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Madhya Pradesh High Court · body

2013 DIGILAW 871 (MP)

Rohit S/o Shambhulal v. State of M. P.

2013-07-26

M.C.GARG, SHANTANU KEMKAR

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JUDGMENT : M.C. GARG, J. 1. This judgment shall dispose of the aforesaid Criminal Appeals filed by 14 accused persons who all were sent for trial in Criminal Case No. 316/2003 to face charges under sections 147, 148, 302/149 of Indian Penal Code on account of death of Shakir Mohd. and Shafi Mohd. in an incident which allegedly occurred on 20th February, 2003 at about 4.00 p.m. near Titodiya Khal Rapat, Rajgarh, situated at Chhadawad Marg. Out of all the accused/appellants, appellants Rohit, Shambhulal, Lalu, Hate Singh, Hare Singh, Amraji, Jadu Singh, Lalchand, Amarlal have filed Criminal Appeal No. 1380/2008. One of them, appellant No. 9 Amarlal S/o Gomaji is no more; whereas accused/appellants Ishwar Singh, Prakash, Jalam Singh, Kalu and Gopal have filed Criminal Appeal No. 14/2009. 2. Appellants Shambhulal, Hate Singh and Jadu Singh are represented by Mr. S.K. Vyas, learned Sr. Counsel whereas the other appellants are represented by Mr. Jai Singh, learned Sr. Counsel. 3. As per the case of the prosecution, on 20th of February, 2003 at about 16.45 hours, complainant Shahjad S/o Ismil who is the only eye-witness, on whose statement, conviction has been fastened upon the appellants by the learned Sessions Judge, made a complaint at Police Chowki Rajgarh of Police Station Sardarpur. The report made by him reads as under: xxx xxx xxx 4. The important facts in this complaint are as follows: (i) the injuries have been caused by the assailants using lathies. There is no mention of using any gupti, spear and gun. (ii) cause of the dispute is intention of the assailants to take forcibly possession of the land belonging to the complainant party (iii) statement of the complainant has been signed by him after two days. 5. On the basis of this statement made by complainant Shahjad, FIR Ex.P/1 was registered at Police Chowki - Rajgarh, District - Dhar on 20th of February, 2003 at about 16.45 hours. On that basis, crime No. 025/2003 was registered under sections 147, 148, 149, 307 of Indian Penal Code and Asal Tehrir was sent to Police Station - Sardarpur who then recorded Crime No. 74/2003 under sections 147, 148, 149 and 307 of Indian Penal Code. In this case, after registration of FIR Ex.P/1, In-charge of police station - Sardarpur Mr. R.R. Patidar PW-14 started investigation by going to the spot. In this case, after registration of FIR Ex.P/1, In-charge of police station - Sardarpur Mr. R.R. Patidar PW-14 started investigation by going to the spot. He prepared site plan and took into possession the blood sample and blood earth in presence of witness Aziz Khan and Makhan Singh. Mr. R.R. Patidar PW-14 is stated to have also took into possession, one motorcycle bearing registration No. MP-11-1534. On the same day, Doctor of District Hospital, Jhabua through his peon Bhartsingh S/o Brajlal sent one Tehrir to Police Station - Jhabua informing that dead-body of one Shakir Mohd. was sent to the hospital by Police Chowki - Rajgarh of Police Station - Sardarpur. On that basis, Police Station - Jhabua recorded merg No. 93/2003 under section 174 of Criminal Procedure Code. Similarly, another Tehrir was received from the Doctor of District Hospital - Jhabua regarding the information of death of Shafi Mohd. who was taken to the hospital for treatment. On that basis, another merg No. 10/2003 was recorded at Police Station - Jhabua under section 174 of Criminal Procedure Code. ASI Mr. O.P. Thakur on 20th of February, 2003 also prepared Naksha Panchanama of deceased Shafi Mohd. in presence of witness Mohd. Mansuri, Ishaq, Noor Mohd. and Abdul Aziz. On the same day, Naksha Panchanama of another deceased Shakir Mohd. was also prepared. 6. On the same day, Incharge of Police Station - Jhabua referred the dead-body of Shakir Mohd. and Shafi Mohd. for post-mortem after obtaining permission from SDM, Jhabua. Post-mortem of aforesaid two dead-bodies was permitted to be held by SDM, Jhabua on the same day. In this connection, dead-body of Shakir Mohd. and Shafi Mohd. was sent to the hospital for conducting post-mortem at 8.10 p.m. and at 11.30 p.m. respectively. Dr. A.K. Dubey of District Hospital, Jhabua conducted the post-mortem of deceased Shakir Mohd. at 8.45 p.m. and Shafi Mohd. at 11.45 p.m. Thereafter, dead-body of both the deceased were sent for Antim Sanskar. On 21st February, 2003 from Jhabua Hospital, Sub-Inspector O.S. Thakur took into possession blood sample, Jangiya, Paijama and Baniyan of deceased Shakir Mohd. in presence of witness Amrutlal and Santosh while on