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2016 DIGILAW 2749 (ALL)

Satnam v. State of U. P.

2016-08-09

ANIL KUMAR SRIVASTAVA-II, SURENDRA VIKRAM SINGH RATHORE

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JUDGMENT Anil Kumar Srivastava – II, J. – Heard Shri Anand Swaroop Chaudhary, learned counsel for the appellant and Ms. Ruhi Siddiqui, learned A.G.A. for the State. 2. Instant appeal has been preferred by accused appellant Satnam against the judgment and order dated 10.3.1988 passed by learned IIIrd Additional Sessions Judge Raebareli, S.T. No.158 of 1987, State v. Satnam and others, Case Crime No.39 of 1985, under section 147, 148, 149, 307, 302, 380 and 120 B IPC, Police Station – Shivratanganj, District - Raebareli whereby learned trial court has acquitted the accused Ram Shankar and Madhuri Devi for the charge under section 120 B IPC. Accused Satnam was convicted under section 302 IPC and sentenced to imprisonment for life. 3. According to the prosecution version complainant Shiv Sagar is the brother of the deceased Bhagauti Prasad Awasthi. First Information Report was lodged on 15.4.1985 at 08.45 AM stating that in the intervening night of 14/15.4.1985 complainant was sleeping in his house. Deceased Bhagauti Prasad was sleeping with his family members in his house. There was light of lantern in the house of complainant as well as Bhagauti Prasad. At about 12.00 O’ Clock or 01.00 AM in the night 12 to 14 miscreants armed with rifle, countrymade pistol, lathi, axe entered into the house of Bhagauti Prasad through the roof and opened the eastern window. They started beating Bhagauti Prasad. On hearing the shrieks complainant awakened and tried to come out of his house but the door was closed from outside. On raising the alarm neighbours came with lathi danda. Complainant was seeing the incident from the partition wall. Miscreants attacked Bhagauti then he ran away towards southern Kothari then they started beating his mother and daughter. They snatched the stud of his mother. When mother and daughter of Bhagauti cried then he came out of the Kothari. One miscreant fired upon Bhagauti. He fell down. Then miscreants ran away from the house after looting the articles mentioned in the first information report. Matapher put the grass to fire. There was sufficient light. Miscreants were seen in the light of lantern, torch and fire light. They can be recognised. Some of them have been seen near market. Their faces appear to be familiar. They were wearing pant, shirt, dhoti, underwear. Wife of Bhagauti had gone to her parental house. Matapher put the grass to fire. There was sufficient light. Miscreants were seen in the light of lantern, torch and fire light. They can be recognised. Some of them have been seen near market. Their faces appear to be familiar. They were wearing pant, shirt, dhoti, underwear. Wife of Bhagauti had gone to her parental house. Complainant has further mentioned that Bhagauti has suffered lot of injuries. A suspicion was raised on Mani Ram Bahmin of village Jaitpur as some altercation took place about 20 to 25 days back on the issue of imli garden. Then Mani Ram had threatened Bhagauti. 4. First information report was registered at case crime no.39 of 1985, under section 395, 397 IPC. Investigation started. Injured Bhagauti Prasad was medically examined on 15.4.1985 at PHC Singhpur at 10.25 AM by Dr. S.B. Singh. Thereafter, injured succumbed due to his injuries on the same day, i.e., 15.4.1985 at 11.40 AM in the hospital. Investigating Officer S.I. Hriday Narain Pandey recorded the statement of witnesses Krishna Kumari, Kumari Asha, Matapher Awasthi and prepared the site plan. On receiving information of death of Bhagauti, he reached the District hospital where inquest proceedings were conducted and body was sent for postmortem. Statement of other witnesses were also recorded. One letter allegedly written by accused Satnam was handed over by Matapher. Accused was arrested. Blood stained and plain earth was recovered on the place of occurrence. Axe, blouse of Kumari Asha, angauchcha of accused were recovered and memo was prepared. Postmortem of the dead body of the deceased Bhagauti was conducted by Dr. J.P. Gupta on 16.4.1985 at 03.40 PM. After conclusion of the investigation charge sheet was submitted against the accused Satnam, Ram Shankar and Smt. Madhuri wife of Ram Shankar Awasthi. 5. Accused Ram Shankar and Madhuri were charged under section 120 B while accused Satnam was charged under section 302, 307 and 380 IPC. Accused denied the charges and claimed trial. 6. In order to prove its case prosecution has produced PW-1 Smt. Rajjan Kunwar wife of the deceased, PW-2 Asha Devi, daughter of the deceased PW-3 Matapher Awasthi who was declared hostile PW-4 constable Gayadeen. Accused denied the charges and claimed trial. 