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2016 DIGILAW 3522 (ALL)

KHUDA BUX @ KODAI v. STATE OF U. P.

2016-10-21

ARVIND KUMAR MISHRA I, BALA KRISHNA NARAYANA

body2016
JUDGMENT : (Delivered by Hon'ble Bala Kirshna Narayana, J.) Heard learned counsel for the appellants and learned A. G. A. for the State. This criminal appeal has been filed by Khuda Bux alias Kodai, S/o Jumrati and Mushtaq Ahmad alias Babloo, S/o Israil under Section 374 (2) Cr. P. C. against the judgement and order dated 15.4.2004 passed by the Additional Sessions Judge, Maharajganj in S. T. No. 131 of 2001, arising out of Case Crime No. 701 of 2000, under Section-302 IPC, P. S.-Kotwali Maharajganj, district-Maharajganj convicting the appellants under Section-302 IPC and sentencing them to life imprisonment and a fine of Rs. 2000/- each and in default of payment of fine, one year's additional simple imprisonment. Briefly stated, the facts of this case are that on 20.12.2000 complainant Nazib-un-nisa, w/o Bashir gave a written report (Ext. Ka 1) at P. S.-Kotwali Maharajganj at about 20.15 hrs. stating therein that her father-in-law, Jumerati who possessed some land in village-Badhrarani had transferred some portion thereof to her husband Bashir who had further sold it to one Mansoor, resident of the same village and due to the aforesaid reason her father-in-law Jumerati, Khuda Bux alias Kodai, S/o Jumerati and Mushtaq Ahmad alias Babloo, S/o Israil had become inimical towards her and her husband and were always looking out for opportunities to harm them. On 20.12.2000 she had taken her father-in-law Jumerati to the field of Rama Nand Yadav in the south of the village to enable him to ease himself. While her father-in-law Jumerati was easing himself and she was standing nearby, Khuda Bux alias Kodai armed with kudal and Mushtaq Ahmad alias Babloo armed with knife arrived there suddenly and Khuda Bux alias Kodai assaulted her father-in-law with kudal on his head as a result of the injury so received by him, he fell on the ground and thereafter Mushtaq Ahmad alias Babloo started stabbing him. On her raising cries for help, her husband Bashir and several other villagers reached the place of incident and witnessed the same. The assailants escaped towards the east. On the basis of the written complaint of complainant Najib-un-nisa, Case Crime No. 701 of 2000 under Section 302 IPC was registered at P. S.-Kotwali against the appellants and check F. I. R. (Ext. Ka 2) was prepared and relevant entry was made in the general diary vide rapat No. 27 at 20.15 hrs. The assailants escaped towards the east. On the basis of the written complaint of complainant Najib-un-nisa, Case Crime No. 701 of 2000 under Section 302 IPC was registered at P. S.-Kotwali against the appellants and check F. I. R. (Ext. Ka 2) was prepared and relevant entry was made in the general diary vide rapat No. 27 at 20.15 hrs. on 20.12.2000 (Ext. Ka 3). Thereafter the Investigating Officer, S. I. Navendu Kumar Navin reached the place of incident along with constable Rajesh Pandey, constable Dayanath Bhaskar, complainant Nazib-un-nisa and her husband, Bashir by a government jeep bearing registration No. U. P. 56/4241 which was driven by driver Ram Prasad Mishra and after making necessary arrangements for illuminating the place of incident recorded the statements of the complainant Nazib-un-nisa and thereafter prepared the site plan of the place of incident (Ext. Ka 4) after inspecting the same. He then proceeded to conduct the inquest of deceased dead body of the deceased Jumerati which was lying on the chak road in the north of village Roudhlibhavchak and south of village Matiyarwa, after appointing Rajendra, Rajendra Paswan, Ram Karan, Izhar and Teerath as panch witnesses, and prepared the inquest report (Ext. Ka 5) and other documents, chalan lash (Ext. Ka 6), photo nash, (Ext. Ka 7), letters addressed to the R. I. and C. M. O., Gorakhpur for conducting post mortem of the dead body of the deceased (Ext. Ka 8 and Ext. Ka 9). Thereafter he sealed the dead boy of the deceased and dispatched it for post mortem to District Hospital, Gorakhpur along with Constable Rajesh Pandey and Home Guard Ram Kewal. The Investigating Officer also collected plain and blood stained soil from the place of incident and kept the same in two different containers and prepared the recovery memo (Ext. Ka 13). The investigating officer arrested both the accused on the night of the date of incident itself from a place in front of a water tank where he had reached upon receiving information from the informer about their presence at the