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2017 DIGILAW 951 (ALL)

ASHOK KUMAR v. STATE OF U. P.

2017-04-07

ARVIND KUMAR MISHRA I, BALA KRISHNA NARAYANA

body2017
JUDGMENT : (Delivered by Hon'ble Arvind Kumar Mishra-I, J.) Heard Sri Pulak Ganguly, learned counsel for the appellant assisted by Sri Jai Prakash Singh, learned Advocate and Kumari Meena and Smt. Manju Thakur, learned A.G.As for the State and perused the record of this appeal. Relevant to mention here that in this case, out of the two appellants, appellant no.2 Dinanath has expired, therefore, his case stood abated vide order of this Court dated 12.01.2017. Now, the only surviving appellant is appellant no.1 Ashok. By way of instant criminal appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 14/15.04.1988 passed by IV Additional Sessions Judge, Etah in Sessions Trial No.332 of 1986 (State Vs. Ashok Kumar) arising out of case crime no.103 of 1986, under Sections 302 IPC, Police Station- Soron, District- Etah, whereby, the appellant- Ashok Kumar has been sentenced to imprisonment for life under Section 302 IPC. The prosecution case in short as discernible from record appears to be that informant Brahmanand Chaturvedi lodged first information report in Police Station- Soron of District- Etah against several persons including the present appellant on 25.05.1986 at 15.30 hours with allegations that informant's father Mishri Lal Chaturvedi was founder of Arya Gurukul Sanskrit Vidyapeeth, Prahladpur and the informant is Principal of this institution. Last year in the month of "Agrahayana" (November), some ceremony was held in the school. In the ceremony, Ashok Kumar of informant's village sat on the chair, which was objected to by the informant's father (Mishri Lal Chaturvedi) and he was made to leave the chair. This annoyed Ashok and his family members and they took this by heart. They also indulged in abusing informant's father, whereupon, an application was moved by informant's father to the police and proceeding under Section 107 (Cr.P.C.) was taken. Informant's father had also made some complaint regarding appellant- Ashok- presenting some fake certificate for obtaining employment in P.A.C. On account of that reason, too, the appellant was inimical towards the informant's father. Informant's father was a physically disabled person. He was lying on a cot in the main gallery of the school gate and Lal Bahadur, a student of the school, was also lying on another cot near him. Informant along with his wife Asha Devi and Sonpal s/o Ramlal were talking under a jackfruit tree. Informant's father was a physically disabled person. He was lying on a cot in the main gallery of the school gate and Lal Bahadur, a student of the school, was also lying on another cot near him. Informant along with his wife Asha Devi and Sonpal s/o Ramlal were talking under a jackfruit tree. It was around 2.00 P.M. when Dinanath along with his two sons- Ashok and Vijai- appeared on the spot. Both the sons- Ashok and Vijai- were possessing country-made gun, while Dinanath was possessing a lathi in his hand. They came inside the gate from the roadside. Dinanath exhorted his sons, "Don't look; kill him; he has been moving complaint." Both the sons of Dinanath fired with their guns. Fire shot by Vijai missed, while the fire shot by Ashok hit informant's father- Mishri Lal Chaturvedi. Alarm was raised on the spot, whereupon the assailants made their escape good from the scene. While the informant was arranging for conveyance for his injured father for taking him to the hospital, his father (Mishri Lal Chaturvedi) succumbed to his injuries in a short while. Request was made for lodging the report and taking appropriate action. Written report is Ex.Ka.1. Contents of the aforesaid information were taken down in the concerned check FIR at Police Station- Soron on 25.05.1986 at 3.30 P.M. in Case Crime No.103/1986 under Section 302 IPC. The check FIR is Ex.Ka.15. On the basis of entry so made in the check FIR, relevant entry was made in the concerned G.D. at 3.30 P.M. on 25.05.1986 at the same police station under aforesaid section of IPC and a case was registered against the accused persons. The relevant G.D. entry is Ex.Ka.16. Investigation of the case was taken over by the Investigating Officer Satyapal Singh Solanki P.W.5, who after taking note of the contents of check FIR and other relevant papers, proceeded to the spot along with S.S.I. Karan Singh and after selecting the inquest witnesses, held inquest of deceased- Swami Mithilesh @ Mishri Lal Chaturvedi. The inquest commenced at 4.15 P.M. and completed at 5.45 P.M. The inquest report is Ex.Ka.5. In the opinion of the inquest witnesses and the Investigating Officer, it was thought proper to send the dead body for autopsy for ascertaining real cause of death. The inquest commenced at 4.15 P.M. and completed at 5.45 P.M. The inquest report