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2016 DIGILAW 3268 (ALL)

INSPECTOR v. STATE OF U. P.

2016-09-23

ARVIND KUMAR MISHRA I, BALA KRISHNA NARAYANA

body2016
JUDGMENT : (Delivered by Hon'ble Bala Kirshna Narayana, J.) On 23.9.2016, we after hearing learned counsel for the parties, had made the following order: "Heard Sri Sangam Lal Kesharwani, leaned counsel for the appellant and Sri J. K. Upadhyay, Sri Hasan Abdi and Km. Meena, learned AGAs for the State and perused the record of this appeal. We will give reasons later but we make the operative order now. The appeal is allowed. Impugned judgment and order dated 22.12.2008 passed by Sessions Judge, Kannauj in Sessions Trial No. 299 of 2003 (State Vs. Inspector and others) arising out of Case Crime No. 274 of 2003 convicting the appellant under Sections 302 IPC, police station- Gursahaiganj, district- Kannauj is hereby set aside. The appellant is acquitted of all the charges framed against him. Appellant is in jail. He shall be released forthwith unless and until he is wanted in any other case after complying with the provisions of Section 437-A Cr.P.C. There shall be no order as to cost." These are the reasons upon which we set aside the impugned judgment and order: Heard Sri Sangam Lal Kesarwani, learned counsel for the appellants, Sri Sagir Ahmad, learned A. G. A. assisted by Mrs. Manju Thakur, Brief Holder appearing for the State of U. P. This criminal appeal has been preferred by the appellant Inspector against the judgment and order dated 22.12.2008 passed by the Sessions Judge, Kannauj in S. T. No. 299 of 2003; State Versus Inspector arising out of Case Crime No. 273 of 2003; under Sections-302/34 IPC, P. S.-Gursahaiganj, district-Kannauj by which the appellant has been convicted under Sections-302/34 IPC and sentenced to life imprisonment and a fine of Rs. 5000/- and in case of default of payment of fine, additional three months' R. I. The facts of this case as spelt out in the F. I. R. (Ext. 5000/- and in case of default of payment of fine, additional three months' R. I. The facts of this case as spelt out in the F. I. R. (Ext. Ka 1) lodged by P. W. 1 Sant Prakash, S/o Deen Dayal at 7.00 A. M. on 5.6.2003 at police station-Gursahaiganj, district-Kannauj on the basis of which Case Crime No. 273 of 2003 was registered against the appellant and two others namely, Jageshwar Singh, S/o Shiv Dayal, and Karan Singh, S/o Phool Singh, all residents of Mahona, P. S.-Gursahai Ganj, district- Kannauj and later testified by the prosecution witnesses of fact P. W. 1 Sant Prakash and P. W. 2 Ganga Prasad, are that the informant had set up a flour mill on the south western corner of the village. About twenty days before the incident an altercation had taken place between Jageshwar Singh and his brother deceased Phal Singh as the aforesaid Jageshwar Singh suspected that Phal Singh was having an illicit relationship with his daughter. On the date of incident a dust storm storm had hit the village at midnight which lasted for about two hours and had resulted in a large number of unripe mangoes falling from the mango trees and while the complainant and his brother Ganga Prasad were collecting mangoes, which had fallen on the ground at about 2.00 A. M. they heard a shriek of their brother coming from the side of the flour mill where he was sleeping on a thakat on which complainant and his brother ran towards the flour mill and on reaching there, they saw the appellant Inspector standing near their brother holding an axe in his hands, while the co-accused Karan Singh had gagged him by pressing his palms across his mouth and Jageshwar Singh was also standing there. Inspector assaulted his brother with the axe. On being challenged by the complainant and his brother, Ram Sanehi, S/o Girwar, residents of the same village also reached the place of incident, on which the appellant and the other accused ran towards south and when the complainant and his brother saw their brother closely, they found him wriggling in pain and blood oozing out from his face. Considering the serious condition of his brother, the informant did not chase the assailants. Considering the serious condition of his brother, the informant did not chase the assailants. In the meantime a huge crowd had gathered at the place of incident and while arrangements were being made to take Phal Singh to the hospital, he died on the spot. Leaving behind the dead body of the deceased at the place of incident, the complainant Sant Prakash went to the police station to lodge the F. I. R. of the occurrence. On the basis of the written complaint (Ext. Ka 1) given by the complainant P. W. 1, Sant Prakash at P. S.-Gursahaiganj, district-Kannauj, check F. I. R. Ext. Ka 3 was prepared and registered vide rapat No. 9, dated 5.6.2003 (Ext. Ka 4) at Case Crime No. 274 of 2003, under Section-302 IPC; State Versus Inspector and three others. Soon after the registration of the case investigation was entrusted to S. H. O. Dayanand Singh, who after copying the check F. I. R. in the case diary recorded the statement of P. W. 4 Dhawal Singh, who had prepared the check F. I. R. and proceeded to the place of occurrence along with the other members of his force and conducted the inquest of the dead body of the deceased and got the inquest report (Ext. Ka 5) prepared by H. C. P. Mohd. Hafiz under his supervision. He also prepared other related documents, letters addressed to C. M. O., chalan of the dead body, photograph of the dead body (Exts. Ka 6, Ka 7 and Ka 8 respectively) and dispatched the dead body of the deceased for conducting post mortem. He also inspected the crime scene and prepared the site plan (Ext. ka 9). He collected plain and blood stained earth (material Ext. Ka 1 and material Ext. Ka 2 respectively), blood stained and plain wood scraps extracted from the thakat (material Ext. Ka 3 and material Ext. Ka 4 respectively) and prepared recovery memo (Ext. Ka 10). He also recorded the statements of the witnesses Ganga Prasad, Ram Singh, witnesses of recovery and the inquest and H. C. P. Mohd. Hafiz. He arrested all the three accused on 7.6.2003 at 5.30 A. M. near Ramashram in front of P. C. O. where he had reached on the basis of the information given to him by the police informer, in the presence of witnesses Vimal Kumar and Chandra Prakash. Hafiz. He arrested all the three accused on 7.6.2003 at 5.30 A. M. near Ramashram in front of P. C. O. where he had reached on the basis of the information given to him by the police informer, in the presence of witnesses Vimal Kumar and Chandra Prakash. Co-accused Karan Singh at the time of his arrest, had a visible injury on his hand. The accused Inspector after his arrest disclosed that he had hidden the axe which was used in committing the murder of the deceased Fhal Singh in the drawing room of one Rajendra Singh and expressed his readiness to get the same recovered. A blood stained axe (material Ext. Ka 5) was recovered from the south west corner of the drawing room of Rajendra Singh in the presence of witnesses Vimal and Chandra Prakash by the accused Inspector. The blade of the axe was wrapped in a bundle of wool and sealed. The recovery memo of crime weapon (Ext. Ka 11) was prepared on the spot and signatures of the witnesses were obtained thereon. The investigating officer of the case prepared the site plan of the place from where the crime weapon was allegedly recovered (Ext. Ka 12). The accused Karan Singh was taken to the Primary Health Centre, Gursahaiganj for treatment of his injuries. The post mortem of the dead body of the deceased Phal Singh was conducted by P. W. 3 Dr. Janardan Babu on 5.6.2003 at about 5.40 P. M. who prepared the post mortem report (Ext. Ka 2 ) of the deceased and noted following ante mortem injuries on his dead body: Incised wound 9 cm x 2 cm into bone deep present on the right side of parietal region involving right lateral surface of neck below label of right ear. Wound line margins are clean cut. Both angles blood present around the wound on die section of mandible bone and maxilla bone cut. Fractured muscles and falls cut. After obtaining the forensic report (Ext. Ka 14) of the blood stains found on the axe and collecting other evidence P. W. 5 Dayanand Singh submitted chargesheet (Ext. Ka 13) against the all the accused under Sections-302/34 IPC. Since the offences enumerated in the chargesheet were triable exclusively by the court of Sessions, the concerned C. J. M. committed the case for the trial of the accused to the Court of Sessions. Ka 13) against the all the accused under Sections-302/34 IPC. Since the offences enumerated in the chargesheet were triable exclusively by the court of Sessions, the concerned C. J. M. committed the case for the trial of the accused to the Court of Sessions. The trial so committed to the Court of Sessions was registered as S. T. No. 299 of 2003; State Versus Inspector and two others. Charge was framed against all the accused under Sections-302/34 IPC. The accused denied the charge framed against them and claimed trial. The prosecution in order to prove the charge framed against the accused examined two witnesses of fact namely P. W. 1 Sant Prakash and P. W. 2 Ganga Prasad and four formal witnesses namely P. W. 3 Dr. Janardan Babu, P. W. 4 Dhawal Singh, P. W. 5 Inspector Dayanand Singh, P. W. 6 Dr. R. A. S. Tomar, Medical Officer. The sessions Judge after considering the evidence on record and the submissions advanced before him by learned counsel for the parties convicted the appellant Karan Singh under Section-302/34 IPC and awarded aforesaid sentences to them while co-accused Jageshwar Singh was acquitted . Sri Sangam Lal Kesarwani, learned counsel for the appellant has submitted that from the evidence of P. W. 2 Ganga Prasad it is crystal clear that the information regarding the incident was given by the P. W. 1 Sant Prakash to the police by phone and the police had reached the place of incident in response to the aforesaid information and till then identity of the accused was not known, the remaining paper work including scribing of the F. I. R., was done at the place of incident with the aid, advice and interference of the police and hence the F. I. R. of the incident appears to be wholly un-reliable and ante timed. He next submitted that the incident which had taken place in the night at about 2.00 A. M. on 5.6.2003 was preceded by a thunder storm which had hit the village in the mid night and had lasted for about two hours and during which the power supply in the village was snapped, hence the prosecution case is liable to be thrown out on account of the failure of the prosecution to lead any evidence, showing that there was any source of light at the place of incident or the alleged light emitting from the electric bulb hung against the wall of tube-well near the place of incident, was sufficient to enable the two chance witnesses to identify the assailants as claimed by the prosecution or that the electricity supply which had been disrupted following the dust storm which had lasted for two hours from 12.00 to 2.00 A. M., had been restored. The presence of the two eye witnesses at the place of the incident, who are real brothers of the deceased being highly partisan and interested at 2.00 A. M. and their having seen the occurrence in the absence of any source of light at the crime scene, is highly doubtful and the explanation given by them for their being present near the place of incident, at the time of the occurrence is wholly unconvincing and unacceptable and hence the appellant's conviction on the basis of the thoroughly interested testimonies of P. W. 1 Sant Prakash and P. W. 2 Ganga Prasad cannot be sustained and is liable to be set aside. He further submitted that at the time of the incident co-accused Karan Singh was also sleeping on the same thakat on which the