police station after he had returned from the place of occurrence. Both the accused upon being interrogated by him, confessed that they had committed the murder of Jumerati and hidden the crime weapons near the place of incident and disclosed their names as Khuda Bux alias Kodai, S/o Jumerati and Mushtaq Ahmad alias Babloo, S/o Israil. Both the accused upon being interrogated by him, confessed that they had committed the murder of Jumerati and hidden the crime weapons near the place of incident and disclosed their names as Khuda Bux alias Kodai, S/o Jumerati and Mushtaq Ahmad alias Babloo, S/o Israil. The Investigating Officer after arresting the accused took them to the place of incident and got the blood stained crime weapons ''kudal' and ''knife' recovered by them from a field on which mustard and pulse crops were standing, in the presence of witnesses Rajendra Paswan, Vijay Prakash Prajapati, Om Prakash Verma and Teerath and seized the same and after packing these weapons in two different pieces of cloth sealed the same and prepared the recovery memo (Ext. Ka 10) and obtained signatures of the accused thereon. He also prepared the site plan of the place from where crime weapons were recovered on the pointing out of the accused (Ext. Ka 11). The post mortem of the dead body of the deceased was performed on 22.12.2000 by P. W. 9 Dr. G. P. Shahi who prepared the post mortem report (Ext. Ka 16) of the deceased. P. W. 9 Dr. G. P. Shahi found following ante mortem injuries on the dead body of the deceased: (I) Incised wound 12 cm x ½ cm x bone deep on right side skull 6 cm above right ear on cutting underlying bone cut and haematoma; (II) incised wound 8 cm x 3 cm on right side skull 6 cm behind right ear on cutting haematoma present; (III) multiple abraded contusion measuring of 6 cm x 4 cm on top of skull on cutting haematoma present; (IV) incised wound 4 cm x 2 cm at front of neck underlying trachea and vessels cut; and (V) incised wound 6 cm x 2 cm right side of abdomen cavity deep viscera coming out of wound. The cause of the death of the deceased, according to the post mortem report, was shock and haemorrhage due to ante mortem injuries. The investigating officer after recording the statements of the inquest witnesses and the witnesses of recovery of crime weapons and eye witnesses Bashir and Mohd. Rauf entrusted the investigation of the case to the second I. O., P. W. 8 N. K. Singh who after completing the investigation submitted the chargesheet (Ext. The investigating officer after recording the statements of the inquest witnesses and the witnesses of recovery of crime weapons and eye witnesses Bashir and Mohd. Rauf entrusted the investigation of the case to the second I. O., P. W. 8 N. K. Singh who after completing the investigation submitted the chargesheet (Ext. Ka 15) against both the accused on 17.1.2001 before C. J. M., Maharajganj. The case was committed for trial of the deceased to the Court of Sessions Judge, Maharajganj and registered as S. T. No. 131 of 2001 by committal order dated 8.5.2001 passed by the C. J. M., Maharajganj from where it was made over to the Court of Additional Sessions Judge, Maharajganj for trial. Appellants denied the charge framed against them and claimed trial. The prosecution in order to prove its case examined as many as nine witnesses including the complainant P. W. 1 Nazib-un-nisa, P. W. 2, Gafoor and P. W. 4 Mohd. Rauf as eyewitnesses, P. W. 3 Om Prakash Verma scribe of the written complaint (Ext. Ka 1) and witness of recovery of crime weapons, plain and blood stained soil and torch, P. W. 5 constable Tarkeshwar Pandey who proved the check F. I. R. (Ext. Ka 2) prepared on the basis of the written complaint (Ext. Ka 1) of the complainant, P. W. 6 H. C. P. Paras Nath who had made entry in the G. D. regarding registration of the case (Ext. Ka 3), P. W. 7 retired S. I. Doodhnath Rai and P. W. 8 N. K. Singh, the first and second investigating officer. of the case and P. W. 9 Dr. G. P. Shahi who had conducted the post mortem of the dead body of the deceased and proved the same. Apart from the aforesaid witnesses, Constable Rajesh Pandey, Home Guard Ram Kewal who had taken away the dead body of the deceased from the place of incident to the District Hospital, Gorakhpur for getting the post mortem of the dead body of the deceased done and one Bashir, husband of the complainant, Nazib-un-nisa (eyewitness of the incident) were examined as C. W. 1, C. W. 2 and C. W. 3. The defence vide list No. 36 Kha/1 filed copies of the registered sale-deed and will which are paper No. 36 Kha/2 to 36Kha/43. The accused