Research › Search › Judgment

Allahabad High Court · body

2015 DIGILAW 2704 (ALL)

HARIBANSH SINGH v. STATE OF U. P.

2015-09-02

NAHEED ARA MOONIS, SHASHI KANT GUPTA

body2015
JUDGMENT Hon’ble Shashi Kant Gupta, J.—This Criminal Appeal has been preferred by the appellant Haribansh Singh against the judgment and order dated 4.3.1983 passed by II Additional Sessions Judge, Jaunpur in S.T. No. 11 of 1982, State v. Jillo alias Ziledar and another (arising out of case crime No. 249/81), under Sections 302/34 and 323/34 of the Indian Penal Code (in short “the IPC”), Police Station Rampur, District Jaunpur whereby the accused appellant has been convicted under Section 302/34 IPC and sentenced to undergo life imprisonment and one years R.I. under Section 323/34 I.P.C. Co-accused Jillo alias Ziledar was not found guilty and, therefore, was acquitted of the charges levelled against him by the trial Court. 2. Government Appeal No. 1395 of 1983 (State of U.P. v. Jillo alias Ziledar) was preferred by the State against the judgment and order dated 4th March 1983 whereby Jillo alias Ziledar was acquitted. Another Division Bench of this Court admitted the Government appeal vide order dated 21.9.1983 and directed the same to be tagged with the present appeal. However, during the pendency of the Government appeal, the accused respondent Jillo alias Ziledar died, thus, the Government appeal was dismissed as abated. 3. The prosecution story, in nutshell, is as follows : 4. As per prosecution story, the appellant Haribansh Singh and co accused Jillo alias Ziledar were friends and both residents of village Katona, P.S. Rampur, District Jaunpur. Deceased Bhagelu and his brother complainant Ramdeo Singh were also residents of the same village i.e. village Katona. Relations between the deceased Bhagelu Singh and co accused Jillo were strained. It was alleged that about six years back, deceased Bhagelu, Tej Bahadur alias Tejai, Chhote Lal, Chandra Bhan Singh alias Baba, Haribansh son of Raghunath, Raj Bahadur and Ramesh had beaten Jillo. As a result of which, a case under Section 307 IPC was registered against them at the instance of co accused Jillo but the inmates of the village got that compromised. On 27.10.1981 at about 8-9 p.m. deceased Bhagelu and his brother Ramdeo Singh were sitting in front of their house taking supper. Their cousin Amarnath Singh was also sitting there. In the meantime, co accused Jillo armed with a ballam which had a Gandasa affixed on its top and appellant Haribansh armed with a Lathi came there. On 27.10.1981 at about 8-9 p.m. deceased Bhagelu and his brother Ramdeo Singh were sitting in front of their house taking supper. Their cousin Amarnath Singh was also sitting there. In the meantime, co accused Jillo armed with a ballam which had a Gandasa affixed on its top and appellant Haribansh armed with a Lathi came there. Both of them told Bhagelu that they have put a net in the river Varuna and will have a good catch of fish during the night. Deceased Bhagelu Singh, who was suffering from tuberculosis, was very fond of fish, so got tempted and accompanied them. 5. A few moments after Bhagelu proceeded for river Varuna, his brother Ramdeo Singh son of Rajbali Singh told Amarnath Singh (son of his maternal aunt, who was also sitting there) that he apprehends that due to old enmity between him and Jillo, accused persons might not deceitfully kill Bhagelu and so they decided to follow them. Ramdeo picked up his torch and slowly and silently followed the accused towards the river. When Ramdeo reached in front of Munni Lal’s house and Pandhari situated in village Narharpur Kohran, he heard screams of his brother. He at once flashed his torch and rushed towards the direction from where the screams were coming. Amarnath Singh also followed him. He then saw in the torch light that the co accused Jillo and appellant Haribansh Singh were assaulting his brother Bhagelu Singh at the potato field of one Pancham Singh. Seeing Ramdeo Singh coming to help Bhagelu Singh, Haribansh Singh rushed towards him and assaulted the informant also with lathi. After being hit by lathis, the informant alongwith Amarnath ran towards his village shouting for help. On hearing his cries, residents of the village Narha pur Kohren rushed for help. On seeing them the accused Jillo and Haribansh Singh fled away in the south west direction of river Varuna. After the accused left the place of occurrence, he and Amarnath Singh went to the potato field of Pancham and saw that his brother Bhagelu Singh was lying injured in the field, he was alive and the informant brought him to his house. On seeing the condition of Bhagelu Singh, ladies of the house started crying. After the accused left the place of occurrence, he and Amarnath Singh went to the potato field of Pancham and saw that his brother Bhagelu Singh was lying injured in the field, he was alive and the informant brought him to his house. On seeing the condition of Bhagelu Singh, ladies of the house started crying. On hearing the cries of the inmates of the house of Bhagelu Singh, Ram Naresh Singh (P.W.3) who was sleeping in his house woke up and came to his house where the injured Bhagelu Singh told him that he was assaulted by accused Jillo and Haribansh Singh. Ramdeo Singh then with the help of Ram Naresh Singh converted the cot, on which Bhagelu Singh was lying, into a ‘Doli’ and proceeded to the police station at 10 p.m. After they had barely covered about one kilometre, Bhagelu Singh died on the way. They continued their journey during the night towards P.S. Rampur. 6. They reached Rampur Bazar early morning, then, there Ramedo Singh wrote an F.I.R. (Ex.Ka 1) at a shop at 5.15 a.m. He lodged the aforesaid FIR Ex. Ka 1 at 5.15 a.m. at P.S. Rampur. On its basis a chick report Ex. Ka 3 was prepared by Head Constable Udit Narain Singh who was then posted as Head Moharrir at P.S. Rampur. He also registered the case in the G.D at serial No. 4 vide Ext Ka-4. S.I Ramesh Chandra Pandey and S.I Babu Lal Sharma were then posted as S.O and IInd Officer respectively at P.S. Rampur. After the case was registered against the accused persons, S.I. Babulal Sharma prepared the inquest report Ex. Ka 5 of deceased Bhagelu Singh under the direction of S.I Ramesh Chandra Pandey. He thereafter prepared photo lash Ex. Ka 6 and challan lash Ex. Ka7. He got the dead body sealed in a piece of cloth. Thereafter, he wrote letter Ex. Ka 8 to the C.M.O for autopsy. It was then handed over to constable Mohd. Nazir and Nagehwar Chubey for taking it to sadar mortuary Jaunpur for autopsy. 7. S.I. Ramesh Chand Pandey took the blood stained Kathari Ex.1, Chadar Ex. 2 which was spread on the cot, and blood stained dhoti Ext.3 of Bhagelu Singh deceased. He sealed all the articles in a bundle and prepared fard Ex. Ka 12. Nazir and Nagehwar Chubey for taking it to sadar mortuary Jaunpur for autopsy. 7. S.I. Ramesh Chand Pandey took the blood stained Kathari Ex.1, Chadar Ex. 2 which was spread on the cot, and blood stained dhoti Ext.3 of Bhagelu Singh deceased. He sealed all the articles in a bundle and prepared fard Ex. Ka 12. He also wrote Mazroobi chitthi for the examination of the injuries of injured Ramdeo Singh and under the escort of constable Mohd. Haroon sent him to P.H.C Rampur for medical examination. His injuries were examined on the same day at 6.45 a.m. by Dr. Nar Singh Upadhyaya who was then posted as Medical Officer P.H.C Rampur. He found the following injuries on his person: Contusion of the size of 6 cm x 2 cm on the outer side of left upper arm 14 cm above the elbow. Colour of the contusion was red. Contusion of the size 7 cm x 1 cm on the outer side of right upper arm 12 above the elbow. Colour of the contusion was red. Contusion of the size of 9 cm x 2 cm on the left side of the back just left to the mid line and 14 cm below the shoulder. Colour of the contusion was red. Contusion of the size 8 cm x 1 cm on the outer side of left upper arm 9 below the shoulder. Colour of the contusion was red. Contusion of the size 12 cm x 1.5 cm on the outer side of left thigh 15 cm above the knee. Colour of the contusion was red. Contusion of the size 5 cm x 1.5 cm on the outer side of left leg 6 cm below the knee. Colour of the contusion was red. Abrasion of the size of 1 cm x 1 cm on the front of left knee. Crust formed. Colour of the abrasion was red. 8. According to the opinion of Dr. Upadhyaya, all the injuries were simple and their duration was half a day, and appeared to have been caused by a blunt object. After medical examination Dr. Upadhyaya prepared injury report Ex. Ka 11. 