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2017 DIGILAW 726 (ALL)

UTTAM LODHI v. STATE OF U. P.

2017-03-08

ARVIND KUMAR MISHRA I, BALA KRISHNA NARAYANA

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JUDGMENT : 1. Heard Sri V.K. Gupta, learned counsel for the appellant and Sri Sagir Ahmad, Sri J.K. Upadhyay, Kumari Meena and Mrs. Manju Thakur, learned AGAS for the State and perused the record of this appeal. 2. By way of instant criminal appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 04.11.1988 passed by Sessions Judge, Hamirpur in Sessions Trial No.32 of 1988 (State Vs. Uttam Lodhi), arising out of case crime no.160 of 1987, under Sections 302 and 404 IPC, Police Station Charkhari, District Hamirpur, whereby, the appellant Uttam Lodhi has been sentenced to imprisonment for life under Section 302 IPC and two years R.I. under Section 404 IPC. Both the sentences have been directed to run concurrently. 3. Facts discernible from the record reveal that an FIR was lodged at Police Station Charkhari, District Hamirpur on 13.10.1987 at 7.20 P.M. by informant Bhaiya Lal s/o Bacchi Lal R/o Village2 Kanera, Police Station Charkhari, District Hamirpur against accused Uttam Lodhi S/o Chaturbhuj R/o Kanera, Police Station Charkhari, District Hamirpur for causing death of his wife-Shanti with allegations that informant's wife-Shanti and mother-Smt. Har Kunwar had gone to the field for work and were returning back home in the evening at 5.00 P.M. Informant's wife-Shanti was being followed at some distance by informant's mother-Smt. Har Kunwar. Informant-Bhaiya -Lal-was also going to take care of his field at the same time. As soon as informant's wife-Shanti reached near the maize field of Ram Asrey S/o Chaturbhuj, Uttam Lodhi S/o Chatura caught her (Shanti) and pulled her down on the maize field, whereupon, informant's wife raised alarm, then the informant arrived on the spot challenging the accused, where he saw the accused-Uttam Lodhi throttling neck of his wife-Shantiand at the same time informant's mother-Smt. Har Kunwar and villagers-Ram Asrey S/o Chaturbhuj and Halkey S/o Ghanshyam also arrived on the spot and saw the incident. Accused-Uttam Lodhi, after killing Shanti, escaped away from place of occurrence, wading through the southern maize field. Request was made for lodging the FIR and taking appropriate action. Written report is marked as Exhibit Ka-1. 4. Contents of written report were taken down in the concerned check FIR at Case Crime No. 160 of 1987 under Section 302 IPC at Police Station-Charkhari, District-Hamirpur at 7.20 P.M. on 13.10.1987. The copy of check FIR is Ex.Ka.4. Request was made for lodging the FIR and taking appropriate action. Written report is marked as Exhibit Ka-1. 4. Contents of written report were taken down in the concerned check FIR at Case Crime No. 160 of 1987 under Section 302 IPC at Police Station-Charkhari, District-Hamirpur at 7.20 P.M. on 13.10.1987. The copy of check FIR is Ex.Ka.4. Consequent upon entries so made in the check FIR, a case was registered against the accused persons at Police Station-Charkhari on 13.10.1987 at aforesaid crime number, under aforesaid section of Indian Penal Code vide entry made in the concerned General Diary at Serial No.27. The relevant GD entry is Ex.Ka.5. 5. Investigation of the case was taken over by the Investigating Officer Gopi Chand Yadav P.W.5, who took statement of the informant-Bhaiya Lal (P.W.1) at the police station on 13.10.1987 and thereafter he proceeded to the place of occurrence and arrived over there around 9.00 P.M. and after arriving on the spot instructed S.I. Poor an Singh to hold inquest of the deceased (Shanti), but due to non-availability of light, the inquest could not be held. There after, S.I. Pooran Singh along with three Constables stayed over there during night. Efforts were made to apprehend the accused in the night. The Investigating Officer also recorded statement of Smt. Har Kunwar (mother of informant), Km. Heera, Bachchi Lal, Ram As rey and Hal key etc. 6. In the morning of 14.10.1987, S.I. Pooran Singh after appointing inquest witnesses, conducted inquest of the dead body of deceased Shanti, which commenced at 06.15 A.M. on 14.10.1987 and was completed at 08.30 A.M. The inquest report is Exhibit Ka-6. In the opinion of inquest witnesses and the Investigating Officer concurred and it was suggested that the dead body be sent for postmortem examination for ascertaining real cause of death. Therefore, relevant papers were prepared by the Investigating Officer, which are Exhibit Ka.7photo nash (Sketch of the dead body) and Ka.8police form 13 (challan dead body). The Investigating Officer also prepared the site plan of the spot Exhibit Ka-9. It has also emerged in the testimony of the Investigating Officer that S.I. Pooran Singh had collected broken pieces of bangles from the spot at the time of inspection of the spot and prepared a memo of the same, which is Exhibit Ka10. 