in their statements recorded under Section 313 Cr. The defence vide list No. 36 Kha/1 filed copies of the registered sale-deed and will which are paper No. 36 Kha/2 to 36Kha/43. The accused in their statements recorded under Section 313 Cr. P. C. alleged false implication due to enmity. After considering the submissions advanced by learned counsel for the parties and scrutinizing evidence on record, the Additional Sessions Judge, Maharajganj by the impugned judgment and order convicted both the appellants under Section 302 IPC and awarded aforesaid sentences to them. Sri Sudist, learned counsel appearing on behalf of the appellants has assailed the impugned judgment and order on the ground that the prosecution having totally failed to prove the charge framed against the appellants beyond all reasonable doubts, recorded conviction of the appellants and the sentence awarded to them cannot not sustained. Advancing his submissions in this regard further, learned counsel for the appellants has submitted that it is proved from the evidence of P. W. 3 Om Prakash Verma, who is the scribe of the F. I. R. that the written report (Ext. Ka 1) on the basis of which Case Crime No. 701 of 2000 was registered against the appellants, was not the same written complaint which was scribed by P. W. 3 Om Prakash Verma on the dictation of P. W. 1 Nazib-un-nisa (complainant) on which she had put her thumb impression by using a kajrauta and that the written report (Ext. Ka 1) was written by P. W. 3 Om Prakash Verma on the dictation of the police personnel of police station-Kotwali Maharajganj. The first report of the incident which was scribed by P. W. 3 Om Prakash Verma at the place of incident on the dictation of P. W. 1 Nazib-un-nisa (complainant) was deliberately suppressed by the prosecution and hence no reliance can be placed on the prosecution case as spelt out in the written report dated 20.12.2000 (Ext. Ka 1) which is a product of police interference. Ka 1) which is a product of police interference. Learned counsel for the appellants has also submitted that out of four witnesses examined by the prosecution for proving the charge of murder of Jumerati framed against the appellants, P. W. 2 Gafur, P. W. 3 Om Prakash Verma and P. W. 4 Rauf were declared hostile on the request of the prosecution after they failed to support the prosecution case and the conviction of the appellants on the basis of the evidence of P. W. 1 Nazib-un-nisa (complainant) and C. W. 3 Bashir who are interested witnesses and further the presence of C. W. 3 Bashir at the place of incident at the time of occurrence stands disproved from the facts stated by him in his cross examination, cannot be maintained. Such being the state of the evidence, the impugned judgement and order cannot be sustained and is liable to be set aside. Per contra, Sri Saghir Ahmad, learned A. G. A. appearing for the State made his submissions in support of the impugned judgement and order and argued that the appellants' conviction is based upon cogent evidence and the sentence awarded to them is supported by relevant considerations and hence the same warrant no interference. This appeal lacks merits and is liable to be dismissed. We have heard learned counsel for the parties and scrutinized the entire evidence on record oral as well as documentary. The appellants in this case were tried for having committed the murder of one Jumerati, father of the appellant no. 1 Khuda Bux @ Kodai and grand father of the appellant no. 2, Mushtaq Ahmad alias Babloo on 20.12.2000 at about 18.00 hrs. The F. I. R. of the incident was lodged by the P. W. 1 Nazib-un-nisa (complainant), daughter-in-law of the deceased on 20.12.2000 at about 20.15 hrs. In the F. I. R. P. W. 1 Nazib-un-nisa had projected herself as eyewitness of the occurrence and further nominated her husband Bashir and other villagers also as eyewitnesses. The F. I. R. of the incident was lodged by the P. W. 1 Nazib-un-nisa (complainant), daughter-in-law of the deceased on 20.12.2000 at about 20.15 hrs. In the F. I. R. P. W. 1 Nazib-un-nisa had projected herself as eyewitness of the occurrence and further nominated her husband Bashir and other villagers also as eyewitnesses. Learned counsel for the appellants while challenging the credibility of the F. I. R. in this case submitted that the written complaint of incident which was scribed on the spot by P. W. 3 Om Prakash Varma on the dictation of P. W. 1 Nazib-un-nisa (complainant) and on which she had put her thumb impression, was not given at the police station, instead a second report of the incident which was