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2012 DIGILAW 1525 (ALL)

RAGHURAJ SINGH (NOW DEAD) v. STATE OF U. P.

2012-07-12

IMTIYAZ MURTAZA, VISHNU CHANDRA GUPTA

body2012
JUDGMENT Hon’ble Vishnu Chandra Gupta, J.—In this appeal the appellants Raghuraj Singh, Sunder Singh, Surender Singh and Hanuman Singh challenged their conviction and order of sentence dated 3.3.1982 recorded by learned Second Additional sessions Judge Hardoi, Sri A.L.Srivastava wherein they have been sentenced under Section 302 with the help of section 34 and 201of Indian Penal Code (In Short “I.P.C.”) with life imprisonment and rigorous imprisonment of 5 years with fine of rupees 2000/- respectively in session trial No. 646 of 1980, police station Atrauli, having crime No. -297 of 1977. 2. We have heard learned counsel for the appellants, learned A.G.A and learned counsel for the complainant and perused the record of this appeal as well as of the trial Court. 3. During the pendency of this appeal appellant No. -1, Raghuraj Singh passed away and appeal against Raghuraj Singh abated by order dated 11.8.2010. 4. In this appeal an application under Section 7-A of Juvenile Justice (Care and Protection of Children) Act 2000 has been moved alleging therein that appellant No. -3 Surender Singh was below 16 years at a time of commission of crime and his age as on date of crime was 15 years, 8 months and 19 days. The application has been disposed of by a separate order passed in appeal. FACTS 5. The facts in brief are as follows : On 28.10.1977 complainant Maharaj Singh (P.W.-1) was at his home. His niece Guddi came and told him that appellants Raghuraj Singh possessed with Lathi, Surender Singh, Sunder Singh armed with Kanta and Hanuman Singh armed with Banka, were coming from eastern side of the village and went towards their house. The arms were staining with blood. According to complainant Maharaj Singh, in his village Katka Khurd, there is a Gaddi of one Revtidas Gosai. Baba Madhavgiri was disciple of Revtidas. Ravtidas was possessing agricultural land and a house attached with Gaddi. Baba Madhogiri was managing the properties of Gaddi. A litigation was fought up to High Court in between accused Raghuraj Singh and Baba Madhogiri. Raghuraj Singh lost litigation in High Court at Lucknow Bench. For this reason Raghuraj Singh and others were having animus against Madhgiri. Due to fear of threats extended by Raghuraj Singh and others to Baba Madhogiri, Baba left village Katka Khurd and start living in village Akbarpur district Sitapur, situated across Gomti river. Raghuraj Singh lost litigation in High Court at Lucknow Bench. For this reason Raghuraj Singh and others were having animus against Madhgiri. Due to fear of threats extended by Raghuraj Singh and others to Baba Madhogiri, Baba left village Katka Khurd and start living in village Akbarpur district Sitapur, situated across Gomti river. On the basis of this enmity Maharaj Singh complainant, suspected that Raghuraj Singh might have murdered Baba Madhavgiri. He proceeded to search Baba Madhavgiri in village Akbarpur. In the way he saw lot of blood and marks of dragging towards Gomti river in field of Mahipal Singh. He also make search of Baba Madhavgiri alongwith Jagdev Singh Pradhan, Shiv Prakash Singh, Mulhe Teli and several other persons of the village, but he could not trace Baba Madhavgiri. On account of this suspicion the complainant Maharaj Singh lodged an oral First Information Report (In short “FIR”) (Exhibit-Ka-1) on 29.10.1977 at 18:10 hours (6:10 P.M.). Investigation proceeded thereafter and after completing the investigation the charge-sheet has been filed against all the four appellants for committing murder of Baba Madhavgiri and also for disappearing the evidence of murder, under Section 302 read with section 34 and 201 I.P.C. After committal of the case on 11.11.1980 to Court of Sessions learned Additional Sessions Judge charged the appellants under Section 302 with the help of Section 34 and 201 I.P.C. The learned Additional Sessions Judge after recording the evidence of prosecution, giving opportunity to accused persons to defend and thereafter, believing the prosecution case convicted and sentenced all the four appellants under both the heads separately as mentioned above. Aggrieved by the aforesaid judgment and order of conviction and sentence this appeal has been preferred by all the four appellants. SUBMISSIONS OF COUNSEL FOR APPELLANTS The learned Counsel for appellants submits that according to FIR version no body saw the incident of murder of Baba Madavgiri but the prosecution changed the story and introduced two alleged eye-witnesses namely Kunha (PW-5) and Puttulal (PW-6). These two eye-witnesses are not trustworthy and their evidence cannot be accepted as true because they were not present at the alleged places from where they said to have witnessed the alleged incident of murder of Baba Madhavgiri. These two eye-witnesses are not trustworthy and their evidence cannot be accepted as true because they were not present at the alleged places from where they said to have witnessed the alleged incident of murder of Baba Madhavgiri. If these witnesses saw the murder of Baba Madhavgiri their name should have been