JUDGMENT Hon’ble Bharat Bhushan, J.—Surviving appellants Ram Vishal Singh and Raj Bahadur Singh have been convicted under Sections 148, 304 and 149 of Indian Penal Code (In short I.P.C.) and sentenced to undergo life imprisonment under Section 304 read with Section 149 I.P.C. and rigorous imprisonment of one year under Section 148 I.P.C. vide judgment and order dated 18.3.1983 passed by VIIIth Additional Sessions Judge, Kanpur in Sessions Trial No. 222 of 1981 (State v. Ram Autar and others) arising out of Crime No. 46 of 1980 P.S. Musa Nagar, District Kanpur. 2. Appellant No. 1 Ram Autar Singh has died, therefore, his appeal stand abated in view of the order dated 19.5.2016 of this Court. 3. Prosecution story in brief is that one revenue case was pending between Munna Singh and Mukta Singh in the Tehsil Ghatampur. Deceased Harnam Singh was the Pairokar of Munna Singh while appellants Raj Bahadur Singh, Ram Vishal Singh and late appellant Ram Autar Singh were supporting Mukta Singh. Deceased Harnam Singh had also quarreled with appellants regarding some water dispute, one year prior to the incident. On day of occurrence i.e. on 28.3.1980 at about 5 p.m.. informant Nathu Singh (P.W.2), Subedar Singh (P.W. 1), Munna Singh (P.W. 3) Shiv Baran Singh (P.W. 4), Jagat Prasad (P.W. 5) and Shyam Singh (P.W. 6) were coming back from Tehsil Ghatampur towards their own village. As soon as they reached village Vallahan, (near an agricultural farm of one Jawaharlal) they were accosted by appellants Raj Bahadur, Ram Vishal, late appellant Ram Autar, Shiv Baran, Vishwanath, Surendra Singh, Madan Pal Singh, Suresh Singh and Jaipal Singh. They were armed with various weapons. Appellants Ram Vishal, Raj Bahadur and late Ram Autar were holding Farsa (spade) and remaining persons were wielding lathies. Appellant Raj Bahadur forcibly put down deceased Harnam Singh on the ground. Appellants Ram Vishal Singh and late Ram Autar Singh started beating deceased Harnam Singh with Farsa (spade) on the instigation of appellant Raj Bahadur Singh. Remaining persons used lathi in assaulting deceased Harnam Singh. Injured Jagat Prasad also received lathies blow. Informant and his companions raised alarm whereupon accused persons fled away from the spot. In this assault deceased Harnam Singh and injured Jagat Prasad sustained injuries. Deceased Harnam Singh was taken to the Police Station on bullock cart where informant Nathu Singh, P.W. 2 dictated First Information Report (F.I.R.) Ext. Injured Jagat Prasad also received lathies blow. Informant and his companions raised alarm whereupon accused persons fled away from the spot. In this assault deceased Harnam Singh and injured Jagat Prasad sustained injuries. Deceased Harnam Singh was taken to the Police Station on bullock cart where informant Nathu Singh, P.W. 2 dictated First Information Report (F.I.R.) Ext. Ka-2 to scribe Munna Singh which was then lodged at 12:30 in the night. 4. It is stated that the report was transcribed by Munna Singh out side the Police Station and thereafter it was submitted to Police personnel. Deceased Harnam Singh succumbed to injuries after two days. Autopsy was conducted. The Sub-Inspector started investigation. Samples of blood stained earth and simple earth were taken. Site plan was prepared. A charge-sheet was submitted against the accused. 5. Trial Judge charged accused persons, namely, Raj Bahadur, Ram Vishal and late Ram Autar under Sections 148, 304 read with Section 149 I.P.C. vide order dated 3.11.1982. Similarly, remaining six accused were also charged under Sections 147, 304 read with Section 149 I.P.C. on the same day by VIIIth Additional Sessions Judge, Kanpur. Accused pleaded not guilty and claimed that they have been falsely implicated on account of previous enmity. The defence version is that deceased Harnam Singh was beaten to death by some unknown persons in the night and the accused persons have been falsely implicated in this case due to village rivalry. 6. Prosecution adduced the evidence of P.W. 1 Subedar Singh, P.W. 2 Nathu Singh, P.W. 3 Munna Singh, P.W. 4 Shiv Baran Singh, P.W. 5 Jagat Prasad, P.W. 6 Shyam Singh, P.W. 7. Advocate Harish Chandra Singh, P.W.8 Dr. R.B. Mishra, P.W. 9 D.S. Dixit (S.O.), P.W. 10 R.V. Verma, P.W. 11 Advocate Vijay Narain Singh and P.W.12 Advocate Sangram Singh. 