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2016 DIGILAW 1965 (ALL)

RAM BRIKSH v. STATE OF U. P.

2016-05-20

K.J.THAKER, SHASHI KANT GUPTA

body2016
JUDGMENT : (Delivered by Hon'ble Shashi Kant Gupta ,J.) 1.These two appeals have been preferred against the judgement and order dated 26.5.1981 passed by Sri T. N.Saxena, II Addl. Sessions Judge, Gorakhpur in S.T. No. 112 of 1980, whereby the accused appellant Ram Briksha, who has filed the present Criminal appeal (No.1319 of 1981, Ram Briksha Vs.State), was convicted under section 302 I.P.C. and the other two accused appellants namely, Ram Sewak and Bideshi were acquitted of the charges under sections 302/34 I.P.C. against whom, the present Govt Appeal No. 1916 of 1981, State Vs. Ram Sewak and another has been filed by the State Government . 2. The present appeals were filed in the year 1981 against the impugned judgement dated 26.5.1981 and it has come up for hearing before us after the lapse of a period of about 35 years. 3.Since during the pendency of the present Govt. Appeal , the accused opposite party no. 1 Ram Sewak died, the Govt. Appeal No.1916 of 1981 stood dismissed as abated against him. 4.Both the appeals have been filed against a common judgement and order passed by the trial court and the facts and evidence in both the appeals are the same, hence they are being disposed of by a common judgement. 5.The prosecution case in a nut shell as unfolded by a perusal of the record is that the accused Ram Briksha and Ram Sewak as well as the complainant Mangroo were all residents of village Chakla Awwal within the police circle of Police Station Rajgaht, District Gorakhpur. In terms of the F.I.R., the accused Bideshi was the resident of Mohalla Basantpur, City Gorakhpur. Deceased Shyama was the son of the complainant Mangroo. On 20.10.1979 at about 12 O'clock, in the noon, all the three accused came to the house of the complainant and asked the deceased Shyama to accompany them for a stroll upto Kharwania. Whereafter, all four proceeded to Kharwania and returned at about 2.00 p.m. When they were close to the house of the complainant, the accused Bideshi and Ram Sewak allegedly caught hold of Shyama and the accused Ram Briksha fired with his 'Katta' at Shyama causing injuries on the chest. As a result of which, Shyam fell on the ground. The complainant Mangru raised an alarm. As a result of which, Shyam fell on the ground. The complainant Mangru raised an alarm. On hearing cries, the alleged witnesses, namely, Ram Prasad, Bhagirathi,Gablu, the complainant's daughter Shanti and others arrived at the spot. These witnesses also saw the occurrence. They tried to catch hold of the accused, but the accused managed to run away towards the north. While the complainant Mangru was taking his injured son Shyama on a cot to the hospital, Shyama succumbed to the injuries. The complainant then placed the dead body of Shyama near the Gumti of Prahlad. He got scribed a written F.I.R. ( Ext.Ka-1) and lodged it at the police station Rajghat on the same date at 15.15 hours. The distance of the police station Rajghat from the place of occurrence was 4 kms. Head Moharrir Chhedi Prasad Upadhya prepared the chick report Ext. Ka- 4 and entered the case in G.D. No. 22 dated 20.10.1979 (Ext. Ka 5). 6.The investigating Officer Sri Rameshwar Singh, S.I. P.S. Rajghat was entrusted with the investigation of the case . He proceeded to the place of occurrence. When he reached near the shop of Prahlad, he found the dead body of Shyama on a cot. The complainant and the witnesses were also present there. He prepared the inquest report Ext. Ka 8. The inquest proceedings started at 16.00 hours and ended at 17.30 hours. He also prepared a Challan Nash Ext. Ka 9 and Photo Nash Ext. Ka 10. The dead body in a sealed condition was handed over to constables Prakash Chandra Srivastava and Moharrir Ishhaq for being taken to mortuary. He also handed over a letter in printed form Ext. Ka 11 and a report (Ext. Ka- 12 requesting for the post-mortem examination. 7.The Investigating Officer then proceeded to the place of occurrence in village Chakla Anwal. He recorded the statements of the complainant Mangru, Ram Prasad, Bhagirathi, Gabbu, Smt. Shanti and other witnesses on the same date 20.10.1979. He prepared a site-plan Ext. Ka 14 on the same date, showing the Jhopri of the complainant and the place of occurrence. He also took into possession blood-stained and plain earth in the presence of witnesses and prepared a recovery memo (Ext. Ka 15). They were kept separately in sealed containers. 8.Dr.N.S.Shukla,MedicalOfficer,District Hospital, Gorakhpur, conducted the post-mortem examination on 21.10.1979 at 11.30 a.m. The age of the deceased was about 35 years. He also took into possession blood-stained and plain earth in the presence of witnesses and prepared a recovery memo (Ext. Ka 15). They were kept separately in sealed containers. 8.Dr.N.S.Shukla,MedicalOfficer,District Hospital, Gorakhpur, conducted the post-mortem examination on 21.10.1979 at 11.30 a.m. The age of the deceased was about 35 years. Rigor mortis was present on both the limbs. He found only one injury, namely, a gun shot wound 1 1/2"x 1 1/2 "x body cavity deep on the lower end in front of neck in suprasternal notch. Fracture was found on both the medial end of clavicle with hematoma. On the internal examination, it was found that the trachea was punctured with wound through and through. The large blood vessels were found ruptured above the heart. He also found wadding pieces alongwith numerous pellets around the wound. In the stomach semi digested food i.e. rice and pulse were also found. The small intestine was full while the large intestine was empty. In the opinion of the Medical Officer, the duration of death found by the Doctor was about half day and that the death was caused due to shock and hemorrhage. 9.Thereafter, the aforesaid Investigating Officer was transferred and the investigation was taken up by Sri Jagdish Misra, S.I. He started the investigation from 31.12.1979. After completing the investigation, the Investigating Officer submitted the charge-sheet against the accused persons. 10.A charge under section 302 I.P.C. read with section 34 I.P.C. was framed in the Court of Sessions against the accused Ram Sewak and Bideshi. As against the accused Ram Briksha, the simpliciter charge under section 302 I.P.C. was framed in the Court of Sessions. 11.The prosecution examined Mangru complainant, P.W. 1, Gabbu an eyewitness, P.W. 2 Constable Prakash Chandra, P.W. 3, I.O. Sri Jagdish Misra, P.W. 4 Head Moharrir Chhedi Prasad Upadhya, P.W. 5, Dr. N.S. Shukla, P.W. 6, Head Constable Durga Prasad of Police Lines, Gorakhpur, P.W. 7 and other other Investigating Officer Sri Rameshwar Singh, P.W. 8. 