is Ex.Ka.5. In the opinion of the inquest witnesses and the Investigating Officer, it was thought proper to send the dead body for autopsy for ascertaining real cause of death. In the process, relevant papers were prepared- photo nash is Ex.Ka.6, challan dead body is Ex.Ka.7, letter to C.M.O. is Ex.Ka.8, letter to R.I. is Ex.Ka.9, specimen seal is Ex.Ka.10. The Investigating Officer also prepared the site plan Ex.Ka.11. The postmortem examination was conducted on the cadaver of deceased Mishri Lal Chaturvedi by Dr. A.B. Agarwal P.W.3 on 26.05.1986 at 10.00 A.M., wherein the following ante-mortem injuries were noted at the time of examination: Ante-mortem injuries : "Five firearm wound of entry each measuring 1.5 cm x 1.5 cm x cavity deep in an area of 7 cm x 7cm on the lower part of the right side of back over line the last rib. No blackening or tattooing seen. Direction backwards to forwards, slightly upwards and from right to left." The cause of death was stated to be shock and haemorrhage as a result of ante-mortem injuries. Postmortem report has been proved as Ex.Ka.2. The Investigating Officer also collected blood-stained and simple soil from the spot and kept the same in a container and prepared a memo- Ex.Ka.12. The Investigating Officer also collected 'tickli' and twine having blood stains and prepared memo of the same Ex.Ka.13. Thereafter, the investigation was taken over by another Investigating Officer Sri B.D. Singh P.W.4, who recorded statement of various persons including the accused and after completing the investigation, he filed two separate charge-sheets- charge-sheet against Dinanath and Vijai was Ex.Ka.3 and charge-sheet against Ashok was Ex.Ka.4. Thereafter, committal proceedings took place and the case was committed to the Court of Sessions, from where it was transferred to the Court IV, Additional Sessions Judge, Etah, after allotting sessions trial numbers, 332/1986, State Vs. Ashok Kumar. The learned trial Judge after hearing the prosecution and the accused on point of charge was prima-facie satisfied with the case against the accused, therefore, framed charge against Ashok under Section 302 IPC. The charge was read over and explained to the accused, who abjured charge and opted for trial. Ashok Kumar. The learned trial Judge after hearing the prosecution and the accused on point of charge was prima-facie satisfied with the case against the accused, therefore, framed charge against Ashok under Section 302 IPC. The charge was read over and explained to the accused, who abjured charge and opted for trial. In turn, the prosecution was asked to adduce its testimony in support of the charge, whereupon, prosecution produced in all five witnesses, whose, reference is sketched herein below:- Brahmanand Chaturvedi P.W.1 is the informant. He has proved written report and claims himself to be an eye-witness. Smt. Asha Devi P.W.2, wife of the informant, is also an eye-witness of the occurrence. She has also described about the incident. Dr. A.B. Agarwal P.W.3 has conducted autopsy on the cadaver of the deceased and has proved the postmortem report Ex.Ka.2. Inspector Sri B.D. Singh P.W.4 is the second Investigating Officer of this case and he has filed charge-sheet against the appellant and has proved he same. Sri Satyapal Singh Solanki P.W.5 is the first Investigating Officer who held inquest of deceased Mishri Lal Chaturvedi and prepared various memos on the spot. This witness has also proved the relevant entries made in the check FIR and the concerned GD. Record further reflects that Sonpal was examined by the Court as C.W.1 and he has turned hostile and has not supported the incident. Similarly, Lal Bahadur was also examined by the Court as C.W.2 who was named witness in the first information report, but he too has not supported the incident. Thereafter, evidence for the prosecution was closed and statement of accused recorded under Section 313 Cr.P.C., wherein he has claimed to have been falsely implicated in the case on account of enmity for no worthy reason. He has also submitted that at the time of the incident, he was working in Irrigation Department. He adduced testimony of one Girish Chandra Mishra D.W.1. Except as above, no other defence evidence was adduced, therefore, evidence for defence was also closed and the case was posted for argument. The trial court after considering the case on its merit and appraisal of facts and circumstances of the case, returned finding of guilt against the accused and convicted him under Section 302 IPC and sentenced him to life imprisonment. Consequently, this appeal. The trial court after considering the case on its merit and appraisal of facts and circumstances of the case, returned finding of guilt against the accused and convicted him under Section 302 IPC and sentenced him to life imprisonment. Consequently, this appeal. It has been vigorously claimed on behalf of the