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2018 DIGILAW 816 (ALL)

RAMESH v. STATE OF U. P.

2018-04-05

RAJESH DAYAL KHARE, RAJIV GUPTA

body2018
JUDGMENT : (Delivered by Hon'ble Rajiv Gupta, J.) 1. The present criminal appeal has been filed by the appellants, namely, Ramesh, Lala, Rajpal and Samarpal, against the judgment and order dated 09.08.1982 passed by 3rd Additional Sessions Judge, Moradabad in Session Trial No. 345 of 1980, State Vs. Ramesh and others, whereby aforesaid four appellants have been convicted under Section 302 IPC read with Section 149 IPC and awarded the sentence of life imprisonment and also, under Section 148 IPC awarded the sentence of one year R.I. Both the sentences to run concurrently. 2. The prosecution case in nutshell is that in respect of a passage, dispute was going on between the complainant Sompal Singh and his family members on one hand and Balwant and others on the other. In respect of which, about four and a half months back, there was an altercation between the two groups and a criminal case was lodged by Balwant at the Police Station. In this backdrop, Balwant and his sons wanted to kill Yadram Singh (the father of complainant Sompal Singh). 3. On the day of the incident at about 5:00 PM, the complainant Sompal Singh alongwith his mother Smt. Ram Pyari and his father Yadram were working in their field, the accused persons, namely, Ramesh S/o Balwant, Lala S/o Balwant, Rajpal Singh S/o Chhatar Singh, Samarpal S/o Gulab Singh, Chhatar Singh S/o Mukund Ram, Gulab Singh S/o Mukund Ram, Nanak S/o Khajan Singh and Vijay Pal S/o Gulab Singh, armed with Gun, Tabal and Gadansa, emerged from the sugarcane field and as soon as his father saw them, he tried to make his escape good towards the village, Ramesh and Lala then exhorted not to let him escape. On the alarm raised by the complainant Sompal Singh and his mother, the accused persons surrounded the victim near Pati Patuwa tank and the appellants Rajpal, Ramesh, Samarpal and Lala opened fire upon him, due to which he fell down and thereafter, other four accused persons are said to have assaulted him with Gadansa and Tabal. The said incident is said to be witnessed by Chetram S/o Hem Singh and Dhyan Singh S/o Hem Singh. The accused persons after killing his father had made their escape good and the dead body of his father was lying near the tank. 4. The said incident is said to be witnessed by Chetram S/o Hem Singh and Dhyan Singh S/o Hem Singh. The accused persons after killing his father had made their escape good and the dead body of his father was lying near the tank. 4. It is further alleged that a broken butt of the gun and a gandasa was left lying at the place of incident. A written report of the occurrence was lodged on 03.07.1979 at 6:30 PM by Sompal Singh at Police Outpost Dhanaura at Police Station Bachhraon, District Moradabad and the chik FIR was drawn. On the basis of which, necessary entries in the General Diary has been made vide G.D. Report No. 30, which is marked as Exhibit Ka-4. The FIR was lodged in the presence of Sub-Inspector Om Prakash Tiwari, In-charge, Police Outpost, who had taken up the investigation and along with the complainant/first informant had reached the place of the incident, where he found the dead body of the deceased Yadram lying near the tank. 5. The Investigating Officer conducted the panchayatnama on the person of the deceased and prepared photo nash, challan lash, chitthi R.I., chitthi C.M.O., etc. and after concluding the panchayatnama, handed over the dead body to the Constables Ram Chandra and Netrapal Singh for taking the same to the mortuary for conducting of the postmortem on the person of the deceased. The Investigating Officer thereafter is said to have reached the house of the first informant and recorded the statements of the witnesses, namely, Ram Pyari, Chetram and Dhyan Singh and on the next day, again visited the place of the incident and prepared the site plan and thereafter, had taken the bloodstained and plain earth from the place of the incident and also recovered the broken butt of gun and the gadansa and prepared the fard recovery memo, which has been marked as Exhibit Ka-12. 