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2013 DIGILAW 1494 (MP)

Sanju alias Sanjay Singh v. State of M. P.

2013-11-29

A.K.SHRIVASTAVA, VIMLA JAIN

body2013
JUDGMENT : A.K. SHRIVASTAVA, J. 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 19-1-2004 passed by learned Eighth Additional Sessions Judge, Jabalpur in Sessions Trial No. 424/2002 convicting appellant No. 2 Raman Pandey for the offence punishable under section 302 of Indian Penal Code and further convicting other appellant No. l and 3 namely Sanju alias Sanjay Singh Thakur and Abhishek for the offence punishable under section 302/34 of Indian Penal Code and thereby sentencing them to suffer life imprisonment and fine of Rs. 500/- with default stipulations, this appeal has been preferred by the appellants under section 374(2) of the Code of Criminal Procedure, 1973. 2. In brief the case of the prosecution is that on 12-11-2001 at 9.30 p.m. Arvind Pandey and his brother Pradeep (hereinafter shall be referred to as “deceased”) were standing in front of their Bade Pitaji (father's elder brother) Sadhuram's house, at that juncture, second appellant Raman Pandey, juvenile accused Pintu alias Jitendra and two other boys came there. It is said that second appellant was carrying axe in his hand while juvenile accused Pintu was carrying iron pipe and two other boys were also armed with iron pipes. The faces of these two boys were seen in the light of electric bulb by Arvind Pandey. It is said that second appellant Raman exhorted that deceased may not escape and he should be killed. Thereafter, Raman Pandey dealt axe blow upon the head of deceased and juvenile accused Pintu and two boys who came along with them dealt blows by iron pipes which they were carrying. This witness was unsuccessful to save the deceased although he tried his best. At that juncture, Bhabhi (elder brother's wife) Sudha Pandey, mother Tara. Devi and father Ramlal and also one Sangeeta Pandey were present at the spot. On account of receiving the injuries by the deceased he fell down, but, despite it is said that Raman Pandey by sitting upon the chest of the deceased continued to give blows to him, as a result of which, blood started oozing from the wounds, which were tied by one cloth. The deceased was carried on a motorcycle upto the main road from where in a jeep he was carried to medical college where he was admitted and treatment was started. However, the deceased could not survive and he breathed his last in the night. The deceased was carried on a motorcycle upto the main road from where in a jeep he was carried to medical college where he was admitted and treatment was started. However, the deceased could not survive and he breathed his last in the night. 3. On account of death of deceased, the intimation was sent by the staff of medical college to police station Garha that on the point of throwing the rubbish in front of the house, the dispute arose between Raman Pandey, juvenile accused Pintu alias Jitendra and his two friends who by sharing common intention dealt blows by lethal weapons upon the deceased, resulting into his death. 4. After the information in regard to death of deceased was received by police station Garha, the marg was registered. In between, on 13-11-2001 at 8.25 a.m. a written report was also submitted by Arvind Pandey in the police station in which he gave explanation to lodge the report after some delay that because in the evening the deceased who was his real brother was carried to the hospital and therefore the report could not be lodged. On the basis of said written report, the FIR was registered on 13-11-2001 at 8.25 a.m. After registering the case the police party went to the medical college and prepared the panchnama of the dead-body and it was sent for post-mortem. In furtherance to its investigation, the investigating agency recorded the statement of witnesses; prepared the spot map; seized the weapons of assault from the accused persons, etc. 5. After the investigation was over, a charge-sheet was submitted in the committal court which committed the case to the Court of Session from where it was received by the trial Court for trial. 6. Since as per the case of the prosecution Pintu alias Jitendra was juvenile he was not put for trial in the trial Court nor charge-sheet was submitted against him. The learned Trial Judge on the basis of material available on record, framed the charge punishable under section 302/34 of Indian Penal Code against each of the appellants. Needless to say that appellants abjured their guilt and pleaded complete innocence. 