12.The accused Ram Briksha, while giving his statement under section 313 Cr.P.C. in the Court of Sessions, denied the entire prosecution case and stated that he has been falsely implicated on account of his enmity with the police. The accused Ram Sewak also denied the entire evidence and pleaded that he was also implicated on account of enmity with the police. The accused Ram Sewak also denied the entire evidence and pleaded that he was also implicated on account of enmity with the police. He further stated that P.W. 2 Gabbu is the Samdhi of the complainant.The accused Bideshi also gave a similar version as stated by other accused. He further stated that since he left cleansing utensils of Darogha Ji, the latter became angry. The accused persons had produced one witness in his defence, namely, Ram Prasad D.W. 1. 13. P.W.1, Mangru in his testimony has stated that the deceased and the accused persons were friends and on the fateful day the accused persons came to his home at around 12 O' clock in the noon and took his son along with them on a stroll to Khirwaniya which was around 3 Km. away from his house. All the aforesaid three accused persons along with the deceased returned at 2.00 P.M. When they were passing through the house of the deceased, accused Videshi and Ram Sewak caught hold of the hands of the deceased and Ram Briksha shot at his chest, as a result of which, he fell down. On hearing his cries, witnesses Gabbu,Bhagirathi and Prasad also arrived at the spot after which, accused persons fled away. While the complainant and others were taking his son on the cot to the hospital, by the time they reached the pucca road,his son, succumbed to injuries. He dictated the F.I.R. to one Lakshman and took the dead body near the shop of one Prahlad. He further stated that he along with Shyam Sundar went to the police station for lodging F.I.R.;at the time of occurrence he was sitting in his house;he first sighted the accused persons when they were catching hold of his son and a shot was fired from a point blank range. Both the accused Ram Sewak and Videshi were catching hold of his son when the shot was fired at him. On witnessing the incident, P.W. 1 tried to chase them. He ran from his house and the rest of the people ran from the orchard. Thereafter, he deposed that at first sight he saw the accused persons at a distance of 10 paces from the spot running away from the place of occurrence.They tried to chase the accused persons but they managed to escape. His son died near the shop of Prahlad. Thereafter, he deposed that at first sight he saw the accused persons at a distance of 10 paces from the spot running away from the place of occurrence.They tried to chase the accused persons but they managed to escape. His son died near the shop of Prahlad. He stayed there for about half an hour. The dead body of the deceased was taken away by the police for post mortem in the late hours of the day. However, the sun had not set till then. He did not accompany the dead body but he went to lodge the report. According to him, the distance between the place of occurrence and shop of Prahlad was one mile and denied the suggestion that the F.I.R. had been lodged after consultation or it was ante timed. The dead body of the deceased was taken to the mortuary by rickshaw. 14.P.W. 2, Gabbu in his testimony has also supported the prosecution story. He has deposed that he has a house inside the orchard owned by Jagdish who is the son of his brother in law. Inside the said orchard he was given an accommodation for residence by its owner Jagdish as such he was living inside the orchard for the last 16 years. He has admitted that neither he had any agricultural land nor any orchard in the village. He has also admitted that he is a permanent resident of village Chakla Abbal Tenuari, District Gorakhpur. Documentary evidence has been filed by the defence side to show that he owned agricultural land in village Tenuari, District Gorakhpur of which he was a permanent resident. 15.He further deposed that the occurrence took place at the eastern part of the guava orchard owned by Jagdish. The mango orchard where the occurrence took place extends upto 3 kms. and it extends upto river on the eastern side. When he heard the hue and cry , he ran towards the place of occurrence shouting " Pakro-Pakro" and the accused persons were running towards the north. They tried to chase the appellants but they managed to escape. He further deposed that the dead body of Shyama remained lying at the shop of Prahlad upto 6 O' clock in the evening and thereafter the dead body was taken by rickshaw to the mortuary. They tried to chase the appellants but they managed to escape. He further deposed that the dead body of Shyama remained lying at the shop of Prahlad upto 6 O' clock in the evening and thereafter the dead body was taken by rickshaw to the mortuary. 16.P.W. 3, Prakash Chandra Srivastava, who was posted as a constable at the time of incident at police station Rajghat, has deposed that he had taken the dead body to the mortuary by rickshaw and has categorically stated that he reached the mortuary within an hour from the place where the dead body was handed over to him i.e. the shop of Prahlad. 17.P.W. 4, Jagdish Misra , who was posted as S.S.I. At the police station Rajghat at the relevant time, deposed that after transfer of erstwhile I.O. Mr. Rameshwar Singh, S.I., he started the investigation and recorded the statement of accused Ramsewak. After completing the remaining investigation, he submitted the charge sheet against the accused persons Ext. Ka-3. He further admitted that he had not gone to the place of occurrence to verify the site plan. 18.P.W. 5, Chhedi Prasad Upadhyay, who was posted as Head Moharrir at the police station Rajghat,deposed that he had prepared the chik report ( Ext Ka-4) and on its basis an entry was made in the G.D. (ext Ka-5). 19.P.W.6, Dr.N.S.Shukla, Medical Officer , Sadar Hospital , Gorakhpur had conducted the post mortem of the deceased. We have already discussed about his testimony in the earlier part of this judgement, hence it need not be repeated in detail. However, it may be noted that the time of death has been stated to be about a half day at the time of the post mortem examination. According to him, the death could have occurred at around 9 O' clock of the previous night. Rigor Mortis was present in the upper limb and lower limb of the deceased. Neither in the post mortem report nor in the deposition of the Doctor, blackening or charring was reported around the firearm wounds. 20.P.W. 7, Durga Prasad, who was then posted as head constable at the concerned police lines, deposed that the entry with regard to receipt of the dead body of Shyama was made by him in Rapat No. 52 of the G.D. At 21.30 in his own hand writing Ext. Ka-7. 