JUDGMENT By the Court.—The main question involved in this appeal is, ‘Who is the aggressor: was it the prosecution side, who went over to the house of the accused or was the deceased taken there? THE FACTS 2. An incident happened at about 9:00am on 18.11.1979. In this incident one Yadunath (the Deceased) was killed and Namwar Dube was injured from the prosecution side. There were injuries on the accused side too. 3. The relevant pedigree of the prosecution side is as follows : Yadunath Dube Batuk Nath Paras Nath Julmul Dube (Deceased) (Informant) =Kalawati (PW-1) Namwar Dube Shivraj (PW-2) (PW-4) 4. Shiv Raj (PW-4) has deposed that he is the nephew of the deceased and lives in the same ‘Ahata’ but whether his father and the deceased were real brothers or not is not clear from the record. 5. Batuk Nath (the Informant) brother of the deceased lodged the FIR at 11:15 a.m. on the same day. The allegations in the FIR are as follow : There is enmity between the Informant’s family members and the family members of Ganesh Dube In the morning at the well, the Deceased, his wife Kalawati, and the Informant came to know that their neighbour Ram Dhani Dube was ill for a long time. The deceased remarked that he would go to his house to inquire about his welfare; This was objected by his wife and the Informant on the ground that it would be dangerous, as family members of Ganesh Dube also go there. The deceased did not listen to the advice and went there. When he was coming out of the house of Ram Dhani Dube, Dayashanker Mishra, Zilajeet, Vijay Shanker alias Lalloo, and Ram Surat came armed with Gandasa, spear, gun, and country made pistol. They took away the Deceased to their house. The Deceased shouted to save him. Namwar Dube nephew of the deceased ran to save him but Ram Surat shot him with fire-arm on his leg and Dayashanker hit him with a spear. One Mahraji also came to save him and was injured in the incident. Many persons i.e. Munni Lal son of Vishwanath Kalawar, Sivraj son of Jhulmul Dube, Ram Nath Shukla son of Badra Shukla and Kalawati ran to save him but the accused side took the Deceased to their house. One Mahraji also came to save him and was injured in the incident. Many persons i.e. Munni Lal son of Vishwanath Kalawar, Sivraj son of Jhulmul Dube, Ram Nath Shukla son of Badra Shukla and Kalawati ran to save him but the accused side took the Deceased to their house. There, Daya Shanker hit him with a spear and Ram Surat shot him with a firearm. They killed him. Thereafter they kept the dead body of the Deceased in front of the house of one Sankatha Dube. In this incident, Vijay Shankar alias Lalloo also fired shots. Daya Shanker came in between and received injury in his leg and hand. 6. The relevant pedigree of the accused side is as follows : Ganesh Dube = Wife Chhangur Ram Surat Vijay Shanker Zilajeet 7. Daya Shankar is said to be relative of the accused side but there is nothing on the record to show the exact relationship. In this incident, he was also injured and was arrested on the same day. His statement was also recorded but it was neither registered as counter FIR nor it is available. 8. Daya Shanker was sent to the hospital in the police custody. His Injuries were also examined alongwith the injuries of the prosecution side. During police custody in the hospital, he sent a written complaint to SSP Varanasi on 24.11.1979 (Ex Kha-1). There is nothing on the record as to what has happened to it. He died in the hospital on 5.12.1979. 9. Daya Shanker died in police custody in the hospital. His Panchayatnama and post-mortem must have been done though they are neither on record of the case nor there is any information whether this was done. 10. The police investigated the case. They submitted a charge-sheet in the FIR lodged by Batuk Nath but no case was started on the statement or written complaint of Daya Shanker. The case was committed to the Court of session and was numbered as ST No. 27 of 1981. The Additional Sessions Judge, Gyanpur, Varanasi (the ASJ) framed the charge on 24.6.1981: Zilajeet and Ram Surat were charged under Section 302 IPC; Vijay Shanker was charged under Section 302 read with 34 IPC. 11. The case was committed to the Court of session and was numbered as ST No. 27 of 1981. The Additional Sessions Judge, Gyanpur, Varanasi (the ASJ) framed the charge on 24.6.1981: Zilajeet and Ram Surat were charged under Section 302 IPC; Vijay Shanker was charged under Section 302 read with 34 IPC. 11. Amongst others, the prosecution filed the following documents : Recovery memo of blood stained and plain earh (Ex Ka-11); Recovery memo of blood stained and plain wood shell (Ex Ka-12); Recovery memo of empty cartridge (Ex Ka-13); Recovery memo of blood stained and plain earth (Ex Ka-15); Injury report of Namwar Dube (Ex Ka-5); Injury report of Maharaji (Ex Ka-6); Post mortem examination report of the Deceased (Ex Ka-4); Site Plan with The Index (Ex-Ka-14). 