9. Complainant Ramdeo Singh was examined after he returned to P.G Rampur by S.O. Ram Naresh Singh. Head Constable Udit Narain and other witnesses namely Babanath Kamla, and Sheonath were also examined. After medical examination Dr. Upadhyaya prepared injury report Ex. Ka 11. 9. Complainant Ramdeo Singh was examined after he returned to P.G Rampur by S.O. Ram Naresh Singh. Head Constable Udit Narain and other witnesses namely Babanath Kamla, and Sheonath were also examined. Complainant Ramdeo Singh showed the torch from which he saw the incident. It was examined by S.I. Ramesh Chandra Pandey and returned to complaint Ramdeo Singh and a fard Ex. Ka 2 was prepared. He then proceeded to the scene of occurrence alongwith S.I. Babu Lal Sharma. On reaching there he examined witnesses Pandhari, Munni Lal and Amarnath and visited the potato field of Pancham where Bhagelu Singh was assaulted.Then, he prepared site-plan Ex. Ka 13. He also took blood stained earth Ext.5 and ordinary earth Ext.4 from the potato field and sealed it in two small tins and prepared fard Ex. Ka 10. Witness Munni Lal also showed him the lantern which was burning at the shop at the time of the occurrence. He examined the lantern and thereafter gave it in the supurdgi of witness Munni Lal prepared fard Ex. Ka 14. He searched for the accused but they were not available as such he returned to P.S. Rampur. 10. The autopsy on the dead body of Bhagelu Singh was performed on the same day at 3.30 by Dr. A.K Sarin who was then posted as Medical Officer, district Hospital Jaunpur. He found that the deceased was about 35 years of age and had died a day ago. His eyes were open and mouth was closed. Rigor mortis was present in both the upper and lower limbs. The following ante-mortem injuries were found on the dead body: 1. “Lacerated wound of the size of 11 cm x bone deep over the top of head 14 cm above the left ear. 2. Lacerated wound of the size of 7 cm x 1 cm x bone deep on the top of head adjacent to injury No. 1. 3. Incised wound of the size of 3 cm x 0.7 cm x bone deep on the right side of face 1 cm lateral to outer angle of right eye. 4. Contused wound of the size of 5 cm x 2.5 cm over the right arm on lateral aspect 15 cm above the right elbow joint. 5. 3. Incised wound of the size of 3 cm x 0.7 cm x bone deep on the right side of face 1 cm lateral to outer angle of right eye. 4. Contused wound of the size of 5 cm x 2.5 cm over the right arm on lateral aspect 15 cm above the right elbow joint. 5. Contused wound of the size of 8 cm x 5 cm on the right arm on lateral aspect 11.5 cm below injury No. 4. 6. Swelling over the little finger of right hand near base. 7. Lacerated wound of the size of 0.5 cm x 0.4 cm on the back of base right ring finger. 8. Abrasion of the size of 1.05 cm x 0.7 cm on the right thigh lateral aspect at base of greater trochanter. 9. Abrasion of the size of 4 cm x 2 cm on the lower part of right knee joint. 10. Incised wound of the size of 0.5 cm x 0.2 cm x muscle deep on the right leg on outer aspect 3.5 cm above the lateral mallets. 11. Incised wound of the size of 0.5 cm x 0.2 cm x muscle deep on the right leg 1.5 cm distal to injiry No. 10. 12. Abrasion of the size of 2 cm x 1 cm on the lower part of left knee joint. 13. Abrasion of the size of 2 cm x 2.5 cm on the front of left leg 7 cm away from injury No. 12. 14. Abrasion of the size of 0.7 cm x 0.5 cm on the medial side of right foot 6 cm distal to medial cellulose. 15. Contusion of the size of 10 cm x 7.7 cm (V in shape) over the left scapula region. 16. Abrasion of the size of 3 cm x 1 cm on the back of left shoulder. 17. Abrasion of the size of 4.5 cm x 2.0 cm on the left side of back 3 cm below the injury No. 15. 18. Contusion of the size of 1 cm x 1.5 cm on the left side back 4.5 cm below injury No. 17. 19. Contusion of the size of 7 cm x 1.5 cm on the left side of 7 cm below the injury No. 18. 20. Contusion of the size of 7 cm x 1.5 on the right side of 13 cm below the scapula. 21. 19. Contusion of the size of 7 cm x 1.5 cm on the left side of 7 cm below the injury No. 18. 20. Contusion of the size of 7 cm x 1.5 on the right side of 13 cm below the scapula. 21. Contusion of the size of 5 cm x 1 cm on the left side back 9.5 cm towards left from injury No. 20. 22. Abrasion of the size of 0.5 cm x 0.5 cm on the left side chest 12 cm below the nipple at 5 0' clock position. Internal examination showed that last rib of right side of chest was broken. Right heart was full of blood while left was empty. Peritoneum was contused. Right side of uper abdomen contained about half Oz. Of blood About four ounce of semi digested food was found in the stomach. Small intestines were semi ful while big contained feacal matter. Gall bladder and spleens was contused and bladder was semi full.” 11. According to the opinion of Dr. A.K. Sarain death was due to haemorrhage and shock because of liver injury. 12. Dr. A.K. Sarin took out blood stained banyan, under wear from the dead body and sealed them in a bundle and handed over the same to constable Nagendra Nath and after autopsy prepared post-mortem report Ext. Ka-16. 13. After receipt of the autopsy report, S.I. Ramesh Chandra Pandey completed investigation on 13.11.1981 and submitted charge-sheet Ext. Ka 15 against the accused. 14. The prosecution, in order to bring home the charges against the accused has examined eight witnesses P.W.1 is Munni Lal resident of village Narherpur Kohran, P.S. Rampur, District Jaunpur. He runs a general merchant shop in his village. He has been examined by the prosecution to give an eye-witness account of the occurrence of murderous assault on Bhagelu Singh by the accused-appellant Haribansh Singh and Jillo. It may be mentioned that while in his examination in chief he has adhered to the prosecution version of murderous assault on Bhagelu Singh by the accused on 27.10.1981 at about 9 p.m. in the potato field of Pancham Singh but during cross-examination he turned hostile and stated that he did not witness the assault by the accused. He afterwards stated that when the assault was going on he went inside his shop due to fear and bolted the doors from inside. He afterwards stated that when the assault was going on he went inside his shop due to fear and bolted the doors from inside. He also stated that due to fear he did not come out of his shop until the assailants went away. After the assailants fled away he came out of the shop but did not see any body near the scene of occurrence. On a specific query he stated that he did not even see as to who escorted Bhagelu Singh from the field of Pancham. When asked as to why he gave a statement that he had seen the occurrence both during investigation and also before the Magistrate, he stated that he was under a threat of the I.O. In view of the aforesaid statement, he was declared Hostile by the prosecution. 15. P.W. 2, Ramedo Singh is the brother of the deceased Bhagelu Singh. He has given evidence both regarding motive and eye-witness account of the occurrence which has been narrated by us in detail at the very beginning of the judgment while narrating the prosecution story and it need not to be reiterated. After the occurrence, he had escorted his injured brother from the potato field of Pancham situated in village Narharpur Kohran to his house and thereafter he and Ram Naresh Singh converted the cot, on which he was lying, into a Doli and proceeded to P.S. Rampur. He has further stated that after they had covered only one Kilometre from their house and were in village Ashapur, his brother Bhagelu Singh succumbed to his injuries. After regaining composure, he again started his journey towards the police station and reached Rampur Bazar at about 5.00 a.m.. He then wrote an FIR Ex. KA 1 and went to the P.S. Rampur alongwith his deceased brother Bhagelu Singh and lodged it at 5.15 a.m.. Lastly he has stated that in his FIR a case was registered against the accused and the S.I. Ramesh Chandra Pandey wrote Mazroobi Chhithi for his medical examination and the constable Mohd. Haroon escorted him to H.P.C. Rampur for medical examination. He is thus said to be an injured witness of the occurrence and is the pivot on which the prosecution case stands. 