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2016 DIGILAW 2124 (ALL)

Lalau @ Rakesh Kumar v. State of U. P.

2016-05-31

ANIL KUMAR SRIVASTAVA-II, SURENDRA VIKRAM SINGH RATHORE

body2016
JUDGMENT Surendra Vikram Singh Rathore, J. – Mr. Nagendra Mohan, learned counsel for the appellants and Sri Sharad Dixit, learned Additional Government Advocate and Sri Satendra Kumar Singh were heard at length. 2. Since both these appeals i.e. (Criminal Appeal No.927 of 2011-Lalau @ Rakesh Kumar and another v. State of U.P.) and(Criminal Appeal No.918 of 2011-Krishna Bihari v. State of U.P.) arise out of a common judgment, therefore, the same are being disposed of together. 3. Criminal Appeal No.927 of 2011 has been preferred by appellants-Lalau @ Rakesh and Suresh @ Sunil Dutt Tripathi who are presently detained in custody and Criminal Appeal No.918 of 2011 has been preferred by the appellant Krishna Bihari, at present who is on bail. There was one other accused Ganesh who was declared juvenile and his case was separated and was transferred to concerned Juvenile Justice Board for trial. 4. Both the aforementioned criminal appeals arise out of a common judgment and order dated 23.03.2011 passed by learned Special Judge, Gangster Act, Gonda, in Gangster Case No.83/2008/2003 arising out of Case Crime No.123 of 2002, Police Station Sirsiya, District Shrawasti, whereby the appellants were convicted and sentenced as under: - 1. Appellants Lalau @ Rakesh Kumar and Suresh @ Sunil Dutt Tripathi were convicted for the offence under Section 302 IPC and were sentenced with imprisonment for life and also with fine of Rs. 30,000/- with default stipulation of three years rigorous imprisonment. 2. Appellant Krishna Bihari was convicted for the offence under Section 302 read with 120-B IPC and was sentenced with imprisonment for life and also with fine of Rs. 30,000/- with default stipulation of three years rigorous imprisonment. 3. Appellant Krishna Bihari was also convicted for the offence under section 406 IPC and was sentenced with rigorous imprisonment for a period of three years. 5. Both the sentences of appellant Krishna Bihari were directed to run concurrently. 6. However, all the appellants were acquitted of the charge under Section 3 (1) of U.P. Gangster Act. 7. In brief, the case of the prosecution was that the complainant Shiv Shanker lodged an FIR at Police Station Sirsiya, District Shrawasti, on 30.07.2002 at 7: 30 p.m. alleging therein that on that day at about 5.00 p.m. he was grazing his cattle towards south of the village near school. His son Parasuram and his grand daughter Km. 7. In brief, the case of the prosecution was that the complainant Shiv Shanker lodged an FIR at Police Station Sirsiya, District Shrawasti, on 30.07.2002 at 7: 30 p.m. alleging therein that on that day at about 5.00 p.m. he was grazing his cattle towards south of the village near school. His son Parasuram and his grand daughter Km. Kiran, at about 5.00 a.m., came out from the house and were going towards market for the purpose of purchasing books. In the bushes of 'Behaya' accused persons had laid ambush, Lalau, Suresh and Ganesh were taking ganja in the said 'Behaya' bushes. Seeing the deceased, all the three miscreants fired on him due to which his grand daughter started crying. Hearing the noise of fire and cries the complainant saw that his son was being killed. He also rushed towards the place of occurrence raising alarm. Seeing the complainant rushing towards the place of occurrence accused persons ran away from there. The accused persons were also witnessed by Chinku Badhai, Karangi and Buddhu who were working in their fields. While these accused persons were making good their escape they were also chased. Suresh was armed with 12 bore half barrel country made gun and two accused persons were armed with country made pistols. When the complainant came back to the place of occurrence after chasing the accused persons then he saw that his son Parasuram had expired. Leaving the dead body of his son on the place of occurrence the complainant went to the police station to lodge the FIR. 8. On the basis of this FIR, the case was registered and investigation proceeded. Investigating Officer came to the place of occurrence and inspected the place and prepared its site plan on the next day. Inquest proceedings were conducted in the following morning and after completing other formalities dead body was sent for postmortem. During investigation the complicity of the appellant Krishan Bihari also came into light that he hatched the conspiracy to commit this offence. Therefore, charge-sheet was filed against three named accused persons and Krishna Bihari. Since, Ganesh was declared juvenile, therefore his case was separated. 