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2017 DIGILAW 378 (ALL)

VED PAL v. STATE OF U. P.

2017-01-31

ARVIND KUMAR MISHRA I, BALA KRISHNA NARAYANA

body2017
JUDGMENT Hon’ble Arvind Kumar Mishra-I, J.—By way of instant criminal appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 25.4.1989 passed by V-Additional Sessions Judge, Muzaffarnagar, in Sessions Trial No. 57 of 1987 State v. Brahm Singh and another, arising out of Case Crime No. 200 of 1986 under Section 302/34 IPC, Police Station Bhopa, District Muzaffarnagar, whereby accused-appellant Ved Pal has been sentenced to life imprisonment under Section 302 read with Section 34 IPC. 2. Heard Sri S.S. Shah and Smt. Neeharika Singh, learned counsel for the appellant, Sri A.N. Mulla assisted by Sri Saghir Ahmed, Sri J.K. Upadhyay and Kumari Meena, learned AGAs for the State and perused the record of this appeal. 3. Facts germane giving rise to this appeal as reflected from record indicate that the informant Amar Pal son of Jagan Julah, resident of Village-Bhokar Hedi, Police Station Bhopa, District Muzaffanagar lodged the written report at Police Station Bhopa on 22.11.1986 at 9:35 p.m. regarding the incident of assault caused by the present accused-appellant in company with another co-accused on the informant’s brother Rohtash, thus injuring him around 8:30 p.m. on 22.11.1986, with specific allegations that some days ago, altercation took place between the informant’s brother Rohtash and the appellant Ved Pal son of Baljeet on some money transaction. The informant’s brother had beaten up the accused-appellant Ved Pal but the matter was settled amicably after intervention of the villagers, whereas, accused-appellant Ved Pal had grudge against informant’s brother. Today (22.11.1986) around 8:30 p.m., the informant’s brother was going to ‘Kolhu’ for preparing jaggery from his house alongwith informant. When they reached in front of house of Brahm son of Kannu, Ved Pal took the informant’s brother in his grip and exhorted Brahm for assaulting him, whereupon Brahm gave knife blow to the informant’s brother Rohtash on his chest. Alarm was raised by the informant and his brother, whereupon Bahav son of Sukkha Pathan, Randhir son of Hari Ram and Khachedu son of Genda Julaha bearing torch in their hands arrived on the spot and extricated his brother Rohtash. A number of persons arrived on the spot due to which the assailants fled away from the scene. It has been described in the First Information Report that the informant’s father took injured Rohtash by tractor to the hospital at Muzaffarnagar. A number of persons arrived on the spot due to which the assailants fled away from the scene. It has been described in the First Information Report that the informant’s father took injured Rohtash by tractor to the hospital at Muzaffarnagar. This report was scribed by Tej Pal Singh son of Bala Singh and has been proved by Amar Pal PW-2 as Ext. Ka-1. 4. Relevant entries were made in the concerned Check FIR No. 189 of 1986 at 9:35 p.m. on 22.11.1986 at Case Crime No. 200 of 1986 under Section 307 IPC, Police Station Bhopa, District Muzaffarnagar and on the basis of the same, case was registered against the two accused persons including the present appellant. 5. Record reflects that the injured Rohtash was medically examined by Dr. C.S. Rawat at District Hospital Muzaffarnagar, the night intervening 22/23.11.1986 at 12:10 a.m., who noted the following injuries on the person of the injured Rohtash : 6. Incised wound 3 cm x 1 cm x not probed on left side of chest 2 cm below inner end of left clavicle and 8.5 cm above left nipple. Margins clean cut. Fresh bleeding present. Air is coming out from the wound. 7. It was also stated that the injured was hurriedly examined and in the opinion of the doctor, injury was caused by some sharp edged weapon and kept under observation. Duration fresh. Patient was admitted and police was informed. This medical examination report has been proved by Dr. C.S. Rawat PW-8 as Ext Ka-4. 8. We also gather that during course of treatment the very same night around 1:45 a.m. on 23.11.1986, the injured Rohtash expired at District Hospital Muzaffarnagar, whereupon information was given at Police Station Bhopa by Head Constable Dharamveer Singh at 3:25 a.m. on 23.11.1986. Therefore, the case was converted from Section 307 IPC to Section 302 IPC. Inquest was prepared by S.I. Ishrat Ali on 23.11.1986. It commenced at 9:45 a.m. and completed at 10:30 a.m. Constable Tej Pal PW-11 claims himself to have been acquainted with handwriting of S.I. Ishrat Ali and has proved handwriting of Ishrat Ali on inquest report Ext. Ka-9. 9. In the opinion of witnesses and S.I. Ishrat Ali, it was thought proper to send the dead body for post-mortem examination in order to ascertain cause of death. Ka-9. 