16. P.W.3 is Ram Naresh Singh resident of village Katona. He is the cousin of deceased Bhagelu Singh. Haroon escorted him to H.P.C. Rampur for medical examination. He is thus said to be an injured witness of the occurrence and is the pivot on which the prosecution case stands. 16. P.W.3 is Ram Naresh Singh resident of village Katona. He is the cousin of deceased Bhagelu Singh. He stated that on the date of occurrence at about 9.30 p.m. he was sleeping in his house when he heard screams of the ladies from the house of deceased Bhagelu Singh. He then went Bhagelu Singh’s house and saw him lying injured on a cot in front of his house. His brother Ramdeo Singh was also injured. On being asked by P.W. 3 as to how he had received so many injuries, deceased Bhagelu Singh stated that he was assaulted by accused Jillo and Haribansh Singh. He further stated that they took him to village Narharpur Kohran on the pretext of catching fish in river Varuna, where accused Jillo assaulted him with a lathi on which both ballam and gandas were affixed and accused Haribansh Singh also assaulted him with lathi in front of the house of Munni Lal. He also told him that when his brother Ramdeo Singh came forward to to save him, he was also assaulted by lathi. P.W. 3 deposed that he thereafter converted the cot, on which Bhagelu Singh was lying injured, into a Doli and alongwith Ramdeo Singh proceeded to P.S. Rampur. After they had covered a distance of 1 KM and was in village Ashapur, Bhagelu Singh died. He stopped there for some time and after regaining composure proceeded to Rampur and reached Rampur Bazar at about 5 a.m. and there complainant Ramdeo Singh wrote the FIR Ex. Ka1, which was lodged at P.S. Rampur at 5.15 p.m. 17. P.W. 4 is S.I. Babu Lal Sharma. His evidence is formal in nature. He was present at the police station when complainant Ramdeo Singh had come at 5.15 a.m. in the morning on 28.10.1981 alongwith his deceased brother Bhagelu Singh and lodged FIR Ex. KA1. He had prepared inquest report Ex. Ka.5 under supervision of S.I Ramesh Chandra pandey. Afterwards he prepared photo lash (Ex. Ka 6) Challen Lash (Ex. Ka 7) and got the dead body of Bhagelu Singh sealed in a piece of cloth and despatched it to sadar morturary for autopsy under the escort of constable Mohd. Nazir and Nageshwar Chaubey. KA1. He had prepared inquest report Ex. Ka.5 under supervision of S.I Ramesh Chandra pandey. Afterwards he prepared photo lash (Ex. Ka 6) Challen Lash (Ex. Ka 7) and got the dead body of Bhagelu Singh sealed in a piece of cloth and despatched it to sadar morturary for autopsy under the escort of constable Mohd. Nazir and Nageshwar Chaubey. He had also accompanied I.O. Ramesh Chandra Pandey to the scene of occurrence and had taken blood stained earth and ordinary earth from the potato field of Pancham situate in village Narharpur Mohran and sealed in small tins and prepared fard Ex. Ka 10 His evidence is thus formal in nature. 18. P.W.5 is Head Constable Aditya Narain Singh who was then posted as Head moharir at P.S. Rampur. His evidence is also formal in nature. On the basis of the FIR lodged by the complainant Ramdeo Singh he has prepared chick report Ex. Ka 3 and has registered a case in the G.D. against both the accused at serial No. 4 vide Ex. Ka4. 19. P.W.6 is Dr. Nar Singh Upadhyaya, Dy. C.M.O. who was then posted as Medical Officer P.H.C. Rampur. On 28.10.19871 at 6.45 a.m. he had examined the injuries of complainant Ramdeo Singh and also prepared his injury report Ext. Ka.11. 20. P.W.7 is S.I. Ramesh Chandra Pandey who was then posted as S.O P.S. Rampur. He has conducted the investigation and submitted charge-sheet, Ex. KA 15, against both the accused. 21. P.W.8 is Dr. A. K. Sarin Medical Officer District Hospital Jaunpur. On 28.10.1981 at 3.30 p.m. He had conducted autopsy on the dead body of Bhagelu Singh and has prepared post-mortem report Ex. Ka 16. 22. The prosecution has also tendered in evidence affidavit of constable Nagendra Nath Chaubey. On 28.10.1981 he had brought the dead body of Bhagelu Singh sealed in a piece of cloth from P.S Rampur to sadar mortuary Jaunpur and got its autopsy done in his presence. After autopsy Dr. A.K. Sarin handed over to him the sealed bundle containing there blood stained clothes of the deceased namely Banyan Ext.6 under wear Ext.7 and Sadri Ext.8 which he brought to police station Rampur and deposited there. His evidence is thus formal in nature. 23. The prosecution has also tendered in evidence the report of the Chemical Examiner and Serologist U.P. Government It is Ex. Ka 18 and Ka 19. His evidence is thus formal in nature. 23. The prosecution has also tendered in evidence the report of the Chemical Examiner and Serologist U.P. Government It is Ex. Ka 18 and Ka 19. It will show that human blood was found on the blood stained clothes which were taken by Ramesh Chandra Pandey I.O. At the time of preparation of inquest report namely Khatari Ex.1, chadar Ex.2 and Dhoti Ex.3 and also on blood stain clothes of the deceased taken by Dr. A.K. Sarin at the time of autopsy namely Naryain Ex. 6, under wear Ex.7 and sadri Ex.8. Regarding earth taken from the potato field of Pancham it was found that it was human blood but it could not be further deciphered as particles of blood were found disintegrated. 24. This was in nut shell the entire prosecution evidence. 25. Both the accused have denied the charges framed against them. They have specifically denied that on 20.10.1981 at about 9.00 p.m. in the night they called and escorted deceased Bhagelu Singh from his house on the pretext of catching fish and assaulted the deceased Bhagelu in the potato field of Pancham which caused severe injuries leading to his death. They also further denied that when Ramdeo Singh came there and attempted to save him he was also assaulted by the accused Haribansh Singh by lathi. Their defence inter alia is that they have been falsely implicated in the present case on account of their enmity with Vishwanath Pradhan of the village. When they were examined under Section 313 Cr.P.C., they stated that they are Hindus and they celebrate festival of Diwali for three days. During Diwali they do not take meat or fish as they worship goddess Lakshmi during this period. Lastly, they suggested that Bhagelu Singh was a gambler and on the Diwali night would have been murdered while playing cards (gambling). 26. Mr. Brijesh Sahai, learned counsel for the appellant submitted that the allegation of committing murder of deceased Bhagelu has been assigned to the appellant as well as the co accused Jillo alias Ziledar. The appellant has been assigned the role of carrying Lathi and co accused Jillo was armed with a Ballam affixed with a Gandasa on its top. The Court below, after considering the entire evidence, had acquitted the co accused Jillo alias Ziledar but convicted the appellant. 27. The appellant has been assigned the role of carrying Lathi and co accused Jillo was armed with a Ballam affixed with a Gandasa on its top. The Court below, after considering the entire evidence, had acquitted the co accused Jillo alias Ziledar but convicted the appellant. 27. Learned counsel for the appellant, while referring to the findings of the Court below in this regard, submitted that the case of the appellant stands on the same footing as that of co accused and therefore, he should also have been given the benefit of doubt and no discrimination should be made since the evidence against both the accused are more or less similar. He further submitted that the trial Court decided the entire case only on the basis of a solitary witness who can be said to be partly reliable and partly unreliable and merely on the basis of testimony of the said witness the appellant could not be convicted and benefit of doubt should have been extended to the appellant also. 28. He further submitted that admittedly there was an old enmity between the parties therefore, there was no occasion at all for Bhagelu to accept the offer of the accused persons to catch fish in the night and moreover, on the other hand, the accused also would not have asked the deceased to accompany them in the presence of his brother. It was further submitted that in the F.I.R. it was not mentioned that the accused persons were armed with any weapon. However, later on P.W. 2 Ram Deo in his testimony has deposed that both the accused persons were carrying weapons. By no stretch of imagination it can be presumed that any prudent person having enmity with any one would prefer to accompany him for catching fish and that too at odd hours of the night i.e. at 9.00 p.m. on Diwali festival. 