mentioned in the FIR as the FIR of this case have been lodged by the complainant on the next day, i.e on 29.10.1977 in the evening. The statement on oath of the complainant Maharaj Singh (PW1), Jaskaran Singh (PW4) and alleged eye-witness Kunha (PW-5) leave no room to doubt that Maharaj Singh met on 28.10.1977 with Kunha (PW5) and Puttilal (PW-6) before lodging the FIR. Even otherwise their evidence is not trust worthy for other reasons also. It is further submitted that Puttilal (PW-6) categorically stated that there were two parties in the village Katka Khurd, one is of complainant Maharaj Singh and other was of accused Raghuraj Singh. It is also established that all the witnesses of this case any how related to Maharaj Singh or is of his party. It is also admitted to prosecution witnesses that there is a deep rooted enmity in between two groups and the members of each group stood witness against each other in criminal cases. It is further submitted that death of Madhavgiri is not proved. His dead body yet not recovered. The recovery of alleged upper Jaw of some human being having no injury or cut marks cannot exclusively establish the death of Baba Madhavgiri. The recovery is also doubtful and evidence in this regard is unbelievable. The learned counsel for the appellants further submits that delay in lodging the FIR in this case with no plausible explan ation makes the whole prosecution story unbelievable. It is further submitted that there is no corroboration of evidence of Maharaj Singh(PW-1) and Guddi (PW-3) as no efforts were made to get the report of FSL to ascertain the human blood in the collected bloodstained earth. It is further submitted that all the witnesses of this case are got up witnesses and the appellants have been falsely implicated and deserves to be acquitted from all the charges after allowing the appeal. SUBMISSIONS OF GOVRNMENT ADVOCATE The learned A.G.A. vehemently argued that in this case a strong motive is there against the accused persons to commit this crime. SUBMISSIONS OF GOVRNMENT ADVOCATE The learned A.G.A. vehemently argued that in this case a strong motive is there against the accused persons to commit this crime. It is further submitted that it is not necessary in each and every case to disbelieve witnesses not named in FIR. There is evidence on record to show that P.W.-5 Kunha and P.W.-6 Puttu Lal disclosed the fact of murder after lodging the F.I.R. which is evident from the perusal of the F.I.R. itself. It was further submitted that both these witnesses are the eye-witnesses. Their version find support with the statement of Smt. Guddi. The recovered jaw was duly identified by the witnesses to be of Baba Madhavgiri. All these circumstances if taken together the guilt of the accused persons is proved beyond all reasona ble doubt and the trial Court has rightly convicted the appellants and minimum sentence has been awarded to them. Therefore, this appeal deserves to be dismissed. POINTS FOR CONSIDERATION After hearing learned counsel from both sides following points need to be considered in this appeal : 1. Whether P.W.-5 and P.W.-6 are trustworthy, fully reliable and truthful witnesses. 2. What would be the effect of non send ing bloodstained earth for chemical examination to ascertain the existence of human blood. 3. What would be the effect of delay in lodging the F.I.R. 4.whether the upper jaw of human being said to have been recovered was of Baba Madhavgiri, 5. whether the evidence of P.W.-3 coupled with evidence of P.W.-1 is sufficient to establish the guilt of accused persons. 6. What would be the effect of enmity and groupism of the village between the two groups. 6. FINDINGS WHETHER P.W.-5 AND P.W.-6 ARE TRUSTWORTHY, FULLY RELIABLE AND TRUTHFUL WITNESSES. 1. In this case P.W.-5 Kunha and P.W.-6 Putti Lal were produced as eye-witnesses of committing murder of Baba Madhavgiri by accused persons. Both these witnesses claimed themselves to be present at some distance from the place of occurrence. 2. Now we have to see whether the pre sence of these two witnesses can be believed in the fact and circumstances of this case and if the presence cannot be doubted as alleged by them there would be no hesitation in accepting evidence of these witness es. 2. Now we have to see whether the pre sence of these two witnesses can be believed in the fact and circumstances of this case and if the presence cannot be doubted as alleged by them there would be no hesitation in accepting evidence of these witness es. However if the presence of these two witnesses is found doubtful then certainly the evidence cannot be taken into consideration to support conviction recorded by the trial Court. Therefore, first of all this Court will examine the probability of their presence and opportunity to see the occurrence from the places from where they stated to be present at the time of commission of crime. 3. So far as P.W.