9. The postmortem on the body of the deceased was conducted on 31.07.2002 at 2.10 p.m. The deceased was middle aged and was of stout body. Rigor mortis had passed off from the upper extremities but was present in the lower extremities. Since, Ganesh was declared juvenile, therefore his case was separated. 9. The postmortem on the body of the deceased was conducted on 31.07.2002 at 2.10 p.m. The deceased was middle aged and was of stout body. Rigor mortis had passed off from the upper extremities but was present in the lower extremities. Following ante-mortem injuries were found on his person: 1. Fire arm wound of entry 3 cm x 3 cm on right side of mouth surrounding area was blackened underneath jaw bone was fractured. It was dislocated and tongue located. Wounds of exit were present. Red coloured plastic wad and 5 metallic pellets were recovered. 2. Fire arm wound of entry 1.5 cm x 1.0 cm on right side of lower chest lateral, four metallic pellets recovered. Underneath subcutaneous tissues and muscles. Wound of exit absent. 3. Fire arm wound of entry 3 cm x 3 cm on left side of chest lateral part 2 cm x behind injury no.2.Three metallic pellets were recovered from underneath. Wound of exit absent. 4. Fire arm wound of entry on right side of chest, lateral and lower part of area 5 cm x 4 cm communicating to right chest and right side of abdominal cavity. 5. Multiple fire arm wound of entry on right upper arm medial aspect in area of 10 cm x 6 cm wound of exit absent. 6. Abrasion 1 cm x 1 cm below right knee joint. Nothing abnormal was reported in small and large intestines. Gall bladder was lacerated. The deceased died due to haemorrhage and shock as a result of ante-mortem fire arm injuries. 10. The defence of the appellants was that the deceased was a Lekhpal and because of his illegal activities he had several enemies. Some unknown persons had come on motorcycle who have committed this offence and because of the enmity the appellants have been falsely implicated in this case and no one has seen this incident. 11. In order to prove its case the prosecution has examined PW-1 Shiv Shanker, the complainant of this case, PW-2 Dr. Paramjeet Singh, who has conducted the postmortem on the body of the deceased, PW-3 Km. 11. In order to prove its case the prosecution has examined PW-1 Shiv Shanker, the complainant of this case, PW-2 Dr. Paramjeet Singh, who has conducted the postmortem on the body of the deceased, PW-3 Km. Kiran Devi as witnesses of fact, PW-4 Sub Inspector, Daddan Chaubey, the initial Investigating Officer of this case, PW-5 S.I. Ramesh Chandra Mishra who is a witness on the point of enmity and regarding conspiracy hatched by Krishna Bihari, PW-6 S.O. Dhruv Kumar, the second Investigating Officer of this case who took up the investigation from 14.08.2002 and after completing the same filed charge-sheet. 12. In defence DW-1 Arun Kumar Mishra, Principal of Paramhans Laghu Madhyamik Vidyalaya, Vishwapur was examined on the point that Km. Kiran Devi was a student of that school and village Durgapur is situated from his school at a distance of about 8-10 kms. On the date of incident she attended the school. DW-2 Karangi Lal and DW-3 Buddhu Dhobi have been examined to support the defence theory that two unknown persons came on motorcycle and have caused this incident. DW-4 is Lal Bahadur who met deceased at Jakhwa market wherefrom Parasuram went to his village and he after staying at some time in the market came to his village. When he was coming to his village he found crowd assembled near school and Parasuram was lying dead there. 13. After appreciating the evidence on record, the trial court has convicted the appellant as above, hence these instant appeals. 14. Submission of the learned counsel for the appellants was that in the instant case PW-1 Shiv Shanker Singh has stated that he has not seen the accused persons committing this offence and presence of PW-3 Km. Kiran Devi at the place of occurrence was wholly unreliable because the prosecution has come with a definite case that she was accompanying her father and was going to purchase books from the market but at the time of inquest proceedings not even a single penny was recovered from the body of the deceased which falsifies the story that the deceased was going to the market to purchase books and this conclusion also falsifies the reason of presence of PW-3 Km. Kiran Devi at the time of incident. Kiran Devi at the time of incident. It has also been argued that not even a single independent person could be examined by the prosecution in support of this incident and only related witnesses have been examined. He has also argued that the deceased has sustained five fire arm wounds of entry while according to the case of the prosecution only three fires were shot on the deceased and this discrepancy shows that the witnesses have not seen the incident. He has also argued that there was absolutely no evidence of hatching of conspiracy against the appellant Krishna Bihari and the learned trial court has committed illegality in convicting the appellants without proper appreciation of evidence. 