appellant that the entire case is based on fanciful thinking and guess work. The incident in itself is dramatic and everything looms in darkness. The witnesses being relative of deceased are highly interested and their testimony is that of partisan witnesses. Their presence on the spot is doubtful. Their testimony on the whole does not inspire confidence and miserably lacks coherence. Both the witnesses of fact (P.W.1. Brahmanand Chaturvedi and P.W.2 Asha Devi) are highly tutored and their testimony is full of embellishments. The Investigating Officer did not collect the blood-stained soil from the actual spot where the deceased was shot at, but he was shown the place where the dead body was brought and kept outside the gallery on cot after the occurrence had taken place. The factual testimony of witnesses is mutually contradictory. The medical testimony is diametrically opposed to the manner and style of occurrence stated by the witnesses of fact. The manner of assault testified by the witnesses is not probable. The medical testimony is in contrast to the ocular testimony. Testimony on record is replete with facts that deceased had enmity with other persons as well no independent witness has produced in support of the prosecution story. Two persons named in the FIR have been examined as Sonpal C.W.1 and Lal Bahadur C.W.2. But they have not supported the prosecution case. The motive ascribed for committing the crime is vague as well as weak. The prosecution has failed to prove its case beyond reasonable doubt. While replying to aforesaid contentions, learned A.G.A. has submitted that the prosecution witnesses of fact are in fact the son and the daughter-in-law of the deceased. Their presence on the spot, under circumstance, is most natural and their version of the incident is clinching and consistent. No improbability is perceptible in their testimony. Each and every place in the site plan has been distinctively depicted. The Investigating Officer has prepared blood-stained twine and'tickli' from the cot. Their presence on the spot, under circumstance, is most natural and their version of the incident is clinching and consistent. No improbability is perceptible in their testimony. Each and every place in the site plan has been distinctively depicted. The Investigating Officer has prepared blood-stained twine and'tickli' from the cot. The accused side has won over certain prosecution witnesses, named in the FIR, who have not supported the incident having been committed by the appellant. Testimony of prosecution witnesses of fact on point of occurrence, on the whole, not only inspires confidence but also, proves the guilt beyond reasonable doubt. Testimony of witnesses also proves the very motive behind the crime. Moreover, doctor's testimony is opinionative and it is not conclusive on fact of incident, the assailant would have been on the lower level than the deceased. There is no justifiable explanation as to why the prosecution witnesses of fact are interested in falsely implicating the accused while sparing the real culprit. The trial court was justified in recording conviction and passing just sentence against the appellant. We have considered the rival submissions and also the rival claims based on various facts. In our considered opinion, the point for determination of this appeal relates to fact whether the prosecution has been able to prove the guilt of the appellant beyond all reasonable doubts? Before we proceed further with our scrutiny and appreciation of various facts and circumstances and evaluation of testimony on record, it would be appropriate to take into account the motive alleged behind the incident. The written report Ex.Ka.1 specifies certain motivating causes responsible for the occurrence. It has been alleged that some ceremony took place in the month of "Agrahayana" (November) in the school last year. Ashok Kumar (accused-appellant) came to attend the ceremony and sat on a chair, which was objected to by the father of the informant and he was asked to leave the seat. This very much agonised and embarrassed the appellant and his family members, whereupon the appellant abused informant's father and informant's father moved a complaint before the police regarding the same, whereupon proceeding under Section 107(Cr.P.C.) was taken. Secondly, it has been stated that some application was earlier moved by the father of the informant against appellant Ashok for presenting forged certificate and obtaining employment in P.A.C. Department in Ghaziabad. Secondly, it has been stated that some application was earlier moved by the father of the informant against appellant Ashok for presenting forged certificate and obtaining employment in P.A.C. Department in Ghaziabad. Both these causes have been shown to be working as the motivating force behind the occurrence. It has been further indicated in the FIR that the