JUDGMENT Per: Hon’ble Servesh Kumar Gupta, J. This government appeal assails the judgment and order of acquittal dated 6.1.2003 rendered by learned Additional Sessions Judge/FTC-III, Dehradun in S.T. No.212 of 1995, titled as ‘State Vs. Hanif and Shashank Sharma”. The trial pertained to crime no.716/1995, P.S. Kotwali Dehradun, wherein both the accused persons were tried for the offences punishable under Section 302 r/w Section 34 IPC and Section 394 r/w Section 397 IPC. Learned Additional Sessions Judge did not find both the accused persons guilty in either of the above offences and, accordingly, passed the judgment and order of acquittal, which is under challenge in this appeal. 2. This Court has heard the arguments and submissions on behalf of the parties and has also perused the entire material available on record. 3. At the outset, it would be relevant to note down the facts, as disclosed in the first information report, which was lodged on 14.7.1993 at 23:05 PM by one Matlub Ahmed. The incident is of the same night, i.e. 14.7.1993 at 22:15 PM, which took place at Dhamawala intersection of Dehradun city. At the time of incident, deceased Saeed Ahmed @ Pannu was driving the scooter, whereas Matlub Ahmed was on the pillion. When they were near the said intersection, from behind came two unknown persons on a scooter while, the accused Hanif @ Hakla and Shashank Sharma @ Billu came on a motorcycle. The persons, who were on scooter, kicked the scooter of Pannu and the two Pannu and Matlub fell down from the scooter. They then began stabbing Pannu with the knives they were carrying. Anyhow, Matlub Ahmed escaped and ran towards ‘Dhamawala market’ in order to save himself and from there, he saw again all the four persons, including the two accused Hanif and Shashank continuously stabbing Pannu. The complainant went 100-150 paces ahead where he noticed the presence of two police constables and informed the incident to them. When the informant returned at the spot with these constables, he saw there four persons running away in their respective vehicles, taking away with them the ‘webley scott’ revolver of Pannu. However, they could not be apprehended. Both the constables fetched a three-wheeler auto vehicle and carried the injured at District hospital where he was declared brought dead. 4. When the informant returned at the spot with these constables, he saw there four persons running away in their respective vehicles, taking away with them the ‘webley scott’ revolver of Pannu. However, they could not be apprehended. Both the constables fetched a three-wheeler auto vehicle and carried the injured at District hospital where he was declared brought dead. 4. The complainant Matlub Ahmed, leaving both the constables with the injured at the district hospital, rushed to the police station for lodging the FIR, the ‘Chik report’ whereof is Ex.A-4. The report was lodged just after 50 minutes of the incident which occurred three furlong away from the Police Station, Kotwali Dehradun. 5. In the FIR itself, the informant has narrated the background of the incident, which reveals the motive for the accused persons for committing this ghastly crime and we would be coming to this aspect in a short while. 6. The police, after investigation, submitted the chargesheet (Ex.A-18) only against two accused Haneef @ Hakla and Shashank Sharma @ Billu for the offences, as aforementioned. 7. On 27.10.1995, learned First Additional Sessions Judge, Dehradun framed charges against both the accused for all the offences as per the chargesheet. The charges were denied by the accused and they claimed trial. 8. The prosecution has examined witnesses PW1 Vinod Kumar, PW2 Sayeed Ahmad, PW3 Abdul Gaffar, PW4 Matloob Ahmad (complainant), PW5 H.M. Ganga Prasad, PW6 Dr. A.S. Bisht (who conducted autopsy), PW7 Shehzad, PW8 Sakeel Ahmad, PW9 Constable Suresh Pal, PW10 S.I. Surender Pal and PW11 S.I. Yogesh Chand (I.O. of the case). Constable Hem Raj was also examined as C.W.1. 9. It would be worthwhile to mention the injuries found on the body of deceased Saeed @ Pannu at the time of post-mortem. The autopsy (Ex.A-8) was conducted on 15.7.1993 at 5:15 PM. PW6 Dr. A.S. Bisht has found the following ante-mortem injuries on the dead body: - 1. “Stab wound 3 cm x 0.5 cm x opening into trachea. 3 cm below angle of mandible on left side neck. 2. Incised wound 1.5 cm x 0.5 cm x muscle deep left side neck, 3 cm below injury no.1. 3. Stab wound 1.5 cm x 0.5 cm x 2 cm deep, left neck, 5 cm below left ear. 4. Stab wound left side front of chest, 6 cm below left nipple 3 cm x 0.5 cm x thoracic cavity deep. 2. Incised wound 1.5 cm x 0.5 cm x muscle deep left side neck, 3 cm below injury no.1. 3. Stab wound 1.5 cm x 0.5 cm x 2 cm deep, left neck, 5 cm below left ear. 4. Stab wound left side front of chest, 6 cm below left nipple 3 cm x 0.5 cm x thoracic cavity deep. 5. Incised wound 1.5 cm x 0.5 cm x muscle deep outer aspect left elbow. 