Sessions Judge, Meerut, did hereby charge you Mooley son of Bansi as under. That you along with co-accused on 19th day of April 1977 at about 12 noon in the jungle of village Saini on the bridge of the river, you did commit an act, to wit, assaulted Babu Ram with such intention and under such circumstances that if by that act you had caused the death of Babu Ram, you would have been guilty of murder and that you caused hurt to the said Babu Ram and thereby committed an ofference punishable u/s. 307 I. P. C. and within the cognizance of this court of sessions. And I hereby direct that you be tried by this court on the aforesaid charge. Sd/- Harish Chandra Saxena, 22. 9. 1978 v. Addi. Sessions Judge, Meerut 22. 9. 1978. Charge read over and explained to the accused in Hindi who pleads not guilty and claims to be tried. Sd!- Harish Chandra Saxena, 22. 9. 1978 v. Addi. District and Sessions Judge, Meerut 22. 9. 1978. Charge: i, Harish Chandra Saxepa, V. Add. Sd/- Harish Chandra Saxena, 22. 9. 1978 v. Addi. Sessions Judge, Meerut 22. 9. 1978. Charge read over and explained to the accused in Hindi who pleads not guilty and claims to be tried. Sd!- Harish Chandra Saxena, 22. 9. 1978 v. Addi. District and Sessions Judge, Meerut 22. 9. 1978. Charge: i, Harish Chandra Saxepa, V. Add. Sessions Judge Meerut, do hereby Charge you Om Pal son of Harbans as under: that you along with co-accused on the 19th day of April 1977 at about 12 noon inthe jungle of village saini on the bridge of river, you did commit an act, to wit, assaulted Babu Ram with such intention and under such circumstances that if by that act you had caused the death of Babu Ram you would have been guilty of murder and that you caused hurt to the said Babu Ram and thereby committed an offence punishable u/s. 307, I. P. C. and within the cognizance of this Court of Sessions. Secondly, that you on the above date, time and place, were found in possession of a revolver, for the possession of which you had no licence and thereby commitred an offence punishable u/s. 25 (a) Arms Act and within my cognizance. And I hereby direct that you be tried by this court on the aforesaid charges. Sd/harish Chandra Saxena, 22. 09. 1978 v. Addi. Sessions Judge, 22. 9. 1978, charge read over and explained to the accused, who pleads not guilty and claims to be tried. Sd! Harish Chandra Saxena, v. Addi. Sessions Judge, Meerut 22. 9. 1978, ( 12 ) IT is also necessary to point out that we have also examined the statements made by the respondents under section 313, Cr. P. C. P. W. 1, Baboo Ram, has stated in his cross-examination in para 19 of his deposition, that he did not remember whether three cases regarding theft of Crops were lodged in the court of the magistrate. He has also submitted that no one was punished in the case. In para 20 of his crossexamination he has further stated that he did not remember whether he got injunction in Civil Suit filed against the accused persons. Thus, it is clear that P. W. 1, Baboo Ram, could neither give details regarding injunction in Civil Suit nor about the Criminal cases regzrding theft of the crops. In para 20 of his crossexamination he has further stated that he did not remember whether he got injunction in Civil Suit filed against the accused persons. Thus, it is clear that P. W. 1, Baboo Ram, could neither give details regarding injunction in Civil Suit nor about the Criminal cases regzrding theft of the crops. The circumstances arising out ofthe above litigations were made the basis for the motive in the present crime by the prosecution. Thus, the foundation for the motive in the present crime, as disclosed by the prosecution, is not free from doubt. In paragraph 22 of his cross-examination p. W. 1. Baboo Ram, has stated that his brother Ram Saran Das met him on the date of the occurrence at about 9,9. 30 A. M. In village Saini when he (Baboo Ram) was going from Meerut. He could not remember whether he had sent for his brother Ram Saran Das. He further deposed that Ram Saran Das was returning on a Tongain the morning. He further submitted that Ram Saran Das met him in the middle of the bridge of village saini in Tonga in which Kripal and other 4-5 persons were sitting. However, P. W. 2, Ram Saran Das, in his cross-examination, in para 8, has stated that on the date of occurrence he was going to Meerut and he was not asked to come by P. W. 1, Baboo Ram P. W. 1, Baboo Ram, had met him on Motor Cycle near village saini and in the Tonga on which he (Ram Saran Das) was coming was also shared by one lady, Sardar Singh only, besides Tongawala, From the above statements there appears to be a contradiction regarding the occupants of Tonga, although, both P. W. 1, Baboo Ram and P. W. 2, Ram Saran Das, claimed themselves to be the eye witnesses. P. W. 1, Baboo Ram, in para 25 of his cross-examimition, said that when he saw the BUGGI, for the first time, the distance was about 100 yards. He saw Pali from there and also saw other two accused when the road was blocked by BUGGI. He has further stated in para 26 of his cross-examination that Pali had fired the shot from a distance of 15. 