the same day, blood sample, Jangiya, Pant and Baniyan of deceased Shafi Mohd. was also taken into possession. On 20th, 23rd and 28th of February, 2003 and 25th of April, 2003, Mr. in presence of witness Amrutlal and Santosh while on the same day, blood sample, Jangiya, Pant and Baniyan of deceased Shafi Mohd. was also taken into possession. On 20th, 23rd and 28th of February, 2003 and 25th of April, 2003, Mr. R.R. Patidar after arresting the accused persons recorded their statements under section 27 of the Evidence Act. From disclosure statement, one iron gupti and one wooden rod was recovered at the instance of accused Ishwar; one iron spear at the instance of accused Amarsingh; one double barrel gun at the instance of accused Virendrasingh and wooden rods from the other accused persons. Statements of the witnesses were also recorded. Seized Articles were sent for examination to FSL, Rau and after completing investigation, initially the challan was filed on 26th of May, 2003 before the CJM, Dhar under sections 148, 307, 302/149 of Indian Penal Code who then transferred the case, on 27th of May, 2003 to JMFC, Sardarpur who then committed the case to Sessions Court on 23rd of June, 2003. 7. Charges framed against the accused/appellants under sections 147, 148, 302/149 of Indian Penal Code were denied by all of them. In their statement recorded under section 313 of Criminal Procedure Code, all the appellants claimed innocence. They also took defence of alibi insofar as appellants Shambhu, Jalamsingh, Hatesingh, Lalu, Rohit are concerned. Appellant Virendra claimed to be RSS worker and alleged false implication. Other accused persons claimed false involvement in this case on the basis of political rivalry. However, no defence evidence has been led by any of the accused/appellants. 8. The trial Court proceeded with examination of the evidence which came on record by presuming that all the witnesses cited by the prosecution knew all the accused persons/appellants as all the witnesses as well as the accused persons were resident of Gram-Chhadawat. The trial Judge also proceeded with further presumption that on 20th of February, 2003 on account of dispute of Bhojshala, there was curfew in Rajgarh and that there was communal tension in that area. 9. Examination of Shahjad PW-1 is very relevant as the entire case of the prosecution is based upon the assumption that he is the only eye-witness and on the basis of sole testimony, the learned Sessions Judge convicted all the appellants of the charges framed against them. 10. 9. Examination of Shahjad PW-1 is very relevant as the entire case of the prosecution is based upon the assumption that he is the only eye-witness and on the basis of sole testimony, the learned Sessions Judge convicted all the appellants of the charges framed against them. 10. It has been submitted by the appellants that the evidence of Shahjad PW-1, the sole eye-witness of the incident relied upon by the prosecution was completely unreliable and unacceptable, inasmuch as, the version in the FIR by that witness regarding injuries found on the body of the deceased were not as disclosed by him in his testimony which was recorded in the Court. It was also submitted that even the medical evidence was contrary to what has been stated by PW-1 Shahjad in his statement made to police which is the basis of the FIR Ex.P/1. It has also been contended that this witness has very categorically admitted that all the witnesses cited by the prosecution including this witnesses were near relatives of the deceased persons. 11. The appellants have further submitted that the prosecution has not been able to prove their case beyond reasonable doubts inter-alia for the following amongst other reasons: (i) The FIR in this case is suspicious and ante time as the date and time of the incident is 20th of February, 2003 at 16.00 hours and the FIR was made on the same day at 16.15 hours. Place of the incident is at the distance of about 8 km from the police station. Thus, it is clearly impossible for anyone in ordinary course to reach and travel the distance of 8 km within 15 minutes. Thus, it clearly shows that the FIR is ante time. (ii) Statement under section 161 of Cr.P.C. of alleged eye-witness Shahjad PW-1 was recorded after one day of the incident, whereas the witness was available to the prosecution at the time of lodging of the FIR and carrying out other investigation. This also fortify that the FIR was ante time and the eye-witness was brought must later to support the prosecution story, even though he was not present at the time of incident. (iii) Statement of PW-2 Fakru and recording of dying declaration of Shafi Mohd. have been discarded and not believed by the trial Court. This also