7. In order to bring home the charge against the appellants, the prosecution examined as many as 19 witnesses and proved Ex.P/1 to P/27, the documents on record. Needless to say that appellants abjured their guilt and pleaded complete innocence. 7. In order to bring home the charge against the appellants, the prosecution examined as many as 19 witnesses and proved Ex.P/1 to P/27, the documents on record. The defence of the appellants is of maladroit implication and further the specific defence of appellant No. 2 Raman Pandey is that some altercation took place between him, deceased and Arvind Pandey. Thereafter, Arvind Pandey uplifted an axe and tried to give its blow to him, but, since he sat down, the blow struck on the head of deceased as he was standing there, resulting into his death. In support of his defence he examined two witnesses they are Sudha Pandey (DW-1) who had also witnessed the incident and Lucky Grover (DW-2) in whose jeep, as per prosecution case the deceased was brought to the hospital. 8. The learned Trial Judge on the basis of evidence placed on record came to hold that appellant No. 2 Raman Pandey has committed the offence under section 302 of Indian Penal Code while other two appellants namely Sanju alias Sanjay Singh Thakur and Abhishek have committed offence under section 302/34 of Indian Penal Code and eventually convicted him and passed the order of sentence which we have mentioned in paragraph 1 of this judgment. 9. In this manner, this appeal has been filed by the appellants assailing their judgment of conviction and order of sentence. 10. The contention of learned Senior Counsel for appellants is that deliberately the FIR was registered after great delay although incident occurred on 12-11-2001 at 9.30 p.m. but the FIR was lodged on the next day in the morning at 8.25 a.m. The reason for lodging delayed FIR is that because in the night the injured was carried to the medical college and therefore the report was lodged in the morning of next day. However, by inviting our attention to Para 6 of the cross-examination of eye-witness Arvind Pandey (PW-6) who is also author of FIR (Ex.P/7), altogether different cause of delay has been shown. However, by inviting our attention to Para 6 of the cross-examination of eye-witness Arvind Pandey (PW-6) who is also author of FIR (Ex.P/7), altogether different cause of delay has been shown. According to learned counsel the witnesses as well as investigating agency tried to conceal the reality because eye-witness Arvind Pandey tried to assault the appellant Raman Pandey by giving a blow of axe but accidentally the blow landed upon the head of the deceased resulting into his death and therefore all the family members in order to save Arvind Pandey, after due consultation, have deliberately lodged the FIR on the next day, although there was occasion to lodge the FIR earlier to it. By inviting our attention to Para 7 of the cross-examination of eye-witness Arvind Pandey (PW-6) it has been submitted that upon the report lodged by him in the police station, Nandkishore, Paramlal and Rakesh were taken into custody because in his report the names of these persons are mentioned. But, according to learned Senior counsel in the FIR (Ex.P/7) the names of these three persons are totally lacking and hence in the FIR which was originally lodged it has been deliberately concealed by the investigating agency by clothing a concocted case to a full proof case and by implicating the present appellants, they were put for trial. The deceased died in the night of 12-11-2001 only in the hospital, but, despite it the FIR was not lodged in the night. 11. Learned Senior Counsel by inviting our attention to the evidence of Constable Virendra Mishra (PW-16) has submitted that for the aforesaid reason of concealing the original report, the compliance of section 157 of Criminal Procedure Code was made after seven days of incident since copy of FIR was sent to the concerning Magistrate on 19-11-2001. In this regard, learned Senior Counsel has placed heavy reliance upon the decisions of Supreme Court Suresh Chaudhary vs. State of Bihar, (2003) 4 SCC 128 , Marudanal Augusti vs. State of Kerala, (1980) 4 SCC 425 and Arjun Marik and Others vs. State of Bihar, 1994 Supp. 2 SCC 372. 