JUDGMENT Hon’ble Mrs. Poonam Srivastav, J.—The instant appeal arises from judgment and order of conviction dated 17.10.2008 passed by the Additional Sessions Judge, Court No. 1, Azamgarh in Session Trial No. 386 of 1993, State v. Raghunath Dixit and others. 2. Four accused namely present appellant Radhey Shyam, Raghunath Dixit father of the appellant, Om Prakash Dixit brother and one Mukhram Pandey were sent up for trial. Three accused Raghunath Dixit, Om Prakash and Mukhram Pandey have been acquitted and granted benefit of doubt. The present appellant Radhey Shyam Dixit has been convicted under Section 302/34 I.P.C. and sentenced to undergo life imprisonment and also imposed fine of Rs. 10,000/-, in default of payment of fine, a further imprisonment of one year. 3. The occurrence is alleged to have taken place on 26.4.1990 at 11.00 P.M. in front of the house of Bechu Pandey in village Jiyasad, Police Station Mehnagar, District Azamgarh. The F.I.R. was lodged on 27.4.1990 at 00.15 hours at the concerned police station Mehnagar by Subhash Pandey PW-1, son of the deceased Bechu Pandey. 4. The prosecution case as unfolded in the F.I.R. is that first informant is first cousin of Sabhakar Tripathi and there is ongoing enmity between the accused and Sabhakar Tripathi, a number of litigation is going on. The deceased used to help Sabhakar Tripathi and as a consequence incurred grudge from Raghunath Dixit, his sons Om Prakash and Radhey Shyam as well as one Mukhram Pandey. On 26.4.1990 Bechu Pandey was sleeping at his door after taking dinner. According to the narration of the F.I.R., the complainant claims to have been sleeping near him. All the four accused named in the F.I.R. namely Raghunath Dixit, Om Prakash Dixit, Radhey Shyam Dixit and Mukhram Pandey came there. Radhey Shyam was armed with Katta and remaining accused had lathi and spear. The appellant is alleged to have fired shot. Hue and cry was raised by the first informant and his brother Vijay Prakash. On hearing shots, Gauri Shankar Pandey son of Buddhu Pandey, Sabhakar Tripathi, Vinod Shankar and others came along with a torch. The accused were chased but they were able to make good their escape. 5. The prosecution examined three witnesses of fact namely Subhash Pandey PW-1 complainant, Sabhakar Tripathi PW-2, scribe of report, and Gauri Shankar Pandey PW-3. On hearing shots, Gauri Shankar Pandey son of Buddhu Pandey, Sabhakar Tripathi, Vinod Shankar and others came along with a torch. The accused were chased but they were able to make good their escape. 5. The prosecution examined three witnesses of fact namely Subhash Pandey PW-1 complainant, Sabhakar Tripathi PW-2, scribe of report, and Gauri Shankar Pandey PW-3. Formal witnesses are PW-4 Rakesh Kumar Singh, Gama Yadav PW-5 who proved chik F.I.R., Ram Dulare Yadav PW-6 proved handwriting of Dr. T.K. Jha who performed post mortem on the body of the deceased and Mukteshwar Singh PW-7. Investigating Officer Ram Mohan Singh has not been examined. One witness has been produced in defence as DW-1 Shridhar Pandey. 6. Eye-witnesses Vijay Prakash and Vinod Shankar have not been examined by the prosecution. Subhash Pandey, son of the deceased has been declared hostile. He disowned the narration of the F.I.R. as well as the fact that its contents was dictated by him. PW-2 Sabhakar Tripathi and Gauri Shankar Pandey PW-3 are two witnesses of fact. 7. All the accused named in the F.I.R. are related. Raghunath Dixit who had faced trial as an accused, had three sons namely appellant Radhey Shyam, Om Prakash and Shree Prakash. Om Prakash was also co-accused in the instant case but he has been acquitted by the Sessions Judge. Shree Prakash was murdered in October, 1989. The accused in the said murder were Ashok son of Sabhakar Tripathi PW-2, Vijay Shankar and Uma Shankar, nephews of PW-2 Sabhakar Tripathi and PW-3 Gauri Shankar Pandey himself. The trial of murder of Shree Prakash brother of the appellant was still continuing at the time when the present incident took place. 8. Sri Kamal Krishna, Senior Advocate, assisted by Sri Manoj Kumar Singh appearing on behalf of the appellant has placed evidence of PW-1 who was declared hostile and cross examined by the prosecution. The first informant has admitted that a number of litigations were continuing between Raghunath Dixit and Sabhakar Tripathi PW-2. He has denied to have witnessed the murder of his father which took place about 11-11.30 P.M. According to PW-1, he and his brother Vijay Prakash had gone to attend Gauna ceremony at the house of Vikrama Pandey in his village. He has further expressed his ignorance about any source of light and also to have seen the accused committing murder. He has further expressed his ignorance about any source of light and also to have seen the accused committing murder. The witness further submits that the F.I.R. was written by Sabhakar Tripathi on which he had endorsed his signature without reading the substance. The allegations of the F.I.R. were only thought process of Sabhakar Tripathi. Finally he did not admit the narration of the F.I.R. Thus it is argued that the testimony of PW-1 is liable to be discarded. Two other witnesses of fact are Sabhakar Tripathi and Gauri Shankar Pandey, submission is that they are highly inimical to the accused appellant and his father and other family members. 