20 yards. He further stated that Pali had fired the shot. He saw Pali from there and also saw other two accused when the road was blocked by BUGGI. He has further stated in para 26 of his cross-examination that Pali had fired the shot from a distance of 15. 20 yards. He further stated that Pali had fired the shot. He, however, added that one shot deflected by hitting his body which caused bleeding. The second shot was fired in the airwhen his brother, Ram Saran Das, caught hole of the wrists of pali. He also denied the suggestions that before the shots were fired on him he could not remember whether Ram Saran Das received any injury in the scuffle while snatching the revolver from Om Pal alias Pali, P. W. 1, Baboo Ram, also stated in his cross-examination that he had received one pharsa injury, although several attempts were made. He could not remember that from whose hands he has received pharsa injuries. ( 13 ) THE above cross-examination makes it clear that P. W. 1, Baboo Ram, appeared at the spot on a motor-cycle. He saw BUGGI from a distance of 100 yards. He had full idea of the enmity alleged by him still he did not try to run away from the scene of the occurrence. Pali opened fire from a distance of 15. 20 yards even then they did not retreat. On the contrary it is stated that Ram Saran Das, a man of aged about 57 years, pounced upon pali, who is aged about 35 years for snatching the revolver. It has come in record that after Om Pal alias Pali was relieved of his revolver he took out a pharsa from the Buggi and engaged himself in assaulting the injured while accused Mooley was assaulting P. W. 1, Baboo Ram, P. W. , Ram Saran Das, snatched pharsa. The age of accused Mooley, as disclosed from the record, was 42 years. In view of the above facts and circumstances, we have grave doubt about the prosecution story. Normally, the behaviour of P. W. 1, Baboo Ram and P. W. 2, Ram Saran Das, who were in possession of Motor-cycle and were unarmed would have, been that they should have retreated. Even after the firing from 15. 20 yards they remained there. In view of the above facts and circumstances, we have grave doubt about the prosecution story. Normally, the behaviour of P. W. 1, Baboo Ram and P. W. 2, Ram Saran Das, who were in possession of Motor-cycle and were unarmed would have, been that they should have retreated. Even after the firing from 15. 20 yards they remained there. P. W. 2, Ram Saran Das, a man of aged about 57 years, was every time snatching arms especially when the accused were within the age group of 3542 years. The above circumstances naturally make the prosecution story doubtful. It will be very unsafe to held accused guilty on the basis of evidence of P. W. 1, Baboo Ram and P. W. 2 Ram Saran Das. It cannot be ruled out that P. W. 1, baboo Ram and P. W. 2, Ram Saran Das, on grave suspicion, have implicated the accused Mooley and Om Pal alias Pali. It has come in evidence of P. W. 1, Baboo Ram, that 10 or 15 witnesses came on the scene of occurrence after the shots were fired. In cross-examination P. W. 1, Baboo Ram, could not say whether these persons belong to village Saini. He has further added that 4. 5 witnesses themselves gave their names in writing to P. W. 1, Baboo Ram thereafter contradicted himself by saying that it was wrong to say that he has himself noted down the names of the witnesses, although, in his examination-in-chief in para 12 he had stated that he got the names noted. He admitted to have stated to the Investigating officer that he had noted down the names and addresses of the witnesses. He has also stated that that time of noting down the names of the witnesses his brother (Ram Saran Das) was also present there. It is quite relevant to point out that the First Information Report was Ileged by P. W. 2, Ram Saran Das, brother of P. W. 1, Baboo Ram, promptly. In the First Information Report no name of the witnesses was disclosed by Ram Saran Das. Further, P. W. , Ram Saran Das, in his cross-examination, in para 9, has stated that neither the name of the witnesses, who appeared at the place of occurrence were known to him nor he know from which place they had come. In the First Information Report no name of the witnesses was disclosed by Ram Saran Das. Further, P. W. , Ram Saran Das, in his cross-examination, in para 9, has stated that neither the name of the witnesses, who appeared at the