12. In this regard, learned Senior Counsel has placed heavy reliance upon the decisions of Supreme Court Suresh Chaudhary vs. State of Bihar, (2003) 4 SCC 128 , Marudanal Augusti vs. State of Kerala, (1980) 4 SCC 425 and Arjun Marik and Others vs. State of Bihar, 1994 Supp. 2 SCC 372. 12. By inviting our attention to the evidence of eye-witness Arvind Pandey (PW-6) and also other eye-witnesses Tara Bai (PW-5) mother of deceased and Sangeeta (PW-7) who is wife of deceased it has been submitted by learned Senior Counsel that deceased was carried to the medical college from main road of village in a jeep of Lucky Grover (DW-2) which was driven by said Lucky Grover, but, despite Lucky Grover carried the deceased along with eye-witness Arvind Pandey (PW-6) and other family members in his jeep, he was not asked to lodge a report in Garha police station and said Lucky Grover came back in his jeep to the village along with one Awadhesh Pandey, but, to him also Arvind Pandey (PW-6) did not ask to lodge the report. The suggestion was also given to this witness that indeed when this witness (PW-6) tried to inflict the blow of axe upon appellant Raman Pandey because some altercation was taking place on the point of throwing rubbish, accidentally the blow instead of landing upon the appellant Raman, landed on the head of the deceased, has been denied. But, indeed this is the defence of the appellants and in this regard learned Senior Counsel has invited our attention to the evidence of eye-witness Sudha Pandey (DW-1) whose presence as eye-witness has been shown by eye-witness Arvind Pandey (PW-6) himself and in this regard our attention has been drawn to para 1 of the examination-in-chef of Arvind Pandey. Sudha Pandey is also Bhabhi (elder brother's wife) of this witness since she is daughter-in-law of Bade Pitaji (father's elder brother). By inviting our attention to the testimony of Sudha Pandey (DW-1) it has been argued that prosecution was obliged to examine this witness because her case diary statement was also recorded, but, deliberately she was not examined. If she would have been examined, she would have spoken the reality that accidentally the blow of axe which was given by eye-witness Arvind Pandey (PW-6) to appellant Raman Pandey, landed upon the head of his own brother Pradeep (deceased). If she would have been examined, she would have spoken the reality that accidentally the blow of axe which was given by eye-witness Arvind Pandey (PW-6) to appellant Raman Pandey, landed upon the head of his own brother Pradeep (deceased). Learned Senior Counsel by inviting our attention to the examination-in-chief Para 7 of investigating officer R.D. Bhardwaj (PW-17) has submitted that he himself has admitted in the chief itself that he recorded 161 Criminal Procedure Code statement of Sudha Pandey (DW-1) and further deposed that her 161, Criminal Procedure Code statement was recorded in terms of the case diary statement. Hence, it has been submitted that there is not even a hair escape that Sudha Pandey has not witnessed the incident, but, deliberately she was not examined by the prosecution. 13. By putting a deep dent upon the case of prosecution on the point of recovery of axe from the house of appellant No. 2 Raman Pandey it has been put- forth by learned Senior Counsel that according to prosecution the axe which was used as weapon in the commission of offence was recovered from his house, but, as per statement of Tara Bai (PW-5) who is mother of deceased and Arvind Pandey (PW-6) and who is also an eye-witness, has deposed in Para 8 that accused persons left the weapons of assault at spot and therefore this is another important link holding that case of prosecution is based upon concocted story in order to implicate the appellants falsely. 14. Learned Senior Court further submits that after the recovery of axe which was used as weapon in the commission of offence, the same was sent to autopsy surgeon Dr. Arun Jain (PW-19) who gave his report (Ex.P/26) that the injuries sustained by the deceased could not come by the said weapon which was sent. In this regard, our attention has been drawn to the testimony autopsy surgeon Para 8 of examination-in-chief. In this context learned Senior Court has placed heavy reliance upon the decision of Supreme Court Mohar Singh and Others vs. State of Punjab, 1981 (Supp) SCC 18. 15. In this regard, our attention has been drawn to the testimony autopsy surgeon Para 8 of examination-in-chief. In this context learned Senior Court has placed heavy reliance upon the decision of Supreme Court Mohar Singh and Others vs. State of Punjab, 1981 (Supp) SCC 18. 