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Allahabad High Court · body

2017 DIGILAW 573 (ALL)

KAMTA v. STATE OF U. P.

2017-02-17

ARVIND KUMAR MISHRA I, BALA KRISHNA NARAYANA

body2017
JUDGMENT : Arvind Kumar Mishra-I, J. 1. Accused-appellants Kamta, Rajesh, Sanaullah and Virendra have preferred this appeal questioning the validity and sustainability of the judgment and order of conviction dated 11.02.1986 passed by IX-Additional Sessions Judge, Etah, in Sessions Trial No.131 of 1983, arising out of case crime no.209 of 1982 under sections 302/34 I.P.C., Police Station Jaithra, District Etah, whereby the accused-appellants have been sentenced to life imprisonment under section 302/34 I.P.C. 2. Heard Sri Dileep Kumar, learned Advocate assisted by Sri Rajendra Pal Singh, Sri Y.K. Srivastava, learned counsel for the appellant nos. 1, 2, 3 and 4, Sri Awadesh Narayan Mulla and Sri J.K. Upadhyay, learned AGAs for the State and also perused the record. 3. The prosecution story as emanates from the record is based on first information report lodged by first informant Jaipal Singh son of Hawaldar Singh, resident of village Luhari Gavi, Police Station Jaithra, District Etah, on 21.12.1982 at 3.05 p.m. against the present accused-appellants for killing Mohan son of Hawaldar Singh and Chaman son of Ali Sher Khan, with the allegations that two months prior to the incident, Badri Badhai, resident of informant's village, had borrowed Rs.100/- from the informant for domestic work. The day before yesterday, the informant sent his younger brother Mohan to Badri Badhai for taking back money. On being demanded money, Badri Badhai did not give him any money, instead some altercation took place between the informant's brother and Badri Badhai and his son Kamta, whereupon, Kamta threatened Mohan that he raised demand for payment within three days, he will not be spared. This episode was seen by Rajpal Singh and Kaptan Singh of the village. 4. The first information report also alleges fact that some dispute was also going on between Chaman and Sanaullah concerning some house. Today, the informant had come to take his noon-meal at his house from school and his brother Mohan was also present in the house. While taking food, one Chaman son of Ali Sher Khan also came to his house prepared for marketing at Jaithra. In the meanwhile, he took meal and he also started off for his school. The informant's brother Mohan and Chaman also started for marketing. While taking food, one Chaman son of Ali Sher Khan also came to his house prepared for marketing at Jaithra. In the meanwhile, he took meal and he also started off for his school. The informant's brother Mohan and Chaman also started for marketing. While they were on way, at culvert of pond, they met with Ram Singh son of Hawaldar Singh and Sheoraj Singh son of Ganga Singh who were going to work in their field. When they reached near house of Rajesh Badhai around 2:00 p.m., Shafi Mohammad and Nanhey Khan were also seen coming over there from southern side. At the same time, Kamta son of Badri, Rajesh son of Suraj Pal, Sanaulla son of Shakur Khan of the informant's village and Virendra son of Siyaram Ahir, who is friend of Kamta, appeared from the house of Rajesh possessing guns in their hands. Kamta challenged Mohan that he will not be spared today for demanding money. Sanaulla challenged Chaman that the dispute concerning the house shall be put to an end today. Kamta and Sanaulla fired from their guns. The fire opened by Sanaullah hit Chaman who fell down on the ground and died. Kamta opened fire upon Mohan which also hit him. Mohan ran away from the scene of occurrence after being hit by shot. Mohan was chased by the assailants up to the empty field of Abbas where they surrounded him and shot one fire each into his body. The informant's brother fell down on the field and died. The informant and witnesses, who were present on the spot, tried to save him but because of fear of weapon, they could not proceed further and the assailants secured their escape from the scene of occurrence. It was also alleged in the first information report that both the dead bodies are lying on the spot. Report be lodged and action be taken. This written report is Ext. Ka. 1. 5. Entries of contents of written report were taken down in the Check FIR at police Station Jaithra on 21.12.1982 at 3:05 p.m. at Case Crime No.209 of 1982 under Section 302 I.P.C. Check FIR is Ext. Ka-20. On the basis of entries so made in the Check FIR, a case was registered against the accused-appellants at the aforesaid case crime number at the aforesaid time and date in the concerned G.D. which is Ext. Ka-21. 6. Ka-20. On the basis of entries so made in the Check FIR, a case was registered against the accused-appellants at the aforesaid case crime number at the aforesaid time and date in the concerned G.D. which is Ext. Ka-21. 6. After registration of the case, investigation ensued and the same was taken over by the Investigating Officer, Sultan Singh PW-6, who after recording relevant contents of the Check FIR, general diary entry and also statement of Head Moharrir, proceeded to the spot and made survey of the spot and arranged for holding inquest of both the deceased Mohan and Chaman. Inquest report of deceased Mohan commenced at 4:00 p.m. and completed at 4:55 p.m., the very same day and the same was proved by the Investigating Officer as Ext. Ka-4. 7. The Investigating Officer concurred with the opinion of the inquest witnesses that the dead body of the deceased Mohan be sent for post mortem examination in order to ascertain real cause of death. In the process, relevant papers were prepared which are Ext. Ka-5, Ext. Ka-6, Ext. Ka-7 and Ext. Ka-8. 8. Similarly, inquest of the deceased Chaman Mian was also held on the spot and it commenced around 5:00 p.m. and completed at 5:40 p.m. same day (21.12.1982) and the same has been proved by the Investigating Officer as Ext. Ka-9. Likewise, opinion of the inquest witnesses was also expressed to the extent that dead body of the deceased Chaman be also sent for post mortem examination in order to ascertain real cause of death. In the process, relevant papers were also prepared which are Ext. Ka-10, Ext. Ka-11, Ext. Ka-12 and Ext. Ka-13. 9. Both the dead bodies were sent to mortuary for conduction of post mortem examination at Etah where Dr. O.P. Vaidya, PW-4 conducted post mortem examination on the cadaver of both the deceased Chaman Mian and Mohan on 22.12.1982 at 3:00 and 3:45 p.m., respectively. 10. Following ante mortem injuries were found on the body of the deceased Chaman Mian as noted by the doctor: 1. Three firearm wounds of entry each 1 cm x 1 cm x cavity deep on the back of left side chest, 2 cm away from midline in middle part in an area of 6 cm x 2 cm. No blackening. Direction-forward and slightly upward. 