-5 Kunha is concerned he is resident of Village Akbarpur which is in district Sitapur and situated across Gomti river and this village is also situated infront of village Katka Khurd which is on the other side of the river Gomti. This witness claimed his presence in his own field at about 10:00 a.m. on 28.10.1977. He stated that he was sowing wheat crop and Mohammad and Mathura Seth were also working at near by fields. According to his version Baba came from the side of village Akbarpur and crossed the river by boat and proceeded to village Katka Khurd. After sometime he heard screams of Baba Madhavgiri then he saw that accused Raghuraj was catching hold of Baba Madhavgiri and his three sons accused Surender, Sunder armed with Kanta and Hanuman armed with Banka were assaulting Baba. Raghuraj was possessing Lathi at that time. P.W.5 and other persons tried to cross the river but they failed because the boat was on the other side of the river bank. He tried to call owner of the boat but he was also escaped from there. He saw that accused persons turned Baba Madhavgiri into pieces and thrown into river and thereafter accused went towards their houses. 4. It is very important to mention here that this witness deposed on oath that after alleged brutal murder of Baba he again involved in sowing the wheat crop in his field and did not go to village Katka Khurd or to his house. During the cross-examination this witness stated that the Sub Inspector reached to his village on the third day from the date of occurrence at about 12: 00 noon. During the cross-examination this witness stated that the Sub Inspector reached to his village on the third day from the date of occurrence at about 12: 00 noon. At that time Sub Inspector was with Maharaj Singh, Puttan, Agnu, Putti Lal (P.W.-6), Mathura Prasad and Mohammad. He took his statement and after two hours the Sub Inspector returned and thereafter Sub Inspector never met him. In cross-examination he stated that he saw the incident from his field. The river bed is about 50 paces wide. He categorically stated that in the field where the incident occurred there was a crop of Juawar which is of more than the height of a man. He stated that he did not move ahead to see the incident. He stated that he is resident of Gonda and he occasionally visit once or twice in village Katka Khurd to see Maharaj Singh, Sher Singh and Jaskaran. 5. A very important statement this witness gave in Court that Maharaj Singh P.W.-1 and Sher Singh was searching the deceased Baba Madhavgiri and when they came to him on the day of incident. He told the entire story to them and asked to lodge the report. He categorically stated that this information has been conveyed to Maharaj Singh on the day when the incident was occurred and thereafter Maharaj Singh and others went to lodge the F.I.R. 6. To test the veracity of the statement of this witness, it is necessary to look into the evidence of P.W.-1 Maharaj Singh the complainant of this case, P.W.-3 Kumari Guddi, P.W.-4 Jaskaran Singh, P.W.-6 Putti Lal and P.W.-8 Johara Singh, the investigating officer of this case. 7. According to statement of P.W.-6 Putti Lal, he saw in the field of Mahipal that all the four accused persons were assaulting Baba Madhavgiri with Lathi, Banka and Kanta. Raghuraj Singh was catching hold of Baba Madhogiri and dragged inside Jauwar crop. Thereafter out of fear he ran away and went to his in-laws’ house and he returned after three days. This witness is resident of village Katka Khurd, in which the incident occurred. This witness deposed on oath that after incident he neither gone for harvesting the crop of Bazara in the field of Sher Singh nor he returned to his village Katka Khurd. According to this witness he has not met Maharaj Singh on the date of incident. This witness is resident of village Katka Khurd, in which the incident occurred. This witness deposed on oath that after incident he neither gone for harvesting the crop of Bazara in the field of Sher Singh nor he returned to his village Katka Khurd. According to this witness he has not met Maharaj Singh on the date of incident. According to him Sub Inspector met him after three days then he stated about the incident to the Sub Inspector/Investigating Officer. As per his own deposition he did not disclose the incident for about three days to anybody and told about the incident for the first time to the Investigating Officer after an interval of three days. This conduct of witness on one hand is most unnatural on the other hand makes the presence of this witness extremely doubtful as stated by him on the place from where he alleged to see the incident. 8. So far as the conduct shown by P.W.-5 Kunha after the incident, that he involved in usual work at his field after witnessing the incident of murder of Baba Madhavgiri who was turned into pieces by the accused persons. He does not have any sense of fear in his mind. A man after witnessing murder of a known person in such a brutal manner cannot behave in the manner as stated by him. This conduct is entirely against the normal human conduct. 9. So far as discrepancies about witnessing the incident by these two witnesses namely Kunha (P.W.-5) and Putti Lal (P.W.-6) are concerned, it reflects from the statement of these two witnesses. Kunha (P.W.-5) witnessed the incident from across the river and stated that he not only saw murder of the deceased by the accused persons but also saw that accused persons cutting the deceased into pieces and thrown into river. This part is tested in the light of evidence of P.W.