JUDGMENT G.S.N. Tripathi 1. Additional Sessions Judge, Dehradun, vide his Judgment and order dated 22.8.79 has convicted the accused Vipin @ Prince, Vijay @ Pappu and Suresh on a charge under Section 304, Sub-Clause II, after acquitting them on the charge under Section 302, read with Section 34, I.P.C. All the three accused have been sentenced to undergo 3 years R.I. The aforesaid judgment and order was passed in S.T. No. 119 of 78, State v. Vipin and others of the district of Dehradun. 2. The case started on the basis of a written F.I.R. lodged by P.W. 8 Indra Prakash at P.S., dated 23.7.78 at 12.10 p.m. The incident is said to have taken place on 22.7.78 around 9.30 p.m. behind the Hanuman temple. The distance of the police station is hardly two furlongs from the place of occurrence. The simple allegation in the F.I.R. is that the accused Vijay has done mar-pit with his son Sushil Kumar, causing him injuries. The injured had been admitted in the hospital by accused Vipin Kumar Jain. The injured had been admitted to the District Hospital, Dehradun in the same night at 10.05 p.m. and had been examined by P.W. 3 Dr. Jakhmola. He had found the injuries as noted by the learned Sessions Judge at pages 3 and 4 of his judgment. Hence those injuries are not being repeated. In the opinion of the Doctor Jakhmola the condition of the patient was normal. His blood pressure and pulse rates were also normal. However, the patient was kept under observation. The injuries were fresh. Unfortunately, the patient died and postmortem examination was conducted by Dr. J. K. Gupta, P.W. 4 on 24.7.78. The ante-mortem injuries found by Dr. Gupta have also been noted by the learned Additional Sessions Judge in the body of his judgment. In his opinion, the injuries could have been caused by a blunt and pointed weapon and they could not normally result in the death. 3. The investigation was taken in hands by P.W. 11 Sri R. S. Negi. After recording the statement of the witnesses, he prepared the site-plan. He also allegedly recovered the weapon from the accused Suresh Kumar (the theory of recovery has been disbelieved by the learned Addl. 3. The investigation was taken in hands by P.W. 11 Sri R. S. Negi. After recording the statement of the witnesses, he prepared the site-plan. He also allegedly recovered the weapon from the accused Suresh Kumar (the theory of recovery has been disbelieved by the learned Addl. Sessions Judge at page 18 of his judgment in these words : "I am unable to place reliance upon this piece of evidence about the recovery of the screw driver under Section 27 of the Evidence Act". Therefore, I do not delve deep into this matter. After interrogating the witnesses, he laid the charge sheet before the court. 4. The prosecution examined P.W.8 Sri Indra Prakash, the complainant, who happens to be the father of the deceased Sushil Kumar. He has deposed that on 22.7.78 when he returned from Saharanpur around 9.30 or 10 p.m., he learnt that the accused Vijay, Vipin and Suresh (appellants) had injured his son Sushil Kumar and Sushil Kumar was lying in the hospital. He went to the hospital. He saw his son in unconscious state. He himself became panicky and became busy in the treatment of his son. On 23.7.78, he reported the matter at the police station. Since he was confused, he could not tell the names of all the culprits. Not only this, he had washed the blood-stained clothes of his son (God knows what was the hurry for it). Later on these washed up clothes were handed over to the police. On the point of motive, he says that the accused Vijay had lent his pant to the deceased Sushil Kumar which the latter did not return despite repeated demands by the accused. All the three accused had pressed the demand for this and lastly they had threatened Sushil of dire consequences in case the pant was not returned. On the date of occurrence, he also learnt that on the pretext of showing picture, accused Suresh and Vipin had taken away his son Sushil Kumar. 5. P.W. 8 Km. Manju is the daughter of the complainant, aged about 16 years. On the date of occurrence, he also learnt that on the pretext of showing picture, accused Suresh and Vipin had taken away his son Sushil Kumar. 