2. Three firearm wounds of entry each 1 cm x 1 cm x cavity deep on the back of left side chest, 2 cm away from midline in middle part in an area of 6 cm x 2 cm. No blackening. Direction-forward and slightly upward. 2. Two firearm wounds of entry each 1 cm x 1 cm x cavity deep on right side back of chest, 3 cm away from midline and middle part in an area of 4 cm x 2 cm. No blackening. Direction-forward and slightly upward. 11. In the opinion of doctor, duration between time of death and post mortem examination was noted about one day and cause of death was described due to shock and haemorrhage as a result of ante mortem injuries. Dr. O.P. Vaidya PW-4 has proved post mortem examination report as Ext. Ka-2. 12. Following ante mortem injuries were found on the body of the deceased Mohan as noted by the doctor: 1. Firearm wound of entry 2.5 cm x 2.5 cm x cranial cavity deep just behind the left ear. No blackening. Direction left to right and slightly upward. Brain matter coming out through the wound. 2. Firearm wound of entry 1 cm x 1 cm x through and through on left forearm, front and middle part. No blackening. Direction inward, backward and upward. 3. Firearm wound of exit 2 cm x 2 cm on left forearm, 2 cm below elbow joint and medial part. 4. Firearm wound of entry 1 cm x 1 cm x through and through on right arm back and middle part. No Blackening. Direction – forward and straight. 5. Firearm wound of exit 2 cm x 2 cm on right arm front and middle part. 6. Firearm wound of entry 1 cm x 1 cm x through and through on left side front of chest, 3 cm above nipple at 1 O'clock. No blackening. Direction - backward, downward and left to right. 7. Firearm wound of exit 2 cm x 2 cm on right posterior axillary line, 18 cm below axilla. 8. Four firearm wounds of entry, two are skin deep while two are cavity deep on right side front of chest, 4 cm below nipple each 1 cm x 1 cm in an area of 10 cm x 6 cm. No blackening. Direction – backward and upward. 9. 8. Four firearm wounds of entry, two are skin deep while two are cavity deep on right side front of chest, 4 cm below nipple each 1 cm x 1 cm in an area of 10 cm x 6 cm. No blackening. Direction – backward and upward. 9. Two firearm wounds of entry each 1 cm x 1 cm x skin deep on left side abdomen middle part, 4 cm away from midline and 2 cm apart. No blackening. 10. Abraded contusion 2 cm x 2 cm on right side back, just above iliac crest. 13. In the opinion of doctor, duration between time of death and post mortem examination was noted about one day and cause of death was described due to coma, shock and haemorrhage as a result of ante mortem injuries. Dr. O.P. Vaidya PW-4 has proved post mortem examination report as Ext. Ka-3. 14. The Investigating Officer in course of investigation collected two 'Tikalis' from near the spot where Mohan was killed and made a memo of 'Tikalis' which is Ext. Ka-14. Tikalis were proved before the trial court as material Ext. 1. The Investigating Officer also collected simple and blood stained soil from place where Mohan died, and kept it in two containers. He sealed the same and prepared memo of it as Ext. Ka-15. Similar exercise for collecting simple and blood stained soil from the place where dead body of Chaman was found, was done and memo of the same was prepared as Ext. Ka-16. 15. The Investigating Officer also prepared spot map Ext. Ka-17 and recorded statement of various prosecution witnesses and during course of investigation, he obtained copies of post mortem examination reports of both the deceased. At last, he recorded statement of the accused-appellants in Etah Jail, on 19.01.1983 and enquired about case from villagers on 29.01.1983. After completing the investigation, the Investigating Officer filed charge sheet Ext. Ka-19 against the accused-appellants. 16. Pursuant thereto, proceedings were committed to the court of Sessions from where it was transferred for conduction of trial and disposal of the case to the aforesaid trial court of IX-Additional Sessions Judge, Etah, who in turn heard both the sides on point of charge and was prima-facie satisfied with case against the accused-appellants, accordingly, framed charge under Sections 302/34 IPC. Charge was read over and explained to the accused-appellants who abjured charge and opted for trial. 17. Charge was read over and explained to the accused-appellants who abjured charge and opted for trial. 17. The prosecution was required to prove guilt of the accused-appellants by producing all its testimony, whereupon the prosecution produced in all 7 witnesses. Brief sketch of them is as here under; 18. Jaipal Singh PW-1 is the informant and he has proved the written report Ext. Ka-1. He claims himself to be eyewitness of the occurrence. Nanhey Khan PW-2 is witness of fact of incident. Likewise, Ram Singh PW-3 is also an eyewitness of the incident. Dr. O.P. Vaidya PW-4 has conducted autopsy on the cadaver of the deceased Chaman and Mohan on 22.12.1982 and has proved both the post mortem examination reports as Ext. Ka-2 and Ext. Ka-3, respectively. Constable Brij Mohan PW-5 is formal witness. He has participated in preparation of inquest reports and has taken both the dead bodies over to mortuary Etah and has proved the process before the trial court. Inspector, Sultan Singh PW-6 is the Investigating Officer of this case. He has detailed various steps, he took for completing investigation and has proved the process. Head Constable Jaichand Singh PW-7 is also formal witness. He has entered relevant contents in the concerned Check FIR and general diary and has proved both the papers as Ext. Ka-20 and Ext. Ka-21, respectively. 19. Thereafter, the evidence for prosecution was closed and statement of accused was recorded under section 313 Cr.P.C. wherein they termed their implication false due to enmity. They have also stated that they had enmity with witnesses who were inimical towards the accused persons. Therefore, the witnesses have falsely implicated them in this case. 20. The accused-appellants initially wished to lead testimony on their behalf but failed to adduce ocular testimony. They produced some documents say – copy of charge-sheet of Case No.1542 of 1981 concerning Case Crime No.395 of 1980, Police Station Kayamganj, State Vs. Ali Daraj and others -Ext. Kha-1, copy of the first information report pertaining to Case No.807 of 1981 State Vs. Mohan son of Hawaldar Singh, Police Station Jaithra, District Etah -Ext. Kha-2 and copy of another charge-sheet pertaining to Sessions Trial No.297 of 1979 State Vs. Chhunnu and others, under Section 307 IPC concerning Case Crime No.190 of 1978, Police Station Jaithra, District Etah, as Ext. Kha-3. 21. No other testimony was produced by the defence. Mohan son of Hawaldar Singh, Police Station Jaithra, District Etah -Ext. Kha-2 and copy of another charge-sheet pertaining to Sessions Trial No.297 of 1979 State Vs. Chhunnu and others, under Section 307 IPC concerning Case Crime No.190 of 1978, Police Station Jaithra, District Etah, as Ext. Kha-3. 