deceased was sleeping and he had also received an injury on his hand in the incident which the prosecution witnesses have failed to explain and hence their testimony cannot be treated as reliable. It was co-accused Karan Singh who had gone to the house of the deceased Phal Singh and informed his family members including the P.W. 1 and P. W. 2. about the incident, whereafter they had arrived at the place of incident. It was co-accused Karan Singh who had gone to the house of the deceased Phal Singh and informed his family members including the P.W. 1 and P. W. 2. about the incident, whereafter they had arrived at the place of incident. Karan Singh had also accompanied the complainant P. W. 1 Sant Prakash and P. W. 2 Ganga Prasad to the police station for lodging the F. I. R. and had told the police that the assailants had veiled their faces as such he was not able to identity them and although after the recovery of the alleged crime weapon from the drawing room of Rajendra Singh, the police had taken all the three accused and Rajendra Singh to the police station but when co-accused Karan Singh refused to falsely nominate as accused the persons of the choice of the police as he had not been able to identify them, strangely Rajendra Singh was allowed to go escort free, while appellant along with Karan Singh and Jageshwar Singh was made accused of the murder of Phal Singh. He next submitted that the acquittal of the co-accused Jageshwar Singh who as per the prosecution case, alone had a very strong motive to commit the murder of the deceased and the prosecution having failed to prove any motive for the appellant to commit the murder of the deceased, the conviction of the appellant on the basis of the same evidence on which accused Jageshwar Singh was acquitted is not maintainable at all. He lastly submitted that from the facts and circumstances of the case and evidence on record, it is crystal clear that no-one had seen the incident and after the dead body of the deceased was recovered, a false F. I. R. was lodged by the P. W. 1 Sant Prakash after due deliberations, consultations and police interference and hence he recorded conviction of the appellant and the sentence awarded to him by the trial court on the basis of the absolutely tainted investigation done pursuant to an F. I. R. credibility whereof itself is under cloud, cannot be sustained and is liable to be set aside. Per contra, Sri Saghir Ahmad, learned A. G. A. assisted by Mrs. Per contra, Sri Saghir Ahmad, learned A. G. A. assisted by Mrs. Manju Thakur, Brief Holder appearing for the State of U. P. submitted that the prosecution case stands fully proved from the eye witness account of P. W. 1 Sant Prakash and P. W. 2 Ganga Prasad, which stands further fully corroborated from the medical evidence. The conviction of the appellant is based upon cogent and reliable evidence and sentence awarded to him by the trial court is supported by relevant considerations, hence the impugned judgment and order does not warrant any interference by this Court. This appeal lacks merit and is liable to be dismissed. We have heard learned counsel for the parties and scanned the entire lower court record. The only question which arises for our consideration in this case is whether the prosecution has been able to prove its case against the appellant beyond all reasonable doubts. In order to ascertain whether the prosecution has been able to prove its case against the appellant beyond all reasonable doubts, we have to examine whether the F. I. R. of this case is credible and not ante timed and whether the prosecution has been able to prove the time, place and manner of occurrence and motive for committing the crime as spelt out in the F. I. R. and whether the evidence of witnesses of fact examined on behalf of the prosecution is reliable and trustworthy. The credibility of the F. I. R. in this case has been challenged by learned counsel for the appellant on the ground of there is a glaring contradiction in the testimonies of P. W. 1 Sant Prakash and P. W. 2 Ganga Prasad with regard to manner in which occurrence was reported to the police. P. W. 1 Sant Prakash in his examination-in-chief (at page 12 of the paper book) has deposed that he had scribed the written report of the incident (Ext. Ka 1) on the spot and thereafter he had gone to the police station and given the same to "Deewan Ji" and on the basis of the aforesaid written report, the case was registered and his statement was recorded by "daroga ji". Ka 1) on the spot and thereafter he had gone to the police station and given the same to "Deewan Ji" and on the basis of the aforesaid written report, the case was registered and his statement was recorded by "daroga ji". Thereafter the police had gone to the place of incident and conducted the inquest of the dead body of the deceased and completed the necessary paper work, whereas P. W. 2 Ganga Prasad, the other eye witness of the occurrence (at page 16 of the paper work) stated in his examination-in-chief stated that his elder brother P. W. 1 Sant Prakash had telephonically informed the police about the occurrence in the morning. The police had thereafter arrived at the place of incident and after doing necessary paper work had sealed the dead body of the deceased and dispatched it for post mortem. P. W. 5 Dayanand Singh, the first I. O. of this case (at 12 of the paper book) in his cross examination stated that he did not remember the time at which he had reached the place of incident on the date of occurrence. Neither the time of his departure, nor the time of his return to the police station, was recorded in the case diary. In this connection, it would be relevant to refer to the cross examination of P. W. 4 S. I. Dhawal Singh who had upon receiving the written report (Ext. Ka 1) prepared the check F. I. R. of the case (Ext. Ka 3) and made the relevant G. D. entry, in which on page 27 of the paper book in which he had stated that on 5.6.2003 before or after registration of the instant case no other criminal case was registered at P. S.