7. The Investigating Officer also prepared the site plan of the spot Exhibit Ka-9. It has also emerged in the testimony of the Investigating Officer that S.I. Pooran Singh had collected broken pieces of bangles from the spot at the time of inspection of the spot and prepared a memo of the same, which is Exhibit Ka10. 7. Record further reflects that the dead body of the deceased was sent to the mortuary and the same was conveyed over by Constables Prakash Narain and Tej Beer Singh (to mortuary). Dr. B. D. Mangal P.W.4 conducted autopsy on the cadaver of deceased Shanti on 14.10.1987 at 04.05 P.M. The following ante mortem injuries were noted on the person of the deceased: 1. Contusion 2 cm x 3 cm on right side of neck upper part just below right angle of mandible. 2. Contusion 6 cm x 6 cm on left side of neck on middle and upper part of neck. 3. Contusion 10 cm x 5 cm on back of head in occipital region. 4. Abrasion 4 cm x 1 cm on back of left thigh upper part. 5. Abrasion 1 cm x ½ cm on back of right gluetal region. 6. Abrasions four in number ½ cm x ¼ cm each in area of 4 cm x 4 cm on left leg upper parts. 7. Abrasions four in number ¼ cm ¼ cm each on front of right leg upper part. 8. In the opinion of the doctor, cause of death was stated to be asphyxia as a result of throttling. This postmortem report is Ex.Ka.3. 9. Accused Uttam Lodhi was arrested on 15.10.1987 at 10.30 A.M. and was kept in the lockup of the police station and an entry was made in the relevant General Diary No.14 of 15.10.1987 at 12.30 P.M. Investigating Officer also collected criminal history of the accused and found that accused Uttam Lodhi was involved in eight cases, out of which he was convicted and punished in three cases. 10. On 16.10.1987, the accused confessed to have taken away Bichhuwa (silver waist band) of the deceased (Shanti) and the same has been concealed near a canal in the field and also assured that he can give the Bichhuwa (waist band). Thereafter recovery was effected. The Bichhuwa (silver waist band) was identified at the same time by the informant and his family members. Thereafter recovery was effected. The Bichhuwa (silver waist band) was identified at the same time by the informant and his family members. A memo of recovery of 'Bichhuwa' was prepared, which is Exhibit Ka-2. Site plan of spot of recovery was also prepared, which is Exhibit Ka11. After completing the investigation, charge sheet was filed against the accused, which is Exhibit Ka-12. 11. Consequent upon filing of charge sheet, committal proceeding took place and the case was committed to the court of Sessions where learned Sessions Judge after hearing the prosecution and the accused on point of charge, was satisfied with prima facie case against the accused, consequently, framed charges against accused under Section 302 and 404 IPC. Charges were read over and explained to the accused, who abjured charges and opted for trial. 12. In turn, the prosecution was required to adduce all its testimony by which it proposed to prove the guilt of the accused. In the process, the prosecution produced in all six witnesses, whose description is being given as herein under: 13. Bhaiya Lal P.W.1 is the informant and the eyewitness of the occurrence. He has proved written report Ex.Ka.1 and has also described about the incident. 14. Ram Asrey P.W.2 is also the eyewitness of the occurrence. 15. Jhiriya P.W.3 is witness of fact of recovery of Bichhuwa and has testified on that point. 16. Dr. V.D. Mangal P.W.4 has conducted postmortem examination on the cadaver of the deceased Shanti on 14.10.1987 and has proved cause of death and the postmortem report, Ex.Ka.3. 17. Gopi Chand Yadav the Investigating Officer P.W.5 has detailed various steps he took in completing the investigation and filing the charge sheet against the accused and proved it as Exhibit Ka-12. 18. Constable Prakash Narain P.W.6 has conveyed the dead body of Shanti over to mortuary and has testified to the fact that he kept under seal the dead body of Shanti and the same remained intact while in his custody. 19. Except as above, no other testimony was adduced, therefore, evidence for the prosecution was closed and statement of accused recorded under Section 313 Cr.P.C., wherein, he termed his implication false on account of enmity. 20. The defence did not lead any testimony, Whatsoever. 21. 