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2009 DIGILAW 114 (CHH)

MUKESH SINGH @ CHHOTU v. STATE OF C. G.

2009-03-30

D.R.DESHMUKH, DHIRENDRA MISHRA

body2009
JUDGMENT As per Hon'ble Shri D. R. Deshmukh, J.:- 1. This criminal appeal is directed against the judgment dated 30-12-2002 delivered by the Additional Sessions Judge, Manendragarh, District Korea in Sessions Trial No.289/2002, whereby while acquitting co-accused Dhanraj Tiwari @ Dhannu, Madhav Prasad @ Mukri and Anjan from all charges, the appellants were convicted under Sections 147,148,302 read with Section 149,302 read with Section 149 and under Section 324 read with Section 149 of the Indian Penal Code and sentenced to rigorous imprisonment for 1 year under Section 147 of the Indian Penal Code, rigorous imprisonment for 2 years under Section 148 of the Indian Penal Code, life imprisonment with fine of Rs.l ,000/- for each offence under Section 302 read with Section 149 of the Indian Penal Code and to rigorous imprisonment for 2 years under Section 324 read with Section 149 of the Indian Penal Code. Fine of Rs.l ,000/- each was also imposed for each offence under Section 302 read with Section 149 of the Indian Penal Code, in default of which, the appellants were to undergo further rigorous imprisonment for 5 months on each count. 2. In order to appreciate the focal issue involved in this appeal, we deem it necessary to narrate as to how the law was set into motion and police investigation progressed from day one. On 8-10-2001 at 8:30 A.M. Ward-Boy Shiv Prasad Yadav of the Community Health Centre, Manendragarh delivered a written memorandmn sent by Dr. Suresh Tiwari at Police Station Manendragarh stating that one Nasir Khan, aged 23 years of Ward No.10, Manendragarh was brought dead to the hospital at about 7:20 A.M. on 8-10-2001. Upon this, merg intimation Ex.P-22 was registered. Ward-Boy Shiv Prasad Yadav delivered another memorandum of Dr. Suresh Tiwari at Police Station Manendragarh at 8:35 A.M. which mentioned that one Rajesh Thapa, aged 24 years had expired in the hospital at 7:50 A.M. on 8-10-2001. Upon this, MergIntimationEx.P-23 was registered. At 10:45 A.M. Inquest Ex.P-15 on the dead body of Nasir Khan and Ex.P-16 on the dead body of Rajesh Thapa was done. One Rakesh Thapa, brother of the deceased Rajesh Thapa informed the police at the. Upon this, MergIntimationEx.P-23 was registered. At 10:45 A.M. Inquest Ex.P-15 on the dead body of Nasir Khan and Ex.P-16 on the dead body of Rajesh Thapa was done. One Rakesh Thapa, brother of the deceased Rajesh Thapa informed the police at the. time of inquest that his brother deceased Rajesh Thapa was released from jail a week prior to his death and had left the house on the evening of7-10-2001, but did not return home and it was learnt that some persons had assaulted Rajesh. Similar information was given by Kadir Khan, brother of the deceased Nasir Khan. He further informed the police that at about 5 P.M. on 7-10-2001 Rajesh had come to their house and had taken Nasir with him. 3. On 8-10-2001, the dead body of Rajesh was sent at 9:30 A.M. to the Community Health Centre, Manendragarh for post mortem examination. Dr. S.K. Tiwari, P. W.-13 conducted the autopsy at 11 :30 A.M. and found the following injuries on Rajesh: (1) Incised wound 6x2x2 cms. left parietal region. (II) Bruise face at left side 20x 15 cms. Deformity present, mandible was fractured at left side. (III) Incised wound at right leg 2x 1 cms. compound fracture of both bones. (IV) Two abrasions at back 1 to 2 cms. (V) Abrasion 2x 1 cms. at right forehead. (VI) Bruise 20x 18 cms. at left shoulder. The fifth, sixth and seventh rib were fractured at the lateral aspect. Pleura was also lacerated. In the opinion of Dr. S.K. Tiwari, P.W.