JUDGMENT : (Delivered by Hon'ble Rajesh Dayal Khare, J.) 1. Heard Ms. Sakshi Kesarwani and Smt. Manju Thakur, learned Amicus Curiae for the appellant, learned AGA for the State/respondent and perused the material available on record. 2. The present criminal appeal has been filed by the appellant Shyam Behari against the judgment and order dated 14.06.1983 passed by 3rd Additional Sessions Judge, Shahjahanpur in Session Trial No. 682 of 1982 connected with Session Trial No. 683 of 1982, State Vs. Shyam Behari, convicting the accused under Sections 302 IPC and 307 IPC and sentencing him to imprisonment for life and two years R.I. respectively. 3. Learned Amicus Curiae for the appellant states that the appellant has been acquitted under Section 25 of the Arms Act vide order dated 13.06.1983. She contends that the FIR of the alleged incident was lodged on 17.06.1982 at 4:45 AM under Section 324 IPC at Police Station Sadar Bazar, District Shahjahanpur alleging that at about 3:30 AM, appellant assaulted the informant Babu Ram and his wife Ram Kumari by a knife and on hue and cry being raised, Ravindra Kumar and Mahendra Pal came to the spot and saved them and in that process, the appellant ran away with the weapon of assault. 4. The aforesaid FIR is on record as Ex. Ka-5. Pursuant to the lodging of FIR, investigation proceeded, which resulted in filing of the charge-sheet and the appellant pleaded not guilty and was put to trial. 5. Learned Amicus Curiae for the appellant has argued that as per the prosecution version, the appellant had assaulted Babu Ram, first informant as well as injured witness and his wife Ram Kumari with knife on 17.06.1982 at about 3:30 AM on account of animosity between the first informant and the appellant. The injury, which was sustained by Ram Kumari, is as follows:- 1. Incised wound 8.5 cm x 2.5 cm x muscle deep in front of left shoulder. Tailing present towards lower side directing aline downwards. Clotted blood present, 3 cm away from anterior end of left clavicle. 2. Abrasion 1 cm x 0.3 cm, on front of left shoulder joint cm. Inner to injury no.1 clotted blood present. 3. Incised wound 3 cm x 0.5 cm x muscle deep on front of left arm 8 cm, above left elbow joint. Directing downwards. 4. Clotted blood present, 3 cm away from anterior end of left clavicle. 2. Abrasion 1 cm x 0.3 cm, on front of left shoulder joint cm. Inner to injury no.1 clotted blood present. 3. Incised wound 3 cm x 0.5 cm x muscle deep on front of left arm 8 cm, above left elbow joint. Directing downwards. 4. Incised wound 1 cm x cm x muscle deep on front of left arm 2.5 cm below injury no. 3 clotted blood present, tailing downwards. 5. Penetrating wound (incised wound) 2.5 cm x 0.7 cm x dept not probed on left side of abdomen 10 cm away from umbilicus 2 o' clock clotted blood present. 6. Learned Amicus Curiae for the appellant further contends that the injury, sustained by the first informant, is as follows :- 1. Incised wound 3 cm x 1 cm x muscle deep on outer aspect of left fore arm directing above downward 5 cm away from elbow joint. Tailing present downwards clotted blood present. 2. Penetrating wound 6 cm x 2 cm x depth not probed 10 cm away from umbilicus between 3 and 5 o' clock. Tailing present. After hearing the counsel for the parties and after perusing the facts and evidence on record, the Trial Judge returned the finding of conviction against the appellant vide judgment and order impugned dated 14.6.1983 in Sessions Trial No. 682 of 1982, which is under challenge in the present appeal.After hearing the counsel for the parties and after perusing the facts and evidence on record, the Trial Judge returned the finding of conviction against the appellant vide judgment and order impugned dated 14.6.1983 in Sessions Trial No. 682 of 1982, which is under challenge in the present appeal. 7. The prosecution examined as many as nine prosecution witness out of which two were witnesses of fact namely P.W.-2 and P.W.-3. Head Constable Israrul Haq, who arrested the accused Shyam Behari from the portico of northern railway station on 17.6.1982 at 01.00 p.m., was examined as P.W.-1, Babu Ram the first informant who initially claimed to be the husband of Raj Kumari, was examined as P.W.-2, Mahendra Pal owner of the house where the incident took place, was examined as P.W.-3 who was declared hostile, Dr. P.K. Gupta who conducted the post mortem of the deceased Raj Kumari on 23.6.1982 at 3.30 p.m. was examined as P.W.-4, Imam Lal witness of recovery has been examined as P.W.-5. Learned Amicus Curiae had stated that the P.W.