19. Except as above, no other testimony was adduced, therefore, evidence for the prosecution was closed and statement of accused recorded under Section 313 Cr.P.C., wherein, he termed his implication false on account of enmity. 20. The defence did not lead any testimony, Whatsoever. 21. The trial court after hearing both the sides on the merit of the case and after appraising facts and evaluating the testimony on record, recorded conviction against the accused and sentenced him to imprisonment for life and two years R.I. for the offence under Sections 302 and 404 IPC, respectively. 22. Consequently, this appeal. 23. Contention has been raised on behalf of the appellant that FIR is ante-timed. No one saw the occurrence. Testimony of the prosecution witnesses of fact is shaky, incongruous in material particulars and it does not inspire confidence. All the witnesses of fact are chance witnesses. The mother-in-law of the deceased (Smt. Har Kunwar), who was allegedly accompanying her daughter-in-law (Shanti) when the incident took place, would have been star witness, but she (Smt. Har Kunwar) was not produced and her testimony withheld. Testimony of Bhaiya Lal P.W.1the informantis testimony of highly interested person. His presence on the spot is highly doubtful. What he was doing at his home throughout the day, has not been clarified, whereas, his mother (Har Kunwar) and wife (Shanti) had gone to the agricultural field for work whole day. There is no description of any ornament being taken away from the body of the deceased-Shanti, where as, a false story was developed in collusion with the informant and the police; that some Bichhuwa (waist band), which was put on by the deceased (Shanti) was taken away by the accused after committing the crime. Particular of taking away Bichhuwa from the body of the deceased is surprisingly missing in the written report. Inquest was not prepared after the arrival of the police on the spot around 9.00 P.M. on 13.10.1987, but the same was post poned to another day, which fact shows that till the time of preparation of the inquest report, no FIR was, in fact, in existence. If statement of the informant and others was recorded by the Investigating Officer at the spot in the torchlight and light emitted by lantern, then there was no plausible reason for not holding inquest of the deceased in the night. If statement of the informant and others was recorded by the Investigating Officer at the spot in the torchlight and light emitted by lantern, then there was no plausible reason for not holding inquest of the deceased in the night. Testimony of prosecution witnesses is full of material contradictions. The fact is that the informant side belongs to another community and the accused belong to 'Lodhi' community and the informant side wanted to grab property of the accused and were inimical towards the accused. Therefore, the accused was falsely implicated in the case. The factum of recovery of Bichhuwa (waist band) stands exposed by the testimony of Jhiriya P.W.3. He has specifically stated that at the time when he met daroga ji on the way Halkey S/o Ghanshyam, Ram Asrey S/o Chaturbhuj and Bhaiya Lal, his mother (Smt. Har Kunwar) and a number of other people were accompanying daroga ji along with accused Uttam Lodhi, whereas, the Investigating Officer in his Cross-examination has stated that as soon as recovery was effected, Bhaiya Lal, his mother and his sister arrived on the spot. Blank signature/thumb impression of Jhiriya P.W.3 was obtained on the recovery memo of Bichhuwa (waist band). There are lot of infirmities, apparent and inherent, in the prosecution case, which on the face, indicate that prosecution has not been able to prove its case beyond reasonable doubt. 24. While retorting to aforesaid contentions, learned AGA has claimed that the case of the prosecution is consistently proved and the evidence on the whole inspires confidence and establishes guilt of the accused. Presence of Bhaiya Lal P.W.1 on the place of occurrence cannot be doubted because after hearing shriek of victim (Shanti), he rushed towards the spot where he witnessed the occurrence. The police came to the spot after lodging of the FIR. Though, the Investigating Officer recorded statement of several persons, but source of light was not sufficient for holding inquest. Therefore, the same was postponed to the following morning of 14.10.1987 and the inquest was completed around 08.30 A.M. Factum of recovery has been properly proved. Recovery memo Exhibit Ka-2 and the site plan of Exhibit Ka-11 also prove fact of recovery, which cannot be doubted. Therefore, the same was postponed to the following morning of 14.10.1987 and the inquest was completed around 08.30 A.M. Factum of recovery has been properly proved. Recovery memo Exhibit Ka-2 and the site plan of Exhibit Ka-11 also prove fact of recovery, which cannot be doubted. It is the wisdom of the prosecution to produce the witness or not to produce the witness, because a fact is to be evaluated on the strength of quality and not by the quantity of the witnesses. No adverse presumption can be drawn against the prosecution for not producing mother-in-law of the deceased. There is no material contradiction in the testimony of prosecution witnesses. The judgment and order of conviction passed by the trial court is based on record and the same is justified. 