29. It was further submitted that P.W. 1 who was a witness of fact had turned hostile and merely relying upon the testimony of a solitary witness, who is partly reliable and partly unreliable, no conviction could be made against the appellant unless he is wholly reliable and satisfies the Court that his evidence is unimpeachable and its truthfulness is pure like 24 carat gold. Here, in the present case, evidence of P.W. 2 is wholly unreliable and his presence on the spot has also been doubted. As P.W. 1 has been declared hostile, the other witnesses of fact cannot be said to be wholly reliable. The P.W. 1 has supported the prosecution story either under pressure or on account of allurement. The evidence of such persons,who have been oscillating throughout and are not adhering to their stand, cannot be relied upon and the statements of such witnesses will not have any evidentiary value. If a witness turns hostile and resiles from his earlier statement creating doubt upon the probity and veracity of the incident, no reliance can be placed upon his statement. In case there is contradiction in the testimony of the prosecution witnesses, the balance will tilt towards the defence side. 30. It was further submitted that where the deceased suffered fatal injuries, the injured witness (P.W. 2), who had come in the rescue of the deceased, would not receive just simple injuries, especially when the assailants were armed with weapons, the possibility of the injuries being self inflicted or having been suffered in some other way cannot be ruled out. 31. He further submitted that so far as PW. 3 is concerned, he is a witness of extra judicial oral dying declaration and as per Section 155 of Evidence Act, he is presumed to be a liar and not an ocular witness. As per provisions of Section 32 of Evidence Act, dying declaration is admissible only when it may be certified by a Doctor duly verified by a Magistrate. Merely a dying declaration cannot be treated to be a solitary piece of evidence as it requires to be adjudged from the state of mind of the victim whether it has been tutored or the victim has given the statement out of vacillating or irresolute state of mind. Dying declaration recorded in such manner cannot be treated as a yardstick for convicting the accused. It should be weighed and examined from the angle of mental and physical position of the victim. Dying declaration recorded in such manner cannot be treated as a yardstick for convicting the accused. It should be weighed and examined from the angle of mental and physical position of the victim. In all probabilities, had he been present there, he would not have been spared by the accused and since one of the accused is alleged to have armed with sharp edged weapon, he might have sustained some incised wounds on his person and absence of such injuries on his person, also throws doubt on his presence at the place of the occurrence. 32. Per contra, Mr. Rajeev Gupta, learned A.G.A. for the State, supported the impugned judgement and order of conviction and submitted that the parity as claimed by the appellant with the co accused Jillo, who has already been acquitted by the Court below, is not available to the appellant and cannot be granted in the present case since this is an appeal and not the bail application. It was further submitted that the statement of the hostile witness cannot be ignored or rejected out rightly merely because he turned hostile in cross-examination where his statement and testimony fully corroborates the evidence of P.W. 2 who is an injured witness and merely on account of some minor differences in the testimony of the witnesses, the prosecution case cannot be discarded. It is always open to the Court to differentiate the accused who had been acquitted from those who were convicted. 33. It was further submitted that it is now well-settled that a dying declaration which has been found to be voluntary and truthful and which is free from any doubts can be the sole basis for convicting the accused and a dying declaration can be oral also and if the victim was in a position to communicate, it is reasonably expected that he would give the names of the real assailants if he had recognised them. Here, in the present case, from the facts and circumstances of the case, it emerges that there is no occasion to create doubt that the deceased was not in a position to identify the assailants because it is no body’s case that the deceased did not know the accused persons. 34. Here, in the present case, from the facts and circumstances of the case, it emerges that there is no occasion to create doubt that the deceased was not in a position to identify the assailants because it is no body’s case that the deceased did not know the accused persons. 34. He further submitted that the case of the prosecution is not merely based on the dying declaration made by the deceased to P.W. 3 but there also exist other circumstances which support the view in favour of the guilt of the appellant. 35. He further submits that merely because of the fact that the P.W. 1 turned hostile, the testimony of the injured witness (P.W. 2) cannot be discarded because his statement is cogent, coherent, reliable and fully supports the case of the prosecution and the testimony of the hostile witness in cross-examination would not materially affect the case of the prosecution. Normally, the testimony of an injured witness is considered to be very reliable as he is a witness that comes with a built in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant. An injured witness would enjoy greater credibility because he is the sufferer himself and thus, there will be no occasion for such a person to state an incorrect version of the occurrence or to involve any body falsely. 36. We have considered the rival submissions made by Mr.Brijesh Sahai, learned counsel for the applicant and Mr. Rajiv Gupta, learned A.G.A and perused the record. 37. The allegation of committing murder of the deceased has been assigned to the appellant as well as to the co accused Jillo Singh. In the F.I.R., according to the prosecution story, the appellant Haribansh Singh and co accused Jillo alias Ziledar are friends and resident of village Katona, P.S. Rampur, District Jaunpur. Deceased Bhagelu and his brother complainant Ramdeo Singh are also resident of the same village i.e. village Katona. Relations between the deceased Bhagelu Singh and co accused Jillo were strained. About six years ago, deceased Bhagelu, Tej Bahadur alias Tejai, Chhote Lal, Chandra Bhan Singh alias Baba, Haribansh son of Raghunath, Raj Bahadur and Ramesh had beaten Jillo. Deceased Bhagelu and his brother complainant Ramdeo Singh are also resident of the same village i.e. village Katona. Relations between the deceased Bhagelu Singh and co accused Jillo were strained. About six years ago, deceased Bhagelu, Tej Bahadur alias Tejai, Chhote Lal, Chandra Bhan Singh alias Baba, Haribansh son of Raghunath, Raj Bahadur and Ramesh had beaten Jillo. As a result of which, a case under Section 307 IPC was registered against them at the instance of co accused Jillo but the inmates of the village got it compromised. On 27.10.1981 at about 8-9 p.m. deceased Bhagelu and his brother Ramdeo Singh were sitting in front of their house after supper. Their cousin Amarnath Singh was also sitting there. In the meantime, co accused Jillo armed with a ballam which had a Gandasa affixed on its top and appellant Haribansh armed with a Lathi came there. Both of them spoke to Bhagelu that they have put a net in the river Varuna and will have a good catch of fish during night. Deceased Bhagelu Singh, who was suffering from tuberculosis, was very fond of fish, as such was tempted with the said offer and he accompanied and proceeded towards the river Varuna to catch fish. 38. A few moments after Bhagelu proceeded towards river Varuna, his brother Ramdeo Singh son of Rajbali Singh told Amarnath Singh (son of his maternal aunt, who was also sitting there) that he apprehends that due to old enmity between him and Jillo, accused persons might not deceitfully kill Bhagelu