15. Learned counsel for the complainant Sri Satendra Kumar Singh has argued that the accused Ganesh whose case was separated has again committed murder of some one and he has also been convicted by the concerned Juvenile Justice Board. Submission of the learned counsel for the complainant was that the five wounds of entry may be caused by three shots because of the dispersal of the fire. Country made weapons are alleged to have been used in this offence. It has also been argued that the evidence of PW-1 and PW-3 was wholly reliable and there was evidence of hatching conspiracy against the third appellant Krishna Bihari, so the learned trial court has not committed any illegality in convicting the appellants. He has also argued that the FIR was lodged promptly without any undue delay as the distance of the place of occurrence from the police station was 14 kms. which also lends support to the prosecution story. 16. Learned Additional Government Advocate has submitted that the argument of learned counsel for the appellants that no money was recovered at the time of inquest from the possession of the body of the deceased would not give rise to the conclusion that he was not going to the market. His argument is that in the villages, because of the personal relations the persons make purchase on credit and payment is made subsequently. So simply because no money was found from the person of the deceased, it cannot be concluded that he was not going to the market. 17. His argument is that in the villages, because of the personal relations the persons make purchase on credit and payment is made subsequently. So simply because no money was found from the person of the deceased, it cannot be concluded that he was not going to the market. 17. Since the case of the appellant Ganesh was not tried together and was not decided by the impugned judgment, so the conviction of the appellant or his subsequent conduct is not the least material for the purpose of the instant appeals. 18. The first point to be considered in this case is the FIR. Submission of the learned counsel for the appellants was that it was anti-timed but we do not find any good ground to hold that the FIR has not come into existence at the time as claimed by the prosecution. The incident of this case is alleged to have taken place at about 5.00 p.m. on 30.07.2002 and the FIR was lodged on the same day after two and half hours at 19: 30 hours at a distance of 11 kms. As per the evidence of the complainant after the incident he went to his house which was, as per the evidence at a distance of about two and half furlongs and scribed the FIR and thereafter he went to the police station on cycle. So the delay of two and half hours in the registration of the case is well explained and virtually there is no delay. It transpires from the documentary evidence that the case crime number and the name of the person giving information has been correctly mentioned in the inquest report and also in the annexed documents. Simply because the inquest proceedings took place in the following morning it cannot be concluded that the FIR was not in existence at the time as claimed by the prosecution. Generally the inquest proceedings are not conducted in the night and the same is conducted during day time when there is sufficient light to inspect the dead body properly. Likewise the fard of recovery of blood stained and plain earth and recovery of empty cartridges two chilams, two ticklies was also prepared in the following morning. Generally the inquest proceedings are not conducted in the night and the same is conducted during day time when there is sufficient light to inspect the dead body properly. Likewise the fard of recovery of blood stained and plain earth and recovery of empty cartridges two chilams, two ticklies was also prepared in the following morning. By the time, FIR was lodged it must be dark so in the dark at the place of incident it would not have been possible for the Investigating Officer to inspect the place of occurrence and prepare its site plan and to conduct the other proceedings of investigation. PW-4 Investigating Officer Daddan Chaube has stated that he reached the place of incident in the night but due to darkness nothing could be done. So the submission of the learned counsel for the appellants that the FIR was anti-timed, has no substance. 