21. No other testimony was produced by the defence. Therefore, evidence for the defence was closed. 22. Parties were heard on merits, and after evaluation of testimony and appraisal of facts, learned trial Judge returned the aforesaid finding of conviction and sentenced the accused-appellants to imprisonment for life vide impugned judgment and order dated 11.02.1986 thus, giving rise to this appeal. 23. It has been vociferously claimed on behalf of the accused-appellants that fact is that some unknown persons have killed both the deceased Mohan and Chaman. Nobody saw the occurrence. The incident took place somewhere-else and dead bodies were placed in the village by the real assailants. Testimony of the prosecution witnesses of fact is sketchy, full of hollowness, improbable, tutored and improved one and on the face not inspiring confidence. Besides, it is grossly contradictory in material particulars to each other. 24. Learned counsel for the accused-appellants has further contended that it is hard to decide which one of the witnesses is to be believed and which of them is to be disbelieved. The prosecution has not been able to establish charge beyond all reasonable doubt. It is established law that the prosecution has to prove charge beyond all reasonable doubt. If doubt is generated, benefit goes to the accused-appellants. The informant was not present on the spot and so the other witnesses. 25. Learned counsel for the accused-appellants has further contended that Jaipal Singh PW-1 claims that he had come to take meal in the afternoon from school and after taking meal, he started off for school from his house along with the deceased persons when the incident took place. He also says in his cross examination that Mohan also took meal along with him and immediately after that the incident took place, but in the post mortem examination of deceased Mohan, digested food has been noted by the doctor which fact makes it apparent that PW-1 is either telling a lie or concealing the truth. He also says in his cross examination that Mohan also took meal along with him and immediately after that the incident took place, but in the post mortem examination of deceased Mohan, digested food has been noted by the doctor which fact makes it apparent that PW-1 is either telling a lie or concealing the truth. Had the deceased Mohan taken meal in the afternoon and just after taking meal, Jaipal Singh PW1, and the deceased Mohan along with another deceased Chaman left the house and thereafter the incident took place then there would have been no point for noting digested food as discovered by the doctor during the post mortem examination of the deceased Mohan. 26. Learned counsel for the accused-appellants has further contended that ocular testimony is in contrast to the medical testimony. There are, in fact, six gun shot wounds on dead body of the deceased Mohan and out of six gun shots, injury nos.2, 4 and 6 have been caused by gun of 315 bore and not by 12 bore gun. But ocular testimony of the prosecution witnesses puts total number of shots being caused on the deceased Mohan to five only. If all the assailants were possessing country-made gun then measurement of entry firearm wounds should not have varied in dimension, but different dimension of entry wounds to the magnitude of 2.5 cm x 2.5 cm x cranial cavity deep... indicates that different weapons have been used in the commission of the offence. 27. Theory of manner and style of killing the deceased Mohan by surrounding him by four assailants and then firing on him stands ruled out in view of fact that no blackening, tattooing and charring was found in gun shot wounds sustained by the deceased Mohan. Theory of five shots alone is not workable but the ante mortem injuries are indicative of six shots being fired on Mohan. Injury no.1, ante mortem injury measures 2.5 cm x 2.5 cm x cranial cavity deep just behind left ear. Opinion of doctor regarding 5 shots is only an inference but not conclusive. 28. Similarly, ante mortem injuries noted on the body of deceased Chaman are also conducive to and indicative of more than one shot. At least two shots could have caused such ante mortem injuries. If the two shots theory is believed then theory of one shot fired by the accused Sanaulla fails. 28. Similarly, ante mortem injuries noted on the body of deceased Chaman are also conducive to and indicative of more than one shot. At least two shots could have caused such ante mortem injuries. If the two shots theory is believed then theory of one shot fired by the accused Sanaulla fails. 29. Learned counsel for the accused appellants has next added that Nanhey Khan PW-2 is a chance witness. He is not resident of the same village. His presence on the spot is doubtful and improbable. The location of school has not been given in the site plan. It is stated that Mohan had taken wallet with him but no wallet was recovered either from the place of occurrence or nearby place. The Investigating Officer, too, arrived on the spot shortly after lodging of the first information report, but did not find any wallet on the spot. Charge has not been proved beyond all reasonable doubt. 30. Per contra, learned AGA while replying to the aforesaid contentions has submitted that it is a day light occurrence and presence of the prosecution witnesses and particularly, the informant Jaipal Singh is most probable and natural on the spot. Presence of the other prosecution witnesses of fact, too, is under circumstances, quite natural because at that relevant point of time around 2:00 p.m., these people were going for their own work and the incident took place in the village itself and it was not caused at any isolated and deserted place. 31. Learned AGA has further submitted that the doctor who conducted the post mortem examinations on the dead bodies of the deceased has proved that such injuries might have been caused around 2:00 p.m. on 21.02.1982. The first information report was lodged promptly at 3:05 p.m., whereas, distance from the place of occurrence up to Police Station Jaithra was not less than 10 kilometers. Special report of the first information report was promptly sent to the higher authorities. Inquest reports of both the deceased Mohan and Chaman were prepared soon after the information was received at the police station. No worthy reason for false implication has been assigned by the accused-appellants. 32. Special report of the first information report was promptly sent to the higher authorities. Inquest reports of both the deceased Mohan and Chaman were prepared soon after the information was received at the police station. No worthy reason for false implication has been assigned by the accused-appellants. 