-Gursahaiganj but he denied the suggestion given to him by defence counsel that before leaving the police station the Investigating Officer of the case had instructed him to keep the G. D. blank or that he had returned to the police station with the complainant and co-accused Karan Singh and had thereafter recorded the time of registration of the F. I. R. according to his convenience. It is apparent that P. W. 1 Sant Prakash and P. W. 4 did not speak the truth before the trial court as P. W. 5 Dayanand Singh, the Investigating Officer of this case in his cross examination on page 32 of the paper book clearly stated on oath that he did not remember the time at which he reached the place of incident, however, when the returned to the police station he was not accompanied by the complainant but he had brought co-accused Karan Singh to the police station after arresting him at about 5.20 a. m. from a place in front of a P. C. O. near Ramashram although according to the arrest memo of the accused (Ext. Ka 11) all the three accused including co-accused Karan Singh were arrested on 7.6.2003 at about 5.35 a. m. Thus the aforesaid discrepancy with regard to the date of the arrest of the co-accused Karan Singh mentioned in the recovery memo (Ext. Ka 11) and in the statement of P. W. 5 Dayanand Singh indicates that when the co-accused Karan was taken to the police station on the date of incident he had actually not been arrested and for some reason or the other the I. O. of the case tried to show that co-accused Karan Singh was arrested along with the other accused on 7.6.2003. Thus, there is a glaring contradiction in the evidence of the two eye witnesses with regard to the manner in which the incident was reported to the police and on the point of arrival of the police at the place of incident, that is whether the police had reached the place of occurrence after the lodging of the written report (Ext. Ka 1) or before the same was scribed. The P. W. 2 in his examination-in-chief has unequivocally stated that the police had arrived at the place of incident on being informed about the murder telephonically by P. W. 1 and had conducted the inquest and completed the necessary paper work on the spot. Ka 1) or before the same was scribed. The P. W. 2 in his examination-in-chief has unequivocally stated that the police had arrived at the place of incident on being informed about the murder telephonically by P. W. 1 and had conducted the inquest and completed the necessary paper work on the spot. The failure of the I. O. in his cross examination to disclose the time at which he had reached the place of incident on the date of occurrence, further strengthens the doubt that when the police had reached the place of incident, the F. I. R. was not in existence and the same was scribed later, after due deliberations, consultation and under police interference and registered at the police station-Gursahaiganj after the Investigating Officer had returned back to the police station with the co-accused Karan Singh. Thus, in view of the above, the credibility of the F. I. R. in this case stands totally shattered. The appellant has not seriously challenged either the time or the place of incident as alleged by the prosecution in the F. I. R. and hence we hold that the prosecution has been able to prove that the incident had taken place near the flour mill in village Jahangirpur at about 2.00 a. m. The manner of assault however has been castigated by the appellant on the ground that the co-accused Karan Singh had also received injury in the incident and his injury report is on record as Ext. Ka 15. The prosecution has not been able to come up with any explanation with regard to the injury received by co-accused Karan Singh although it was specifically stated by co-accused Karan Singh in his additional statement recorded before the trial court under Section 313 Cr. Ka 15. The prosecution has not been able to come up with any explanation with regard to the injury received by co-accused Karan Singh although it was specifically stated by co-accused Karan Singh in his additional statement recorded before the trial court under Section 313 Cr. P. C. that while he along with the deceased Phal Singh was sleeping on the same wooden cot in the flour mill of the complainant, they were assaulted by several persons, who had veiled their faces and in the assault both the deceased and the appellant had received injuries and it was co-accused Karan Singh who had informed P. W. 1 Sant Prakash and his other relatives about the incident but the police falsely implicated him in the present case as an accused after he failed to nominate the persons of the choice of the police as accused in the F. I. R. Rebutting the aforesaid submissions of learned counsel for the appellant, Sri Saghir Ahmad, learned A. G. A. appearing on behalf of the State submitted that as far as the injury received by co-accused Karan Singh is concerned, the same is either manufactured or received by the co-accused Karan Singh while the appellant had wielded the blow on the neck of the deceased while Karan Singh had gagged him with his palms. The injury report of the appellant is dated 7.6.2003. Duration of his injury is stated to be about two or three days and there being no reliable evidence on record indicating that the aforesaid injury was received by the appellant in the same incident, the manner of assault as spelt out in the F. I. R. cannot be doubted. The medico legal injury report of the appellant which is dated 7.6.2003, has been brought on record by the prosecution as Ext. Ka 15 and proved by P. W. 6 Dr. R. S. Tomar. The injury report (Ext. Ka 6) of the co-accused Karan Singh denotes one injury on his person dimension whereof is shown to be 4 cm x 1 cm skin bony deep. The injury was estimated