-13, duration of the injuries found on the body of Rajesh was between 6 to 12 hours prior to post mortem examination. In his opinion, cause of death of Rajesh was shock due to haemorrhage and brain compression and asphyxia due to blood clots in trachea. Nature of death was opined to be homicidal and duration between death and post mortem was opined to be within 6 hours. It appears that after sustaining the injuries Rajesh was alive for, about 6 hours. This post mortem report is Ex.P-20. 4. Dead body of Nasir was also sent for autopsy to Community Health Centre, Manendragarh on 8-10-2001 at 10 A.M. Dr. It appears that after sustaining the injuries Rajesh was alive for, about 6 hours. This post mortem report is Ex.P-20. 4. Dead body of Nasir was also sent for autopsy to Community Health Centre, Manendragarh on 8-10-2001 at 10 A.M. Dr. S.N. Gupta, P.W.-I0 conducted the autopsy at 11: 15 A.M. on 8-10-2001 and found the following injuries on Nasir: (I) Incised wound I5cms.x5cmsx2.5cms deep present at the left side of neck and cheek below the left ear, skin subcutaneous tissues were cut. Red in colour. Dried blood was present over the ear and neck. (II) Incised wound 8cms.x2cms. deep to bone present at the left side of occipital region of scalp. (III) Linear cut I6cms. Length present at the right back. Skin cut, reddish in colour. Obliquely placed. (IV) Linear cut I5cms. length, deep to skin cut present at the left side of upper II3 of back, reddish in colour. (V) Abrasion 6cms.x2 cms. at left shoulder, reddish in colour. (VI) Abrasion left middle 1/3 of back, reddish in colour 3cms.x2cms. in Size. (VII) Reddish abrasion 3cms.x2cms. in size present at left elbow. (VIII) Bruise 6cms.x4cms. in size at left knee on the postero lateral aspect. Reddish in colour. (IX) Diffused swelling present at left elbow. (X) Diffused swelling present at right upper lip. On internal examination, all organs were pale. Jugular Veins and carotid' arteries at neck had escaped from being cut at incised wound No.1. In the opinion of Dr. S.N. Gupta, probable time elapsed since death was about 8 to 12 hours. It appears that death of Nasir had occurred not before midnight of7 -10-2001. All the injuries on Nasir were ante mortem in nature. Injuries No.1, II, III, IV were caused by hard, sharp and cutting object while injuries No.V, VI, VII, VIII, IX and X were caused by hard and blunt object. In the opinion of Dr. S.N.Gupta, mode of death was homicidal due to shock and haemorrhage as a result of extensive injuries over neck and other parts of the body. This post mortem report is EX.P-I7. 5. At 9:05 P.M. on 8-10-2001, an offence under Section 302 of the Indian Penal Code was registered by S.L. Maravi, S.H.A., Inspector, Police Station Manendragarh vide Ex.P-33. A perusal of the F.I.R. EX.P-33 shows that the assailants on Nasir and Rajesh-were not known to the police till then. 6. This post mortem report is EX.P-I7. 5. At 9:05 P.M. on 8-10-2001, an offence under Section 302 of the Indian Penal Code was registered by S.L. Maravi, S.H.A., Inspector, Police Station Manendragarh vide Ex.P-33. A perusal of the F.I.R. EX.P-33 shows that the assailants on Nasir and Rajesh-were not known to the police till then. 6. Prior to the registration of F.I.R., Ex.P-33 under Section 302 of the Indian Penal Code at 9:05 P.M. against unknown persons, Baba@ Basant, P. W.1 was sent by Shri S.L. Maravi, P. W. -14 through requisition Ex.P-18A for medical examination. It is not known whether Baba @ Basant himself came to the police station or was brought by the police. It is also not on record when statement under Section 161 of the Code of Criminal Procedure of Baba @ Basant was recorded on 8-10-2001. The requisition Ex.P -18A surprisingly did not mention the names of the assailants on Baba @ Basant. Dr. S.N.Gupta, P.W.