7. Deceased Harnam Singh was initially examined by Dr. Vimal Bhattacharya who found following injuries on the person of deceased Harnam Singh: “(i) Abraded contused swelling 6 cm.x3.5 cm. at the inner side of left forearm at middle 1/3 part. 10 cm. below the elbow joint. Clot shoft over abrasion present. (ii) Incised wound 5 cm. x0.3 cm.x skin deep at the back of left hand. 4.0 cm. below the left wrist joint. Clotted blood present. (iii) Incised wound 5 cm. through x through from back to forward. Left little finger x ring finger is missing and ring finger hanging. 10 cm. below the elbow joint. Clot shoft over abrasion present. (ii) Incised wound 5 cm. x0.3 cm.x skin deep at the back of left hand. 4.0 cm. below the left wrist joint. Clotted blood present. (iii) Incised wound 5 cm. through x through from back to forward. Left little finger x ring finger is missing and ring finger hanging. (vi) Incised wound 2 cmx 0.5 cm. x muscle deep at the front of middle 1/3 of right leg. 22.0 cm below the right knee joint. Clotted blood present. (v) Incised wound 12.0 cm x 4 cm x bone deep at the out side of left ankle joint. Clotted blood present.” 8. The same Doctor found following injury on the person of Jagat Prasad: “1. Contusion 4.0 cm.x 1.0 cm. at the right side of back 1.0 cm right to mid line and 10.0 cm. above the right iliac crest reddish.” 9. Injured Harnam Singh was sent to hospital where he died on 31.3.1980 at about 3:15 p.m.. Post-mortem was conducted by Dr. R.B. Mishra (P.W. 8) who found following ante-mortem injuries on his corpse: “(i) Contusion 10 cm. x 4 cm. on a temporal region of head. (ii) Abraded contusion 12 cm.x 1.5 cm. on back of left forearm. (iii) Abraded contusion 14 cm.x 4 cm. on back of left foreard. (iv) Stitched wound 5 cm. long with 6 stitches with amputation of left finger. Left right finger also amputated but stitched. (v) Stitched wound 5 cm. long with two stitches on front and middle of right leg with fracture of underlying bone. (vi) Abraded contusion 9 cm. x5 cm. on outer side of right leg. (vii) Stitched wound 13 cm. long with 11 stitches on front and outer side of right ankle joint. (viii) Contusion 9 cm. x 4 cm. on front of middle of left leg. (ix) Abraded contusion 13 cm. x 1.5 cm on back of left side below clavicle region. (x) Abraded contusion 5 cm.x 3 cm. on the side of the left upper arm. (xi) Abraded contusion 5 cm. x 3 cm. on right linear of right ear. A) Clotted blood under the scalp in temporal region of head under injury No. 1 and clotted blood in temporal region in an area 6 cm.x 4 cm. B) There is long spinal fracture of right tibia. on the side of the left upper arm. (xi) Abraded contusion 5 cm. x 3 cm. on right linear of right ear. A) Clotted blood under the scalp in temporal region of head under injury No. 1 and clotted blood in temporal region in an area 6 cm.x 4 cm. B) There is long spinal fracture of right tibia. C) Cut injury of right ankle through and through and also the vessels in front of ankle joint cut. The death was due to shock and haemorrhage as a result of multiple injuries.” 10. The statements of accused persons were recorded under Section 313 Cr.P.C. wherein they denied all allegations. Incidentally accused appellants did not produce any oral evidence in defence, though they have filed an application given by one Mulayam Singh in a case of Mulayam Singh v. Bhagga Singh, pending in the Court of Nayeb Tehsildar village Ghatampur. The Sessions Judge, Kanpur on the conclusion of said sessions trial, found appellants Raj Bahadur, Ram Vishal and late Ram Autar guilty of offence under Sections 148, 304 read with Section 149 I.P.C. The other accused namely, Shiv Baran, Vishwanath, Surendra Singh, Madan Pal, Suresh Singh and Jaipal were given benefit of doubt and acquitted. The convicted appellants were sentenced as aforesaid vide judgment and order dated 18.3.1983 which is under challenge before this Court in the appeal. After the abatement of appeal of Ram Autar Singh on account of his death, this Court is concerned only with the appeal of surviving appellants Ram Vishal and Raj Bahadur. 11. Heard Sri Jai Ram Singh Tomar Advocate on behalf of both surviving appellants and Sri Sayed Ali Murtaza on behalf of State. 12. Learned counsel for appellant has submitted that all independent prosecution witnesses have not supported the prosecution version and they in fact have been declared hostile. Submission is that there remains the solitary testimony Nathu Singh which is full of contradiction. He has argued that despite absence of any reliable evidence, the trial Judge has convicted the appellants primarily on conjectures, surmises and speculations. Further submission is that deceased Harnam Singh did not sustain any injuries caused by sharp edged weapon. He submits that appellants were allegedly using sharp edged weapon Farsa (Spade) and yet the corpse of deceased did not show even a single injury of sharp edged weapon. 