so they decided to follow them. Amarnath Singh agreed to Ramdeo Singh. Ramdeo picked his torch and slowly and silently followed the accused towards the river. When Ramdeo reached in front of the house of Munni Lal and Pandhari situated in village Narharpur Kohran, he heard screams of his brother. He at once flashed his torch and rushed towards the direction from where the screams of his brother were coming. Amarnath Singh also followed him. He then saw in the torch light that co accused Jillo and appellant Haribansh Singh were assaulting his brother Bhagelu Singh at the potato field of one Pancham Singh. Seeing Ramdeo Singh coming to help Bhagelu Singh, Haribansh Singh rushed towards them and assaulted the informant also with the lathi. After being hit by lathis, the informant alongwith Amarnath ran towards his village shouting for help. Seeing Ramdeo Singh coming to help Bhagelu Singh, Haribansh Singh rushed towards them and assaulted the informant also with the lathi. After being hit by lathis, the informant alongwith Amarnath ran towards his village shouting for help. On hearing his cries, Munni Lal, Pandhari, Matura Gokia, and Bhagelu Kumar and other residents of the village Narha pur Kohren rushed for help. On seeing them, accused Jillo and Haribansh Singh fled away in the south west direction towards the river Varuna. After the accused left the place of occurrence, he and Amarnath Singh went to the potato field of Pancham and saw his brother Bhagelu Singh lying injured in the field, he was alive and the informant brought him to his house. On seeing Bhagelu Singh’s condition, the ladies of the house started crying. On hearing the cries of the inmates of the house of Bhagelu Singh, Ram Naresh Singh (P.W.3) who was sleeping in his house woke up and came to the house of Bhagelu Singh where the injured Bhagelu Singh told him that he was assaulted by accused Jillo and Harbanch Singh. Ramdeo Singh then with the help of Ram Naresh Singh converted the cot, on which Bhagelu Singh was lying, into a ‘Doli’ and proceeded to the police station at 10 p.m. After they covered about one kilometre, Bhagelu Singh died on the way. They continued their journey during the night towards P.S. Rampur. 39. When they reached Rampur Bazar early morning, then, Ramedo Singh wrote an F.I.R. (Ex.Ka 1) at a shop in Rampur Bazar at 5.15 a.m. Thereafter, he lodged the aforesaid FIR Ex. Ka 1 at P.S. Rampur. 40. Thus,the allegation of committing murder has been assigned to the appellant as well as to the co accused Jillo. The appellant has been assigned the role of carrying Lathi. 41. While acquitting the co accused Jillo, the Court below recorded the following findings which run as under: “..Coming to the case of Jillo I may mention that there are several infirmities in his case. Motive has been alleged against him which could not be substantiated by evidence. The evidence regarding the weapon which possessed and used at the time of assault is highly contradictory. While in the witness box it is alleged that he had a pharsa affixed to a lathi which had ballam appended to it also. This fact is not mentioned in the FIR. The evidence regarding the weapon which possessed and used at the time of assault is highly contradictory. While in the witness box it is alleged that he had a pharsa affixed to a lathi which had ballam appended to it also. This fact is not mentioned in the FIR. It is significant to note that in the FIR two separate weapons namely Gandasa and ballam were attributed to him. Afterwards interpolations in the FIR was made and the word “WA” between Gandasa and Ballam was obliterated by adding ink to it. Over writing was also made in the word “Gandasa”. When complainant Ramdeo Singh was confronted with this description of the weapon mentioned in the FIR while he was in the witness box he changed his statement and stated during cross-examination that the weapon which accused Jillo possessed was pharsa which had a Gandasa affixed at the x top. During investigation when examined under Section 161 Cr.P.C., he gave another description of the weapon that is to say that he stated it was pharsa with a ballam. If we examine the injuries of the deceased Bhagelu described in the autopsy report it is crystal clear that none of them could be caused by a Gandasa. It is a matter of common knowledge that Gandasa is a hard cutting weapon and the injuries caused by it could not have dimensions of 0.5 cm x 0.3 cm or 0.5 cm x 0.2. Such injuries also do not represent the injuries caused by a ballam as when assault with a ballam with full force with an intention to commit murder will be made the injuries will be sufficiently deep and not superficial as mentioned in the autopsy report. It is also significant to note that while lathi injury No. 19, incised injuries number only there that is 3, 10 and 11. Had Jillo participated in the assault with the weapon described with him there would have been larger number of incised injuries with larger dimensions and depth as were found on the dead body of Bhagelu Singh. I may also point out at this place that absence of incised injury on complainant Ramdeo Singh also throws doubt on his participation as he would also not have spared complainant Ramdeo Singh where he came for the rescue of deceased Bhagelu Singh. I may also point out at this place that absence of incised injury on complainant Ramdeo Singh also throws doubt on his participation as he would also not have spared complainant Ramdeo Singh where he came for the rescue of deceased Bhagelu Singh. In the end I would like to mention that having enmity with accused Jillo, deceased Bhagelu would not have agreed to accompany him during night for a catch of fish. All these features thrown grave doubt on the participation of accused Jillo in the assault. As in the present case the evidence is of interested character it would be just and proper that he would be given benefit of doubt. I, therefore, hold accused Haribansh Singh alone guilty of the offence of murder of deceased Bhagelu and for causing hurt to complainant Ramdeo Singh. He is, therefore, convicted under Section 302/34 and 323/34 I.P.C. He is on bail as such he need not be taken into custody.” 42. From the perusal of the aforesaid findings recorded by the trial Court while acquitting the co-accused Jillo alias Ziledar, it is evident that the co accused Jillo has been acquitted, inter alia, on the following grounds by the trial Court. (i) The interpolation in the F.I.R was noted by the trial Court wherein words “WA” between the word “ Gandasa” and “Ballam” were obliterated by adding ink to it and overwriting was also made in the word “ Gandasa”. (ii) Contradiction in the ocular testimony of P.W. 2, Ramdeo with regard to the use of weapon by the co accused Jillo. (iii) The nature and number of injuries (incised wound) caused by some sharp edged weapon to the deceased does not show that it was caused either by “Gandasa” or “ Ballam”. (iv) The Court below also doubted the participation of Jillo in the commission of the crime on the ground of absence of incised wound on the body of the complainant (P.W. 2), Ramdeo. (v) The Court below while acquitting the co accused Jillo reached the conclusion that the accused would not have spared the complainant Ramdeo Singh when he came forward to rescue his brother Bhagelu(deceased), (vi) Since there was enmity between the complainant and the co accused Jillo, the deceased would not have agreed to accompany him during odd hours of the night to a catch fish. (vii) Since the evidence of P.W.2 (Ramdeo), as referred to above, was of an interested character, it would be just and proper that the co accused Jillo should be given the benefit of doubt. 