32. Learned AGA continued that insofar as absence of reference of any school in the site plan has been claimed by the defence that is a trivial omission and location of school has been proved by ocular testimony to be in the village itself where the incident took place. Omission to mention school in the site plan may be treated laches committed by the Investigating Officer. All the prosecution witnesses of fact have supported and corroborated each other on the point of manner and style of the occurrence as to how it occurred. 33. Learned AGA has further stretched that the doctor witness has himself proved that injuries caused to the deceased Mohan are result of gun shots and it is wrong to say that there were six gun shot wounds and that, too, caused by different weapons. Testimony of eyewitnesses of fact is consistent and inspiring confidence. 34. Learned AGA has next submitted that the motive for committing the offence has also been proved to the ambit that Rs.100/- were borrowed by Badri Badhai from the informant two months prior to the incident and there was some dispute between the accused Sanaulla and the deceased Chaman concerning some house. Charge has been proved beyond all reasonable doubt. It is not possible for the informant to spare the real culprits and in their place falsely implicate the accused-appellants in this case. 35. We have considered above rival submissions and also considered claim of the accused-appellants and took note of facts and circumstances of the case. Moot point that arises for adjudication of this appeal relates to fact whether the prosecution has been able to prove its case beyond all reasonable doubt against the accused-appellants? 36. Before we proceed further with our scrutiny and analysis of testimony of the prosecution witnesses of fact on point of actual occurrence, it would be appropriate to refer to the contents of the first information report which forms basis of this case. 36. Before we proceed further with our scrutiny and analysis of testimony of the prosecution witnesses of fact on point of actual occurrence, it would be appropriate to refer to the contents of the first information report which forms basis of this case. Admittedly, the first information report was lodged by Jaipal Singh PW-1 at Police Station Jaithra, on 21.12.1982 wherein time of the incident has been described 2:00 p.m. and the place of occurrence is located in village Nagla Luhari Gavi and the distance of police station from the place of occurrence has been noted 10 kilometers. 37. It has been specifically alleged in the written report Ext. Ka-1 that one Badri Badhai had borrowed Rs.100/- from the informant two months prior to the incident. The day before yesterday, the informant sent his younger brother Mohan for demanding money. The informant's brother when demanded money, some altercation took place between the informant's brother and Badri Badhai and Kamta. The informant's brother Mohan was threatened by Kamta. 38. It has been further alleged in the written report (Ext. Ka-1), that some dispute was going on between the deceased Chaman and the accused-appellant Sanaulla concerning some house. Allegation regarding occurrence has been made in a manner that it was in the afternoon, the informant had come to his home from school for taking meal. The informant's brother Mohan was also present in the house. The informant began to take meal when Chaman son of Ali Sher Khan of the village also came to his house for going to market at Jaithra in order to purchase household goods. When the informant had taken his meal, he also started for his school accompanied by his brother Mohan and Chaman. On way, when they reached on the culvert of pond, Ram Singh son of Hawaldar Singh and Sheoraj Singh son of Ganga Singh also met them. They were going to their field for work. It was around 2:00 p.m. when they reached near house of Rajesh Badhai, Shafi Mohammad son of Hazi Meer Khan of his village and Nanhey Khan son of Badshah, resident of Malaul were also coming towards them. Kamta son of Badri, Rajesh son of Suraj Pal, Sanaulla son of Shakur Khan of the informant's village and Virendra son of Siyaram Ahir, friend of Kamta, appeared on the scene possessing guns in their hands. 39. Kamta son of Badri, Rajesh son of Suraj Pal, Sanaulla son of Shakur Khan of the informant's village and Virendra son of Siyaram Ahir, friend of Kamta, appeared on the scene possessing guns in their hands. 39. Accused Kamta challenged Mohan that he will not be spared today and accused Sanaulla also challenged Chaman that he will put an end to the dispute over house today. With that exhortation, both of them fired from their respective guns. Shot opened by the accused-appellant Kamta hit the deceased Mohan and fire opened by Sanaulla hit the deceased Chaman who fell on the ground and died, whereas, Mohan after sustaining firearm injury ran away towards empty field of Abbas. He was chased by the assailants and surrounded in the field of Abbas and then all the four assailants fired from their guns once which fire hit the deceased Mohan who died on the spot. The informant and others, who were watching this scene, tried to intervene but due to fear of guns they could not intervene. It has been mentioned in the written report that the incident was witnessed by the informant Jaipal Singh, Ram Singh, Sheoraj Singh, Shafi Mohammad and Nanhey Khan. 40. We also come across fact that on the point of occurrence, testimony of Jaipal Singh PW-1, Nanhey Khan PW-2 and Ram Singh PW-3 has been recorded before the trial court which testimony will be scrutinized by us vis-a-vis facts and circumstances of the case in order to arrive at just conclusion. 41. Here we may begin with description of testimony of Jaipal Singh PW-1. No doubt, he is brother of the deceased Mohan. He claims himself as a teacher of some school whose name has neither been given by him in his examination in chief, nor has surfaced in his cross examination. On point of occurrence, he says that it was on 21.12.1982 around 2:00 p.m. after taking day meal in his house, he was going towards school and his brother Mohan along with Chaman of the village were moving 10-12 steps ahead of him. When his brother reached in front of house of Rajesh then Kamta, Sanaulla, Rajesh and Virendra came out of the house of Rajesh, all were possessing gun. Kamta said to Mohan (informant's brother) that today he will teach him a lesson for demanding money. When his brother reached in front of house of Rajesh then Kamta, Sanaulla, Rajesh and Virendra came out of the house of Rajesh, all were possessing gun. Kamta said to Mohan (informant's brother) that today he will teach him a lesson for demanding money. Similarly, Sanaulla said to Chaman that he will also settle his dispute pertaining to his house with him today. Having said so, both Kamta and Sanaulla fired from their respective guns. The fire shot by Sanaulla hit Chaman who fell down there and died, whereas, the fire shot by Kamta hit Mohan who after sustaining injury ran towards eastern side whereupon, he was chased by the four assailants up to the empty field of Abbas and surrounded him there and each fired on him once which fire hit Mohan. Consequently, Mohan died on the spot. Thus five shots hit Mohan. Four shots were hit on the empty field of Abbas and one shot was hit by Kamta in front of house of Rajesh. 