19. Before adverting to the ocular testimony of the eyewitnesses, we will consider the medical evidence which is in the form of postmortem report and also the evidence of PW-2 Dr. Paramjeet Singh. The doctor has reported five fire arm wounds of entry on the body of the deceased. The duration of death as stated by the doctor corroborates the time of incident. A suggestion was given to the doctor that the death could have been caused in the night and also a suggestion has been given that such injuries could be blast injuries. The suggestion of blast injury has specifically been denied by the doctor and he has stated that the death of the deceased could have been caused in the night also, keeping in view the variation in the time of death. But virtually these questions were absolutely of no help to the defence because the appellants have come with a definite defence that the deceased was murdered at about 4.00 p.m. at the same place by two unknown miscreants who came on motorcycle and fired indiscriminately. So the date, time and place of occurrence and the fact that the death was caused by fire arm injuries is an admitted fact. It is true that the prosecution has not put any question to the doctor that all the five injuries of the deceased could have been the result of three shots. So the date, time and place of occurrence and the fact that the death was caused by fire arm injuries is an admitted fact. It is true that the prosecution has not put any question to the doctor that all the five injuries of the deceased could have been the result of three shots. Version of the FIR was that all the three accused persons shot fires on the deceased and the total number of fires was not mentioned in the FIR. Apart from it, the photo lash and the location of the injuries shows that two injuries which were on the left side of the abdomen were so close to each other as the same may be caused by a single shot. Apart from it, the injury on the arm could have been caused by the fire while the deceased was making an attempt to save his face. So this discrepancy was not of much consequence in our view. Last injury which was reported by the doctor to have been caused by blunt weapon might have been caused by a fall or by a blow of lathi. Since the defence has himself has not stated that any lathi blow was given by any of the unknown miscreants, therefore, the only conclusion that can be arrived at was that this injury was the result of fall after sustaining the gun shot injury. So there is nothing adverse in the medical evidence which completely makes the prosecution case unreliable. So we will have to consider the ocular testimony of the witnesses. 20. In order to test the reliability of a witness the first thing to be considered is whether he was present at the place of incident and the second is whether his evidence is reliable. Admittedly, PW-1 and PW-3 both are closely related to the deceased. PW-1 is father of the deceased Parasuram and PW-3 is Km. Kiran Devi is the daughter of the deceased. On the point of motive and conspiracy PW-5 Ramesh Chandra Mishra has been examined who happens to be real brother-in-law (Sala) of the deceased Parasuram. No independent person has come forward to support the case of the prosecution. 21. Submission of the learned counsel for the appellants was that these are related and chance witnesses so their evidence cannot be treated to be wholly reliable. No independent person has come forward to support the case of the prosecution. 21. Submission of the learned counsel for the appellants was that these are related and chance witnesses so their evidence cannot be treated to be wholly reliable. But law is settled on the point that the evidence of a related witness or a chance witness cannot be discarded solely on the ground that he was related witness. On the contrary, the query would be as to why a related witness would falsely implicate the accused sparing the real assailants. But the relationship of the deceased burdens the court to scrutinise the evidence of such witnesses with extra care and caution. 22. On this point reference may be made to the pronouncement of Hon'ble Apex Court in the case of Kuria and another v. State of Rajasthan reported in (2012) 10 SCC pg 433 had held in paragraph no.34 as under: - "The testimony of an eyewitness, if found truthful, cannot be discarded merely because the eyewitness was a relative of the deceased. Where the witness is wholly unreliable, the court may discard the statement of such witness, but where the witness is wholly reliable or neither wholly reliable nor wholly unreliable (if his statement is fully corroborated and supported by other ocular and documentary evidence), the court may base its judgment on the statement of such witness. Of course, in the latter category of witnesses, the court has to be more cautious and see if the statement of the witness is corroborated. Reference in this regard can be made to Sunil Kumar v. State of Punjab, (2003) 11 SCC 367 , Brathi v. State of Punjab (1991) 1 SCC 519 and Alagupandi v. State of T.N. (2012) 10 SCC 451 ." 