fortify that the FIR was ante time and the eye-witness was brought must later to support the prosecution story, even though he was not present at the time of incident. (iii) Statement of PW-2 Fakru and recording of dying declaration of Shafi Mohd. have been discarded and not believed by the trial Court. Similarly, the story of the prosecution that the accused persons were last seen on the place of the occurrence armed with weapons is also disbelieved by the trial Court in the light of the observations made by learned trial Court in Paras - 30, 31 and 37 of the impugned judgment. In having disbelieved the statement of Fakru PW-2 and oral dying declaration of deceased Shafi Mohd. case of the prosecution rests only on the evidence of PW-1 Shahjad, whose statement is not admissible in evidence for the following reason: “That the initial version given in the FIR that the accused persons are armed with lathi and stones but later on his version changes and now the witness improves and states that the accused persons were armed with hard and sharp objects. It is a material omission amounting to contradiction and the witness improves his story just to suit the medical evidence. Hence the evidence of the eye-witness suffers from material contradiction and deserves to be discarded.” Paras 30, 31, 32 and 37 of the impugned judgment are relevant which are reproduced hereunder for the sake of reference: xxx xxx xxx 12. Appellants have also relied upon the Judgment delivered by Hon'ble the Supreme Court in the case of Mahendra Singh vs. State of Rajasthan, AIR 1989 SC 982 and they have argued that when there is change in the version of the eye-witness as per his statement made in the FIR before the Committal Court and then before the trial Court so as to fit in story of the prosecution vis-a-vis medical evidence, such statement cannot be believed. Paragraphs Nos. 7 to 9 are relevant which are reproduced hereunder for the sake of reference: “7. The learned counsel for the appellant submitted that the prosecution story in regard to the involvement of the appellant is incredible, in that, it is not possible to believe that the appellant who had invited PW-1 and the deceased Harbans Singh to attend the betrothal ceremony would involve himself in the murder of Harbans Singh. The learned counsel for the appellant submitted that the prosecution story in regard to the involvement of the appellant is incredible, in that, it is not possible to believe that the appellant who had invited PW-1 and the deceased Harbans Singh to attend the betrothal ceremony would involve himself in the murder of Harbans Singh. He further submitted that in any case it was hazardous to place implicit faith on the testimony of PW-1 because it is found that his entire version regarding the second part of the prosecution case is thoroughly unacceptable, and insofar as the first part of the incident is concerned, it is found that he has been shifting his version in that behalf. We see considerable force in the submissions of the learned counsel for the appellant. 8. As pointed out earlier, the conviction of the appellant is based solely on the testimony of PW-1. There is no doubt that Harbans Singh was done to death at the residence of Banta Singh where he had gone with PW-1 to attend the betrothal ceremony. However, PW-4 and PW-8 who were examined as eye-witnesses to the occurrence did not support the version of PW-1 at the trial. PW-1, in the course of his evidence before the Court stated that after Bua Singh had inflicted two blows with the Dantar on the head of Harbans Singh and the latter had fallen on the ground, the appellant took the Dantar from Bua Singh and inflicted many blows on the back of the deceased. He has further deposed that thereafter the appellant fired four shots from his revolver whereupon PW-4 and PW-8 took to their heels. When the Panchnama of the scene of occurrence was drawn up on the next day in the morning nothing was found to indicate that the appellant had fired four shots from his revolver. If the appellant was armed with a revolver and had intended to kill Harbans Singh, we fail to understand why instead of using the revolver he chose to use the Dantar. PW-1 wants us to believe that the appellant inflicted blows with the Dantar on the back of the deceased even though the head of the deceased was virtually chopped off by Bua Singh. PW-1 wants us to believe that the appellant inflicted blows with the Dantar on the back of the deceased even though the head of the deceased was virtually chopped off by Bua Singh. However, it is found that in the F.I.R. lodged at about 1.30 p.m. on 21st June, 1973 PW-1 had stated that the appellant had inflicted three or four blows on the head of the deceased. In his evidence