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Allahabad High Court · body

2016 DIGILAW 4165 (ALL)

Radhey v. State of U. P.

2016-12-23

ARVIND KUMAR TRIPATHI, MUKHTAR AHMAD

body2016
JUDGMENT Mukhtar Ahmad, J. 1. This Criminal Appeal arises out of the judgment and order dated 13.03.1984 passed by Sessions Judge, Gorakhpur in S.T. No. 416 of 1983 convicting and sentencing each of the appellants to undergo imprisonment for life under Section 302 read with Section 34 IPC. 2. The prosecution case in nut shell is that a first information report was got lodged by one Garju Yadav, a co-villager alleging that in the night between 17th and 18th April, 1983, Madhu Sudan Yadav had slept in his Osara (verandah). The wife and son of deceased-Madhu Sudan had gone to his father-in-law to attend some ceremony. Chhotey Lal-PW-5 was sleeping in the Bungalow towards east of the house of deceased, while Jai Karan and Rama Nand were sleeping in the Osara of house of deceased. At about 1.30 in the night, these persons awoke on the scream raised by deceased- Madhu Sudan. The informant-Garju Yadav, Chhotey Lal, Rama Nand and Jai Karan rushed towards the place of occurrence by flashing their torches and in the light of torches, they saw that accused Radhe, Hari Prasad armed with Gupti and accused Sriram and Rajman armed with knives were assaulting the deceased-Madhu Sudan in his house; then they raised alarm, upon which all the accused fled away towards west by jumping over the boundary wall. It was also stated that there was some internal dispute between Madhu Sudan and Rajman regarding the properties. It was further asserted that due to fear the report could not be lodged in the night. The complainant-Garju got the report (Ex.Ka-1) scribe by Yoshoda Nand Singh and gave at the police station, in the morning at 6.05 AM at the police station, which is at about 7 Km. away from the place of occurrence. On getting the written report, in the presence of Station House Officer- Indra Jeet Singh (PW-9), of the Police Station, Head Constable Vishwa Nath Upadhyay (PW-4) prepared chick (Ex.Ka-4) and registered the case in the general diary (Ex.Ka-5). Indrajeet Yadav, SHO took the investigation in his hand and immediately proceeded to the place of occurrence and reached there at about 7.00 AM. He inspected the dead body of deceased-Madhu Sudan lying in the Sehan of his house. Indrajeet Yadav, SHO took the investigation in his hand and immediately proceeded to the place of occurrence and reached there at about 7.00 AM. He inspected the dead body of deceased-Madhu Sudan lying in the Sehan of his house. He prepared inquest report (Ex.Ka-6), sketch, challan, Form No. 33 and letter for post mortem( Ex.Ka-7 to Ka-10) and sent the dead body for autopsy through Constable Bishun Ram and Phool Chand. He then recorded the statements of witnesses, took in his possession the blood stained and plain earth and sealed them in separate packets (Ex.Ka-11). The torches were also inspected and were returned to the persons who had seen the occurrence. He made efforts for the arrest of the accused and also prepared site Plan (Ex-Ka-13). After completing investigation, he submitted charge sheet against the accused-appellants under Section 302 IPC. Learned Magistrate concerned committed the case to the Court of Sessions, where charge under section 302 read with Section 34 IPC were framed against the accused-appellants, who pleaded not guilty and claimed to be tried. 3. In order to bring home the charge against the appellants, the prosecution has examined as many as nine witnesses. P.W.1-Garju Prasad is the informant, P.W.2 is Dr. Dilshad Alam who conducted post mortem on the dead body. P.W.3 Gorakh Singh is the second Investigating Officer. P.W.4-Head Constable Vishwanath Upadhyay, is the inscriber of chick FIR and G.D. P.W.5 Chhotey Lal and P.W.6 Rama Nand are the eye witness, Ms. Sohrati -P.W.7 is the wife of deceased-Madhu Sudan, besides P.W.8 Jeevan Ram is the witness of fact describing the property dispute between deceased and accused Rajman. P.W.9, Indrajeet Singh was the S.O. of the police Station concerned who started investigation. 4. Dr. Dilshad Alam (PW 2) conducted autopsy of the dead body of deceased-Madhu Sudan. In the estimation of doctor, deceased was 65 years of age, about ½ day had lapsed since his demise. He was having average physique, rigor mortis was present. He found following injuries on his body; 1-Incised wound 3" x 1 " x scalp deep on the left side forehead just above the root of nose, margin clean cut, placed obliquely. 2-Incised wound 1"x 1/2" x muscle deep on the left cheek, just below the left eye, lower lid. Margin clean cut. He found following injuries on his body; 1-Incised wound 3" x 1 " x scalp deep on the left side forehead just above the root of nose, margin clean cut, placed obliquely. 2-Incised wound 1"x 1/2" x muscle deep on the left cheek, just below the left eye, lower lid. Margin clean cut. 3-Penetrating wound 1 " x ½ " x chest cavity deep on the front of chest(Rt.) 1/2" above the Rt. Nipple. Margin clean cut. Placed obliquely, underlying rib fracture. 4-Incised wound 1" x 1/4" x muscle deep on the Rt. Side chest, 1" above the injury no.3 Margin clean cut. Placed obliquely. 