9. In the opinion of witnesses and S.I. Ishrat Ali, it was thought proper to send the dead body for post-mortem examination in order to ascertain cause of death. In the process, relevant papers say letter to CMO, photonash, letter to R.I. and challan dead body police form 13 were prepared which papers have also been proved by Constable Tej Pal PW-11 as Exts. Ka-10, Ka-11, Ka-12 and Ka-13, respectively. 10. Thereafter, the dead body of the deceased Rohtash was sent for post-mortem examination at District Hospital, Muzaffarnagar. Post-mortem examination on the cadaver of the deceased Rohtash was conducted by Dr. J.R. Jiani PW-7, on 23.11.1986 at 2:00 p.m. who found following ante-mortem injuries: (1) Stitched wound (one stitch) on left upper chest 2 cm below clavicle 9 cm above left nipple after removing stitch, incised wound 2.3/4 cm x 1 cm x cavity deep underneath 2nd rib anterior part, upper border cut and lung cut. (2) Abrasion 2 cm x 1 cm on back of left elbow. 11. Cause of death was spelt to be shock and haemorrhage as a result of injury No. 1. Post-mortem examination report contains fact that the deceased expired in the hospital on 1:45 a.m. on 23.11.1986 vide enclosure No. 7. This post-mortem examination report has been proved by the doctor PW-7 as Ext. Ka-3. 12. After lodging of the report and registration of the case at Police Station Bhopa, investigation was taken over by Rakesh Chandra Sharma, PW-9 on 22.11.1986. He took note of contents of Check FIR, recorded statement of the informant as well as scribe and set off for the spot the very same day and arrived on the spot on 23.11.1986. He inspected spot and prepared spot map Ext. Ka-5, also prepared specimen of simple and blood stained soil from spot Ext. Ka-6. He also arrested another co-accused and recovered knife from him and prepared memo of knife on 23.11.1986 as Ext. Ka-7. PW-9 says in the last line of his examination in chief that after death of the injured Rohtash on 23.11.1986, the investigation was taken over by Station House Officer, thus investigation stood transferred. 13. Ka-6. He also arrested another co-accused and recovered knife from him and prepared memo of knife on 23.11.1986 as Ext. Ka-7. PW-9 says in the last line of his examination in chief that after death of the injured Rohtash on 23.11.1986, the investigation was taken over by Station House Officer, thus investigation stood transferred. 13. Another Investigating Officer, Laxmi Narain Sharma PW-10 recorded statement of witness Khachedu and proceeded to spot alongwith S.I. R.C. Sharma and also recorded statement of Bahav, Randhir and Jagan father of the deceased Rohtash and prepared memo of blood stained clothes of the deceased which were handed over to him (Investigating Officer PW-10) on 25.11.1986 and prepared memo of the same as Ext. Ka-7. He visited hospital and obtained injury report of the deceased Rohtash. He also took statement of the accused Ved Pal in Muzaffanagar Jail. He obtained copy of inquest report and post-mortem examination report. Then he went to village Bhokar Hedi and recorded statement of the prosecution witnesses. He lastly recorded statement of S.I. Ishrat Ali at Muzaffarnagar who held inquest process. Thereafter, the Investigating Officer PW-10 filed charge-sheet against the accused-appellant Ext. Ka-8. Report from Forensic Science Laboratory was also obtained on 24.11.1987. 14. As a sequel to that, the case was committed to the Court of Sessions from where it was transferred for conduction of trial and disposal to the aforesaid trial Court i.e. V-Additional Sessions Judge, Muzaffarnagar who after hearing the accused-appellant on point of charge and also after hearing the prosecution and perusing the record was satisfied prima facie case against the accused-appellant Ved Pal and, accordingly, framed charge under Sections 302/34 IPC. Charge was read over and explained to the accused-appellant who abjured charge and opted for trial. 15. Thereafter, the prosecution was required to adduce its testimony in support of charge in order to establish guilt of the accused-appellant beyond reasonable doubt. In turn, the prosecution produced in all eleven witnesses whose description is as here below: 16. Khachedu PW-1 is witness to fact of the incident. Amar Pal PW-2 is the informant and he is also eye-witness. He has lodged the written report Ext. Ka-1. Bahav Khan PW-3 is hostile witness. He did not support case of the prosecution that he saw the accused committing crime. Khachedu PW-1 is witness to fact of the incident. Amar Pal PW-2 is the informant and he is also eye-witness. He has lodged the written report Ext. Ka-1. Bahav Khan PW-3 is hostile witness. He did not support case of the prosecution