15. Learned Senior Counsel has submitted that other two appellants namely Sanju and Abhishek were not named in the FIR and simply it has been stated that two boys whose faces were seen in the light of electric bulb carrying iron pipes came and dealt the blows of iron pipes to the deceased. However, when these two appellants after their arrest were put for identification, Ramlal Pandey (PW-8) who is father of deceased identified these accused persons in the Test Identification Parade which was conducted by Prakash Raj (PW-9) and Shivani (PW-12), has deposed that upon the test identification memo he put his signature, but, his signature is not appearing in the said memo and this has also been admitted by officers Prakash Raj (PW-9) and Shivani (PW-12). 16. By further inviting our attention to the FIR vis-a-vis to evidence of all the eye-witnesses it has been argued that as per the case of prosecution first and third appellant namely Sanju and Abhishek dealt blow of iron pipe, but, when in the trial Court they appeared as PW-6, PW-7 and PW-8, they simply deposed that these appellants caused injury by fists and kicks because they were quite aware that in the post-mortem report only one incised wound has been found. Hence, it has been submitted that entire case of prosecution is highly concocted to hide the reality that Arvind Pandey (PW-6) tried to inflict axe blow upon the appellant Raman Pandey accidentally it landed upon the head of the deceased resulting into his death. 17. Learned Senior Counsel submits that indeed the defence which the second appellant Raman Pandey has put-forth during the cross-examination of witnesses as well as in section 313, Criminal Procedure Code statement and also by examining the defence witnesses Sudha Pandey (DW-1) and Lucky Grover (DW-2), has submitted that learned trial Court contrary to the evidence has not accepted the defence. It has been submitted by him that the standard of proof of defence is not akin to that of prosecution where the prosecution is obliged to prove its case beyond all reasonable doubts. It has been submitted by him that the standard of proof of defence is not akin to that of prosecution where the prosecution is obliged to prove its case beyond all reasonable doubts. The Court is only to see if the defence is found to be probable and based upon preponderance, due weightage should be given to it and in this regard our attention has been drawn to two decisions of Supreme Court State of Haryana vs. Ram Singh, (2002) 2 SCC 426 and Munshi Prasad and Others vs. State of Bihar, (2002) 1 SCC 351 . 18. On the aforesaid premised submission it has been submitted by Learned Senior Counsel that by allowing this appeal, the impugned judgment of conviction and order of sentence be set aside and second appellant Raman Pandey who is undergoing the jail sentence for last more than 12 years be set at liberty forthwith. 19. On the other hand Shri C.K. Mishra, learned Public Prosecutor has argued in support of the impugned judgment and has submitted that learned trial Court after appreciating the evidence of prosecution witnesses and by paying heed to the evidence of eye-witnesses and other incriminating circumstances vis-a-vis to evidence of defence and defence witnesses, has rightly come to the conclusion that appellant No. 2 Raman has committed the offence under section 302 of Indian Penal Code while other two appellants namely Sanju and Abhishek have committed the offence under section 302/34 of Indian Penal Code and hence rightly convicted them. Thus, it has been prayed by learned Public Prosecutor that this appeal be dismissed. 20. Having heard learned counsel for the parties, we are of the considered view that this appeal deserves to be allowed. 