6. In order to prove its case prosecution has produced PW-1 Smt. Rajjan Kunwar wife of the deceased, PW-2 Asha Devi, daughter of the deceased PW-3 Matapher Awasthi who was declared hostile PW-4 constable Gayadeen. PW-5 Dr S.B. Singh who had conducted the medico-legal examination of Bhagauti Prasad on 15.4.1985 at 10.25 AM and found 26 injuries on his body out of which four were contusions, one linear abrasion, one lacerated wound and rest were penetrating wounds. According to Dr. Singh these injuries could have been caused during the midnight of 15.4.1985. Out of the injuries, injury no.1 to 5 could have been caused by some blunt object, injury no.6 could have been caused by pointed weapon, injury no.7 to 26 can be caused by pointed sharp edged weapon. 7. Postmortem of the dead body of the deceased was conducted by PW-7 Dr. J.P. Gupta on 16.4.1985 at 03.40 PM who found following ante mortem injuries on the body of the deceased. (i) Lacerated wound 2 cm x 0.2 cm muscle deep in the middle region of scalp. (ii) Contusion 10 cm x 2 cm on right lumber region of back. (iii) Contusion 11 cm x 2 cm on right scapular region. (iv) Contusion 10 cm x 2 cm over left scapular region. (v) Contusion 9 cm x 2 cm on left shoulder. (vi) An abrasion 10 cm x 0.1 cm on right side of chest. (vii) Penetrating wound 4 cm x 0.8 x 2.5 cm on left side of neck 3 cm below left ear. (viii) Penetrating wound 3 cm x 0.8 cm chest cavity deep on left part of upper region of abdomen. 17 cm below left stranum clevical joint. Proling not done. (ix) Penetrating wound 2.2 cm x 0.7 x abdomen cavity deep on right hypo region of abdomen 13 cm below from right nipple. (x) Penetrating wound 2.7 cm x 1 cm x abdomen cavity deep 7 cm away from injury no.9. (xi) Penetrating wound 3.0 cm x 0.8 cm x over vertebral column 12 cm below the seventh cervical vertibra. (xii) Penetrating wound 2 cm x 0.5 cm x 3 cm on the back of left shoulder. (xiii) Penetrating wound 2 cm x 0.5 cm x 3 cm on lower part of left scapular region. (xi) Penetrating wound 3.0 cm x 0.8 cm x over vertebral column 12 cm below the seventh cervical vertibra. (xii) Penetrating wound 2 cm x 0.5 cm x 3 cm on the back of left shoulder. (xiii) Penetrating wound 2 cm x 0.5 cm x 3 cm on lower part of left scapular region. (xiv) Penetrating wound 1.5 cm x 0.5 cm x 2 cm on the left side of chest 5 cm below the left posterior corollary fold of chest. (xv) Penetrating wound 2 cm x 0.5 cm x chest cavity deep below 3 cm from injury no. 14. (xvi) Penetrating wound 1.8 cm x 0.3 cm x chest cavity deep, 1 cm away from injury no. 15. (xvii) Penetrating wound 5 cm x 0.5 cm x abdomen cavity deep on the lower left lumber region of back. (xviii) Penetrating wound 1.5 cm x 0.5 cm x 2 cm on the lower part of left side of back. (xix) Penetrating wound 3 cm x 1 cm x abdomen cavity deep on its middle of left lumber region of back. (xx) Penetrating wound 3 cm x 0.5 cm x 3.5 cm on the middle lower side of vertibral column region. (xxi) Penetrating wound 2 cm x 0.3 x 3 cm on the lower side of vertibral region. (xxii) Penetrating wound 3 cm x 0.5 cm x 3 cm on the third vertibral column at level of lower scapular angle. (xxiii) Penetrating wound 2.5 cm x 1 cm x thoracic cavity deep on the right surface of chest 7 cm below from right posterior axillary fold. (xxiv) Penetrating wound 2.2 cm x 1 cm x thoracic cavity deep on the right surface of chest 9.5 cm below from posterior axillary fold. (xv) Penetrating wound 2.5 cm x 0.5 cm x 2.5 cm on the right lumber region of the back. (xvi) Penetrating wound 0.7 cm x 0.2 cm x 2 cm on left scapular region. 8. According to Dr. Gupta these injuries were sufficient to death of the deceased. 9. In the statement under section 313 CrPC accused Satnam has denied the allegations and stated that he had sown one bigha sugarcane on half-half basis in the field of Bhagauti but he has not given anything to accused. His village is 50 steps from the house of the deceased. Gupta these injuries were sufficient to death of the deceased. 9. In the statement under section 313 CrPC accused Satnam has denied the allegations and stated that he had sown one bigha sugarcane on half-half basis in the field of Bhagauti but he has not given anything to accused. His village is 50 steps from the house of the deceased. Accused Ram Shankar has stated that deceased has enmity with him over agricultural land. Deceased was killed in a dacoity. Accused Madhuri has stated that at the time of occurrence she along with her sister Rajjan Kunwar was in her parental house. 10. After appreciating the evidence on record, learned trial court has arrived at the conclusion that prosecution has failed to prove the charge against the Ram Shankar and Madhuri and accordingly acquitted them but learned trial court found the charge proved against the accused appellant Satnam. Accordingly accused appellant Satnam was convicted and sentenced by the learned trial court. 