-6 Putti Lal, he categorically stated that accused persons dragged deceased inside Jauwar crop which is more than the height of a man. He was very close to the scene of occurrence as stated by him. If he could not see what happened inside the Jauwar crop. How a man can witness the incident inside the Jauwar crop from across the river, the bed of which is about 50 paces wide. He was very close to the scene of occurrence as stated by him. If he could not see what happened inside the Jauwar crop. How a man can witness the incident inside the Jauwar crop from across the river, the bed of which is about 50 paces wide. It is also important to mention here that P.W.-3 Guddi who heard the scream of somebody coming from the field of Maharaj Singh also categorically stated on oath that there was crop of Jauwar and Arhar which was more than height of a man. This witness Kunha also categorically admitted in his cross-examination that at that place crop of Jauwar was more than height of a man. This shows that deposition of Kunha cannot be believed and he cannot be termed as a trustworthy witness. His post-incidental conduct is also such which makes the evidence of this witness unreliable. 10. It is a fact that name of these two witnesses Kunha (P.W.-5) and Putti Lal (P.W.-6) have not been cited in First Information Report as eye-witnesses. Keeping this fact into mind, we are going to test the veracity of these two witnesses in the light of statements of P.W.-1 Maharaj Singh and P.W.-4 Jaskaran Singh. 11. Maharaj Singh (P.W.-1) in his deposition deposed that Kunha (P.W.-5) and Putti Lal (P.W.-6) have stated to him about committing murder of Baba Madhogiri by accused persons. P.W.-1 in his deposition did not state that Kunha (P.W.-5) met him before lodging the FIR and during search of Baba Madhavgiri. According to P.W.-1, he was in doubt till he lodged the FIR that Baba Madhavgiri was murdered by the accused persons named in the First Information Report. This doubt was based on the information furnished by Kumari Guddi P.W.-3, who saw only the accused persons with arms coming from eastern side of the village. According to Maharaj Singh (PW-1), first of all, he went alone in search of Baba Madhavgiri after receiving the information from Guddi and found pool of blood and mark of dragging in the field of Mahipal, thereafter he again went to search Baba Madhogiri alongwith villagers including Jagdev Singh, Shiv Prasad, Mulahi Teli, Muninder Singh, etc. He categorically stated that after search, nothing was found nor he came to know about Baba Madhavgiri. He categorically stated that after search, nothing was found nor he came to know about Baba Madhavgiri. He categorically stated that he expressed his doubt for committing murder of Baba Madhavgiri against the accused persons to all who were accompanying him in search. This witness also deposed that whole village especially Putti Lal (PW-6), Kunha (PW-5), Puttai, Angnu, Mathura Prasad etc. came to know that Baba Madhogiri was killed on the date of incident but this witness did not name any accused on the basis of information from the villagers in which P.W.-5 Kunha, P.W.-6 Putti Lal were also included. 12. In view of the statement of P.W.-1, it could be ascertained that till FIR has been lodged this witness was in doubt of killing of Baba Madhavgiri and not certain that Baba Madhavgiri was murdered by accused persons. However he tried to emphasize that Putti Lal (P.W.-6) and Kunha (P.W.-5) were fully aware about the murder of Baba Madhavgiri. 13. P.W.-4 Jaskaran Singh is the witness of inquest prepared upon the ‘Human Jaw’ recovered from the river. In his cross-examination he deposed that he came to know that Baba Madhavgiri had been killed three days prior to recovery of Jaw because this news spread in the village on the basis of discloser made by Kumari Guddi P.W.-3 at about 10:00 a.m., on 28.10.1977. According to this witness the villagers assembled about 10:00 a.m. on the date of occurrence near Mansha Devi where murder took place of Baba Madhavgiri. This witness categorically named the persons collected there at about 10:00 a.m on the date of incident near Mansha Devi wherein the name of Putti Lal (P.W.-6) and Kunha (P.W.-5) was also included among those who collected there. It is also categorically stated by this witness that villagers collected after getting information from Guddi. 14. If the statement of P.W.-4 Jaskaran Singh is taken to be true then there remained no doubt that Putti Lal (P.W.-6) and kunha (P.W.-5) could not be the eye-witnesses. Moreover statement of P.W.-5 Kunha that he narrated the entire story of murder before lodging the FIR to Maharaj Singh P.W.-1 and Sher Singh could not be believed in the light of statements on oath of Maharaj Singh PW-1 and Jaskaran Singh PW-4. Moreover statement of P.W.-5 Kunha that he narrated the entire story of murder before lodging the FIR to Maharaj Singh P.W.-1 and Sher Singh could not be believed in the light of statements on oath of Maharaj Singh PW-1 and Jaskaran Singh PW-4. So far as P.W.-6 Putti Lal is concerned, according to his own deposition he left the village and went to in-laws’ house and returned to village after three days. Therefore, in view of statement of P.W.