-10 examined him at 5:10 P.M. on 8-10-2001 and found the following injuries vide EX.P-18 : (I) Linear incised cut 8 cms. in length present at the down 1/3 of the left thigh, reddish in colour. (II) Diffused swelling present at the middle ofleft leg, reddish in colour. (III), Bruise 6cms.x2cms. in size present at the right shoulder, reddish in colour. (IV) Bruise 4cms.x2cms. in size present at the right upper 1/3 of back, reddish in colour. (V) Bruise 12cms.x 4cms. in size present at the left upper 1/3 of back, reddish in colour. (VI) Linear scratch present at the pinua of left ear, size 2cms., reddish in colour. (VII) Diffused swelling present at the left buttock, reddish in colour. Opinion: Injuries No.1 and VI are caused by hard, sharp and pointing object while injuries No. II, III, IV, V, VII are caused by hard and blunt object. Simple in nature. Duration 18 to 24 Hours, i.e., between 5 P.M. to 11 P.M. of710-2001. 7. On 8-10-2001, time not known, statement EX.D-l under Section 161. Cr.P.C. of Baba @ Basant was recorded by Shri S.L.Maravi, P.W.-14, which divulged that on 7-10-2001 in between 8:15 to 8:30 P.M. Baba@ Basant, P.W.1 had accompanied deceased Nasir and Rajesh in the auto-rickshaw of appellant No.3, Jai Raj Tiwari to Vi nay Hotel. Thereafter, Rajesh insisted upon Baba @. Basant to accompany them to Meena Bazar. Cr.P.C. of Baba @ Basant was recorded by Shri S.L.Maravi, P.W.-14, which divulged that on 7-10-2001 in between 8:15 to 8:30 P.M. Baba@ Basant, P.W.1 had accompanied deceased Nasir and Rajesh in the auto-rickshaw of appellant No.3, Jai Raj Tiwari to Vi nay Hotel. Thereafter, Rajesh insisted upon Baba @. Basant to accompany them to Meena Bazar. On way, Rajesh asked Baba @ Basant to accompany him first to meet one Master near Khedia Talkies. Rajesh asked auto-rickshaw driver Jai Raj Tiwari to take the auto-rickshaw to Badansingh Mohalla. Then Rajesh asked Jai Raj Tiwari to wait till they returned. Jai Raj Tiwari refused to stay. Rajesh asked Jai Raj Tiwari to accompany them, but Jai Raj Tiwari again insisted that he would not leave the auto-rickshaw. Finally, Rajesh told Jai Raj Tiwari that even if the would leave them, they would catch him in the morning. After this, Rajesh, Nasir and Baba @ Basant, P.W.-l went to meet Master @ Anantlal, P.W.-2, a teacher of Marshal Art. Rajesh and Nasir went inside the house of AnantIal, P. W. -2 and conversed with him, while Baba @ Basant waited outside. After sometime Rajesh, Nasir and Baba @ Basant started returning towards the auto-rickshaw. Ahead of the field near the slope, appellant No.4, Ganesh Tiwari, brother of Jai Raj Tiwari, appellant No.3 gave a fist blow to Baba @ Basant near the right eye and asked why he was moving along with Rajesh and Nasir and doing Dadagiri. At this juncture, someone dealt a Lathi blow to Baba @ Basant from behind. Jai Raj Tiwari took out a Sword and started assaulting Rajesh and Nasir. At this juncture, acquitted accused Dhanraj Tiwari, Madhav Prasad @ Mukri and appellant No.2, Deepak Barman came there. Another person Sunil Sweeper, who was not arrayed as an accused, also arrived at the spot with them. Baba @ Basant told the police that he knew accused Dhanraj TIwari, Madhav Prasad @ Mukri and Deepak Barman as also Sunil Sweeper very well. All the above mentioned 4 persons, who were carrying Lathi and Rod were also accompanied with 2-3 persons, who were not known to Baba @ Basant but whom he could identify. Baba @ Basant told the police that he knew accused Dhanraj TIwari, Madhav Prasad @ Mukri and Deepak Barman as also Sunil Sweeper very well. All the above mentioned 4 persons, who were carrying Lathi and Rod were also accompanied with 2-3 persons, who were not known to Baba @ Basant but whom he could identify. All these persons started assaulting Nasir, Rajesh and Baba @ Basant while Jai Raj Tiwari was exhorting the assailants not to spare the trio, i.e., Nasir, Rajesh and Baba @ Basant and to kill them. Baba @ Basant started shouting for help and ran towards Tanki Dafai Mohalla. On hearing his shouts, AnantIal, P.W.