6. Incised wound 2.5 cm x 0.5 cm x muscle deep, palmer aspect of left hand towards little finger. 7. Stab wound 2.5 cm x 0.5 cm x abdominal cavity deep, outer part of front of abdomen, 15 cm from umbilicus. 8. Incised wound 1.5 cm x 0.5 cm x bone deep over left iliac crest.” The medical officer has opined the cause of death due to ante-mortem injuries causing shock and hemorrhage. 10. Having heard learned counsel for the parties, it would be worthwhile to examine the statements of the witnesses which, in view of this Court, have not been properly appreciated by the trial court. 11. PW1 Vinod Kumar is simply a witness of recovery of scooter, bloodstained soil and pieces of stone from the spot by the police. The memo of recovery are Ex.A-1 and A-2 respectively which have been proved by this witness. PW2 Saeed Ahmed is mainly a witness of inquest report Ex.A-3 prepared on 15.7.1993 at 10 AM. He has signed on that report and has also proved the motive of Shashank Sharma @ Billu to commit this crime. He has proved that deceased Saeed @ Pannu had hired the orchard of one Sandeep Goel and the latter wanted to take the garden back from the deceased. Pannu, in turn, did not oblige and this was the cause of enmity between the two. He has proved this much that Haneef’s first partner was Shehzad and later on, the latter was doing business in collaboration with deceased Saeed @ Pannu. 12. PW3 Abdul Gaffar is an eyewitness of the incident. Although, he was originally the resident of ‘Saharanpur’ city, but he used to sell his fruits on a handcart in Dehradun town itself and very often, in the locality of Clock Tower and Roadways Bus Stand, which is nearby the place of occurrence. He was in acquaintance with both the accused persons as well as the deceased. Although, he was originally the resident of ‘Saharanpur’ city, but he used to sell his fruits on a handcart in Dehradun town itself and very often, in the locality of Clock Tower and Roadways Bus Stand, which is nearby the place of occurrence. He was in acquaintance with both the accused persons as well as the deceased. The acquaintance of this witness was quite natural because he was a fruit vendor, whereas deceased Saeed had his wholesale business of fruits. In that connection, deceased had also hired the orchard of one Sandeep Goel, on contract, which was subsisting till 1999. It has been revealed in the evidence of other witnesses that Mr. Goel wanted to terminate this contract much prior to 1999 and for that reason, he and his manager Shashank Sharma @ Billu, had also threatened the deceased. The witness PW3 has stated that at about 10:15 PM, on the date of incident, when after selling his fruits, he was going to his house, he saw at Dhamawala intersection that Saeed @ Pannu was being stabbed by knives by four persons. Out of these four, he knew Haneef and Shashank Sharma @ Billu (the accused). He has also identified accused Billu in the court during evidence. When Saeed was fatally wounded, his revolver was taken by accused Billu. He also noticed that from one side, Matlub was coming with two police constables. The accused Hanif and Billu, on a motorcycle, while other two unidentified assailants, on a scooter, escaped from the spot. He witnessed this incident in the light of the public lamppost. A number of persons had been assembled there including another fruit hawker Nizamuddin. This witness then went to his house. It can significantly be noticed that no cross-examination was done by the defence from this witness on the day when his examination-in-chief was recorded on 10.12.1999. However, he was cross-examined after almost 6½ months, and the accused, although could not impeach this witness about his narration of incident, but in cross-examination, he has denied the acquaintance with another witness Nizamuddin. This is obvious for the reason that Nizamuddin was named as eyewitness in the chargesheet. 13. PW4 Matlub is yet another star witness who was the pillion rider on the scooter being driven by deceased Saeed at the relevant time. This is obvious for the reason that Nizamuddin was named as eyewitness in the chargesheet. 