20.P.W. 7, Durga Prasad, who was then posted as head constable at the concerned police lines, deposed that the entry with regard to receipt of the dead body of Shyama was made by him in Rapat No. 52 of the G.D. At 21.30 in his own hand writing Ext. Ka-7. He further denied the suggestion that the general diary was lying blank till morning and the said entry in the G.D. was ante timed. 21.Lastly, the P.W. 8, Rajeshwar Singh ,who was posted as S. I. at the police station, deposed that the place of occurrence was near the hut of the informant Magru which was surrounded by the guava trees.The said orchard extended to few miles in length and was situated in a remote area. He further deposed that he prepared the site plan of the incident. (Ext Ka-14) and collected blood stains from the spot which were sealed. He further recollected that the witness Gabbu had stated in his statement, recorded under section 161 Cr.P.C.; that he, after hearing the shout of Mangaroo, also tried to chase the assailants. The witness admitted that that he has not shown/mentioned the house of Gabbu in the site plan. He further deposed that at around 5.30 P.M. He had handed over the dead body to the constable Prakash Chandra and Mohd Ishaq and after completing the proceedings of Panchayatnama, he had left the place and does not know by which mode the constables took the dead body to the mortuary; Rickshaws were available at the T-point ( Tiraha) 300 paces away from the place where the inquest memo was prepared. 22.From the defence side one Ram Prasad was produced who gave altogether a different version than what had been alleged by prosecution. According to him, incident occurred on the Diwali day. On that day, he had met the deceased in the orchard, late evening and they both decided to go out to watch fire works on Diwali. Thereafter, both of them went to Urad Bazar to enjoy the festivities and after an hour, they started back for home. The DW 1 was walking behind the deceased Shyama and all of a sudden he heard the sound of firing causing injuries to Shyama, who fell down on the ground and before he could get his bearings, the assailant fled away. Since it was dark, he could not identify the assailants. The DW 1 was walking behind the deceased Shyama and all of a sudden he heard the sound of firing causing injuries to Shyama, who fell down on the ground and before he could get his bearings, the assailant fled away. Since it was dark, he could not identify the assailants. He immediately rushed to the house of the informant and informed him about the incident and thereafter Mangru and 2-4 others reached the spot and took the injured to the road in front of the shop of Prahlad. In the meantime, he succumbed to his injury. Thereafter Shyam Sundar went to the police station for giving information to the police. One police constable came to the shop of Prahlad and stayed there throughout the night. During the early hours of the next day, the Sub Inspector arrived there and the dead body after being sealed was sent to the mortuary. The incident had occurred between 8.30 and 8.45 P.M. The place where deceased was shot was around 1 Km. From his house. 23.Learned counsel appearing on behalf of the accused persons castigated the impugned judgement and order and submitted that the F.I.R. is ante timed and was prepared after consultation with the police. He further submitted that the prosecution story is inconsistent with the medical evidence. Learned counsel for the appellant submitted that no motive for committing the murder of Shyama has been assigned to the accused persons rather the P.W. 1 (father of the deceased) has very categorically stated in para 9 of his statement that " ..Kabhi Larai Jhagra in Sabon Se wa Mere Larke Men Nahi Tha". Thus, the testimonies of the complainant Mangru, P.W. 1 or any other witness does not reveal that there was enmity between the deceased and the accused persons in as much as there has not been any suggestion in this regard in any of their testimonies. 24.It was further submitted that though the investigating officer is alleged to have collected the blood stained earth from the place of the incident but there is no forensic report on record to prove that the sample of the said blood stained earth related to a human being. 24.It was further submitted that though the investigating officer is alleged to have collected the blood stained earth from the place of the incident but there is no forensic report on record to prove that the sample of the said blood stained earth related to a human being. During investigation no weapon or any country made pistol alleged to have been used in the commission of the alleged offence, was recovered from the possession of the accused appellant Ram Briksh or any other accused at any point of time. 25.It was further submitted that it seems unlikely that the accused would murder the deceased in front of his house that too in front of his father. Had they wanted to murder Shyama they would have murdered him when they had gone for stroll Khirbaniya which was around 2 km. away from the house of the deceased. 26.It was further submitted on behalf of the accused persons that in the F.I.R. or before the Investigating Officer this fact was not mentioned that the accused Bideshi was the original inhabitant of District Basti. The complainant did not know the accused Bideshi at all and his name was mentioned in the F.I.R. with some ulterior motive. 27.It was further submitted by them that there is a great variance in the evidence regarding the place of occurrence. Gabbu P.W. 2 has stated that the occurrence had taken place at a distance of about 25 paces towards south-east of the house of Mangru, whereas, in the site plan the place of occurrence is shown towards north-east of the house. 28.It was further submitted that in the Challan Nash Ext Ka-9 an endorsement was made for having received the papers on 21.10.1979 at 7.50 A.M. and the post mortem was conducted on 21.10.1979 at 11.30 A.M. Hence, the incident must have occurreed at night that is why the papers along with the dead body were brought at 7.50 A.M. The distance of the mortuary from the shop of Prahlad , where the dead body was found kept on a cot and from where it was handed over to the police is about two miles only. Besides, there are certain circumstances and evidences including the testimony of the concerned Doctor, also depicting that the deceased was murdered at night contrary to the prosecution story that it was committed during day time. Besides, there are certain circumstances and evidences including the testimony of the concerned Doctor, also depicting that the deceased was murdered at night contrary to the prosecution story that it was committed during day time. The statement of the Doctor, who conducted the post mortem of the deceased also shows that the duration of death was about half a day. Meaning thereby, the incident would have taken around 11.30 P.M. of 20.10.79. 