6. On 04.07.1979 at about 5:30 PM, an autopsy was conducted on the person of the deceased by PW-4 Dr. Chandra Prakash, who had noted the following injuries on the person of the deceased :- (1) Incised wound 10 cm x 1 cm x skull cavity deep on right posterio parietal head 9 cm above right ear. Skull bone fractured under neath the injury. (2) Lacerated wound 3 cm x 2 cm bone deep on right parietal head 3 cm above right ear. Skull bone fractured under neath the injury. (2) Lacerated wound 3 cm x 2 cm bone deep on right parietal head 3 cm above right ear. (3) Lacerated wound 5 cm x 2.5 cm x bone deep 3 cm away from injury no. 2. (4) Lacerated wound 10 cm x 4 cm x subcutaneous tissue deep on right side of head just behind right ear. Right pinna severed off partially and missing. (5) Lacerated wound 2 cm x 1 cm x bone deep on right frontal head 7 cm above right eyebrow. (6) Abrasion 2.5 cm x 1.5 cm on left forehead 4 cm above left eyebrow. (7) Lacerated wound 2 cm x 1.5 cm x muscle deep an lateral aspect of right upper arm in middle one-third. (8) Lacerated wound 3 cm x 2 cm x muscle deep on right upper arm on lateral aspect just above right elbow joint. (9) Lacerated wound 3 cm x 2.5 cm x muscle deep and posterior aspect of right upper arm in middle one-third. (10) Gun shot wound 2.5 cm x 2.5 cm x chest cavity deep on right anterior chest 8 cm below and lateral to right nipple near anterior axillary line. 7. On internal examination, the skull bone was found fractured beneath injury no.1. Right sixth rib under injury no.10 and 2nd left rib were found fractured. Injury no.10 was the wound of entry and its margin were inverted. There was blackening around the injury. There was no tattooing. One big metallic shot was found from the posterior axillary fold of left shoulder. In the opinion of Dr. Chandra Prakash, the cause of death was shock and haemorrhage as a result of injury no.10 and in the ordinary course the injuries, present on the dead body, were sufficient to cause death. 8. PW-5 Sub-Inspector Om Prakash Tiwari, after recording the statements of the witnesses and collecting the relevant material, had submitted the charge-sheet against all the eight accused persons, namely, Chhatar Singh, Gulab Singh, Nanak and Vijay Pal on 16.07.1979 and against the accused-appellants, namely, Ramesh, Lala, Rajpal Singh and Samarpal Singh on 21.07.1979. The case was thereafter committed to the court of sessions, who framed the charges against the accused persons under Section 148 IPC and under Section 302 read with Section 149 IPC. However, accused persons did not plead guilty and claimed to be tried. 9. The case was thereafter committed to the court of sessions, who framed the charges against the accused persons under Section 148 IPC and under Section 302 read with Section 149 IPC. However, accused persons did not plead guilty and claimed to be tried. 9. In order to bring home the charge against the appellants, the prosecution has produced as many as eight witnesses :- 10. PW-1 Sompal Singh, son of the deceased is an eye-witness and the first informant of the case, PW-2 Smt. Ram Pyari is the wife of the deceased and also an eye-witness of the incident, PW-3 Dhyan Singh, another eye-witness of the incident, who is also related to the accused, PW-4 Dr. Chandra Prakash, who had conducted the autopsy on the person of the deceased and has proved the postmortem report, PW-5 Om Prakash Tiwari, being the Investigating Officer of the case, PW-6 Constable Lauki Ram, who has registered the FIR on the basis of written report (Exhibit Ka-5) given by the accused Samarpal on 04.07.1979 at 12:40 AM at the Police Station Kotwali, District Moradabad, PW-7 Netrapal Singh is said to have taken the dead body of the deceased to the mortuary for conducting the postmortem, PW-8 Kalyan Singh, who had proved the signature of the accused Samarpal on the written report (Exhibit Ka-5) lodged by him on 04.07.1979 itself. 11. After concluding the prosecution evidence, the accused has been asked to enter upon their defence. In its defence, the accused-appellants have filed an FIR registered vide Case Crime No. Nill lodged by Karan Singh, Gram Pradhan, Village Kaurala, which is said to be lodged against the deceased Yadram and two others, namely, Sita Ram and Chetram S/o Bhim Singh, which has been exhibited as Kha-1. 12. Thereafter, statements of the accused persons under Section 313 CrPC have been recorded, in which, they had categorically stated that on account of enmity, they have been falsely implicated in the present case. 13. Heard Sri V.P. Srivastava, learned Senior Advocate, assisted by Sri Rajan Srivastava, learned counsel for the appellants, Sri Anil Kumar Singh, learned counsel for the complainant/first informant, learned AGA for the State/respondent and perused the material available on record. 14. 13. Heard Sri V.P. Srivastava, learned Senior Advocate, assisted by Sri Rajan Srivastava, learned counsel for the appellants, Sri Anil Kumar Singh, learned counsel for the complainant/first informant, learned AGA for the State/respondent and perused the material available on record. 14. Learned Senior Counsel for the appellants has submitted that the Trial Court, on the basis of same set of evidence available on record, has returned the judgment of conviction against the four accused persons, namely, Ramesh, Lala, Rajpal Singh and Samarpal Singh, however, acquitted the four accused persons, namely, Chhatar Pal, Gulab, Nanak and Vijay Pal, who were said to be armed with Tabal and Gadansa, by the same judgment and order, which is under challenge in the present appeal. 