before the committal court also PW-1 stated that the appellant had dealt blows with the Dantar on the head of the deceased. It was, therefore, rightly pointed out by the learned counsel for the appellant that the version given out by PW-1 in his F.I R. as well as evidence recorded in committal court was that the appellant had inflicted blows on the 'head' of the deceased while during the trial he testified that the blows were inflicted on his 'back'. He changed his version in his evidence at the trial on realising that otherwise it would conflict with medical opinion. Finding that there were incised wounds on the back and leg of the deceased which would go unexplained and only a limited number of wounds on the head which would falsify his statement of having dealt three or four blows on the head he stated that the appellant had inflicted blows with the Dantar on the back of the deceased after the latter had fallen down. The learned counsel for the appellant rightly pointed out that he had raised this contention before the learned Additional Sessions Judge as well as the High Court but the same was not effectively dealt with. We think that having regard to the deliberate improvement made by PW-1 as regards the seat of injuries caused by the appellant to make his version consistent with medical opinion, both the courts below erred in concluding that it was safe to place implicit trust on his testimony. Since the evidence of PW-1 in regard to the presence of PW-4 and PW-8 as well as the second part of the incident is found to be thoroughly unacceptable, his evidence regarding the murder also has to be accepted with a pinch of salt and cannot be acted upon in absence of independent corroboration. 9. Since the evidence of PW-1 in regard to the presence of PW-4 and PW-8 as well as the second part of the incident is found to be thoroughly unacceptable, his evidence regarding the murder also has to be accepted with a pinch of salt and cannot be acted upon in absence of independent corroboration. 9. In the above circumstances we are of the opinion that the testimony of PW-1, insofar as the role assigned to the appellant is concerned is suspect and cannot be accepted in the absence of dependable corroboration. We, therefore, think that a serious doubt arises as regards the involvement of the appellant and the benefit of that doubt must go to him. We, therefore, allow this appeal, give the benefit of doubt to the appellant and set aside his conviction and sentence under S. 302/34 Indian Penal Code, and direct that he be released at once unless required in any other case. The fine, if paid, to be refunded. Appeal allowed.” 13. In this case also, it has been submitted that PW-1 Shahjad has given different story in the FIR. In that statement, he did not make any mention about using of gupti, spear or gun whereas in his statement made in the Court, he has stated that gupti, spear and gun was used. Such improvement made by him is even otherwise not consistent with the medical evidence and therefore, such improvement in his statement only goes to prove that the witness was not available at the place of the incident and is not the eye-witness. Moreover, statement made by PW-1 Shahjad has not been corroborated by any other witness. 14. Other judgment delivered by Hon'ble the Supreme Court in the case of Namwar Dubey and Others vs. State of U.P. 1995 SCC (Cri) 1106 also relied upon by the appellants is also on the same line and on the same point cited before us by learned Sr. Counsel appearing for the appellants. 15. 14. Other judgment delivered by Hon'ble the Supreme Court in the case of Namwar Dubey and Others vs. State of U.P. 1995 SCC (Cri) 1106 also relied upon by the appellants is also on the same line and on the same point cited before us by learned Sr. Counsel appearing for the appellants. 15. In this case also by referring to evidence of the sole eye-witness on which reliance was placed by the prosecution and finding it to be contradictory and inconsistent with his earlier statement recorded as dying declaration and finding material discrepancies as regards nature of weapon carried by the assailants and used for assault on the victims, in the light of the statement of doctor in whose presence the said dying declaration was recorded by the Magistrate wherein the witness claimed that he was unconscious or that he did not make the statement attributed to him was held to be not acceptable. Reference can be made to Para Nos. 7 to 9 of this judgment which read as under: “7. The most glaring discrepancy which goes to the root of the matter and shatters the cases version of PW-2 is as regards the site where the murderous attack on Lognar took place. According to his sworn testimony the entire assault