13. Further submission is that deceased Harnam Singh did not sustain any injuries caused by sharp edged weapon. He submits that appellants were allegedly using sharp edged weapon Farsa (Spade) and yet the corpse of deceased did not show even a single injury of sharp edged weapon. 13. On the other hand, learned A.G.A. has submitted that the responsibility of attack on deceased Harnam Singh lies on the shoulder of all accused and that; appellants can be held guilty of the same offence with the aid of Section 149 I.P.C. He claimed that large number of accused persons attacked the deceased. The accused persons, who were acquitted by the trial Judge were wielding the lathies and they used those lathies in the attack. He submits that surviving appellants can be and should be convicted with the aid of Section 149 I.P.C. 14. Before embarking to discuss the prosecution evidence in detail, it is pertinent to point out that as many as six witnesses of fact were produced by prosecution, out of which P.W.1 Subedar Singh, P.W. 3 Munna Singh, P.W. 4 Shiv Baran Singh and P.W. 5 Jagat Prasad (injured) did not support prosecution version at all. All of them have been declared hostile at the instance of prosecution itself. 15. P.W. 1 Subedar Singh has clearly stated that he went to the place of occurrence after receiving information of this attack. He has stated that he did not witness any person assaulting either deceased Harnam Singh or injured Jagat Prasad. He has completely disowned his statement allegedly given to the Investigating Officer during course of investigation. Similarly, P.W. 3 Munna Singh, P.W. 4 Shiv Baran Singh and P.W. 5 injured Jagat Prasad have not supported the prosecution story. All of them have disowned their statements allegedly given to the Investigating Officer during course of investigation. 16. Interestingly, the so called scribe of F.I.R. Munna Singh (P.W. 3) has not only denied his presence on the place of occurrence at the time of incident but also rejected the prosecution claim that F.I.R. was written by him on the dictation of P.W. 2 Nathu Singh. He has clearly asserted that the F.I.R. was not written by him nor was it signed by him. He has refused to support the claim of the prosecution that he went to police station alongwith informant etc. He has clearly asserted that the F.I.R. was not written by him nor was it signed by him. He has refused to support the claim of the prosecution that he went to police station alongwith informant etc. for lodging the F.I.R. Prosecution has claimed that this witness Munna Singh (P.W.3) had also executed the affidavit supporting prosecution version but he has also debunked this claim. The statement of one Jagat Prasad (injured) is vital but he too has denied the involvement of accused persons in the attack upon him and deceased Harnam Singh. This witness has stated that incident occurred at about 8 p.m.. in the night. He and deceased Harnam Singh was accosted by unknown persons. They were attacked by those unknown miscreants. This injured witness has clearly exonerated accused persons of any involvement in this attack. This witness has also denied that he had given any contrary statement to the Investigating Officer (I.O.) during investigation. 17. The testimony of P.W. 5 Jagat Prasad (injured) is very important. Both parties accept his presence on the place of occurrence. It is said by rival parties that deceased Harnam Singh was accompanied by P.W. 5 Jagat Prasad at the time of incident. Jagat Prasad also sustained injuries in the same attack. He was examined by the same doctor. Now this witness has totally denounced the prosecution story. He has shifted time of incident to 8 p.m.. while original prosecution story is that incident occurred at 5 p.m.. and the F.I.R. was lodged on the same night at about 12:30 p.m.. Distance between place of occurrence and Police Station is said to be 8 kilometers as per chick report (Ext. Ka-5). 