25. We have also considered the above rival submissions extended by both the sides and also considered the claim of the appellant. In the wake of above, the moot point for determination of this appeal crops up whether the prosecution has been able to establish charge against the accused beyond all reasonable doubt? 26. In this case, upon careful perusal of the record, we discover that prosecution has produced Bhaiya Lal P.W.1 and Ram Asray P.W.2, as the two witnesses of fact of occurrence and Jhiriya P.W.3 is the witness of fact of recovery of Bichhuwa vide recovery memo Exhibit Ka-2. There fore, testimony of both these Witnesses Bhaiya Lal P.W.1 and Ram Asray P.W.2 is to be scrutinized and evaluated at this stage and we have to extract truth from it. Testimony of rest of the other witnesses is formal and subsidiary to the point of occurrence and the same shall be aligned with the testimony concerning the occurrence and the ancillary facts relating there to. 27. Before we proceed further, it would be relevant at this stage to have a look at the contents of the first information report. The first information report was lodged at Police Station Charkhari at 07.20 P.M. on 13.10.1987 by Bhaiya Lal P.W.1, the husband of the deceased Shanti. FIR alleges fact that informant's mother (Smt. Har Kunwar) and wife (Shanti) had gone to work on the field and they were returning home around 5.00 P.M. Informant's wife was followed by her mother-in-law at some distance. The informant was also going to see the same field in the evening. FIR alleges fact that informant's mother (Smt. Har Kunwar) and wife (Shanti) had gone to work on the field and they were returning home around 5.00 P.M. Informant's wife was followed by her mother-in-law at some distance. The informant was also going to see the same field in the evening. As soon as informant's wife came near maize field of Ram Asray, Uttam Lodhi S/o Chatura of his village caught hold of his wife with bad intention and pulled her down on the ground, whereupon, informant's wife shrieked and then the informant arrived on the spot challenging Uttam Lodhi. Informant saw the accused gripping over neck of his wife and in the meanwhile, informant's mother (Smt. Har Kunwar), Ram Asray and Halkey also arrived on the spot and saw the incident. Uttam Lodhi after killing Shanti (wife of the informant) escaped away from the scene through southern side of the field. 28. In the backdrop of aforesaid factual allegation, we now proceed to scrutinize testimony of both the witnesses of fact Bhaiya Lal P.W.1 and Ram Asray P.W.2. 29. We may begin with the specific testimony of Bhaiya Lal P.W.1. He has stated in his examination-in- chief that the incident took place on 13.10.1987. On the day of occurrence, his wife had gone to work on the field around 10.00 A.M. and she was accompanied by his mother Har Kunwar. The informant (P.W.1) was also going to see the same field in the evening. Ram Asray and Halkey were also coming behind him to look after their field. At about 5.00 P.M., he reached near field of Daya Ram and at that point of time his mother and wife were returning home from the field. His wife Shanti was ahead of his mother who was a little behind his wife. When Shanti reached near the maize field of Ram Asrey, accused Uttam Lodhi caught hold of Shanti and dragged her inside the field. Shanti shrieked, whereupon, he (Bhaiya LalP. W.1) rushed to the spot, where he saw the accused Uttam Lodhipulling down his wife on the ground by gripping over her neck and after pulling her down, he pressed her neck with force and in the meanwhile, his mother Har Kunwar, Ram Asrey, Halkey had also arrived on the spot. Shanti shrieked, whereupon, he (Bhaiya LalP. W.1) rushed to the spot, where he saw the accused Uttam Lodhipulling down his wife on the ground by gripping over her neck and after pulling her down, he pressed her neck with force and in the meanwhile, his mother Har Kunwar, Ram Asrey, Halkey had also arrived on the spot. They tried to apprehend him, but the accused after taking silver 'Bichhuwa' (waist band) from