-2 accompanied by some inhabitants of the locality came to the spot and intervened in the fight. Statement of Baba @ Basant to the police further shows that he along with Nasir and Rajesh did not commit any rob. Jai Raj Tiwari did not assault him. He also told the police that Jai Raj Tiwari had lodged a report in the police station. 8. Having got a clue as to the assailants on Rajesh, Nasir and Baba @ Basant, the police arrested appellant No.1, Mukesh Singh on 12-10-2001, appellant No.2, Deepak Barman on 19-10-2001, appellantNo.3,Jai Raj Tiwari and appellant No.4, Ganesh Tiwari on 22-10-2001. On 19-10-2001, on memorandum, one Lathi was seized from appellant No.2, Deepak Barman. On 23-10-2001, on memorandum, one Tangi, auto-rickshaw and blood stained full pant and shirt were seized from appellant No.3, Jai Raj Tiwari. During investigation motive for the appellants to commit murder of Nasir and Rajesh or to assault Baba @ Basant could not be unearthed. No effort was made during investigation to find out as to who had taken Nasir and Rajesh to the hospital. The written requisitions sent by Dr. Suresh Tiwari were not produced with the documents under Section 173 Cr.P.C. No effort was made to investigate whether deceased Rajesh or the person bringing him to the hospital had made any statement to Dr. Suresh Tiwari regarding the assailants while admitting Rajesh at the hospital. No test identification parade was held, Since, according to the report Ex.P-35 of the Forensic Science Laboratory, the stains on the articles seized from appellant No.2, Deepak Barman and appellant No.3, Jai Raj Tiwari were disintegrated, the articles were not sent to the Serologist for confinnation of human blood. Suresh Tiwari regarding the assailants while admitting Rajesh at the hospital. No test identification parade was held, Since, according to the report Ex.P-35 of the Forensic Science Laboratory, the stains on the articles seized from appellant No.2, Deepak Barman and appellant No.3, Jai Raj Tiwari were disintegrated, the articles were not sent to the Serologist for confinnation of human blood. In this slipshod manner, the investigation was completed and the appellants were prosecuted with co-accused Dhanraj Tiwari, Madhav Prasad @ Mukri and Anjan. 9. The appellants abjured the guilt, pleaded innocence and false implication and led no evidence in defence. 10. The prosecution examined as many as 15 witnesses. Their star witness is Baba @ Basant, P.W.-l. Anantlal, P.W.-2 deposed that Nasir, Rajesh and Baba @ Basant visited his house at 9 P.M. on 7-10-2001 and left thereafter. While he was sitting for food, he heard shouts for help and ran with some persons of Dafai Mohalla to find that Baba @ Basant can1e running towards him and held his feet. On being asked, Baba @ Basant did not say anything and ran away. At a distance, Nasir and Rajesh were lying on the ground. Some assailants, who had fled on seeing them could not be identified. He had asked Baba @ Basant to infonn the relatives of Rajesh and Nasir. Anantial, P. W.-2 deposed that he had gone to the police station with the brother of deceased Nasir and Rajesh who had lodged a report. According to him, police had gone to the spot and had taken Rajesh and Nasir to the hospital. This witness was declared hostile by the prosecution and stated in cross-examination that due to darkness visibility was very poor at the spot. 11. P.W.-3 Shyamlal Pandey, P.W.-4 Uma and P.W.-5 Shantibai turned hostile and did not support the prosecution case. Jahira Begum P.W.-6, Shanti Thapa P.W.-7 also did not support the prosecution story. Mohd. Nisar P.W.-8 stated that 2 to 3 days after the occurrence, Baba @ Basant had told him that Jai Raj Tiwari, his brother and 2 to 4 persons accompanying them had assaulted Rajesh, Nasir and him. Girish Shrivastava P.W.-9 and Hussain P.W.-11 were witnesses ofInquest Ex.P-15 and Ex.P-16 on the dead body of Nasir and Rajash. Dr. S.N.Gupta P.W.-l 0 proved the autopsy report on the body of Nasir on 8-10-2001. Girish Shrivastava P.W.-9 and Hussain P.W.