-4 Jaskaran Singh, the statement of Putti Lal that he left the village soon after the incident also become false because Jaskaran Singh P.W.-4 categorically stated that after getting the information from Guddi PW-3 Putti Lal PW-6 among those who collected at Mansa Devi near the place of occurrence about 10:00 a.m. on the date of occurrence. 15. The evidence of P.W.-4 Jaskarn Singh leaves no room to doubt that P.W.-5 Kunha and P.W.-6 Putti Lal are certainly got up witnesses and they virtually did not witness the alleged murder of Madhavgiri. 16. So far as the evidence of investigating officer is concerned, according to him he recorded the statement of Putti Lal (P.W.-6) and Kunha (P.W.-5) on 30.10.1977 i.e. after two days of the incident and not after three days as stated by Putti Lal (P.W.-6) and Kunha (P.W.-5). He categorically stated that the name of Kunha and Putti Lal as eye-witnesses were not disclosed to him by informant Maharaj Singh. Therefore the statement of Putti Lal (P.W.-6) and Kunha (P.W.-5) that they met Sub Inspector/Investigating Officer after three days of incident became false. 17. According to P.W.-3 Kumari Guddi he had not seen Putti Lal near the field of Maharaj Singh from where she heard screams of someone. She did not name P.W.-6 Putti Lal who claims to be a witness of incident from nearby place to the field of Mahipal Singh and which is in South adjacent to Mansha Devi. If the statement of P.W.-3 Kumari Guddi is taken to be correct the presence of P.W.-6 Putti Lal at the time of hearing the scream by P.W.-3 Kumari Guddi could not be established. 18. If the statement of P.W.-3 Kumari Guddi is taken to be correct the presence of P.W.-6 Putti Lal at the time of hearing the scream by P.W.-3 Kumari Guddi could not be established. 18. There is one more reason to believe that witnesses of fact are got-up witnesses because all the witnesses cited in this case as prosecution witnesses, are of the group (party) of Maharaj Singh informant who admittedly having inimical relations to the second group of the village headed by Raghuraj Singh (one of the accused) named in the incident whose three sons were also arrayed as accused in this case. The factum of existence of two groups in the village has been categorically admitted by P.W.-1 Maharaj Singh. 19. As per statement of PW-5 Kunha, he would not be a natural witness. PW-5 Kunha categorically stated that he is resident of District Gonda and he used to visit one or twice in village Katka to see Maharaj Singh, Sher Singh and Jaskaran Singh. It shows that Kunha PW-5 was present in village Katka by chance. It is also important that this witness gave his address of village Akbarpur District Sitapur only with intend to establish his presence at the time of occurrence and also to mislead the investigating agency as well as to the Court. 20. PW-6 Putti Lal as per own deposition going to cut the crop of Bazra belonging to shear Singh and stated that after incident he did not go for harvesting and straightway gone to his inlaws house. It shows that he has no land of his own. It would be unusual that person went to cut the crop of other, if not harvest the crop the owner will certainly try to know the reason from that person who did not cut crop on his instruction. Sher Singh is the person who was with Maharaj Singh complainant at the time of search just after getting information from Guddi PW-3. This shows that Putti Lal PW-6 has been inducted in the scene by complainant and Sher Singh. 21. Therefore on the basis of aforesaid discussions made above, Putti Lal (P.W.-6) and Kunha (P.W.-5) could not pass the test of trustworthiness, truthfulness and they failed to establish themselves as eye-witnesses of incident. This shows that Putti Lal PW-6 has been inducted in the scene by complainant and Sher Singh. 21. Therefore on the basis of aforesaid discussions made above, Putti Lal (P.W.-6) and Kunha (P.W.-5) could not pass the test of trustworthiness, truthfulness and they failed to establish themselves as eye-witnesses of incident. After considering the evidence of all the witnesses, it is established that Putti Lal (P.W.-6) and Kunha (P.W.-5) were not eye-witnesses but they are got up witnesses. WHETHER UPPER JAW OF HUMAN BEING SAID TO HAVE BEEN RECOVERED WAS OF BABA MADHAVGIRI. 22. To ascertain these facts the evidence produced by the prosecution has to be gone into. The features of Baba Madhogiri, has not been disclosed either in First Information Report or in statements of the witnesses recorded prior to the recovery of jaw under section 161 Cr.P.C. There is no evidence on record to show that this jaw was having any cut mark or had any flash over the same by which part of the face may be made feasible to identify. The cause of identification shown was missing a teeth from the socket of the jaw which could not be the conclusive proof that the jaw which was said to be recovered was of Baba Madhavgiri. Moreover, the jaw has not been recovered on the pointing out of any accused. It is also important that other part of the body were not found. The post-mortem examination depicts that there is no mark of injury found by the doctor upon this jaw. Therefore on the basis of recovery of that jaw it cannot be said with certainty that the same is of Baba Madhavgiri, especially when the evidence of Putti Lal (P.W.