23. In a recent judgment in the case of Gurjit Singh v. State of Haryana reported in (2015) 4 SCC 380 Hon'ble the Apex Court has observed that statement of a relative cannot be discarded on the ground that he is a relative. 24. Now we will come to the evidence of the two witnesses. PW-1 in his examination-in-chief has supported the case of the prosecution but he has given some statements in his cross-examination which shows that he has not seen the incident. According to the admitted case of the prosecution the accused persons were hiding themselves in the 'Behaya' bushes. 24. Now we will come to the evidence of the two witnesses. PW-1 in his examination-in-chief has supported the case of the prosecution but he has given some statements in his cross-examination which shows that he has not seen the incident. According to the admitted case of the prosecution the accused persons were hiding themselves in the 'Behaya' bushes. It has nowhere the case of the prosecution in the FIR that the accused persons came out of 'Behaya' bushes and fired on the deceased. As per the statements of this witness he was at a distance of about 200 yards towards north from the place of occurrence. He was in north direction from the school and according to the site plan prepared by the Investigating Officer the incident has taken place towards south of the school by the side of the field of Chhotey Lal. It has also come in evidence that Jokhra bazar was at a distance of two and half furlongs from the place of incident and the house of the complainant was also situated at the same distance from the place of incident in other direction so the complainant has fairly conceded in his cross-examination that he himself has not seen the accused persons firing shots on the deceased. Apart from it, he has also admitted that his son Raj Kishore was the first person to reach at the place of occurrence thereafter he reached and after him Dr. Siraj reached there. So virtually he reached after the incident and after arrival of his son Raj Kishore. So the stay that he chased the miscreants also becomes unreliable. He was not even cited as a witness in the charge-sheet while he was step brother of the deceased. However presence of Raj Kishore has no where been shown at the place of occurrence in the FIR. It is clear from the evidence that the complainant was a man aged about 70 years so a man of such an advanced age might not be in a position to see and recognise the assailants from a distance of 200 paces and to run fast and cover the distance of 200 yards without delay. According to the site plan the accused persons ran away after the incident in the west direction. According to the site plan the accused persons ran away after the incident in the west direction. According to the version of the FIR, the complainant chased the accused persons and had seen the accused Suresh armed with country made half barrel gun. While during trial, he has stated that all the three accused persons were armed with country made pistols. He himself in the FIR had distinguished between half barrel gun and pistols. So it cannot be presumed that he was not aware of the difference between the two weapons. Keeping in view the aforesaid statements of the complainant, we do not find his testimony to be wholly reliable. 25. Now we come to the evidence of PW-3. PW-3 Km. Kiran Devi was a child witness aged about 12 years at the time of incident. Law is settled on the point that the evidence of a child witness if found to be wholly reliable and also stands corroborated by the other circumstances then there would not be any illegality in convicting the accused persons on the basis of sole evidence of such child witness. As a rule of caution, law casts a duty on the court to seek corroboration of the evidence of a child witness because they are prone to tutoring. On this point, Hon'ble the Apex Court in the case of State of M.P. v. Ramesh and another reported in (2011) 4 SCC 786 , has held as under: - "In view of the above, the law on the issue can be summarised to the effect that the deposition of a child witness may require corroboration, but in case his deposition inspires the confidence of the court may rely upon his evidence. The evidence of a child witness must be evaluated more carefully with greater circumspection because he is susceptible to tutoring. Only in case there is evidence on record to show that a child has been tutored, the Court can reject his statement partly or fully. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition." 26. Therefore, the evidence of this witness has to be considered with extra care and caution. She was a student of primary school in Jokhra bazar. However, an inference as to whether child has been tutored or not, can be drawn from the contents of his deposition." 