the waist of the victim fled away towards southern side. Shanti died on the spot. 30. In line with the aforesaid testimony of Bhaiya Lal P.W.1, we also notice testimony of Ram Asray P.W.2the another eyewitness of the incident. He too has testified on fact that he was going to look after his field along with Bhaiya Lal on the day of the occurrence. Bhaiya Lal was moving ahead of him when he walked some distance, he heard shrieks of Shanti Devi wife of Bhaiya Lal. At that point of time, Shanti was on the northern elevated mud pad of his maize field and the mother-in-law of Shanti was 50 steps behind her. Accused Uttam caught hold of Shanti on the elevated mud pad and dragged her into his maize field. Bhaiya Lal P.W.1 and Ram Asray P.W.2 rushed towards the spot. When these witnesses reached at the elevated mud pad on the north side of his field, mother-in-law of Shanti (deceased) also arrived over there running. On page no.35 of the paper book, this witness has testified to the ambit that as soon as he arrived on the elevated mud pad, he saw Shanti lying dead. He saw Uttam tightening his grip over neck of Shanti. Then this witness proceeds with description that he saw Uttam fleeing away from the field and due to this reason, he can say that he (accused) killed Shanti and fled away. This specific piece of testimony evinces in itself truth that this witness never saw the actual occurrence of throttling right from the initial stage of the occurrence up to the stage of act of throttling neck of the deceased. This specific testimony, when compared with the testimony of Bhaiya Lal P.W.1, gives apparent impression that Ram Asrey P.W.2 never witnessed the actual occurrence, therefore, on the point of actual occurrence, this witness is not reliable and his testimony, as such, cannot be acted upon by us. This specific testimony, when compared with the testimony of Bhaiya Lal P.W.1, gives apparent impression that Ram Asrey P.W.2 never witnessed the actual occurrence, therefore, on the point of actual occurrence, this witness is not reliable and his testimony, as such, cannot be acted upon by us. Because when he reached at the spot, he found Shanti dead. 31. Now, we are left with the testimony of Bhaiya Lal P.W.1. It has been urged on behalf of the appellant that no worthy reason has been assigned by the informant Bhaiya Lal as to why was he staying back at his home throughout the day when his wife and mother had gone for work on his agricultural field. He next urged that there is no whisper in the written report Ex.Ka.1 about taking away of any ornament from the body of the deceased Shanti, where as Daroga Ji has colluded with the informant to include by way of improvement this particular factual aspect subsequently to the occurrence in order to effectuate false recovery from the accused so that the accused could be easily roped in and linked with the commission of the crime. 32. In so far as the first contention regarding staying back at home of Bhaiya Lal is concerned, we don't come across any such worthy reason as to why he stayed back home throughout the day (13.10.1987) when his mother and his wife were labouring in the agricultural field. 33. Next, on point of omission of fact of taking away silver waist Band (Bichhuwa) from the body of the deceased is concerned, no doubt the FIR cannot be construed to be an encyclopedia of all details and it cannot be expected that it would be complete in all respects in the description of the incident, but we can conveniently observe that ordinary human experience expects at least some material particulars to be whispered in a written report pertaining to that particular aspect of the incident which is special and which becomes part and parcel of the incident. There fore, omission to mention altogether fact regarding taking away of silver waist band (Bichhuwa) from the body of deceased Shanti by the accused raises reasonable doubt. It may be that the witnesses of fact either did not see this particular fact or they are deliberately improving upon facts for reasons best known to them. 34. There fore, omission to mention altogether fact regarding taking away of silver waist band (Bichhuwa) from the body of deceased Shanti by the accused raises reasonable doubt. It may be that the witnesses of fact either did not see this particular fact or they are deliberately improving upon facts for reasons best known to them. 34. Now, we may visualise the attendant factual and circumstantial aspects of the case emerging in the testimony of Bhaiya Lal P.W.1. Testimony has been given on fact that the accused caught the victim with bad intention. But there is no proof either explicit or implicit of any such bad