5-Incised wound 2,1/2" x 1/4" x muscle deep on the front of Rt upper arm 4" below the right shoulder. Margin clean cut. Obliquely. 6-Incised wound 1" x 1/4" muscle deep on the back of Rt forearm, 3" above the Rt wrist joint. Margin clean cut. 7-Incised wound 1,1/2" x 1/4" x muscle deep on the Rt side abdomen 4" above the umbilicus. Margin clean cut. Placed obliquely. 8-Incised wound 1"x1/4" x muscle deep on the left upper arm. 4" below the left shoulder. Margin clean cut. 9-Incised wound 1" x 1/4" X muscle deep on the back, 1" below the root of neck. Margin clean cut. 10-Abrasion 1,1/2"x1/2" on the left shoulder. 5. In the opinion of Doctor, cause of death was shock and hemorrhage as a result of anti mortem injuries. After concluding prosecution evidence and statements of accused under section 313 Cr. P.C were recorded. They denied incriminating circumstances appearing in prosecution evidence, put to them. However, no oral evidence was adduced in defence except some papers. 6. Learned Trial Judge relying on the evidence adduced on behalf of the parties and in particular, the deposition of eye witnesses found the appellants guilty and sentenced them to undergo rigorous imprisonment for life and the story set up by the defence was disbelieved. Aggrieved by that judgment and order of conviction and sentence, the instant appeal has been preferred. 7. We have heard Sri G.S.Chaturvedi, learned Senior Counsel assisted by Mr. Anurag Shukla, appearing on behalf of appellants, Mr. Om Prakash Pandey and Promod Kumar Pandey for the complainant and Mr. Chandra Jeet Yadav, learned AGA for the State. 8. Learned Counsel for the appellants has assailed the impugned judgment on various grounds. 7. We have heard Sri G.S.Chaturvedi, learned Senior Counsel assisted by Mr. Anurag Shukla, appearing on behalf of appellants, Mr. Om Prakash Pandey and Promod Kumar Pandey for the complainant and Mr. Chandra Jeet Yadav, learned AGA for the State. 8. Learned Counsel for the appellants has assailed the impugned judgment on various grounds. It has been submitted that there is no evidence worthy of prudence to establish the prosecution case and the judgment impugned lies more on surmises than on facts proved beyond reasonable doubt. Initially, it has been argued that the first information report is belated and it was registered anti-time. In this regard, he submits that the alleged incident is said to have taken place in the night hours at about 1.30 AM in the intervening night of 17/18th April, 1983 and the first information report was lodged by Garju Yadav, a neighbour of the deceased at 6.05 AM on 18.4.1983. Learned Counsel for the complainant and learned AGA have denied these arguments by saying that all the accused persons were armed with weapons i.e. knives and Guptis and they had fled away towards west side of the house of deceased and it has been mentioned in the first information report that in the night due to fear of accused persons, information could not be given at the police station which is self explanatory. 9. Admittedly, first information report plays very important role in criminal justice. If it is delayed or anti-time, it affects prosecution case adversely, but in the matter in hand, the incident took place in the night hours at about 1.30 AM and the family members of deceased were not there, so the first information report was got lodged by his neighbour-Garju Yadav in the morning on 18.4.1983 at 6.05.AM and reason for not giving information in the night has been given in the first information report itself. Considering all the facts and all round circumstances, the explanation given on behalf of the complainant appears to be genuine and natural and the arguments advanced on behalf appellants do not inspire confidence. 10. Learned Counsel for the appellants further submits that P.W.5 Chhotey Lal and P.W.6 Ramanand are the chance witnesses and their presence has been shown by the prosecution with a view to give colour to prosecution version. 10. Learned Counsel for the appellants further submits that P.W.5 Chhotey Lal and P.W.6 Ramanand are the chance witnesses and their presence has been shown by the prosecution with a view to give colour to prosecution version. It is submitted that P.W.5 Chhotey Lal was said to be sleeping in the eastern bungalow of deceased-Madhu Sudan. The reason of not sleeping in his own house has been given that it was under repair. However, in para-6 of his oral testimony, he had deposed that in the night of incident, his wife, mother and children were sleeping in the same very house. It has also been stated by him that construction of his house was going on and he was sleeping in the Bungalow of deceased for the last 5-6 months. In this continuation, it is further submitted that P.W.6 Ramanand is also said to be sleeping in Osara of deceased- Madhu Sudan while his wife was alone in his own house and as per statement of this witness, he had come to the house of deceased only with a view to have a talk, but on the request of deceased that he was alone in the house, this witness slept but it is a matter of great surprise that he did not inform her young wife in this regard. On this ground, it is further submitted that since these witnesses are not reliable, their evidence should not be believed. 