5. P.W. 8 Km. Manju is the daughter of the complainant, aged about 16 years. She has deposed that on 22.7.78, Vijai, P.W.I came to her house around p.m. and told her that her btother Sushil Kumar had been Injured by the accused Vijai, Vipin and accused with a weapon Pechkas in front of the shop of Mod Kapdawala and thereafter, they lodged him the scooter No. V.P.F. 5838 and had taken him to some place. At that time, her uncle Suresh (not examined) was also present. Suresh started atonce on bicycle to search for Sushil Kumar. By that time, her father Indra Prakash had not returned from Saharanpur. He returned at about 10.30 p.m. she narrated the entire information conveyed to her by Vijay to her father. Thereupon, Suresh and their father went to the hospital. Suresh also informed her father that Sushil Kumar was lying in the hospital. Thereupon, both her father and uncle started for the hospital and thereafter other family members also followed them. She also deposed about the pant episode, which has been pressed into service on the ground of motive. 6. P.W.I Vijai Kumar Jain has deposed that on the date of occurrence, he was going to take betel at his shop near the Hanuman temple. When he reached near the temple, he heard an alarm Bachao Bachao and he rushed towards the place of occurrence. There he saw the accused Suresh and Vipin catching hold of Sushil Kumar and accused Vijay pierced thrice the Pechkas in the body of Sushil Kumar. The witnesses Tara Chand, P.W.2 and Khem Singh, P.W. 5 were also present and saw the incident. He tried to save Sushil Kumar but they threatened him also. Thereafter the accused lodged Sushil Kumar in a three-wheeler numbering U.P.F. 5823 and whisked him away towards the Babuganj. At the time of the occurrence, there was electric light available. After the accused had taken away Sushil Kumar, he went to the house of the victim and informed Km. Manju and her mother about this incident. P.W.2 Tara Chand has deposed that in that night, he was returning after seeing a picture. At the time of the occurrence, there was electric light available. After the accused had taken away Sushil Kumar, he went to the house of the victim and informed Km. Manju and her mother about this incident. P.W.2 Tara Chand has deposed that in that night, he was returning after seeing a picture. When he reached near Hanuman temple, he heard an alarm and rushed towards the place of occurrence. P.W. 1 Vijai Kumar was also following him. Near the cloth shop, he saw the accused Vijai and Prince catching hold of Suresh Kumar and the accused Suresh pierced the pechkas in the body of Sushil Kumar. This witness was declared hostile and cross-examined. 7. P.W. 6 Salim is the three-Wheeler driver, who has come to depose that he had taken the injured as well as the accused to the hospital. 8. P.W. 7 Bharat Bhushan is a witness of recovery; who has been disbelieved by the learned lower court. P.W. 10 is Swaroop Singh Tyagi, who is the witness of Panchayatnama. 9. P.W. 11 is the Investigating Officer. 10. The accused in their statement under Section 313, Cr. P.C. have generally denied the allegations against them. Accused Vijay has said that on the date of occurrence, he was residing at Rishikesh. Accused Vipin, apart from denying allegations, has said that the police wanted to make him a witness in this occurrence. But he refused to oblige. Therefore, a false case has been launched against him. In fact, he lodged Sushil Kumar in the hospital, whom he saw lying injured and unconscious on the road. He got him admitted in the hospital and informed Indra Prakash, P.W.8 in the same night. On account of doing this charitable act, he has been punished by this false implication. Accused Suresh Kumar has also denied the allegations. He has said that on 25.7.78, the I.O. Sri Negi called him from his shop, severely assaulted him and confined him in Police Chowki Lakhkhi Bagh and tortured him for extarding confession regarding the recovery of Pechkus. 11. D.W.I, Suresh Chandra Gupta is a three-Wheeler Driver. He has said that on the date of occurrence, he had taken the injured to the Hospital. He was accompanied by accused Vipin. 12. D.W. 2 Bhupendra Kumar is the Manager of Filmistan Cinema. He said that no ticket for balcony was issued to the accused on that date. 11. D.W.I, Suresh Chandra Gupta is a three-Wheeler Driver. He has said that on the date of occurrence, he had taken the injured to the Hospital. He was accompanied by accused Vipin. 12. D.W. 2 Bhupendra Kumar is the Manager of Filmistan Cinema. He said that no ticket for balcony was issued to the accused on that date. After a thread-bare analysis of the entire evidence and circumstances on the record, the learned lower court concluded that the prosecution case was credible. He convicted the accused and sentenced them as noted above. 