-11 were witnesses ofInquest Ex.P-15 and Ex.P-16 on the dead body of Nasir and Rajash. Dr. S.N.Gupta P.W.-l 0 proved the autopsy report on the body of Nasir on 8-10-2001. Vishwaranjan Sengupta P. W.-12 also turned hostile and did not support the prosecution case. Dr. Suresh Tiwari, P.W.-13 proved the post mortem report of deceased Rajesh. Inspector S.L.Maravi, P. W.-14 completed the formality of proving merg intimation, inquest, memorandums and seizure memos and admitted in cross-exan1ination that appellant No.3 Jai Tiwari had lodged a report against Nasir, Rajesh and Baba @ Basant in the police station regarding assault and robbery. He further admitted that Rajesh and Nasir were detained under the National Security Act as being hooligans they were a menace and had many enemies. He admitted in paragraph 16 that he did not investigate as to whether there was a fight between Baba @ Basant and Rajesh and Nasir. He also deposed that he did not investigate as to why Baba @ Basant did not lodge any report after the occurrence and came to the police station after considerable delay, i.e., on 8-10-2001. No explanation was offered as to whether Baba @ Basant had, before being sent for medical exan1ination before 5: 1 0 P.M. on 8-10-2001, disclosed the names ofthe assailants on Nasir and Rajesh. J .S.Maravi, Sub-Inspector, P. W.-15 pulled the shutters down by formally deposing about the memorandum of the accused persons and recovery made from them. 12. The learned trial Judge relying on the testimony of Dr. Suresh Tiwari, P.W.-13 and Dr. S.N. Gupta, P.W.-1 0 recorded a finding that Nasir and Rajesh died a homicidal death while Baba @ Basant sustained simple injuries by a sharp pointed weapon as_also by a hard and blunt object. The learned trial Judge also took into consideration the admission of Baba @ Basant, P.W.-1 that at the place of occurrence, it was pitch dark and, therefore, he could not see the assailants. The learned trial Judge also considered that no reason was assigned by Baba @ . Basant for not lodging the report or informing anybody about the incident and going straight to his house. The learned trial Judge also considered that no reason was assigned by Baba @ . Basant for not lodging the report or informing anybody about the incident and going straight to his house. The learned trial Judge felt that it was not expected of any person who had sustained injuries to go straight to the police or to inform at the house of the 2 deceased persons as such a witness would be under agony due to the injuries sustained by him and would first think of his safety. The learned trial Judge felt that testimony of Baba @ Basant, P.W.-1 could not be brushed aside merely on the ground that he did not lodge any report or because he did not inform at the houses of his companions, i.e., Rajesh and Nasir. Since Baba @ Basant chose to implicate only the appellants Mukesh Singh, Deepak Barman, Jai Raj Tiwari and Ganesh Tiwari and not the co-accused, i.e., Dhanraj Tiwari, Madhav Prasad @ Mukri and Anjan, the learned trial Judge convicted and sentenced the appellants for the offences mentioned in paragraph 1 supra while acquitting co-accused Dhanraj Tiwari, Madhav Prasad @ Mukri and Anjan. 13. Shri V.C. Ottalwar, learned counsel for the appellants argued that the learned trial Judge erred in relying on the testimony of Baba @ Basant, P.W.-1, a ' wholly unreliable witness. The prosecution did not establish any motive for the appellants to commit murder of Nasir and Rajesh or to assault Baba @ Basant. Taking into consideration the testimony of Anantlal, P. W.