to be about two or three days old. P. W. 6 Dr. Ka 15 and proved by P. W. 6 Dr. R. S. Tomar. The injury report (Ext. Ka 6) of the co-accused Karan Singh denotes one injury on his person dimension whereof is shown to be 4 cm x 1 cm skin bony deep. The injury was estimated to be about two or three days old. P. W. 6 Dr. Tomar (on page 35 of the paper book) has deposed that co-accused Karan Singh was produced before him on 7.6.2003 at about 11.00 A. M. by C. P. 81 Sewak Ram and Home Guard 374 Ram Kumar for examination of his injuries. P. W. 6 (on 36 of the paper book) in his examination-in-chief further stated that the injury found on the person of the appellant could have been inflicted on him on 5.6.2003 at about 2.00 a. m. He however also opined that the injury could also be caused, if co-accused Karan Singh was holding someone while he was being assaulted. The evidence of P. W. 6 thus proves that the co-accused Karan Singh could have received the injury on his hand on 5.6.2003 at about 2.00 A. M. but since neither P. W. 1 nor P. W. 2 who claim themselves to be the eyewitnesses of the incident have deposed that co-accused Karan Singh had also received an injury on his hand when the appellant had assaulted the deceased Phal Singh with an axe, the same indicates that they had not witnessed the incident and the possibility of co-accused Karan Singh being assaulted by the same culprits who had assaulted the deceased while he was sleeping with him on the same ''thakat', cannot be ruled out. P. W. 1 Sant Prakash in his cross examination (on 15 of the paper book) has stated that the deceased Phal Singh and Karan Singh often used to sit and sleep together. He further deposed that he was not sure whether on the date of incident co-accused Karan Singh was also with his brother at the flour mill (page 15 of paper book). He further deposed that he was not sure whether on the date of incident co-accused Karan Singh was also with his brother at the flour mill (page 15 of paper book). Thus, from the evidence of P. W. 1 Sant Prakash at least this much is clear that the deceased Phal Singh and co-accused Karan Singh frequently used to sit and sleep at the flour mill and hence the explanation given by the co-accused Karan Singh with regard to the manner in which he had received the injury cannot be disbelieved outrightly. If co-accused Karan Singh had been injured while he had gagged the deceased by putting his palms across his mouth from the assault of the axe wielded on the neck of the deceased by the appellant, then this fact would definitely have found mention in the evidence of P. W. 1 and P. W. 2 if, as they claim, were present at the place of the incident and had seen the occurrence. Thus, in view of the failure of the prosecution to come up with any explanation for the injury received by the co-accused Karan Singh on his hand there being no suggestion by the prosecution that the injury of co-accused Karan Singh was either or superficial and the admitted friendship between the deceased and the co-accused Karan Singh and the fact that they were so close that they often used to sit and sleep at the flour mill, the possibility of the incident having taken place in the manner as described by the co-accused Karan Singh cannot ruled out. It is apparent that the prosecution has either suppressed the material facts or the same were not within the knowledge of the prosecution witnesses of fact as they had not witnessed the occurrence. The Hon'ble Supreme Court in Waman and Others vs. State of Maharashtra, (2011) 7 SCC 295 observed as hereunder: "36. It is apparent that the prosecution has either suppressed the material facts or the same were not within the knowledge of the prosecution witnesses of fact as they had not witnessed the occurrence. The Hon'ble Supreme Court in Waman and Others vs. State of Maharashtra, (2011) 7 SCC 295 observed as hereunder: "36. Ordinarily, the prosecution is not obliged to explain each injury on an accused even though the injuries might have been caused in the course of occurrence, if the injuries are minor in nature, however, if the prosecution fails to explain a grievous injury on one of the accused persons which is established to have been caused in the course of the same occurrence then certainly the court looks at the prosecution case with a little suspicion on the ground that the prosecution has suppressed the true version of the incident. However, if the evidence is clear, cogent and creditworthy then non-explanation of certain injuries sustained by the deceased or injury on the accused ipso facto cannot be the basis to discard the entire prosecution case." We accordingly hold that the prosecution has failed to prove that the incident had taken place in the manner as spelt out in the F. I. R. Coming to the motive part, we find that it is the specific case of the prosecution that about twenty days before the incident, co-accused Jageshwar Verma and the deceased had quarrelled with each other as Jageshwar Verma suspected that the deceased Phal Singh was having an affair with his daughter. As far as the appellant is concerned, there is no whisper of any motive for him to commit the murder of the deceased. However, in view of the settled legal position that in a case of direct evidence the prosecution is not under an obligation to prove the motive but the quality of the evidence adduced by the prosecution must be such so as to inspire confidence. Motive has little relevance in a case of direct evidence and the entire prosecution case cannot be discarded even if the prosecution fails to establish the motive beyond doubt. We now proceed to consider the appellant's challenge to the credibility of the prosecution witnesses in the present case. Motive has little relevance in a case of direct evidence and the entire prosecution case cannot be discarded even if the prosecution fails to establish the motive beyond doubt. We now proceed to consider