26. Therefore, the evidence of this witness has to be considered with extra care and caution. She was a student of primary school in Jokhra bazar. She has admitted this fact in her evidence but she has stated that on the date of incident she had not gone to the school. On this point DW-1 Arun Kumar Mishra has been examined who was the Principal of that school. He has stated that Km. Kiran had taken admission in his school on 05.07.2001 and after passing Class VIIIth she left the school on 10.05.2004. On the date of incident, she was a student of his school and as per school record she attended school on the relevant date. He has admitted in his cross-examination that timings of the school were from 7.30 a.m. to 12.30 p.m. and he cannot say if the student has left the school after getting her attendance noted. Thus the statement of PW-2 that she did not go to the school on that day stands falsified. Why she has stated so is best known to her. In this case, the police has also got the statement of this witness recorded under Section 164 Cr.P.C. It has not been explained by the prosecution as to what was the need to get her statement recorded under Section 164 Cr.P.C. The submission of the learned counsel for the appellants was that her statement was recorded only because the prosecution was apprehending that she may not give evidence as she is tutored. But this by itself can not be the sole ground to reject her testimony on this ground alone. On this point reference may be made to the pronouncement of Hon'ble Apex Court in the case of R. Shaji v. State of Kerala reported in (2013) 14 SCC 266 and has observed in paragraphs nos. 27, 28 & 29 which reads as under: - "27. So far as the statement of witnesses recorded under Section 164 is concerned, the object is two fold; in the first place, to deter the witness from changing his stand by denying the contents of his previously recorded statement, and secondly, to tide over immunity from prosecution by the witness under Section 164. So far as the statement of witnesses recorded under Section 164 is concerned, the object is two fold; in the first place, to deter the witness from changing his stand by denying the contents of his previously recorded statement, and secondly, to tide over immunity from prosecution by the witness under Section 164. A proposition to the effect that if a statement of a witness is recorded under Section 164, his evidence in Court should be discarded, is not at all warranted. (Vide: Jogendra Nahak & Ors. v. State & Ors. reported in AIR 1999 SC 2565 ; and Assistant Collector of Central Excise, Rajamundry v. Duncan Agro Industries Ltd. & Ors. reported in AIR 2000 SC 2901 ). 28. Section 157 of the Evidence Act makes it clear that a statement recorded under Section 164 Cr.P.C., can be relied upon for the purpose of corroborating statements made by witnesses in the Committal Court or even to contradict the same. As the defence had no opportunity to cross-examine the witnesses whose statements are recorded under Section 164 Cr.P.C., such statements cannot be treated as substantive evidence. 29. During the investigation, the Police Officer may sometimes feel that it is expedient to record the statement of a witness under Section 164 Cr.P.C. This usually happens when the witnesses to a crime are clearly connected to the accused, or where the accused is very influential, owing to which the witnesses may be influenced. (Vide: Mamand v. Emperor reported in AIR 1946 PC 45 ; Bhuboni Sahu v. King reported in AIR 1949 PC 257 ; Ram Charan & Ors. v. The State of U.P. reported in AIR 1968 SC 1270 ; and Dhanbal & Anr. v. State of Tamil Nadu reported in AIR 1980 SC 628 )." 27. So this aspect of the matter further burdens this Court to scrutinise her evidence with extra care and caution. According to the admitted case of prosecution, her house was at a distance of about 2 furlong from the place of occurrence. The place she claims to be present with her father was not a normal place where her presence could have been presumed or would be natural. So the prosecution was obliged to explain the reasons of her presence on that place at the relevant time. The place she claims to be present with her father was not a normal place where her presence could have been presumed or would be natural. So the prosecution was obliged to explain the reasons of her presence on that place at the relevant time. The prosecution has come with the reason that she was going with the deceased for the purpose of purchasing her books from Jokhra bazar. She has also admitted that money for such purchase was with her father. Admittedly, not even a single penny was recovered from the body of the deceased to lend support to this reason of her presence at the spot. The argument of the learned A.G.A. on this point was that it may be presumed that the deceased might have some relations with shopkeeper and would have gone to take books on credit. It transpires from the evidence on record that