place of occurrence were known to him nor he know from which place they had come. He has made it clear that village Saini is at a distance of 25,30 yards from the place of occurrence. He further stated in his cross-examination that in his presence Baboo Ram had himself taken down the name of the witnesses on a piece of paper. P. W. 4, Jagat Singh, Investigation Officer, in para 8 of his cross-examination stated that Baboo Ram had given him a piece of paper, which contained the named and addresses of the witnesses but he did not take the same in his possession. From the above circumstances and also from the evidence given by P. W. 1, Baboo Ram and P. W. 2, Ram Saran Das, it is clear that at the time of the occurrence, the case of the prosecution is, witnesses were present and their names were also available on a piece of paper but that piece of paper was never brought on record. Thus, it is clear that the prosecution was not fair in with holding the names of such witnesses, who were available at the scene of the occurrence. In this case, the piece of paper either written by P. W. 1, Baboo Ram, himself or got it written was very material for finding out whether the independent witnesses were available and also to scrutinise the presence of P. W. 3, Saghir Ahmad. P. W. 3, Saghir Ahmad, has categorically stated that he was a mistry and had come to village Saini for measuring the gate of one Nathoo Pandit. He has further stated that his name was recorded in the slip mentioned above. He says that he was waiting for a bus at a distance of 40,50 yards from the place of the occurrence and on hearing the gun shot he had appeared at the scene of the occurrence. He also stated that there were other 10. 15 persons waiting for the bus including one Jagdish. He says that he was waiting for a bus at a distance of 40,50 yards from the place of the occurrence and on hearing the gun shot he had appeared at the scene of the occurrence. He also stated that there were other 10. 15 persons waiting for the bus including one Jagdish. He further stated that he himself got his name and address noted to P. W. 1 Baboo Ram and the name and address was noted by somebody else, whose name he did not know. He has also stated that all the four assailants were armed with pharsa, although, the First Information Report shows that there were only three assailants. Thus, P. W. 3, Saghir Ahmad, is wholly a chance witness. He has also stated to at his name was noted down on the piece of paper on which the names and addresses of the witnesses were noted down. Even, P. W. 4, Jagat Singh, has stated in para 3 of his cross-examination that P. W. 1, Baboo Ram, had handed over the piece of paper in the hospital containing the names and addresses of the witnesses. Absence of this piece of paper which contains the names and addresses of the witnesses caste serious doubt on the prosecution story. It is not clear why the prosecution has suppressed or failed to produce the witnesses who were named and whose addresses were noted on the piece of paper, quoted above. Thus we are of the opinion that in view of the above facts and circumstances it will not be safe to rely upon the evidence of P. W. 1, Baboo Ram, P. W. 2, Ram Saran Das and P. W. 3, Saghir Ahmad. ( 14 ) ONE more important question arises in the case is whether this court shall be justified in discarding the testimony of the injured witnesses, P. W. 1, Baboo Ram and P. W. 2 Ram Saran Das. The First Information Report was promptly lodged and medical examination was also conducted in time. ( 14 ) ONE more important question arises in the case is whether this court shall be justified in discarding the testimony of the injured witnesses, P. W. 1, Baboo Ram and P. W. 2 Ram Saran Das. The First Information Report was promptly lodged and medical examination was also conducted in time. We have perused the site-plan and also examined the materials on record including the depositions made by the two injured witnesses, P. W. 1, Baboo Ram; P. W. 2, Ram Saran Das besides P. W. 3, Saghir Ahmed and also the evidence of P. W. 4 Jagat Singh, Investigating Officer, From the materials on records we are of the opinion that the occurrence had taken place in a place where nobody was available on the vicinity. No doubt, it has come on record that village Saini is at a distance of about 20,25 yards away from the place of the occurrence but unfortunately, no witness has been examined from the village Saini. Thus, it cannot be ruled out that the witnesses were not available to support the prosecution case. It may be possible that some unknown persons might have assaulted P. W. 1, Baboo Ram and P. W. 2, Ram Saran Das but due to the enmity the names of all the accused persons were involved in the present case. ( 15 ) BESIDES the two injured witnesses, P. W. 1, Baboo Ram and P. W. 2, Ram Saran Das, who are interested witnesses and inimical to the accused, the other witnesses produced is P. W. 3, Saghir Ahmed in an attempt to introduce independent witness. However, it will be unsafe to rely upon the testimony of P. W. 3, Saghir Ahmad, whose presence itself is doubtful at the scene of the occurrence. He has stated in his cross-examination that he knew the accused persons because they used to visit his relation, According to him he had gone to pable village 10. 