18. Prosecution case is that deceased Harnam Singh was immediately taken to the Police Station. Injured Jagat Prasad also says that they went to the police station in the aftermath of the incident. The extract of G.D. (Ext Ka-6) does indicate that injured Jagat Prasad and deceased Harnam Singh reached the Police Station in the mid night by bullock cart. Now the question is if incident occurred at 5 p.m.. and deceased Harnam Singh was taken to the police station on bullock cart and yet it took 7 hours to traverse distance of 8 kilometers. Now the question is if incident occurred at 5 p.m.. and deceased Harnam Singh was taken to the police station on bullock cart and yet it took 7 hours to traverse distance of 8 kilometers. Informant Nathu Singh(P.W. 2) and Shyam Singh (P.W. 6) have claimed that they were present at the time of incident and yet their story has not been supported by several witnesses. Injured witness (P.W. 5) has completely denied the involvement of accused persons in the incident. Scribe informant Munna Singh has also denied writing and signing the F.I.R. The refusal of aforesaid witnesses to support prosecution story leaves only two witnesses, namely, P.W. 2 Nathu Singh and P.W. 6 Shyam Singh. Nathu Singh says that he had gone in connection of revenue dispute between Munna Singh and Mukta Singh yet he could not give the details of this case at all. In a very interesting turn of event, informant Nathu Singh said that they reached police station around 12 p.m.. and then he claims that the Incharge of the police station refused to register the F.I.R. and demanded written report. In his examination-in-chief these witnesses have claimed that F.I.R. (Ext. Ka-2) had been dictated and scribed while still on the road before reaching Police Station and thereafter it was lodged at police station with the signature of scribe Munna Singh. But later on during the cross-examination, he twisted this claim and said that he went to police station for oral F.I.R. which was refused by police personnel and thereafter he went out and got the report scribed and signed by P.W. 3 Munna Singh. Thereafter the report was lodged. 19. The claim of appellants is that the F.I.R. was registered in the morning but shown to have been recorded at 12:30 p.m.. Now this claim of defence gets support from the evidence of P.W. 2 Nathu Singh himself who says that he went to the Police Station in the night and slept there. He woke up in the morning and came back to his residence, while Pyarelal, Rajendra Singh and Nanku Singh took deceased Harnam Singh to Kanpur. Injured Jagat Prasad (P.W. 5) accompanied deceased Harnam Singh to Kanpur. Injured Jagat Prasad does not accept it. He has said that he left Harnam Singh at his residence. He woke up in the morning and came back to his residence, while Pyarelal, Rajendra Singh and Nanku Singh took deceased Harnam Singh to Kanpur. Injured Jagat Prasad (P.W. 5) accompanied deceased Harnam Singh to Kanpur. Injured Jagat Prasad does not accept it. He has said that he left Harnam Singh at his residence. This witness has asserted that Nathu Singh (P.W. 2), Munna Singh (P.W. 3) and Subedar Singh (P.W. 1) met him in the village and he narrated the entire story to them and then all of them took Harnam Singh to the Police Station. He further claimed that injuries were not noted by the constable clerk who registered the F.I.R. He has denied the presence of all other witnesses except himself on the place of occurrence. Interestingly, G.D. Ext. Ka-6 contains brief information about the injuries of deceased Harnam Singh and Jagat Prasad but they do not tally with the injuries found during the autopsy. 20. The testimony of Nathu Singh is full of contradictions and discrepancies. His story of sleeping soundly at police station is rather weird. He conceded at one place that F.I.R. was lodged at 7am. At one place he said that he met the Investigating Officer after four days of the incident and another place, said that he met the Investigating Officer after 5-6 days. He has conceded the fully grown wheat crop existed on the agriculture field of Jawahar Lal at the time of incident. Farmers were busy in cutting the crops. It is pertinent to point out that incident did not occur either in Tehsil Ghatampur or in the village of accused persons. The incident is said to have been occurred near the agriculture field of Jawahar Lal at village Vallaham. Admittedly, the farmers were busy in cutting the crops at the time of incident yet not a single witness of the vicinity has been produced by prosecution in support of his story. All witnesses belong to distant places whose presence has been denied by the sole injured witness, P.W. 5 Jagat Prasad. 