29.Relying upon the testimony of defence witness Ram Prasad (D.W.1), who has stated that, it was a Diwali day and he had gone along with the deceased for watching fire works in the night and while both of them were returning at night, some one fired at Shyama in the Guava grove and fled away from the spot and no body could witness the assailants. It was further submitted that the incident appears to have taken place at night hours and no one was present on the spot when the incident took place and the assailant after committing murder of the deceased ran away. Later on, the complainant and other persons reached the spot. Accused persons have been falsely implicated only on the basis of doubt and suspicion. 30.It was further submitted that in the F.I.R. the names of four witnesses have been mentioned but the prosecution chose to examine only one witness namely Gabbu who is not a resident of the village of the informant and he happens to be a close relative (Samdhi) of the first informant, as such he is an interested and chance witness, therefore ,no reliance is liable to be placed upon his testimony. 31.He further submitted that the first informant Mangru, who claims himself to be an eye witness , was examined as P.W. 1 before the trial court and in para 13 of his statement he has very categorically stated that "when he saw the assailants for the first time, they were running at ten paces" . From perusal of this testimony, it is crystal clear that P.W.1 had not seen the assailants while committing murder of the deceased. 32.He further submitted that the trial court failed to appreciate the evidence in right perspective while awarding the punishment against the appellant Ram Briksh . From perusal of this testimony, it is crystal clear that P.W.1 had not seen the assailants while committing murder of the deceased. 32.He further submitted that the trial court failed to appreciate the evidence in right perspective while awarding the punishment against the appellant Ram Briksh . The order of conviction and sentence passed by the trial court against the appellant Ram Briksh suffers from gross illegality and infirmity and is not sustainable and is liable to be set aside and the appellant Ram Briksh is liable to be acquitted of the charges leveled against the appellant Ram Briksh and the Govt. appeal ( no. 1916/81) is also liable to be dismissed accordingly. 33. Per contra, Mr. Rajiv Gupta, learned Addl. Government Advocate, appearing on behalf of the State,while supporting the impugned judgement and order of conviction submitted that the prosecution witnesses proved the case to the hilt and no dent could be caused by the defence in the prosecution case. It was further submitted that it was a brutal murder by the close friends of the deceased. It was further submitted that the evidence adduced by the prosecution does not suffer from any inconsistency and infirmity and there is nothing on record to show that the eye witnesses were not present on the spot at the time of occurrence. It was further submitted that the medical evidence also corroborates the testimonies of the witnesses. 34.It was further submitted that the medical evidence does not completely rule out the possibilities of incident having taken place in the evening of 20.7.79, as such there is no reason to disbelieve the statements of the prosecution witnesses in this regard. He further submitted that the oral account of the occurrence stands fully corroborated by the medical evidence inasmuch as the concerned Doctor has stated that atleast 79 pellets and carbading were extracted from inside the body. The firing by country made pistol is perfectly proved. The minor contradictions in the testimonies of the prosecution witnesses does not make any difference so far as the merit of the case is concerned as it does not go to discredit their testimonies, particularly when there are such rustic witnesses, such minor contradictions are bound to occur. 35.It was further submitted that rigor mortis was present on both the limbs at the time of post mortem examination. 35.It was further submitted that rigor mortis was present on both the limbs at the time of post mortem examination. According to medical jurisprudence, it would not be improper to make an inference on that basis that the death would have occurred sometimes at about 2.00 P.M. on 20.10.79. Moreover, the opinion of a Medical Officer is only that of an expert and it is not to be treated as the gospel truth. It can not be treated as conclusive and decisive . 36.It was further submitted that it is not always possible to introduce evidence or to impute motive, and lack of motive, does not falsify the implication of the accused. Absence of motive would not give any benefit to the accused. 37.We have heard learned counsel for the appellant and Mr. Rajiv Gupta, learned A.G.A. for the State and perused the record. 38. Having heard the submissions, we have carefully examined the evidence available on record.The F.I.R. was lodged at the instance of one Mangru (P.W.1), the father of the deceased Shyama under section 302 I.P.C. against the appellant Ram Briksha, who has filed the present Criminal appeal (No. 1319 of 1981) and two other accused persons namely Ram Sewak and Bideshi against whom the present Govt. Appeal (No.1916 of 1981) have been filed challening the impugned judgement dated 5.12.1983 whereby the appellant Ram Briksha was convicted under section 302 I.P.C.and the accused respondents Ram Sewak and Bedeshi were acquitted of the charges framed there under. 39.During the pendency of the present Govt. Appeal, the accused opposite party no. 1 Ram Sewak had died, therefore, the Govt. Appeal No. 1916 of 1981 stood dismissed as abated as against him. 40.Since the detailed facts of the case have already been setforth in the preceding pargraphs of the judgement, they need not be reiterated. 39.During the pendency of the present Govt. Appeal, the accused opposite party no. 1 Ram Sewak had died, therefore, the Govt. Appeal No. 1916 of 1981 stood dismissed as abated as against him. 40.Since the detailed facts of the case have already been setforth in the preceding pargraphs of the judgement, they need not be reiterated. 41.According to the prosecution story, on 20.10.1979 at about 12 O'clock, in the noon, three accused persons namely Ram Briksha,Ram Sewak and Bideshi came to the house of the complainant and asked the deceased Shyama to accompany them for a stroll upto Khirwania and from there, they returned to the village at about 2.00 p.m. While they were close to the house of the complainant, the accused Bideshi and Ram Sewak allegedly caught hold of Shyama and the accused Ram Briksha opened fire with his 'Katta' at Shyama causing fire arm injury on his chest, as a result of which, Shyam fell down. The complainant Mangru raised an alarm. On hearing the cries, the alleged witnesses of F.I.R.namely, Ram Prasad, Bhagirathi, Gabbu, the complainant's daughter Shanti and others arrived at the spot. These witnesses had witnessed the alleged occurrence. They tried to chase the accused, but the accused managed to run away towards the north. When the complainant Mangru was taking his injured son Shyama on a cot to the hospital, he succumbed to the injuries. 