12. The prosecution examined the following witnesses : Batuk Nath (PW-1): Informant, brother of the Deceased; Namvar Dube (PW-2): Injured eye witness, nephew of the Deceased; Sobh Nath Tiwari (PW-3): Head Constable, prepared the Chik; Shiv Raj (PW-4): Eye witness, nephew of the Deceased; Dr. KN Pandey (PW-5): Doctor, conducted the post-mortem; GP Saroj (PW-6): Sub-inspector, arrested Dayashanker; Hatim Khan (PW-7): Constable, carried the dead body for post-mortem; Dr. TB Rai (PW-8): Doctor examined injuries of Namwar Dube and Daya Shanker; Dr. Narendra Kumar (PW-9): Doctor, examined Maharaji; Shri Krishna Yadav (PW-10): Investigation Officer (IO). 13. The statement of the accused under Section 313 CrPC were recorded on19.1.1982. Among the others, they filed the following documents but did not examine any witness : Injury report of Daya Shanker (Ex Kha-1); and Complaint of Daya Shankar to the SSP dated 24.11.1979 (Ex Kha-2). 14. There is a paper number 34 Ka on the record. It is a copy of the report number 31, Time 19:00 hours Rojnamcha dated 7.12.1979, Bhadohi, Varanasi. It is not clear as to who has filed it. It is mentioned therein that after the death of Daya Shankar : Inquest (Panchayatnama) was done in front of the magistrate; The body was sent for postmortem to the BHU hospital; and He died because of tetanus on 24.11.1979. This report is neither proved nor exhibited: it cannot be taken into account. 15. The ASJ by his judgement and order dated 23.2.1982 convicted and awarded the following sentence. This report is neither proved nor exhibited: it cannot be taken into account. 15. The ASJ by his judgement and order dated 23.2.1982 convicted and awarded the following sentence. Zilajeet and Ram Surat were awarded imprisonment for life under Section 302 IPC; and Vijay Shanker alias Lalloo was awarded imprisonment of life under Section 302 read with 34 IPC. Hence the present appeal. 16. The appellants have filed an application requiring the respondent to place the statement of Daya Shanker that was recorded by the police. The Judgheship of Bhadohi and Varanasi have sent their reports. On its basis, the office has put a report on 20.2.2009 that the case diary has already been weeded out and as such it cannot be produced. The appeal is being decided without the same. 17. During pendency of this appeal, Vijai Shanker alias Lalloo died. A report was called from the CJM. The CJM by his report dated 20.2.2006 confirmed the death of Vijay Shanker alias Lalloo. The appeal on his behalf is abated. POINTS FOR DETERMINATION 18. We have heard Sri P.M.N. Singh, Sri Saurabh Basu, Sri S.S. Sachan and Sri Amit Kumar Singh, counsel for the appellants; Sri A.N. Mulla for the State, and Sri Manish Tiwari for the complainant1. The following points arise for determination in the case : (i) Whether an adverse inference should be drawn against the prosecution for not filing the following documents : The statement of Daya Shankar recorded by the police; The Panchayatnama and post mortem report of Daya Shankar; and The report of the action taken on the application filed by Daya Shankar. (ii) Whether the application filed by Daya Shanker (Ex Kha-2) is admissible as dying declaration under Section 32 of the Evidence Act. (iii) Whether injuries of Namwar Dube, the Deceased, and Daya Shankar are consistent with the ocular testimony; (iv) Who was aggressor in the case; (v) Whether the prosecution has been able to prove the case beyond reasonable doubt; 1st POINT: NO ADVERSE INFERENCE PROSECUTION SLACK 19. Vijai Shankar Dube is the scribe of the application dated 24.11.1979 (Ex. Kha-1). It has the thumb impression of Daya Shankar. On this application, an order is recorded by the SSP on 28.11.1979 that immediate action be taken. 20. Vijai Shankar Dube is the scribe of the application dated 24.11.1979 (Ex. Kha-1). It has the thumb impression of Daya Shankar. On this application, an order is recorded by the SSP on 28.11.1979 that immediate action be taken. 20. In the application, it is alleged that : Daya Shankar had gone to the house of his relative Ganesh Dubey on 18.11.1979 and was taking food; At about 8:00am, the Deceased, Akchhaydhan, Paras Nath, Batuk Nath all sons of Shiv Pujan, Namvar, Manvar, sons of Paras Nath, Rajbhar son of Batuk Nath, Shobhraj son of Jhulmul, Munnilal son of Vishwanath Gupta came at the residence of Ganesh Dubey wielding Pistol, Gun, Katta, Ballam, Gandasa; The Deceased held Daya Shankar, Akchhaydhan, Namvar and Rajbhar filed from pistol which hit Daya Shankar as well as (the Deceased). Manvar also hit him with Gandasa on the exhortation of Akchhaydhan but Daya Shankar saved himself but it hit the Deceased. On shouting of Daya Shankar, Lautakh son of Mangal, Ismaila, Subir Yadav (Gram Pradhan), Pannalal also reached on the spot, so his life was saved. Daya Shankar got injuries on his hand and leg. The police had sent him to Kabir Chaura hospital. Now after some rest, he was better and was sending this complaint for taking action. 