JUDGMENT : 1. This appeal has been filed questioning the correctness of the judgment and order dated 6.8.1983 passed by the II Additional District & Sessions Judge, Barabanki in Sessions Trial No. 159 of 1982, State v. Ram Hetu and others, under Sections 147/148/302/149, IPC P.S. Mohammadpur, District Barabanki, whereby the Trial Judge convicted all the five appellants under Sections 147/148 and 302, IPC read with Section 149 IPC and sentenced them as follows:- "Convicts Kingai, Mukhtar are directed to undergo an imprisonment for one year R.I. under Section 147, I.P.C. Convicts Ram Hetu, Jag Mohan and Manna are directed to undergo an imprisonment for 1½ years R.I. under Section 148, I.P.C. Accused Kingai, Mukhtar, Ram Hetu, Jag Mohan and Manna are directed to undergo an imprisonment for life under section 302, I.P.C. read with section 149 of the Indian Penal Code." 2. Hari Prasad S/o. Sarabjit gave a written complaint dated 16.5.1980 (Ex-Kal) at Police Station Mohammadpur, District Barabanki stating that they are two brothers and he is elder one. His younger brother Kishori Lal was murdered about 1 year and 9 months ago in which he along with his son Ram Sagar were accused and were on bail. The widow of Kishori Lal was not a woman of good character because of which his father was not inclined to part with any of his holdings in favour of Kishori Lal's widow. It was for this reason that Ram Hetu, brother of Kishori Lal's widow (who would always support his sister) would blame him and his son for being the obstruction, as such he bore a grudge with him and his son. Today at about 4 p.m., when he along with his son were going for wheat harvesting, near the tubewell of Saktu, his son, who was walking about 10 steps ahead of him, was challenged and surrounded by Ram Hetu, armed with a gun, Mukhtar and Kingai armed with lathis, Jag Mohan armed with a knife and Manna armed with a banka. They exhorted that he should be eliminated whereupon the accused persons pushed his son on the ground. Kingai and Mukhtar caught hold of his son, whereas Jag Mohan who was armed with knife and Manna who was armed with banka started assaulting on the neck of his son. They exhorted that he should be eliminated whereupon the accused persons pushed his son on the ground. Kingai and Mukhtar caught hold of his son, whereas Jag Mohan who was armed with knife and Manna who was armed with banka started assaulting on the neck of his son. He along with others present challenged the accused persons upon which Ram Hetu threatened them that in case they move closer they would be shot dead. In the meantime, number of residents of the village also gathered at the place of occurrence and it was then the accused made good their escape. His son died after awhile. The accused persons had tried to resist their movement and with great difficulty, he has come to the Police Station to lodge the complaint. 3. On his written complaint, a chik F.I.R. was prepared and registered as Case Crime No. 53 under Sections 147/148/149/302, IPC, at Police Station Mohammadpur, district Barabanki. The Investigating Officer collected the plain earth and blood-stained earth from the spot and put them in small boxes and sealed them. A memo was prepared (Ex-Ka 4). The Investigating Officer further took into possession the clothes of the deceased which he was wearing and were stained with blood and also the slippers which were lying nearby also stained with blood. They were also sealed and a memo was prepared (Ex-Ka 5). It included one full sleeve shirt of blue colour with checks and dots, one tahmad (lungi) of brown colour with yellow and white printed flowers on it and one pair of slippers - all stained with blood. The Investigating Officer also prepared a site plan (Ex-Ka 6). Nakal report No, 28 dated 18.5.1980 at 9.30 p.m. by which the clothes were taken into custody and placed in the malkhana is Ex Ka-7. Inquest report is Ex Ka-8 according to which the inquest was started at 6.45 a.m. on 17.5.1980 and concluded at 9 a.m. on the same day. Special Report is Ex Ka-9. The post-mortem was conducted on 18.5.1980 at 2 p.m. by Dr. Gopal Swaroop, Paediatrician, District Hospital, Barabanki (Ex Ka-11). After recording the statements under Section 161 Cr.P.C., the Investigating Officer submitted a charge sheet on 22.8.1980 (Ex Ka-12). 