13. Feeling aggrieved, the accused have preferred these appeals. I have heard the learned counsel for the parties at stretch and gone through the record. I find that there is much force in these appeals and they deserve to be allowed. Both the aforesaid appeals are connected and the same are being decided together. 14. It appears that this case has a false start and for this reason alone, it deserves to be condemned. P.W. 9 Km. Manju deposed that before the arrival of her father from Saharanpur, Vijai, P.W.1 had conveyed her that accused Vijay, Vipin and Suresh had assaulted her brother Sushil Kumar and they had taken him towards the hospital in a three-wheeler No. U.P.F. 5823. At that time Suresh, her real uncle, was also present. Suresh immediately started for the search of Sushil Kumar and returned shortly thereafter after seeking him in the hospital. By that time, her father Indra Prakash had also returned. She as well as Suresh Kumar narrated the entire information gathered by them to Indra Prakash. 15. P.W. 1 Vijai Kumar Jain had also deposed that after seeing the occurrence, he went to the house of the victim and conveyed the information to Km. Manju and also her mother. He named all the accused as culprits in this crime. 16. In this background the statement of P.W. 8 Indra Prakash is very relevant. He says that after his return he learnt (Naturally from Km. Manju and his brother Suresh) that the accused Vipin, Vijai and Suresh had assaulted his son Sushil Kumar. He also learnt that Sushil Kumar was lying in the hospital. Suresh at that time had returned from the hospital. He confirmed this information. Thereafter, he went to the hospital. His son Sushil Kumar was unconscious. Manju and his brother Suresh) that the accused Vipin, Vijai and Suresh had assaulted his son Sushil Kumar. He also learnt that Sushil Kumar was lying in the hospital. Suresh at that time had returned from the hospital. He confirmed this information. Thereafter, he went to the hospital. His son Sushil Kumar was unconscious. Seeing the condition of Sushil Kumar, he was confused and was busy in his treatment. Thereafter, on the following day, he informed the police about the occurrence. He had also learnt by that time that Sushil Kumar had borrowed a pant from the accused Vijai, which he had not been able to return. The accused were pressing for its return. He had further learnt that accused Suresh and Vijai had taken his son Sushil Kumar on the pretext of showing a picture. Further, he says that he had learnt that his son had been injured by a Pechkas. This is not the end of the matter. A look at the injury report by Dr. Jakhmola is also very eloquent. The injuries were by that time very simple. The condition of the patient was normal. His blood pressure, pulse rate etc. were quite normal. The doctor had detected that some pointed and blunt weapon had been inserted in the injury and this way it could not be said that the condition of the patient was alarming. So the statement of Indra Prakash that his son was unconscious cannot be accepted. It appears to be a product of some brain washing. It can be normally assumed that the complainant could have gathered some information regarding the incident from his son Sushil Kumar also before going to the police station. 17. Despite all these things, only a cryptic information was conveyed at the police station that the accused had injured his son Sushil Kumar and Vipin accused had lodged him in the district hospital. Neither the motive has been mentioned nor the weapon, the names of the accused, witnesses, date, time and place of occurrence etc. have not been mentioned. Therefore, the F.I.R. does not contain virtually any important information which had been gathered by the complainant before he reached at the police station. Therefore it appears that everything has been developed as and when legal necessity was felt. have not been mentioned. Therefore, the F.I.R. does not contain virtually any important information which had been gathered by the complainant before he reached at the police station. Therefore it appears that everything has been developed as and when legal necessity was felt. But suffice it to say that the origin of the F.I.R as alleged by the prosecution, is not free from doubt. So the very building of the prosecution case is likely to crumble down on the ground of his vital defect in the prosecution story. 