42. It has also emerged in the cross examination of PW-1 that during course of the incident, he along with his brother Mohan and Chaman had also raised alarm and the incident was also witnessed by Ram Singh, Nanhey Khan, Sheoraj Singh and Shafi Mohammad. The accused persons made their escape towards southern side and the report was written on the spot which has been proved by PW-1 as Ext. Ka-1. 43. In the light of above factual testimony on point of occurrence, it would be appropriate to tally the same with the testimony of the other two witnesses of fact namely Nanhey Khan PW-2 and Ram Singh PW-3. Both these witnesses of fact have also claimed to have been present on and near the spot and they also saw the incident. 44. Insofar as testimony of Nanhey Khan PW-2 is concerned, he has testified that he was going to village Luhari Gavi from Malaul. He met with Shafi Mohammad near school at Luhari Gavi then both of them proceeded towards village Luhari Gavi. They reached near house of Muga Badhai around 2:00 p.m. where Nanhey Khan sighted Mohan and Chaman coming from opposite side and behind them, Jaipal Singh, Ram Singh and Sheoraj Singh. As soon as Mohan and Chaman arrived in front of house of Rajesh, when Kamta, Rajesh, Virendra and Sanaulla appeared on the scene possessing gun. They reached near house of Muga Badhai around 2:00 p.m. where Nanhey Khan sighted Mohan and Chaman coming from opposite side and behind them, Jaipal Singh, Ram Singh and Sheoraj Singh. As soon as Mohan and Chaman arrived in front of house of Rajesh, when Kamta, Rajesh, Virendra and Sanaulla appeared on the scene possessing gun. Kamta exhorted Mohan that he will not be spared today and Sanaulla exhorted Chaman that he will put to end the dispute concerning house today. Sanaulla fired on Chaman which shot hit him and he fell down and died. Kamta fired on Mohan. After sustaining gun shot, he ran away towards southern side up to the empty field of Abbas. He was chased by the assailants and surrounded in the field of Abbas where each of them fired from his gun once which fire hit Mohan who also fell down and died. This witness also tried to save Mohan but out of fear he could not interfere and the assailants made their escape good. 45. More or less on similar lines, Ram Singh PW-3 has also testified to the fact of occurrence that it was around 2:00 p.m., he was proceeding towards his field located in another village and the incident took place near house of Rajesh. He was being accompanied by Jaipal Singh and Sheoraj Singh. Both the deceased Chaman and Mohan were moving ahead of him when the incident took place. All the four assailants arrived on the spot possessing gun in their hands. Kamta challenged Mohan and Sanaulla challenged Chaman and both fired with their gun on them. Consequently, the fire shot by Sanaulla hit Chaman who fell down and died, whereas, the fire shot by Kamta hit Mohan but he ran away towards field of Abbas. He was given pursuit by the assailants and all the four assailants after surrounding him in the field of Abbas fired from their gun which fire hit Mohan and he fell down and died there. 46. In the wake of this specific description of the occurrence, now we may move on to the ante mortem injuries as noted by Dr. O.P. Vaidya, PW-4 in order to assess veracity of above testimonial aspect. He has conducted post mortem examination on the bodies of both the deceased Chaman and Mohan on 22.12.1982. 46. In the wake of this specific description of the occurrence, now we may move on to the ante mortem injuries as noted by Dr. O.P. Vaidya, PW-4 in order to assess veracity of above testimonial aspect. He has conducted post mortem examination on the bodies of both the deceased Chaman and Mohan on 22.12.1982. He first conducted autopsy on the cadaver of the deceased Chaman around 3:00 p.m. wherein he found two firearm wounds of entry each 1 cm x 1 cm x cavity deep on the back of left side chest.... Second ante mortem injury has been noted in form of two firearm wounds of entry each 1 cm x 1 cm x cavity deep on right side back of chest. This injury was scattered in an area of 4 cm x 2 cm. No blackening present. 47. Considering specific dimension of entry wounds of ante mortem injuries found on the body of the deceased Chaman, we cannot, in all probability, confine these injuries exclusively to be result of one shot. But clarity of dimension of wounds found on the back of chest of deceased Chaman are also indicative and suggestive of more than one shot being fired on the occasion. 48. We, while considering aforesaid aspects, are confronted with the testimony of Dr. O.P. Vaidya PW-4 to the magnitude that death of Chaman and injuries caused on the body of Chaman by firearm wounds may have been outcome of one shot as appearing on page 31 of the paper-book. But careful scrutiny of aforesaid testimony of the doctor witness does not suggest in all solemnity and precision, that such wounds in the dimension of 1 cm x 1 cm x cavity deep cannot be caused by two shots. The opinion of the doctor witness (PW-4) is only suggestive but not conclusively given so as to confirm that no second shot can cause such injuries like the present one. Result is that possibility of second shot being fired on Chaman carries weight and that way we can hold that more than one shot or at least two shots were fired on Chaman. 49. Whereas, ante mortem injuries on the body of the deceased Mohan are ten in number. All except one (injury no.10) are firearm injuries, but certain wounds are exit wounds, whereas, certain wounds are entry wounds. 50. 49. Whereas, ante mortem injuries on the body of the deceased Mohan are ten in number. All except one (injury no.10) are firearm injuries, but certain wounds are exit wounds, whereas, certain wounds are entry wounds. 