informant's father was founder of Arya Gurukul Sanskrit Vidyapeeth, Prehaladpur. He was a physically-disabled man and on the date of the occurrence, he was lying (sleeping) on a cot in the gallery of the main gate of the school when the incident occurred around 2.00 P.M. It was caused by all (three) the accused persons including the present appellant. In so far as above motivating factors are concerned, we can say that motive, in such cases like the present one in hand, will not carry inbuilt force in itself in view of eye-account testimony forthcoming from the prosecution witnesses of fact. While we evaluate and weigh their testimony and gradually proceed further with our finding, then only the things will become clear. We have before us two witnesses of fact and both claim themselves to have been present on the spot when the incident occurrence, P.W.1 is the informant- Brahmanand Chaturvedi and P.W.2 is the wife of the informant- Asha Devi. Apart from above, there is no other prosecution witnesses of fact on point of occurrence. First information report indicates that at that point of time when the incident was caused by the assailants at 2.00 P.M., student Lal Bahadur s/o Mukund Ram Vaish was also lying on a cot near cot of Mishri Lal Chaturvedi (deceased). However, Lal Bahadur has been examined as C.W.2, but he has not supported the incident in the least itself and has stated that he was not present on the spot, but had gone to his home. He has also not supported the version of motive when he had stated in his examination-in-chief that he did not see as to when Ashok was asked/made to leave the chair in the school at the time of the function/ceremony. He has also denied fact that he ever witnessed any incident. He has also not supported the version of motive when he had stated in his examination-in-chief that he did not see as to when Ashok was asked/made to leave the chair in the school at the time of the function/ceremony. He has also denied fact that he ever witnessed any incident. Certainly, that way, the independent corroboration on point of motive does not get support, but for reasons stated herein above, it is obvious that in the case of eye-account testimony, the motive ascribed is relegated to the background, though it carries some relevance. In so far as ocular description of the incident and its manner and style is concerned, we come across the testimony of the informant and his wife as P.W.1 Brahmanand Chaturvedi and P.W.2 Asha Devi, respectively. It has been testified by Brahmanand Chaturvedi P.W.1 that his father Mishri Lal Chaturvedi was founder of Arya Gurukul Sanskrit Vidyapeeth, Prehladpur and this witness was the Principal of the school at that point of time (when the incident occurred). Prior to this incident, some function was organised in the school in the month of 'Agrahayana'. In this function, Ashok of his village came to attend the ceremony and sat on the chair, whereupon, objection was raised by his father Mishri Lal Chaturvedi and he was made to leave the chair. This annoyed Ashok and his family members. They (Ashok and his family members) abused informant's father. Then, informant's father reported the matter at the police station and police took action by resorting to proceeding under Section 107/117 Cr.P.C. It has further been testified that accused Ashok had obtained employment in P.A.C. Department by producing forged certificate, about which some complaint was moved by the informant's father, due to which, the appellant was inimical towards informant side. In so far as the place of occurrence is concerned, this witness testifies on page no.22 of the paper book that there is one gallery in the school where certain rooms have been constructed in the northern and southern side and some verandah lies in front of these rooms. The area is surrounded by barbed boundary and one hand- pump is installed near a jackfruit tree. This witness also distributes medicine to the student apart from doing his work as a Principal for which one room has been separated. The area is surrounded by barbed boundary and one hand- pump is installed near a jackfruit tree. This witness also distributes medicine to the student apart from doing his work as a Principal for which one room has been separated. On page no.23 of the paper book, he describes the incident by testifying that it was around 2.00 P.M., his father-Mishri Lal Chaturvedi- was lying on a cot in the gallery of the main gate. His father was a physically disabled man. One student Lal Bahadur was also lying on a cot near to the southern side of the cot of his father. At that point of time, this witness along with his wife Asha Devi and son Sonpal were sitting under a jackfruit tree and were talking to each other. It was around 2.00 P.M. Dinanath and his two sons- Ashok and Vijai- appeared on the spot. Dinanath was possessing a lathi and his two sons- Ashok and Vijai