42.During trial the prosecution produced only two witnesses of facts namely Mangru (P.W.), father of the deceased and Gabbu ( P.W. 2), the alleged neighbour of P.W. 1, whereas in the F.I.R. several others were named who witnessed the incident in question. 43. A perusal of the record shows that the prosecution has failed to prove any enmity or motive for causing the death of the deceased by the accused persons. The testimonies of the complainant Mangru, P.W. 1 or any other witnesses also do not reveal that there was any enmity between the deceased and the accused persons because the complainant Mangru or any other prosecution witnesses have not at all stated any where suggesting any motive as to why the accused persons committed this crime. It seems unlikely that the accused would murder the deceased so close to informant's house in front of him and other alleged witnesses. It seems unlikely that the accused would murder the deceased so close to informant's house in front of him and other alleged witnesses. If they had any intention to commit murder of Shyama, they would have very conveniently murdered him when they had gone for stroll to Khirbaniya,about 3 km. away from the house of the deceased and remained together alone for two hours between 12-2 P.M. They had ample time and opportunity to kill the deceased on the way to Khirbaniya. This part of the prosecution story appears to be concocted and doubtful because it is highly unnatural that the accused would kill the victim so close to his house in front of his father and other witness so as to create evidence against themselves. 44.The prosecution has not offered any explanation or reason as to why the accused chose to kill the deceased in the close vicinity of the house of the first informant. This fact itself creates a serious dent in the prosecution story and makes the entire prosecution story doubtful. The P.W. 1 himself has admitted that there was no previous enmity between the accused persons and the deceased, as such there was no reason for the accused to have killed the deceased. Notably, none of the accused had any criminal history . Had there been any premeditation or any design on the part of the accused persons to commit murder of the deceased, they would have definitely killed him on the way to Khirbaniya. Since the accused appellant Ram Briksha was not a person of criminal background, he was not expected to carry fire arm while going for a stroll. 45. It has also been contended on behalf of the accused persons that P.W. 2, Gabbu has been set up by the prosecution merely to make up the deficiencies of the other witnesses of the prosecution. In fact,he was not the resident of the locality where the incident is alleged to have taken place. The dwelling house of Gabbu was not shown in the site plan, although, According to the I.O., the site plan was prepared with the help of P.W.1 and P.W.2 Gabbu. Non depiction of the dwelling house of P.W. 2 Gabbu in the site plan creates doubt and suspicion about the presence of P.W. 2 on the spot. The dwelling house of Gabbu was not shown in the site plan, although, According to the I.O., the site plan was prepared with the help of P.W.1 and P.W.2 Gabbu. Non depiction of the dwelling house of P.W. 2 Gabbu in the site plan creates doubt and suspicion about the presence of P.W. 2 on the spot. According to the P.W. 2, he was living inside the guava grove owned by the son of his brother in law. Admittedly, he was neither the owner of the guava grove nor it has been said that he was managing the said grove. On the contrary, P.W. 2 himself has admitted that he was the permanent resident of another village Abbal Tenuari District Gorakhpur and neither he had any agricultural land nor any grove or any landed property in the village where the incident had occurred but he owned landed property in some other village, regarding which the the defence side had produced the documentary evidence . Thus, it becomes very difficult to accept that he was staying inside the guava grove owned by his relative, particularly when the P.W. 2 himself has admitted that neither he owns any landed property or any grove in Chakla nor he was managing the affairs of the guava grove where the incident has occurred. The evidence of P.W. 2 Gabbu when read as a whole, is full of discrepancies and does not inspire confidence at all. 46.Perusal of the testimony of P.W. 1 shows that at the time of the incident he was sitting at his house and he first sighted the accused persons when they were catching hold of his son and a shot was fired from a point blank range by the accused appellant Ram Briksha. Thereafter, in the same breath he deposed that he first sighted the accused persons at a distance of 10 paces from the spot running away from the place of occurrence. They tried to chase the accused persons but they managed to escape. As such, the testimony of P.W. 1 itself is contradictory. Thereafter, in the same breath he deposed that he first sighted the accused persons at a distance of 10 paces from the spot running away from the place of occurrence. They tried to chase the accused persons but they managed to escape. As such, the testimony of P.W. 1 itself is contradictory. On one hand, he has stated that he first sighted the accused persons when they were catching hold of his son and a shot was fired from a point blank range and, later on, he stated that he first sighted the accused persons at a distance of 10 paces from the spot running away from the place of occurrence in the north direction. Such contradictory statements made by the P.W.1 show that he was neither present on the spot nor had he witnessed the alleged incident. Such contradictory statements made by the P.W.1 show that he was neither present on the spot nor had he witnessed the alleged incident. For ready reference, para 13 of the statement of P.W. 1 is extracted below: ** ¼13½ eSa ?kVuk ds le; vius ?kj ij cSBk FkkA eqyfteku fons'kh o lsod tks esjs yM+dks dks idM+s Fks rc esjh ml ij igyh nQk fuxkg iM+hA jkLrs ds fdukjs ;s nksuks eqyfteku esjs yM+dks dks idM+s gq;s FksA og jkLrk ogh gSA tks esjs ?kj ds iwjc] mRrj&nf[ku tkrk gSA xksyh xys esa lVk dj ekjh x;h vkSj ,d bUp dh nwjh ugh FkkA nksuks eqyfteku idM+s gq;s Fks tc esjs yM+ds dks xksyh ekjh x;hA tc xksyh ekjh rc ge pkj ikWp vknfe;ksa us eqyfteku dks nkSM+k;kA eSa vius ?kj ls vdsyk nkSM+k cfd;k yksx ckxhpksa