-2 and the fact that Baba @ Basant did not lodge any report at the police station or inform the relatives of Nasir and Rajesh and surface till 8-10-2001 the needle of suspicion strongly revolved around Baba @ Basant, who was with the deceased persons at the time of occurrence. It was also urged by the learned counsel for the appellants that the testimony of Baba @ Basant could not be relied on because despite naming Dhanraj Tiwari, Madhav Prasad @ Mukri, Anjan and Sunil as the assailants on Nasir and Rajesh in his statement under Section 161 Cr.P.C, he did not depose against them before the learned trial Judge. It was also urged by the learned counsel for the appellants that the testimony of Baba @ Basant could not be relied on because despite naming Dhanraj Tiwari, Madhav Prasad @ Mukri, Anjan and Sunil as the assailants on Nasir and Rajesh in his statement under Section 161 Cr.P.C, he did not depose against them before the learned trial Judge. Thus, Baba @ Basant, P.W.-l had adopted the method of pick and choose against the appellants by omitting to depose about the acquitted accused Dhanraj Tiwari, Madhav Prasad @ Mukri and Anjan and, therefore, it was unsafe to leave the fate of the appellants in the hands of such a witness. Reliance was placed on Rewaram Kalloram Vs. State of Madhya Pradeshi. It was strenuously urged by learned counsel for the appellants that the appellants had absolutely no motive to commit the murder of Nasir and Rajesh and had no ill-will or axe to grind against Baba @ Basant. Therefore, the fact that despite being injured, Baba @ Basant did not inform anybody about the incident or lodge any report or even go to the hospital on his own for treatment would render his testimony wholly unworthy of credence. Reliance was placed on State of Maharashtra Vs. Raju Bhaskar Potphode2. The admission in paragraph 22 by Baba @ Basant that due to darkness he could not see as to who had assaulted whom rendered his testimony of assault by the appellants on Nasir and Rajesh completely unreliable. 14. It was also argued by the learned counsel for the appellants that the investigating officer did not investigate into the report lodged by Dhanraj Tiwari regarding assault and robbery against Nasir, Rajesh and Baba @ Basant and also did not enquire as to why Baba @ Basant did not lodge any report at the police station or go to the hospital despite being injured. Learned counsel for the appellants also argued that no attempt was made by the investigating officer to enquire as to who had taken Nasir and Rajesh to the Community Health Centre, Manendragarh and whether Rajesh had given any statement to Dr. Suresh Tiwari, P. W. -13 at the time of hospital is at ion since the Merg Intimation EX.P-23 revealed that Rajesh was alive on admission, but died at 7:50 A.M. on 8-10-2001. Suresh Tiwari, P. W. -13 at the time of hospital is at ion since the Merg Intimation EX.P-23 revealed that Rajesh was alive on admission, but died at 7:50 A.M. on 8-10-2001. On these premises, learned counsel for the appellants argued that no reliance could be placed on the testimony of Baba @ Basant and the appellants were entitled to acquittal under benefit of doubt. 15. On the other hand, Shri V.N.S. Deo, learned Government Advocate for the State/respondent argued in support of the impugned judgment and submitted that the maxim falsus in uno falsus in omni bus was a myth and had long been exploded. It was urged that merely because the testimony of Baba @ Basant, P.W.-l was partly not trustworthy, his entire testimony could not be rejected. Reliance was placed on State of Karnataka Vs. Papanaika and other;. It was argued that Baba @ Basant, P.W.-1 was an injured witness whose presence on the spot with Rajesh and Nasir was not in question. Therefore, the learned trial Judge rightly convicted the appellants on the sole testimony of Baba @ Basant, P.W.