18. It appears that no information had been received at the house of the complainant in that night and the witnesses Vijai Kumar, P.W. 1 Tara Chand, P.W. 2 and Khem Singh, P.W. 5 had, in fact, had not seen the occurrence at all. They were later on arranged as prosecution witnesses for the reasons elaborated in the following paragraph. Let us take the evidence of P.W. 1 Vijai Kumar first. He has said that at about 9.30 p.m., he had been going to take betel at a shop near the Hanuman Temple, when he saw the incident. He has said that the accused Vipin and Suresh had caught hold of Sushil Kumar and Vijai pierced the screw in his person. The witnesses P.W. 2 Tara Chand and P.W.3 Khem Singh were also present. Further, he says that the accused took the victim in the three-wheeler No. U.P.F. 5823 and he had personally informed Km. Manju and her mother about the incident in the same night. He had good relations with Indra Prakash. This fact is admitted in paragraph 7, when he says that Indra Prakash has a shop in front of his shop. Naturally on account of affinity, he had gone to the house of Indra Prakash to inform about the incident. There is nothing unnatural in it. But he has tried to conceal certain salient features. He was asked whether Indra Prakash was affiliated to R. S. S. (Rastriya Swyam Sewak Sangh). He pleaded ignorance. Although, he admits that he knows him for a pretty long time. But his philanthrophic approach ended there after conveying the information at the house of Indra Prakash. He did not advise him to lodge the report. Not only this, he did not try to know as to where Sushil Kumar had been whisked away from the spot. Although, he admits that he knows him for a pretty long time. But his philanthrophic approach ended there after conveying the information at the house of Indra Prakash. He did not advise him to lodge the report. Not only this, he did not try to know as to where Sushil Kumar had been whisked away from the spot. It was only on the following day that he learnt that he was in the hospital. He did not go to the hospital even on the following day to enquire about the health of Sushil Kumar, although it was Sunday and the entire market was closed on that date. It was simply by chance that he noted the number of the three- wheeler. Neither before nor after the incident, he learnt about it. Not only this, he appears to be chance witness. He admits that there were other betel shops also in the locality. But why he chose this particular shop, is not clear. It was the incident of a lonely place. He admits in paragraph 14 that there was no traffic going on the road at that time. In paragraph 18, he admits that there were 5-7 other persons also, when the accused after causing the injuries to Sushil Kumar, had taken him in a scooter. But nobody came forward to the rescue of the injured. That is an abnormal conduct, which appears to be unreliable. In paragraph 19, he says that there is a betel shop near the shop of Mansa Ram, Gheewala at a distance of hardly 30 paces. Similarly, in paragraph 29, he admits that there is further another shop at a distance of 30 of 40 paces from his house. So normally he could not have been present at the place where he wants this Court to believe. His presence at the spot is not free from doubt at that time and place. Not only that, the law is that when there were natural witnesses available, the production of only chance witnesses creates a great doubt in the prosecution case. He knew the complainant for the last 15-20 years. The police station Kotwali is hardly 2 furlongs away from the spot. The distance of P.S. Kotwali from his house is 1-1/2 furlongs only. In the normal course, he should have left some information at the P.S.Kotwali. But he did not do that. He knew the complainant for the last 15-20 years. The police station Kotwali is hardly 2 furlongs away from the spot. The distance of P.S. Kotwali from his house is 1-1/2 furlongs only. In the normal course, he should have left some information at the P.S.Kotwali. But he did not do that. This is again a perversity in his conduct, which goes unexplained. On the point of fact, he was cross-examined. He had to admit that he did not know as to whether the accused had caught hold of the hands of Sushil Kumar or which part of his body. He is not sure about the use of Pechkas. But he says that something like Pechkas was used. He cannot tell about the size of the weapon. Further, he admits that the entire incident ended within 11/2 minutes. So it appears to be a case of hit and run. In all, three injuries were found in the person of the deceased by Dr. Jakhmola. Therefore, the witness is right on the point that within 1 1/2 minutes the entire incident was ended. He admits that the place from where he heard the alarm, was not visible from the