4. Special Report is Ex Ka-9. The post-mortem was conducted on 18.5.1980 at 2 p.m. by Dr. Gopal Swaroop, Paediatrician, District Hospital, Barabanki (Ex Ka-11). After recording the statements under Section 161 Cr.P.C., the Investigating Officer submitted a charge sheet on 22.8.1980 (Ex Ka-12). 4. The II Additional District & Sessions Judge before whom the case was committed framed the charges against Kingai and Mukhtar on 24.8.1982 and against the accused Jag Mohan, Ram Hetu and Manna also on 24.8.1982 separately. The prosecution filed 12 papers as exhibits and examined 5 witnesses of fact, namely, Hari Prasad, informant and eyewitness as PW 1, Ali Hasan also an eyewitness as PW 2, Gharibey as an eye-witness as PW 3, Vishal as an eye-witness as PW 4 and Ram Lal also an eye-witness as PW 5. Formal witnesses were not examined by the prosecution as all the documents were admitted by the counsel for the defence. 5. The statements of the accused were recorded under Section 313, Cr.P.C. in which basically they have stated that they have been falsely implicated on account of enmity and under influence and pressure of police. The defence did not lead any evidence. The Trial Court vide judgment and order dated 6.8.1983 convicted and sentenced all the accused persons noted above in the opening paragraph of the judgment. 6. During the pendency of this appeal, it was informed that four of the accused have since died, in respect of which a report from the Chief Judicial Magistrate, Barabanki was called for. According to the report of the Chief Judicial Magistrate, Barabanki dated 15.2.2017, the appellant No. 4 Mukhtar had died naturally 10 years back. Further, in a separate report dated 14.2.2017, the Chief Judicial Magistrate, Barabanki after due enquiry states that appellant No. 3/Manna, appellant No. 2/Jag Mohan and appellant No. 5/Kingai had also died about 7, 12 and 17 years before respectively. In view of the above reports, the appeal abates as against appellant Nos. 2, 3, 4 and 5 and thus the appeal survives only with respect to the appellant No. 1/Ram Hetu. 7. We have heard Sri. Anil Kumar Sharma, learned counsel for the appellant No. 1/Ram Hetu and Ms. N.P. Shukla, learned Additional Government Advocate for the State. 8. In view of the above reports, the appeal abates as against appellant Nos. 2, 3, 4 and 5 and thus the appeal survives only with respect to the appellant No. 1/Ram Hetu. 7. We have heard Sri. Anil Kumar Sharma, learned counsel for the appellant No. 1/Ram Hetu and Ms. N.P. Shukla, learned Additional Government Advocate for the State. 8. At the outset, it has been submitted by the learned Counsel for the appellant that the prosecution examined only five witnesses of fact who were said to be the eye-witnesses of the incident. No formal witnesses have been examined apparently for the reason that all the documents filed by the prosecution were admitted by the counsel for the defence as an endorsement of its genuineness. It is further pointed out that except Hari Prasad (PW 1), the informant and eye-witness, all other four witnesses of fact of the prosecution, namely, PW 2 to PW 5 did not support the prosecution story and stated that they had not seen the occurrence. They were declared hostile and prosecution cross-examined the said four witnesses. Thus the submission is that the sole evidence of PW 1 being the sheet anchor of the prosecution evidence on the basis of which the conviction has been recorded, needs to be carefully and cautiously scrutinized and also for the reason that the eye-witness (PW 1) admits of an existing enmity with the appellant No. 1 and also being father of the deceased as such would fall within the category of interested witness. In these circumstances, we have taken care and caution while examining the statement of PW 1. However before proceeding to consider the statement of PW-1 we may refer to the law on the point. 9. Apart from being the only eyewitness who supported the prosecution story, PW-1 is also an interested witness being related to the deceased and also alleging enmity with Ram Hetu/appellant No. 1 as such his testimony needs to be scrutinized with care, caution and circumspection. It is no doubt that conviction can be recorded even on the basis of a sole testimony and also being an interested witness, but at the same time if the cardinal rule of scrutiny of such testimony is carefully and cautiously made and if found to be intrinsically reliable or inherently probable, it can be very well relied upon. It is no doubt that conviction can be recorded even on the basis of a sole testimony and also