13. PW4 Matlub is yet another star witness who was the pillion rider on the scooter being driven by deceased Saeed at the relevant time. This witness is also resident of Saharanpur city, but has stated that by vocation, he is a contractor and used to reside in Dehradun city itself. He has stated that Saeed used to take contracts of orchards and in that connection, he had acquaintance with Haneef and Shehzad. Haneef was having the wholesale business of fish. Initially, his partner was Shehzad, later on differences between Haneef and Shehzad cropped up, so, Haneef ousted Shehzad from his business and wanted him to leave Dehradun city in order to rule out any possibility of him running a parallel business. But the latter did not give way to Haneef who wanted his monopoly in the market. Shehzad made one Naushad his partner and started fish business, the consequence of which was that earlier Shehzad and his new partner Naushad were beaten by Haneef. Thus, Naushad left the partnership and Shehzad continued his business incoming of Saeed @ Pannu. Having noticed the joining of Saeed with Shehzad, accused Haneef threatened them as well and warned them to leave the business partnership of Shehzad but Saeed did not listen. In short, there was a motive in the mind of Haneef as he wanted to get rid of Saeed. On the other hand, as we have already noticed, there was a motive also in the mind of accused Shashank Sharma @ Billu at the behest of his master Sandeep Goel to remove Saeed @ Pannu from the way because he had started civil litigation against accused Shashank Sharma and his master Sandeep Goel on the question of contract of orchard, besides moving different applications to the higher authorities and the police. 14. Consequently, both the accused Haneef @ Hakla and Shashank Sharma @ Billu had a common object and motive to remove Saeed from their way. This motive has also been categorically explained by PW8 Shakeel Ahmed, who is brother-in-law of deceased and resides in Dehradun city itself. 14. Consequently, both the accused Haneef @ Hakla and Shashank Sharma @ Billu had a common object and motive to remove Saeed from their way. This motive has also been categorically explained by PW8 Shakeel Ahmed, who is brother-in-law of deceased and resides in Dehradun city itself. Even Shehzad Khan, the initial partner of Haneef, although has been declared hostile by the prosecution but this much has been stated by him also in his chief examination that he initially started his fish business with Haneef which ran for three years. Due to the dispute between them, he gave up the partnership with him and joined Naushad in the business. Since Naushad too was negligent, he also gave up his partnership and took Saeed @ Pannu (deceased) with him to run the business. He has also stated that at the time of incident, Saeed @ Pannu was doing business with him. So, this much statement of PW7 Shehzad Khan finds support and corroboration of the facts stated by PW2, PW3, PW4 and PW8. Besides motive, while narrating the incident, he has categorically stated that at about 10:15 AM of the fateful day, when he was accompanying the deceased on the scooter, four persons came from behind, two were on a scooter who were unknown assailants, whereas on the motorcycle were Haneef and Shashank. The scooter borne persons kicked their scooter as a result of which they (Matlub and deceased) lost balance and fell down. Then all the four accused pounced upon Saeed and started stabbing him with knives held by them. He (Matlub) ran for his life towards Dhamawala market where he saw two constables coming at about 150 paces. He informed the policemen about the incident and returned at the spot with these constables. By the time they reached the spot, they noticed that accused were taking to their heels from the spot after taking away the revolver of Saeed. They witnessed the incident in the electric tube light. One of the constables fetched a three-wheeler and placed the fatally wounded Saeed on it and left for the district hospital, while Matlub Ahmed rushed for the in-laws house of injured Saeed to inform them of the incident. After extending this information to his in-laws, he reached the district hospital where he found his brother-in-law Saeed dead. One of the constables fetched a three-wheeler and placed the fatally wounded Saeed on it and left for the district hospital, while Matlub Ahmed rushed for the in-laws house of injured Saeed to inform them of the incident. After extending this information to his in-laws, he reached the district hospital where he found his brother-in-law Saeed dead. Soon thereafter, he went to the police station for lodging the report and the same could be lodged just after 50 minutes of the incident. It can be noted here that in-laws house of Saeed is nearby Dhamawala market and district hospital is also not far off, so Matlub took only 45 to 50 minutes in performing the aforesaid exercise and this is also not unnatural. So, learned Additional Sessions Judge, in this regard, has wrongly assumed that the FIR was ante-timed. 15. It can again be noticed that the chief examination of PW4 was conducted on 22.6.2000, whereas he was cross-examined by the defence witness only after seven months. 16. PW5 is Head Constable Ganga Prasad who has recorded the first information report in the case diary and has issued the Chik (Ex.A-4) and proved the same as well. PW6 is Dr. A.S. Bisht, who has conducted the autopsy and found the injuries, which have been aforementioned. 