-5 in his statement had stated that he has been made witness in several cases by the police. Ram Swaroop Constable Clerk, who was examined as P.W-6 who had stated that Babu Ram first informant and Raj Kumari deceased came to the police station at 4.45 a.m. on the date of alleged incident and handed over the written report. Jaggu Singh Constable was examined as P.W.-7, who had taken the deceased Raj Kumari for post mortem, Dr. A.K. Jain who examined Raj Kumari and Babu Ram on 17.6.1982 as P.W.-8 and Ganga Ram pal, Sub Inspector who was the investigating officer. 8. Learned Amicus Curiae for the appellant further contends that neither Ram Kumar Gupta, the scribe of the FIR nor Ravindra Kumar, who is said to have come to the spot to save the injured witness, were examined by the prosecution, which creates serious doubt about the prosecution version. 9. Learned Amicus Curiae for the appellant has referred to the statements of PW-1 Israrul Haq, Head Constable, who is said to have arrested the accused from the portico of the Railway Station. PW-1 has stated that he had arrested the accused at 1:00 PM from the portico of the Railway Station. 10. Learned Amicus Curiae for the appellant has next referred to the statements of PW-2 Babu Ram, the first informant as well as injured witness. She has stated that the said witness has admitted that he and his wife Ram Kumari used to stay on rent at the house of Mahendra Pal, in which, Shyam Behari was also a tenant and after the incident, when hue and cry was raised, Mahendra Pal and Ravindra Kumar came to the spot and saved them. 11. Learned Amicus Curiae for the appellant has further argued that after the assault, said witness along with his wife went to the Police Station, where the FIR was lodged and they were referred for medical treatment by the Police. 12. 11. Learned Amicus Curiae for the appellant has further argued that after the assault, said witness along with his wife went to the Police Station, where the FIR was lodged and they were referred for medical treatment by the Police. 12. Learned Amicus Curiae for the appellant has also drawn our attention to the cross-examination of the said witness, wherein he had accepted that the deceased Ram Kumari was the wife of the appellant Shyam Behari and she is not his wife and out of their wedlock, three children were also borne. He also admitted that Shyam Behari had not divorced Ram Kumari and he had given false statement that Ram Kumari was his wife. 13. Learned Amicus Curiae for the appellant has also drawn our attention to the statement of said witness and she has stated that the source of light was Dibhri. She has further submitted that the said witness has also denied the suggestion that the some miscreants, thief entered in his house with intention to commit robbery and in that process, injured the first informant and Ram Kumari. 14. Learned Amicus Curiae for the appellant has further contended that PW-3 Mahendra Pal is the owner of the house and he has been declared hostile and therefore, his statement can not be relied upon. 15. Learned Amicus Curiae for the appellant has next drawn our attention to the statements of PW-4 Dr. P.K. Gupta, who had conducted the postmortem of the deceased. PW-4, in his statement, has stated that the deceased had died after four days of the incident and also that there was a wound caused on account of operation, which was conducted upon the deceased while she was alive. 16. It has been argued by learned Amicus Curiae for the appellant that the cause of death has been shown to be toxemia, on account of which, she expired and it was on account of the operation wound that she sustained/contracted septicaemia and her death was not caused by any other injury, which was sustained by her, for which the appellant was being falsely implicated. The first informant has falsely implicated the appellant because he wanted to live with the wife of the appellant. 17. It is further submitted by learned Amicus Curiae for the appellant that no crime number was mentioned on the postmortem report, which itself creates doubt about the prosecution story. 18. The first informant has falsely implicated the appellant because he wanted to live with the wife of the appellant. 17. It is further submitted by learned Amicus Curiae for the appellant that no crime number was mentioned on the postmortem report, which itself creates doubt about the prosecution story. 18. Learned Amicus Curiae for the appellant has placed reliance upon the statement of PW-8 Dr. A.K. Jain, who have examined Ram Kumari and Babu Ram and has referred to the Page No. 48 of the Paper Book and has also referred to the cross-examination of the PW-8 Dr. A.K. Jain, in which, he has stated that he is not sure and if proper treatment and diet was given to Raj Kumari, then she could be saved. 