that he saw the accused committing crime. Harpal Singh PW-4 and Virendra PW-5 are witnesses of fact of recovery of knife but they have turned hostile and have not supported fact of any recovery before themselves. Randhir PW-6 is witness of fact of occurrence. Dr. J.R. Jiani PW-7 conducted post-mortem examination on the dead body of Rohtash on 23.11.1986 at 2:00 p.m. and has proved process and post-mortem examination report Ext. Ka-3. Dr. C.S. Rawat PW-8 has medically examined the deceased Rohtash on 23.11.1986 at 12:10 a.m. and has noted injury found on his person. He has proved injury report of the deceased Rohtash Ext. Ka-4. Rakesh Chandra Sharma PW-9 is the first Investigating Officer who remained in charge of the investigation only till 23.11.1986 and has proved his part of investigation and particularly preparation of the site plan Ext. Ka-5, preparation of specimen simple and blood stained soil Ext. Ka-6 and also prepared recovery memo of knife Ext. Ka-7. S.I. Laxmi Narain Sharma PW-10 is the second Investigating Officer of this case who took over investigation after the case was converted under Section 302 IPC on death of Rohtash at 1:45 a.m. on 23.11.1986 at District Hospital Muzaffarnagar. He has proved process, various papers and particularly charge-sheet Ext. Ka-8. Constable Tej Pal PW-11 has proved inquest report Ext. Ka-9 and relevant papers for sending the dead body of Rohtash for post-mortem examination. 17. Except as above, no other testimony was adduced by the prosecution. Consequently, evidence for the prosecution was closed and statement of the accused-appellant was recorded under Section 313 Cr.P.C. wherein he did not involve himself in this case instead claimed false implication on the ground that he had lodged earlier a report regarding theft committed by son of brother of son in law of the deceased Rohtash. 18. No evidence, whatsoever, was led by the accused/defence. 19. Learned trial Judge after hearing the parties on merit recorded aforesaid conviction against the accused-appellant and sentenced him to imprisonment for life under Section 302/34 IPC vide impugned judgment and order dated 25.4.1989. 20. Consequently, this appeal. 21. 18. No evidence, whatsoever, was led by the accused/defence. 19. Learned trial Judge after hearing the parties on merit recorded aforesaid conviction against the accused-appellant and sentenced him to imprisonment for life under Section 302/34 IPC vide impugned judgment and order dated 25.4.1989. 20. Consequently, this appeal. 21. It has been vociferously claimed on behalf of the accused-appellant that false implication of the accused-appellant is discernible from scattered and sketchy testimony of motivated prosecution witnesses. The wholesome view of entire factual testimony regarding occurrence itself is grossly contradictory in material particulars. The prosecution testimony of fact woefully lacks consistency and coherence in regard to manner and style of occurrence and arrival of witnesses on the spot. Fact is that no one actually saw the incident and offence was committed by some unknown person in the darkness of night and when people arrived on the spot, they found Rohtash injured and then after deliberation with the police, the accused-appellant was made prey to the aforesaid incident due to animosity that he had lodged report regarding theft against one of the persons related to the informant’s side. There was no motive for committing crime, either. 22. Learned counsel for the accused-appellant has further contended that the motive suggested in the written report Ext. Ka-1 itself speaks volume of amicable settlement of dispute by intervention of villagers but collusive approach was instigated by the police when it was inserted with extraneous motive to give vent to animosity that the informant’s side had against the accused because he had beaten Rohtash earlier. The prosecution witnesses on the whole do not give consistent version of the incident but they are twisting and distorting fact of the incident at their own convenience which one can ordinarily scrutinize on simple reading of their testimony. There was no motive for the accused-appellant to commit any such crime. Since the prosecution has not been able to establish its charge beyond reasonable doubt, learned trial Judge while appreciating facts and evidence on record took recourse to the conjectures, surmises and whims, in recording the finding of conviction which is based on no evidence. 23. Learned AGA while retorting to the aforesaid contentions has submitted that the accused-appellant has been named in the First Information Report. The description of incident was specifically narrated in the written report and the same has been duly proved by testimony of various prosecution witnesses. 