50. We may specify that injury no.1 on the body of the deceased Mohan is wound of entry 2.5 cm x 2.5 cm x cranial cavity deep just behind left ear. This injury is in nature of firearm wound of entry. This firearm wound in the measurement of 2.5 cm x 2.5 cm x cranial cavity deep appears to have been caused by some different weapon than the country-made gun used by all the assailants in commission of the offence, because the other firearm wounds of entry say-injury nos.2, 4 and 6 are in the measurement of wound of entry 1 cm x 1 cm through and through. This further indicates that ante mortem injuries no.2, 4 and 6 are three different shots and injury no.1 measuring 2.5 cm x 2.5 cm.... is the fourth but different shot. Injury no.3 on the deceased Mohan is in form of firearm wound of exit 2 cm x 2 cm on left forearm, 2 cm below elbow joint and medial part. Injury no.5 is firearm wound of exit measuring 2 cm x 2 cm on right arm front and middle part. Injury no.7 is similarly firearm wound of exit 2 cm x 2 cm.....Even injury no.8 indicates that it is in sort of four firearm wounds of entry, two are skin deep while two are cavity deep on right side front of chest, 4 cm below nipple each 1 cm x 1 cm in an area of 10 cm x 6 cm. This injury will also be counted as separate shot. Thus, injuries no.1, 2, 4, 6 and 8 are five shots and then injury no.9 indicates as two firearm wounds of entry each 1 cm x 1 cm x skin deep on left side abdomen middle part.... This is also one shot fired on the deceased Mohan. Thus, total shots fired on the deceased Mohan aggregate on its face value to six in number, as emerging from perusal of ante mortem injuries indicated in the post mortem examination report of the deceased Mohan which is Ext. Ka-3. 51. Thus possibility of six shots hitting Mohan becomes probable and apparent. But Dr. Thus, total shots fired on the deceased Mohan aggregate on its face value to six in number, as emerging from perusal of ante mortem injuries indicated in the post mortem examination report of the deceased Mohan which is Ext. Ka-3. 51. Thus possibility of six shots hitting Mohan becomes probable and apparent. But Dr. O.P. Vaidya PW-4 confines number of all the gun shot wounds to five only. He has testified to the ambit that these injuries (ante mortem injuries) might have been caused as a result of five shots. But on careful perusal of all the ante mortem injuries on the body of the deceased Mohan, we note six firearm wounds. In the wake of aforesaid specific testimony, it can be conveniently concluded that at least six firearm wounds were caused to the deceased Mohan. We may also observe that Dr. witness has not confined the firearm wounds to five and five only and has not stated that these injuries in no case can be caused by six shots. 52. Noticeable and relevant point is that ante mortem injury no.1 on the body of deceased Mohan in the measurement of wound of entry 2.5 cm x 2.5 cm x cranial cavity deep just behind left ear. It means that the weapon used is certainly of different kind than the country-made gun, because entry wounds of dimension/measurement to the extent of 2.5 cm x 2.5 cm cannot normally be caused by use of country-made gun but the ocular testimony given by all the three prosecution witnesses of fact is woefully wanting on the description of any such weapon which, in all probability, must have been used while the fire was shot to the deceased Mohan. Therefore, ocular testimony to that extent stands in direct contrast to the medical testimony on record. 53. We have already discussed that the deceased Mohan received at least six firearm wounds and ocular testimony of all the witnesses of fact have specifically described the number of shots hit on the deceased Mohan by the assailants on the spot. To be specific, it has emerged from the testimony that Kamta fired the first shot at the initial stage of the incident after challenging Mohan. This was the first shot. To be specific, it has emerged from the testimony that Kamta fired the first shot at the initial stage of the incident after challenging Mohan. This was the first shot. Mohan after sustaining firearm wound ran way towards field of Abbas where he was chased by the assailants up to the field and surrounded him and each of the assailants fired once on the deceased Mohan which shots hit him. He fell down and died. Then point for consideration arises what from sixth shot ! How sixth shot was fired, remains in dark. Obviously, firearm wound of entry referred as injury no.9 in the post mortem examination report of Mohan is outcome of separate shot. Therefore, on that specific testimonial account, we entertain doubt as to whether the prosecution witnesses of fact were present on the spot and they saw the incident at the time of occurrence. 54. Another point raised before us relates to fact that it has emerged in testimony of Jaipal Singh PW-1 that the deceased Mohan also took day meal just before the incident and thereafter they departed from home when the incident took place. This specific testimony appears in cross examination of PW-1 on page 17 of the paper-book. 55. It has been vehemently contended on behalf of the accused-appellants that in case the deceased Mohan had taken day meal and just after that the incident took place, how was it possible that in the post mortem examination report of deceased Mohan, digested food was noted by the doctor. It means that PW-1 is feigning on this particular point just to create false impression of his presence at his home. Had the deceased Mohan taken day meal with PW-1 at his home prior to the incident and immediately he started off for market then it was virtually impossible that digested food would be noted by the doctor in the post mortem examination of deceased Mohan. Thus, theory of day meal is a deliberate improvement. 56. We have also perused post mortem examination report of the deceased Mohan Ext. Ka-3. We come across fact that digested food was found in the intestine of the deceased Mohan. It indicates that the deceased Mohan must have taken food at least 4 to 6 hours prior to the incident. Thus, theory of day meal is a deliberate improvement. 56. We have also perused post mortem examination report of the deceased Mohan Ext. Ka-3. We come across fact that digested food was found in the intestine of the deceased Mohan. It indicates that the deceased Mohan must have taken food at least 4 to 6 hours prior to the incident. It is virtually an impossible situation that a person who after taking day meal started for marketing was killed within no time, then the digested food can never be found in the intestine as noted by the doctor in the post mortem examination. This gives rise to the possibility that PW-1 was either not present on the spot or he is not telling the truth before the court. Moreso, no name of any school in which PW-1 was actually teaching, has been spelt out by him in his testimony. The Investigating Officer also did not specify the specific place where school was located in the site plan Ext. Ka-17. Therefore, fact that PW-1 came home from school to take day meal and after taking day meal while he was on way back to school when the incident took place, becomes doubtful. Thus the expected innocuous testimony of PW-1 has not come forth on point of the occurrence, for the reasons aforesaid. Therefore, testimony of PW-1 is found improved one, full of embellishment and he is wholly unreliable. 