19. Learned Amicus Curiae for the appellant has argued that proper treatment was not given to Ram Kumari, on account of which, she expired. She has further placed reliance upon the statement of PW-9 Ganga Ram Pal at Page No. 55 of the Paper Book and has referred to Para 9 of the same, in which, the Investigating Officer has recorded the statements of Ram Kumari under Section 161 CrPC. The IO has stated that she was in a proper health, fully conscious and medically fit to give her statement and at that time, there was no apprehension that she may expire. 20. Learned Amicus Curiae has further argued that the investigating officer did not find any blood at the place of incident and further he did not mention any crime number on the Chitthi Majroobi while the injured was being sent for medical examination which all creates a shadow of doubt upon the prosecution version. 21. It is thus reiterated by learned Amicus Curiae for the appellant that on account of operation, which was conducted upon Ram Kumari in unhygienic condition due to which she contracted toxemia, she expired, for which, the appellant is being falsely implicated. 22. Learned Amicus Curiae for the appellant has next referred to the statement of the appellant recorded under Section 313 CrPC at Page No. 59 of the Paper Book and has placed reliance upon the Question Nos. 22. Learned Amicus Curiae for the appellant has next referred to the statement of the appellant recorded under Section 313 CrPC at Page No. 59 of the Paper Book and has placed reliance upon the Question Nos. 1, 8 and 13 and has argued that the appellant has stated that Ram Kumari was the wife of the appellant and the recovery of the knife/weapon of the assault is false recovery and at the time and place of the alleged incident, the appellant was not present. 23. Learned Amicus Curiae for the appellant has next contended that the recovery of the weapon of assault is shown to be made from an open place without there being any independent witness also falsifies the recovery of the weapon and no reliance can be placed thereon. 24. Learned Amicus Curiae for the appellant has also placed reliance upon the Ex. Ka-3, which is the Forensic Laboratory Report and has also argued that the human blood has not been certified upon the weapon of assault/knife and therefore, it cannot be said that there was human blood on the weapon of assault. 25. Learned Amicus Curiae for the appellant has next contended that in the house of PW-3 Mahendra Pal, the appellant as well as the first informant and the deceased were also the tenants and there was no other independent eye witness of the said incident. PW-2 Babu Ram had turned hostile and he had strong motive to implicate the appellant in the present case. 26. Learned A.G.A., on the other hand, contends that it is a case of direct evidence, which incident took place at the house of Mahendra pal P.W-3 and that the presence of the appellant cannot be denied in view of the statement of the witnesses who have been examined during trial. He further states that the weapon of assault has been recovered at the instance of the appellant and further the appellant had a clear motive of assaulting the informant as he was having relation with his wife. He further argues that there is no contradiction or variation in the statement of the witnesses and the medical evidence on record therefore, it is contended by him that the judgment and order of conviction has been rightly passed by the Trial Judge, which warrants no interference by this Court. 27. Heard Ms. Sakshi Kesarwani and Mrs. He further argues that there is no contradiction or variation in the statement of the witnesses and the medical evidence on record therefore, it is contended by him that the judgment and order of conviction has been rightly passed by the Trial Judge, which warrants no interference by this Court. 27. Heard Ms. Sakshi Kesarwani and Mrs. Manju Thakur learned Amicus Curiae for the appellant, learned A.G.A. for the state respondent and perused the paperbook and the judgment and order impugned. 28. Perusal of the first information report as well as the statement of the witnesses of fact would go to show that initially the first informant was examined as P.W.-2 had stated that the deceased Raj Kumari was his wife but subsequently in his statement before the Court, he admitted the fact that she was the wife of the appellant and not his wife. 29. The argument raised on behalf of the State respondent that the appellant had motive to assault the informant and the deceased Raj Kumari was existing as the informant had kept his wife does not appear to be believable because out of the wedlock of the appellant with Raj Kumari three children were born, therefore, it is highly improbable that any person would assault his wife for the reasons stated by the State respondent. On the contrary, the argument which has been raised by the amicus curiae that the appellant has been falsely implicated by the first informant as he wanted to do away with the appellant in order to keep his wife cannot be disbelieved. It is not disputed that the first informant P.W.