17. PW7 is Shehzad Khan, whose evidence has already been discussed by us. Although he has become hostile but at the cost of repetition, it must be stated that he has also accepted his business with Haneef, Naushad and Saeed, as has already been discussed by us above. 18. PW8 is Shakeel Ahmed, who is brother in law (SALA) of deceased Saeed, resident of Dhamawala, within Dehradun town itself. His evidence too has been discussed by us above which discloses the motive nurtured by accused persons to commit this crime. 19. PW9 Constable 391 C.P. Suresh Pal Singh is again an important witness, who was on his picket duty in Dhamawala market at the relevant date and time. He has stated that when he along with his partner constable Desh Raj, were performing their duties, then an unknown person came from Dhamawala intersection and told that some quarrel had taken place near Dhamawala mosque. Hearing this, both the constables went to the said mosque but could not find anyone. He has stated that when he along with his partner constable Desh Raj, were performing their duties, then an unknown person came from Dhamawala intersection and told that some quarrel had taken place near Dhamawala mosque. Hearing this, both the constables went to the said mosque but could not find anyone. So they returned at the spot which has been assigned as place ‘A’ in the Map Ex.A-15, prepared by the investigating officer. The said place has been assigned as Dhamawala market. The statement of this witness also gets corroboration by his fellow constable Desh Raj who has been examined as a court witness. A few minutes later, Matlub rushed towards these constables and informed them about the incident, then they came at the spot and found the injured Saeed lying in a pool of blood. Although this constable Suresh Pal Singh, who was examined after more than 7½ years of the incident, has made minor discrepancies from the facts narrated by other witness who is constable Desh Raj, nonetheless he has supported about the lying of injured soaked in the blood at the spot. He thereafter went to fetch a three-wheeler for shifting the injured at district hospital. While admitting Saeed at the hospital, the medical officer searched his belongings and found Rs.1,810/- in cash, a licence of revolver as well as the case of the same without weapon, nay a gold chain, a wrist watch and a finger ring. Notwithstanding his hostility in narrating the prosecution version, as has been stated by other witnesses, his statement, as discussed above, is admissible for corroborating the facts which have been revealed by other reliable prosecution witnesses as well as his fellow constable Desh Raj, who was called as a court witness. Constable 359 Desh Raj has supported the prosecution version, as has been stated above by the eyewitnesses, except that he did not see the assailants stabbing knives to Saeed. He has stated that by the time he reached the spot after taking Matlub (PW4) and his companion picket constable Suresh Pal Singh (PW9), the assailants were escaping from the spot on their respective vehicles. In the morning, both constables came at the police station and deposited the movable belongings, recovered from the body of deceased, which were searched by the doctor. 20. PW10 is S.I. Surendra Singh. In the morning, both constables came at the police station and deposited the movable belongings, recovered from the body of deceased, which were searched by the doctor. 20. PW10 is S.I. Surendra Singh. He has only proved the recovery of bloodstained soil, as also the preparation of the inquest report Ex.A-3. 21. PW11 is S.I. Yogesh Chand Sharma, who was the investigating officer and has proved the submission of chargesheet Ex.A-18. 22. Now, after going through the impugned judgment, we feel that the trial court has not appreciated, in fact, overlooked much of the reliable statements of the eyewitnesses. In paragraph 24 of the judgment, this much finding has been recorded by the court below that the time, date, place and manner as well as the motive of occurrence is proved beyond reasonable doubt by the prosecution. However, in paragraph 27 of the said judgment, the trial court has doubted the presence of PW4 Matlub at the spot just for the reason that the name of deceased was not disclosed by him to the police constable by assuming that had he disclosed the name of his injured brother-in-law Saeed to the police picketing personnel, then the latter, in turn, would have disclosed the same to doctor in the hospital. This is not a correct assumption on the part of trial court because in such a moment, a panic struck person is not expected to state each and every detail. The state of mind of Matlub is not such where he is expected to remember and state