being an interested witness, but at the same time if the cardinal rule of scrutiny of such testimony is carefully and cautiously made and if found to be intrinsically reliable or inherently probable, it can be very well relied upon. A three-Judge Bench of the Supreme Court in the case of Hari Obula Reddy v. State of U.P. (1981) 3 SCC 675 ): ( AIR 1981 SC 82 ) (opined as follows:- "an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of the interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon." 10. The above opinion was quoted with approval by the Supreme Court in the case of Kanhaiya Lal and others v. State of Rajasthan ( (2013) 5 SCC 655 ): ( AIR 2013 SC 1940 ). 11. In 2015, again the Supreme Court in the cases of State of U.P. v. Satveer and others (2015) 9 SCC 44 ): ( AIR 2015 SC 2406 ) and Jodhan v. State of M.P. (2015) 11 SCC 52 ): (2015 AIR SCW 3589), expressed similar opinion that the evidence of sole and interested witnesses needs to be considered with caution after testing it with other materials and that it should inspire confidence and ought to be beyond suspicion. 12. Again in 2017, the Supreme Court in the case of Arjun and another v. State of Chhattisgarh (2017) 3 SCC 247 ): ( AIR 2017 SC 1150 ) opined that where prosecution rests upon evidence of related witness, the Court should scrutinize evidence with care as a rule of prudence and not as a rule of law. It further observed that merely because the witness was related with the deceased or the victim cannot by itself be a ground to discard his testimony. 13. It further observed that merely because the witness was related with the deceased or the victim cannot by itself be a ground to discard his testimony. 13. In the above backdrop, we now proceed to consider the testimony of PW 1 the only eye-witness supporting the prosecution story and at the same time also being an interested witness. 14. We have read the statement of PW 1 very carefully and we are of the view that placing reliance upon his testimony, would be doing injustice with the appellant. The defence has suggested that the deceased Ram Sagar was murdered by unknown assailants some time in the middle of the intervening night of 16-17.5.1980. It was also suggested that PW 1 was not present and had not seen the occurrence. It was also suggested that it was only on 17.5.1980 that the body of the deceased was first noticed and thereafter, an intimation was given to the police and in consultation with the police, the First Information Report was lodged falsely implicating the appellants. In the light of above, we now proceed to test the testimony of PW 1. 15. In his examination-in-chief, PW 1 fully supported the prosecution story. However, in the cross-examination, the defence has been successful in eliciting that PW 1 was not truthful relating to certain facts stated by him and it is also admitted that it was on suspicion that the names had been given to the Investigating Officer. 16. In para - 21 of his statement, PW 1 stated that he did not go to the houses of all the accused persons whom he suspected to check whether they were at home or not. He further informed the Investigating Officer in no uncertain terms that he had suspicion on the following accused and the Investigating Officer may check at their houses. We feel it appropriate to reproduce the statement of PW 1 insofar as it refers to the suspicion here-in-below:- ^^ftu+&ftu eqyftekuksa ij eq>s 'kd Fkk ogk ij Fks ;k ugh muds ?kj ij tkdj geus ns[kk Hkh ugh A njksxk th ls eSus crk;k fd Qyk Qyk eqyftrekuks ij eq>sa 'kd gS mudks ?kj ij ns[k ysosA^^ 17. We feel it appropriate to reproduce the statement of PW 1 insofar as it refers to the suspicion here-in-below:- ^^ftu+&ftu eqyftekuksa ij eq>s 'kd Fkk ogk ij Fks ;k ugh muds ?kj ij tkdj geus ns[kk Hkh ugh A njksxk th ls eSus crk;k fd Qyk Qyk eqyftrekuks ij eq>sa 'kd gS mudks ?kj ij ns[k ysosA^^ 17. Thus where names have been disclosed on the basis of suspicion as stated by PW 1 himself, the whole prosecution story that PW-1 was present at the spot and was just behind his son (the deceased) at a distance of 10 paces and had seen and observed the manner in which the crime was committed falls to the ground. 18. In addition to the above, we also noticed from the remaining statement of PW 1 that the suggestion given by the defence cannot be thrown out and may have some substance. 