15. Learned Senior Counsel for the appellants has further pointed out here that against the order of acquittal of the aforesaid four accused persons neither any government appeal has been filed nor the complainant has filed any revision challenging the acquittal order and the same has become final. By means of present appeal, only the order of conviction against the present four appellants is under challenge. 16. Learned Senior Counsel for the appellants has further contended that there was deep rooted enmity between the first informant Sompal Singh and his father Yadram on one hand and the accused persons on the other. In respect of the said enmity, two other FIRs were also lodged. First is vide Case Crime No. Nil, P.S. Kotwali, District Moradabad, which is said to have been lodged by Samarpal, one of the co-accused, with regard to an incident alleged to have taken place on the same day i.e. on 03.07.1979 at 4:00 PM, in which, it is alleged that on the day of the incident at about 4:00 PM, while he was going to take 'reta' from his field, then he was encircled by Sompal (first informant in the present case), Yadram (deceased in the present case) and one Mahipal Singh S/o Dhyan Singh (PW-3), who tried to assault him with Tabal and lathi, due to which, he received injuries on his forehead and when he wanted to lodge the report, then he was prevented by the accused persons, as such, he has lodged the report on the next day. The said report is said to have been proved as Exhibit Ka-17. 17. The said report is said to have been proved as Exhibit Ka-17. 17. Second FIR has been lodged vide Case Crime No. 58 of 1979 under Section 307 IPC at Police Outpost Dhanaura Mandi, Police Station Bachhraon, District Moradabad by one Rajendra S/o Balwant Singh against Yadram Singh (deceased), Mahipal Singh S/o Dhyan Singh and also against Raghuveer and Sita Ram, which has been proved as Exhibit Ka-16. 18. On the basis of the said FIR, learned Senior Counsel for the appellants has vehemently argued that there was daggers drawn enmity between the accused-appellants and their family members on one hand and the deceased and his family members on the other with regard to encroachment of the passage, for which, various litigations are pending between the parties and only on account of this animosity between the two groups, the appellants alongwith other family members, who have been acquitted, have been falsely implicated in the present case and therefore, their testimony cannot be relied upon and has to be seen with due care and caution. 19. Learned Senior Counsel for the appellants has next submitted that there is direct conflict between the postmortem report and the prosecution version, as set out by the prosecution, which renders the entire prosecution story doubtful and rules out the presence of the appellants at the time of the incident. 20. In order to buttress his arguments, learned Senior Counsel for the appellants has drawn our attention to the injuries noted by PW-4 Dr. Chandra Prakash in the postmortem report. 21. From the careful perusal of the postmortem report, it is evident that there is only one incised wound and only one gun shot wound on the person of the deceased and other injuries are lacerated wounds, which are said to have been caused by some blunt object, like lathi, however, according to the prosecution case, four accused persons (present appellants) are said to have opened fire upon the deceased while other four accused persons are said to have assaulted the deceased by tabal and gadansa, both being the sharp edged weapon. 22. 22. Looking to the said ambiguity in the nature of injuries found on the person of the deceased and the weapon used, the Trial Court, found the participation of the accused, who are said to be armed with tabal and gandasa, have been given benefit of doubt but the present appellants, who are said to be armed with gun, have been wrongly convicted, though the participation of all the four accused persons appears to be wholly doubtful. 23. Learned Senior Counsel for the appellants has further castigated the veracity of statements of the prosecution witnesses on the ground that as per the testimony of PW-1 Sompal Singh and PW-2 Ram Pyari, the four appellants are said to have fired upon the deceased from a distance of about 14-15 paces. However, from the careful perusal of the postmortem report, there is blackening round the gun shot injury on the person of the deceased noted by the Doctor, which, in any case, is not possible, if the shot is fired from the distance of 14-15 paces. This circumstance again creates serious doubt about the presence of the witnesses at the time of incident and their eye-witness account. Had the witnesses actually seen the incident, then such glaring conflict in their occular testimony and the medical report may not have surfaced. 