21. In the present case, four persons have been cited as eye-witnesses namely Tarabai (PW-5), Arvind Pandey (PW-6), Sangeeta (PW-7) and Ramlal (PW-8). Tarabai and Ramlal are parents, Sangeeta is wife while Arvind Pandey is brother of the deceased. Arvind Pandey (PW-6) is also the author of FIR (Ex.P/7) which was lodged on 13-11-2001 at 8.25 a.m. Before considering the oral testimony of the eye-witnesses vis-a-vis to the genesis of occurrence as stated in the FIR we would like to go through the averments contained in the FIR itself. Arvind Pandey (PW-6) is also the author of FIR (Ex.P/7) which was lodged on 13-11-2001 at 8.25 a.m. Before considering the oral testimony of the eye-witnesses vis-a-vis to the genesis of occurrence as stated in the FIR we would like to go through the averments contained in the FIR itself. In the FIR the date of incident is shown to be 12-11-2001 and the time of occurrence 9.20 p.m. while the FIR was lodged on the next day i.e. 13-11-2001 at 8.25 a.m. and the distance of police station is only 10 kms. from the place of incident. In column No. 8 which is a column in regard to explanation of delay in lodging the FIR it is mentioned that because deceased who was in injured condition was carried to the medical college for treatment therefore, in the morning of next day the FIR has been lodged. In the FIR it has been stated by Arvind Pandey (PW-6) that on 12-11-2001 at 9.20 p.m. he was standing along with his brother Pradeep (deceased) in front of house of his Bade Pitaji (father's elder brother) Sadhuram, at that juncture, second appellant Raman Pandey carrying axe in his hand, juvenile accused Pintu alias Jitendra carrying iron pipe and two unknown boys carrying sword came there. The two unknown boys who were carrying sword, their faces were seen by Arvind Pandey (PW-6) in the light of electric bulb and he would identify him. Second appellant Raman Pandey exhorted that deceased should not escape and he be killed. Thereafter, appellant Raman Pandey dealt axe blow upon the head of deceased, juvenile accused Pintu alias Jitendra dealt iron pipe blow and other two boys also gave blows of sword to the deceased. He has further deposed that at that juncture his Babhi Sudha Pandey (DW-1), mother Tarabai, father Ramlal and another Bhabhi Sangeeta Pandey were also present there and they have witnessed the incident. Further it has been stated in the FIR that upon receiving the injuries by the deceased, he fell down, but, despite it second appellant Raman Pandey and his companions by sitting over his chest continued to give blows. Further it has been stated in the FIR that upon receiving the injuries by the deceased, he fell down, but, despite it second appellant Raman Pandey and his companions by sitting over his chest continued to give blows. Thereafter Arvind Pandey (PW-6) and family members tied a cloth upon the wounds and carried the deceased who was in injured condition on the motorcycle upto main road and from where he was carried to medical college in a jeep, but, after sometime in the hospital the deceased died. The incident occurred on account of throwing rubbish in front of house of Sadhuram. All the accused persons dealt the blows by lethal weapons. But, when the aforesaid eye-witnesses appeared in the Court they have changed the story by making material improvements which were confronted to them from their case diary statement and also from the FIR. In the Court they have deposed that first and third appellants were barehanded and they only gave the blows of kicks and fists. It be noted that post-mortem report of the deceased Ex.P/25 which has been proved by Dr. Arun Jain (PW-19.) is of dated 13-11-2001 in which only single incised wound between left and right occipital region was found. Except this injury, no other injury was found upon the dead-body of deceased. Thus, it can be inferred that in order to fit the prosecution story in the slot of post-mortem report, the eye-witnesses are saying that first and third appellants namely Sanju and Abhishek had beaten the deceased by fists and kicks although in the FIR specifically it has been stated by eye-witness Arvind Pandey (PW-6) that these two boys dealt sword blows. Not only this it has also been so stated that after receiving injury upon the head of the deceased which was given by second appellant Raman Pandey, he fell down thereafter all the accused persons sat over his chest and continued to give blows by their respective weapons. According to us, had it been so then certainly more than one injury would have been received by the deceased. 