57. No doubt, we may discard testimony of PW-1, but there are the other two witnesses of occurrence namely Nanhey Khan PW-2 and Ram Singh PW-3. It is admitted to Nanhey Khan PW-2 that he is not resident of village Luhar Gavi where the incident took place. He has testified to fact that he was coming from village Malaul to village Luhari Gavi. His testimony on the face gives impression that he is well acquainted with the names of the two deceased Mohan and Chaman. He is also giving description of the house of Rajesh in his examination in chief, but on page 23 in his cross examination, he says that he did not know Mohan and Chaman from before. In the wake of such particular aspect about identity of the deceased persons, his testimony is on the face improved one and contradictory. 58. He is also giving description of the house of Rajesh in his examination in chief, but on page 23 in his cross examination, he says that he did not know Mohan and Chaman from before. In the wake of such particular aspect about identity of the deceased persons, his testimony is on the face improved one and contradictory. 58. On careful perusal of testimony of PW-2, we also notice that this witness is also not worthy of credit for certain specific reasons based on his cross examination. On being asked as to on which place in the field of Abbas, the deceased Mohan fell down, then this witness said that he cannot say. When this witness was asked question as to what clothes the assailants were wearing on then he said that he cannot tell about the clothes and he went on to say that he cannot even testify fact whether faces of the assailants were covered or not? Not only this, but also he has testified to fact that he did not see anything lying over there near bodies of the deceased Mohan and Chaman. He has also admitted fact that his village Malaul lies at a distance of three kilometers from village Luhari Gavi. He is not resident of this village. Question arises as to why he is interested in justifying on point of occurrence, then reason has surfaced on page 24 of the paper-book which contains testimony of PW-2 in shape of cross examination that Nanhey Khan PW-2 had quarrel with the accused Sanaulla, in which the other accused persons had sided with Sanaulla. This becomes the impelling force for PW-2 to place himself as eyewitness. 59. Here we may observe that in normal parlance had PW2 witnessed the occurrence, he must have spelt some place in the field of Abbas i.e. middle, corner or on the side line of the field where the deceased Mohan in fact fell down, he must have stated with clarity whether faces of the accused-persons were covered or not and what type of clothes the assailants were wearing on. At least some clue could have been easily given about these aspects, but nothing of the sort has come forth. At least some clue could have been easily given about these aspects, but nothing of the sort has come forth. This, not only shows but also establishes fact that he, too, did not witness the occurrence and his presence on the spot at the time of occurrence, thus becomes doubtful and this witness is not worthy of credit like PW-1. Therefore, we conclude that even Nanhey Khan PW-2 is wholly unreliable witness. 60. Now we may scrutinize testimony of Ram Singh PW-3 who happens to be brother of deceased Mohan and Jaipal Singh – the informant PW-1. His testimony reflects that at the time of occurrence, he was going to his fields located in another village when he saw his brother Jaipal Singh, Sheoraj Singh coming from opposite side and Chaman and Mohan were moving ahead of them. When they reached near house of Rajesh, all the assailants came out of house of Rajesh and thereafter firing was done by Kamta on Mohan and by Sanaulla on Chaman. Both were hit by shots. Chaman fell down and died on the spot, but Mohan after sustaining injury ran towards field of Abbas who was chased by the assailants up to the field of Abbas where they surrounded Mohan and each fired once on Mohan. The shots hit him. Consequently, he fell down and died. He has been cross examined wherein certain facts emerged. He has testified that his fields are located in the village Lakhanpura. This witness has been suggested that certain criminal cases are pending against the deceased Mohan under certain sections of IPC and certain cases of dacoity has resulted in acquittal. 61. Even the deceased Chaman was stated to have been involved in some criminal cases concerning Section 307 IPC. He (PW-3) says that two 'Tikalis' were recovered from near dead body of deceased Mohan. He has also not spelt name of the school in which PW-1 teaches. He only says that the school runs under a banyan tree. He has also testified about certain pending criminal cases in which his brother Mohan was involved. Although he has tried to evade question on point of involvement of accused in some criminal cases, but it appears on the face value that he is deliberately avoiding such questions. He has testified to the extent that five shots hit Mohan. 62. He has also testified about certain pending criminal cases in which his brother Mohan was involved. Although he has tried to evade question on point of involvement of accused in some criminal cases, but it appears on the face value that he is deliberately avoiding such questions. He has testified to the extent that five shots hit Mohan. 62. We have already discussed that possibility of six shots hitting Mohan cannot be ruled out on the basis of nature of ante mortem injuries noted in the post mortem examination report Ext. Ka-3 – of deceased Mohan. Therefore, this witness, too appears to have been improving on material aspect of the case and he is a tutored witness. In this way, we can conveniently conclude that he being close relative of the deceased Mohan and Jaipal Singh -informant, strong possibility of his being a chance witness cannot be ruled out. We also notice certain minor aspect of the case qua collection of 'Tikalis'. We come across testimony of Constable Brij Mohan PW-5 who was present at the place where dead bodies of the deceased were lying at the time of preparation of inquest. 63. Inquest of deceased Mohan commenced at 4:00 p.m. and completed at 4:50 p.m. and inquest of another deceased Chaman commenced at 5:00 p.m. and completed at 5:40 p.m. on 21.12.1982. We also notice that the time of lodging of the first information report was 3:05 p.m., meaning thereby that soon after lodging of the first information report within one hour, preparation of inquest started at 4:00 p.m. but in cross examination of Brij Mohan PW-5 on page 36 of the paper-book, it appears that nothing was recovered from near dead bodies and nothing was taken by Daroga Ji from the spot. He being formal witness and police personnel cannot be expected to conceal facts, because he was involved in preparation of inquest and thereafter he conveyed dead bodies to the mortuary from the spot. Therefore, testimony of the Investigating Officer, Sultan Singh PW-6 to the ambit that he found two 'Tikalis' from near body of deceased Mohan becomes doubtful act and cannot be relied upon as such. 64. Therefore, testimony of the Investigating Officer, Sultan Singh PW-6 to the ambit that he found two 'Tikalis' from near body of deceased Mohan becomes doubtful act and cannot be relied upon as such. 64. In the wake of specific testimony of PW-5 that nothing was recovered from the spot, obviously, we can observe that testimony is overwhelming on the point that the deceased Mohan was possessing some wallet at the time of incident but no wallet was found from near the spot or dead body of the deceased Mohan, which fact also indicates that theory of wallet being possessed by the deceased Mohan is deliberate improvement. 