9. The argument of the learned counsel is that evidence of PW-2 and PW-3 is liable to be scrutinized with great care and caution as they are highly biased. Learned counsel has placed the entire evidence and challenged their testimony primarily on the ground that these two witnesses were not present at the scene of occurrence and according to their own admission, they arrived subsequent to murder and chased the accused in futile. Circumstances have been demonstrated in support of his argument from the assertions made during the trial by Sri Kamal Krishna, Senior Advocate. Thus contention on behalf of defence is that no reliance can be placed on their testimony. The deposition made by PW-2 is challenged on a number of grounds enumerated below : (i)Sabhakar Tripathi has many litigations with accused Raghunath Dixit and appellant Radhey Shyam Dixit happens to be his son. The accused Om Prakash who has been acquitted, is also son of Raghunath Dixit. Thus enmity with the appellant and affinity with the deceased is admitted in examination-in-chief itself. (ii) Son of Sabhakar Tripathi namely Ashok and his two nephews Vijay Shankar and Uma Shankar are accused for murder of Shree Prakash son of Raghunath Dixit and now they have been convicted. The appeal is pending in the High Court. (iii) The assertion by PW-2 in his statement that he was lying on his cot. When he heard dog’s barking, fire-arm shots and also hue and cry towards house of the deceased Bechu. He asserts that he got up to ease himself and after hearing shrieks and sound he ran towards house of the deceased Bechu with his torch. (iii) The assertion by PW-2 in his statement that he was lying on his cot. When he heard dog’s barking, fire-arm shots and also hue and cry towards house of the deceased Bechu. He asserts that he got up to ease himself and after hearing shrieks and sound he ran towards house of the deceased Bechu with his torch. As soon as he reached 8-9 paces from his house, Vinod Shankar also followed him and he saw the four accused running towards north. Radhey Shyam was armed with Katta, Raghunath and Om Prakash with spear and Mukhram with lathi. Thus this witness has not seen the actual incident but has only seen the accused running away, out of which three of them have been acquitted. There are no spear or lathi injury on the body of the deceased. (iv) PW-2 claims to have written the report on the dictation of PW-1 which was read out to him and he endorsed his signature whereas PW-1 has completely denied this fact. The F.I.R. is completely disowned by the complainant and, therefore, it is a document which was not proved. (v) Claim of PW-2 that the deceased was alive and he has given out details of the incident to PW-2 who took him to Primary Health Centre, Mehnagar, Azamgarh from where he was referred to Sadar Hospital, Azamgarh is not corroborated. No such doctor from Primary Health Centre, Mehnagar was examined to substantiate that Bechu Pandey was alive and in a position to give his statement or there is any injury report on record to substantiate this assertion. (vi) Oral dying declaration has not been established. Besides, there is no recovery memo of cot and the Investigating Officer has not found any blood on the cot of the deceased on which he is claimed to be carried to the Primary Health Centre, Mehnagar. (vii) The appellant and other accused alleged to have participated in the crime were witnesses in the murder trial of Shree Prakash in which son and nephews of PW-2 were accused and trial was pending at the time of murder. (viii) The nephew of PW-2, Vijay Shankar, had illicit relation with Pramila, daughter of deceased Bechu Pandey. He was caught red handed on the night of occurrence and it is he who had committed the crime. There is a clear suggestion to this effect. (viii) The nephew of PW-2, Vijay Shankar, had illicit relation with Pramila, daughter of deceased Bechu Pandey. He was caught red handed on the night of occurrence and it is he who had committed the crime. There is a clear suggestion to this effect. The appellant and his family members were falsely implicated due to long standing enmity. (ix) The admission of PW-2 that accused Raghunath Dixit and Mukhram Pandey are old whereas witnesses PW-2, PW-3, Subhash and Vijay Prakash were young people but they were not able to apprehend the accused after giving them a long chase does not stand to reason of a prudent man. (x) There was no source of light besides the witness reached much after the incident. 10. On the basis of aforesaid discrepancies, Sri Kamal Krishna, Senior Advocate has emphatically argued and questioned presence of PW-2 at the scene of occurrence, also manner in which he claims to have chased the accused as well as that the F.I.R. was not written out on the dictation of PW-1. The submission of the learned counsel is that PW-2 admittedly has long standing grudge against the accused. A number of criminal and civil litigations are pending between them and he only wanted to save his nephew Vijay Shankar who was caught red handed on the night of the incident by Bechu Pandey with his daughter. In view of all these facts, the emphatic submission is that no reliance can be placed on his evidence. 