22. On scanning the testimony of Arvind Pandey (PW-6) we find that specifically this witness has stated in the examination-in-chief that one axe blow was dealt by second appellant Raman upon the head of the deceased and upon receiving the injury he fell down but Raman Pandey continued to give blows to him. 22. On scanning the testimony of Arvind Pandey (PW-6) we find that specifically this witness has stated in the examination-in-chief that one axe blow was dealt by second appellant Raman upon the head of the deceased and upon receiving the injury he fell down but Raman Pandey continued to give blows to him. However, autopsy surgeon has found only single injury upon the head of the deceased. That apart, in cross-examination para 4 this witness himself has admitted that the deceased was carried to the medical college in a jeep which was being driven by Lucky Grover (DW-2). On further scanning the testimony of this eye-witness, we find that after the deceased was carried upto to the medical college along with him [Arvind Pandey (PW-6)], said Lucky Grover came back to his home in the said jeep along with Awadhesh and this time the said jeep was being driven by Awadhesh Pandey. But, Arvind Pandey (PW-6) did not ask either to Lucky Grover or to Abhishek Pandey to lodge the report. He has further admitted in para 7 that there was consultation in his family in the morning and it was decided to lodge a report as his father after consulting with other family members asked this witness to go for lodging the report. Thus, the presence of Lucky Grover (DW-2) and Awadhesh Pandey (not examined) has been admitted by the eye-witnesses. 23. Upon further scrutiny of the evidence of eye-witness Arvind Pandey (PW-6) we find that in Para 7 also he has admitted that upon his report Nandkishore, Parmal and Rakesh were taken into custody. Further he has admitted that these persons were taken into custody because specifically he mentioned their names in the FIR. But, surprisingly in the FIR (Ex.P/7) we do not find the names of these three persons. In Para 8 when FIR (Ex.P/7) was confronted to this witness, he has admitted that in the FIR the names of Nandkishore, Parmal and Rakesh do not find place. Not only this, he has further admitted that when his statement was recorded at that juncture only he named Raman Pandey (second appellant). Thus, we can infer that original FIR has been suppressed by the prosecution in which the names of Nandkishore, Parmal and Rakesh were mentioned by eye-witness Arvind Pandey (PW-6) and true story has been deliberately concealed. Not only this, he has further admitted that when his statement was recorded at that juncture only he named Raman Pandey (second appellant). Thus, we can infer that original FIR has been suppressed by the prosecution in which the names of Nandkishore, Parmal and Rakesh were mentioned by eye-witness Arvind Pandey (PW-6) and true story has been deliberately concealed. The Supreme Court in Sevi and Another vs. State of Tamil Nadu and Another, AIR 1981 SC 1230 has categorically held in para 3 that if the original FIR is suppressed, the entire case of prosecution becomes highly suspicious. Thus, According to us, this is the cause for making compliance under section 157 of Criminal Procedure Code after 6 days i.e. on 19-11-2001 from the date of lodging of the FIR (Ex.P/7) which is 13-11-2001. In this regard testimony of Constable Virendra Mishra (PW-16) may be seen who has categorically stated that on 19-11-2001 copy of FIR was given to him which he submitted in the Court of concerning Magistrate. The decision of Supreme Court Marudanal Augusti (supra) placed reliance by learned Senior Counsel for appellants is fully applicable in the facts and circumstances of the case. In this decision also, it has been held that once the FIR is held to be fabricated and brought to existence long after occurrence, the entire case of prosecution would collapse. In the same decision it was further held that dispatch of FIR to the Magistrate after unexplained delay would throw serious doubts on prosecution case. The Apex Court restored the judgment of acquittal passed by trial Court which was reversed by High Court by convicting the accused. The same view has also been taken by the Apex Court in another decision Suresh Chaudhary (supra) and Arjun Marik (supra). 24. From the testimony of eye-witness Arvind Pandey (PW-6) it is borne out that apart from the aforesaid eye-witnesses who were examined, one Sudha Pandey who is also the Bhabhi in relation of PW-6, was present and witnessed the incident, but, prosecution has not examined her although in the defence she has been examined as DW-1. 25. On going through the evidence of eye-witnesses, we find that role assigned to appellant No. l and 3 is of causing injury by kicks and fists. 