scribed by P. W. 3 Om Prakash Varma at the police station on the dictation of the police personnel in which the appellants were falsely arrayed as accused, was fabricated by the police although in the first report of the incident which was scribed at the place of incident, their names as accused were conspicuous by their absence and it was Bashir, husband of the informant, who was named as accused in the first written report of the occurrence. In support of his aforesaid submission, learned counsel for the appellants has invited our attention to the written report of the incident (Ext. Ka 1) purported to have been written by P. W. 3 Om Prakash Varma on the dictation of P. W. 1 Nazib-un-nisa (complainant) at the place of incident and submitted that the same bears the thumb impression of the complainant which had been obtained from an ink pad and is of royal blue colour whereas the P. W. 1 Nazib-un-nisa (complainant) in her cross examination has stated that her thumb impression which she had put on the written complaint of the incident, which was scribed by P. W. 3 Om Prakash Varma on the spot on her dictation, was obtained by her from a ''kajrouta' and was of black colour. The aforesaid fact has been admitted by P. W. 3 Om Prakash Varma also on page 29-30 of the paper-book in his examination-in-chief. The aforesaid fact has been admitted by P. W. 3 Om Prakash Varma also on page 29-30 of the paper-book in his examination-in-chief. Learned counsel for the appellants has further submitted that notwithstanding the fact that both P. W. 1 Nazib-un-nisa and P. W. 3 Om Prakash Verma have tried to depose that only F. I. R. of the incident was scribed but from the facts stated by P. W. 1 Nazib-un-nisa (complainant) in her examination-in-chief and in her cross examination and by Om Prakash Varma in his examination-in-chief it is unequivocally established that in this case two reports of the incident were scribed by P. W. 3 Om Prakash Varma, one on the dictation of P. W. 1 Nazib-un-nisa at the place of incident and the other on the dictation of police personnel at the police station which was brought on record as paper No. 14 ka/2 and marked as Ext. Ka 1 and hence the written complaint of the incident on the basis of which Case Crime No. 701 of 2000 was registered against the appellants was not the first information report of the incident. We have very carefully examined Ext. Ka 1, the written report of the incident which the prosecution claims to have been scribed by P. W. 3 Om Prakash Varma on the dictation of P. W. 1 Nazib-un-nisa (complainant) and we find that it bears her thumb impression obtained from an ink pad which is of blue colour. We have also been taken through the evidence of P. W. 1 Nazib-un-nisa (complainant) and P. W. 3 Om Prakash Verma, scribe of the F. I. R. on the aforesaid aspect of the matter by the learned counsel for the parties. P. W. 1 Nazib-un-nisa (complainant) in her examination-in-chief has categorically stated that she had used a ''kajrouta' for putting her thumb impression on the written report of the incident which was scribed by P. W. 3 on her dictation, after the same had been read out to her by him and that she fully understands the difference between ''kajrouta' and an ink pad and the ''kajrouta' which she had used for putting her thumb impression on the written report, was procured by her from someone in the village. P. W. 3 Om Prakash Varma in his examination-in-chief, upon his attention being drawn to Ext. Ka 1 during the trial has further deposed that Ext. P. W. 3 Om Prakash Varma in his examination-in-chief, upon his attention being drawn to Ext. Ka 1 during the trial has further deposed that Ext. Ka 1was scribed by him on the dictation of "daroga ji" on 21.12.2000 but on the instructions of "daroga ji" he had put the date as 20.12.2000 on Ext. Ka 1. On the same page he further stated that the incident had taken place in the evening of 20.12.2000 and he had scribed the written report of the incident at about 8.00 P. M. on the dictation of P. W. 1 Nazib-un-nisa in the village itself, on which she had put her thumb impression obtained by using a ''kajrouta'. Thus if evidence of P. W. 1 Nazib-un-nisa and P. W. 3 Om Prakash Verma is believed, then the thumb impression contained on Ext. Ka 1 should have been of black colour and obtained by using a 'kajrauta' and not an ink pad and since it is apparent even to a naked eye that the thumb impression of P. W. 1 Nazib-un-nisa imprinted on written report (Ext. Ka 1) is of blue colour and obtained by using an ink pad, we have no other option but to hold that Ext. Ka 1 on the