11. Learned counsel for the accused has submitted that the first information report was lodged against unknown persons regarding dacoity committed in the house of the deceased. No-one is named in the first information report, rather a suspicion was raised against one Mani Ram Brahmin who was not even interrogated by the investigating officer. 12. It is further submitted that if the accused was known to the complainant or the witnesses then why he was not named in the first information report which was lodged after a gap of about eight or nine hours whereas the distance of the police station was only six kilometers. 13. According to the prosecution accused appellant was a halwaha of accused Ram Shankar. Ram Shankar is husband of the accused Madhuri. Madhuri is sister of Rajjan Kunwar wife of the deceased. Hence, accused appellant was well known to the complainant and the witnesses but he was not named in the first information report. PW-1 Rajjan Kunwar was at her parental house, hence, she has not seen the incident. Statement of PW-2 Asha Devi who is the daughter of deceased is also not fully reliable and trustworthy. It is further submitted that the complainant as well as mother of the deceased, who were beaten by the miscreants, have not been produced. Alleged dying declaration is also neither admissible nor reliable. Even the alleged dying declaration could not be believed. 14. It is further submitted that the complainant as well as mother of the deceased, who were beaten by the miscreants, have not been produced. Alleged dying declaration is also neither admissible nor reliable. Even the alleged dying declaration could not be believed. 14. It is further submitted that accused appellant is residing at a distance of only 50 steps from the house of the complainant and deceased but he has made no attempt to hide his identity. No effort was made to conceal the identity by covering the face which is a very abnormal conduct. 15. It is further submitted that a case has been set up by the prosecution that deceased slapped the accused in a Panchayat wherein issue of illicit relations of accused with Madhuri was discussed but no witness of any panchayat is produced. No evidence is led by prosecution to prove that the accused was having illicit relationships with Madhuri wherein deceased had slapped the accused in panchayat. It is further submitted that according to the prosecution version shot was fired by one of the miscreants but neither any gun shot injury was found on the body of the deceased nor any pellets etc were recovered from the place of occurrence. 16. Per contra, learned AGA submits that it is a case of direct evidence wherein PW 2 Asha Devi daughter of the deceased has specifically stated the name of the accused appellant who has caused fatal injuries to the deceased resulting his death. It is further submitted that accused was having a definite motive to commit the crime as he was slapped by the deceased in panchayat. It is further submitted that there was sufficient light at the time of occurrence to identify the accused. It was not necessary for him to cover his face to conceal his identity. First information report was promptly lodged. It might have happened that at the time of lodging report complainant may not have asked the witnesses PW-2 Asha Devi about the name of the accused. 17. According to the postmortem report as many as 26 injuries ranging from contusion to punctured wounds were found on the body of the deceased. It is also proved by the evidence of Dr. Gupta that the injuries could have been caused during the midnight of 14/15.4.1985. 17. According to the postmortem report as many as 26 injuries ranging from contusion to punctured wounds were found on the body of the deceased. It is also proved by the evidence of Dr. Gupta that the injuries could have been caused during the midnight of 14/15.4.1985. It shows that deceased died due to the injuries suffered by him during the night of 14/15.4.1985. All the injuries could have been caused by hard and blunt object as well as pointed sharp edged weapon. 18. Now it is to be seen as to whether accused appellant could be convicted for the charge levelled against him ? At the very outset it is relevant to mention that learned trial court has recorded a finding of acquittal of accused Ram Shankar and Madhuri. Order of acquittal is not challenged by the State. First information report was lodged by the Shiv Sagar who is brother of the deceased. Specific allegation is made that dacoity was committed in the house of the deceased. 12 to 14 unknown persons came there and attacked the deceased. Nobody is named in the first information report. At this stage, evidence of PW-1 Rajjan Kunwar gains importance wherein she has stated that on the date of incident she was at her parental house along with Madhuri Devi. Accused was doing the job of halwaha with Ram Shankar husband of the Madhuri. It means that PW-1 Rajjan Kunwar was not present at the place of occurrence and she has not seen the incident. 