on the deceased took place in the shop of Lalta which as the evidence on record shows was at a distance of about 40/50 feet to the east of Varanasi-Bhadohi Road. In his earlier statement he however stated that his uncle was shot at and died on the road. Indeed, in his earlier statement he did not even mention about the shop of Lalta. The reason for such shifting of the place of occurrence is not far to seek. The investigation Officer stated in his evidence that he found blood only in the shop of lalta and nowhere else. Obviously to fit in with the presence of blood only in the shop of Lalta, PW-2 made the above concocted statement in Court. As regards the sequence of events also there is a marked discrepancy in the evidence of PW-2. At the trial he stated that as soon as they reached the road the miscreants bounced upon them. Obviously to fit in with the presence of blood only in the shop of Lalta, PW-2 made the above concocted statement in Court. As regards the sequence of events also there is a marked discrepancy in the evidence of PW-2. At the trial he stated that as soon as they reached the road the miscreants bounced upon them. But his earlier statement was that after coming out of their house they went to a betal shop and there while they were waiting for the betels ordered by them to be served the miscreants came there and attacked them. PW-2 next stated in his deposition that after being assaulted he rushed to the courtyard of Ramdular which was on the western side of the Varanasi, Bhadohi Road and from there he saw the assault on his uncle in the shop of Lalta. But earlier he had stated that after being assaulted when he went running to the house of Ramdular he did not allow him to enter apprehending that he (Ramdular) might be fired at also and that he fell down in front of his gate. There is also material discrepancy as regards the nature of weapons carried by the appellants and used for assault on him and his uncle. 8. In appears that when PW-2 was confronted with different portions of his earlier statement in accordance with section 145 of the Evidence Act, he claimed that he was unconscious and denied to have made the statements attributed to him. That such claim of PW-2 was false - and was obviously made to ripple out of the earlier statement - would be patently clear from the unimpeachable evidence of Dr. B.P. Singh (DW-1) who was the Medical Officer of Varanasi Hospital at the material time. He testified that in his presence Shri S.M. Maurya. Deputy Collector, Varanasi recorded the dying declaration of Ram Surat in his presence and that Ram Surat was in his senses. In support of his testimony he not only proved the dying declaration but also his endorsement and that of the Magistrate thereon. In cross-examination he denied the suggestion that Ram Surat was senseless and was not able to give the statement. 9. For the foregoing discussion we are unable to conclusively infer solely relying upon the evidence of PW-2 that the four appellants committed the murder of his uncle or attempted to commit his murder. In cross-examination he denied the suggestion that Ram Surat was senseless and was not able to give the statement. 9. For the foregoing discussion we are unable to conclusively infer solely relying upon the evidence of PW-2 that the four appellants committed the murder of his uncle or attempted to commit his murder. The appeal is therefore, allowed. The impugned order of conviction and sentence is hereby set aside and the appellants are acquitted of all the charges. The appellants who are in jail be released forthwith.” 16. One more judgment as cited by the learned counsel appearing for the appellants is the judgment delivered by Hon'ble the Supreme Court in the case of Badri vs. State of Rajasthan, 1976 SCC (Cri) 60. In this case also, in absence of corroboration to the sole witness relied upon by the prosecution against the accused persons to prove a serious charge of murder, who modulate his evidence to secure conviction, the Court observed that the evidence of the solitary witness in these circumstances was not such that it could be relied upon by the Court for the purpose of upholding the conviction. In that case also, it was held that while no particular number of witnesses are required for the proof of any fact, it is a sound and well established rule of law that quality and not quantity of evidence matters. In each case, the Court has to consider whether it can be reasonably satisfied to act even upon the testimony of a single witness for the purpose of convicting a person. Paras 11 and 12 are relevant which read as under: “11. This Court had to deal with the case of a solitary witness in Vadivelu Thevar vs. State of Madras oral testimony was classified in