21. The prosecution story is that deceased Harnam Singh was being accompanied not only by P.W. 2 Nathu Singh but also by several other persons and yet the same witness has admitted during cross-examination that he alone went with deceased Harnam Singh. 22. 21. The prosecution story is that deceased Harnam Singh was being accompanied not only by P.W. 2 Nathu Singh but also by several other persons and yet the same witness has admitted during cross-examination that he alone went with deceased Harnam Singh. 22. The description of the event by P.W. 2 Nathu Singh itself creates doubt about his presence on the spot. He said that deceased Harnam Singh was beaten for few minutes both by Farsa (spade) and lathies. First Harnam Singh was put down on the ground and then beaten by Farsa (spade) and lathies. Incidentally, P.W. 2 Nathu Singh escaped any injury despite claim of raising hue and cry. He has said that he tried to save his uncle Harnam Singh but surprisingly was not injured in this attack committed by as many as nine persons. Two medical examination reports of deceased Harnam Singh are available on record. Dr. Vimal Bhattacharya initially examined the injuries of deceased Harnam Singh and thereafter ante-mortem injuries were found in post-mortem report. Both reports do not tally. They are inconsistent with each other. It was the responsibility of prosecution to explain these inconsistencies especially in the light of fact that several witnesses including injured witness have not supported the prosecution version. 23. P.W. 2 Nathu Singh has admitted the previous enmity with the accused persons. His testimony has to be appraised with care. The testimony of P.W. 2 Nathu Singh is not credible at all and to rely solely upon him for conviction of appellant is risky. Similarly, the testimony of P.W. 6 Shyam Singh is neither natural nor consistent with the basic prosecution story. He has increased the number of assailants to more than 10-11. He could not describe separately the weapons wielded by each accused. He said that Raj Bahadur Singh grabbed deceased Harnam Singh, meaning thereby that Raj Bahadur Singh was not holding any weapon otherwise it would have been impossible for him to grab the deceased Harnam Singh by hands. Remaining persons were using weapons. P.W. 6 Shyam Singh has said that they all were standing frozen due to sheer fear. But the fact of the matter is that Shyam Singh(P.W. 6) has named only two assailants Raj Bahadur and Surendra Singh. He could not name a single other accused than these two. Surprisingly, this witness has not disclosed the presence of injured Jagat Prasad. P.W. 6 Shyam Singh has said that they all were standing frozen due to sheer fear. But the fact of the matter is that Shyam Singh(P.W. 6) has named only two assailants Raj Bahadur and Surendra Singh. He could not name a single other accused than these two. Surprisingly, this witness has not disclosed the presence of injured Jagat Prasad. Shyam Singh (P.W. 6) has asserted that accused persons did not attack any other person except deceased Harnam Singh. Now this claim is totally contrary to the basic prosecution story because F.I.R. itself says that both deceased Harnam Singh and injured Jagat Prasad were assaulted by miscreants. But P.W. 6 Shyam Singh clearly denies this story. He has claimed that after this incident he went to his house. On the other hand, G.D. (Ext. Ka-6) entry says that Shyam Singh (P.W.6) went to the Police Station. Interestingly, this witness has also admitted that he alongwith informant Nathu Singh (P.W. 2) started going towards their village even during the attack. He also admitted that he did not raise any alarm. He has also admitted that he did not try to rescue deceased Harnam Singh. He has denied that he went to the Police Station but prosecution story states that Shyam Singh went to the Police Station. 24. A perusal of prosecution evidence would reveal that out of six witnesses, four witnesses have not supported prosecution version. Two witnesses, namely, P.W. 2 Nathu Singh and P.W. 6 Shyam Singh have given evidence against the accused persons but their testimony is full of discrepancies and contrary to each other. Their conduct during and after the incident is not in accordance with normal human conduct. Their testimony reveals that their presence on the spot is highly doubtful. Presence of only one witness, namely, Jagat Prasad (P.W. 5) can be believed but he has completely denied the involvement of accused persons. Remaining witnesses are formal witnesses. The medical evidence is also inconsistence. Dr. Vimal Bhattacharya examined the deceased Harnam Singh and he found only five injuries on his person. While during course of autopsy, as many as, 11 injuries were found by Dr. R.B. Mishra (P.W. 8). The medical evidence is not inconsonance with the ocular testimony which indicates that so called eye-witnesses were perhaps not present on the spot and they have been manufactured in order to implicate the accused persons. 