-l. 16. Having considered the rival submissions, we have perused the record with utmost circumspection. The testimony of a witness who sustains injuries during the occurrence lends assurance about the presence of the witness at the place of occurrence and is not the touchstone for his credibility which has to be tested on the basis of facts elicited during cross-examination, on the basis of natural human conduct, probabilities and other relevant circumstances. The prosecution has miserably failed to show the existence of any motive for the appellants to commit murder of Rajesh and Nasir or to assault Baba @ Basant. The deplorable manner in which investigation into the offence of double murder was conducted by Shri S.L.Maravi, Inspector, P.W.-14 and Shri J.S.Maravi, Sub-Inspector, P.W.-15 shocks our conscience. It is beyond comprehension how the investigating officer could remain oblivious for unearthing the fact as to who had taken Rajesh and Nasir to the hospital and when, and whether Rajesh had, on being hospita1ised, named the assailants to the doctor. The written requisition sent by Dr. Suresh Tiwari regarding death of Rajesh and Nasir were also not produced by the prosecution. The written requisition sent by Dr. Suresh Tiwari regarding death of Rajesh and Nasir were also not produced by the prosecution. Inspector S.L.Maravi P. W.-14 admitted that a report had been lodged by Jai Raj Tiwari at the police station regarding robbery and assault by Rajesh, Nasir and Baba@ Basant, but he did not investigate it. Shri S.L.Maravi also did not probe into the reason why Baba @ Basant went underground immediately after the occurrence and did not even go to the hospital for treatment of his injuries or to the police station for lodging a report when two of his companions had been brutally assaulted by persons known to him. No explanation is forthcoming if Baba @ Basant had witnessed the assault on Nasir and Rajesh by the appellants and had sustained injuries during such assault, why is that the requisition Ex.P18A for his medico-legal examination did not mention a word about his assailants. 17. Conviction ofthe appellants rests solely on the testimony of Baba @ Basant, P.W.-1 who adopted a pick and choose method and did not depose about the involvement of Dhanraj Tiwari, Madhav Prasad @ Mukri and Anjan in the occurrence, despite naming them as the assailants in his statement under section 161 of the Cr.P.C. The testimony of Baba@Basanthas, therefore, to be examined with utmost caution. In paragraph 3 of his testimony Baba @ Basant did not attribute any overt act to the appellants Mukesh, Deepak and Jai Raj. He did not depose as to what weapon was used by these appellants at the time of occurrence. In his cross-examination paragraph 11, he admitted that it was dark at the place of occurrence. In paragraph 22 he further admitted that due to darkness he could not see as to who assaulted whom. In paragraph 12, he further admitted that he did not see as to who had assaulted him by a Lathi on the back. 18. The natural conduct of a witness who had sustained as many as 7 injuries besides witnessing the brutal assault on two of his companions would be that he would either go straight to a hospital for treatment or to a police station for lodging a report. Anantlal, P.W.-2 deposed that on hearing shouts at about 9:30 P.M. on 7-10-2001, he saw Baba @ Basant come towards him and hold his feet and thereafter run away without saying anything. Anantlal, P.W.-2 deposed that on hearing shouts at about 9:30 P.M. on 7-10-2001, he saw Baba @ Basant come towards him and hold his feet and thereafter run away without saying anything. He saw Nasir and Rajesh lying there, but could not identifY the assailants who fled. Could it be that Baba @ Basant was one of the suspects for assault on Nasir and Rajesh and had cooked up a false story in his statement under Section 161 of the Cr.P.C. According to this witness, he had gone to the police station with the relatives of the deceased Nasir and Rajesh who had lodged a report and on such report the police had gone to the place of occurrence and taken Nasir and Rajesh to the hospital. Had this been true, there is no explanation why such a report lodged by the relatives of deceased Rajesh and Nasir was not produced by the prosecution. In our opinion, the testimony of Anantlal P. W.