that case into three categories, namely (1) wholly reliable, (2) wholly unreliable and (3) neither wholly reliable nor wholly unreliable. While there is no difficulty about the first two, with regard to the third category this Court observed: “It is in the third category of cases, that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial.” 12. Since under the Evidence Act no particular number of witnesses are required for the proof of any fact, it is a sound and well-established rule of law that quality and not quantity of evidence matters. Since under the Evidence Act no particular number of witnesses are required for the proof of any fact, it is a sound and well-established rule of law that quality and not quantity of evidence matters. In each case the court has considered whether it can be reasonably satisfied to act even upon the testimony of a single witness for the purpose of convicting a person.” 17. It has been discussed by the Apex Court in its later judgment delivered in the case of Rai Sandeep alias Deepu vs. State of NCT of Delhi and Hari Singh vs. State of (NCT) of Delhi, 2012 Cri. L.J. 4119 where the Hon'ble Supreme Court in Para 15 has laid down the test for admissibility of such solitary witness. Para 15 reads as under: “15. In our considered opinion, the ‘sterling witness’ should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant is the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes the initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be and under no circumstance should give room for any doubt as to the factum of the occurrence, the persons involved, as well as, the sequence of it. Such a version should have correlation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. Such a version should have correlation with each and everyone of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can even be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other similar such tests to be applied, it can be held that such a witness can be called as a ‘sterling witness’ whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged.” 18. Thus, from the aforesaid judgments, principle can be deduced for the purpose of analyzing and placing reliance upon the testimony of solitary witness i.e., the statement made by that witness should be consistent, reliable and even if it is not supported or corroborated by any other witness, then also, the quality of such evidence be such, should be of very high quality and calibre. 19. Thus, in the light of the aforesaid principle, we will have to test the version of PW-1 Shahjad, the sole eye-witness relied upon by the learned Sessions Judge in this case to convict all the appellants for the offence punishable under sections 147, 148, 302/149 of Indian Penal Code. 20. It would also be relevant to take note of the statement made by doctor who conducted post-mortem on the dead-bodies of the deceased persons. Post-mortem report of Shakir Mohd. and Shafi Mohd. as available on record are Ex.P/38 and Ex.P/39 respectively. Both the post-mortem reports have been proved by Dr. A.K. Dubey PW-11. 20. It would also be relevant to take note of the statement made by doctor who conducted post-mortem on the dead-bodies of the deceased persons. Post-mortem report of Shakir Mohd. and Shafi Mohd. as available on record are Ex.P/38 and Ex.P/39 respectively. Both the post-mortem reports have been proved by Dr. A.K. Dubey PW-11. His entire evidence is relevant and is reproduced hereunder for the sake of reference. 21. Opinion given by this doctor is relevant which reads as under: xxx xxx xxx 22. In his cross-examination, he has very clearly stated that on the dead-body of deceased Shakir Mohd. there was no penetrating wound and thus, he ruled out user of weapon like gupti, knife, arrow, ballam etc. The same witness Dr. Dubey also proved the post-mortem of deceased Shafi Mohd. In his very statement, he stated that: xxx xxx xxx 23. Even about this person, Dr. A.K. Dubey has made the similar statement that on the dead-body of deceased Shafi Mohd. there was no penetrating wound. Thus, from the statement of Dr. A.K. Dubey, user of gupti, spear or ballam in this incident is ruled out. Similarly, there is no gun injury on the bodies of the deceased persons. 24. It will now be appropriate to take note of the statement of PW-1 Shahjad which reads as under: xxx xxx xxx 25. It is also relevant to take note of the cross-examination of Shahjad PW-1 wherein he admits that the witnesses as well as the deceased are his near relatives. Relevant paragraph reads as under: xxx xxx xxx 26. From the deposition of Shahjad PW-1 as recorded by the trial Court, it is apparent that this witness has made definite improvement in his version contrary to the FIR lodged by him. The deposition of PW-1 Shahjad is also contrary to the medical opinion, inasmuch as using of gupti, wooden rod and gun as deposed by him in his statement before the Court was neither stated by him while he got recorded the FIR nor he supported with the medical evidence as discussed above. 