19. Now, we have to examine the statement of the sole witness PW-2 Asha Devi as PW-3 Matapher Awasthi has turned hostile who has stated that he has not seen the occurrence. PW-2 Asha Devi is the daughter of the deceased. She has stated that 10 to 12 persons armed with countrymade pistol knife, ballam jumped in her 'aangan' and started beating her father. Bhagauti Prasad ran into the southern 'Kothari' then one miscreant said that his daughter be caught then her father came with an axe and attacked the miscreants. One miscreant fired upon her father by countrymade pistol. Her father fell down then she ran away. There was light of lantern. Matapher put bundle of grass to fire. There was light and she identified the accused appellant Satnam. But the statement of this witness does not inspire confidence. One miscreant fired upon her father by countrymade pistol. Her father fell down then she ran away. There was light of lantern. Matapher put bundle of grass to fire. There was light and she identified the accused appellant Satnam. But the statement of this witness does not inspire confidence. She has specifically stated that a fire was shot at her father which hit him and he fell down. In the medico-legal examination as well as postmortem examination no injury of firearm was found on the body of the deceased. Even no pellets etc were recovered by the investigating officer from the place of occurrence. It is specifically stated in the cross examination that two to three pellets hit the deceased. It means that the theory of firearm is falsified by the medico legal evidence. 20. PW-2 Asha Devi has stated that she saw the accused appellant causing injuries to her father. What was the weapon used by the accused is not stated by the witnesses. At one place it is stated that accused was causing injuries by kanta ballam. Accused did not make any effort to conceal his identity. His face was open. We found force in the submission of the learned counsel for the appellant that a person who is known to the deceased as well as witnesses will not commit dacoity without taking any precaution to conceal his identity. A Division Bench of this court in criminal appeal no. 1242 of 1978 decided on 11.7.1988 Gopi and others v. State of U.P. in para 5 has observed that : - “5. Even otherwise also it is highly improbable that when out of 10 or 12 dacoits some were putting on 'dhatas', those who were already known to the witnesses would have not put on 'Dhatas' and would have kept their faces open while those who were not already known to the witnesses, would have put on dhatas. The natural conduct is that the people do not commit dacoity in neighbouring houses or at known places. They take precaution to conceal their identity. The natural conduct is that the people do not commit dacoity in neighbouring houses or at known places. They take precaution to conceal their identity. Of course there is no law to that effect but it generally so happens and there may be exception like cases in which the offence is committed by hardened criminals or by a person who is so much inimically disposed against the victim as to lose all sense to his own safety while committing the offence .......” 21. Reference on this point may also be made on the pronouncement of Hon'ble Apex Court in Ram Shankar Singh in AIR 1956 Supreme Court 441 as well as Nawab Singh and others v. State of UP. Although it is true that merely on this ground that the person has not made any effort to conceal his identity alone could not be the sole ground for disbelieving the prosecution version but at the same time in the present case the statement of only PW 2 Asha Devi, who is the daughter of the deceased, is on record which does not finds support from medical evidence. Although it is true that conviction can be recorded on the basis of sole evidence of an eyewitness but the same must be trustworthy and credible. It is mentioned in the first information report that mother of the deceased as well as PW-2 Asha Devi were also beaten by the miscreants but PW-2 Asha Devi has nowhere stated that any injuries were caused to her. She was not medically examined. She has stated that her statement was not recorded by the investigating officer. PW-2 Asha Devi has stated that when her father came out of the southern Kothari then she ran away in the hata. Place, from where she witnessed the occurrence, is not shown in the site plan. PW-6 S.I. H.N. Pandey has stated that he has not shown the place in the site plan where lantern was kept. Investigating Officer has not shown the place from where Asha Devi had seen the occurrence. Presence of PW-2 Asha Devi at the scene of occurrence also becomes doubtful from her own statement wherein she has stated that she has seen accused Satnam running from her house. A danda was in his hand while she has stated that Satnam caused the injuries to deceased by kanta and ballam. Presence of PW-2 Asha Devi at the scene of occurrence also becomes doubtful from her own statement wherein she has stated that she has seen accused Satnam running from her house. A danda was in his hand while she has stated that Satnam caused the injuries to deceased by kanta and ballam. He has inflicted eight to nine injuries upon the deceased. This statement itself is contradictory to her own statement. Hence, we are of the considered view that the statement of PW-2 Asha Devi is not fully reliable. 