were possessing country-made gun. Dinanath exhorted them to kill Mishri Lal Chaturvedi, when Ashok and Vijai fired with their respective guns. Fire of Vijai missed, whereas, fire of Ashok hit informant's father. Alarm was raised by the informant when all the assailants secured their escape by fleeing away towards western side. They went near to their father who was breathing and the informant tried to arrange for conveyance for his father, but in the meanwhile, he (Mishri Lal Chaturvedi) expired. On page no.24 of the paper book, in para no.6 of his testimony in examination-in-chief, he has categorically stated that the incident was witnessed by Sonpal, Lal Bahadur besides his wife and himself. He has stated that the report was written by himself on the spot. The incident allegedly took place around 2.00 P.M. FIR was lodged at 3.30 P.M. and the distance from the place of occurrence up to the police station was stated to be four and a half kilometers. This witness has proved written report Ex.Ka.1. This witness has been suggested on point that it is wrong to say that his father Mishri Lal Chaturvedi was sleeping in the gallery when the incident took place. He has stated that he had pointed out the actual place of occurrence where his father was sleeping at the time of the occurrence. This witness has proved written report Ex.Ka.1. This witness has been suggested on point that it is wrong to say that his father Mishri Lal Chaturvedi was sleeping in the gallery when the incident took place. He has stated that he had pointed out the actual place of occurrence where his father was sleeping at the time of the occurrence. However, he has stated on page no.26 of the paper book that after the death of his father, he had brought out the dead body from the gallery and kept it on an open place. It means that the actual place where the deceased was hit with the shot has been changed to the extent that the incident was caused in the gallery, whereas the body was brought and kept outside the gallery. Similar is the ocular testimony of Asha Devi P.W.-2 on the factual aspect of the incident. At this stage, we can observe that the site plan is Ex.Ka.11 and it has described the place of occurrence by depicting several points. Place 'A' is the place from where fire had been shot and the place 'B' has been marked as the place where the dead body was lying on the cot. Place 'C' is the place lying towards northern side of place 'B' where Lal Bahadur was shown to have been sleeping on the cot and place 'D' has been marked as the place where the informant, his wife and Sonpal were sitting at the time of occurrence. The distance between 'A' and 'B' has been stated to be 4 steps and from place 'B' (the place outside the gallery where the dead body was later on brought and kept), soil was taken out from under the cot and 'tickli' was also recovered from the spot. Obviously, place 'B' is located outside the gallery in open place and the Investigating Officer had also collected the blood-stained soil from under the cot from this place. As per testimony of prosecution witnesses of fact and particularly that of Brahmanand Chaturvedi P.W.1, the original place, where the deceased was actually shot at had been changed and the dead body was brought out and kept in the open space after the incident. This way, the original spot where the shot actually hit the deceased had been changed. As per testimony of prosecution witnesses of fact and particularly that of Brahmanand Chaturvedi P.W.1, the original place, where the deceased was actually shot at had been changed and the dead body was brought out and kept in the open space after the incident. This way, the original spot where the shot actually hit the deceased had been changed. But this change appears to be of slight variation because the dead body was brought in the open area from the adjacent gallery. Therefore, the place of occurrence cannot be stated to have been deliberately changed merely because the dead body was taken some paces away from the real spot (gallery) of occurrence and kept in open area. At this stage, we may appraise and evaluate the medical testimony, as noted in the postmortem examination and testified by Dr. A.B. Agarwal P.W.3 when he noted the following antemortem injuries: "Five firearm wound of entry each measuring 1.5 cm x 1.5 cm x cavity deep in an area of 7 cm x 7cm on the lower part of the right side of back over line the last rib. No blackening or tattooing seen. Direction backwards to forwards, slightly upwards and from right to left." Specific observation regarding direction of the shot in a manner- "slightly upward from right to left" creates a puzzling situation when ocular testimony regarding the version of the incident of firing, as reflected from testimony of the prosecution witnesses of fact, when collated with about description of ante-mortem firearm injury, to the extent of