place from where the occurrence took place. This is a description of the incident made by this witness. This shows that somebody caused injuries to the victim and the culprits could not be known and out of friendly relations, the accused Vipin took him to the hospital, where he lodged him for medical treatment. Even otherwise, it is difficult to believe that the accused after committing the crime, would be busy in creating evidence against themselves instead of running away from the shop. They wanted to conceal their identify. That is why they chose the night and solitary place for committing this crime. But after causing injuries they arranged for a three-wheeler to take the injured to the hospital and went to the hospital where they got him admitted. This does not appear to be a normal conduct of a prudent man. On the way, the victim could ' have cried and any body could have arrested the accused on the spot. So it does not appear to be natural that after causing injuries, the accused could themselves take the victim to the hospital in a three wheeler. This does not appear to be a normal conduct of a prudent man. On the way, the victim could ' have cried and any body could have arrested the accused on the spot. So it does not appear to be natural that after causing injuries, the accused could themselves take the victim to the hospital in a three wheeler. This description in the light of the cryptic F.I.R. clearly shows that this witness Vijai Kumar is not telling the truth because he was not an eye-witness of the occurrences. 19. P.W.2 Tara Chand has turned the table. According to Vijai Kumar, Suresh and Vipin had caught hold of Sushil Kumar and Vijai pierced the Pechkas in the body. Whereas, P.W. 2 Tara Chand states that accused Vijai and Vipin had caught hold of Sushil Kumar and Suresh had pierced the Pechkas on his body. It was on this point that he was declared hostile and cross-examined. With reference to his statement under Section 161, Cr. P.C. He also deposed about the arrangement of three-wheeler by the accused numbering U.P.F. 5823 in which they carried the Injured to the hospital. For the reasons noted by me for disbelieving P.W. 1, I reject the testimony of this witness also on the point of arrangement of scooter by the accused for carrying the injured to the hospital. 20. Even otherwise, the witness appears to be a chance witness. He says that he had been living at Saharanpur. Immediately after the incident, on the following day he left for Saharanpur. In fact, he had come from Saharanpur on that day itself. When he was asked in paragraph 7 as to for how many years, he knew Sushil Kumar and Indra Prakash, he says that he knew them for about 15 years. He was further asked if Indra Prakash was affiliated to R.S.S. He simply said that he did not recollect. However, he was himself affiliated to Jan Sangh. So existence of political cultural affinity between these two families is quite evident and this probability cannot be ruled out that on account of this affinity, the witnesses have come to depose for the prosecution against the accused. In paragraph 8, he says that in the month in which the occurrence took place, he had gone to Saharanpur along with his family members. On the day of occurrence, he had been returned after seeing a picture. In paragraph 8, he says that in the month in which the occurrence took place, he had gone to Saharanpur along with his family members. On the day of occurrence, he had been returned after seeing a picture. He had seen the picture in the balcony, whereas, this fact has been denied by D.W. 1 Suresh. When further cornered, he said that he could not recollect the date on which the occurrence took place. In paragraph 10, he says that he did not recollect the name of the picture. So, it appears that the witness is playing upon his imagination. 21. He on the one hand describes his affinity with the complainant. But in paragraph 9, he admits that he did not deem it proper to inform the police although the police station is hardly 1-1/2 furlongs away from the spot. HE does not describe as to how he recollected the number of the scooter and how did he note it. In paragraph 10 again he says that it was the accused Suresh Kumar who pierced the Pechkas and not the accused Vijai Kumar. HE was interrogated about 12 days after the occurrence and that by itself minimises the value of his statement under Section 161, Cr. P.C. 22. Not only this, he was very much in the clutches of the police. In paragraph 11 of the cross-examination, he admits that for the last 20 years or