15 times before the occurrence. He had gone to Kasim, Ironsmith, who according to him was his cousion. He had given the parentage of Kasim wrongly but during his subsequent cross-examination, on the next date. He corrected it. Kasim Ali has been examined as D. W. 1 by the defence and he has categorically deposed that Saghir Ahmad is not his relation nor he ever visited him. He had given the parentage of Kasim wrongly but during his subsequent cross-examination, on the next date. He corrected it. Kasim Ali has been examined as D. W. 1 by the defence and he has categorically deposed that Saghir Ahmad is not his relation nor he ever visited him. In his cross-examination, he again categorically deposed that he does not know Saghir Ahmad. In any case, his presence at the spot be coffees doubtful and it is not safe to rely on his testimony. There is no ring of truth in his testimony in the circumstances and facts of the case already discussed above. The prosecution has failed to prove its case beyond reasonable doubt. ( 16 ) LEARNED counsel for the respondents urged. that in the charges framed against the accused- respondents, there is no mention of assault by pharsa for making out a case under section 307, I. P. C. nor there is any charge regarding assault on Ram Saran Das. It was also urged on behalf of the learned counsel for the respondents that P. W. 5. ( 17 ) DR. G. D. Sharma, has also not said anything in his entire testimony regarding the nature of injures on the person of P. W. 1, Baboo Ram and P. W. 2, Ram Saran Das, which will constitute an offence under section 307, I. P. C. ( 18 ) NO doubt, the learned Additional Sessions Judge has not framed the charges properly but that by itself does not vitiate the trial. As omission to frame charge or absence or error in charge does not invalidate the finding of acquittal unless a failure of justice has, in fact, been occasioned thereby. In the present case, the accused have not been prejudiced at all as they very well know the prosecution case against them and questions were put to them under section 313 Cr. P. C. also in that regard. Even the learned counsel for the respondents was unable to say that the respondents had, in fact, been prejudiced. These questions need to be gone into in detail in view of our discussion above. ( 19 ) THIS is a Government Appeal against the order of acquittal. The Government Appeal has come up before us after a lapse of almost 12 years on 15/8/1962. These questions need to be gone into in detail in view of our discussion above. ( 19 ) THIS is a Government Appeal against the order of acquittal. The Government Appeal has come up before us after a lapse of almost 12 years on 15/8/1962. The accused persons were acquitted by the learned V Additional District and Sessions Judge, Meerut, in the year 1979. It will be relevant to point out that on the set of certain facts and evidence on record if two views are possible, than, one adopted by the court below shall not normally be up-set by recording a finding adopting the other possible view on the basis of the same evidence. In this view of the matter, also we are not inclined to interfere with the judgment of the court below by substituting our new findings on the basis of the same evidence and materials on record. ( 20 ) IN Ram Ji Surya v. State of Maharashera the Supreme Court has held that the reasons for reversing a judgment of acquittal should be cogent and if two views are reasonably possible, the appellate court should be slow in interfering with the judgment of the trial court even if it is possible for it to take a different view after a process of laborious reasoning. There is no substantial and compelling reason in the present case in arriving at decision different from the trial Court on the basis of the evidence in the present case. ( 21 ) IN the result, we dismiss the Government Appeal filed against Mooley and Om Pal alias Pali and upheld the judgment of acquittal recorded in their favour by the learned V. Additional District and Sessions Judge, Meerut by his order dated 1/3/1979. The respondents Mooley and am Pal alias Pali are on bail and their bail bonds, if any, are hereby discharged. Appeal dismissed. . .