Research › Search › Judgment

Rajasthan High Court · body

2018 DIGILAW 1599 (RAJ)

Rupesh @ Pintu v. State of Rajasthan

2018-07-31

SANGEET LODHA, VIRENDRA KUMAR MATHUR

body2018
JUDGMENT Sangeet Lodha, J. This appeal is directed against judgment dated 10.1.14 of the Additional Sessions Judge No.2, Sri Ganganagar, whereby the appellants Rupesh @ Pintu, Manoj Kumar and Gourav Kumar @ Goriya, were convicted and sentenced as under:- U/s. 302/34 IPC Each to suffer life imprisonment and fine of Rs. 10,000/-, in default, to further suffer one year rigorous imprisonment. U/s. 325/34 IPC Each to suffer two years' rigorous imprisonment with fine Rs. 2,000, in default, to further suffer six months' rigorous imprisonment. U/s. 323/34 IPC Each to suffer six months' rigorous imprisonment with fine Rs. 500, in default, to further suffer one month's rigorous imprisonment. U/s. 382/34 IPC Each to suffer two years' rigorous imprisonment with fine Rs. 2,000, in default, to further suffer six months rigorous imprisonment. U/s. 341 IPC Each to suffer one months' simple imprisonment with fine Rs. 250, in default, to further suffer seven days simple imprisonment. The sentences have been directed to run concurrently. 2. The prosecution story in nutshell as set out in the written report (Ex.P/3) submitted by complainant Satish Kumar before the SHO, Police Station, Purani Abadi, Sri Ganganagar is that on 31.1.08 around 9:15 P.M. Kurban and Islam were coming on Motorcycle from Tara Chand Vatika to Devnagar. In front of Panchmukhi Hanuman Temple, Pintu, his brother Manish, Baljeet, Manoj Jat, Goriya Soni, Ravi Nayak and 3-4 other persons stopped them and started beating. Pintu was armed with knife, Manish and Goriya were armed with swords and others were armed with Motorcycle chain, iron rod and stick etc. They all started belabouring Kurban and Islam after stopping and besieging them. At that moment, Rajkumar came at site then all of them left Kurban and Islam and started beating Rajkumar after besieging him. Pintu inflicted injuries on Rajkumar's head and forehead with knife. On getting opportunity, Kurban informed complainant Satish on telephone. Thereafter, immediately Badelal and Harish etc. reached at the site, when they raised hue and cry, all the accused fled away leaving Rajkumar behind in pool of blood. On receiving telephonic information, police also reached there and at the same time, complainant Satish Kumar also reached the place of occurrence. Then they took Rajkumar in police gypsy to hospital where the doctors declared him brought dead. reached at the site, when they raised hue and cry, all the accused fled away leaving Rajkumar behind in pool of blood. On receiving telephonic information, police also reached there and at the same time, complainant Satish Kumar also reached the place of occurrence. Then they took Rajkumar in police gypsy to hospital where the doctors declared him brought dead. The accused persons while leaving had taken with them Motorcycle bearing No.RJ-13-SA-5513 Bajaj City Model 100, mobile phone with the SIM therein bearing no.9351663020 and yet another mobile with SIM No.9352191269. According to the complainant, Rajkumar used to work as Informant with respect to selling of liquor by Pintu etc. and therefore, due to animosity, accused persons in furtherance of common intention, armed with weapons killed Rajkumar by inflicting injuries on him and also inflicted injuries on Islam and Kurban by stopping them. 3. On the basis of the written report (Ex.P/3) submitted by the complainant P.W.4-Satish Kumar, the police registered FIR bearing No.28/10 (Ex.P/47) and investigation commenced. 4. During the investigation, after inquest proceedings, the dead body of Rajkumar was subjected to autopsy, necessary memos were drawn and the statements of witnesses were recorded under Section 161 Cr.P.C. The accused persons were arrested. At the instance of the accused Rupesh @ Pintu, Bajaj Motorcycle, blood stained jacket and gloves were recovered, at the instance of accused Baljeet Singh, blood stained sweater, at the instance of Manoj Kumar, Honda Motorcycle were recovered. The blood stained articles recovered were sent for examination to the Forensic Science Laboratory and FSL report (Ex.P/60) was obtained. The hair of the deceased and blood stained brick with hair were sent to FSL for Morphological and Microscopic Examination and the report (Ex.P/61) was obtained. 5. After completion of the investigation, the police filed charge sheet against the appellants for offences under Sections 302-341-323-325-382/34 IPC against the accused Rupesh @ Pintu, Baljeet Singh, Manoj Kumar and Gourav Kumar @ Goriya before the Judicial Magistrate No.1, Sri Ganganagar. The matter was committed to the Sessions Judge, Sri Ganganagar, which was later transferred to Additional Sessions Judge No.1, Sri Ganganagar for trial. The learned trial Judge framed the charges against the accused Rupesh @ Pintu, Baljeet, Gourav and Manoj for offences under Sections 341, 323, 325/34, 382, 302/34 IPC. The accused persons denied the charges and claimed trial. The matter was committed to the Sessions Judge, Sri Ganganagar, which was later transferred to Additional Sessions Judge No.1, Sri Ganganagar for trial. The learned trial Judge framed the charges against the accused Rupesh @ Pintu, Baljeet, Gourav and Manoj for offences under Sections 341, 323, 325/34, 382, 302/34 IPC. The accused persons denied the charges and claimed trial. After examination of few witness, the matter was transferred for further trial to Additional Sessions Judge No.2, Sri Ganganagar. During the trial, accused Baljeet absconded and therefore, proceedings were initiated against him under Sections 82-83 Cr.P.C and standing warrant was issued for his arrest. 6. The prosecution in support of its case examined as many as 15 witnesses (PW 1 to PW 15/15A) and produced the documentary evidence Ex.P/1 to Ex. P/62. The appellants in their defence did not produce any witness, however, on their behalf the documentary evidence was exhibited as Ex.D/1 to Ex.D/4. The statements of the appellants Rupesh @ Pintu, Manoj Kumar and Gourav Kumar were recorded under Section 313 Cr.P.C. wherein they denied their involvement in the commission of the offences and stated that they have been falsely implicated in the case. 7. It is relevant to mention here that after conclusion of the prosecution evidence, on the application preferred by the prosecution under Section 319 Cr.P.C. vide order dated 22.11.12 passed by the trial Judge, the cognizance was taken for commission of offences under Sections 341, 323, 302, 382, 325, 147, 149 IPC against the accused Ravi Nayak and Manish as well. Aggrieved by the said order, accused Manish and Ravi Nayak preferred S.B. Criminal Revision Petition No.1053/12 before this court. The proceeding as against accused Ravi Nayak and Manish pursuant to order dated 22.11.12, was stayed. Later, vide order dated 27.4.18 passed by learned Single Judge of this court in S.B. Cri. Revision Petition No.1053/12, the order dated 22.11.12 passed by the learned trial Judge was set aside. 8. After due consideration of the rival submission and the evidence on record, the learned trial Judge convicted and sentenced the appellants as indicated above. The trial against the accused Baljeet, who was absconding and the accused Ravi Nayak and Manish pursuant to the order passed by this court, were kept pending. 9. We have heard the learned counsel for the appellants and learned Public Prosecutor and carefully scanned the evidence adduced at the trial. 10. The trial against the accused Baljeet, who was absconding and the accused Ravi Nayak and Manish pursuant to the order passed by this court, were kept pending. 