basis of which, the case in hand, was registered against the appellants is neither the F. I. R. of the incident nor it was scribed by Om Prakash Verma on the dictation of P. W. 1 Nazib-un-nisa (complainant) but the same in fact was scribed by P. W. 3 Om Prakash Verma in the police station on the dictation of the police personnel and hence no reliance can be place on the prosecution version as spelt out in the F. I. R. (Ext. Ka1). Now coming to the appellants' counsel challenge to the credibility of the witnesses who were examined by the prosecution to prove the guilt of the appellants, we find that the prosecution in order to prove its case, as we have already noted hereinabove had produced four eyewitnesses P. W. 1, Nazib-un-nisa, P. W. 2, Gafoor, P. W. 4 Mohd. Rauf and C. W. 3 Bashir as eyewitnesses. Of these four eyewitnesses, P. W. 2 Gafoor, P. W. 3 Om Prakash Verma, P. W. 4 Mohd. Rauf were declared hostile after they failed to support the prosecution case in their evidence recorded during the trial. Rauf and C. W. 3 Bashir as eyewitnesses. Of these four eyewitnesses, P. W. 2 Gafoor, P. W. 3 Om Prakash Verma, P. W. 4 Mohd. Rauf were declared hostile after they failed to support the prosecution case in their evidence recorded during the trial. As far as the testimony of C. W. 3 Bashir is concerned, he on page 76 of the paper-book in his examination-in-chief has himself stated that the incident had taken place in the field of Gafur but immediately corrected himself by saying that the incident had taken place in the field of Ramanand Yadav. He then proceeded to depose that Jumrati had been killed at about 6.00 P. M. when he had gone to ease himself and his wife had seen the accused assaulting the deceased and on her raising hue and cry, he and other villagers including Gafur and Rauf had also reached the place of incident and had seen accused assaulting the deceased Jumrati. From the evidence of C. W. 3 Bashir it is crystal clear that he was not present at the place of occurrence at the time of actual assault and he had reached the place of incident after hearing the noise made by his wife and as such his evidence on the point of manner of assault and the identity of accused, is wholly immaterial. In view of the above, the only evidence left on record for proving the prosecution case is the evidence of P. W. 1 Nazib-un-nisa (complainant) alone. There is no doubt that according to well settled legal position, it is the quality and not the quantity, which matters and conviction can be based on the sole testimony of a witness if it finds corroboration with the other evidence available on record and inspires confidence. It is also well settled that minor discrepancies occurring in the statements of witnesses should be ignored. The credibility of the evidence of P. W. 1 has been challenged by learned counsel for the appellants on the ground that not only she is the daughter-in-law of the deceased Jumerati but also deeply interested in getting the appellants who are the brother and nephew of her husband Bashir convicted so that she and her husband could grab the entire property of the deceased Jumerati, after the appellants were sentenced to imprisonment for life and sent to jail. The question which arises for our consideration now is whether the evidence of P. W. 1 Nazib-un-nisa and C. W. 3 Bashir is liable to be discarded on the ground of their being related to the deceased or being interested witnesses. The law on the aforesaid issue is no longer resintegra and stands settled by a catena of decisions of the Apex Court. On the point of interested witnesses, the Hon'ble Supreme Court in State of U.P. Vs. 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. In Mst. Dalbir Kaur Vs. State of Punjab, 1976 Cr. L. J. 418 (S.C.) following observations were made:- (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. 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. Regarding evidentiary value of testimony of the interested or relatives witnesses, Hon'ble Supreme Court in Mano Dutt and another Vs. State of U.P. 2012 (77) ACC 209, has observed in paragraph no. 19 referring to the case of Namdeo Vs. State of Maharashtra (2007) 14 SCC 150 that this Court drew a clear distinction between a chance witness and a natural witness. Both these witnesses have to be relied upon subject to their evidence being trustworthy and admissible in accordance with law. Hon'ble Supreme Court in Waman and others Vs. State of Maharashtra 2011 Crl.L.J. 4827 has observed in paragraph no.9 which reads as follows: "In Balraje @ Trimbak Vs. Both these witnesses have to be