the appellant's challenge to the credibility of the prosecution witnesses in the present case. So far as the present case is concerned, we have already noticed that the prosecution in order to prove its case has produced two eyewitnesses who are the real brothers of the deceased. The credibility of the two eyewitnesses examined by the prosecution in this case has been castigated by learned counsel for the appellant interalia on the grounds that they being the real brothers of the deceased are highly partisan and interested witnesses and no reliance can be placed on their testimonies for convicting the appellant; that there being no cogent proof of any source of light at the place of incident even if it is presumed for the sake of argument that P. W. 1 and P. W. 2 were present near the place of incident at the time occurrence they could not have seen the incident and identified the assailants; and that the reason given by them for their presence near the place of incident at 2.00 a. m. on the date of incident is wholly unconvincing as in the natural course there was no justification for the P. W. 1 and P. W. 2 for being present at the place of incident. On the point of interested witnesses, the Hon'ble Supreme Court in State of U.P. v. Jagdeo, 2003 Cri.L.J. 844 (S.C.) observed that only on the ground of interested or related witnesses, their evidence cannot be discarded. Most of the times eye witnesses happen to be family members or close associates because unless a crime is committed near a public place, strangers are not likely to be present at the time of occurrence. The Hon'ble Supreme Court in Mst. Dalbir Kaur v. State of Punjab, 1976 Cr.L.J. 418 (S.C.) made following observations:- (i) Interested witness:- Relatives who are natural witnesses are not interested witnesses and their testimony can be relied upon. The term 'interested' postulates that the person concerned must have some direct interest in seeing that the accused is somehow or the other is convicted either because he had some animus with the accused or for some other reason. The term 'interested' postulates that the person concerned must have some direct interest in seeing that the accused is somehow or the other is convicted either because he had some animus with the accused or for some other reason. In the reported case the incident took place at mid night inside the house, the only natural witnesses who could be present to see the assault were the persons present in the house at that time. No outsider can be expected to have come at that time because the attack was sudden. Moreover a close relative who is a very natural witness cannot be regarded as an interested witness. (ii) Witness gained over by accused not examined by the prosecution- held withholding or keeping back of witnesses is not unfair and adverse inference cannot be drawn. There is no duty on the prosecution to examine witnesses who might have been gained over by accused and even if those witnesses are not produced by the prosecution, there is nothing to stop accused from applying to the court for examining such witnesses. (iii) witness who gives details with absolute accuracy is trustworthy. Thus what follows from the perusal of the aforesaid judgment of the Hon'ble Supreme Court is that relationship cannot be a factor which affects the credibility of witnesses. The evidence of interested or relative witnesses can be relied upon subject to their evidence being trustworthy and admissible in accordance with law. Hence in view of the above, the evidence of P. W. 1 and P. W. 2 cannot be discarded merely on the ground of their being the real brothers of the deceased Phal Singh. We, accordingly, proceed to test the credibility of the prosecution witnesses on the touch stone of the trustworthiness and admissibility in accordance with law. Hence in view of the above, the evidence of P. W. 1 and P. W. 2 cannot be discarded merely on the ground of their being the real brothers of the deceased Phal Singh. We, accordingly, proceed to test the credibility of the prosecution witnesses on the touch stone of the trustworthiness and admissibility in accordance with law. A perusal of the evidence of P. W. 1 Sant Prakash and P. W. 2 Ganga Prasad indicates that they have contradicted each other on the point of time at which the Investigating Officer had arrived at the place of incident and the manner in which occurrence was reported to the police by P. W. 1 Sant Prakash, while P. W. 1 Sant Prakash in this examination-in-chief deposed that after the incident he had scribed the written complaint of the occurrence on the spot and thereafter he had gone to the police station and given the same to the officer present there and thereafter he had returned to the place of occurrence with the Investigating Officer. However, P. W. 2 Ganga Prasad deposed that the police had arrived at the place of occurrence after the incident was reported by his brother P. W. 1 to the police telephonically and completed the necessary paper work on the spot. The presence of P. W. 1 and P. W. 2 at the place of incident at 2.00 a. m. does not appear to be natural. They ought to have a very strong and compelling reason for their being awake at 2.00 a. m. and for being present in the mango grove of Parshuram. Both the P. W. 1 and P. W. 2 have uniformly deposed that as soon as the storm was over, they came out of their house with the object of picking up the mangoes from the grove of Parshuram which may have fallen on the ground as a result of the storm and as soon as they reached the grove of Parshuram, they heard the shriek of their brother coming from the side of his flour mill, on which they rushed there and saw the incident. It has been pointed out by learned counsel for the appellant that both P. W. 1 and P. W. 2 have admitted in their evidence that they do not own any mango grove near their flour mill. It has been pointed out by learned counsel for the