21. Krishna Yadav, PW-10 (IO) has deposed that : Daya Shankar was arrested on 18.11.1979 and on the same day his statement was recorded. He was sent to Kabir Chaura Hospital, Varanasi in custody where he died on 5.12.1979. He had received an application of Daya Shankar on 28.11.1979 (Ex. Kha-2). He investigated it but did not lodge any case on its basis. 22. The counsel for the appellants brought to our notice the Section 154, Cr.P.C. and Police Regulation paragraph 97, 100, and 107 and submitted : There is no format for lodging FIR; An oral information to the police is sufficient; In this case, not only oral information but a written complainant was given to the police; It ought to have been registered and investigated as counter version; and The Court should draw adverse inference against the prosecution. 23. The statement of Daya Shankar was recorded on the day of the incident. The police should have treated it as FIR and registered it as a cross case. Even if this was not done, Daya Shankar had send an application dated 24.11.1979. 23. The statement of Daya Shankar was recorded on the day of the incident. The police should have treated it as FIR and registered it as a cross case. Even if this was not done, Daya Shankar had send an application dated 24.11.1979. In this application, he has mentioned in detail what had happened at that time. This is better version from defence point of view; it should have been registered. The prosecution should have also filed the statement of Daya Shankar and brought on record the following information : (i) Application sent by Daya Shankar: What happened to it; Whether any police report was submitted on its basis or not; (ii)The post mortem and the Panchayatnama of the dead body of Daya Shankar. However, this has not been done. 24. Krishna Yadav (PW-1) (IO) was examined. He deposed in his cross examination that: (i) The application by Daya Shankar was received on 28.11.1979 on which order of CO was endorsed but no case was lodged on its basis; (ii) The following parchas were issued in this regard; The first parcha was numbered 5 and the book number was 6429 page No. 93; The subsequent parchas were from book number 23611. 25. The cross-examination shows that parchas were issued from two different books. One of them is not available. It has been explained by the IO (PW-10) deposing that the book might have been taken by other Sub-Inspector without making endorsement. This is strange. Case diary is to be maintained according to paragraph 291 of the police regulation. It is apparent that it was not maintained accordingly. 26. The prosecution appears to be shoddy and there is slackness on their part. Should we draw an adverse inference against them. However, there are other factors too : No case was registered on the basis of the statement of Daya Shankar or on the application dated 24.11.1979 filled by him. This shows that in all probability the police did not consider it fit case for prosecution. In these circumstances, it was always open to the appellant to take proceeding under Section 157 (3) CrPC. They having failed to do so cannot take advantage of the fact that no action was taken on the application filed by Daya Shankar. This shows that in all probability the police did not consider it fit case for prosecution. In these circumstances, it was always open to the appellant to take proceeding under Section 157 (3) CrPC. They having failed to do so cannot take advantage of the fact that no action was taken on the application filed by Daya Shankar. In case the statement of Daya Shankar was important despite the fact that the application of Daya Shankar, a better version than his statement, was available then the appellants should have filed an application before the trial Court to submit the case diary. No application was ever filed before the trial Court. An application was filed in this Court in the year 2006—more than 27 years after the incident when they could be sure that the case diary must have been weeded out. The appellants should have filed this application before the trial Court or at the time of filing of the appeal but not after 27 years. 27. Considering the aforesaid facts, we refrain from drawing adverse inference against the prosecution. Nevertheless, the slackness on the part of the prosecution will be considered while deciding point No. 5. 