direction of the shot slightly upward evinces truth that the fire might have been shot at a time when the assailants would have been on the lower level of the surface than the surface in sleeping posture of the deceased on the cot. When analysed and scrutinized from that angle, testimony of doctor witness (P.W.3) becomes relevant and forms core consideration about the manner and style of the occurrence, as claimed by the prosecution. He (P.W.3) has stated in his cross-examination that the direction of the shot indicates that the assailant might have been at lower level of surface than the deceased. This particular aspect is in contrast to the manner and style of causing the incident in the present case. He (P.W.3) has stated in his cross-examination that the direction of the shot indicates that the assailant might have been at lower level of surface than the deceased. This particular aspect is in contrast to the manner and style of causing the incident in the present case. If the ocular testimony of both the witnesses of fact- Brahmanad Chaturvedi P.W.1 and Asha Devi P.W.2 is cumulatively applied to the incident, then such nature of ante-mortem injury in form and shape of direction of the shot- slightly upward- cannot be caused, because the assailant has been stated to have fired in standing position on the deceased from a distance of about 4 steps. Meaning thereby, the accused must have fired on the deceased from a distance of at least 6-8 ft, and the direction of the shot will obviously be downward or slanting but it may not be slightly upwards. It is no case of the prosecution that, at that point of time, the deceased was not lying and sleeping on the cot and it was not the case of the prosecution that assailant was at a level surface below to that of the deceased. Meaning thereby, that the fire, if shot from such a particular position in standing position from higher angle/place towards lower angle/place then the shot will always take a downward slanting angle after hitting the body of the deceased and will never go 'slightly upward'. When viewed from that angle, pragmatic approach cautions for some independent corroboration of the ocular testimony forthcoming from the description of the two aforesaid witnesses (Brahmanand Chaturvedi P.W.1 and Asha Devi P.W.2) of fact. While scrutinizing testimony on record we come across fact that Sonpal and Lal Bahadur have been stated to have been present on the spot at the time of occurrence. They have been examined as C.W.1 and C.W.2, but they have not supported the prosecution version primarily on court that they were not present on the spot at the time of the occurrence and they have categorically denied fact of their being eye-witnesses of the incident. As per their version, they have stoutly claimed that they were not present on the spot and did not witness the incident. As per their version, they have stoutly claimed that they were not present on the spot and did not witness the incident. No doubt, testimony of doctor witness is always of opinionative value, but testimony of doctor, in the present case is in sheer contrast to the suggested manner and style of the occurrence by the two witnesses of fact. In such conspicuous medical testimony on point of direction of the shot lot of doubt surfaces on the natural description of the manner and style of the incident in which it has claimed to have been caused by the assailant, whether it in fact can ever be caused in such manner and style. The manner and style of causing the incident as proved by the testimony of the witnesses describes the incident in a manner that the deceased was shot at by the accused who was in standing position from a distance of four steps, at a time when the deceased was sleeping/lying on a cot in the gallery. While scrutinising things from that particular angle, lot of doubt is created on the description of the manner and style of causing of the occurrence and the so-called presence of the aforesaid witnesses of fact- Brahmanand Chaturvedi and Asha Devi, P.W.1 and P.W.2, on the spot and they having seen the incident, as such. We have already observed that independent corroboration of their (P.W.1 and P.W.2) testimony becomes imperative, which could have been obtained from the testimony of Sonpal C.W.1 and Lal Bahadur C.W.2, who have been stated to have been present on the spot at the time of occurrence in the FIR. But noting fruitful has been elicited from their testimony because they have not supported the prosecution version, even in the least, and they have denied to have been present on the spot at the relevant time of the incident. The ante-mortem injuries, as noted at the time of postmortem examination by Dr. A.B. Agarwal P.W.3 on the deceased Mishri Lal Chaturvedi gives definite perception confined in the nature that the direction of fire can never be slightly upward, if the fire had been shot from higher