more, the police had been implicating him in the criminal cases including cases under Section 25, Arms Act and Gangsters Act. About 20-25 cases might have been launched against him. Only about 6 months prior to his statement (on 20.4.79) one case had ended against him, that is after the occurrence of this case. According to him, this case was pending when this occurrence took place. So, it appears that he is neither a natural witness nor a truthful one and to top it all, he is a man under constant pressure of the police, who can obtain any statement from him for consideration best known. P.W. 5 Khem Singh has said that he did not see any occurrence at all. Therefore, he washed his hands off clearly. The result is that all the three witnesses alleged to have seen the occurrence with their own eyes, have been unsuccessful in proving the prosecution story. P.W. 5 Khem Singh has said that he did not see any occurrence at all. Therefore, he washed his hands off clearly. The result is that all the three witnesses alleged to have seen the occurrence with their own eyes, have been unsuccessful in proving the prosecution story. The learned lower court has not scanned the entire evidence with requisite care and caution required of him. Therefore, his conclusions have gone wrong. 23. I have already observed that the very basis of the story that the accused after committing the crime took the injured to the hospital appears to be unnatural. Therefore, the evidence of P.W. 6 Salim does not inspire confidence by its very nature. Not only this, he says that the accused had asked him to take the injured to the hospital. He did not know them from before. No identification parade was held. The witness did not know the accused from before by their names. Therefore, non-holding of the test identification parade is a fatal circumstance against the prosecution. Further in paragraph 15. he admits that he was interrogated about 7 or 8 days after the occurrence. This is further a circumstance to show that the witness is not telling the truth. 24. Not only this, he is also a person under the thumb of the police and any statement can be obtained from him. In paragraph 5 of the cross-examination, he says that he does not recollect as to whether police cases against him are pending or not including cases under Section 60. Excise Act. Another case of accident is also pending against him. But he does not know the details of the same although 7th May, 79 was fixed in that case. (the statement of this witness was recorded on 21.4.79 and 24.7.79). In paragraph 6, he admits that it is quite likely that he might have appeared for the police in some criminal cases. But he does not recollect as to whether he was a witness in State v. Prem Nath. This version clearly shows that he is not prepared to admit that he is a pocket witness of the police. However, he had to admit that in State v. Munshi that he was an accused. He does not recollect as to whether he was a witness in the case State v. S. RaJJp. This version clearly shows that he is not prepared to admit that he is a pocket witness of the police. However, he had to admit that in State v. Munshi that he was an accused. He does not recollect as to whether he was a witness in the case State v. S. RaJJp. In paragraph 11 of the cross-examination, he admits that he has been convicted in a case under Section, 60 Excise Act. After being confined, he was released from Jail. This way, it appears that he is a procured witness by the police apart from being a chance witness, and on this ground also, his testimony does not inspire confidence. NOT only this, his statement has been contradicted by D.W. 1 Suresh Chand Gupta, who has deposed that, in fact, he himself had carried the injured to the hospital. The statement of Gupta appears to be natural. Because after committing the crime, the culprits would have run away and they would not arrange for a three-wheeler to carry the injured along with them. Therefore, I find that Suresh Chand Gupta is a reliable witness. The result is that after a thread-bare analysis of the entire prosecution case, every fibre of it appears to be cooked up and false and the entire case is likely to be thrown to the winds. 25. The appeals are allowed. The judgment and order passed by the learned Additional Sessions Judge is set aside. The accused are acquitted of the charge under Section 304, sub-clause II, I.P.C. They are on bail. Their bail bonds and surety bonds are discharged. The order dated 14.11.94 cancelling the bail of the accused is recalled. Appeals allowed.