2nd POINT: APPLICATION IS COUNTER VERSION 28. The counsel for the appellants submitted that : Daya Shankar was shot in the same incident and died in the police custody; He died due to injuries caused in the incident. The application contains a statement that related to circumstances of the incident which resulted into injuries and ultimately to his death; The contents of this application were admissible under Section 32 of the Evidence Act as a dying declaration. 29. The AGA and the counsel for the complainant submitted that : This is not a proceeding in which cause of death of Daya Shankar is in question The death of Daya Shankar could be in question if the prosecution side was also prosecuted in the cross case for committing the offence; The injuries of Daya Shankar were in hand and leg. These injuries cannot result into the death of anyone; The contents of the application did not relate to the circumstances that resulted in his death. There was no evidence that Daya Shankar died because of these injuries. There was no apprehension in the mind of Daya Shankar that he was going to die. These injuries cannot result into the death of anyone; The contents of the application did not relate to the circumstances that resulted in his death. There was no evidence that Daya Shankar died because of these injuries. There was no apprehension in the mind of Daya Shankar that he was going to die. This application is neither a dying declaration nor it is admissible in evidence. 30. There is some force in the submission made by the AGA and the counsel for the complainant. However, in this appeal, it is not necessary to decide this question. Nevertheless, Daya Shankar received injuries in the same incident. This fact is also mentioned in the FIR lodged by the prosecution side; The injuries are serious: they are gun shot injuries. In our opinion, the complaint given by Daya Shankar dated 24.11.1979 provided counter version to the version of the defence side; It was a version of his side: It can be considered as such. 31. It is not only in the aforesaid complaint that this case was taken but it was the defence case at the trial. Vijay Shankar alias Lalloo has broadly said the same thing in his statement under Section 313 CrPC in answer to question No. 17. There are three eye-witnesses (PW-1, PW-2 and PW-4). They were also given the suggestion as mentioned in the application. This is the defence put up by the accused side. 3rd to 5th POINT: CASE—NOT PROVED BEYOND REASONABLE DOUBT 32. In this case, 10 witnesses have been examined. Out of them, three are eyewitnesses, three are doctors, and the rest of them are the IO and formal witnesses. However, we have doubts whether the incident took place as claimed by the prosecution. (i) Injuries Not Consistent With Ocular Testimony. (i) (a) Injuries of Namwar Dubey : 33. The Ocular evidence in regard to injury of Namvar Dube is as follows : The informant (PW-1) deposed that at the time when Namvar Dube was hit, his face was facing east and the person, who hit him was facing west. Namvar Dube (PW-2) deposed that he was facing east-north and the person hitting him was facing south east. Shiva Raj (PW-4) deposed that at the time of shooting the face of Namvar Dube was towards east and that of Ram Surat was west. Namvar Dube (PW-2) deposed that he was facing east-north and the person hitting him was facing south east. Shiva Raj (PW-4) deposed that at the time of shooting the face of Namvar Dube was towards east and that of Ram Surat was west. The ocular testimony indicates that Namvar Dube was hit face to face and in this situation the gunshot injuries should be on the front side. 34. The ocular evidence regarding distance at the time of shooting Namvar Dubey is as follows : The Informant (PW-1) deposed that the distance between the person firing the shot and Namvar Dube was two lattha (yB~Vk) and one lattha is equal to 5 hath (gkFk). This distance would be about 10 hath or about 15 feet. Namvar Dubey (PW-2) deposed that shot which hit him was between 5 to 6 paces that is about 9-10 feet. This shows that tattooing or blackening should not be present. Let’s consider the injuries as reported in the injury report. 35. The injuries2 of Namvar Dube are as follows : (i) Gun shot wound 6 cm x 2cm x depth not proved on the back of middle of right leg, burning and tattooing present. K/U/O advised for X-ray. (ii) Gun shot wound 3 cm x 2.5 cm x depth not proved on middle of back of right leg 1 cm away from injury No. 1 tattooing and charring present. K/U/O advised for X-ray. (iii) Incised wound 1 cm x.25 cm x thickness of right palm.5 cm above from root of right index finger. (iv) Contusion 7 cm x 2 cm on right side back on middle. (v) Contused swelling 12 cm x 10 cm on right front. K/U/O, advised for X-ray. Nature: Injuries 1, 2, 5, K/U/O advised for X-ray Rest are simple. 