ls nkSM+sA xksyh ekjus dh vkokt gqbZ Fkh vkSj ml vkokt dks lqudj ge vius ?kj ls nkSM+sA eSa rqjUr vius ?kj ls nkSM+kA tc esjh ifgyh igy fuxkg iM+h rks eqyfteku nl dne ij Hkkx jgsA ge yksxks us ,d fo?ks rd eqyfteku dk ihNk fd;kA eqyfteku jkLrk ij esa gksrs gq, HkkxsA eqyfteku ckx ds chp ls gksdj HkkxsA eqyfteku mRrj dh rjQ Hkkx jgs FksA ge yksx eqyfteku dks idM+ ugh ik;sA vkSj ;g le>k fd yM+ds dks ns[ks cp tk; rks mlh dks cpk ysA ge yksxks us ,d ch?kk rd ihNk fd;k fQj ykSV vk;sA ml oDr ds rd esjs yM+ds ds ikl cgqr ls yksx tqV x;s FksA ,d feuV esa gh pkjikbZ ykdj yM+ds dks fyVkdj vLirky ys pysA vk/ks ?k.Vs esa ge yksx iDdh lM+d ij igWqpsA izgykn ds nqdku ds ikl ns[kk fd esjk yM+dk ej x;k gSA ge yksx vk/ks ?k.Vs rd izgykn ds nqdku ds ikl gh yM+ds dks fy;s iM+s jgs o jksrs jgsA fnu vf/kd fxj tkus ds ckn izgykn ds nqdku ds ikl esa yk'k xbZA ml le; lwjt Mwck ugh Fkk ?k.Vk nks ?k.Vk fnu jgh tc yk'k jokuk gqbZA eSa yk'k ds lkFk ugh x;kA flikgh yk'k dks ys x;kA eSa jiV fy[kkus pyk x;kA eSa vxys fnu phj?kj x;k FkkA 2 cts fnu esa eq>s yk'k feyhA 1 ?k.Vk fnu p<+ x;k Fkk tc eSus phj?kj esa yk'k ns[khA ** 47.It has come on record that the dead body was sent for post mortem to the mortuary on 20.10. 1979 at 5.30 P.M. on a rickshaw . However, it was received in mortuary at around 7.50 A.M. on the next morning i.e. 21.10.1979 and the post mortem was conducted at 11.30 A. M. The prosecution failed to explain as to why the dead body, which was admittedly taken by the constable at around 5.30 P.M. on 20.10.1979 reached the morturary the next morning ie.. 21.10. 1979 at 7.50 A.M. These glaring discrepancies in the prosecution story supports the case of the appellant that , in fact, the incident had not occurred at 2.00 P.M. on 20.10.1979. At this stage, it would also be useful to discuss the testimony of D.W.1 Ram Prasad who gave altogether a different version than that of the prosecution. 48.According to the testimony of the defence witness Ram Prasad (D.W.1), the incident had occurred on the Diwali day . On that day, he met the deceased in the grove, late in the evening and they both decided to go out to watch the fire works on Diwali. Thereafter, both of them went to Urad Bazar to enjoy the festivities and after an hour, they started back for home. As the pathway was quite narrow, DW 1 was walking behind the deceased Shyama, when all of a sudden, he heard the gun shot that injured the deceased, who fell down on the ground while the assailant fled away. Since it was dark, he could not identify the assailants. He immediately rushed to the house of the informant and informed him about the incident and thereafter Mangru and 2-4 others reached the spot and while they were taking the injured to the road in front of the shop of Prahlad, he succumbed to his injury. Thereafter Shyam Sundar went to the police station for giving information to the police. One police constable came to the shop of Prahlad and stayed there throughout the night,on the next day morning, the Sub Inspector arrived there and the dead body after being sealed was sent to the mortuary; incident had occurred between 8.30 and 8.45 P.M. The place where deceased was shot was around 1 Km. From his house. 49.There does not seem to be any glaring discrepancy or contradictions in the testimony of D.W.1 who has very categorically described the incident to have occurred at around 9 O' clock. From his house. 49.There does not seem to be any glaring discrepancy or contradictions in the testimony of D.W.1 who has very categorically described the incident to have occurred at around 9 O' clock. In this regard it may also be stated that P.W. 1 in para-13 of his testimony, inter alia, has stated that he had taken the dead body to the shop of Prahlad and it was kept there till the body was taken away for the purpose of post mortem. The dead body was taken by the constable. He did not accompany the dead body. He went to the police station for lodging the F.I.R. This fact shows that after the dead body was removed from there by the constable for the purpose of post mortem, he proceeded to police station for lodging the F.I.R. only after the dead body was taken by the constable for post mortem to the mortuary. Therefore, the case of the prosecution that the F.I.R. was lodged at 2.00 P.M. on the date of the incident stands belied and the version of the defence that the incident had occurred at 9 O' clock appears to be reliable and inspiring. 50.There is another important aspect of the matter which requires consideration. According to the Doctor, who conducted the post mortem on 21.10.1979 at 11.30 A.M. i.e. next morning of the incident, the duration of death found by the Doctor was about half a day, as such , according to him, the death might have occurred at around 11.30 P.M. on 20.10.1979. The post mortem report further indicates that in the stomach semi digested food i.e. rice and pulse were also found. The small intestine was full while the large intestine was empty. 51.The prosecution in order to substantiate the argument that the incident had occurred in the afternoon, referred to the testimony of Durga Prasad ( P.W. 7), head constable who has stated that he made the entry in Rapat no. 52 of the G.D. at 21.30 on 20.10.1979 indicating that the dead body of the deceased was brought by the constables Mohd. Ishhaq and Sri Prakash Chandra Srivastava. On the basis of said deposition, learned A.G.A. stated that the G.D. entry in the police line shows that the incident had occurred in the afternoon. 52 of the G.D. at 21.30 on 20.10.1979 indicating that the dead body of the deceased was brought by the constables Mohd. Ishhaq and Sri Prakash Chandra Srivastava. On the basis of said deposition, learned A.G.A. stated that the G.D. entry in the police line shows that the incident had occurred in the afternoon. In this regard, learned counsel for the accused submitted that , in fact , the F.I.R. is ante timed and the G.D. entry was kept blank till the next morning and was filled up only after the dead body arrived hence falsely showing to have been recorded, the previous night. The contention of the learned counsel for the appellant has substance and cannot be brushed aside or rejected as untenable and cannot be said that factual foundation for raising suspicion has not been established. 