24. Learned Senior Counsel for the appellants has further submitted that the conflict in occular testimony of the witnesses and the medical report is further evident from the circumstance the PW-5 Dr. Chandra Prakash had noted that only one big metallic shot was found on the posterior axillary fold of the left shoulder of the deceased whereas it is the specific case of the prosecution that all the four appellants fired from their respective guns upon the deceased causing only one injury on the person of the deceased, which again creates doubt about the veracity and truthfulness of the statements of the eye-witnesses and rules out their presence at the time of the incident. 25. 25. Learned Senior Counsel for the appellants, in order to highlight the conflict between the occular testimony and the medical evidence, has referred to the statement of PW-1 Som Pal Singh, wherein he has stated that ^^eqyfteku us rkykc ds nf{k.kh rjQ esjs firk dks ?ksj fy;k vkSj pkjksa cUnwd okys eqyfteku us Qk;j dj fn;sA Qk;j yxus ls esjs firk rkykc ds nf{k.kh fdukjs ds ikl fxj x;sA ckdh eqyfteku us esjs firk dks fxjs gq;s dks rcy o xM+kls ls ekjkA rcy ekjrs oDr rcy dk /kkj okyk fljk Åij dh rjQ FkkA esjs o esjh ekrk th ds 'kksj ij psrjke vkSj /;ku flag ogka vk x;s Fks vkSj mUgksaus ?kVuk ns[khA** 26. Learned Senior Counsel for the appellants has referred to the statements of PW-2 Ram Pyari also in this respect, wherein she has stated that ^^esjs ifr bu yksxksa dks ns[kdj nf{k.k dks Hkkxs rks jes'k o ykyk us dgk fd ?ksj yks vkt fudy u tkosA eqyfteku us lc us esjs ifr dk ihNk fd;k vkSj rkykc ds ikl esjs ifr dks ?ksj fy;kA pkjks rjQ ls pkjks cUnwd okyksa us ?ksj dj Qk;j fd;s vkSj tc esjs ifr fxj x;s rks ckdh eqyfteku us rcy o xM+kls ls ekjkA** 27. Learned Senior Counsel for the appellants has further pointed out the statements of PW-3 Dhyan Singh in this respect, wherein he has stated that ^^vkt ls djhc 25 eghus igys dh ckr gS 'kke ds ikap cts dk le; FkkA eSa vius ?kj ls V;wc csy ij tk jgk FkkA eSaus jke I;kjh o lkseiky dk 'kksj lquk fd cpk yks] cpk yksA eSa o psrjke ;knjke dh cSBd ds iwjc esa djhc 5&6 dne ij tkdj [kM+s gks x;sA jktiky] lejiky] ykyk] jes'k] Nrj flag] xqykc flag] ukud flag vkSj fot;iky gkftj vnkyr ;knjke dks ekj jgs FksA rkykc ds nf{k.k vksj eqyfteku ekj jgs FksA jkeiky] lejiky] jes'k o ykyk us viuh 2 cUnwdkas ls Qk;j fd;s FksA ;knjke Qk;j yxus ls fxj x;sA Nrj flag] ukud o xqykc ftuds gkFkksa esa ykBh esa yxs rcy Fks ls ekjk vkSj fot; flag ds ikl xM+klk Fkk xM+kls ls ;knjke dks fxjs dks ekjk FkkA** 28. Learned Senior Counsel for the appellants, on the basis of above testimony of PW-1, PW-2 and PW-3, has vehemently argued that from the testimony of PW-1 and PW-2, it is clear that the victim Yadram was assaulted by the accused persons using tabal, gandasa (sharp edged weapons) and by opening fire upon him, however, from the perusal of the postmortem report, there are as many as six lacerated wounds, which stands unexplained and on that basis, he has further argued that in view of the said lacerated injuries, the testimony of PW-1, PW-2 and PW-3 cannot be believed and completely rules out their presence at the time of the incident. 29. Learned Senior Counsel for the appellants has further referred to the testimony of PW-5 Dr. Chandra Prakash, wherein he has stated that injury nos. 2 to 9 could not be caused by tabal or gandasa, which further renders the prosecution story wholly doubtful and rules out the presence of eye-witnesses. 30. Learned Senior Counsel for the appellants has further submitted that the Investigating Officer neither in the statements of the witnesses recorded under Section 161 Cr.P.C. nor in the site plan or in any other document prepared by him, mentioned about the recovery of roots of the sugarcane plant, which were found at the place of the incident and only for the first time, the said fact has been stated by the Investigating Officer in his testimony at page no. 57 of the paper book, wherein he has stated that bDt d&10 esa ^,* [ksr esa bZ[k dh As such, in the backdrop of the said testimony, the factum of finding of roots of sugarcane has been specifically denied to have been taken note of in the site plan as well as in the case diary further belies the prosecution story and the presence of witnesses at the time of incident. 31. 31. It has been next argued by learned Senior Counsel for the appellants that after disbelieving part of the testimony of PW-1, PW-2 and PW-3, the Trial Court has recorded the finding of the acquittal against the four accused persons armed with tabal and gandasa, however, part of the testimony relating to the present accused appellants which also is not free from doubt, the finding of conviction has been recorded, therefore, it is contended that the order of conviction, which has been returned by the Trial Court against the present appellants cannot be sustained in the eyes of law. 32. On the contrary, Shri Anil Kumar Singh, learned counsel for the complainant/first informant and the learned AGA for the State has contended that the present case is a case of direct evidence and the part of the testimony, which relates to the present accused-appellants has been proved by the prosecution and as such, the order passed by the Trial Court is just proper and legal. 