65. At this stage, we may take strong view of fact that things have been tried to be improved to fit in the situation not only by the informant, but also by the Investigating Officer which attempt stands exposed by above testimony of witnesses and particularly that of Brij Mohan PW-5. 66. We have certain reason for saying so because the Investigating Officer who collected simple and blood stained soil from the spot where dead bodies of both the deceased were lying but he did not care to send it for forensic examination and no reason has been assigned for such omission. This testimony of the Investigating Officer emerges on page 40 of the paper-book. 67. We may take note of fact that no site of any school was shown to the Investigating Officer by the informant and we can observe that no such statement was given by Jaipal Singh PW-1 to the Investigating Officer that the deceased Chaman had asked for money from the informant when the informant said to him that he will give money at the school. Recording of any such statement ever being made by PW-1 to the Investigating Officer has been denied by the Investigating Officer. 68. In view of above factual and circumstantial aspect, we may also observe that there was no whisper of any pre-plan between Chaman and Mohan that they will go to market for effecting some purchase and testimony of PW-1 itself lays stress on fact of arrival of Chaman to the house of the informant with explanation that he came to take money from him, but this factual aspect loses significance in view of testimony of the Investigating Officer PW-6 when he says that no such statement was given by PW-1 to him. What to say about material variation in the testimony of witnesses of fact, we may obverse at ease that even on minor points touching on various aspects, the prosecution testimony is not clinching and does not inspire confidence. 69. Before parting with the judgment, we would like to touch upon certain relevant aspects of the case though not argued by either of the parties. On factual aspect it has been testified that all the four accused persons came out of house of Rajesh possessing country-made gun. This shows a prior notice of the programme of the deceased persons to the accused that they will move from in front of house of Rajesh at that particular time when the incident took place, but the entire testimony on such circumstance is silent on this particular aspect as to how the assailants knew about movement of both the deceased. Had there been evidence alluding to inference that the assailants had prior knowledge of movement of both the deceased then things would have been accepted normally that the assailants gathered in the house of Rajesh and were ready to wreck vengeance. Similarly, equally important is fact that the accused Kamta and Rajesh had no enmity with Chaman then they had no occasion to collectively open assault by appearing before the deceased from house of Rajesh. Accused Kamta and Rajesh had no enmity with Chaman and even with Virendra. Then why these accused persons will flock together to commit offence. 70. Similarly, we come across testimony of the prosecution witnesses that Sanaulla had no enmity with the informant's family and he had no cause against the deceased Mohan then why will he chase Mohan along with the other assailants and he will ensure that Mohan is killed when he had already achieved his target by killing Chaman at the initial stage of the occurrence. Then his further participation in the commission of offence in chasing Mohan and he being so adamant for killing Mohan in such relentless manner, is beyond reason. 71. Another accused Virendra had no enmity, whatsoever, with the informant's family then his participation in the commission of the offence becomes without any motive, rhyme or reason and his being friend of Kamta is not suffice to hold that he will commit offence conjointly with others. 71. Another accused Virendra had no enmity, whatsoever, with the informant's family then his participation in the commission of the offence becomes without any motive, rhyme or reason and his being friend of Kamta is not suffice to hold that he will commit offence conjointly with others. Thus manner and style of occurrence testified by the prosecution witnesses of fact renders their testimony, on the whole, suspicious and fraught with infirmity. 72. Our discussion on above facts, testimony and circumstances establishes that the occurrence has not been reasonably proved to have been committed by the accused-appellants on 21.12.1982 at 2:00 p.m. in the village Luhari Gavi wherein the death of Mohan and Chaman was caused. No doubt, fact of death remains there as stark reality, but who committed murder of the deceased Mohan and Chaman becomes obscure and suspicious and it cannot be said in the wake of testimony available on record that the accused-appellants by their efforts individually and conjointly committed the crime. 73. The trial court while appraising facts and evaluating testimony of the prosecution witnesses failed to take notice of above specific and particular aspects of the case and recorded conviction against the accused-appellants heavily relying on surmises and guess work, which finding of conviction being erroneous is liable to be set aside, for specific reason that the prosecution is bound to prove its case beyond all reasonable doubt, which the prosecution has failed to prove against the accused-appellants. 74. Thus, the finding of conviction recorded by the trial court is on the face erroneous and perverse and the same cannot be sustained in the eye of law. Therefore, judgment and order of conviction dated 11.02.1986 passed by IX-Additional Sessions Judge, Etah, in Sessions Trial No.131 of 1983, arising out of case crime no.209 of 1982 under sections 302/34 I.P.C., Police Station Jaithra, District Etah, is hereby set aside. Accordingly, the instant appeal succeeds and the same is allowed. 75. In this case, the accused-appellants are on bail. They need not surrender before the court concerned in this case. Their bail bonds stand cancelled and sureties discharged. However, they will ensure compliance of Section 437A Cr.P.C. 76. Let a copy of this judgment/order be certified to the court concerned for necessary information and follow up action.