25. On going through the evidence of eye-witnesses, we find that role assigned to appellant No. l and 3 is of causing injury by kicks and fists. Although in the FIR it has been stated that they were carrying sword and nowhere it has been so stated that although they were carrying sword, but, they dealt the blows by kicks and fists only. It has come in the FIR that all the accused persons, dealt the blows, which would mean, unless and until contrary is stated in the FIR, they dealt blows by the weapons which they were carrying. But, except one incised wound upon the head, autopsy surgeon did not find any other injury upon the body of deceased. 26. On going through the evidence of the eye-witnesses, we find that they have deposed that first and third appellants were giving blows by kicks and fists and they were identified by them. Since their names were not mentioned in the FIR or in the case diary statement they were put for Test Identification Parade. On going through the TIP memos (Ex.P/9 and P/10) we find that though it is said that signature of eye-witness Ramlal (PW-8) was taken but in Ex.P/9 and P/10 his signatures are not mentioned and this fact is also admitted by Prakash Raj (PW-9) and Shivani (PW-12) who conducted the TIP. In the TIP memo Ex.P/9 the signature of accused Abhishek did not find place. Hence, according to us, the TIP is also doubtful because in the memo of TIP signature of witness Ramlal (PW-8), who identified them does not find place. 27. So far as the recovery of axe from the house of appellant Raman Pandey is concerned, it is highly doubtful for the simple reason that eye-witness Tarabai (PW-5), who is mother of deceased has categorically stated in Para 8 of her cross-examination that all the appellants gave blows by sword, axe and iron pipes and after throwing the weapons at the spot they went away to their homes. The suggestion which was given to her that while going back appellants carried the weapons with them, has been emphatically denied by this eye-witness. The suggestion which was given to her that while going back appellants carried the weapons with them, has been emphatically denied by this eye-witness. Thus, According to this witness, the weapons of assault were left at the spot only by the appellants and if that is the position how the axe was recovered from the house of appellant Raman Pandey and therefore the recovery of axe from the house of appellant Raman Pandey is highly doubtful. 28. In cross-examination Para 8 a suggestion has been denied by eye-witness Arvind Pandey (PW-6) that indeed he (Arvind Pandey) was giving blow of axe to second appellant Raman Pandey but accidentally it landed upon the head of deceased because all of a sudden deceased appeared in front of Raman Pandey, their further defence and particularly appellant No. 2 Raman Pandey is that on the point of throwing rubbish in front of the house of Sadhuram, the deceased and his brother Arvind Pandey (PW-6) were quarrelling with appellant No. 2 Raman Pandey and when Arvind Pandey (PW-6) tried to inflict the blow upon appellant Raman Pandey, accidentally it landed upon the head of deceased and thereafter the entire story has been concocted by naming appellants that they had killed the deceased. We have already noted hereinabove that as per the case of prosecution and it has also been so admitted by eye-witness Arvind Pandey (PW-6) that entire incident was also witnessed by Sudha Pandey who is his Bhabhi in relation. The prosecution has not examined this witness, although her case diary statement was recorded, but, the defence examined her as DW-1. Not only this, investigating officer R.D. Bhardwaj (PW-17) has also categorically admitted in Para 7 of his cross-examination that statement of Sudha Pandey was also recorded by him. Thus, it has been emphatically proved by the prosecution that this witness was present at the time of incident. On scanning the evidence of Sudha Pandey (DW-1) we find that categorically she has deposed that she was inside her house along with her father-in-law Sadhuram (who is uncle of Arvind Pandey, PW-6 and in front of whose house the incident had occurred), at that juncture, her Devar (husband's younger brother) Arvind Pandey (PW-6) and Pradeep (deceased) were standing in front of her house and were interacting with each other and at that time Arvind Pandey (PW-6) was having an axe in his hand. When her mother-in-law saw that Arvind Pandey (PW-6) was carrying axe, she snatched said weapon from his hand and kept in the open courtyard of her house. Thereafter, hurling of abuses took place between Arvind Pandey (PW-6) and Pradeep and second appellant Raman Pandey. Thereafter she along with her