intention that he ever tried to attempt any rape on the victim or he ever did any overt act for outraging modesty. After the accused had dragged the victim into the maize field by about 15 to 20 feet and pulled her down, right from the commencement of the incident up to its end, P.W.1 testifies to the effect that the accused caught hold of Shanti Devi on the northern elevated mud pad of the maize field of Ram Asray (P.W.2) and he had lightened his grip over neck of his wife when he (P.W.1) sighted first. The point that engages our attention at this particular aspect of this case naturally arises to the ambit that the incident took place inside the maize field and testimony is forthcoming from Bhaiya Lal P.W.1 that the accused dragged his wife inside the maize field of Ram Asray (P.W.2) upto about 15-20 feet and then pulled her down. Bhaiya Lal P.W.1, at that point of time when he first sighted the accused and his wife, was possessing 'lathi', but he, as per this testimony, threw away 'lathi' and ran towards the spot. This is totally unthinkable and unexpected reaction to the situation. A person whose wife is being victimised before his eyes, if possessing 'lathi', will never throw away the same and then only rush towards his wife for her rescue. But he will always hold firmly 'lathi' in his hand and will rush towards the spot. Bhaiya Lal P.W.1 says that as soon as he sighted the accused in the maize field, the accused had forcibly gripped over neck of his wife with his hand and he took away the silver waist band '(Bichhuwa)' and fled away from the scene. But he will always hold firmly 'lathi' in his hand and will rush towards the spot. Bhaiya Lal P.W.1 says that as soon as he sighted the accused in the maize field, the accused had forcibly gripped over neck of his wife with his hand and he took away the silver waist band '(Bichhuwa)' and fled away from the scene. Testimony is specific on the point and it asserts that 2-3 persons say Bhaiya Lal P.W.1 and Ram Asray P.W.2 and one more person had witnessed the occurrence and they say that they did not chase the accused out of fear. But this fear, under circumstances of this case, is unfounded on ground that the informant and others present on the spot were at least three in number, whereas, accused was all alone. Therefore, there was no reason being scared of the accused as the accused had not been possessing any weapon at that point of time. 35. Now, how the entire offence was successfully committed by the accused by dragging the victim inside the maize field up to 15-20 feet and then pulling her down and throttling her to death, is beyond one's reason, because the husband of a women in ordinary course would react quickly and intensely to reach to the spot to the rescue of his wife who saw the incident from its very commencement. Testimony of the prosecution witnesses of fact reveals that the distance between the deceased and the informant was about 4-5 feet when the accused started running away. Thus, the reaction of Bhaiya Lal P.W.1, on the spot, particularly in arriving at the spot only after death of his wife had taken place by throttling then fact of 'lathi' being thrown away by him is highly suspicious fact and which cannot be believed on its face value. Even an ordinary man would hold on to lathi if he would hear shriek of his wife before his naked eyes. But this is not so in this case at hand. Both the witnesses have not whispered about fact as to how they could not save Shanti (victim) when they had seen the accused at the initial stage of the occurrence when the accused caught hold of Shanti at a time when she was outside the maize field of Ram Aasrey and she raised shriek. Both the witnesses have not whispered about fact as to how they could not save Shanti (victim) when they had seen the accused at the initial stage of the occurrence when the accused caught hold of Shanti at a time when she was outside the maize field of Ram Aasrey and she raised shriek. Omission of such description in the testimony of witnesses about this particular aspect of the occurrence is fair enough to suggest innocuously that the prosecution witnesses came to know about the incident only after the discovery of the dead body. 36. We also doubt factum of recovery of silver waist band (Bichhuwa) for certain specific reason. As per memo of recovery Ex.Ka.2, the recovery of silver waist band (Bichhuwa) was effected on 16.10.1987 at 7:00 A.M. from the side of canal and Jhiriya P.W.3 was one of the recovery witnesses. Jhiriya P.W.3 has testified about recovery of silver waist band (Bichhuwa) that on the day of recovery, it was around 7:00 A.M. He was returning from his field. On way, he met with Daroga