-6) and Kunha (P.W.-5) were not found trustworthy and truthful. The corpus of Baba Madhavgiri has not been recovered though it is true that Baba Madhogiri was not seen alive after this incident. But this fact should be kept in mind that Baba Madhavgiri is not a person having any family and he was passing life of a Saint and possibility could not be ruled out that due to severe enmity he must have left the place to settle himself somewhere else, where he could pass his life with peace. 23. But this fact should be kept in mind that Baba Madhavgiri is not a person having any family and he was passing life of a Saint and possibility could not be ruled out that due to severe enmity he must have left the place to settle himself somewhere else, where he could pass his life with peace. 23. According to witness Maharaj Singh PW-1 he reached the police station at 10:00 p.m on 28.10.1977 and left the village at 6:00 p.m. on the same date. He went to police station by cycle and remained in the police station during whole night and came back at about 8:00 a.m. on 29.10.1977. According to him his statement was recorded by the Investigating Officer in the police station. He also stated that two hours after returning from police station, Sub Inspector reached the village and on the next day the Jaw was recovered in between 09:00 to 10:00 a.m. If it is so the date or recovery comes to 30.10.1977 and not 31.10.1977 which also falsify the recovery 24. On the basis of the aforesaid discussion the prosecution has failed to establish beyond reasonable doubt that the jaw said to be recovered was of Baba Madhavgiri. WHAT WOULD BE THE EFFECT OF NON SENDING OF BLOOD STAINED EARTH FOR CHEMICAL EXAMINATION TO ASCERTAIN THE EXISTENCE OF HUMAN BLOOD. 25. The investigating officer has categorically stated that he did not send the blood stained earth for chemical examination for ascertainment of human blood. It is important to mention here that P.W.-3 Kumari Guddi stated on oath that when he asked Raghuraj Singh, one of the accused, he told that he killed a mad dog. In the light of this statement it was incumbent upon investigating officer to send the blood stained earth for chemical examination to ascertain the existence of human blood. 26. What would be effect of non sending bloodstained earth for chemical examination shall be considered in the light of other circumstances available in this case. In this case as per statement of PW-3 Km. Guddi appellant Raghuraj Singh told to her that they killed a mad dog. If it is so and prosecution was intending to prove that whatever Raghuraj Singh told to Km. Guddi was wrong it was incumbent upon prosecution to establish at least that human blood was found in bloodstained earth. 27. In this case as per statement of PW-3 Km. Guddi appellant Raghuraj Singh told to her that they killed a mad dog. If it is so and prosecution was intending to prove that whatever Raghuraj Singh told to Km. Guddi was wrong it was incumbent upon prosecution to establish at least that human blood was found in bloodstained earth. 27. Moreover in this case corpus dilicti(dead body)of Madahvgiri was not found. In such circumstances prosecution was under an obligation to establish it case by direct or circumstantial evidence conclusively showing that victim had died and accused committed his murder as held in Ram Gulam Chaudhary and others v. State of Bihar, (2001) 8 SCC 311 . In this case P.W.-5 Kunha and PW-6 Puttulal are not adjudged as reliable witnesses In such circumstances this lapse on the part of prosecution would become significant. WHAT WOULD BE EFFECT OF DELAY IN LODGING THE FIRST INFORMATION REPORT? 28. According to prosecution story the said incident has been occurred at about 10:00 A.M. on 28.10.1977 and admittedly the First Information Report of this case was lodged on 29.10.1977 at 18:10 hours i.e. at 06:10 p.m. If this delay is considered in the light of statement of P.W.-1 then it will play a significant role. According to P.W.-1 Maharaj Singh he left the village on 28.10.1977 at 6:00 p.m. and reached the concerned police station at about 10:00 p.m. According to him he stayed whole night in the police station and in the morning the FIR was lodged and he came back to his own village in between 09 to 10 a.m. On 29.10.1977. According to P.W.-1 Maharaj Singh, his statement have recorded by the investigating officer in the police station and his First Information Report had been lodged when Sub-Inspector came into the police station and oral information was reduced in writing as Ext. Ka-1. 29. As per deposition of P.W.-8 Johara Singh, the investigating officer of the case, the First Information Report in this case was lodged in his absence and Constable Kadir took the papers from the police station and handed over to him in village Majhgawan situated at a distance of about 3 Km from village Katka Khurd. Ka-1. 29. As per deposition of P.W.