23. Learned AGA while retorting to the aforesaid contentions has submitted that the accused-appellant has been named in the First Information Report. The description of incident was specifically narrated in the written report and the same has been duly proved by testimony of various prosecution witnesses. Their testimony on the whole inspires confidence and prove factum of incident being committed by the accused-appellant which resulted in injuries being caused to Rohtash who later on succumbed to his injuries during course of treatment at District Hospital Muzaffarnagar at 1:45 a.m. on 23.11.1986. 24. Learned AGA has further submitted that the motive for committing the crime has been specifically described in the written report. Moreover, in such case like the present one, where eye account testimony is forthcoming, point of motive loses significance and becomes redundant. The accused-appellant Ved Pal had earlier altercation with the deceased Rohtash. The deceased Rohtash had beaten the accused-appellant Ved Pal, for which the matter ended only at the intervention of the villagers but the accused-appellant Ved Pal had grudge against the deceased Rohtash, therefore, he (Ved Pal) conspired with another co-accused and in collusion with him, committed crime. The trial Court has taken correct view of law and has justifiably recorded conviction against the accused-appellant. 25. We have also considered rival submissions and also rival claims and after perusing the record, the moot point for determination of this appeal centres around fact whether the prosecution has been able to successfully establish charge against the accused-appellant beyond reasonable doubt, or the occurrence was in fact not seen by any of the prosecution witnesses as claimed by the accused-appellant. 26. In this case, death of Rohtash is admitted that it took place at 1:45 a.m. on 23.11.1986 during course of treatment at District Hospital Muzaffarnagar. The point to be decided at this stage basically rests on the anvil of perpetrator of the crime as to who caused the incident and whether it was in fact caused by the accused-appellant Ved Pal. 27. Bare perusal of the written report Ext. Ka-1 gives the first impression that the incident occurred around 8:30 a.m. on 22.11.1986 and was allegedly caused by involvement of the present accused-appellant Ved Pal and another co-accused. 27. Bare perusal of the written report Ext. Ka-1 gives the first impression that the incident occurred around 8:30 a.m. on 22.11.1986 and was allegedly caused by involvement of the present accused-appellant Ved Pal and another co-accused. It has been specifically stated in the written report that the accused-appellant Ved Pal tightened his grip on the deceased Rohtash and exhorted another co-accused to open assault on him who gave knife blow on the chest of the deceased Rohtash. At that point of time, the deceased was being accompanied by the informant Amar Pal. Alarm was raised by the informant and the deceased Rohtash when Bahav son of Sukkha Pathan, Randhir son of Hari Ram and Khachedu son of Genda Julaha bearing torch in their hands arrived on the spot. A number of villagers also arrived on the spot. It means that when the incident was witnessed directly by the informant Amar Pal, he alongwith his brother when raised alarm then the other witnesses arrived on the spot and this aspect of the case engages our attention insofar as testimonial description of the incident has been given by the prosecution witnesses of fact which we will scrutinize at this stage. 28. Kachedu, the witness named in the written report has been examined as PW-1, Amar Pal, informant has been examined as PW-2 and Randhir has been examined as PW-6. Noticeable that Bahav Khan who has also been named as prosecution witness in the written report has not supported the prosecution version before the trial Court and has not testified to fact that offence was committed by the accused-appellant. He has been declared hostile and cross-examined by the State. 29. Cumulative testimony of aforesaid witnesses of fact PW-1, PW-2 and PW-6 shows that all these witnesses are improving and vacillating on vital aspects of occurrence. They have been cross-examined also. They have tried to improve and they are vacillating. If version of one prosecution witness of fact is taken to be correct version of the incident then version of the other aforesaid witnesses of fact regarding commission of offence puts occurrence under clouds. 30. Khachedu PW-1 says in his examination in chief that it was around 8:30 p.m., he was at his home when he heard some noise and arrived in front of house of Brahm and his house lies at distance of 100 steps from house of Brahm. 