52. In view of the medical evidence as well as the testimony of D.W. 1 and also considering the nature and other circumstances of the case, it appears that the incident had occurred sometimes at around 9.00 P.M. and the contention in this regard of D.W.1 cannot be completely ruled out. Here, it would be relevant to quote the statement of the concerned Doctor, which runs as under: ** ekSr dk le; duration vk/kk fnu dk tks eSu fy[kk Fkk og eSus 'ko dh lEiw.kZ ifjfLFkfr;ksa dks ns[kdj fy[kk FkkA ml le; tks eSus vk/kk oDr lgh fy[kk FkkA ml fglkc ls e`rd dh ekSr fiNys jkr ds 9 cts jkr dh Hkh gks ldrh gSA [kkuk [kkus ds 6 ?k.Vs ds ckn [kkuk ipdj NksVh vkar esa pyk tkrk gSA ;g Hkh lEHkkouk gS fd e`rd us nksigj esa [kkuk [kk;k gks vkSj og ipdj semi intestine eas vk x;kA e`rd us tks [kkuk 'kke dks [kk;k gksxk og isV esa semi digested jg x;k gksA ** 53.There is one more aspect of the matter which also requires consideration. According to P.W. 1 Mangru, shot was fired by the appellant Ram Briksha from a point blank range but the post mortem report does not indicate that any blackening or charring was found around the fire arm wound , as such it can not be believed that the shot was fired from a point blank range. According to P.W. 1 Mangru, shot was fired by the appellant Ram Briksha from a point blank range but the post mortem report does not indicate that any blackening or charring was found around the fire arm wound , as such it can not be believed that the shot was fired from a point blank range. In this context, it would be relevant to observe that a man can very easily commit the murder by firing with a deadly weapon like a country made pistol even if a victim is not caught hold of by any co accused. Moreover, it would also not be safe for a person, who would try to catch hold of the victim during the course of shooting because that would also endanger his life. Therefore, the testimony of P.W. 1 that the accused persons Ram Sewak and Bideshi had caught hold of the deceased while shooting him, does not inspire any confidence. 54.It may also be noted here that in the F.I.R. the first informant has mentioned the names of his wife, daughter and son as the witnesses of F.I.R. but none of them had been produced before the court and no explanation has been given as to why their statements were not recorded. In such circumstances, the court has no option but to draw an adverse inference against the prosecution for withholding material witnesses as provided under section 114(g) of the Evidence Act. 55.It may also be noted that one Prahlad ,near whose shop the dead body was kept, was also not produced before the court. He would have been the best prosecution witness to prove the fact that the dead body was brought to his shop in the afternoon at around 3 O'clock. This glaring lapse on the part of the prosecution further weakens its case . 56.It may also be noted that The P.W. 1 in paras 4 and 5 of his testimony has stated that "Mere Makan Ke Charo Taraph Amrood Bagh Hai and " Us Bagh Men Din Bhar Saikro Aadmi Rahte Hain wa Bagh Rakhate Hain wa Sham Ko Apne Ghar Chale Jate Hain.". Since the incident is alleged to have occurred in a dense guava grove it does not seem believable that the incident could have been witnessed from the dwelling house of the P.W.1. Since the incident is alleged to have occurred in a dense guava grove it does not seem believable that the incident could have been witnessed from the dwelling house of the P.W.1. According to the site plan also there were a large number of guava trees between the dwelling house of P.W. 1 and the place of incident. Therefore, it was quite impossible for the P.W. 1 and P.W. 2, to have witnessed the incident in the manner as alleged by the prosecution. 57.It is also worth mentioning that the investigating officer had collected the blood stained earth from the place of the incident but there is no forensic report on record to prove that that the sample of the said blood stained earth related to a human being let alone the deceased. This omission itself creates serious doubt about the trustworthiness and veracity of the prosecution story and it further weakens the case of the prosecution. Besides this, no recovery whatsoever was made from the accused persons. 58. The State has filed an Appeal,being Govenment Appeal No. 1916 of 1981, State Vs. Ram Sewak and another against the impugned judgement and order dated 26.5.1981 whereby the accused Ram Sewak and Bedeshi were acquitted of the charges framed under sections 302/34 I.P.C. From perusal of the impugned judgement , it transpires that the trial court while convicting the appellant Ram Briksha,acquitted the co accused Ram Sewak and Bideshi who have been assigned the role of catching hold while the shot was fired at the deceased. 59. We have heard learned AGA appearing for the appellant State as well as learned advocate appearing for the respondent. At the outset it is required to be noted that the principles which would govern and regulate the hearing of appeal by this Court, against an order of acquittal passed by the trial Court, have been very succinctly explained by the Apex Court in a catena of decisions. In the case of M.S. Narayana Menon @ Mani Vs. State of Kerala and Anr, 2006 6 SCC 39 , the Apex Court has narrated about the powers of the High Court in appeal against the order of acquittal. In para 54 of the decision, the Apex Court has observed as under: "54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. In para 54 of the decision, the Apex Court has observed as under: "54. In any event the High Court entertained an appeal treating to be an appeal against acquittal, it was in fact exercising the revisional jurisdiction. Even while exercising an appellate power against a judgment of acquittal, the High Court should have borne in mind the well settled principles of law that where two view are possible, the appellate Court should not interfere with the finding of acquittal recorded by the Court below." 60. Further, in the case of Chandrappa Vs. State of Karnataka, 2007 4 SCC 415 , the Apex Court laid down the following principles; "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge: [1] An appellate Court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. [2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law. [3] Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasis the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. [4] An appellate Court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. [5] If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court." 61. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court. [5] If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court." 61. Thus, it is a settled principle that while exercising the appellate power, even if two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court. 