9. We have heard the learned counsel for the appellants and learned Public Prosecutor and carefully scanned the evidence adduced at the trial. 10. Learned counsel Mr. R.R. Vyas appearing on behalf of the appellant Rupesh @ Pintu submitted that the learned trial Judge has not appreciated the evidence on record in correct perspective which has resulted in erroneous findings being arrived at. Learned counsel submitted that the prosecution has come with wholly concocted and false story. None of the eye witnesses were as a matter of fact present at the place of incident and they have been planted just to falsely implicate the accused persons. Learned counsel submitted that essentially the conviction of the appellant is based on testimony of alleged eye witness P.W.3-Islam. It is submitted that P.W.2-Kurban and P.W.3-Islam were chance witnesses. P.W.2-Kurban turned hostile and did not support the prosecution case and completely denied to have witnessed occurrence alongwith P.W.3-Islam. Drawing the attention of the court to the contradictions in deposition of P.W.3-Islam with his statement recorded under Section 161 Cr.P.C. (Ex.D/1), learned counsel submitted that he has improved his original version and has come out with altogether a different story before the court and therefore, his testimony even otherwise cannot be relied upon. In support of the contention, learned counsel has relied upon a decision of the Hon'ble Supreme Court in "Baby alias Sebastian and another vs. Circle Inspector of Police, Adimaly, (2016) AIR SC 3671." Learned counsel submitted that as per P.W.3- Islam, Pintu and Ravi Nayak inflicted injuries on the head of the deceased Rajkumar by sword, knife and sticks and thereafter by brick. Drawing the attention of the court to the post mortem report (Ex.P/10), learned counsel submitted that none of the injuries found on the person of the deceased could have been caused by sharp edged weapon which stands fortified from the deposition of P.W.5-Dr. B.M. Sharma, who has categorically deposed that there was no injury on the person of the deceased caused by sharp edged weapon. B.M. Sharma, who has categorically deposed that there was no injury on the person of the deceased caused by sharp edged weapon. Further, P.W.3-Islam in his examination-in-chief deposed that P.W.4-Satish, P.W.7-Harish, P.W.15-Amrit Lal @ Badelal also reached the scene of occurrence and on their raising hue and cry, the accused persons who were beating Rajkumar fled away whereas, in the cross examination, he deposed that within 10 minutes of the incident, the police reached the scene of occurrence and thereafter, P.W.4-Satish, P.W.7-Harish and P.W.15-Amrit Lal @ Badelal also reached the scene of occurrence and thus, the question of P.W.4-Satish, P.W.7-Harish and P.W.15-Amrit Lal witnessing the incident, does not arise inasmuch as, as per deposition of the said witness, immediately after reaching the place of occurrence, the police had taken away injured Rajkumar to the hospital. Learned counsel would submit as a matter of fact even P.W.3-Islam has also not witnessed the incident rather he has been planted as eye witness by the prosecution. Learned counsel submitted that as per deposition of eye witness, the incident occurred at 9:15 P.M. and the police reached the place of occurrence at 10:30 P.M. then, why the injured was not taken to the hospital immediately by the alleged eye witnesses including the eye witnesses P.W. 4-Satish and P.W.15-Amrit Lal @ Badelal, the brothers of the deceased Rajkumar and thus, the unnatural conduct of the alleged eye witnesses is indicative of the fact that they were not present at the time of occurrence. Learned counsel submitted that the prosecution has concealed the genesis of the incident, which indicates that the entire prosecution story is concocted and false. Learned counsel submitted that the recovery of the blood stained jacket and gloves at the instance of the appellant Rupesh which according to the FSL report (Ex.P/60) contain blood of group 'A' also does not connect him to the commission of the offence inasmuch as, neither the blood group of the deceased nor the blood group of the appellant was determined. That apart, the attention of the appellant Rupesh was not drawn to the contents of the FSL report while recording his statement under Section 313 Cr.P.C. and therefore, the same is not opened to be relied upon. That apart, the attention of the appellant Rupesh was not drawn to the contents of the FSL report while recording his statement under Section 313 Cr.P.C. and therefore, the same is not opened to be relied upon. Learned counsel submitted that the accused were not previously known to the alleged eye witness P.W.3-Islam and as per his deposition, he had seen them only at the time of occurrence yet no test identification parade was conducted and therefore, the witness identifying the appellant first time in the court after a lapse of more than a year after incident is of no evidentiary value. In support of the contentions, learned counsel has relied upon a decision of Hon'ble Supreme Court in "Prakash vs. State of Karnataka, (2014) 12 SCC 133 ." 11. Mr. Mahesh Bora, Senior Advocate, appearing on behalf of the appellants Manoj and Gourav, submitted that the prosecution case rests on testimony of eye witnesses PW-1 Sumer Singh, PW- 2 Kurban, PW-3 Islam, PW-4 Satish, PW-7 Harish Shukla and PW- 15 Amritlal @ Badelal. Out of these eye witnesses, PW-1 Sumer and PW-2 Kurban have turned hostile and not supported the prosecution story. The deposition of remaining eye witnesses PW-3 Islam, PW-4 Satish, PW-7 Harish Shukla and PW-15 Amritlal @ Badelal, suffers from self contradictions and contradictions with each other, which clearly indicates that these persons who have been projected as eye witnesses were not present at the scene of occurrence. Drawing the attention of the Court to the written report (Ex.P/3) submitted by PW-4 Satish Kumar on 31.1.08 at 11:30 PM i.e. after about 2 hours of the occurrence, learned counsel submitted that according to the complainant, at the first instance, accused persons Pintu, Manish, Baljeet, Manoj Jat, Goriya Soni, Ravi Nayak and 3-4 others stopped Kurban and Islam who were coming on motorcycle from Tarachand Vatika to Devnagar and started beating them. Pintu was armed with knife, Manish and Goriya with swords and others were having motorcycle chain, iron rod and sticks in their hand. While, Kurban and Islam were being beaten, Rajkumar reached at the place of the occurrence, then accused persons left Kurban and Islam and while besieging Rajkumar started belabouring him. It is alleged that Pintu inflicted knife blow on the head of the deceased. Taking the opportunity, Kurban informed Satish on telephone. While, Kurban and Islam were being beaten, Rajkumar reached at the place of the occurrence, then accused persons left Kurban and Islam and while besieging Rajkumar started belabouring him. It is alleged that Pintu inflicted knife blow on the head of the deceased. Taking the opportunity, Kurban informed Satish on telephone. At that time, Badelal and Harish reached there, and on their raising hue and cry, the accused fled away leaving behind Rajkumar in the pool of blood. According to the complainant, he and the police reached the place of occurrence at that time. Learned counsel submitted that the police did not record the statements of alleged eye witnesses immediately and it is only after the postmortem of the deceased on 1.2.08 at 10:15 AM when it was revealed that deceased had suffered no injury caused by sharp edged weapon, the story was improved and the accused causing the injuries to the deceased by bricks was introduced. Learned counsel would submit that this fact of improvement at the belated stage by itself indicates that none of the witness who are projected as eye witnesses were as a