22. PW-1 Rajjan Kunwar is not an eyewitness. Rather she has stated that she came to the hospital in the morning at about 7 to 8 AM on getting the information of the incident. Her daughter told her that Satnam and his companions have caused injuries to her father. When this witness asked her husband, i.e., Bhagauti as to whether Satnam has attacked him he said yes by giving an indication by his neck. He was not in a position to speak. On the basis of this statement it is submitted that it is a dying declaration. Learned counsel for the accused appellant argued that it is neither a dying declaration nor any statement admissible in the evidence. 23. Dying declaration of a person is admissible under section 32 of the Evidence Act. 24. It has been held by the Apex Court in State (Government of NCT of Delhi) v. Nitin Gunwant Shah, (2016) 1 SCC 472 : - “16. On a bare perusal of Section 32(1) of the Evidence Act, it is clear that the statement as to death must be made by the person himself and if any discrepancy arises, the same cannot be relied upon. This Court in Atbir v. Govt (2010) 9 SCC 1 (NCT of Delhi)has summarised the principles laid down earlier, as under : (SCC pp. 8-0, para 22) “(i) Dying declaration can be the sole basis of conviction if it inspires the full confidence of the court. (ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination. (iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration. (ii) The court should be satisfied that the deceased was in a fit state of mind at the time of making the statement and that it was not the result of tutoring, prompting or imagination. (iii) Where the court is satisfied that the declaration is true and voluntary, it can base its conviction without any further corroboration. (iv) It cannot be laid down as absolute rule of law that the dying declaration cannot form the sole basis of conviction is merely a rule of prudence. (v) Where the dying declaration is suspicious, it should not be acted upon without corroborative evidence. (vi) A dying declaration which suffers from infirmity such as the deceased was unconscious and could never make any statement cannot form the basis of conviction. (vii) Merely because a dying declaration does not contain all the details as to the occurrence, it is not to be rejected. (viii) Even if it is a brief statement, it is not to be discarded. (ix)When the eyewitness affirms that the deceased was not in a fit and conscious state to make the dying declaration, medical opinion cannot prevail. (x) If after careful scrutiny, the court is satisfied that it is true and free from any effort to induce the deceased to make a false statement and if it is coherent and consistent, there shall be no legal impediment to make it the basis of conviction, even if there is no corroboration.” 25. Statement of PW-1 Rajjan Kunwar is hearsay statement on the basis of information given to her by Kumari Asha Devi. Asha Devi told her that Satnam and other persons have caused injuries to Bhagauti Prasad then Rajjan Kunwar asked her husband as to whether Satnam has caused injuries to him then he said yes by nodding his head. According to medico legal examination report which was conducted at 10.00 AM, Bhagauti Prasad has suffered 26 injuries. He was admitted in the hospital. No certificate of the Doctor was obtained as to whether injured was in a position to speak or was conscious ? What was his general condition ? 26. Even in the statement of Dr. S.B. Singh PW-5 prosecution has not brought on record the general condition of Bhagauti Prasad at the time when he nod his head to agree with the suggestion of his wife Rajjan Kunwar that Satnam has caused injuries to him. What was his general condition ? 26. Even in the statement of Dr. S.B. Singh PW-5 prosecution has not brought on record the general condition of Bhagauti Prasad at the time when he nod his head to agree with the suggestion of his wife Rajjan Kunwar that Satnam has caused injuries to him. PW-1 Rajjan Kunwar has admitted that when she met her husband and asked as to whether Satnam has attacked him, he nod his head. He was not in a position to speak. There is no supporting evidence to show that any such query was made by PW-1 Rajjan Kunwar to her husband wherein he replied by nodding his head in affirmative. It is true that dying declaration could be made in any form but when it is doubtful as to whether any question was made to the deceased who answered the same not by speaking in word but by his body language then such type of statement becomes very doubtful. It is a weak piece of evidence which requires the corroboration from other evidence. No such evidence is produced. Rajjan Kunwar has based her knowledge on the basis of information given to her by Asha Devi. Evidence of Asha Devi herself is not worth reliance. In such a situation it cannot be accepted that any reply given by the deceased through his body language, i.e., nodding the head in affirmative can help the prosecution. 