relied upon subject to their evidence being trustworthy and admissible in accordance with law. Hon'ble Supreme Court in Waman and others Vs. State of Maharashtra 2011 Crl.L.J. 4827 has observed in paragraph no.9 which reads as follows: "In Balraje @ Trimbak Vs. State of Maharashtra, (2010) 6 SCC 673 ; (2010 AIR SCW 3707), this Court held that mere fact that the witnesses were related to the deceased cannot be a ground to discard their evidence. It was further held that when the eye-witnesses are stated to be interested and inimically disposed towards the accused, it has to be noted that it would not be proper to conclude that they would shield the real culprit and rope in innocent persons. The truth or otherwise of the evidence has to be weighed pragmatically and the court would be required to analyse the evidence of related witnesses and those witnesses who are inimically disposed toward the accused. After saying so, this Court held that if after careful analysis and scrutiny of their evidence, the version given by the witnesses appears to be clear, cogent and credible, there is no reason to discard the same." It has been further observed in Waman (supra) that relationship cannot be a factor to affect the credibility of a witness. The evidence of a witness cannot be discarded solely on the ground of his relationship with the victim of the offence. The plea relating to relatives' evidence remains without any substance in case the evidence has credence and it can be relied upon. In such a case the defence has to lay foundation if plea of false implication is made and the court has to analyse evidence of related witnesses carefully to find out whether it is cogent and credible. The same view has been reiterated in State of U.P. Vs. Naresh and others (2011) 4 SCC 324 ." Thus, the principle which is culled out from the reading of the aforesaid authorities is, that mere fact that the witnesses are related to the deceased or are interested or inimically deposed towards accused, cannot be a ground to discard their evidence and the truth or otherwise of their evidence, has to be weighed pragmatically and the court shall be required to analyse the evidence of related witnesses and the witnesses who are inimically deposed towards the accused with utmost caution. We now proceed to analyse and scrutinize the evidence of P. W. 1 Nazib-un-nisa on the touch stone of the aforesaid principle. Even the most superficial perusal of the examination-in-chief of P. W. 1 Nazib-un-nisa shows that she has fully corroborated the allegations made by her in the written report (Ext. Ka 1) on all material particulars including the time, place of incident and the manner of assault. She has further deposed in her examination-in-chief that Jumerati had three sons namely, Khuda Bux alias Kodai, Israil and Bashir, husband of Nazib-un-nisa (complainant). The appellants Khuda Bux alias Kodai and Mushtaq Ahmad alias Babloo had become inimical towards her father-in-law Jumerati after he had transferred his land of village Barhara to her husband Bashir and it was on account of the aforesaid enmity they had committed the murder of Jumerati. However, learned counsel for the appellants by inviting our attention to the cross examination of P. W. 1 Nazib-un-nisa (complainant) and C. W. 3 Bashir has submitted that both P. W. 1 Nazib-un-nisa (complainant) and C. W. 3 Bashir have in their evidence admitted that about 92 decimal of land belonging to deceased Jumerati in village Barhara was illegally sold by C. W. 3 Bashir to Mansoor and others and when late Jumerati demanded the payment of amount received by Bashir from Mansoor and others as sale consideration from the aforesaid sale transaction from Bashir, he refused, on which Jumerati got very angry with him and threatened to transfer his land of village Barhara to his son Khuda Bux alias Kodai and grand son Mushtaq Ahmad alias Babloo, S/o Israil, his pre-deceased son. He further submitted that since Bashir had misappropriated the entire amount of sale consideration received by him from his vendors Mansoor and others from the sale of the land of his father Jumerati he realised that in case his father succeeded in transferring his land of village Barhara to the appellants, in that case his vendors would insist on refund of the amount received by him from them as the sale consideration received from the transfer of the land of Jumerati to them without any right or title as admittedly name of Bashir was never recorded in the revenue records as the owner of the land in question in place of Jumerati and it was not possible for him to refund