62. Even in the case of State of Goa V. Sanjay Thakran and Anr, 2007 3 SCC 755 , the Apex Court has reiterated the powers of the High Court in such cases. In para 16 of the said decision, the Court has observed as under; "16. From the aforesaid decisions, it is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below. However, the appellate Court has a power to review the evidence if it is of the view that the conclusion arrived at by the Court below is perverse and the Court has committed a manifest error of law and ignored the material evidence on record. A duty is cast upon the appellate Court, in such circumstances, to reappreciate the evidence to arrive to a just decision on the basis of material placed on record to find out whether any of the accused is connected with the commission of the crime he is charged with." 63. Similar principle has been laid down by the Apex Court in the cases of State of Uttar Pradesh Vs. Ram Veer Singh and Ors, 2007 AIR(SCW) 5553 and in Girja Prasad (Dead) by LRs Vs. State of MP, 2007 AIR(SCW) 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled. 64. In the case of Luna Ram Vs. Ram Veer Singh and Ors, 2007 AIR(SCW) 5553 and in Girja Prasad (Dead) by LRs Vs. State of MP, 2007 AIR(SCW) 5589. Thus, the powers, which this Court may exercise against an order of acquittal, are well settled. 64. In the case of Luna Ram Vs. Bhupat Singh and Ors, 2009 3 SCC 749 , the Apex Court in para 10 and 11 has held as under: "10. The High Court has noted that the prosecution version was not clearly believable. Some of the socalled eye witnesses stated that the deceased died because his anke was twisted by an accused. Others said that he was strangulated. It was the case of the prosecution that the injured witnesses were thrown out of the bus. The doctor who conducted the postmortem and examined the witnesses had categorically stated that it was not possible that somebody would throw a person out of the bus when it was in running condition. 11. Considering the parameters of appeal against the judgment of acquittal, we are not inclined to interfere in this appeal. The view of the High Court cannot be termed to be perverse and is a possible view on the evidence." 65. Even in a recent decision of the Apex Court in the case of Mookkiah and Anr. Vs. State, rep. by the Inspector of Police, Tamil Nadu, AIR 2013(SC) 321, the Apex Court in para 4 has held as under: "4. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. Since counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal. This Court in a series of decisions has repeatedly laid down that as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be reappreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an appeal as such merely because one was against conviction or the other against an acquittal. [Vide State of Rajasthan vs. Sohan Lal and Others, 2004 5 SCC 573 ]" 66. It is also a settled legal position that in acquittal appeal, the appellate Court is not required to rewrite the judgment or to give fresh reasonings, when the reasons assigned by the Court below are found to be just and proper. Such principle is laid down by the Apex Court in the case of State of Karnataka Vs. Hemareddy, AIR 1981 (SC) 1417 , wherein it is held as under: "... This Court has observed in Girija Nandini Devi V. Bigendra Nandini Choudhary, 1967 1 SCR 93 that it is not the duty of the Appellate Court on the evidence to repeat the narration of the evidence or to reiterate the reasons given by the trial Court expression of general agreement with the reasons given by the Court the decision of which is under appeal, will ordinarily suffice." 67. Similar principle has been laid down by the Apex Court in the case of Shivasharanappa and Ors Vs. State of Karnataka, 2013 7 JT 66 . 68. No body would catch hold of any victim while the shot was fired at the victim as it may endanger his life. The post mortem report shows that the fire was not shot from a point blank range. State of Karnataka, 2013 7 JT 66 . 68. No body would catch hold of any victim while the shot was fired at the victim as it may endanger his life. The post mortem report shows that the fire was not shot from a point blank range. Moreover, there is no evidence on record that these two accused namely Ram Sewak and Bideshi shared common intention with the appellant Ram Briksha to murder Shyama or were even aware that the accused Ram Briksha was allegedly armed with pistol while proceeding to Khirwaniya along with the deceased and hence common intention is clearly absent. 69. The finding of fact of trial court holding that the other two accused namely Ram Sewak and Bedeshi were not involved does not appear to be perverse and, as discussed herein above, the evidence of the prosecution witnesses are inconsistent. We concur with the finding of facts recorded by the court below on this aspect as it cannot be said that they are perverse. 70. Thus, we do not find any infirmity or perversity in the finding recorded by the trial court while acquitting the co accused Ram Sewak and Bideshi and the impugned judgement and order is liable to be affirmed to that extent. The trial court was fully justified in acquitting the co-accused Ram Sewak and Bideshi of the charges framed under section 302/34 I.P.C.The Government Appeal No. 1916 of 19181 filed by the State Appellant against co accused Ram Sewak and Bideshi, accordingly, stands dismissed. 71. So far as the conviction of the appellant Ram Briksh is concerned, we are of the considered opinion that the view taken by the Court below while convicting the appellant Ram Briksha is palpably wrong and the findings recorded by the Court below are perverse, erroneous and can not stand the scrutiny of law. The judgment passed by the trial court convicting the appellant is based on a complete misreading of the case and misconception of the legal position relevant to the matter and it 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 Ram Briksh. 72. 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 Ram Briksh. 72. 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 appellant Ram Briksh is entitled to the benefit of doubt and acquittal. 73. The Criminal Appeal No. 1319 of 1981 filed by the appellant Ram Briksh having merit is liable to be allowed. 74. On the basis of aforesaid discussion, in our considered opinion and also applying the rule of caution, conviction of the appellant namely Ram Briksha can not be sustained and is liable to be set-aside and in the circumstances of the case, the appellant deserves acquittal. 75. Consequently, the Criminal Appeal No. 1319 of 1981, Ram Briksh Vs. State is allowed. 76. The impugned judgement and order dated 26.5.1981 passed by Sri T. N.Saxena, II Addl. Sessions Judge, Gorakhpur in S. T. No. 112 of 1980 to the extent convicting the appellant Ram Briksha for the offences punishable under Section 302 I.P.C. and sentencing him to undergo imprisonment for life for the said offence is set-aside and the appellant is acquitted of the charges levelled against him and his conviction and sentence is hereby quashed. The appellant Ram Briksha is on bail. He need not surrender. His personal and surety bonds are hereby cancelled and sureties are discharged from his liability. 77. Let a copy of this judgment along with the trial court record be sent to the court concerned for compliance.