36. Let’s consider what these injuries indicate : The injury Nos. 1 and 2 are gun-shot injuries. They are at the back of the right leg. If the persons were facing each other then the bullet injuries cannot hit on the back of the leg. It shows that he was hit from behind not facing the assailant. Injuries 1 and 2 also indicate that tattooing was present. This indicates that the shot might have been hit from the very close distance. The oral testimony indicates that he was hit at least from 9-10 ft. It shows that he was hit from behind not facing the assailant. Injuries 1 and 2 also indicate that tattooing was present. This indicates that the shot might have been hit from the very close distance. The oral testimony indicates that he was hit at least from 9-10 ft. Tattooing is normally not present, if the fire shot is from this distance. The ocular evidence is otherwise. (i) (b) Injuries Of the Deceased. The Deceased Was Dragged 37. Before considering the injuries of the Deceased, let’s consider if he was carried or dragged. 38. The site plan (Ex Ka-14) indicates that the distance between the house of Ram Dhani Dube (from where the Deceased was taken) and the house of Sankatha Dube (where the Deceased was kept after being killed) is 93 paces. The distance from the house of Sankatha Dubey and Ganesh Dube (where the Deceased was killed) is 55 paces. According to the prosecution case initially the deceased was taken from the house of Ram Dhani Dube to Ganesh Dubey via In front of house of Sankatha Dubey i.e. 93 + 55 = 148 paces where he was killed. Thereafter he was carried back to the house of Sankatha namely 55 paces. So the total distance covered by the deceased is 148+55 = 203 paces. 39. In the FIR it is mentioned that the deceased was carried. This is also so deposed by the Informant (PW-1). However, the other eye witness have deposed otherwise : (i) Namvar Dubey (PW-2), an injured witness, has deposed in the cross examination that the deceased was dragged on the land; (ii) Shava Raj (PW-4) has also deposed in the cross examination that: The Deceased was dragged; and The passage between Ganesh’s house and Sankatha is Kankrila (dadjhyk) or full of cobblestones. The Deceased was taken too and fro over this distance and total distance so covered is 55+55=110 paces. 40. There appears to be no reason why would anyone carry a person from such a distance. In case this incident happened as narrated by the prosecution then the assailants are likely to drag the body rather than carry it. In case the Deceased was dragged then there should be injuries indicating dragging. Let’s consider ocular testimony regarding injuries. Ocular Testimony Regarding Injuries 41. In case this incident happened as narrated by the prosecution then the assailants are likely to drag the body rather than carry it. In case the Deceased was dragged then there should be injuries indicating dragging. Let’s consider ocular testimony regarding injuries. Ocular Testimony Regarding Injuries 41. The Informant (PW-1) and Namvar Dubey (PW-2) have deposed in examination-in-chief that the Deceased was shot by contact shot on the back by Ram Surat. A contact shot, would cause burning and scorching. The wound would be as wide as the bore of the gun. 42. Injuries of the deceased are as follows : (i) Lacerated wound 10cm x 2 cm x whole thickness of right palm from right wrist joint to base of right finger. All the carpal and meta carpal bone are broken in pieces. There is black discolouration of muscles with tissues remained under injury. (ii) Gun-shot wound 2.5 cm x 2 cm x abdomen cavity deep over front of abdomen just above umbilicus. There is black discolouration 2 cm x 2 cm all around the wound (wound of Entry). (iii) There are nine gun-shot wounds over back of chest right side in an area of 11 cm x 13 cm. 8 were 0.5 cm x 0.5 cm in size. One pellet was just under the skin of ninth wound, which was swollen under skin. Pellet was removed and sealed. (iv) Incised wound 10cm x 3 cm x cutting the skin, muscle, trachea, oesophagus, big vessels - up to cervical vertebra over front of neck from just over upper part of front of neck, Direction Horizontal, Margin clean cut. (v) Incised wound.3 cm x 1.5 cm x deep muscle deep over right side neck 2 cm above right clavicle. Margin clean cut Direction oblique. (vi) Punctured wound 0.5 cm x 0.5 cm x deep muscle deep over front of neck just above medial ankle of left clavicle. (vii) Abrasion 10 cm leg over left side front of chest from middle leg left clavicle to down wards and up wards. (viii) Multiple contusions over upper part right side chest from below right clavicle to right nipple. 