19. PW 1 stated in para - 19 of his statement that when he saw the dead body for the first time, it was lying still in the following words:- ^^lcls igys tc eSus yk'k ns[kh rks fpRr iMh FkhA^^ 20. It is the submission of the learned Counsel for the appellant that in fact, the PW 1 did not see the commission of the crime, but saw the dead body of his son meaning thereby that his son had already died before he came to the spot to see only his son's dead body. 21. Specific case taken by PW 1 right from the stage of the F.I.R. as also in the statement in-chief that his son was carrying a bundle of harvested rice which had fallen on the side after his son fell and it was also stained with blood of his son. However in cross-examination, he has stated that he did not show the bundle of harvested rice to the Investigating Officer nor the Investigating Officer has taken into possession the said articles. 22. In para -21, PW 1 states that the Investigating Officer after lodging of the F.I.R. at 9.20 p.m. on 16.5.1980 had immediately come to the place of occurrence and had immediately started the paper work. The entire paper work was done in the night for which PW 1 had arranged a petromax (gas light). 22. In para -21, PW 1 states that the Investigating Officer after lodging of the F.I.R. at 9.20 p.m. on 16.5.1980 had immediately come to the place of occurrence and had immediately started the paper work. The entire paper work was done in the night for which PW 1 had arranged a petromax (gas light). The inquest was carried out in the night where the dead body was sealed and was to be taken for post-mortem whereas Ex-Ka 8 which is the inquest report mentions the date and time of commencement and the inquest proceedings came to be started on 17.5.1980 at 6.45 a.m. and its conclusion indicated as 9 a.m. on 17.5.1980. If the police papers are to be believed which the prosecution has itself filed and the defence has admitted, then the statement of PW 1 that every proceeding was done under the light of petromax does not appear to be correct. 23. We also find a major contradiction of facts stated in the post-mortem report and what has been stated by PW 1 regarding postmortem also do not tally. In the post-mortem report, the post-mortem was conducted on 18.5.1980 at 2 p.m. There is an endorsement by the doctor conducting the post-mortem that the dead body of Ram Sagar was received in a sealed cover in the morning by the Station Officer, Mohammadpur P.S. Barabanki and was accompanied by two Constables CP 12 Imtiaz Hasan and CP 331 Ram Sarekh Yadav. This document has also been filed by the prosecution and admitted by the defence. However, PW 1 in paragraphs 22 and 23 of his statement has stated that the Investigating Officer had left two constables on the spot. Next morning the Investigating Officer had carried the dead body in a tractor to Barabanki. It took about 1½ hours from the place of occurrence to travel to Barabanki. Thereafter he states that he carried the dead body in the afternoon on the next day. The above contradictory statement of PW 1 and which is not at all supported by the post-mortem report would further strengthen the suggestion of the defence that in fact the dead body was recovered in the morning of 17.5.1980 and thereafter the entire process of intimation to police, lodging of F.I.R., inquest etc. The above contradictory statement of PW 1 and which is not at all supported by the post-mortem report would further strengthen the suggestion of the defence that in fact the dead body was recovered in the morning of 17.5.1980 and thereafter the entire process of intimation to police, lodging of F.I.R., inquest etc. were started and by the time, the dead body was ready for post-mortem it was evening of 17.5.1980 and it reached the mortuary for post-mortem in the morning of 18.5.1980 as incorporated in the post-mortem report and thereafter post-mortem was conducted at 2 p.m. on 18.5.1980. The relevant extracts of the statement with regard to the above aspect as contained in paras 22 and 23 are reproduced below:- ^^22- vkbZ0vks0 us nks flikgh ekSds in NksM fn;k Fkk A nwljs fnu losjs eSa VS~DVj ls yk'k ckjkcadh yk;kA ;g ugh ekywe fd ?kVuk dh jkr ds ckn ls eq>ls njksxk dc feysA ekSds ij njksxk th us eq>ls iwNrkN dh Fkh irk ugh fy[kk i ls iwNrkN dhA vius xkao ls VS~DVj ls ckjkcadh rd yk'k ykus esa djhc ?kaVk Ms<- ?kaVk yxk gksxk xkao ls ckjkcadh dh nwj 10 dksl gSA^^ 23- yk'k ds lkFk eSa rFkk pkSdhnkj vk;k FkkA yk'k ckjkcadh ds ckn nqljs fnu losjs yk'k ys x;kA nwljs fnu nksigj ds ckn yk'k ys x;k FkkA ;g xyr