11. The third witness examined on behalf of the prosecution is PW-3 Gauri Shankar Pandey. This witness admittedly is an accused in the murder of Shree Prakash, real brother of the appellant. The appellant Radhey Shyam, other co-accused, his father and brother were witnesses in the murder trial of Shree Prakash. Their evidence was yet to be recorded and, therefore, the appellant was falsely implicated. Sri Kamal Krishna submits that a bare reading of statement of PW-3 and cross examination, makes it evident that he was neither present at the scene of occurrence nor he had seen the accused running away with their respective arms in their hands in the middle of the night. A number of contradictions and anomalies have been pointed out to discredit the statement of PW-3 Gauri Shankar Pandey. A number of contradictions and anomalies have been pointed out to discredit the statement of PW-3 Gauri Shankar Pandey. Gauri Shankar Pandey has also admitted that a number of litigations is pending between the accused and PW-3 and also that he was not present at the time when the deceased was fired at. He arrived subsequently and the accused were recognized from the back side in the darkness of the night. Besides, PW-3 admits that he was never examined by the Investigating Officer prior to his statement during the trial and, therefore, it is evident that he is a procured witness at the behest of PW-2. So far the other formal witnesses are concerned, Rakesh Kumar Singh S.O. had submitted charge-sheet but investigation was carried out by Raj Mohan Singh who was not examined. PW-5 Gama Yadav has proved the chik F.I.R. Ex. Ka-3 and PW-6 Ram Dulare Yadav is ward boy who has proved the post mortem report prepared by Dr. T.K. Jha. PW-7 C.P. No. 133 Mikteshwar Singh has stated that he had worked with the Investigating Officer Ram Mohan Singh in the year 1995 at some other police station but he has never worked at the police station Mehnagar with the Investigating Officer. Shridhar Pathak is the defence witness. He proved plea of alibi of the appellant Radhey Shyam. He has tried to support the appellant’s alibi that on 26.4.1990 and 27.4.1990 he was with Shridhar Pathak at Azamgarh. 12. We have heard the respective counsels at length and gone through entire evidence and other documentary evidence and we proceed to analyse the prosecution case and judgment of conviction by the learned Sessions Judge. The prosecution has not attributed any motive for commission of crime save for the fact that the deceased used to help PW-2 in the various litigations between the accused and Sabhakar Tripathi. No doubt, absence of motive cannot be only basis for recording a judgment of acquittal but motive is a vital aspect which requires consideration while analysing and assessing the prosecution case specially when the witnesses of fact are apparently biased. The reason for commission of crime has an important role otherwise behaviour of a normal human being cannot lead to a conclusion that he will try to commit a crime in the middle of the night and take away life of a person without any direct reason. The reason for commission of crime has an important role otherwise behaviour of a normal human being cannot lead to a conclusion that he will try to commit a crime in the middle of the night and take away life of a person without any direct reason. If at all some one will incur hazard of causing a crime like murder, it will be only in respect of a person such as PW-2 or PW-3 who committed murder of Shree Prakash. 13. In the instant case, we cannot overlook the absence of motive specially when the prosecution case is that the appellant along with other co-accused had crossed the house of PW-2 to reach the house of the deceased who was only a helper of PW-2. These witnesses PW-2 and PW-3 also reside in close vicinity. 14. The next question that cannot be overlooked, is that PW-1 happens to be own son of the deceased. He has not supported the prosecution case, he has even disowned the F.I.R. which the prosecution claims to have been scribed by PW-2 on the dictation of PW-1. Since Subhash Pandey asserts that he had gone to attend Gauna ceremony in his village along with his brother and also admits of endorsing his signature on whatever was written out by PW-2, on the face this appears to be a true statement. He has also claimed that his signature was taken by Sabhakar Tripathi on a blank paper and later on the F.I.R. was written out which is a concocted story by PW-2 himself. At this very juncture, we are not able to ignore the theory propounded by defence that Vijay Shankar, nephew of PW-2 had relationship with the daughter of the deceased Bechu who did not approve and possibility of Pramila and Vijay Shankar being caught together by the deceased is very much possible and accused were implicated at the instance of PW-2. None of the family members of the deceased have supported the prosecution case. The basis of verdict of holding appellant guilty is only evidence of PW-2 and PW-3. Son and nephews of PW-2 are accused in the murder of Shree Prakash, brother of the appellant and the appellant along with other co-accused were witnesses in the murder trial. 