33. Learned counsel for the complainant has further contended that the time, date and place of the occurrence is admitted by the defence and therefore, it cannot be said that the offence has not been committed by the accused persons, as set out by the prosecution. 34. Learned counsel for the complainant has next submitted that the present case is a case of unlawful assembly and with the common object of that assembly, the victim has been done to death and therefore, the order of conviction, which has been returned by the Trial Court so for as the appellants are concerned, has no illegality and infirmity, which requires consideration by this court. 35. Considering the rival submissions made at the bar, now we analyze the submissions of learned Senior Counsel for the appellants and learned counsel for the complainant/first informant and the learned AGA for the State. 36. So far as the arguments of learned Senior Counsel for the appellants regarding the inimical witness is concerned, it is well settled principle of law that evidence of such witnesses is required to be examined by considering the attending facts and circumstances and particularly taking into consideration proximity of time leading to alleged enmity. 36. So far as the arguments of learned Senior Counsel for the appellants regarding the inimical witness is concerned, it is well settled principle of law that evidence of such witnesses is required to be examined by considering the attending facts and circumstances and particularly taking into consideration proximity of time leading to alleged enmity. Testing the veracity and truthfulness of the prosecution witnesses on the anvil of past enmity between the two groups, it is evident that the accused as well as the complainant have daggers drawn enmity between them and number of civil as well as criminal litigations are pending between them and as per the prosecution case, even on the date of the incident, there was an incident of assault made by the deceased Yadram, his son PW-1 Sompal Singh and one another Mahipal Singh S/o Dhyan Singh (PW-3) upon the co-accused Samarpal Singh, in respect of which, an FIR has been lodged by him against Sompal, Yadram and Mahipal Singh, which has been proved as exhibit Ka-17. Even prior to this incident, a case under Section 307 IPC was also pending between the appellants and the accused persons, report of which has been proved as exhibit Ka-16. 37. From the said circumstances, the enmity between the appellants and the accused persons is clearly discernible and thus, PW-1 and PW-2, who is the son and wife of the deceased, clearly falls within the category of inimical witnesses and therefore, their testimony cannot be said to be free from prejudices and the manner, in which, they have narrated the incident, which in sharp contrast to the medical report coupled with the fact that the Trial Court, partly disbelieving the testimony, has recorded the finding of acquittal against the four accused persons, who are said to be armed with tabal and gandasa. Their testimony, so far as the appellants are also concerned, is not free from doubt and as such, we are of the opinion that the said witnesses cannot be termed as reliable witnesses and the present accused are also entitled for benefit of doubt, as argued by learned Senior Counsel for the appellants. 38. Their testimony, so far as the appellants are also concerned, is not free from doubt and as such, we are of the opinion that the said witnesses cannot be termed as reliable witnesses and the present accused are also entitled for benefit of doubt, as argued by learned Senior Counsel for the appellants. 38. Considering the next arguments of learned Senior Counsel for the appellants regarding the sharp conflict in the occular testimony of the eye-witnesses and the postmortem report, taking into consideration the categorical testimony of PW-1, PW-2 and PW-3 regarding the manner of assault by gandasa, tabal and by opening fire by as many as four persons and the nature of injuries found on the person of the deceased particularly the six lacerated wound found on the person of the deceased, which prosecution could not explain, as such we are of the opinion that the testimony of the alleged eye-witnesses is not of impeccable quality and creates serious dent in the prosecution story, as such the present appellants are also entitled for benefit of doubt. 