gS fd eSus Lo;a ?kVuk u ns[kh gks ;g Hkh xyr gS fd ?kVuk jkr esa vU/ksjs dh gks vkSj eSus mijksDr lHkh c;ku >wBk fn;k gSA ;g Hkh dguk xyr gS fd njksxk th ds xkao vkus ds ckn mudh lykg e'kfojk ls fjiksVZ rS;kj djus Fkkus ij nkf[ky fd;k eSus ?kVuk dh fjiksVZ Fkkusa ij ftu ij 'kd Fkk igys gh dj nhA fd'kksjh yky dk tc dRy gqvk rks muds ,d cPph FkhA xyr gS fd fd'kksjh yky dh choh vkSj cPph dh tk;nkn gMi djus dh otg ls eqyfteksa dks >wBk Qalk jgk gwWaA^^ 24. In the cross-examination, PW 1 was specifically asked as to whether they had taken their lunch before starting for harvesting the wheat crop, which would be a normal practice in villages but PW 1 for himself has admitted that he had eaten his food in the afternoon before starting for the fields but insofar as his deceased son was concerned, he gave an evasive reply that he did not know whether he had eaten or not though they were staying under one roof. The reason for giving this evasive and non-committal reply was that it would be in conflict with the finding recorded in the post-mortem report. The post-mortem report mentioned that the internal examination of stomach revealed that the stomach was empty, the small intestine was also empty. However, large intestine contained faecal matter which would be the condition of early morning or late evening. 25. We also noticed that the conduct of a father witnessing the murder of his son right in front of him, just 10 steps ahead, was slightly unusual in the present case as PW 1 neither went to the body of his son nor tried to save him. In the FIR, he stated that his son died after a while. It was day time around 4 p.m. in the month of May when the Sun sets normally after 6.30 p.m. Thus, it is difficult to accept the conduct of PW 1 and his unusual behaviour which is expected from the father of deceased who alleges that he was present at the place of occurrence. An unusual behaviour or conduct needs to be explained which has not been done apart from a bald assertion that the accused had threatened. Further, in presence of 20-30 people, as stated in his statement, five people - one armed with gun and rest with lathis, knife and banka could have been easily overpowered by such a large group. 26. Another redeeming feature is that Ram Hetu was carrying a gun and he along with his associates had come with an intention to murder Ram Sagar and the enmity was also with PW 1 (informant) as per his statement. If it was so, as to why they spared PW 1 who was standing near the place of occurrence and would leave him to be an eyewitness of the entire incident. If it was so, as to why they spared PW 1 who was standing near the place of occurrence and would leave him to be an eyewitness of the entire incident. In the normal course, they would have eliminated both father and son (deceased) who had been causing obstruction according to the own case of the PW 1. While Ram Hetu was having gun in his hands, he could have eliminated both father and son by his gun, instead of causing 10 injuries by knife and banka to the son of PW 1 only and sparing him to witness the occurrence. 27. The prosecution had taken the risk of producing four other eye-witnesses whose names were mentioned by PW 1 in the statement that they were present at the spot but all four of them did not support the prosecution case and were declared hostile. One of them PW 4 Vishal was a close relative of the deceased being his cousin. The relationship is admitted in the cross-examination in para - 5 of his statement. 28. For all the above discussion, we find that the statement of PW 1 is not worthy of reliance. It has no credibility attached to it and as such cannot be relied upon and needs to be discarded. But for the sole testimony of PW-1 the conviction cannot stand. Since we have disbelieved the testimony of PW-1 the conviction deserves to be set aside. Prosecution has completely failed to prove the charge what to say of beyond any reasonable doubt. 29. The appeal is accordingly allowed. The impugned judgment and order of the Trial Court dated 6.8.1983 passed by the II Additional District & Sessions Judge, Barabanki in Sessions Trial No. 159 of 1982, State v. Ram Hetu and others, under Sections 147/148/302/149, IPC P.S. Mohammadpur, District Barabanki is set aside. The appellant-Ram Hetu is on bail. His bail bonds are cancelled and sureties are discharged. 30. A copy of the judgment be sent to the Trial Court. Record of the case be returned to its parent Court.