15. None of the family members of the deceased have supported the prosecution case. The basis of verdict of holding appellant guilty is only evidence of PW-2 and PW-3. Son and nephews of PW-2 are accused in the murder of Shree Prakash, brother of the appellant and the appellant along with other co-accused were witnesses in the murder trial. 15. We have noticed that the doctor present at the Primary Health Centre, Mehnagar and alleged to have examined the deceased was not produced to substantiate that the deceased was alive and thereafter he was referred to the District Hospital, Azamgarh for advanced treatment. Neither the doctor nor any injury report has been produced. In absence of any such evidence, the claim of PW-2 that dying declaration was given out by the deceased to PW-2 alone, on the face of it appears to be a figment of his imagination. No recovery memo of cot on which the deceased was brought to the Primary Health Centre or was being taken to the District Hospital, Azamgarh, is in existence and the prosecution has not even examined the doctor who performed the post mortem. In absence of any such evidence, it is difficult for us to accept the prosecution theory that the deceased was in a condition to narrate the entire incident, given out the details of the incident and the accused and respective weapon who caused injury. Obviously, the father has not said anything to his son PW-1 therefore, we are unable to accept the prosecution version. It is apparent that the murder took place in the darkness of the night when no one was present and the deceased was sleeping. It is a case of hit and run and no one was present to witness the crime. 16. The emphasis on the dying declaration by the learned A.G.A. cannot be accepted as there is not a whisper about any such revelation in the F.I.R. and it was only an after thought. We are of the considered view that the judgment of conviction on the basis of evidence of PW-2 and PW-3 cannot be sustained. Besides, three co-accused have been acquitted, whom prosecution claims were armed with spear and lathi. No injury but for the single shot was found on the body of the deceased and it is thus evident that it is simple case of hit and run. Besides, three co-accused have been acquitted, whom prosecution claims were armed with spear and lathi. No injury but for the single shot was found on the body of the deceased and it is thus evident that it is simple case of hit and run. The other two co-accused were falsely implicated and the learned Sessions Judge has acquitted them, are none other but the brother and father of the present appellant. It is, therefore, not safe to uphold the conviction of the appellant. The reasons for not accepting the testimony of the two witnesses namely PW-2 and PW-3 are already detailed in foregoing part of the judgment, thus the submission and contention of the learned Senior Counsel Sri Kamal Krishna, appears to be justifiable. The evidence of PW-2 and PW-3 do not warrant a judgment of conviction. We therefore arrive at a conclusion that PW-2 and PW-3 have admittedly not witnessed the crime and no reliance can be placed on their evidence. Also that no one else saw the shot being fired by the present appellant at the deceased. Even if we accept their version as given out during the trial, they have only seen the accused running away with their respective weapons and it is their own deduction given out in the Court. These witnesses have very conveniently avenged their long standing grudge. 17. We cannot ignore that the appellant is convicted and sentenced for offence under Section 302 I.P.C. with the aid of Section 34 I.P.C. The judgment of the Court below reveals that participation of the other three accused with the appellant has not been accepted but in spite of it conviction of the appellant is without joining hands of two or more accused. Application of Section 34 I.P.C. can only be established if there are two or more persons jointly commit the crime. The trial judge has overlooked this material aspect as well. 18. In view of what has been stated above, we are unable to uphold the judgment of the learned Sessions Judge. The judgment of conviction recorded by the learned Sessions Judge has no legs to stand. The judgment dated 17.10.2008 passed by the Additional Sessions Judge, Court No. 1, Azamgarh in Session Trial No. 386 of 1993 is set at naught. The appeal is accordingly allowed. The appellant shall be set at liberty forthwith. The judgment of conviction recorded by the learned Sessions Judge has no legs to stand. The judgment dated 17.10.2008 passed by the Additional Sessions Judge, Court No. 1, Azamgarh in Session Trial No. 386 of 1993 is set at naught. The appeal is accordingly allowed. The appellant shall be set at liberty forthwith. Let a copy of this judgment along with lower Court record be sent to the Sessions Judge, Azamgarh for compliance. ————