-8 Johara Singh, the investigating officer of the case, the First Information Report in this case was lodged in his absence and Constable Kadir took the papers from the police station and handed over to him in village Majhgawan situated at a distance of about 3 Km from village Katka Khurd. He stated that Kadir handed over papers at about 8:00 p.m. on 29.10.1977 and Maharaj Singh was accompanying Kadir and he took the statement of Maharaj Singh in village Majhgawan and then proceeded to place of occurrence and reached village Katka Khurd at about 08:30 p.m. This shows that the story narrated by P.W.-1 Maharaj Singh is entirely in contradiction with deposition of P.W.-8 Johara Singh. According to P.W.-1 he came back from the police station on 29.10.1977 in between 09 to 10 a.m. and after interval of two hours Sub-Inspector reached the village though the First Information Report was lodged according to police papers in the evening at 06:10 p.m. on 29.10.1977. Therefore the explanation given by P.W.-1 about the delay in lodging the First Information Report is not believable. 30. In Swarn Singh v. State of Punjab, (1976) 4 SCC 369 , it has been held that the delay in lodging the FIR or contemplated U/S 157 Cr.P.C. for doubting the authenticity of FIR is not every delay but only extraordinary and unexplained delay. However, in the absence of prejudice to the accused the delay does not vitiate the trial. 31. As is evident from the above mentioned analysis of facts the delay is this case would certainly extraordinary and unexplained. And as the prosecution improved his case step by step from inimical and partisan witnesses the prejudice to accused shall bound to occur. 32. Consequently the prosecution failed to establish that the First Information Report has been lodged at the time stated by the prosecution and virtually it is anti-time F.I.R. The effect of it has already been discussed above. WHAT WOULD THE EFFECT OF ENMITY OF VILLAGE BETWEEN THE TWO GROUPS. 33. It is established from the statement of P.W.-1 & P.W.-6 that there are two groups in the village one is headed by Maharaj Singh the informant of this case, and the other headed by Raghuraj Singh one of the accused of this case. According to P.W.-1 he has enmity with Raghuraj Singh prior to this incident. 33. It is established from the statement of P.W.-1 & P.W.-6 that there are two groups in the village one is headed by Maharaj Singh the informant of this case, and the other headed by Raghuraj Singh one of the accused of this case. According to P.W.-1 he has enmity with Raghuraj Singh prior to this incident. He used to give evidence against Raghuraj Singh and Raghuraj Singh gave evidence in the cases against him. This witness categorically admitted that one Shiv Nandan of village Katka moved an application against informant Maharaj Singh, in this matter Raghuraj Singh and his party persons gave evidence against informant. By that time he was holding the post of Pradhan. On the basis of complainant of Shiv Nandan informant Maharaj Singh was removed from the post of village Pradhan. It was also stated by this witness that one Sri Ram Teli filed criminal complaint against accused Raghuraj Singh and Ram Singh wherein he deposed against Raghuraj Singh and Ram Singh. All this happened before the incident of this case. 34. The statement of P.W.-1 and P.W.-6 coupled with statement of P.W.-4 fully established that there was deep routed enmity of Maharaj Singh with accused Raghuraj Singh and his family. It is true that there is evidence on record that a litigation has been fought in between Baba Madhogiri the deceased, and Raghuraj Singh accused. On the basis of this enmity the if there is a strong motive for committing the crime by the accused persons than on the contrary it could be a good and strong ground to falsely implicate the members of the rival group including the head of the group Raghuraj Singh. It is also pertinent to mention here that all the witnesses of group headed by Maharaj Singh were introduced in this case as witness and are closely related with Maharaj Singh. Therefore in the given circumstances the possibility of this fact could not be ruled out that accused persons have been falsely implicated in the above mentioned case to take the revenge on account of enmity in between the two groups of the village. WEATHER THE EVIDENCE OF P.W.-3 COUPLED WITH EVIDENCE OF P.W.-1 WOULD BE SUFFICIENT TO ESTABLISH THE GUILT OF THE ACCUSED. 35. If we exclude the evidence of P.W.-5 and P.W.-6 the evidence of P.W.-3 remains. 36. WEATHER THE EVIDENCE OF P.W.-3 COUPLED WITH EVIDENCE OF P.W.-1 WOULD BE SUFFICIENT TO ESTABLISH THE GUILT OF THE ACCUSED. 35. If we exclude the evidence of P.W.-5 and P.W.-6 the evidence of P.W.-3 remains. 36. In Govindraju @ Govinda v. State, (2012) 4 SCC 722 , the Supreme Court in paras 24 and 25 has observed “24. It is settled proposition of law of evidence that it is not the number of witnesses that matters but it is the substance. It is also not necessary to examine a large number of witnesses if prosecution can bring home the guilt of accused even with a limited number of witnesses. In Lallu Manjhi v. State of Jharkhand, (2003) 2 SCC 401 , this Court has classified the oral testimony of witnesses into three categories: (a) Wholly reliable (b) Wholly unreliable, and (c) neither wholly reliable nor wholly unreliable. In the third category of witnesses, the Court has to be cautious and see if the statement of such witness is corroborated, either by the other witness or by other documentary or expert evidence. 