appellant that both P. W. 1 and P. W. 2 have admitted in their evidence that they do not own any mango grove near their flour mill. P. W. 2 in his cross examination (page 16 of the paper-book) has admitted that he owns a mango grove in which there are about 50-60 trees and which is in the east of his flour mill. In the normal course of human behaviour, after the dust storm had subsided, if we accept the claim of P. W. and P. W. 2 that they were awake till 2.00 a. m. on the date of incident to be true, they would have rushed to their mango grove for collecting the mangoes which must have fallen from the mango trees of their grove, rather than going to the mango grove of Parshuram. The reason given by the P. W. 1 and P. W. 2 for their presence near the place of incident at the time of occurrence does not appear to be very convincing also in view of their having stated in their evidence that they had not brought any basket or bag with them for collecting the mangoes fallen on the ground but even if we accept for the sake of argument that they were present in Parshuram's mango grove near the place of incident at the time of occurrence, whether there was any illumination at the crime scene or any source of light available, which would have enabled them to witness the incident. It is noteworthy that in the F. I. R. of the incident which was lodged by P. W. 1 Sant Prakash there is no mention of any source of light at the place of incident. However, both P. W. 1 and P. W. 2 in their evidence tendered during the trial have stated in unison that the place of incident was illuminated from the light which emitted from the electric bulb of Parshuram's tube-well which was adjacent to his house. The question which now arises for our consideration is whether the place of incident was close enough to the place of incident to be be illuminated from the light emitted by the electric bulb hung on the wall of Parshuram's tube-well. The site plan of the place of incident (Ext. Ka 9) neither shows any tube-well nor any electric bulb. The question which now arises for our consideration is whether the place of incident was close enough to the place of incident to be be illuminated from the light emitted by the electric bulb hung on the wall of Parshuram's tube-well. The site plan of the place of incident (Ext. Ka 9) neither shows any tube-well nor any electric bulb. Thus, in order to determine whether there was any source of light at the place of occurrence and the distance between the tube-well and the place of incident we are left only with the evidence of P. W. 1 Sant Prakash and P. W. 2 Ganga Prasad. As far as the P. W. 1 Sant Prakash is concerned, he has not stated anything about the distance between the place of incident and the tube-well of Parshuram. P. W. 2 Ganga Prasad on page 17 of the paper book in his cross examination has stated that the house of Parshuram is at a distance of 10-15-20 (kadams) (25-33-50 fts.) from his grove in the south. Distance between the flour mill and tube-well of Parshuram which has a power connection is about 10-15 'kadam' (25-37 ft). He further deposed in his cross examination on the same page that the tube-well of Parshuram is adjacent to his house and there is no power connection in the flour mill. Flour mill is operated by a generator. Flour mill was not illuminated. On the same page he has further deposed that the grove of Parshuram lies between his tube-well and the flour mill. Tube-well lies in the north of the grove and in the northern wall of the tube-well, an electric bulb is fixed. Between the tube-well and the grove, there is a vacant land of about 6-7 kadam (15-18 ft.) in length. The grove is about 6-7 'kadam' (15-18 ft.) north-south and the flour mill is at a distance of about 5-6 kadam (12.5 ft.-15 ft.) in the north of the grove. Thus, the total distance between the tube-well and the place of incident according to the evidence of P. W. 2 Ganga Prasad is about 17-20 kadam (42.5-50 ft.). The mango grove of Parshuram having 7-8 trees exists between his tube-well and the flour mill. Thus, the total distance between the tube-well and the place of incident according to the evidence of P. W. 2 Ganga Prasad is about 17-20 kadam (42.5-50 ft.). The mango grove of Parshuram having 7-8 trees exists between his tube-well and the flour mill. There is no evidence on record about the wattage of the bulb which was allegedly emitting light from the tubewell of Parshuram and even if we assume that the light was being emitted from the electric bulb hung on the wall of the tube-well, we find it difficult to accept keeping in view the distance between the tube-well and the crime scene and existence of the grove between the tube-well that the light emitted from the tube-well could have illuminated the place of incident also. Another important aspect of the matter is that it is common knowledge that whenever power supply is snapped due to dust storm it takes several hours for the power supply to restore even in cities. In the instant case both the witnesses of fact have stated that the dust storm had lashed the village and lasted for two hours resulting in snapping of power supply. The prosecution has failed to lead any evidence by examining any employee of the power station to prove that the power supply in the village was restored immediately after the dust storm had abated. The chances in all probabilities are that the power supply in the village could not have been restored at 2.00 a. m., the time at which the storm had abated. Thus, for the aforesaid reasons, we do not find that the prosecution has succeeded in proving that there was any source of light available at the time of incident at the place of occurrence by any cogent evidence. Learned counsel for the appellant has also assailed the investigation in this case on the ground that the same was biased and unfair. In this regard he has invited our attention to the additional statement