30. Khachedu PW-1 says in his examination in chief that it was around 8:30 p.m., he was at his home when he heard some noise and arrived in front of house of Brahm and his house lies at distance of 100 steps from house of Brahm. Accused-appellant Ved Pal had taken the deceased Rohtash in his grip, Brahm gave him knife blow. Randhir and Bahav Khan also arrived on the spot. Amar Pal, brother of the deceased Rohtash was also with him. He has testified that he rescued Rohtash from assailants. Accused-appellant Ved Pal and Brahm made their escape good. Rohtash sustained knife injury and was taken by his father to Hospital at Muzaffarnagar by tractor. Then this witness (PW-1) went to his home and he heard about death of Rohtash around 10:00 - 11:00 p.m. in the night. 31. His cross-examination (PW-1) as emerging on page 13 of the paper book is quite interesting because he testifies to fact that he heard noise “Maar Liya” (assaulted), the accused-appellant had tightened his grip, alarm was raised only after assault had taken place and after assaulting, the accused had fled away from the scene and this witness arrived on the spot after alarm was raised; meaning thereby; he did not witness actual occurrence of assault being caused to the deceased by involvement of the present accused-appellant. He says on the same page that he was the first person to arrive on the spot and he saw Amar Pal and Rohtash coming from eastern side. 32. On that point of time, Rohtash was ahead of Amar Pal by 4-5 steps. He again continues to say that he saw Rohtash lying on the ground to the west of Brahm’s door. All the people of locality had arrived on the spot then he went to his home. He says that the police did not come before him and his statement was not recorded by the police. He has been suggested about Dhanush Pal and has been asked whether he knows Dhanush Pal who is his relative and is son of his brother in law, and whether any report was lodged against Dhanush Pal by the accused-appellant Ved Pal for offence of theft, whereupon this witness (PW-1) has expressed his ignorance of fact of lodging of any report against Dhanush Pal for the offence of theft. 33. 33. An ordinary prudent person would hardly be convinced by such sketchy and parochial testimony of PW-1 as emerging in his cross-examination. It cannot be said by any stretch of imagination that he was really present on the spot and he actually saw the occurrence. His testimony itself gives rise to lot of doubts about his presence on the spot and he being an eye-witness of the occurrence. Once he says that he was the first person to arrive on the spot and then he saw Amar Pal and Rohtash coming from eastern side and he has also testified to fact that he heard noise and the accused had fled away and alarm was raised only after knife blow was given to the deceased Rohtash. 34. In his examination in chief, he (PW-1) gives distance of his house up to the place of occurrence in front of house of Brahm as 100 steps; meaning thereby that at that point of time when he heard noise, he was in his home and he covered at least 200-250 feet - about 100 steps up to the place of occurrence. This must have taken at least some moment and testimonial description of occurrence puts it that alarm was raised only, assault had already been caused and the accused had fled away but he cannot say that he came to the rescue of the deceased Rohtash and he extricated the deceased Rohtash but this version is not convincing in view of the other testimonial description of occurrence that he saw Amar Pal and Rohtash coming from eastern side. Thus, it would not be safe to place reliance on testimony of PW-1. Therefore, wholesome scrutiny of his testimony gives impression that he did not see the occurrence and he arrived on the spot only after occurrence had taken place and the accused had fled away from scene. This way, testimonial account of occurrence proves that this witness (PW-1) is not reliable. 35. Now we may analysis particular aspect of Amar Pal, informant PW-2. This way, testimonial account of occurrence proves that this witness (PW-1) is not reliable. 