every detail. He is himself terror struck and in danger of his own life. Thus, it was not unnatural on his part to omit the disclosure of name of injured Saeed. Even if it is assumed that he had disclosed the name, then also it was not natural for the police constables to remember the name of injured all time while taking care of the fatally wounded Saeed after fetching a three-wheeler and to carry him to the district hospital in order to save his life. Learned Additional Sessions Judge was also wrong in harping upon the discrepancies regarding presence of electric light or the darkness at the spot. It is pertinent to mention that it was an incident in the market. Learned Additional Sessions Judge was also wrong in harping upon the discrepancies regarding presence of electric light or the darkness at the spot. It is pertinent to mention that it was an incident in the market. Although the time of incident was 10:15 PM but in the month of July, i.e. the summer season, it cannot be expected that the market must have been given a totally deserted look. This may be possible that after the failure of power supply for a minute or two, supply would have been again normal. The view of learned Additional Sessions Judge expresses only his imaginative doubt about the presence of PW3 Abdul Gaffar (an eyewitness) on the ground that the market was closed and he was simply a vendor of the fruits, thus, there was no occasion for him to remain present at the spot. Here also, the finding of trial court is perverse because PW3 was simply a handcart fruit vendor and it was a usual course for him that after selling his fruits, he was going to his house. The time was not so odd in the month of July in Dehradun city and that too, in the busy market, so as to negate the presence of this witness altogether from the spot. 23. Learned Additional Sessions Judge was further wrong in negating the presence of PW4 Matlub on the ground that he did not sustain any injury while their scooter fell down after giving a kick by the assailants. In the market, the speed of scooter can be slow. He was simply a pillion rider, so it was quite possible not to suffer any glaring injury as to compel him for the medical examination or the treatment. That apart, PW4 himself stated on oath that on account of falling down from the scooter, he suffered minor injuries. In paragraph 28 of the judgment, the trial court has also drawn a wrong assumption that the natural conduct of PW4 would have been to accompany the police constables to the hospital but he did not do so, as such, his presence was doubtful. We do not agree with this view expressed by learned Additional Sessions Judge, as it is based on sheer conjectures. We do not agree with this view expressed by learned Additional Sessions Judge, as it is based on sheer conjectures. Rather, the conduct of this witness was quite natural, since in-laws house of injured was in ‘Dhamawala locality’ which was very close to the place of incident, so permitting the police constables to carry injured at the district hospital in order to save his life, he rushed to the in-laws house of Saeed for extending information of this incident. Thereafter, he went to the hospital where he found his brother-in-law Saeed dead. Thereafter, he came to the police station and lodged the first information report. Since all these places were close to each other, thus, this exercise could have been done just within 50 minutes and thus the first information report was lodged which was a prompt one. 24. In view of what we have stated above, we are of the considered opinion that learned Additional Sessions Judge was wholly misconceived and his findings are based on his own hypothecations and surmises. The judgment and order passed by trial court is not sustainable in the eyes of law. 25. Consequently, the appeal is allowed. Impugned judgment and order dated 6.1.2003 passed by the trial court in S.T. No.212 of 1995, State Vs. Hanif @ Hakla and another, is hereby set aside. Respondents/accused Hanif @ Hakla and Shashank Sharma @ Billu are found guilty for the offences punishable under Section 302 r/w Section 34 IPC and further under Section 394 r/w Section 397 IPC. For the offence of Section 302 r/w Section 34 IPC, both the accused are sentenced to undergo imprisonment for life, with fine of Rs.25,000/- by each. For the offence of Section 394 r/w Section 397 IPC, both the accused are sentenced to undergo five years’ R.I. with fine of Rs.5,000/- and in default of payment of fine, they will further undergo three months’ R.I. under each of the offences. Both the sentences shall run concurrently. 26. Let the accused be taken into custody forthwith to serve the sentence, as imposed against them by this Court. A copy of this order along with the lower court record be sent back for compliance of the order.