the deceased Parasuram was Lekhpal and he was having enough property. According to the admitted case of the prosecution he has paid Rs. 60,000/- to Krishna Bihari towards the land. Apart from it, the property of Ramdeo Yadav was also transferred in his favour and he was having some other properties also. So such an affluent person would purchase the books of his daughter on credit, does not appeal to reason. Apart from it, the prosecution has come with a definite case that the appellants were laying ambush in the 'Behaya' trees. Thus it appears that they were waiting for the deceased to come at the place of occurrence. If the story of going to market for purchase of books is taken to be true then there was no occasion for the accused persons to lay ambush on way to the market as it, was not a pre-planned programme and the deceased left his house soon before the incident. So the laying ambush, does not appeal to reason. On the contrary, the evidence of DW-4 Lal Bahadur appears to be more probable who has stated that he met the deceased Parasuram on the date of incident at about 1.00 p.m. in Bhinga wherefrom they came on Bus to Jokhra bazar he stayed there for some shopping and deceased went to his village Durgapur. On the contrary, the evidence of DW-4 Lal Bahadur appears to be more probable who has stated that he met the deceased Parasuram on the date of incident at about 1.00 p.m. in Bhinga wherefrom they came on Bus to Jokhra bazar he stayed there for some shopping and deceased went to his village Durgapur. When he was coming back to his village then he found that a crowd was assembled near the school and Parasuram was lying in injured condition and from there he went to his village. Once the explanation of the prosecution on the point of presence of PW-3 Km. Kiran Devi comes under shadow of doubt then it will definitely make her evidence unreliable. Here it is pertinent to mention that on behalf of the appellants two defence witnesses have been examined who were named as witnesses in the FIR and have also been cited as witnesses in the charge-sheet. Both of them have stated that two unknown miscreants have come on motorcycle made indiscriminate firing on the deceased due to which he died. Law is settled on the point that the defence witnesses are also entitled to the equal treatment which is given to the prosecution witnesses. 28. On this point reference may be made to the pronouncement of Hon'ble the Apex Court in the case of Doodh Nath Pandey v. State of U.P. reported in (1981) 2 SCC 166 , wherein Hon'ble the Apex Court has observed in paragraph 19 as under: - "19...... Defence witnesses are entitled to equal treatment with those of the prosecution. And, courts ought to overcome their traditional, instinctive disbelief in defence witnesses. Quite often, they tell lies but so do the prosecution witnesses." The aforementioned case law of Doodh Nath Pandey was followed by Hon'ble the Apex Court in a subsequent judgment in the case ofJumni and others v. State of Haryana reported in (2014) 11 SCC 355 . 29. Once we find the presence of PW-3 to be doubtful on the place of occurrence then the natural consequence of it would be that there remains no reliable evidence to connect the appellants with the instant offence. 30. Now the last part of the prosecution case remains to be considered which is regarding involvement of Krishna Bihari who is alleged to have hatched conspiracy to commit this offence. 30. Now the last part of the prosecution case remains to be considered which is regarding involvement of Krishna Bihari who is alleged to have hatched conspiracy to commit this offence. Appellant Lalau is son of Krishna Bihari and appellant Suresh is his brother who has been adopted by Kripa Ram. The motive to commit this offence as alleged by PW-1 was that the deceased has purchased some land from the father of Krishna Bihari and Suresh. Nineteen bighas and six biswas land was purchased. It was agreed that Kripa Ram shall give evidence before the Consolidation Officer but he gave statement only regarding 4 bighas of land and said that he will give statement in Court. Some of their land which was about 38 bighas was in the possession of Ram Dutt Yadav of Yash Nagar. The appellants were not able to take possession of the said land because the real tenure holder was Ram Dutt Yadav and Kripa Ram was only registered in Clause 9 in revenue records. Ram Dutt executed a will in favour of the deceased Parasuram and thereafter land of Ram Dutt Yadav came in possession of the deceased Parasuram and he became the real tenure holder and in possession of the said land. On this point the prosecution has examined PW-5 Ramesh Chandra Mishra he happens to be the brother-in-law (Saala of the deceased Parasuram). He has stated that in his presence a compromise took place regarding the case which was pending