-2 as well as the deceased had gone to the police station on 17.6.1982 at 04.45 a.m. to lodge the F.I.R. which was lodged under Section 324 IPC and 25/27 Arms Act thereafter both of them were sent for medical examination. It is not disputed that the deceased expired after four days and there was also a surgical cut which was found on the person of the deceased which appears to have been caused on account of medical treatment which was given to her. It is not disputed that the deceased expired after four days and there was also a surgical cut which was found on the person of the deceased which appears to have been caused on account of medical treatment which was given to her. It is further not disputed that the cause of death is shown to be Toxemia which also can be said to be Septicaemia therefore, the argument of the learned Amicus Curiae that it was on account of unhygienic medical treatment which was given to the deceased that she suffered from Toxemia/Septicaemia which resulted in her death for which the appellant is being falsely implicated by the first informant cannot be brushed aside. The facts further show that at the time of alleged incident when the appellant allegedly assaulted the first informant and Raj Kumari by knife and on hue and cry being raised, Ravindra Kumar and Mahendra Pal came to the spot and saved them but it is intriguing to note that the prosecution did not examine Ravindra Kumar or even the scribe of the first information report Ram Kumar Gupta to prove the prosecution version. 30. The argument which has been raised on behalf of the defence that the appellant was not present at the place and time of occurrence and while he was returning, he was apprehended by the police at the railway station(reference has been made to the statement of the appellant recorded under Section 313 Cr.P.C.) is also to be kept in mind. Furthermore it is borne out from the records that the weapon of assault is said to have been recovered from the place which was accessible to one and all and which weapon of assault is said to have been recovered and the witness of recovery Sri Imam Ali has been shown. The said Imam Lal who was examined as P.W-5 has stated in his statement before the court that he has been made witness in several cases by the police, therefore, it cannot be said that the said witness of recovery was an independent witness and without there being any independent witness of recovery, which his said to have been made from an open place, the factum of recovery itself becomes doubtful. Further the argument of the learned Amicus Curiae that after the alleged incident, the first informant as well as the deceased had gone to the police station to lodge the first information report whereafter they were referred for medical treatment and the case was registered under Section 324 IPC only which shows that the injuries which was sustained by the informant as well as the deceased was not so serious which could have caused death and further that the deceased died after four days of the alleged incident due to Toxemia and last but not the least that the appellant has been acquitted for the offence under Section 25/27 Arms Act. 31. After hearing the learned counsel for the parties and after perusing the material on record and after considering the facts and evidence in totality, this Court is of the opinion that the prosecution could not prove its case against the appellant beyond reasonable doubt, therefore, benefit of doubt is to be given to the appellant. 32. In view of the aforesaid discussions, the appeal deserves to be allowed and the accused-appellant deserves to be acquitted. Hence the impugned judgment of conviction and sentence dated14.06.1983 passed by 3rd Additional Sessions Judge, Shahjahanpur in Session Trial No. 682 of 1982 connected with Session Trial No. 683 of 1982, State Vs. Shyam Behari is hereby set aside. The Criminal Appeal is allowed. The accused-appellant, Shyam Behari is acquitted for the offence under section 307 and 302 I.P.C. P.S. Sadar Bazar, District Shahjahanpur. If the appellant is in jail and is not wanted in any other case, he shall be released forthwith. 33. The lower court record alongwith copy of this judgement and order be transmitted to the lower court for compliance. 34. Office is directed to pay Rs.7000/- to Ms. Sakshi Kesarwani and Smt. Manju Thakur each, learned Amicus Curiae for their assistance to the Court.