mother-in-law Narmada Bai and Devar Satish Kumar came out of the house and saw that deceased and second appellant by catching the collars of each other were quarrelling. In between Arvind Pandey (PW-6) rushed towards her Angan (open courtyard of her house) and uplifted the axe which was kept there and rushed to inflict injury to second appellant Raman Pandey, but, accidentally the blow of axe could not land upon appellant Raman Pandey, however it landed upon the head of deceased, as a result of which, he fell down. Thereafter, appellant Raman Pandey and Arvind Pandey (PW-6) ran away from the said place. According to us, why the statement of this witness should be disbelieved especially when as per the prosecution's own case she is an eye-witness. We can infer that she has not been examined by prosecution because they were fully aware that how actual incident had taken place. The law is well settled that the credibility of defence witness is to be treated at par with that of prosecution witnesses and they should not be brushed aside merely because they have been examined by defence. The defence witnesses are also entitled to equal respect and treatment as that of prosecution. The issue of credibility and trustworthiness ought also to be attributed to defence witness at par with prosecution. In this regard, reliance has been placed by learned Senior Counsel on the decision of Supreme Court Munshi Prasad (supra) and State of Haryana vs. Ram Singh (supra). We may further add that standard of proof of defence should not be visualized with the same standard of proof as that of prosecution where it has to prove its case beyond reasonable doubts. According to us, if the defence is found to be probable and based upon preponderance, due weightage should be given to it. We may further add that standard of proof of defence should not be visualized with the same standard of proof as that of prosecution where it has to prove its case beyond reasonable doubts. According to us, if the defence is found to be probable and based upon preponderance, due weightage should be given to it. Thus, after considering the testimony of aforesaid eye-witnesses Tarabai (PW-5), Arvind Pandey (PW-6), Smt. Sangeeta Pandey (PW-7) and Ramlal Pandey (PW-8) vis-a-vis to their admissions in the cross-examination and to the testimony of eye-witness Sudha Pandey (DW-1) we find that the probable defence based upon preponderance has been proved by the defence and it appears that on the point of throwing rubbish in front of house of Sadhuram, hurling of abuses were taking place between appellant Raman Pandey, deceased and Arvind Pandey (PW-6) and at that juncture Arvind Pandey (PW-6) when tried to give blow of axe upon Raman Pandey unfortunately by accident it landed upon the head of his own brother Pradeep (deceased). 29. The statement of Sudha Pandey (DW-1) is further corroborated by the evidence of Lucky Grover (DW-2) in whose jeep the deceased was carried to medical college along with Arvind Pandey (PW-6). In examination-in-chief this witness has categorically stated that Arvind Pandey (PW-6), Satish and Awadhesh Pandey came to his house and told that they have to go to medical college and thereafter he carried these persons along with deceased to medical college. In the jeep Arvind Pandey (PW-6) was saying that accidentally the blow of axe was landed upon the deceased. This witness further stated that he asked that let us inform the police about the incident when they reached nearby the medical college but, Arvind Pandey (PW-6) told that dispute is of his family and he would inform the police lateron. After leaving the deceased in the medical college, this witness came back to his home. 30. Thus, we are of the view that second appellant Raman Pandey cannot be convicted for the offence punishable under section 302 of Indian Penal Code and similarly appellant No. l and 3 namely Sanju and Abhishek cannot convicted under section 302/34 of Indian Penal Code and they are entitled for the benefit of doubt. 31. Resultantly, this appeal succeeds and is hereby allowed. 31. Resultantly, this appeal succeeds and is hereby allowed. The judgment of conviction and order of sentence is hereby set aside and the appellants are acquitted from their respective charge. Appellant No. l and 3 Sanju and Abhishek are on bail, their bail bonds shall stand discharged. However, appellant No. 2 Raman Pandey is in jail, he be set at liberty forthwith if not required in any other case.