between the deceased Parasuram and appellant Suresh. Since Suresh was minor so Krishna Bihari used to look after the said case. It was agreed upon between Parasuram and Krishna Bihari that Parasuram shall make payment of Rs. 60,000/- to Krishna Bihari and thereafter Suresh and Krishna Bihari shall not have any claim over the said land. The said money was given by Parasuram some days prior to this incident. Money was given in his presence and it was paid to Krishna Bihari. But thereafter Krishna Bihari filed a suit in the name of Suresh. After filing the suit, in the presence of this witness in Bhinga court Krishna Bihari had threatened Parasuram that he could not pay Rs. 60,000/- to Suresh. Now Suresh has become major and he has demanded either Rs. 60,000/- or the land from him otherwise either he will kill Krishna Bihari or Parasuram. After filing the suit, in the presence of this witness in Bhinga court Krishna Bihari had threatened Parasuram that he could not pay Rs. 60,000/- to Suresh. Now Suresh has become major and he has demanded either Rs. 60,000/- or the land from him otherwise either he will kill Krishna Bihari or Parasuram. Therefore, this case has been filed by him. When Parasuram demanded his Rs. 60,000/- from Krishna Bihari then Krishna Bihari threatened him that if you demand the said money then either he will kill him or he will get him killed. Parasuram insisted to refund his money. So for the purpose of misappropriating the said money Krishna Bihari hatched the conspiracy for the murder of Parasuram. The sole evidence to connect Krishna Bihari with this offence in this evidence. There is absolutely no documentary evidence as to wherefrom Rs. 60,000/- were withdrawn by the deceased whether it was withdrawn from any bank by Parasuram or from any other source Parasuram managed this amount, has not been disclosed in the entire evidence. Apart from it, PW-5 Ramesh Chandra Mishra was present when the compromise took place and also in the court at the time of alleged threatening by Krishna Bihari, while he is resident of a different village namely Pachpakdi. This witness was not able to tell the age of Suresh at the time when the money was paid. He could not tell as to how many days prior to the incident Rs. 60,000/- was paid to Krishna Bihari. He could not say whether this time gap was two months, four months, six months or even one year prior to this incident. This evidence by no stretch of imagination can be said to be sufficient because according to the evidence of this witness Suresh was also having grudge against Krishna Bihari his brother who has taken Rs. 60,000/- on behalf of Suresh and has not paid the same to him. Apart from it, deceased was a Lekhpal. Evidence shows that he had accumulated huge property. Rs. 60,000/- in cash were paid by him. Source wherefrom he got it has not been disclosed. This aspect makes the defence theory probable that he had several enemies as he had accumulated this wealth by misusing his post. Apart from it, there is absolutely no evidence that appellant Krishna Bihari was seen with any other appellant hatching the conspiracy. Rs. 60,000/- in cash were paid by him. Source wherefrom he got it has not been disclosed. This aspect makes the defence theory probable that he had several enemies as he had accumulated this wealth by misusing his post. Apart from it, there is absolutely no evidence that appellant Krishna Bihari was seen with any other appellant hatching the conspiracy. There appears to be no reason for Suresh for hatching conspiracy with Krishna Bihari because Krishna Bihari was the person who had misappropriated his share. These aspect of the matter were not properly considered by the learned trial court which has rendered its judgment unsustainable under law. We find that the evidence of the prosecution witnesses was not wholly reliable and the appellants deserve to be granted the benefit of doubt. 31. Accordingly these criminal appeals i.e. Criminal Appeal No.927 of 2011 preferred by the appellants-Lalau @ Rakesh and Suresh @ Sunil Dutt Tripathi and Criminal Appeal No.918 of 2011 preferred by appellant Krishna Bihari deserve to be allowed and are hereby allowed. All the appellants Lalau @ Rakesh and Suresh @ Sunil Dutt Tripathi and Krishna Bihari are acquitted of all the charges levelled against them. 32. In Criminal Appeal No.927 of 2011 preferred by the appellants-Lalau @ Rakesh and Suresh @ Sunil Dutt Tripathi are presently detained in custody. They shall be released forthwith, if not, wanted in any other case. 33. In Criminal Appeal No.918 of 2011 appellant Krishna Bihari is on bail. His bail is cancelled and sureties are discharged. He need not to surrender. 34. Office is directed to communicate this order forthwith to the court concerned and to send back the lower court record to ensure compliance. Appeal allowed.