matter of fact have witnessed the incident. Drawing the attention of the Court to the statement of PW-3 Islam, learned counsel submitted that in his statement under Section 161 Cr.P.C., the witness had taken the stand that he and Kurban were stopped by Baljeet, Baljeet informed Pintu on telephone and thereafter Manoj, Goriya Soni, Pintu, Ravi Nayak and Manish reached there and they started beating them. Baljeet and Pintu were having knife in their hands, in a short while, Rajkumar reached there on motorcycle and accused persons left them and started beating Rajkumar. However, the said witness contrary to the narration in the written report Ex.P/3 regarding the injuries caused to Rajkumar, assigned to the accused Rupesh @ Pintu by knife, stated that Rupesh inflicted injury by brick on the head of Rajkumar. Learned counsel submitted that contrary to the statement under Section 161 Cr.P.C., PW-3 Islam in his deposition before the Court has come up with the altogether new story stating that when he and Kurban were coming on motorcycle near Tarachand Vatika, they saw Baljeet, Pintu, Goriya, Manish etc. Learned counsel submitted that contrary to the statement under Section 161 Cr.P.C., PW-3 Islam in his deposition before the Court has come up with the altogether new story stating that when he and Kurban were coming on motorcycle near Tarachand Vatika, they saw Baljeet, Pintu, Goriya, Manish etc. there and out of them, Manish and Pintu while stopping them inquired about Rajkumar and on their not disclosing the whereabouts of Rajkumar, they started beating them and in the meantime, when Rajkumar reached there, they announced that their real enemy has come, he should be killed. Further, contrary to the statement recorded under Section 161 Cr.P.C., the said witness deposed that Pintu and Ravi Nayak inflicted blows on the back of the head of the deceased by sticks, swords and knife and thereafter by bricks. In examination-in-chief, the said witness deposed that Badelal, Harish and Satish reached the place of occurrence and on their shouting, the accused persons fled away. The police also reached at the place of occurrence and Rajkumar was taken to the hospital in police Gypsy. But in cross-examination, he deposed that in the first instance, within 10 minutes of the incident, police reached the place of occurrence and thereafter, PW-4 Satish Kumar, PW-15 Badelal and PW-7 Harish also reached there. At the same time, he deposed that the police did not stay at the place of occurrence and Rajkumar was immediately taken to the hospital by the police in the Gypsy. He further deposed that he met PW-4 Satish at the place of occurrence who had reached there just after PW-15 Badelal and PW-7 Harish reached there. As per the Rojnamcha (Ex.P/55A) on receiving information on telephone at 10:15 PM, the police proceeded to the place of occurrence, but surprisingly, as per PW-3 Islam, after police taking the injured Rajkumar to the hospital in Gypsy as aforesaid, he along with PW-4 Satish, PW-15 Badelal and PW-7 Harish reached the hospital around 9:00-9:15- 9:30 PM. He deposed that on the next day, he had given report to the police which was written by the police and he was made to sign the same. He deposed that they did not intervene to rescue Rajkumar, they had reached there later. He deposed that he was given fists and sticks blows. He deposed that on the next day, he had given report to the police which was written by the police and he was made to sign the same. He deposed that they did not intervene to rescue Rajkumar, they had reached there later. He deposed that he was given fists and sticks blows. At the same time, he accepted the suggestion of the defense that when Rajkumar was being beaten, he was not at the place of occurrence, rather was standing in the side. As per the said witness, a crowd of 20 to 25 persons was there, but the prosecution produced none of them for examination as independent eye witness. Learned counsel submitted that as per the deposition of the said witness, he had never met any of the accused persons prior to the date of occurrence and thereafter he had seen them only on the day he appeared before the Court for examination. Thus, on the facts and in the circumstances of the case, it was absolutely necessary to conduct identification parade, but the prosecution did not resort to it and thus the identification of the accused persons by the said witness has no evidentiary value. Learned counsel submitted that looking to the bundle of contradictions and embellishments in the deposition of PW-3 Islam, his testimony as eye witness of the incident deserves to be discarded as wholly unreliable. Learned counsel submitted that as per deposition of PW-4 Satish Kumar, he reached at the place of occurrence on receiving a telephonic message that his brother Rajkumar Gupta is being belaboured near Tarachand Vatika. As soon as, he reached there, Badelal and Harish also reached there. He saw that Pintu, Manish, Goriya, Manoj Jat, Ravi Nayak, Baljeet and 3-4 other persons were belabouring Rajkumar and out of them Pintu was having knife, Manish and Goriya were armed with sword, Manoj Jat, Ravi Nayak and Baljeet were having iron rod, stick and motorcycle chain respectively. At the same time, he deposed that the accused persons hit his brother by bricks. Learned counsel submitted that the said witness, in his written report Ex.P/3 submitted to the police just after 2 hours of the incident, has specifically assigned only knife injury caused on the head of the deceased to accused Pintu and no injury is specifically assigned to anybody else. Learned counsel submitted that the said witness, in his written report Ex.P/3 submitted to the police just after 2 hours of the incident, has specifically assigned only knife injury caused on the head of the deceased to accused Pintu and no injury is specifically assigned to anybody else. Learned counsel submitted that since after postmortem, no injury was found on the person of the deceased caused by sharp weapon, the story of the injury being caused by bricks was introduced. The said witness alleged to have reached the place of occurrence on receiving the telephonic call, obviously, received after the commencement of the incident and admittedly as per his own deposition, from a place about 550 meters away from the place of occurrence and thus, the question of his being present at the time of occurrence of the incident cannot be believed. Learned counsel would reiterate that the factum of PW-4 Satish Kumar being not the eye witness of the incident stands further fortified from the deposition of PW-3 Islam. Drawing the attention of the Court to the cross-examination of the said witness, learned counsel submitted that even PW-3 Islam, was employed with Rajkumar and therefore, he is also an interested witness. Contrary to the deposition of PW-3 Islam, as per PW-4 Satish Kumar, he, Badelal and Harish had reached at the place of occurrence before the police reached there, however, they did not talk with the police personnels regarding the incident as also about who caused injuries to Rajkumar. According to the said witness, he and Harish put Rajkumar in the Jeep and on that account their clothes also got blood stained. However, the prosecution did not care to seize their blood stained clothes. According to the learned counsel, a bare perusal of the deposition of PW-4 Satish Kumar makes it abundantly clear that he was not the eye witness of the incident and while deposing before the court, indulged in sheer falsehood and thus, not being truthful witness, his testimony also deserves to be discarded. Regarding P.W.7-Harish Shukla, learned counsel submitted that according to the said witness, he reached the place of occurrence a few minutes after 9:15 P.M. and the police