-2 is wholly unreliable because had the police recorded a report lodged by the brothers of the deceased persons and had taken injured Nasir and Rajesh to the hospital, an offence of attempted murder would have been registered even prior to the receipt of merg intimation EX.P-22 and EX.P-23 as the assailants on Rajesh and Baba @ Basant would have been known to the police. In cross-examination, this witness also deposed that due to darkness near visibility was very poor. 19. If Baba @ Basant had no role to play in the assault on Nasir and Rajesh and was not under a threat not to lodge a report, he would not have hesitated to go to the police station immediately after the occurrence for lodging a report. He would have at least gone to a hospital for treatment of his injuries. This witness did not disclose any reason for not lodging a prompt F.I.R. or for not going to the hospital for treatment. On the contrary, he admitted in paragraph 18 that he even did not send intimation of the incident to the houses of Nasir and Rajesh either on the night of incident or on the next day. Such a conduct would be of an enemy of Nasir and Rajesh and not that of a mend. On the contrary, he admitted in paragraph 18 that he even did not send intimation of the incident to the houses of Nasir and Rajesh either on the night of incident or on the next day. Such a conduct would be of an enemy of Nasir and Rajesh and not that of a mend. He also admitted that he did not disclose about the occurrence to anybody either at night or before coming to the police station on the next day. In our considered opinion, the testimony of Baba @ Basant, P. W.-l belies confidence and is rendered wholly unworthy of credit. It appears plausible that on the report lodged by Jai Raj Tiwari regarding assault and robbery against Nasir, Rajesh and Baba @ Basant the police had apprehended Baba @ Basant on the evening of 8-10-200 I and had sent him for medical examination vide requisition EX.P-18A and till then the police did not know the assailants on Nasir, Rajesh and even Baba @ Basant. 20. We are of the considered opinion that by not investigating into the report of Dhanraj Tiwari regarding robbery and assault by Nasir, Rajesh and Baba @ Basant, by not probing into the reasons why Baba @ Basant, P.W.-l went into hiding and did not lodge a prompt report after the occurrence or did not go to the hospital for treatment of his injuries, the prosecution has suppressed the genesis of the crime. The appellants had no motive to cause the death of Nasir or Rajesh or to assault Baba @ Basant. No overt act was attributed by Baba @ Basant to appellants M ukesh, Deepak and Jai Raj. In our considered opinion, the reasons given by the learned trial Judge for relying upon the testimony ofBaba @ Basant are far from satisfactory. Baba @ Basant, P. W.-l is, in our opinion, a witness wholly unworthy of any credit. A serious doubt is cast on the involvement of the appellants in the murder of Nasir and Rajesh and the assault on Baba @ Basant. The needle of suspicion revolves strongly around Baba @ Basant, P.W.-l. The appellants are, therefore, entitled to the benefit of such a reasonable doubt. Conviction of the appellants and the sentence awarded by the learned trial Judge is, therefore, liable to be set aside. 21. The needle of suspicion revolves strongly around Baba @ Basant, P.W.-l. The appellants are, therefore, entitled to the benefit of such a reasonable doubt. Conviction of the appellants and the sentence awarded by the learned trial Judge is, therefore, liable to be set aside. 21. In the result, we allow the appeal, set aside the conviction of the appellants and the sentence awarded by the learned trial Judge and acquit the appellants of all charges. We also order that the appellants shall be set at liberty forthwith if not required in any other case. Appeal Allowed.