43. Injury No. (iii) is on the back of the chest. It is spread in the area 11 cm and 13 cm. There is no burning or scorching. This is not a contact shot. There is also no injury regarding dragging. (viii) Multiple contusions over upper part right side chest from below right clavicle to right nipple. 43. Injury No. (iii) is on the back of the chest. It is spread in the area 11 cm and 13 cm. There is no burning or scorching. This is not a contact shot. There is also no injury regarding dragging. The injury of the deceased is not consistent with the ocular testimony. (i) (c) Injuries of Daya Shnakar 44. The injuries of Daya Shankar are as follows : OE - (i) Gun-shot wound multiple each.25 cm x.25 cm x depth not present in area of 13 cm x 10cm on the palmar surface of right hand. K/U/O advised for an X-Ray. (ii) Gun-shot wound.5 cm x.5cm x depth not proved on front at the left knee with swollen around the injury 15 cm x 12 cm area. K/U/O advised for X- ray. Nature : All injury are K/U/O advised for an X-ray. Caused by: firearm. Duration: 1/2 day about. 45. The injury indicates that one injury is in the hand and other is in the leg. There is no tattooing or burning. The spread of injuries indicate that this may be from distance and not a close shot. This is not self inflicted injury: no person will take the risk of hitting his side from distance because then it could hit a vital part. Apart from it this is also mentioned in the FIR itself. 46. Daya Shankar has received gun-shot wounds in the hand as well as in the left knee. Dr. TB Rai (PW-8) had examined the injuries of Namvar Dubey (PW-2) as well as Daya Shankar. There is no suggestion or declaration that he had become hostile. In his cross examination he has deposed that the injuries of Daya Shankar cannot come by one gun-shot. Ocular Evidence Regarding Injuries 47. The prosecution case and ocular testimony in regard to injuries of Daya Shankar is as follows: (i) In the FIR, it is alleged that Daya Shankar accidentally got injured when he came in between fire shot of Vijay Shankar. (ii) The Informant (PW-1) has deposed in the cross examination that: Daya Shankar was hit by one bullet; Vijay Shankar alias Lallo had shot the deceased on his stomach, keeping the bore of the firearm in the downward direction. 48. (ii) The Informant (PW-1) has deposed in the cross examination that: Daya Shankar was hit by one bullet; Vijay Shankar alias Lallo had shot the deceased on his stomach, keeping the bore of the firearm in the downward direction. 48. The oral testimony of the Informant (PW-1) shows that the deceased was hit when he had fallen. It means that it must be close shot. Injury No. (ii) of the Deceased is on the abdomen. There is black discolouration (see paragraph 42 of the judgement). It is a close shot injury. It is surprising how Daya Shankar accidentally came in between this shot and the Deceased specially when this is close shot injury and the injuries of Daya Shanker indicate that he was hit from a distance. 49. In our opinion, injuries of Daya Shankar cannot come as deposed in the prosecution version. In This Case, Injuries Should Be Explained 50. The AGA and the counsel for the complainant submitted that no adverse inference could be drawn merely because injuries of the accused side were not explained by the prosecution. 51. It is correct that there is no invariable rule that prosecution has to explain the injuries; however, If the injuries occurred in the same incident; They are serious; and Are not self inflicted. Then if the injuries are not explained, a reasonable doubt in the prosecution case may be created3. 52. The injuries have been received by the accused side in the same incident. The injuries are not self inflicted injuries. They are also not superficial but are gun shot injuries. They are not only mentioned in the FIR but an explanation has been offered in the FIR. The same explanation is also repeated in the ocular testimony but is not satisfactorily. This creates doubt in our mind whether the incident took place as is deposed by the prosecution side. (ii) Enmity Any one Can be Aggressor 53. Admittedly, there is enmity between the parties. it is mentioned in the FIR itself. The Informant admitted in the cross-examination that : (i) The Informant, Deceased Namvar (PW-2), and some others were convicted under Section 302 IPC in which Ram Surat (Appellant-2) had given evidence. (ii) Daya Shankar had instituted a case under Section 307, IPC against the Informant, Deceased, Shivraj (PW-4), Namvar (PW-4), Paras (father of PW-4), and some others. In this case they were on bail. 54. (ii) Daya Shankar had instituted a case under Section 307, IPC against the Informant, Deceased, Shivraj (PW-4), Namvar (PW-4), Paras (father of PW-4), and some others. In this case they were on bail. 54. It is not only that the accused side that had instituted criminal case against the prosecution side. Shivraj (PW-4) also deposed that he had instituted a criminal case against Daya Shanker and Ganesh Dubey and his sons (Appellant-2 and 3). 