Ji, who was being accompanied by Ram Asray P.W.2, Bhaiya Lal P.W.1, mother of Bhaiya Lal and accused Uttam besides a number of other persons. Daroga Ji did not ask anything from the accused Uttam. Uttam brought out from the 'tale' of canal one silver waist band (Bicchwa/Kardhani) and gave it to Daroga Ji. However, he did not make any statement. In his Examination-in-chief on page no.41 of the paper book, he testified that Daroga Ji had obtained his thumb impression on the memo after it was read over to him. But in his cross-examination on page no.42 of the paper book, he has testified that Daroga Ji obtained his thumb impression on a blank paper. Nothing was written on it and at the same time Daroga Ji also obtained thumb impression of Lallu. This particular testimony raises serious doubt on the manner and style of preparation of the recovery memo (Exhibit Ka2) and the recovery itself as to how whimsically and casually the Investigating Officer has tried to work out recovery. How can Daroga Ji obtain thumb impression on a blank paper and how can he work in such a negligent manner to effectuate recovery? This thumb impression was obtained from the place from where the alleged recovery was made. How can Daroga Ji obtain thumb impression on a blank paper and how can he work in such a negligent manner to effectuate recovery? This thumb impression was obtained from the place from where the alleged recovery was made. This witness has been reexamined, wherein he has stated that Daroga Ji wrote on this blank paper and then obtained his thumb impression and Daroga Ji had written that silver waist band (Bichhuwa) was handed over by Uttam Lodhi. But perusal of recovery memo Exhibit Ka-2 reveals only one thumb impression on it of Jhiriya (P.W.3) and not two impressions. Testimony of Bhaiya Lal P.W.1 regarding recovery of silver waist band (Bichhuwa/Kardhani) at the pointing out of accused Uttam is not sustainable in the eye of law because Daroga Ji has not only acted negligently, but maliciously. Jhiriya P.W.3 says that it was around 7:00 P.M. he met with Daroga Ji who was being accompanied by accused Ram Asray P.W.2, Bhaiya Lal P.W.1, etc., but Gopi Chand Yadav Investigating Officer (P.W.5) testifies on page no.54 of the paper book in his cross-examination that as soon as recovery was effected, Bhaiya Lal and his family members arrived on the spot and they identified the silver waist band (Bicchwa/Kardhani). This testimony of the Investigating Officer is in sheer contrast to the testimony of Jhiriya P.W.3 in his examination-in-chief, on page40 of the paper book, that when he met with Daroga Ji around 7:00 A.M., Halkey, Ram Asrey P.W.2, Bhaiya Lal P.W.1, his mother, number of villagers and accused Uttam Lodhi were also accompanying him. Then to say that Bhaiya Lal P.W.1 arrived at the place of recovery only after the recovery had been effected is absolutely a blatant lie. Not only this, but also Bhaiya Lal P.W.1 has testified on page no.22 of the paper book that he reached to the spot of recovery after he received information of arrest of accused Uttam Lodhi and fact that Daroga Ji had testified that during course of recovery proceeding the informant also arrived on the spot. Thus, in the wake of above changing version of the witnesses (P.W.1 and P.W.5), the testimony of Bhaiya Lal P.W.1 and Gopi Chand Yadav Investigating Officer P.W.5on point of recovery becomes improved testimony and the same is in sheer contrast to the testimony of Jhiria P.W.3. Thus, in the wake of above changing version of the witnesses (P.W.1 and P.W.5), the testimony of Bhaiya Lal P.W.1 and Gopi Chand Yadav Investigating Officer P.W.5on point of recovery becomes improved testimony and the same is in sheer contrast to the testimony of Jhiria P.W.3. This way, we can infer that police had tried to improve the situation to the peril of the accused in collusion with the informant. Trustworthiness of Gopi Chand Yadav Investigating Officer P.W.5 on point of his investigation pertaining to fact of recovery of silver waist band (Bichhuwa) being inconsistent, on the face, is liable to be ignored by us and it cannot be coloured with legality. More so, if the copy of the recovery memo was torn by the accused then torn pieces could have been collected and produced by the I.O. but he failed to advert to the same for reasons best known to him self. 37. Thus, the overall outcome of the occurrence, on the whole, does not inspire confidence that it was in fact witnessed by the prosecution witnesses of fact Bhaiya Lal P.W.1 and Ram Asray P.W.2. 