43. From the perusal of the aforementioned reasons assigned by the the Court below while acquitting the co accused Jillo, it is evident that most of the grounds i.e. alleged interpolation in the F.I.R., would not have spared P.W. 1, Ramdeo who was an interested witness and deceased Bhagelu, having enmity with the co accused Jillo, would not have agreed to accompany him during the odd hours of the night to catch fish. 44. The Court below cannot apply a different yardstick while adjudging the same set of evidence in respect of the appellant. Since the appellant had also accompanied the co accused Jillo and the evidence against both the accused are more or less similar, the appellant should also have been given the benefit of doubt and no discrimination should have been made. 45. In the present case, out of a single incident, the appellant as well as the co accused were charged for committing murder of the deceased Bhagelu. The charge against the co accused Jillo was not found to be proved However, more or less,on the same set of facts(except the nature of the weapon assigned to the co accused Jillo and the injuries sustained by the deceased), the charge against the appellant was found proved. The basic foundation of the prosecution on which the appellant was held guilty crumbles down after the acquittal of co accused Jillo against whom the charge was not found proved. In other words, the finding of facts and the conclusion drawn by the trial Court while convicting the appellant is self contradictory in this regard. On one hand, the substantial part of the prosecution story with regard to the participation of co accused Jillo, who is alleged to have had enmity with the deceased, had been discarded and rejected by the trial Court, however, on the other hand, the appellant, who was merely a friend of the co accused Jillo and not having any enmity has been convicted. Thus, the prosecution version is not free from doubt and cannot be said that the prosecution has established its case beyond shadow of doubt. 46. Thus, the prosecution version is not free from doubt and cannot be said that the prosecution has established its case beyond shadow of doubt. 46. In the present case, the Court below while convicting the appellant has basically relied upon three witnesses namely P.W. 1 Munni Lal (who had turned hostile while he was being cross-examined by the defence side), P.W. 2, Ramdeo (alleged eye-witness and brother of the deceased) and P.W. 3 Ram Naresh (cousin of the deceased) who is not an eye-witness since he had reached the house of the deceased much after the deceased was brought to his house by the P.W. 2 but he claims that the deceased had made oral dying declaration before him and had taken the deceased on a cot (doli) alongwith P.W. 2 Ramdeo to the police station. 47. The main contention made by the learned counsel for the appellant is that the trial Court decided the entire case only on the basis of the testimony of a solitary witness Ramdeo (P.W. 2) who can be said to be partly reliable and partly unreliable. Merely on the basis of the testimony of the said witness, the appellant could not have been convicted and the benefit of doubt should have been extended to the appellant also. 48. In order to appreciate the contention of the learned counsel for the appellant in this regard, it is necessary for us to undertake a very close and critical scrutiny of the ocular testimony of P.W.1 (who was allegedly an eye-witness and was declared hostile), P.W.3 (alleged witness and cousin of the deceased), who is alleged to have reached the house of the deceased much after the deceased was brought to his house by the P.W. 2 and other villagers and claims that oral dying declaration was made by the deceased before him and P.W. 2, Ramdeo (brother of the deceased and alleged eye-witness of the incident). 49. First of all we proceed to scrutinize the testimony of Ram Naresh(P.W. 3) to find out whether his testimony is trustworty and reliable or not. 49. First of all we proceed to scrutinize the testimony of Ram Naresh(P.W. 3) to find out whether his testimony is trustworty and reliable or not. Before proceeding further with the matter, it is again very necessary to keep in mind that the prosecution case has already suffered a serious dent by the acquittal of the co accused Jillo as the Court below has not placed reliance upon the prosecution story with regard to participation of Jillo who alongwith the appellant allegedly had taken the deceased Bhagelu at night under the pretext of catching fish alongwith the deceased. Under these circumstances, it is very difficult to distinguish the culpability of co accused Jillo and the present appellant Haribansh, in other words, to separate the grains from the chaff, as their case stands almost on the same footing except the nature of weapon assigned to them. Moreover, the case of the appellant stands on a better footing as far as enmity part is concerned as he was not having any enmity and was alleged to be a mere friend of co accused Jillo and the enmity has been attributed to the co accused Jillo who had launched a case under Section 307 I.P.C. against the deceased and others. 50. From perusal of the evidence on record, it also transpires that the story of dying declaration was also developed by the prosecution by setting up P.W. 3 as a witness of fact just to give strength to the prosecution story as no reference to this was made in the F.I.R., despite the FI.R. being lodged in the presence of P.W. 3 at the police station. There is not even a whisper in the F.I.R. about the dying declaration of the deceased made before the P.W. 3. This apart, as per post-mortem report, as many as 22 ante-mortem injuries of grave nature, including a liver injury(was punctured wound) were found on the person of the deceased and the cause of death was due to haemorrhage and shock because of liver injury. According to the Doctor (P.W. 8), who had conducted the post-mortem of the deceased, deposed that he had forgotten to write that the cause of death could also be because of cumulative effect of all the injuries sustained by the deceased. According to the Doctor (P.W. 8), who had conducted the post-mortem of the deceased, deposed that he had forgotten to write that the cause of death could also be because of cumulative effect of all the injuries sustained by the deceased. He has further deposed before the Court that after sustaining such injuries, the deceased could have remained alive for some time after the incident depending on the stamina of the deceased. The alleged dying declaration was made much after the incident. 51. It is also worth mentioning that, as per post-mortem report, the deceased was very badly injured and was in a very critical condition as his liver was also punctured, therefore, it is also very doubtful that in such a physical condition he could have had narrated the incident to the P.W.3, especially when nothing was mentioned in this regard either in the F.I.R. or in his statement under Section 161 Cr.P.C. and this part of the prosecution story appears to have been developed later on. For ready reference, the relevant portion of his statement is extracted below : ^^- - - - - eSa tc Hkxsyw ds njokts igqapk rks Hkxsyw [kkV ij ysVk Fkk ogka ij jkenso vkSj xkao ds cgqr ls yksx FksA eSaus Hkxsyw ls iwNk fd rqEgs fdlus ekjk gS rks mlus cryk;k fd mls ftYyw o gjoa'k us ekjk gSA mlus ;g tks cryk;k Fkk fd ftYyw ds ikl tks ykBh Fkh mlh esa oYye o xM+klk yxk Fkk mlh ls ekjkA gjoa'k ds ikl ykBh Fkh mlls ekjkA mlus ;g Hkh cryk;k fd uVgj ij dksgju mls ftYyw o gjoa'k eNyh ekjus ds cgkus ys x;s Fks vkSj mlh chp jkLrs esa eqUuhyky ds edku ds lkeus ekjk FkkA mlus ;g Hkh dgk Fkk gjoa'k us mlds HkkbZ jkenso dks ykBh ls Hkh ekjk Fkk tc jkenso mls cpkus igqap x;s FksA** 52. So far as P.W. 1, Munni Lal is concerned, he is Pandhari’s brother. The incident is alleged to have taken place in front of the shop of Pandhari, P.W. 1 was made a witness of fact by the Investigating Officer during investigation. He was later on declared hostile. So far as P.W. 1, Munni Lal is concerned, he is Pandhari’s brother. The incident is alleged to have taken place in front of the shop of Pandhari, P.W. 1 was made a witness of fact by the Investigating Officer during investigation. He was later on declared hostile. The name of this witness was not at all mentioned in the F.I.R. But, later on, was introduced as a witness and the I.O. also adopted a special course for getting his statement recorded under Section 164 Cr.P.C. after eight days of the incident. However in his cross-examination he has specifically stated that he gave the statement under the threat and pressure of the Investigation Officer. He has very specifically stated that when the incident took place he was scared and had closed the shop from inside and when he came out of the shop, the assailants had already fled from the place of occurrence. 