the sale amount to his vendors, thus in order to avoid the aforesaid situation he hatched the conspiracy with his wife to commit the murder of his father Jumerati before he transferred / bequeathed his land in village Barhara to the appellants and in pursuance of the aforesaid conspiracy he with the aid of his wife, P. W. 1 Nazib-un-nisa (complainant) committed the murder of his father and falsely implicated the appellants on the basis of a false and fabricated F. I. R. Learned counsel for the appellants has also submitted that since Jumerati was going to transfer the land in question in the favour of the appellants, there was no occasion for them to commit the murder of Jumerati and it was Bashir and his wife, who alone had the strongest motive to eliminate Jumerati before he transferred / bequeathed his property in favour of the appellants otherwise Bashir would have landed up in deep trouble and hence in view of the aforesaid, it is crystal clear that P. W. 1 Nazib-un-nisa (complainant) did not speak the truth in her evidence recorded before the trial court and falsely implicated the appellants and deliberately concealed the identity of the real perpetrators of the crime and hence in the absence of any corroboration of her evidence with any other witness or evidence would not be safe to convict the appellants on the basis of her sole testimony. Record of this case shows that P. W. 1 Nazib-un-nisa (complainant) on page 13 and 14 of the paper-book in her cross-examination has admitted that Jumerati had neither bequeathed nor transferred the 92 decimal of land of village Barhara in favour of her husband by any registered document. About 10-20 years before her husband had transferred the land in question to Mansoor by a sale-deed which had not been challenged either by Jumerati or Israil or Khuda Bux alias Kodai. She further admitted that her father-in-law Jumerati was demanding payment of the money received by her husband Bashir from the sale of his 92 decimal land of village-Barhara which he had failed to pay him. On page 17 of the paper-book P. W. 1 Nazib-un-nisa denied the suggestion given to her by the defence counsel that before his murder Jumerati was going to execute a sale-deed in favour of the appellants in respect of his entire property, but then she herself added that she was not aware that the deceased was going to transfer his 92 decimal land to the appellants on the next day of his murder. She also denied the suggestion given to her by defence counsel that her husband had come to know that his father was going to transfer the land of the village Barhara to the appellants on the date of the incident itself. C.W. 3 Bashir on page 77 of the paper-book has in his examination-in-chief stated that his father Jumerati was angry with him after he had sold his land and was also threatening him with dire consequences and since Jumerati had not given any land to him he was murdered. He then hastened to add that Jumerati had distributed his land among all his heirs on which the accused had become inimical towards him and had committed his murder but he denied the suggestion given to him by the defence counsel that before he was murdered, deceased Jumerati was going to execute a will in respect of his entire movable and immovable properties in favour of Khuda Bux alias Kodai, appellant no. 1 and Jahir-un-nisa, the mother of the appellant no. 2 Mushtaq Ahmad alias Babloo and Bashir (C. W. 3) on 24.12.1998. 1 and Jahir-un-nisa, the mother of the appellant no. 2 Mushtaq Ahmad alias Babloo and Bashir (C. W. 3) on 24.12.1998. He further denied the suggestion given to him by defence counsel that the deceased Jumerati had executed a will-deed on 24.12.1998 in his favour as well as in favour of the appellants Khuda Bux alias Kodai and Jahir-un-nisa, the mother of the appellant no. 2 Mushtaq Ahmad alias Babloo bequeathing his properties to them. It has also come in the evidence of C. W. 3 Bashir that after the murder of Jumerati he had transferred the land of village Barhara to Gafur and Phenku but on being asked as to how he had acquired his title over the land which he had sold to Gafur and Phenku, he kept silent. Thus, from the facts which have been elicited by the defence counsel from the cross-examination of P. W. 1 Nazib-un-nisa and C. W. 3 Bashir and the suggestions given by him to them, it transpires that the deceased Jumerati had given some portion of his land in village Barhara to his son Bashir but there is no document on record proving that the land of village Barhara was legally transferred by Jumerati to Bashir, his son from his first