11. Per contra, learned AGA and learned Counsel for the complainant have denied these arguments. It is submitted that P.W.5 Chhotey Lal was sleeping in the bungalow of deceased for the last 5-6 months as his house was under construction so his presence was natural in the night of incident and P.W.6 Ramanand was also sleeping in Osara of deceased along with Jai Karan and his presence also cannot be considered unnatural so he himself can not be termed as chance witness. It is further submitted that evidence of trustworthy witnesses cannot be discarded just only on the ground that he was a chance witness. These witnesses of fact have witnessed the incident and they have given eye witness account in their oral testimony. So their evidence is trustworthy and reliable. 12. As per the prosecution version, son of deceased along with his mother had gone to his maternal grand father's house in a function. These witnesses of fact have witnessed the incident and they have given eye witness account in their oral testimony. So their evidence is trustworthy and reliable. 12. As per the prosecution version, son of deceased along with his mother had gone to his maternal grand father's house in a function. So admittedly, deceased- Madhu Sudan was alone in the house and P.W.5 Chhotey Lal , P.W.6 Ramanand and Jai Karan were sleeping in the house of deceased leaving their own houses. 13. A careful reading of the evidence available on record clearly speaks that by prosecution, strong reliance has been placed on the evidence of P.W.5-Chhotey Lal and P.W.6 Ramanand. They are said to be chance witnesses. It is settled proposition of law that the evidence of a chance witness cannot be brushed aside simply because he is a chance witness, but his presence on the spot of occurrence must be satisfactorily explained by the prosecution free from doubt. Besides this, subsequent conduct of chance witnesses may also be taken into consideration. In the case of Sarvesh Narain Shukla Vs. Daroga Singh and others (2007)13 SCC page 360, the Apex Court has been pleased to observe that if the Court comes to the conclusion that the testimony of a chance witness is credible, the evidence cannot be thrown out merely on the ground that witness happens to be present by chance. Keeping in mind the aforesaid situation, we have to scrutinize the evidence of P.W.5 and P.W.6 with caution. P.W.5 Chhotey Lal has stated that towards eastern portion of the residential house of deceased Madhu Sudan, there was his bungalow also and boundary wall is there between them. This witness says that in the night of occurrence, he was sleeping in his eastern portion of bungalow and deceased Madhu Sudan was sleeping in his house. In Osara (verandah), Ramanand - P.W.6 and Jai Karan were also sleeping. In the night at about 1.30 a.m, he heard noise of Madhu Sudun "are baap re yahi marte hain" on which, he awoke and rushed having torch of three cell in his hand towards the main gate of house of deceased. He flashed the torch and at that time, Garju, Ramanand and Jai Karan also rushed there. All these three persons were having torches in their hands. He flashed the torch and at that time, Garju, Ramanand and Jai Karan also rushed there. All these three persons were having torches in their hands. He further stated that at that time, he saw Madhu Sudan lying in his sehan towards east of pipe. The accused persons Radhey and Hari Prasad were assaulting him with Gupti and Sriram, Rajman were assaulting with knife. Blood was oozing from the body of the deceased. He also stated that all the accused persons belong to the same group and on the alarm having been raised by them, the accused persons fled away towards west by jumping over the boundary wall. In cross examination, this witness says that there is no other house between his house and house of Madhu Sudan. He further disclosed that his house is at a distance of about 25 steps from the door of Madhu Sudan-deceased. Showing the reason of his having slept in the house of Madhu Sudan, this witness says in para-6 of his statement that at the time of incident, his house was under construction and therefore, he was not residing in his own house which was in a dilapidated condition. It has also been stated that he has two houses in the village. The house in which, he was residing and which was under construction was inherited by him from maternal grand father and other house was inherited from the side of grand father in which, his father and other brothers were residing. 