place to downward level of surface where the deceased was sleeping on the cot. A.B. Agarwal P.W.3 on the deceased Mishri Lal Chaturvedi gives definite perception confined in the nature that the direction of fire can never be slightly upward, if the fire had been shot from higher place to downward level of surface where the deceased was sleeping on the cot. Factual testimony asserts that the assailant was firing in standing position i.e. from higher level and the angle from where the shot was fired was directed from higher level to downward level. An ordinary prudent man may himself ask about such an outcome when firing has been caused in such particular factual situation, then one cannot correlate the two aspects with certainty and justifiable coherence. These aspects become apparent. First the shooter had fired from standing position and secondly the fire was shot on the deceased who was sleeping on a cot and was at lower level from the firing gun. Certainly natural analogy of direction of fire will be downwards and not slightly upwards. This particular aspect of the case is sufficient in itself to throw doubt on the testimony of the two prosecution witnesses of fact- Bramhanand Chaturvedi P.W.1 and Asha Devi P.W.2. It raises serious doubt whether they saw the incident and particularly the act of shooting. Otherwise, slightly upward direction of the shot was not the possible outcome of the shot- which hit deceased- and noted as such in the ante-mortem injury in the postmortem examination report Ex.Ka.2 and testified by the doctor that the nature of direction of the shot is indicative of fact that the assailant would have been on lower level of surface than the deceased. This testimony is innocuous and flawless. It can be observed that the doctor witness has not been reexamined by the prosecution to clarify this particular position if the testimony was liable to be interpreted in some different manner. It is sound jurisprudential principle that testimony of witnesses, if evaluated on the anvil of facts of a particular case, and found to be shaky on the foundation of the entire incident, then testimony becomes in its description of the incident and benefit of doubt accrues in the case. We know that benefit of doubt would always go in favour of the accused. We know that benefit of doubt would always go in favour of the accused. In this case testimony of the prosecution witnesses also reflects on the motivating force behind the offence and which relates to facts that some ceremony/programme had earlier taken place prior to the present incident, in the school of the informant where Ashok sat on a chair and when asked to stand up and leave the chair this embarrassed the accused and some complaint was also made by the deceased against Ashok for securing employment in PAC Department in Ghaziabad by presenting forged certificate. It was very much resented by appellant Ashok and his family members. However, we come across specific testimony of witnesses of fact that this incident had occurred 3 to 5 months prior to the incident. If the degree of resentment was so high, then the reaction would have come within a short period or say within 15 days or one month. How and why a person who felt humiliated would wait for 3 to 5 months for taking revenge is beyond reason in the facts and circumstances of this case. We also come across testimony on page-28 of the paper book as testified in the cross-examination of P.W.1 Brahmanand Chaturvedi that, the deceased was involved in several litigation against one lady Chandrawati and also against Tejpal, Matroo and Surajpal. In this view of the matter, it cannot be said that the accused alone had immediate motive to kill the deceased Mishri Lal Chaturvedi, but the accused was on inimical terms with a number of other persons also and few of such persons were residing in the school campus itself. However, this factual aspect has no direct bearing on the innocence of the accused, but this aspect of the case is worth consideration when collated with suggestive motivating aspect behind the crime. It is quite surprising that the place where in fact the shot had hit the deceased, though claimed by the informant P.W.1 to have been shown to the Investigating Officer (P.W.5), has not been depicted in the site plan Ex.Ka.11. It is quite surprising that the place where in fact the shot had hit the deceased, though claimed by the informant P.W.1 to have been shown to the Investigating Officer (P.W.5), has not been depicted in the site plan Ex.Ka.11. This omission may occur on the part of both- the first informant and the Investigating Officer, but in a situation when the informant had shown actual spot where the shot had actually hit the deceased, then it must have been specifically shown in the map apart from the spot 'B', in the map, which spot 'B' is the place where the dead body had been brought and kept after