had reached there around 9:30 whereas, as per the evidence already discussed, the police had reached the place of occurrence around 10:30 P.M. and thus, apparently, the said witness is also a planted witness. According to the learned counsel the conduct of the said witness in not taking injured Rajkumar to the hospital immediately and waiting till the police reached the place of occurrence around 10:30 P.M. also indicates that he was not eye witness to the incident. Learned counsel submitted that for parity of reasons, P.W.15-Amrit Lal @ Badelal, who was accompanied by P.W.7- Harish, alleged to have reached the place of occurrence on Motorcycle, is also a planted witness. Learned counsel submitted that no recoveries were made from the appellant Manoj and Goriya and no specific overt act is assigned to them and thus, they have been falsely implicated in the case. Learned counsel submitted that accused Ravi Nayak and Manish, who were not charge sheeted by the police and against whom the cognizance was taken by the learned Judge after conclusion of the prosecution evidence vide order dated 22.11.12 stands discharged inasmuch as, the order taking cognizance against them stands set aside by learned Single Judge of this court vide order dated 27.4.18 passed in S.B. Criminal Revision Petition No.1053/12. Drawing the attention of the court to the said decision, learned counsel submitted that while setting aside the order taking cognizance against the accused Ravi Nayak and Manish at the belated stage, the court has also discussed the evidence on record and categorically observed that there existed grave discrepancies in the statements of the so called eye witnesses regarding the participation of the said accused persons in the incident. Learned counsel would submit that since the accused Ravi Nayak against whom the specific role is assigned by the alleged eye witnesses having been left out from being tried and stands discharged, the appellants cannot be convicted of the offences charged on the basis of the same evidence. 12. On the other hand, Mr. J.P.S. Choudhary, learned Public Prosecutor submitted that though the eye witnesses P.W.1-Sumer Singh and P.W.2-Kurban have turned hostile, the guilt of the appellants stands established on the basis of the deposition of P.W.3-Islam, P.W.4-Satish Kumar, P.W.7-Harish Shukla and P.W.15- Amrit Lal @ Badelal. Learned Public Prosecutor submitted that P.W.3-Islam cannot be said to be chance witness inasmuch as, being resident of the area within one kilometer, his presence at the place of occurrence was natural. Learned Public Prosecutor submitted that P.W.3-Islam cannot be said to be chance witness inasmuch as, being resident of the area within one kilometer, his presence at the place of occurrence was natural. It is submitted that nothing turns on the question that no injury was found on the person of the deceased caused by sharp edged weapon inasmuch as, the eye witnesses have categorically deposed that the injuries were inflicted on the person of the deceased by bricks. Drawing our attention to the FSL report (Ex.P/60), learned Public Prosecutor submitted that the gloves and jacket recovered at the instance of appellant Rupesh @ Pintu were found stained with the blood of group 'A' i.e. the group of the deceased. It is contended that failure to draw the attention of accused to contents of FSL does not vitiate the judgment of conviction as the accused was not prejudiced thereby. In support of the contention, learned Public Prosecutor relied upon a decision of the Hon'ble Supreme Court in the matter of "Yuvaraj Ambar Mohite vs. State of Maharashtra, (2006) 12 SCC 512 ." Lastly, learned Public Prosecutor submitted that the discrepancies and contractions in the statement of eye witnesses would always be there and since the contradictions pointed out are not on material points, the testimony of the eye witnesses cannot be discarded. 13. We have considered the rival submissions and thoroughly examined the evidence on record. 14. The autopsy of the dead body of Rajkumar was conducted by P.W.5-Dr. B.M. Sharma. As per the post report (Ex.P/10), following ante mortem injuries were found on the person of the deceased Rajkumar:- 1. Lacerated wound 1 x 1/4' x Forehead with Bone fracture. 2. Lacerated wound 3 x 1/2' x left parietal with bone fracture. 3. Lacerated wound 2' x ' x occipital with bone fracture above Nap of Neck. 4. Lacerated wound 3' x ' R parietal with bone fracture. 5. Lacerated wound 1' x 1/6' nose with fracture. 6. Lacerated wound 1/6' x cartilage Left Ear pinna. 7. Abrasion 1' x 1/2' left forearm. Cause of death of Rajkumar was found to be head injuries no.1 to 4 above, which were opined to be sufficient to cause death. The injuries caused and cause of death as disclosed in the post mortem report stands confirmed by deposition of P.W.5-Dr. B.M. Sharma. 7. Abrasion 1' x 1/2' left forearm. Cause of death of Rajkumar was found to be head injuries no.1 to 4 above, which were opined to be sufficient to cause death. The injuries caused and cause of death as disclosed in the post mortem report stands confirmed by deposition of P.W.5-Dr. B.M. Sharma. Thus, on the basis of the medical evidence on record, it is established beyond doubt that the death of deceased Rajkumar was homicidal in nature. 15. Indubitably, the prosecution case is founded on testimony of eye witnesses P.W.1-Sumer Singh, P.W.2-Kurban, P.W.3-Islam, P.W.4-Satish Kumar, P.W.7-Harish Shukla and P.W.15/15A-Amrit Lal @ Badelal. Out of these witnesses, P.W.4-Satish Kumar and P.W.15/15A-Amrit Lal @ Badelal were thickly related to the deceased Rajkumar being his real brothers. P.W.7-Harish Kumar was neighbour of the deceased Rajkumar. P.W.2-Kurban and P.W.3-Islam were employed with Rajkumar and used to supply his goods in the market. 16. P.W.1-Sumer Singh and P.W.2-Kurban turned hostile and did not support the prosecution story. 17. P.W.1-Sumer Singh denied the occurrence of the incident in his presence. He denied to have suffered the injuries while intervening to rescue the deceased Rajkumar and stated that he had suffered injuries on account of felling from Motorcycle. 18. P.W.2-Kurban admitted the fact that eleven months back in the night, he was passing through the market on Motorcycle alongwith Islam, however, he denied that he and Islam were belaboured by the accused persons. The factum of accused persons belabouring Rajkumar was also denied by him. He also denied to have telephoned to P.W.4-Satish Kumar. 19. P.W.3-Islam deposed that on fateful day, he and P.W.2- Kurban were coming on Motorcycle from Devnagar. When they reached near Tarachand Vatika, Baljeet, Pintu, Goriya, Manish etc. met them. Manish and Pintu stopped them and inquired about Rajkumar. On their not disclosing the whereabouts of Rajkumar, they started beating them. In the meantime, Rajkumar reached there then all of them started belabouring Rajkumar. Goriya, Sonu, Pintu announced that their real enemy has come, he should be killed. Pintu and Ravi Nayak inflicted injuries on the head of Rajkumar by sticks, swords and knife and thereafter, by bricks. Besides the said accused persons, there were 3-4 more persons involved in beating. After belabouring deceased Rajkumar, Pintu and Manish fled away while taking Motorcycle and mobile of deceased Rajkumar with them. Badelal, Harish and Satish also reached on the spot. Besides the said accused persons, there were 3-4 more persons involved in beating. After belabouring deceased Rajkumar, Pintu and Manish fled away while taking Motorcycle and mobile of deceased Rajkumar with them. Badelal, Harish and Satish also reached on the spot. On their raising hue and cry, accused persons fled away. Then Rajkumar was taken to the hospital in police gypsy. Rajkumar was killed by the accused persons