14. Ramanand-P.W.6 has disclosed that his own house is just adjacent to the house of deceased. In the night of incident, he was sleeping in the house of deceased. Jai Karan was also sleeping with him. The family of deceased-Madhu Sudan had gone to maternal grand father's house. It has also been stated that he had reached the house of deceased in the evening where he became late then deceased-Madhu Sudan requested him to sleep in the house as he was alone, on which, he and Jai Karan slept there on mat(bora). Deceased-Madhu Sudan was sleeping on a cot in Osara. Describing the incident, he said that after mid-night, when he heard cry of Madhu Sudan, then he awoke. He and Jai Karan were having torches and they saw that Madhu Sudan was being assaulted by the accused persons in sehan towards east of hand-pump. Deceased-Madhu Sudan was sleeping on a cot in Osara. Describing the incident, he said that after mid-night, when he heard cry of Madhu Sudan, then he awoke. He and Jai Karan were having torches and they saw that Madhu Sudan was being assaulted by the accused persons in sehan towards east of hand-pump. After hearing cry, Garju and Chhotey Lal also reached there. They were also having torches and seeing them the accused persons fled away towards west after jumping over the boundary wall. They reached to Madhu Sudan, he was found dead. Both these witnesses have thoroughly cross examined. 15. It is admitted that P.W. 5 -Chhotey Lal was sleeping in the bungalow of Madhu Sudan, though it has been asserted by him that since his own house was under construction and it was the reason that he was sleeping in the bungalow of Madhu Sudan-deceased situated towards east of the house of Madhu Sudan. In para-8 of his oral testimony, he has stated that on hearing cry of Madhu Sudan, he did not enter the boundary wall of his house and remain standing at the gate. In para-1, he has stated that after hearing cry, he reached towards the gate of Madhu Sudan having torch and at that time, Garju, Ramanand and Jai Karan also reached there. They were also having torches in their hands. It has also been stated by him that when at first instance, he saw Madhu Sudan, he was lying towards east of hand-pump and accused persons were assaulting him. Ramanand-P.W.6 in his oral testimony in para-5 stated that he awoke and saw Madhu Sudan at first instance lying near the hand-pump. This witness in para-3 has said that in the night of incident, he and his wife were residing in his house. Jai Karan was present in the house of Madhu Sudan when this witness reached there after taking dinner at about 8.00 PM. It has also been in the same paragraph that they used to sit with Madhu Sudan daily and earlier, he never slept in his house; that he and Jai Karan were sleeping near the cot of Madhu Sudan at a distance of about two hands ( do hath). It has also been in the same paragraph that they used to sit with Madhu Sudan daily and earlier, he never slept in his house; that he and Jai Karan were sleeping near the cot of Madhu Sudan at a distance of about two hands ( do hath). It is not disputed that P.W.5 Chhotey Lal despite the fact that his family was sleeping in his house which was under construction, but he slept in the bungalow of deceased and as per P.W.6 Ramanand, though his wife was alone in the house even then he was sleeping on mat in the house of deceased which shows that they were chance witnesses. On a comparative study of their testimony, it also transpires that P.W.5-Chhotey Lal who was sleeping in the bungalow of deceased towards east after hearing the cry of deceased rushed towards his house and he watched the incident from the gate and did not enter inside the house. P.W.6 Ramanand was sleeping in the house of deceased-Madhu Sudan only at about a distance of two hands (do hath) but this version of P.W.5 that after awaking, he came at the gate having torch and " usi samai vahan Garju, Ramanand and Jai Karan bhi pahaunch gaye". While in the site plan, place of watching the incident by P.W.5 and P.W.6 are at different places. As per the site plan, P.W.5 Chhotey Lal watched the incident from place 'H' which is about 11 steps from the place where the deceased was found dead and in the same site plan, place-'F' is shown where from Ramanand and Jai Karan watched the incident which is at about 12 steps where from the place where dead body was found. It may also be considered that when P.W.6 Ramanand was sleeping only at a distance of about two hands (do hath) from the cot where deceased was sleeping and naturally he would have awaken and would have watched the incident before watching of P.W.5. The site plan shows that dead body of deceased was found about 9 steps away from his cot. It may also be observed that if the P.W.6 was sleeping near the deceased, but he also watched the incident when deceased was lying near hand-pump. The site plan shows that dead body of deceased was found about 9 steps away from his cot. It may also be observed that if the P.W.6 was sleeping near the deceased, but he also watched the incident when deceased was lying near hand-pump. If the statement of P.W.5 is believed then P.W.6 also watched the incident from the gate and on the contrary and if reliance is placed on the statement of P.W.6, then P.W.5 watched the incident from the place where from P.W.6 watched the incident and both the version are contradictory to each other. Further, no attempt was made by these witnesses P.W.5 and P.W.6 to save the deceased when he was being assaulted by the accused persons with Gupti and knives. Both these witnesses stated that in the first instance, they saw the deceased lying near hand-pump which is also not appealing as P.W.5 was sleeping only at a distance of two hands (do hath) away from the deceased while P.W.6 was sleeping at about a distance of 16 steps from the place where the deceased was lying. Hence, considering the entire evidence of these witnesses, we are of the view that there are material contradictions in their evidence and it would not be safe to rely on their evidence. 