27. In addition, we also find that the manner, in which the learned Judge has analyzed the evidence and has appreciated the same also calls for certain observations by us, inasmuch as while Mr. 27. In addition, we also find that the manner, in which the learned Judge has analyzed the evidence and has appreciated the same also calls for certain observations by us, inasmuch as while Mr. R.R. Patidar, the Investigating Officer admits that he did not have any discussion with the complainant regarding preparation of the site plan, it is not clear as to how he prepared the site plan. No witness who would have witnessed the preparation of the site plan in the absence of there being eye-witness to the incident would support the preparation of the site plan by Mr. R.R. Patidar. 28. There is deficiency in the case of prosecution as also noticed by the observations made by the Trial Judge in various paragraphs, yet the trial Court has accepted the case of the prosecution. Relevant portion of the impugned judgment reads as under: xxx xxx xxx 29. This shows that the witness had not stated anything about the weapon by which the injuries were caused yet he had guts to say that he was aware of the weapons by which the injuries were caused and that he had stated so to the person who prepared the panchanama which has stated above, was not prepared in his presence. 30. Further observations made by the learned Trial Judge in this paragraph is also relevant which reads as under: xxx xxx xxx 31. Further in Para 19 of the impugned judgment, some other observations made by the learned trial Judge also refers to lack of deficiency in the case of prosecution which reads as under: xxx xxx xxx 32. This observation in fact supports the case of the defence that the statement of PW-1 Shahjad was not free from doubt. Para 21 of the impugned judgment is relevant, wherein the trial Court while admitting the relationship of Shahjad PW-1 and other witnesses with the deceased persons has simply brushed aside the aforesaid aspect of the matter while appreciating the evidence. In this regard, the trial Court has observed as under: xxx xxx xxx 33. Para 21 of the impugned judgment is relevant, wherein the trial Court while admitting the relationship of Shahjad PW-1 and other witnesses with the deceased persons has simply brushed aside the aforesaid aspect of the matter while appreciating the evidence. In this regard, the trial Court has observed as under: xxx xxx xxx 33. This observation not only shows bent up of the mind of the learned Trial Judge who was not at all concerned with the deficiency and lackness in the case of prosecution and despite the evidence having come on record that there was tension on account of Bhojshala as admitted that as the reason for the incident whereas according to Shahjad PW-1, the dispute had occurred on account of the intention of the accused persons to take possession of their land, about which there is absolutely no evidence. 34. The trial Court further presumed the case of prosecution in the observations made by him in Para 22 of the impugned judgment, which is reproduced hereunder for the sake of reference. 35. Thus, the entire paragraphs also show that the appreciation of the evidence has not been done by the learned trial Court on the basis of the evidence, which has come on record, but the appreciation is based upon the presumption and assumption in favour of the prosecution. 36. The trial Court has also not taken into consideration that all the witnesses cited by the prosecution are relatives of the deceased. If the statement of Shahjad PW-1 is to be taken as it is then evidence of the other witnesses, some of whom have not been believed by the trial Court himself would also caste serious doubt even on the version of PW-1 Shahjad, but this aspect has not been considered by the trial Court. 37. The trial Court has also failed to appreciate that the statement of PW-1 Shahjad is not corroborated by the medical evidence. As per the post-mortem report, penetrating wound have not been found on the dead-body of both the deceased. Question of using any such weapon which would cause penetrating wound such as Gupti, spear and gun was certainly inadmissible in evidence. In any case, gun has not been used in this case, yet the witness has pointed out that one of the accused was having gun. Question of using any such weapon which would cause penetrating wound such as Gupti, spear and gun was certainly inadmissible in evidence. In any case, gun has not been used in this case, yet the witness has pointed out that one of the accused was having gun. It may be observed here that even the trial Court has directed to release of the gun, inasmuch as that the gun was a licencee gun and was not even used in the incident. This again casts serious doubt on the story of the prosecution. 