as he was informer of sale of liquor by the accused persons. In cross examination, he deposed that Baljeet and other accused persons after beating them, inflicted injuries to Rajkumar by sword, knife and brickbats. The police had reached the place of occurrence after ten minutes of the incident. After the police, Satish Kumar, Badelal and Harish also reached there. The police did not stay there and immediately took away the injured Rajkumar to the hospital. He, Satish, Badelal and Harish went hospital together and reached there around 9-9:15-9:30 P.M. He deposed that next day he had gone to police and submitted the report of the incident. The report was written by the police and he had put his signature thereon. He deposed that he was not beaten by knife and sword rather, he was given blow by fists and sticks. He further deposed that they did not intervene to rescue Rajkumar, they had reached there later, they were given beating on account of Rajkumar. He admitted that he is facing trial in the cases relating to illicit liquor as also for offence under Section 377 IPC. It is pertinent to note that as per written report (Ex.P/3) submitted by the complainant P.W.4-Satish Kumar on 31.1.08 at 11:30 P.M. i.e. about two hours after the occurrence, obviously after the complainant P.W.4-Satish Kumar being apprised by P.W.2-Kurban and P.W.3-Islam about the manner in which the incident occurred, the weapons used by the accused persons while belabouring Rajkumar which includes knife and swords. The injuries on the head and forehead of the deceased were alleged to have been caused by Rupesh @ Pintu by knife. There was no reference of accused persons hitting the deceased by brickbats. The autopsy of the dead body of the deceased was conducted by P.W.5-Dr. B.M. Sharma on 1.2.08 at 10:15 A.M. As per the post mortem report (Ex.P/10), out of seven injuries caused to the deceased, six were found to be lacerated wounds and one abrasion. There was no reference of accused persons hitting the deceased by brickbats. The autopsy of the dead body of the deceased was conducted by P.W.5-Dr. B.M. Sharma on 1.2.08 at 10:15 A.M. As per the post mortem report (Ex.P/10), out of seven injuries caused to the deceased, six were found to be lacerated wounds and one abrasion. No injury on the person of the deceased was found to be caused by sharp edged weapon. The statement of P.W.3-Islam under Section 161 Cr.P.C. was recorded by the police on 2.2.08 wherein he while maintaining that Baljeet and Rupesh @ Pintu were having knife in their hands, stated that Rupesh hit Rajkumar on the head by brick lying there. Contrary to the narration in the written report (Ex.P/3) that Pintu, Manish, Baljeet, Manoj Jat, Goriya Soni, Ravi Nayak and 3-4 others stopped P.W.2-Kurban and P.W.3-Islam, in his police statement (Ex.D/1) P.W.3-Islam had taken the stand that he and P.W.2-Kurban was stopped by Baljeet, who informed Pintu on telephone and thereafter, Manoj, Goriya Soni, Pintu, Ravi Nayak and Manish reached there and they started beating them. The factum of accused persons inquiring about Rajkumar is also missing in the said statement (Ex.D/1) rather, he stated that as soon as Rajkumar reached there, the accused persons left them and started beating Rajkumar. On being confronted with the statement (Ex.D/1), in cross-examination, P.W.3-Islam responded that the facts regarding Pintu and Ravi Nayak causing injuries on the head of Rajkumar by sticks, swords and knife was revealed by him to the police and he does not know as to why the same was not recorded by the police. Similar was his stand regarding other contradictions pointed out in his deposition with his police statement (Ex.D/1) noticed hereinabove. As noticed above, in his deposition before the court P.W.3- Islam categorically deposed that Pintu and Ravi Nayak caused injuries on the back of the head of deceased by sticks, swords and knife and after that by bricks whereas, as per the post mortem report (Ex.P/10), no injury caused by sharp edged weapon was found on the person of the deceased and only three injuries i.e. lacerated wounds were found on the occipital and parietal region of the head of the deceased. Thus, the deposition of P.W.3-Islam regarding the injury caused to the deceased by the accused persons does not corroborate with the medical evidence on record. Thus, the deposition of P.W.3-Islam regarding the injury caused to the deceased by the accused persons does not corroborate with the medical evidence on record. The improvement in the statement as aforesaid appears to have been made keeping in view the post mortem report (Ex.P/10) wherein no injury caused by sharp edged weapon was found on the person of the deceased. The incident is alleged to have occurred around 9:15 P.M. As per deposition of P.W.3-Islam the police reached on the spot within 10 minutes of occurrence and thereafter, P.W.4-Satish Kumar, P.W.7-Harish and P.W.15/15A-Badelal also reached there. The police had immediately taken Rajkumar to the hospital. He further deposed that he alongwith Satish, Badelal and Harish had reached the hospital around 9-9:15-9:30 P.M. whereas, as per Roznamcha (Ex.P/55A), on the information being received from unknown person on telephone, the police proceeded to the place of occurrence at 10:15 P.M. As noticed above, P.W.3-Islam has attempted to show his presence at the scene of occurrence at the time when Rajkumar was being belaboured by the accused persons. But at the same time, he deposed that they did not intervene to rescue Rajkumar, they had come there later on. He accepted the suggestion of the defence that at the time of injuries being inflicted, he was not on the spot rather, he was standing by side near generator lying in front of Hanuman Temple and he had witnessed the incident from there. It is pertinent to note that Panchmukha Hanuman Temple is shown in the site plan (Ex.P/4) from the place of occurrence marked as 'x' at the distance of 40 ft. If P.W.3-Islam had at all witnessed the incident, it remains a debatable question as to whether he could have identified the accused persons who were not known to him from a distance of 40 feet. It has come on record that the deceased Rajkumar was besieged by the accused persons who were as per deposition of the eye witness were 7-8 persons and thus, in these circumstances, it also becomes doubtful that the said witness was in position to distinctly indicate the overt acts on the part of the accused persons in belabouring the deceased, from a distance of 40 ft. Thus, having regard to the apparent contradictions, discrepancies and embellishments in the deposition of P.W.3- Islam, in our considered opinion, he cannot be accepted to be a truthful and wholly reliable witness. 