27. Large number of people came at the spot at the time of incident. None of them is produced in evidence. Accused Satnam is halwaha of Ram Shankar. Accused is residing about 50 steps from the house of her sister Madhuri. Accused Satnam came in the house of deceased without making any effort to conceal his identity. His name was not mentioned in the first information report. Perusal of the first information report shows that it was written by the scribe with a cool mind. It is a two page handwritten report wherein all the details are written. First information report was lodged after about 8 to 9 hours of incident. Scribe and complainant Shiv Sagar is the brother of the deceased who has also stated that he had seen the assailants. Asha Devi is the daughter of the deceased. Complainant is residing in the same house with a partition wall. First information report was lodged after about 8 to 9 hours of incident. Scribe and complainant Shiv Sagar is the brother of the deceased who has also stated that he had seen the assailants. Asha Devi is the daughter of the deceased. Complainant is residing in the same house with a partition wall. When accused Satnam was a halwaha of Ram Shankar then he was well known to the complainant as well as Asha Devi. No reason is shown as to why name of Satnam was not mentioned in the first information report which shows that the accused appellant was not involved in the incident. His name was brought into light later on with due consultation. 28. A theory has been set up by the prosecution that accused have developed illicit relations with Madhuri. A panchayat was held wherein deceased slapped accused Satnam. He was also ousted from the halwaha of Madhuri. He was also ousted from ploughing the field on 50-50 basis. PW-3 Matapher was declared hostile but in the cross-examination he has stated that there were rumors of illicit relationship of Satnam and Madhuri Devi in the village. In the panchayat Bhagauti deceased had slapped Satnam. For the last two months before the date of occurrence Satnam was doing some job at Lucknow. It means that panchayat was held about more than two months back from the date of incident. But this motive itself could not be the sole basis for holding accused guilty. Even if such panchayat was held then it was held about two months back from the date of incident. For two months accused kept mum and all of sudden attacked the deceased which is not believable. It is settled legal position that howsoever strong may be the motive it cannot take the place of proof. There can be a very strong motive for commission of the crime but commission of the crime should be proved by independent trustworthy, reliable evidence. 29. A finger of doubt was raised upon Mani Ram Bahmin in the first information report but the investigating officer has not made any attempt as to whether Mani Ram was involved in crime or not. Such lapse on the part of the investigating officer will definitely favour accused. 30. Complainant Shiv Sagar was not produced in evidence who was also an eyewitness. Such lapse on the part of the investigating officer will definitely favour accused. 30. Complainant Shiv Sagar was not produced in evidence who was also an eyewitness. According to the prosecution mother of the deceased also received injuries but she was also not produced. Although, it is settled legal position that quality and not the quantity of the witnesses is necessary to prove the prosecution version but at the same time if the evidence of the sole witness is doubtful then definitely other injured or eyewitnesses have to be produced before the court. It is stated that the complainant became unsound mind during the trial but no such evidence has been brought on record to show that the complainant is of unsound mind. No explanation is given as to why mother of the deceased is not produced. Non-production of these witnesses also adversely effects the prosecution version. 31. We are of the considered view that prosecution has miserably failed to prove its case against the accused appellant beyond reasonable doubt. Learned trial court has wrongly appreciated the evidence. Consequently, we are of the view that appeal deserves to be allowed and is accordingly allowed. Judgment of the learned trial court is set aside. Accused is on bail. His bail is cancelled and sureties are discharged. He need not surrender. 32. Office is directed to certify this order to the learned trial court to ensure compliance. Office is further directed to transmit the lower court record forthwith. Appeal allowed.