the incident in the open place by the informant. Therefore, the place where the deceased was actually shot at, had not been shown in the site plan. This peculiar aspect of the case also raises serious doubt about the presence of the prosecution witnesses of fact on the spot at the relevant time of the incident and they having seen the incident as claimed by them. Either way, a reasonable doubt about presence of these two witnesses on the spot surfaces. Thus, the actual spot where the shot had hit the deceased goes into oblivion. That is why, we have stressed on independent corroboration of the occurrence from independent source besides the witnesses of fact. We also come across fact that the two other witnesses named in the first information report- Sonpal and Lal Bahadur- have also been examined as C.W.1 and C.W.2, but they have not supported the prosecution case in line with the other two prosecution witnesses (Brahmanand Chaturvedi P.W.1 and Asha Devi P.W.2). Therefore, independent corroboration in this case is lacking. It also emerges from the testimony of Brahmanand Chaturvedi P.W.1 that he is the sole male successor of his father. Then, it is obvious that in the event of death of Mishri Lal Chaturvedi (father of informant Brahmanand Chaturvedi), the property of the deceased will be inherited by Brahmanand Chaturvedi P.W.1. But the pith and substance of our discussion is primarily based on point of veracity of the ocular testimony of the prosecution witnesses regarding their presence on the spot and their description of the occurrence and its sheer contradiction with the medical evidence, as emerging from post-mortem report and the testimony of Dr. A.B. Agarwal (P.W.3). But the pith and substance of our discussion is primarily based on point of veracity of the ocular testimony of the prosecution witnesses regarding their presence on the spot and their description of the occurrence and its sheer contradiction with the medical evidence, as emerging from post-mortem report and the testimony of Dr. A.B. Agarwal (P.W.3). Medical evidence, as discussed above, does not conform to the ocular version of the incident given by the prosecution witnesses and the shot which is stated to have hit the deceased, hit him from higher level to downward level when deceased was in sleeping posture, then the direction of the shot should be downwards. As per post-mortem report, the shot has been found to be slightly upward in direction. This is incompatible with the ocular testimony on fact and point of firing as testified by the witnesses. In this particular aspect of this case, testimony of Dr. A.B. Agarwal- P.W.3- assumes greater relevance when he has testified in his cross-examination that the assailant must have been on the lower footage than the deceased. But such is not the case in hand. The overall outcome of this peculiar aspect of the case and our scrutiny on point of eye-account testimony of the occurrence raises serious doubt about the actual occurrence having been seen by the witnesses. The manner and style of shooting deceased in particular posture is rendered highly doubtful. Things cannot be accepted to be correctly described by the witnesses, because the entire ocular testimony stands in direct contrast to the medical evidence. Things become inexplicable. These vital aspects and reflections of this case perhaps escaped attention of the trial court and it misread evidence, vis-a-vis, facts and circumstances of the case and erroneously returned finding of conviction, which finding of conviction, on the face, becomes perverse and illegal for aforesaid reasons. Consequently, the finding of conviction and the sentence awarded by the trial court vide judgment and order of conviction dated 14/15.04.1988 passed by IV Additional Sessions Judge, Etah in Sessions Trial No.332 of 1986 (State Vs. Ashok Kumar) arising out of case crime no.103 of 1986, under Sections 302 IPC, Police Station- Soron, District- Etah against the surviving appellant- Ashok, cannot be sustained and the same is hereby set aside by us. Consequently, the appeal succeeds and the same is allowed. Ashok Kumar) arising out of case crime no.103 of 1986, under Sections 302 IPC, Police Station- Soron, District- Etah against the surviving appellant- Ashok, cannot be sustained and the same is hereby set aside by us. Consequently, the appeal succeeds and the same is allowed. The accused-appellant- Ashok is exonerated of charge under Section 302 IPC in this case. Appellant- Ashok is on bail. He need not surrender in this case. His personal bonds and bail bonds are cancelled and sureties are discharged. However, he shall ensure compliance of Section 437-A Cr.P.C. at the earliest by furnishing bond for his presence before the Apex Court, as required under the provision. Let a copy of this order/judgment be certified to the court below for necessary information and follow up action.