20. P.W.4-Satish Kumar, the brother of the deceased Rajkumar, who had submitted the written report (Ex.P/3), deposed that around 9:15 P.M., he received a telephonic message while he was at home that his brother Rajkumar is being belaboured. Thereupon, he reached near Tarachand Vatika, Panchmukhi Hanuman Temple and as soon as he reached there, P.W.15/15A- Badelal and P.W.7-Harish also reached there. He saw that his brother Rajkumar was being belaboured by Pintu, Manish, Goriya, Manoj Jat, Ravi Nayak, Baljeet and 3-4 other persons. Pintu was armed with knife, Manish and Goriya with swords, Manoj Jat with rod, Ravi Nayak with stick and Baljeet with Motorcycle chain. He identified Pintu, Baljeet, Manoj Jat and Goriya Soni present in the court and deposed that he knows other accused persons as well. According to the said witness, Kurban and Islam were already there and when Badelal and Harish raised hue and cry and challenged the accused persons, they fled away towards Mahila Park. While leaving the spot, they had taken away Rajkumar's Motorcycle and two mobiles. He deposed that the accused persons had beaten his brother by bricks and while hitting the bricks, they fled away towards Mahila Park. In the meantime, the police reached at the place of occurrence, the injured Rajkumar was put by both the brothers in the police gypsy and was taken to the Government Hospital, where he was declared brought dead by the doctors. In cross examination, he stated that Harish Kumar resides at Laluram Ki Dhani and he & his brothers were residing at Devnagar, which are the places 500 meter and 550 meter respectively away from the place of occurrence. He deposed that the person who conveyed the message on mobile phone was not known to him and he had not saved his number. He deposed that a criminal case for offence under Section 307 IPC for attempting to cause death of Ravi Nayak was pending trial against him as also against his brother Badelal and deceased Rajkumar. He deposed that Ravi and Manish are of the same group. He deposed that a criminal case for offence under Section 307 IPC for attempting to cause death of Ravi Nayak was pending trial against him as also against his brother Badelal and deceased Rajkumar. He deposed that Ravi and Manish are of the same group. That apart, he admitted that yet another case for offences under Section 332, 353, 333 and 362 IPC for belabouring government servants on duty is pending trial against him. He deposed that he had seen the accused persons inflicting injuries on Rajkumar by knife and not by sword. Manish and Goriya were having sword in their hands as also the bricks and he had seen them hitting deceased by bricks. The deposition of the said witness is apparently in contradiction with the narration of the incident by him in the written report (Ex.P/3). As noticed above, in the written report (Ex.P/3), the allegation was that Pintu inflicted injuries on the head and forehead of the deceased by knife, no specific injury was assigned to any other co accused. There was no allegation of accused persons inflicting injuries on the person of the deceased Rajkumar by bricks. However, in the statement recorded under Section 161 Cr.P.C. (Ex.D/2), while maintaining that Pintu inflicted injury on the head and forehead of the deceased Rajkumar, it was further added that on raising hue and cry by Badelal and Harish, all the accused persons fled away after inflicting injuries on the head of the deceased by bricks. When confronted with the contradictions in deposition before the court, the written report (Ex.P/3) and the statement under Section 161 Cr.P.C. (Ex.D/2), the witness stated that he had narrated the incident as deposed and why the police has not recorded the same, he does not know. As noticed above, none of the injuries found on the head of the deceased was inflicted by knife and therefore, if the injuries were inflicted by knife, which is not corroborated by medical evidence, the question of accused persons inflicting further injuries by bricks does not arise. According to the said witness, he reached the place of occurrence and immediately thereafter P.W.7-Harish and P.W.15/15A-Amritlal @ Badelal arrived and soon thereafter, the police reached the place of occurrence. According to the said witness, he reached the place of occurrence and immediately thereafter P.W.7-Harish and P.W.15/15A-Amritlal @ Badelal arrived and soon thereafter, the police reached the place of occurrence. But then, as per P.W.3- Islam, who as per the prosecution was already present at the place of occurrence even before the deceased Rajkumar arrived there, has deposed that police reached the spot just 10 minutes after the incident and thereafter P.W.4-Satish Kumar, P.W.15/15A- Amritlal @ Badelal and P.W.7-Harish reached there. As per the prosecution, the incident occurred around 9:15 P.M., obviously, Satish Kumar was informed on telephone by somebody when the accused persons started belabouring Rajkumar. The prosecution set out the case that P.W.2-Kurban informed the P.W.4-Satish Kumar on telephone about the incident but the said witness has categorically denied to the fact that he was informed by P.W.2- Kurban rather, he deposed that some unknown person had conveyed him about the incident on telephone. In any case, admittedly, Rajkumar was at home, which is 500 meter away from the place of occurrence and therefore, he could not have reached there immediately. Deceased Rajkumar had suffered only seven injuries and thus, it is difficult to believe that P.W.4-Satish Kumar had reached the place of occurrence while the accused persons were still belabouring Rajkumar. Further, if P.W.4-Satish Kumar had reached after the police reached at the place of occurrence then, obviously he did not reach the place of occurrence immediately inasmuch as, as per Roznamcha (Ex.P/55A), the police had proceeded to place of occurrence from the Police Station, Purani Abadi, Sri Ganganagar on receiving the telephonic message at 10:15 P.M. and as soon as the police personnel reached there, they did not stay at the place of occurrence and had immediately taken deceased Rajkumar to the hospital in police gypsy. The fact which further stands affirmed by the deposition of the Investigating Officer P.W.14-Gurbhupendra Singh. Thus, on the facts and circumstances of the case discussed above, it is difficult to accept that P.W.4-Satish Kumar was the eye witness of the incident and therefore, in the considered opinion of this court, the deposition of P.W.4-Satish Kumar also cannot be accepted to be truthful and wholly reliable. 21. Thus, on the facts and circumstances of the case discussed above, it is difficult to accept that P.W.4-Satish Kumar was the eye witness of the incident and therefore, in the considered opinion of this court, the deposition of P.W.4-Satish Kumar also cannot be accepted to be truthful and wholly reliable. 21. As per P.W.7-Harish Shukla, he and P.W.15-Badelal met Rajkumar around 9:15 P.M., who asked them whether they are coming along to home, thereupon, they told him that they have some work for 5-7 minutes and thereafter, they will come. Later, when they were proceeding the house, they saw one person lying on the ground, one or two persons were sitting on him and remaining standing persons were belabouring him. On going near to the person, they saw that the person lying on the ground was Rajkumar, the brother of Badelal. While alighting from the Motorcycle they saw that Pintu, Baljeet, Manish, Ravi Nayak, Goriya, Manoj Jat and one or two others were hitting on the head of Rajkumar by bricks. On raising hue and cry by him and P.W.15- Badelal, accused persons ran away towards the Mahila Park. He deposed that the police had reached the place of occurrence 2 to 4 minutes after 9:30 P.M. He denied the knowledge if any injury was caused by the accused persons on the person of the deceased by knife, sword and sticks. On being asked about his not revealing the factum of the injuries being caused by the accused persons to the deceased by bricks in his police statement, he said that he had revealed the said fact, however, he does not known why the same was not recorded by the police. He deposed that when the injuries by bricks were being inflicted, the swords and knives were lying near the accused persons. He deposed that when Rajkumar was taken to the hospital in Gypsy by the police, he was accompanying them whereas other witnesses have categorically deposed that the deceased was taken to the hospital by police and none of them was accompanying them. He deposed that he and P.W.15/15A Amritlal @ Badelal, the brother of deceased Rajkumar did not intervene to rescue Rajkumar. He deposed that when Rajkumar was put into Gypsy, his clothes and clothes of Islam, Satish and Amritlal got blood stained. He deposed that he and P.W.15/15A Amritlal @ Badelal, the brother