25. While during course of autopsy, as many as, 11 injuries were found by Dr. R.B. Mishra (P.W. 8). The medical evidence is not inconsonance with the ocular testimony which indicates that so called eye-witnesses were perhaps not present on the spot and they have been manufactured in order to implicate the accused persons. 25. The trial Judge has relied upon some affidavit allegedly executed by some witnesses. Those affidavits cannot be taken into consideration for convicting the accused persons. Some of the witnesses have in fact explained circumstances in which these affidavits were prepared. These affidavits were prepared by the counsel for complainant. Veracity and authenticity of these affidavits are very much in doubt. In any case these affidavits cannot substitute the evidence recorded in the Court. They can be used for the limited purpose during trial. They cannot be treated substantive evidence at all. The trial Judge believed the evidence with regard to appellants Ram Autar, Raj Bahadur and Ram Vishal and disbelieved the same evidence against other six persons. Interestingly, autopsy has shown no incised wound on the person of deceased. Dr. R.B. Mishra (P.W. 8) has indicated that deceased primarily died on account of injury No. 1 which was caused by blunt object. It is pertinent to point out all the surviving appellants were using Farsa (spade). Initial medical examination of deceased Harnam Singh by Dr. Vimal Bhattacharya disclosed at least four incised wounds. The inconsistency between two medical report is glaring and has not been explained by prosecution. 26. It is also important to note that Dr. Vimal Bhattacharya despite his availability was not produced during course of trial. He had merely gone to Bangalore for training. Had he been produced during trial, the inconsistency between two medical reports could have been explained. There are vital contradictions between the testimony of Investigating Officer D.S. Dixit (P.W. 9) and other witnesses. This witness has said that the report was lodged at about 12:30 hours in the night and he immediately started recording of statements of witnesses at 1:00 a.m.. in the night. He recorded the statement till 4 a.m.. in the same night but this claim does not find support from other witnesses. One witness has said that he never met Investigating Officer; another has said that he met Investigator after 5-6 days. in the night. He recorded the statement till 4 a.m.. in the same night but this claim does not find support from other witnesses. One witness has said that he never met Investigating Officer; another has said that he met Investigator after 5-6 days. He did not even investigate the files of revenue case said to be pending in Tehsil Ghatampur. He did not take the blood stained mattress (Gadda) in his possession. Surprisingly, he did not find any bicycle on the spot despite the statement of injured witness Jagat Prasad that he was traveling on bicycle. 27. We have carefully examined all material on record. Evidence produced by prosecution is not convincing at all. We believe that prosecution has failed to bring home the stated guilt of surviving appellants with trustworthy evidence. 28. In view of the aforesaid, the judgment and order dated 18.3.1983 passed by VIIIth Additional Sessions Judge, Kanpur in Sessions Trial No. 222 of 1981 (State v. Ram Autar and others) arising out of Crime No. 46 of 1980 P.S. Musa Nagar, District Kanpur, is hereby, set aside. The appeal is allowed. Both surviving appellants, namely, Ram Vishal Singh and Raj Bahadur Singh are acquitted. Their sureties are discharged. The appellants be released forthwith if they are in custody and not wanted in any other case. Let a copy of this order be certified to concerned Court through Sessions Judge, Kanpur within a fortnight for compliance. The Court concerned shall report the compliance within a month thereafter. ——————