38. In his statement recorded as Ex.P/1, the dispute was with respect to certain land belonging to the witness and their family which according to PW-1 Shahjad was wanted to be occupied by the accused persons. However, no such details about any such property was found mentioned in the statement of the witnesses, rather, new story i.e. about the dispute of Bhojshala has been introduced by PW-1 Shahjad, which was not so stated by him in his statement Ex.P/1. This also casts serious doubt in the story of the prosecution. 39. Another important thing which should have been considered by the trial Court while appreciating the evidence is that while all the accused persons are from particular community, the complainant and the witnesses cited are from the different community. 40. It has come on record, there was some dispute between two community about Bhojshala. The accused persons belonged to particular section of the society and there were some ill-will between the accused persons on the one hand and the witnesses on the other hand. In these circumstances, false implications of the appellants/accused who belonged to particular community, the witnesses belonged to different community and all are relatives to each other, again cannot be disbelieved. 41. All these aspects have simply been ignored by the learned trial Court while delivering the judgment even though in many paragraphs, the trial Court itself has questioned the veracity of the evidence of the prosecution, yet simply relying upon the statement of PW-1 without any corroboration, despite the fact that the witness was very close relatives of the deceased persons and had made number of improvement in his statement and has discussed the story which was not found so stated by him in the FIR. 42. 42. It is well settled principle of criminal law that none of the accused against whom there is no evidence, should be convicted. The prosecution is required to prove its case beyond reasonable doubt. However, in this case, sole testimony of PW-1 Shahjad relied upon by the learned Sessions Judge to convict as many as 14 persons is not free from doubt. Analysis of evidence by the learned Sessions Judge shows number of lackness in the case of prosecution. It is also an admitted fact that the witnesses are near relatives of the deceased. The injuries as alleged in the FIR having been caused with lathies were in fact, according to PW-1 Shahjad while appearing in the Court, were caused with other weapons, which were penetrating weapons, which according to the doctor was not so, yet the conviction has been fasten upon the accused/appellants. 43. In view of the aforesaid, taking into consideration the judgments cited at the bar on behalf of learned counsel for the appellants as quoted above and the submissions made by them in the absence of corroboration by any other witness to the story of Shahjad PW-1, it is difficult to believe the story of the prosecution. In fact, what he says that Shahjad was not the eye-witness, this is also fortified by the fact that just within 15 minutes of the incident, despite the place of incident being 8-9 km. away from the police station where the FIR has been registered and the witness having gone to village and having returned to the place of incident also falsify the version that the incident had taken place at the time as mentioned in the FIR. Lodging of the FIR by him just after 15 minutes of the incident also falsify the story of the prosecution. 44. Considering the aforementioned observations, we are of the view that in this case, the impugned judgment convicting the accused/appellants is not sustainable. 45. Consequently, both the aforesaid Criminal Appeals are allowed and the accused/ appellants are acquitted from the charges under Sections 147 and 302/149 of Indian Penal Code. The accused/appellants in Criminal Appeal No. 1380/2008 are in jail; they are directed to be released forthwith, if not wanted in any other case. Accused/appellants in Criminal Appeal No. 14/2009 are on bail; their bail bonds stand discharged. The accused/appellants in Criminal Appeal No. 1380/2008 are in jail; they are directed to be released forthwith, if not wanted in any other case. Accused/appellants in Criminal Appeal No. 14/2009 are on bail; their bail bonds stand discharged. A copy of this judgment be retained in the file of Criminal Appeal No. 14/2009.