35. Now we may analysis particular aspect of Amar Pal, informant PW-2. We have just discussed fact that PW-1 saw Amar Pal and Rohtash coming together from eastern side, but it is quite surprising that entire written report and testimony as emerging in examination in chief of Amar Pal PW-2 is woefully silent on point as to how and why and under what compulsion, Amar Pal did not try to save his brother Rohtash when he was accompanying him (Rohtash) and PW-1 claims that he arrived on the spot and then only he extricated the deceased Rohtash from the assailants. At that point of time, what Amar Pal was doing, is not clear. This is particular circumstance and the prosecution also owes explanation on this specific aspect of occurrence. This may sound normal condition to a strong circumstance pointing presence and absence of the informant on the spot. 36. Insofar as witness of occurrence, Bahav Khan is concerned, we have already discussed that he has not supported the prosecution version and has turned hostile. Another witness of fact is Randhir (PW-6) who is also named witness in the written report, has stated in his examination in chief regarding occurrence that it was around 8:30 p.m. on that day, he was going to take Bidi at the shop of Mobin. Bahav Khan PW-3 was also accompanying him. He was possessing torch when he came near house of Brahm then he heard some noise and saw Ved Pal taking Rohtash in his grip and Rohtash caused knife blow on him. It is noticeable that knife blow was in fact caused by another accused on Rohtash, whereas, Rohtash did not cause any knife blow on him. It appears that in place of the accused, witness has wrongly spelt name of Rohtash. It is a clerical mistake apparent on record. We will take name of Rohtash here as another accused than the present appellant for the purpose of our appreciation. 37. Randhir PW-6 adds in his examination in chief and clarifies his position that Brahm gave knife blow and fled away. It is a clerical mistake apparent on record. We will take name of Rohtash here as another accused than the present appellant for the purpose of our appreciation. 37. Randhir PW-6 adds in his examination in chief and clarifies his position that Brahm gave knife blow and fled away. However, he continues in the same vein and testifies that brother of Rohtash was also there who arrived on the spot after hearing ‘Rukka Kaula’ (noise); meaning thereby even Amar Pal was not initially accompanying his brother Rohtash while assault was caused. He arrived on the spot only after alarm was raised. 38. Insofar as presence of PW-6 on the spot is concerned, we come across some improvement made by this witness in his testimony that he was going to take Bidi from shop of Mobin and he saw the occurrence around 8:30 p.m. No such statement was given to the Investigating Officer. Laxmi Narain Sharma PW-10 has clarified the position as appearing in the statement of PW-6 that Randhir PW-6 has stated that he alongwith Bahav were going to meet Yamin. He also says that Randhir did not give him any Battery (Torch) and he did not see any such Battery. PW-6 himself admitted this anomaly in his cross-examination on page 23 of paper book when he was confronted by the defence about specific fact that at that point of time he was going to take Bidi but no such statement was recorded by Daroga Ji, he says he cannot assign any worthy reason, if Daroga Ji has recorded his statement to the extent that he was going to meet Yamin. On the same page, he says that he cannot say of what make was his Battery (Torch) and he cannot say as to how Daroga Ji wrote make of Battery (Torch) as eveready. 39. Laxmin Narain Sharma PW-10 has specifically stated that Randhir PW-6 never gave him any Battery (Torch) nor did he see any Battery (Torch). He has testified to fact that Randhir PW-6 has stated to have been possessing ‘eveready’ torch. Here also, on the point of possession of Battery (Torch) by PW-6 becomes suspicious because PW-6 says that he does not know make of his Battery (Torch) whether it was eveready or not. Then how can he spell specific make of his Battery (Torch) to the Investigating Officer. Here also, on the point of possession of Battery (Torch) by PW-6 becomes suspicious because PW-6 says that he does not know make of his Battery (Torch) whether it was eveready or not. Then how can he spell specific make of his Battery (Torch) to the Investigating Officer. PW-6 Randhir has specifically stated on page 22 of the paper book in his cross-examination that at the time of his arrival on the spot, he saw two accused persons alongwith the deceased Rohtash and he was possessing Battery (Torch) of three cells and Battery (Torch) was taken by Daroga Ji but he did not prepare any memo of it. He testified on the same page that Khachedu informed about the incident at the house of the deceased Rohtash. Obviously, this testimony establishes fact that Amar Pal was not accompanying the deceased Rohtash at the time of occurrence because on arrival, this witness (PW-6) saw only two assailants and the deceased on the spot. His testimony on page 23 of the paper book is quite surprising that on arrival on the spot, he saw assailants committing crime after alarm was raised but he cannot say as to in which direction the accused fled away from scene. 