53. Considering the aforesaid statement of the P.W. 1, he was declared hostile and the aforesaid aforesaid facts clearly indicate that P.W. 1 was not a trustworthy and a reliable witness and it appears that either he was pressurised by the prosecution side or was later on allured by the defence side due to which he turned hostile. He has changed his version from time to time like the swing of the pendulam. 54. Thus the aforesaid facts clearly indicate that the P.W. 1 was not a reliable witness and therefore it would not be safe to place reliance on his testimony to convict the appellant. 55. Now, we proceed to discuss the credibility of the testimony of P.W. 2, Ramdeo, who is stated to be the real brother of the deceased and was an alleged eye-witness of the incident. It is again reiterated at the cost of repetition that the substantial part of the evidence of this witness has already been demolished after acquittal of the co accused Jillo about whom a detailed discussions have already been made in the earlier part of this judgement, as such after acquittal of the co accused, the evidence of this P.W.2 Ramdeo comes within the category of “partly reliable and partly unreliable”. 56. Now, this Court has to consider whether on the basis of evidence of a solitary witness who comes within the category of “ partly reliable and partly unreliable” a conviction can be made. 57. 56. Now, this Court has to consider whether on the basis of evidence of a solitary witness who comes within the category of “ partly reliable and partly unreliable” a conviction can be made. 57. From the perusal of the record, it transpires that the Court while acquitting the co accused Jillo found that that the testimony of sole eye-witness (P.W.2) Ram Deo Singh was false in respect of co-accused Jillo Singh, who, as per the testimony of P.W. 2, was having motive to cause death of the deceased Bhagelu, however his testimony was relied upon by the Court below while recording the conviction of the appellant. Learned counsel for the appellant has submitted that P.W. 2 being a solitary injured witness of fact, his testimony cannot be relied upon in part or discarded in part. In support of his contention, reliance was placed upon the law laid down in Bhimapa Chandappa Hosamani and others v. State of Karnataka, (2007) 1 SCC (Cri) 456 and para 24 thereof runs as under: “We have undertaken a very close and critical scrutiny of the evidence of PW-1 and the other evidence on record only with a view to assess whether the evidence of PW-1 is of such quality that a conviction for the offence of murder can be safely rested on her sole testimony. This Court has repeatedly observed that on the basis of the testimony of a single eye-witness a conviction may be recorded, but it has also cautioned that while doing so the Court must be satisfied that the testimony of the solitary eye-witness is of such sterling quality that the Court finds it safe to base a conviction solely on the testimony of that witness. In doing so the Court must test the credibility of the witness by reference to the quality of his evidence. The evidence must be free of any blemish or suspicion, must impress the Court as wholly truthful, must appear to be natural and so convincing that the Court has no hesitation in recording a conviction solely on the basis of the testimony of a single witness..” 58. To examine the credibility of P.W. 2, it would be relevant to go through the version of the F.I.R. as well as other evidence available on record. To examine the credibility of P.W. 2, it would be relevant to go through the version of the F.I.R. as well as other evidence available on record. A bare perusal of the F.I.R. makes the whole prosecution story improbable because usually no body in the Hindu community would like to go for catching fish at odd hours of the night with his enemy on the auspicious day of Deepawali when eating of non veg usually remains strictly prohibited. Moreover, another vital factor that burns a hole in the case of the prosecution is that, despite having knowledge of enmity with Jillo Singh, the P.W. 2 did not stop his brother (deceased) to accompany the accused persons to go for catching fish at odd hours of the night of Deepawali when the entire family was involved in festivities. There is no whisper at all in the F.I.R. that the accused persons were having any weapon or any torch in their hands when they came at his house. Also further unnatural conduct of the complainant is that he alongwith his cousin Amar Nath Singh followed his brother and accused persons without having any weapon with them and carried just a torch with them. If he had some apprehension of danger due to old enmity, he should have stopped his brother from accompanying the accused persons and if he did not do so, he should have taken him back from mid way but he simply followed him to watch as to what was going to happen. The P.W. 2 further did not make any effort to provide any medical aid to the deceased, who was grievously injured and was a patient of tuberculosis, rather, preferred taking him to the police station. 59. The story of opening of a shop at 5.00 a.m. on the very next day of Deepawali festival also appears to be improbable and concocted because as a matter of tradition, the next day of Deepawali, being the day of Parewa, usually, no body makes any kind of business transaction by opening shop etc. This fact itself makes the whole prosecution story doubtful and the F.I.R. as ante timed. 60. So far as the injuries sustained by the P.W. 2 is concerned, it also appears to be doubtful that the injuries were inflicted by the appellant. This fact itself makes the whole prosecution story doubtful and the F.I.R. as ante timed. 60. So far as the injuries sustained by the P.W. 2 is concerned, it also appears to be doubtful that the injuries were inflicted by the appellant. The nature of the injuries, which have been found on his person, were not possible to have been caused for the reason that the intense of blow of Lathi was so hard that he allegedly fell on the ground but all the injuries, as per the injury report, were simple in nature. We find substance in the contention so made by the learned counsel for the appellant. 61. Another unnatural conduct of P.W. 2 is that he had neither attended the funeral of his brother (deceased) nor came back to the mortuary for receiving the dead body from the post-mortem house. It was one Ram Naresh who received the dead body from the mortuary and cremated the dead body at Surajgaht Gomati River and he informed the P.W. 2 only on 29th October,1981 when he came back. This contradiction and unnatural behaviour of solitary injured witness, who is an interested witness, is also not worthy of credence. 62. This Hon’ble Court in the case of Naresh and others v. State of U.P., (2005) 51 ACC 356, has specifically held in para 11 of the judgement that the testimony of an injured witness is to be assessed like any other evidence if there is inherent improbabilities and contradiction in his testimony on the manner and participant etc. It is not always obligatory on the Court to accept the evidence of such an injured witness. He has to be trustworthy also. For ready reference, para 11 of the said judgement is reproduced below: “An injured witness at the most lends credence to his presence and sustenance of injury by him in a particular incident, but his testimony is to be assessed like any other evidence and if there are inherent improbabilities and contradictions in his testimony on the manner and participants etc, it is not always obligatory on the Court to accept the evidence of such an injured witness. The rule of appreciation of the evidence of an injured witness is different only in this manner and not in any other manner. The rule of appreciation of the evidence of an injured witness is different only in this manner and not in any other manner. He too is to be largely honest in his deposition for the acceptance of his evidence by the Courts. Deviation on manner of assault, participants in the incident and similar such details always stand in the way of their honesty.” 