39. It is further germane to point out here that the view taken by the Trial Court that the lacerated injuries found on the person of the deceased could have been caused in the earlier incident, which is alleged to have taken place at 4:00 PM on 03.07.1979, report in respect of which has been lodged and proved as Exhibit Ka-17, does not stand to reason at all. Even in the statements of the witnesses PW-1, PW-2 and PW-3, there is not a whisper that the said blunt weapon injuries to Yadram have been caused in the earlier incident. On the contrary, all the three witnesses, in their testimony, has clearly stated that the deceased Yadram received the said injuries in the present incident and even faint attempt has been made to explain the said injuries by PW-1 Sompal Singh in his testimony by stating that the weapon tabal was used from the reverse side to quote ^^rcy ekjrs oDr rcy dk /kkj okyk fljk Åij dh rjQ FkkA** clearly establishes the fact that the injuries has been caused to the victim in the present case. 40. 40. Furthermore, PW-3 Dhyan Singh, in his statements, has also stated that the tabal, which the accused persons used, was fixed in a lathi and said lathi may have used to cause lathi injuries also do not stand to reason as use of tabal as lathi has not been stated by the witnesses and the accused armed with said weapon has also been acquitted by the Trial Court and in backdrop of aforesaid circumstances, we are of the opinion that the view taken by the Trial Court that the said injuries may have been caused in the earlier incident is erroneous and against the weight of evidence on record and the submission of learned Senior Counsel for the appellants that there is serious conflict in the occular testimony of the witnesses and the medical report has substance and the said factum which goes to the root of the case renders the prosecution story doubtful. 41. Testing the reliability, veracity and truthfulness of the witnesses, we are of the opinion that their testimony is not free from doubt and as such, no implicit reliance can be placed upon their testimony and the present appellants are also entitled for benefit of doubt. 42. The next submission of learned Senior Counsel for the appellants is that the Investigating Officer neither in the entire investigation nor in the site plan has shown the recovery of roots of the sugarcane at the place of the incident, though it is specific case of the prosecution that at the time of the incident, the deceased and the witnesses were taking out the roots of the sugarcane from their field. However, the Investigating Officer has not shown any recovery of said sugarcane roots from the place of the incident and when in the cross-examination, the Investigating Officer has been confronted with the said discrepancy, evasive reply has been given that though he noted lying of the roots of the sugarcane in the field but did not mention the said factum either in the case diary or in the site plan. Such lapses on the part of the Investigating Officer assume greater importance and prove to be fatal to the case of prosecution and renders the very genesis of the prosecution story doubtful particularly in the backdrop of serious conflict in the medical report and the occular testimony as well as witnesses being highly inimical. 43. Such lapses on the part of the Investigating Officer assume greater importance and prove to be fatal to the case of prosecution and renders the very genesis of the prosecution story doubtful particularly in the backdrop of serious conflict in the medical report and the occular testimony as well as witnesses being highly inimical. 43. We find substance in the said arguments of learned Senior Counsel for the appellants particularly in view of the fact that the said lapse on the part of the Investigating Officer goes to the root of the case and shakes the credibility and presence of the witnesses, therefore, we are of the opinion that by placing implicit reliance upon their testimony, the conviction of the present appellants can also not be sustained. 44. Considering the entire facts and circumstances of the case and in view of the foregoing discussion, we are of the opinion that the prosecution has failed to prove its case beyond all reasonable doubts against the present appellants and they are also entitled for benefit of doubt, as such, the present appeal stands allowed. The order of conviction and sentence dated 09.08.1982 passed by the Trial Court in Session Trial No. 345 of 1980 is set aside and the appellants are acquitted of the charges. The appellants are on bail. Their personal bonds are cancelled and sureties are discharged. They need not to surrender, if not required in any other case. 45. Let a certified copy of this judgment and order alongwith Lower Court record be sent to the court below for its intimation and necessary compliance. 46. Judgment be certified and placed on record.