40. This is again quite surprising that this witness (PW-6) did not spell that he cannot recall that particular aspect as to in which direction accused fled away, but he says that he cannot say anything about the direction in which the assailants fled away. This creates doubt on presence of Randhir PW-6 on the spot at the time of occurrence. Therefore, his testimony on the whole regarding point of occurrence does not inspire confidence instead it is full of improvement and embellishment, accordingly, not reliable. 41. At the cost of repetition, we may observe that Amar Pal PW-2 was not present on the spot because PW-1 says that he was the first person to arrive on the spot and saved the deceased Rohtash from assailants then what was Amar Pal doing. Testimony of Amar Pal PW-2 as emerging on page 16 of the paper book in his cross-examination overwhelmingly establishes fact that Amar Pal was not present on the spot at the time of occurrence because he testified to fact that he started from his house only after 15-20 minutes and Rohtash arrived on the spot 15-20 minutes prior to him. Testimony of Amar Pal PW-2 as emerging on page 16 of the paper book in his cross-examination overwhelmingly establishes fact that Amar Pal was not present on the spot at the time of occurrence because he testified to fact that he started from his house only after 15-20 minutes and Rohtash arrived on the spot 15-20 minutes prior to him. This specific testimony on its face shows that Amar Pal’s brother Rohtash started from home 15-20 minutes prior to Amar Pal. Amar Pal arrived on the spot after lapse of 15-20 minutes. In the face of above specific testimony, it is obvious that Amar Pal PW-2 was not accompanying the deceased at the time of occurrence as such did not witness the incident. Moreso, the entire prosecution is silent on point of any resistance being offered by Amar Pal PW-2 on the spot, when the assault was being caused before his naked eyes on his real brother Rohtash. Therefore, scrutiny of testimony of each prosecution witness of fact and cumulative reading of evidence of these witnesses on the whole does not give thrust to the prosecution case but it creates serious dent in the prosecution story and establishes only fact that no one among three witnesses PW-1, PW-2 and PW-6 did actually witness the occurrence. 42. We may also observe that witnesses of recovery of knife, Harpal Singh PW-4 and Virendra PW-5 have turned hostile. They have not supported factum of recovery of knife in their presence. Recovery of knife was imputed to another accused. Therefore, we do not consider it proper to evaluate on its merit qua the present accused-appellant. 43. Our discussion of testimony, facts and circumstances of this case, leads us to safer place from where we can easily observe that the prosecution has failed to establish the charge against the accused-appellant Ved Pal under Section 302/34 IPC for committing murder of the deceased Rohtash and testimony of so-called prosecution witnesses of fact is on the whole full of improvement and embellishment. It would not be safer to place reliance on it. 44. It is trite law of criminal jurisprudence that the prosecution has to prove its case beyond all reasonable doubt in order to avail conviction against the accused and in case charge is not proved beyond all reasonable doubt then the accused is entitled to acquittal. It would not be safer to place reliance on it. 44. It is trite law of criminal jurisprudence that the prosecution has to prove its case beyond all reasonable doubt in order to avail conviction against the accused and in case charge is not proved beyond all reasonable doubt then the accused is entitled to acquittal. Learned trial Judge being unmindful of specific and apparent testimony of the prosecution witnesses of fact based his finding of conviction more on conjectures, surmises and whims than material on record and finding of conviction under Section 302/34 IPC is grounded on no record but is based on imaginary hypothesis connecting various links without any clinching and inspiring testimony and the same is liable to be set aside by us. 45. Therefore, the impugned judgment and order of conviction dated 25.4.1989 passed by V-Additional Sessions Judge, Muzaffarnagar, in Sessions Trial No. 57 of 1987 State v. Brahm Singh and another, arising out of Case Crime No. 200 of 1986 under Section 302/34 IPC, Police Station Bhopa, District Muzaffarnagar, is hereby set aside. Accused-appellant is acquitted of charge as above. Accordingly, the instant appeal is allowed. 46. In this case, the accused-appellant Ved Pal is already on bail. He need not surrender in this case. His bail bonds cancelled and sureties discharged. However, he shall furnish surety bonds in compliance with Section 437A Cr.P.C. 47. Let a copy of this judgment/order be certified to the Court concerned for necessary information and follow up action.