co-accused Karan Singh recorded under Section 313 Cr. P. C. in which he has clearly stated that at the time of occurrence he along with the deceased Phal Singh was sleeping on the same thakat and assailants had veiled their faces with "tattha" and as such he was unable to identify them. P. C. in which he has clearly stated that at the time of occurrence he along with the deceased Phal Singh was sleeping on the same thakat and assailants had veiled their faces with "tattha" and as such he was unable to identify them. A suggestion was given by the defence counsel to the I. O. of this case that when he had arrived at the place of incident he was informed by the complainant that the assailants had veiled their faces with "tattha" and they had left behind a 'tapora' which had been handed over to him by P. W. 1 Sant Prakash and it was on account of the aforesaid reason that co-accused Karan Singh was not able to identify them. On page 31 of the paper-book the aforesaid suggestion was denied by the P. W. 5 Dayanand Singh. Similar suggestion was given by the defence counsel to P. W. 1 Sant Prakash also that he had informed the investigating officer that the assailants could not be identified as they had veiled their faces and the I. O. had told him that he would search out the real culprits (page 15 of the paper-book). A glaring instance of the unfair manner in which the I. O. had investigated the matter is apparent from the fact that Rajendra Singh from whose drawing room it is alleged that the crime weapon (axe) used in committing the murder of Phal Singh was recovered at the alleged pointing out of the appellant was not arraigned as accused in this case. Learned counsel for the appellant has assailed the credibility of the prosecution claim that the crime weapon was recovered on the pointing out of appellant by first referring to the recital contained in the recovery memo according to which, the appellant, co-accused Jageshwar Singh and Karan Singh were arrested on 7.6.2003 at about 5.35 A. M. and on being interrogated, they confessed before the I. O. that they had committed the murder of Phal Singh and the appellant further expressed his willingness to get the axe which was used in committing the murder of Phal Singh recovered from the use of one Rajendra and thereafter recovery of axe was made from the corner of the drawing room of Rajendra Singh in the presence of independent witnesses Vimal Kumar Verma and Chandra Prakash and recovery memo (Ext. Ka 11) was prepared. Ka 11) was prepared. Learned counsel for the appellant further invited our attention to page 32 of the paper book on which P. W. 5 Dayanand Singh, I. O. of this case has deposed on oath that he had arrested the co-accused Karan Singh at about 5.20 A. M. from a place in front of a P. C. O. near Ramashram and had taken him to the police station on the date of the occurrence itself. Thus, the contradiction with regard to the date of arrest of co-accused Karan Singh although as per the recovery memo (Ext. Ka 11) all the three accused were arrested on the same day i. e. 7.6.2003 mentioned in the recovery memo (Ext. Ka 11) and the evidence of P. W. 5 fully disproves prosecution's allegation that the recovery of crime weapon was made from the drawing room of one Rajendra Singh on the alleged pointing out of the appellant and indicates that the alleged recovery of the crime weapon on the pointing out of the appellant has been fabricated by the police with the object of falsely implicating him in the present case. The recovery of the crime weapon in this case at the appellant's behest further appears to be doubtful on account of the failure of the prosecution to examine the two independent witnesses in whose presence crime weapon was allegedly recovered by the appellant. Since the prosecution has failed to prove the recovery memo of crime weapon on the pointing out of the appellant by any cogent and un-impeachable evidence, the forensic report of the crime weapon (Ext. Ka 14) according to which human blood was found on the axe recovered from the drawing room of Rajendra Singh will not be of any help to the prosecution for proving charge of murder of the deceased against the appellant. It is true that the prosecution case cannot be discarded or disbelieved merely on the ground of omissions and irregularities committed by the Investigating Officer but the cumulative effect of the laches on the part of the Investigating officer in conducting the investigation in this case which have been highlighted by learned counsel for the appellant on the prosecution case appears to be that no honest attempt was made by the Investigating Officer to nab the actual perpetrators of the crime. On the other hand, he fabricated documents with a view to implicate the appellant and other co-accused falsely in the present case. In view of the foregoing discussions, we are of the view that the conviction of the appellant recorded by the Sessions Judge, Kannauj vide order dated 22.12.2008 passed in S. T. No. 299 of 2003; State Versus Inspector, arising out of Case Crime No. 273 of 2003; under Sections-302/34 IPC, P. S.-Gursahaiganj, district-Kannauj and the sentence awarded to him is liable to be set aside and is hereby set aside. Accordingly, this appeal succeeds and is allowed. The appellant, Inspector who is in jail, stands acquitted of all the charges framed against him and shall be released forthwith, if not wanted in any other case. However, keeping in view the provisions of Section 437 A Cr. P. C. the appellant, Inspector is directed to forthwith furnish a personal bond in the sum of Rs. One lac and two reliable sureties in the like amount before the trial court (which shall be effective for a period of six months) to the effect that in the event of filing of Special Leave Petition against the instant judgment or for grant of leave, the appellant on receipt of notice thereof. shall appear before the Hon'ble Supreme Court.