55. Considering the nature of enmity, both sides have equal reasons to be aggressor and to kill the other side. (iii) No Independent Witness Produced. 56. There are three eye witnesses. They are related and live in the same ‘Ahata’. They are interested witnesses Ms. Maharaji was also injured in the incident. She is not related to any side and was an eye witness. Her name is mentioned in the FIR. The doctor, who had examined her, was produced but neither was she examined nor any explanation has been given. 57. Apart from Mahraji, there were many independent witnesses on the spot: Names of some of them (Munnilal, Seevaraj, Ram Nath Shukla) are mentioned in the FIR. Apart from these, the FIR indicates that many others were present; The Informant (PW-1) has deposed that at the time of the incident, 40-50 people were there. Shiv Raj (PW-4) has deposed that there were 100-200 people at the time of incident; The application given by Daya Shankar (Ex. Kha-2) also states many other were present. This shows that there were many independent witnesses, yet none of them were produced. (iv) Investigation not upto mark. 58. The investigation was shoddy and there was slackness on the part of the prosecution. There are lapses in the prosecution. This has been dealt in point No. 1. It is a case of self defence. This gives an impression to the Court that the prosecution has not come out with complete facts. Case Doubtful 59. The incident did happen. Both sides admit it. Admittedly, the deceased was killed in front of the house of the accused side. According to the prosecution, he was carried over there to the house of the accused side. After killing him there, his dead body was kept in front of the house of Sankatha Prasad. According to the accused, the prosecution side had come over to the house of Ganesh Dube. According to the prosecution, he was carried over there to the house of the accused side. After killing him there, his dead body was kept in front of the house of Sankatha Prasad. According to the accused, the prosecution side had come over to the house of Ganesh Dube. The question is, whether the prosecution has proved its case beyond reasonable doubts. 60. The AGA and the counsel for the complainant submitted that: (i) There was no case that the prosecution side was the aggressor; (ii) There was also no case of self defence; (ii) It cannot be taken into account. 61. It is not correct to say that this case was not taken by the defence. We have already held in point-2 that the complaint dated 24.11.1979 was counter version and indicated that this case was taken up by the appellants. 62. In this case, The injuries are not consistent with the ocular evidence; The injuries of the accused side are not explained satisfactorily; Both sides have enough reasons to be an aggressor; There were independent witnesses, yet they were not produced; and It appears that prosecution has not come out with complete facts. These circumstances create a doubt in our mind, whether the incident happened as claimed by the prosecution or not. It is just possible that the prosecution side had come over to the house of Ganesh Dube and thereafter some shooting incident took place. They retrieved: Namvar Dube received some injuries at that time; the Deceased fell, and died in front of the house of Sankatha. CONCLUSIONS 63. Our conclusions are as follows : (i) In the circumstances of the case, no adverse inference should be drawn merely because statement, inquest, and post mortem report of Daya Shanker was not filed; However, there are lapses in the prosecution; (ii) The complaint dated 24.11.1979 filed by Daya Shanker is a counter version; (iii) It is not necessary for the prosecution to explain the injuries. However, in case the injuries are serious, not self inflicted, and yet are not explained satisfactorily then it may cause a reasonable doubt in the mind of the Court. So is the case here. (iv) There are doubts in the prosecution case. It has not been able to prove its case beyond reasonable doubt. 64. In view of our conclusions, the appeal is allowed. So is the case here. (iv) There are doubts in the prosecution case. It has not been able to prove its case beyond reasonable doubt. 64. In view of our conclusions, the appeal is allowed. The conviction and sentence dated 23.2.1982 is in ST No. 270 of 1981 is set aside. The appellants are already on bail. They need not surrender. Their bail bonds are cancelled and the sureties are discharged. ————