16. Learned Counsel for the appellants submits that after excluding the evidence of PW.5 and PW.6 the solitary evidence of P.W.1 Garju Yadav remains who happens to be first informant of the incident. It has further been submitted that the house of Garju Yadav is towards western back side of the house of deceased and entrance in the house of deceased is from eastern side and this witness after hearing cries of deceased is said to have reached towards the house of deceased and watched the incident from gate, which is far away and as such it is highly doubtful that this witness watched the incident from beginning to end. It is also submitted that though conviction may be based on the evidence of solitary witness but it must be trustworthy and reliable, but in the matter in hand, evidence of P.W 1, first informant is full of contradiction and discrepancies. It is also submitted that though conviction may be based on the evidence of solitary witness but it must be trustworthy and reliable, but in the matter in hand, evidence of P.W 1, first informant is full of contradiction and discrepancies. Learned AGA and learned Counsel appearing for the complaint have denied these arguments by saying that though from the house of first informant, the main door of the house of deceased is towards east and one has to come from the house of first informant a crossing the back side and north side of the house of deceased, but actually it is just back of the house of deceased, and hearing noise of deceased was not unnatural and this witness thereafter rushed towards the house of deceased flashing the torch and his presence and oral testimony is reliable and cannot be discarded. 17. Now, P.W.1 remains as single eye witness of the incident. No doubt, conviction can be based on single eye witness account but the Court must be satisfied that his testimony should be of such a sterling quality that the Court finds it safe to base conviction. On this point, it would be proper to take into account the law delivered by the Supreme Court in the case of Bhimapa Chandappa Hosamani Vs. State of Karnataka (2006)11 SCC 323 . In para 24 of the judgment the Apex Court has observed as under; "24-We have undertaken a very close and critical scrutiny of the evidence of PW 1 and the other evidence on record only with a view to assess whether the evidence of PW 1 is of such quality that a conviction for the offence of murder can be safely rested on her sole testimony of a single eyewitness a conviction may be recorded, but it has also cautioned that while doing so the Court must be satisfied that the testimony of the solitary eye witness is of such sterling quality that the Court finds it safe to base a conviction solely on the testimony of that witness. In doing so, the Court must test the credibility of the witness by reference to the quality of his evidence. In doing so, the Court must test the credibility of the witness by reference to the quality of his evidence. The evidence must be free of any blemish or suspicion, must impress the Court as wholly truthful, must appear to be natural and so convincing that the Court has no hesitation in recording a conviction solely on the basis of the testimony of a single witness." 18. In Rai Sandeep @ Deepu Vs. State (NCT of Delhi) (2012) 8 SCC 21 the Apex Court has observed as under in para-22; "22-In our considered opinion, the "sterling witness" should be of a very high quality and caliber whose version should, therefore, be unassailable. The Court considering the version of such witness should be in a position to accept it for its face value without any hesitation. To test the quality of such a witness, the status of the witness would be immaterial and what would be relevant his the truthfulness of the statement made by such a witness. What would be more relevant would be the consistency of the statement right from the starting point till the end, namely, at the time when the witness makes initial statement and ultimately before the Court. It should be natural and consistent with the case of the prosecution qua the accused. There should not be any prevarication in the version of such a witness. The witness should be in a position to withstand the cross-examination of any length and howsoever strenuous it may be under no circumstance should given room for any doubt as to the factum of the occurrence, the persons involved, as well as the sequence of it. Such a version should have co-relation with each and every one of other supporting material such as the recoveries made, the weapons used, the manner of offence committed, the scientific evidence and the expert opinion. The said version should consistently match with the version of every other witness. It can be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. The said version should consistently match with the version of every other