25. Equally well-settled is proposition of law that where there is a sole witness to the incident, his evidence has to be accepted with caution and after testing it on the touchstone of evidence tendered by other witnesses or evidence otherwise recorded. The evidence of sole witness to be cogent,reliable and must essentially fit into the chain of events that have been stated by the prosecution. When the prosecution relies upon the testimony of sole eye-witness, than such evidence has be be wholly reliable and trustworthy. Presence of such witness at occurrence should not be doubtful. If the evidence of sole witness is in conflict with other witnesses, it may not safe to make such statement as a foundation of the conviction of the accused. These are few principles which the Court has stated consistently and with certainty." In the light of this authority the evidence of prosecution witnesses ought to be scrutinized. 37. P.W.-3 Kumari Guddi stated on oath that on the date of occurrence she alongwith Munni went to offer Prasad to Mansha Devi which is situated near Gomti river at about 09:00 a.m. When she was returning alongwith his sister Munni and when she reached near Mahipal Singh’s field she heard someone screams. She out of fear proceeded towards the house and did not stay there. She out of fear proceeded towards the house and did not stay there. When she was few steps ahead he saw Raghuraj Singh, Sunder, Surender and Vasudev coming from the south of the village they were armed with Lathi, Kanta and Banka. Their clothes were stained with blood. She asked Raghuraj Singh “Uncle where you have gone” Raghuraj Singh replied “go to your own house we have killed a mad dog.” According to her deposition she came back her house and told it to Maharaj Singh the informant of this case at about 10:00 a.m. She stated that she heard the screams at about 10:00 a.m. In cross-examination she stated that Mahipal Singh has an agriculture field adjacent to Mansha Devi and is situated in the Southern side. She also stated that in the field of Maharaj Singh and in near by places there was crop of Arhar and Jauwar of the height of more than a person. According to her the statement under Section 161 Cr.P.C. recorded by the investigating officer after 6-7 days from the date of incident. She also stated that only she disclosed these facts to Maharaj Singh alone. In the light of statement of P.W.-8 Johara Singh, Kumari Guddi did not gave statement that Raghuraj Singh and others were wearing bloodstained clothes. She also did not state about so called conversation between her and Raghuraj Singh. It is also important to mention that the fact of conversation of P.W.-3 with Raghuraj Singh, hearing of the screams near the field of Mahipal Singh, bearing the clothes stained with blood by the accused and the name of Vasudev was not available in the First Information Report. Therefore the statement of this witness if scanned in the light of statement of P.W.-1 the conversation with Raghuraj Singh with Guddi, the presence of blood on the clothes of accused persons and hearing the screams of somebody is not believable because these statement would be improvement in the evidence of P.W.-3 in the light of statement of P.W.-8 Johara Singh the Investigating Officer and P.W.-1 Maharaj Singh. It is a specific statement of P.W.-1 that he has not seen any occurrence and whatever reported to the police was based on the information received by him from Kumari Guddi PW-3. In cross-examination she stated that Raghuraj Singh told him that they killed a mad dog. It is a specific statement of P.W.-1 that he has not seen any occurrence and whatever reported to the police was based on the information received by him from Kumari Guddi PW-3. In cross-examination she stated that Raghuraj Singh told him that they killed a mad dog. If in the bloodstained earth human blood would have been found the prosecution could establish this fact that whatever has been stated by Raghuraj Singh to P.W.-3 was not correct. But in absence of the chemical examination report of bloodstained earth the prosecution story of killing Baba Madhogiri cannot be proved. P.W.-1 is not eye-witness therefore the evidence of P.W.-1 coupled with P.W.-3 could not said to be sufficient to establish the guilt of the accused persons especially when the evidence of P.W.-5 and PW-6 was not found reliable and trustworthy. CONCLUSION 38. Considering all the facts and circumstances of the case and the findings arrived at on different issues the prosecution has utterly failed to establish the guilt of the accused persons beyond all reasonable doubts. Consequently, the conviction and sentences recorded by judgment dated 3.3.1982 in sessions trial No. 646 of 1980 related to crime No. 297 of 1977 of P.S.Atruli District Hardoi, under section 302 read with Sections 34 and 201 I.P.C. are set-a- side. 39. The appeal is allowed and the appellants Sunder Singh, Surender Singh and Hanuman Singh son of late Sri Raghuraj Singh are hereby acquitted from the charges leveled against them. They are on bail hence they need not to surrender. They are set on liberty. Their bonds are canceled. ——————