of deceased Rajkumar did not intervene to rescue Rajkumar. He deposed that when Rajkumar was put into Gypsy, his clothes and clothes of Islam, Satish and Amritlal got blood stained. He deposed that there was huge crowd at the place of occurrence and therefore, he did not know as to where Kurban and Islam had gone. Contrary to the deposition of P.W.4-Satish Kumar that Islam was employed with deceased Rajkumar, the said witness deposed that Islam and Kurban were employed with Satish Kumar, the brother of the deceased. Apart from the fact that the said witness deposed that he reached the place of occurrence a few minutes after 9:15 P.M. and the police had reached there around 9:30 P.M. whereas, as per the evidence available on record, the police had reached the place of occurrence around 10:30 P.M., there is no explanation that if he and P.W.15-Amritlal had reached the place of occurrence at 9:30 P.M. and the accused persons had fled away from the place of occurrence on their raising hue and cry then why the injured Rajkumar was not taken to the hospital immediately by them. It is not out of the place to mention here that in his statement recorded under Section 161 Cr.P.C. (Ex.D/3), the said witness has stated that he had started from Shyam Nagar to his home around 9:45 P.M. and turned towards Hanuman Mandir via Tarachand Vatika around 10-10:15 P.M. Strangely enough, according to the said witness though he and P.W.15/15A-Amritlal @ Badelal, the brother of the deceased, had reached the place of occurrence and saw the accused persons belabouring the deceased Rajkumar with bricks yet they did not intervene to rescue him, which in the considered opinion of this court, is against the normal human conduct. The said witness deposed that while lifting Rajkumar from the place of occurrence, his own clothes and the clothes of P.W.4-Satish Kumar and P.W.15/15A-Amritlal @ Badelal got blood stained but the clothes of none of the witnesses were seized by the police. As noticed above, in his deposition before the court, the said witness deposed that they saw that a person was lying on the ground; two persons were sitting on him and rest of the standing persons were belabouring him. As noticed above, in his deposition before the court, the said witness deposed that they saw that a person was lying on the ground; two persons were sitting on him and rest of the standing persons were belabouring him. At the same time, he deposed that Baljeet, Manish, Ravi Nayak, Goriya, Manoj Jat and one or two others were inflicting injuries on the head of the deceased Rajkumar by bricks whereas, in his statement under Section 161 Cr.P.C. (Ex.D/3), he deposed that Baljeet and Pintu sitting on a person lying on the ground were inflicting injuries to him by bricks and Manoj Jat, Goriya Soni, Ravi Nayak, Manish and one or two other persons were kicking the person lying on the ground. Thus, keeping in view the apparent self contradictions in the deposition of the said witness on material points and the attempt made to improve his original version so as to bring his deposition before the court in conformity with the medical evidence, we are of the opinion that said witness is also not trustworthy and reliable witness and his presence at the time of occurrence is highly doubtful. 22. P.W.15/15A-Amritlal @ Badelal, who is also the brother of the deceased Rajkumar, deposed that on the fateful day, Rajkumar met him and P.W.7-Harish Shukla at Shyam Nagar around 9-9:15 P.M. who asked them whether they are proceeding to home thereupon, they told that they have some work for 5-7 minutes, then Rajkumar proceeded. After their work was over, they by the side of the tower turned towards Panchmukhi Hanuman Temple then they saw a person lying on the ground; two persons were sitting on him, who were Rupesh @ Pintu and Baljeet. Manish, Ravi Nayak, Goriya Soni, Manoj Jat and 2-3 others were standing and inflicting injuries on him by bricks. When he and P.W.7-Harish Shukla challenged them, they after crushing badly the head, mouth and face by bricks while picking up their weapons, fled away towards Mahila Park. Pintu and Baljeet had taken away two mobiles and Motorcycle CT Bajaj of the deceased. The injured Rajkumar was taken care of by him, Harish, Islam and Satish. In the meantime, the police Gypsy reached there and his brother was taken to the hospital. He, Harish, Satish and Islam followed the police Gypsy to the hospital. Pintu and Baljeet had taken away two mobiles and Motorcycle CT Bajaj of the deceased. The injured Rajkumar was taken care of by him, Harish, Islam and Satish. In the meantime, the police Gypsy reached there and his brother was taken to the hospital. He, Harish, Satish and Islam followed the police Gypsy to the hospital. In cross examination, he deposed that when they reached at the place of occurrence, his brother Rajkumar was unconscious. He deposed that when they challenged the accused persons, Satish was there in the left side of the Hanuman Temple, who had just reached there. Islam standing on the spot was shouting 'bachao bachao'. He deposed that they had parked the Motorcycle 25 ft. away from the place of occurrence and from there they had seen accused persons belabouring their brother. He further deposed that after their reaching at the place of occurrence, the accused persons inflicted brick blows on the head of the deceased and crushed his face. The face was recognizable only a bit. The clothes of all of them got blood stained, however, since no demand was raised by the police, the same were not handed over. The statement of said witness was again recorded, which is marked as P.W.15A inasmuch as at the time when earlier statement was recorded, accused Manoj Jat was absconding. In his second statement recorded, the said witness identified Manoj as the person accompanying the co-accused and indulged in commission of the offence. It is pertinent to note that in his statement under Section 161 Cr.P.C. (Ex.D/4), the said witness had taken the stand that Baljeet and Pintu while sitting on the person lying on the road, were inflicting injuries to him by bricks and Manoj Jat, Goriya Soni, Ravi Nayak, Manish and one or two others were kicking him. He also did not furnish any explanation as to why he did not attempt to rescue his brother. For the parity of the reasons, holding P.W.7-Harish Shukla as not trustworthy and reliable witness, we find that P.W.15/15A- Amritlal @ Badelal is also not truthful and wholly reliable witness and his presence at the time of occurrence remains doubtful. 23. He also did not furnish any explanation as to why he did not attempt to rescue his brother. For the parity of the reasons, holding P.W.7-Harish Shukla as not trustworthy and reliable witness, we find that P.W.15/15A- Amritlal @ Badelal is also not truthful and wholly reliable witness and his presence at the time of occurrence remains doubtful. 