63. At this stage, it is also notable that according to the P.W. 2, he alongwith the P.W. 3 had carried the deceased on a cot to the police station on foot at 10.00 p.m. and reached the police station next day in the morning at 5.15 a.m. According to him, they walked throughout the night carrying the deceased on a cot on their shoulder. It is to be noted here that only P.W. 2 Ramdeo and P.W. 3 Ram Naresh had taken the deceased on a cot to the police station. It is most improbable to believe that the P.W, 2, who according to the prosecution story, had allegedly sustained injuries in the same incident, would be able to carry a person to the police station by walking throughout the night for about seven hours. This fact itself shows that the P.W. 2 was not injured at all in the said incident and the injuries alleged to have been sustained by him were either self inflicted or he might have sustained them in some other manner as it has come on record no blood was oozing out of the injuries and he had sustained only contusion injuries which were simple in nature. Therefore, the possibility of fabricating those simple injuries cannot be ruled out and the conduct of the P.W. 2 in this regard also creates doubt. 64. Learned A.G.A. Has placed reliance upon a decision of the Apex Court in Mano Dutt and another v. State of U.P., (2012) 4 SCC 79 , wherein it has been observed that “normally, an injured witness would enjoy greater credibility because he is the sufferer himself and thus, there will be no occasion for such a person to state an incorrect version of the occurrence, or to involve anybody falsely and in the bargain protect the real culprit.” 65. The Apex Court while propounding the aforesaid dictum, also relied upon the law down in Abdul Sayeed v. State of M.P., (2010) 10 SCC 259 , wherein the Apex Court has held that the testimony of an injured witness is generally considered to be very reliable, as he is a witness that comes with a built -in guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant in order to falsely implicate someone. No doubt, the deposition of an injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein. Here in the present case, in view of the discussions made herein above regarding the testimony of P.W. 2 (an alleged injured witness), it is apparent that apart from the fact there are major contradictions and discrepancies in his statement, his presence on the scene has also been doubted and under these circumstances, it would not be feasible to place reliance upon his testimony and, therefore, the principles laid down by the Apex Court in the present case also do not help the prosecution in any way. This apart, since, in the present case, there are inherent improbabilities and contradictions in the testimony of P.W. 2 with regard to manner and participation, it is not obligatory on the Court to accept the evidence of such an injured witness who had sustained merely simple injuries and was partly disbelieved by the Court below while acquitting the co-accused Jillo, as such, the aforesaid case law relied upon by the learned A.G.A. is also of no help to him in view of the facts and circumstances of the present case and the discussions made earlier. 66. It is also notable that there was no reason for the accused to have assaulted the deceased in full public view in front of the shop of the Pandhari instead of assaulting him at some remote place on the way to river Varuna where he could have been easily murdered, especially when the deceased was going alongwith them out of his own will without being seen by anyone. 67. 67. It is also worth mentioning that in the examination in chief the P.W. 2 Ramdev has specifically stated that he remained present in the hospital till 12 p.m. On 28.10.1981 and then he went to the police station. However, as per record, the police had left the police station around 9.00 p.m.-10.00 p.m., this fact itself clearly indicates that he had not accompanied the I.O. to the place of the incident and no site plan could have been made in his absence. However, in order to fill up this lacuna, he changed his version in the cross-examination and stated that he alongwith the I.O. reached the village at 8.30 p.m. Thus, there are serious contradictions in the statement of P.W. 2 which also creates dent and doubt on the veracity of the prosecution story. 68. Learned A.G.A. also relied upon the law laid down by the Apex Court in Parbin Ali and another v. State of Assam, (2013)2 SCC 81 . I am afraid that the principle laid down therein is not applicable to the facts and circumstances of the present case. It is worth mentioning that after weighing the veracity of the oral dying declaration which was alleged to have been made before the P.W. 3 and thorough scrutiny of the evidence and the testimony of the P.W. 3, we are of the view that the said dying declaration does not inspire any confidence and is not reliable for the reasons given in the earlier part of the judgement. 69. In support of his contention, learned A.G.A. also placed reliance upon the decision of Apex Court in the case of Sucha Singh and another v. State of Punjab, (2003)7 SCC 643 and submitted that the Apex Court has held that merely because some of the accused persons have been acquitted though evidence against all of them, so far as direct testimony went, was the same, does not lead as a necessary corollary that those who have been convicted must also be acquitted. It is always open to a Court to differentiate the accused acquitted from those convicted. 70. It is always open to a Court to differentiate the accused acquitted from those convicted. 70. However, the proposition of law laid down by the Apex Court in Sucha Singh (supra) is not applicable to the facts and circumstances of the present case and also in view of the following observations made by the Apex Court itself in the aforesaid case, Sucha Singh (supra) : “Where it is not feasible to separate the truth from falsehood, because grain and chaff are inextricably mixed up, and in the process of separation on absolutely new case has to be reconstructed by divorcing the essential details presented by the prosecution completely from the context and the background against which they are made, the only available course to be made is to discard the evidence in toto.” 71. Learned A.G.A. further placed reliance upon the law laid down in Bable alias Curdeep Singh v. State of Chhattisgarh, (2012) 11 SCC 181 and submitted that once there exists reliable, cogent and credible evidence against one of the accused, the mere acquittal of other accused will not frustrate the case of the prosecution. 72. The aforesaid decision of the Apex Court, which lays down a general principle in the normal circumstances, is not applicable to the facts of the present case. From the discussions made earlier in this regard, it is amply clear that there exists no reliable, cogent and credible evidence against the appellant Haribansh Singh particularly after the acquittal of co accused Jillo Singh. 73. Considering the facts and circumstances of the case, we are of the considered opinion that the view taken by the Court below while convicting the appellant Haribansh Singh is palpably wrong and the findings recorded by the Court below are perverse, erroneous and cannot stand the scrutiny of law. The judgment passed by the trial Court is based on a complete misreading of the case and misconception of the legal position relevant to the matter and has not considered the evidence on record in right perspective. The prosecution has not been able to prove the case beyond doubt. In our considered opinion the reasons given by the Trial Court are not sufficient to convict the appellant. 74. The prosecution has not been able to prove the case beyond doubt. In our considered opinion the reasons given by the Trial Court are not sufficient to convict the appellant. 74. In the facts and circumstances of the case and the evidence led by the parties renders the origin and genesis of the occurrence doubtful and as such the present appellant is also entitled to the benefit of doubt and acquittal. 75. Consequently, the appeal is allowed. 76. The impugned judgment and order dated 4.3.1983 passed by II Additional Sessions Judge, Jaunpur in S.T. No. 11 of 1982, State v. Jillo alias Ziledar and another (arising out of case crime No. 249/81), under Sections 302/34 and 323/34 of the Indian Penal Code is hereby set aside and the appellant Haribansh Singh is acquitted of the charges levelled against him. The appellant Haribansh Singh is on bail. He need not to surrender. His personal and surety bonds are hereby cancelled and sureties are discharged from their liability. 77. Let a copy of this judgement alongwith the trial Court record be sent to the Court concerned for compliance.