wife. It appears that although Bashir had no title in the land of village Barhara, yet he sold the same to Mansoor and others and when the deceased learnt about the aforesaid sale transaction, he asked Bashir to pay to him the money received by him from his vendors from the sale of his land of village Barhara but when Bashir refused to make any payment to him Jumerati got angry with Bashir and decided to execute a will in respect of his entire movable and immovable properties in favour of the appellant no. 1 Khuda Bux alias and Jahir-un-nisa, the mother of the appellant no. 2, Mushtaq Ahmad alias Babloo and Bashir. However a day before the day on which the will was proposed to be executed by Jumerati, he was murdered. 1 Khuda Bux alias and Jahir-un-nisa, the mother of the appellant no. 2, Mushtaq Ahmad alias Babloo and Bashir. However a day before the day on which the will was proposed to be executed by Jumerati, he was murdered. Under the facts and circumstances of the present case, in our opinion, it cannot be said that the appellants had any motive to commit the murder of the deceased and the possibility of P. W.1 Nazib-un-nisa (complainant) falsely implicating the appellants for murder of Jumerati, cannot be ruled out and her evidence on the point of the identity of the perpetrators of the murder of her father-in-law Jumerati, does not inspire any confidence. In this regard it would be relevant to have a look at her cross-examination on page 19 of the paper-book wherein she has deposed that she had seen the accused who had come armed with kudal and knife, hiding their weapons in a brick klin at a distance of about 100 yards from the place of incident after committing the murder of Jumerati and she had disclosed the aforesaid fact to the police officer who was present at the police station where she had gone to lodge the F. I. R. From the aforesaid facts stated by her in her cross-examination it is apparent that she, for the reasons best known to her, has concealed the identity of the real accused and has falsely implicated the appellants in this case. In view of her knowledge about the place where the accused had allegedly hidden the crime weapons and her failure to disclose the aforesaid fact either in the F. I. R. or in her examination-in-chief, the possibility of the persons who had committed the murder of Jumerati being known to P. W. 1 Nazib-un-nisa (complainant) and her having accompanied them after the occurrence to the place where they had hidden the crime weapons and effecting a false recovery of the crime weapon on the alleged pointing out of the appellants fabricated by the police for creating fake evidence against them, although at the time of recovery the police had full information of the place where the crime weapons were concealed, as per the information given to them by P. W. 1 Nazib-un-nisa (complainant), cannot be ruled out. Thus on a close scrutiny of the statement of P. W. 1 Nazib-un-nisa (complainant) the witness produced by the prosecution in this case and C. W. 3 Bashir, we find that they had a direct interest in seeing that the appellants were convicted for the murder of Jumerati so that, they could usurp his entire estate and further that there are serious inconsistencies, omissions, improvements and contradictions in their statements at several places affecting the core of the prosecution case, raising doubts about her truthfulness and resultantly making the prosecution case unreliable and unworthy of credit. The version given by P. W. 1 Nazib-un-nisa and C. W. 3 Bashir does not appear to be clear or cogent or credible and thus, their evidence is liable to be discarded. For the aforesaid reasons, we are of the view that the prosecution has miserably failed to prove its case against the appellants beyond all reasonable doubts and hence the recorded conviction of the appellants and the sentence awarded to them by the trial court cannot be sustained and is liable to be set aside. Thus, this appeal succeeds and is allowed. The impugned judgement and order 15.4.2004 passed by the Additional Sessions Judge, Maharajganj in S. T. No. 131 of 2001, arising out of Case Crime No. 701 of 2000, under Section-302 IPC, P. S.-Kotwali Maharajganj, district-Maharajganj is set aside. The appellants Khuda Bux alias Kodai and Mushtaq Ahmad alias Babloo who are in jail, stand acquitted of all the charges framed against them 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 appellants are 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 appellants on receipt of notice thereof, shall appear before the Hon'ble Supreme Court.