38. It is the bounden duty of the prosecution to prove its case beyond all reasonable doubt and not to leave any incoherence of a sort, which may leave room for doubt and which may give way to double interpretation of the occurrence, then, indeed, the impression which favours the accused would and ought to be preferred by the Court. The husband though initially saw the accused and his victim wife outside the field of maize but he could not reach to the spot and in the meanwhile, the accused took the victim inside the maize field up to a distance of 15-20 feet by dragging her and by throttling her to death. This factual aspect is quite astonishing and inherently generates doubt about actual presence of the prosecution witnesses on the spot. The wholesome of the testimony doesn't inspire confidence that the witness of fact saw the occurrence being committed by the accused. 39. This factual aspect is quite astonishing and inherently generates doubt about actual presence of the prosecution witnesses on the spot. The wholesome of the testimony doesn't inspire confidence that the witness of fact saw the occurrence being committed by the accused. 39. Not only this but we also notice fact that the information of the incident had been given at the Police Station Charkhari at 7:20 P.M. and the Investigating Officer had arrived at the spot around 9:00 P.M. and statement of various persons was recorded on the spot after arranging lantern light and the police personnel were also possessing torch with them. But the inquest of deceased (Shanti) was not held and the same was postponed to the next morning, is beyond our reason because the Investigating Officer had expressed his inability to hold inquest on account of darkness and absence of proper source of light. The lantern light and torchlight were available, despite that, Daroga Ji claims darkness on the spot and paucity of source of light cannot be expected as a genuine ground for postponing the inquest to the next morning. 40. Further, in the postmortem examination report and in the testimony of Dr. V.D. Mangal P.W.4, it has been opined that on internal examination, the large intestine was filled with faecal matter which was stinking. This shows that the deceased must have taken food around 11:00 A.M. or 12:00 NOON on 13.10.1987. If the large intestine was fully filled with faecal matter but there is no whisper in the entire testimony as to when the deceased took her day meal on the day of the occurrence. These factual aspects though ancillary to the occurrence are telling something fishy on the claim of the prosecution regarding the incident. 41. Thus, we entertain reasonable doubt on two points. First, that the two witnesses of fact did not see the actual occurrence and it is probable, under facts and circumstances of the case, that they came to know about the incident after the dead body was recovered. That is why the inquest was not held in the same night when sources of the lantern light and torchlight were available on the spot and it was postponed to the next morning, whereas statement of few persons recorded on the spot in the same source of light. The winter had not yet set in and it was 13th of October, 1987. The winter had not yet set in and it was 13th of October, 1987. Secondly, the factum of recovery for the reasons stated herein above becomes dubious and inexplicable. Conduct of Bhaiya Lal P.W.1, under facts and circumstances, regarding his being eyewitness of the actual occurrence is rendered unnatural and improbable. It appears that after the incident and after the recovery of the dead body, some deliberation was made and some guess work was done, whereby it was thought proper to implicate the appellant in the case and the police colluded with the first informant in order to easily work out the case. 42. The trial court while scrutinising the various aspects, facts, circumstances and evaluating evidence of the prosecution witnesses of fact failed to properly appreciate things in right perspective, instead it recorded finding of conviction on conjectures and whims, which finding of conviction becomes erroneous and perverse, on the face, which is liable to be set aside by us. 43. Consequently, the judgment and order of conviction dated 04.11.1988 passed by Sessions Judge, Hamirpur in Sessions Trial No.32 of 1988 (State Vs. Uttam Lodhi), arising out of case crime no.160 of 1987, under Sections 302 and 404 IPC, Police Station Charkhari, District Hamirpur is hereby set aside and the appeal is allowed, accordingly. 44. In this case, the accused-appellant is already on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged. However, he shall furnish surety bonds in compliance with Section 437-A Cr.P.C. 45. Let a copy of this order/judgment be certified to the court below for necessary information and follow up action.