23. At this stage, it would be appropriate to consider the testimony of the Investigating Officer P.W.14-Gurbhupendra Singh, who has categorically deposed that on the fateful day at 10:15 P.M. he received a telephonic message that in front of Hanuman Temple near Tarachand Vatika, a quarrel is going on. He deposed that after entry in the Roznamcha (Ex.P/55) at serial No.1824 by SI Mangeram, he alongwith other police personnel proceeded to the place of occurrence. On reaching there, they found one person Rajkumar s/o Shiyamber Gupta lying there in the pool of blood. The brothers of the deceased Satish and Amritlal etc. reached on the spot and the injured Rajkumar was immediately taken to the hospital. The written report (Ex.P/3) was submitted by the P.W.4-Satish Kumar before him at the hospital. He accepted the suggestion of the defence that P.W.4-Satish Kumar had informed him that Baljeet and Pintu have inflicted injuries on the person of Rajkumar by knife. He stated that he does not know as to in whose name the R.C. of Motorcycle exists. From bare perusal of the deposition of P.W.14-Gurbhupendra Singh, it is apparent the police had reached the place of occurrence after 10:15 P.M. and as soon as the police reached there, the injured Rajkumar was taken to the hospital. If the incident had occurred around 9:30 P.M., firstly, there is no explanation as to why any of the persons present there including the brothers of the deceased did not attempt to rescue the deceased Rajkumar and further, if they had reached the place of occurrence and as they deposed, their brother was alive, why he was not taken to the hospital immediately. The eye witnesses P.W.3-Islam has categorically deposed that Pintu and Ravi Nayak inflicted injuries on the head of the deceased by sticks, swords and knife and thereafter by bricks. The eye witnesses P.W.3-Islam has categorically deposed that Pintu and Ravi Nayak inflicted injuries on the head of the deceased by sticks, swords and knife and thereafter by bricks. The deposition of the said witness who is alleged to be present at the place of occurrence right from beginning is not corroborated by medical evidence inasmuch as, as per post mortem report, in all five injuries were found on the head of the deceased and out of which none was caused by sharp edged weapon. As already discussed, the improvement in the initial version in the written report (Ex.P/3) and the statement of the said witnesses recorded under Section 161 Cr.P.C. was made only after the post mortem of the body of the deceased being conducted by the Medical Officer. Thus, keeping in view the self contradictions in the deposition of eye witnesses as also the contradictions in the statement of eye witnesses with each other as also the apparent contradictions noticed above with their statement recorded under Section 161 Cr.P.C. and non corroboration of the testimony of eye witnesses with the medical evidence, we do not find the testimony of the alleged eye witnesses trustworthy and wholly reliable. We are of the opinion that as a matter of fact, the prosecution has suppressed the genesis of the occurrence and the incident remains shrouded by mystery. 24. Coming to other corroborative evidence, it is noticed that the weapons which as per the prosecution the accused persons were carrying i.e. swords, sticks, knife and the Motorcycle chain are not recovered. However, at the instance of accused Rupesh, recovery of blood stained jacket and hand gloves vide Ex.P/30 and a Motorcycle Bajaj CT 100 bearing registration No.RJ-13-SA-5513 vide Ex.P/57 were made. Further at the instance of accused Baljeet, a blood stained sweater vide Ex.P/32 and at the instance of accused Manoj, a Motorcycle Hero Honda Passion bearing Registration No.RJ-13-SB-5347 were recovered. 25. It is pertinent to note that the information under Section 27 of the Evidence Act regarding one blood stained sweater and one hand glove was furnished by the accused Rupesh @ Pintu vide Ex.P/58 on 2.2.08 at 11:30 A.M., however, the recovery was made vide Ex.P/30 on 4.2.08 at 12:50 P.M. There is no explanation as to why the recovery pursuant to the information supplied was not made by the police immediately. As per deposition of the witness of recovery P.W.8-Phoolchand, the recovery was effected from an open house where number of persons were present and thus, the place of recovery cannot be said to be in the exclusive possession of the accused Rupesh @ Pintu. It is argued by the prosecution that the blood stained jacket was found stained with the blood of group 'A' i.e. the group of the deceased. There is nothing on record suggesting that the blood group of the deceased was 'A'. That apart, admittedly, no steps were taken to ascertain the blood group of the accused Rupesh @ Pintu. In this view of the matter, the recovery made which does not inspire confidence and the alleged FSL report (Ex.P/60) cannot be made basis for conviction of the accused Rupesh @ Pintu. So far as recovery of Motorcycle Bajaj CT 100 bearing registration No.RJ-13-SA-5513 vide Ex.P/57 is concerned, nothing has come on record to prove that the Motorcycle in question was owned by the deceased Rajkumar. It has been categorically admitted by the Investigating Officer P.W.14-Gurbhupendra Singh that he does not know as to in whose name the R.C. of the Motorcycle exists. Thus, the recovery of the Motorcycle also cannot be considered to be an incriminating circumstance against the accused Rupesh @ Pintu. Moreover, without there being any cogent evidence establishing the guilt of the accused Rupesh @ Pintu in causing death of Rajkumar, the recovery of the Motorcycle in isolation, is not sufficient to convict him for offence under Section 302 IPC. 26. As per the prosecution, on the basis of the information supplied by accused Baljeet under Section 27 of Evidence Act, a blood stained sweater was recovered vide Ex.P/32. However, the memo of information if any furnished by the said accused is not even exhibited in evidence and thus, recovery alleged to have been made at the instance of accused Baljeet has no evidentiary value. 27. Lastly, coming to the recovery of Motorcycle Hero Honda Passion bearing Registration No.RJ-13-SB-5347 at the instance of accused Manoj Jat vide Ex.P/34, in absence of any other incriminating circumstance against him, could hardly construed to be the evidence connecting him with the commission of crime. 28. 27. Lastly, coming to the recovery of Motorcycle Hero Honda Passion bearing Registration No.RJ-13-SB-5347 at the instance of accused Manoj Jat vide Ex.P/34, in absence of any other incriminating circumstance against him, could hardly construed to be the evidence connecting him with the commission of crime. 28. It needs to be noticed that the specific overt acts were assigned by the alleged eye witnesses to the accused Ravi Nayak and Manish, however, they stand discharged by virtue of order dated 27.4.18 passed by learned Single Judge of this court in Criminal Revision Petition No.1053/12, whereby after conclusion of the evidence the order passed by the trial Judge on the application preferred by the Public Prosecution under Section 319 Cr.P.C. taking cognizance against them for offences under Section 323, 341, 302, 382, 325, 147, 149 IPC and directing their trial with the charge sheeted accused, the appellants herein, stands set aside. It is true that essentially the order is passed by the learned Single Judge setting aside the order taking cognizance observing that it would be a travesty of justice if a de novo trial is held by sustaining the order summoning the petitioners therein as additional accused in the case. But nonetheless, the evidence on record were also taken into consideration by the learned Single Judge. 29. In view of the discussion above, in the considered opinion of this court, the prosecution has failed to prove the guilt of the accused appellants beyond reasonable doubt and therefore, the appellants herein deserve to be acquitted of the charges giving benefit of doubt. 30. Accordingly, the appeal is allowed. The appellants Rupesh @ Pintu, Manoj Kumar and Gourav Kumar @ Goriya are acquitted of the charges for offences under Sections 302/34, 325/34, 323/34, 382/34 and 341 IPC. The accused Manoj Kumar and Gourav Kumar @ Goriya Soni are on bail, their bail bonds shall stand discharged. Appellant Rupesh @ Pintu, who is behind the bars shall be released forthwith, if not required in any other case. The appellants Rupesh @ Pintu, Manoj Kumar and Gourav Kumar @ Goriya, each shall furnish a personal bond in Rs. 50,000/- and a surety of like amount to the satisfaction of the learned trial Judge in terms of the provisions of Section 437 A Cr.P.C.