witness. It can be stated that it should be akin to the test applied in the case of circumstantial evidence where there should not be any missing link in the chain of circumstances to hold the accused guilty of the offence alleged against him. Only if the version of such a witness qualifies the above test as well as all other such similar tests to be applied, can it be held that such a witness can be called as a "sterling witness" whose version can be accepted by the Court without any corroboration and based on which the guilty can be punished. To be more precise, the version of the said witness on the core spectrum of the crime should remain intact while all other attendant materials, namely, oral, documentary and material objects should match the said version in material particulars in order to enable the Court trying the offence to rely on the core version to sieve the other supporting materials for holding the offender guilty of the charge alleged" 19. The evidence of this witness show that his own house is about 20-25 steps away from the house of deceased towards west and after hearing hue and cry, this witness came to the door of house of deceased which is towards east. This witness has deposed that he reached to the gate of the house of deceased by coming around passage which is towards north of the house of deceased. The site plan shows that P.W.1 considering the distance of his house ought to be the last witness reaching the gate. P.W.6 has stated that at first instance, they saw the deceased lying near the hand pump in the sehan(gher), but this witness deposed in his oral testimony in para-6 that on reaching the gate, he saw that accused Rajman and Sriram were assaulting with knives and Radhey and Hari Prasad were causing injuries with guptis. He further said that they were assaulting the deceased in Osara (verandah) and on alarm having been raised, all the accused persons ran away towards village after jumping over the boundary wall. He further said that they were assaulting the deceased in Osara (verandah) and on alarm having been raised, all the accused persons ran away towards village after jumping over the boundary wall. It has also been stated by him in the same paragraph that deceased Madhu Sudan succumbed to the injuries sustained at the same place; meaning thereby that this witness saw the incident from very beginning as when the deceased was assaulted in osara (verandah). As per his statement, deceased died in Osara(verandah) but in view of the statement of P.W.5 and P.W.6, the deceased was being assaulted by the accused persons in sehan (gher) and he died in sehan near the hand-pump. In the site plan, place where dead body of deceased was found has been shown by place ' B' which is admittedly not in Osara(verandah) and it is in Sehan(gher). This witness has stated at page 31 of paper book that "main rasta se ghumkar Madhu Sudan ke makan ke darwaje par gaya tha". He further stated that "jab main gate par pahuncha to maine muljiman ko Madhu Sudan ke Osare ke bahar poorab taraf marte dekha". His oral testimony shows that his examination-in-chief was recorded on 12.12.1983 and thereafter, his cross examination continued but it could not be concluded. Thereafter, his remaining cross examination was recorded on 04.01.1984 in which, he has stated that when he reached at the gate , he saw that the accused persons were assaulting him out side the Osara(verandah) and at that time, Madhu Sudan was about 3-4 steps away from Osara (verandah). He was lying on the ground and was crying which in our opinion is an improved version and his testimony consists severe contradictions and discrepancies and therefore, his evidence is not worthy of credence and in our opinion the conviction on the evidence of sole testimony of P.W.1 cannot be recorded. 20. In view of the discussion made above, we come to the conclusion that the evidence of eye witnesses P.W 5 Chhotey, P.W.6 Ramanand and first informant-Garju are not reliable. As such, there is no scope to sustain the conviction and sentence imposed on the appellant. In our view, the prosecution has failed to prove its case beyond reasonable doubt and the appellant deserves benefit of doubt. 21. In the result, appeal succeeds and is allowed. As such, there is no scope to sustain the conviction and sentence imposed on the appellant. In our view, the prosecution has failed to prove its case beyond reasonable doubt and the appellant deserves benefit of doubt. 21. In the result, appeal succeeds and is allowed. The impugned conviction and sentence awarded by the Trial Court in S.T. No. 416 of 1983 (State Vs. Radhey and others ) arising out of case crime no.30/83 under section 302 read with section 34 IPC vide impugned judgment and order dated 13-3-84 is hereby set aside. The appellant is on bail, hence his bail bonds are cancelled and sureties are discharged provided he furnishes fresh bail bonds with sureties in compliance of the provision under section 437 A Cr. P.C. before the Trial Court. The Court concerned shall ensure the compliance of the order. 22. Let office to communicate this judgment to the Trial Court concerned for ensuring compliance under intimation to this court.