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2019 DIGILAW 1248 (ALL)

Than Singh v. State of U. P.

2019-05-08

B.K.NARAYANA, GHANDIKOTA SRI DEVI

body2019
JUDGMENT : B.K. Narayana, J. 1. Heard Sri Bhavya Sahai and Sri Kailash Prasad Pandey, learned counsel for the appellants and Sri Jitendra Kumar Sisodia, learned State Law Officer for the State. 2. These two appeals have been filed by the appellants Than Singh and Bhima against the judgement and order dated 22.7.1986 passed by the Special Judge, Mathura in S.T. No. 75 of 1986; State v. Bhima and three others, under Sections-302/34, 201 and 511 I.P.C., P.S.- Vrindavan, district-Mathura by which the appellants have been convicted and sentenced to imprisonment for life under Sections-302/34 I.P.C. Appellant Bhima (in Criminal Appeal No. 2026 of 1986) died during the pendency of the appeal, hence, Criminal Appeal No. 2026 of 1986 was dismissed as abated by this Court vide order dated 1.10.2018. 3. The prosecution story in brief is that on 23.11.1985 an engagement ceremony was being held in the house of Jaswant Singh. Keshav Dev, his brother Ranvir alias Ranno, Raghuvir, son of Gyan Singh and others were going towards the house of Jaswant Singh at about 6.00 p.m. to attend the engagement ceremony. When they reached near the house of Kirori, Hari Singh armed with a gun, Bhima and his nephew Rotan' armed with "Kattas", suddenly emerged before them. Than Singh caught hold of Ranno from his waist and Hari Singh ordered all others to run away as they were going to kill Ran No. On which, Keshav Dev and other persons, who were accompanying Ranno, ran into the house of Kirori and thereafter all the accused fired with their firearms at Ranno near the "Chabootara" of Kirori's house. The occurrence was seen by the witnesses from inside the house of Kirori in the light of torch. The incident took place at about 7.00 p.m. Before being shot, Ranno had managed to set himself free from the clutches of Than Singh and had retorted that he would see that who kills him. Thereupon Hari Singh fired a shot in the air and then Than Singh again caught him from his waist and immediately thereafter the accused fired at him from their respective weapons. The deceased fell down on the spot. Thereupon Hari Singh fired a shot in the air and then Than Singh again caught him from his waist and immediately thereafter the accused fired at him from their respective weapons. The deceased fell down on the spot. Hari Singh was a known criminal and Ranno was also a spoiled person and due to fear of Hari Singh, Keshav Dev stayed in the village for sometime and thereafter went to the police outpost and lodged the written report of the occurrence (Ext. Ka 1) at about 9.30 p.m. The distance of the police station from the place of occurrence was about three kms. The case was registered in the G.D. No. 32 in police outpost Jait and S.I. S.K. Kulshrestha proceeded to the place of occurrence. The special report was prepared in the night but was not dispatched due to non-availability of any means of transportation or conveyance. S.I. S.K. Kulshrestha held the inquest on the body of the deceased at the place of occurrence on 24.11.1985 between 7.00 to 9.00 p.m. and prepared the inquest report. Thereafter he got the body of the deceased sealed and dispatched to the police lines through constable Nahar Singh and Hhob Singh alongwith the inquest report, copy of the G. D., letters addressed to the C.M.O. and R.I., photonash and challan lash and other related papers which were prepared by him on the spot. He also took into the custody plain and blood stained soil and two cartridges from the crime scene and prepared the recovery memos of the aforesaid articles (Ext. Ka 16 and Ka 17). After inspecting the two torches produced by the witnesses Keshav Dev and Rootan before him, he prepared 'Fard Supurdgi' of torches. During the course of investigation a 'Katla' was recovered from the possession of the accused Pooran and the same was sent to the ballistic expert alongwith the recovered empty cartridges and the ballistic expert vide his report (Ext. Ka 17) reported that the recovered empty cartridges sent alongwith ' Tamancha' were not fired from the 'Tamancha'. Post-mortem examination of the body of the deceased Rootan was conducted on 24.11.1985 by P.W. 5 Dr. P.K. Sharma, Medical Officer, Dis-Hospital, Mathura who found following ante-tem injuries on the body of the deceased: 1. Fire-arm wound of entry 3 cm x 2 cm x cavity on the right side of neck just above the wound end of Rt. Post-mortem examination of the body of the deceased Rootan was conducted on 24.11.1985 by P.W. 5 Dr. P.K. Sharma, Medical Officer, Dis-Hospital, Mathura who found following ante-tem injuries on the body of the deceased: 1. Fire-arm wound of entry 3 cm x 2 cm x cavity on the right side of neck just above the wound end of Rt. Clavicle, adjacent in direction towards the back wound and to left arsegun back (bladder) no tattooing or charring; 2. Fire-arm wound 4 cm x 3 cm x cavity deep on the back of left scapular region having connecting with one (1) margin inverted; 3. Tangenital fire-arm wound 13 cm x 2cm x skin on the part of elbow right to left; 4. Fire-arm wound of entry 1 cm x 1 cm x cavity on the left side of middle stratum; 5. Fire-arm wound of exit 25 cm x 2 cm x cavity deep on the back left side chest middle 3 cm away from vertebral column connected with injury No. 4; 6. Fire-arm wound of entry 1 cm x 1 cm cavity deep on the part of lower left side chest even below upper left, margins black, tattooing and charring; 7. Fire-arm wound of exit 2.5 cm x x cavity deep on the back of left scapular region connecting with injury No. 6; 8. Fire-arm wound of entry 1 cm x 1 cm x cavity deep outer side of right scapular margins back tattooing direction positively and to left; 9. One metallic bullet of about 1 cm middle left next on the skin near vertebrae and connected with injury No. 8; 10. Fire-arm wound of entry 1 cm x 1 cm x muscle deep on the part of left angle margins back no tattooing or charring; 11. Two fire-arm wound of entry 1 cm x 1 cm x muscle deep each 2 cm apart on the part of middle left arm left part no tattooing or charring; 12. Two fire-arm wound of exit 3 cm x 2 cm x 2.5 cm corresponding with injury No. 11." 4. Two fire-arm wound of entry 1 cm x 1 cm x muscle deep each 2 cm apart on the part of middle left arm left part no tattooing or charring; 12. Two fire-arm wound of exit 3 cm x 2 cm x 2.5 cm corresponding with injury No. 11." 4. Since the offence mentioned in the charge-sheet was triable exclusively by the Court of Sessions, the accused were committed for trial to the Sessions Court by the C. J.M., Mathura where S.T. No. 75 of 1986; State v. Bhima and three others was registered and was made over for trial from there to the Court of Special Judge, Mathura, who charged all the accused under Sections 302/34 I.P.C. and Pooran was charged separately under Sections-201 and 511 I.P.C. It is noteworthy that the accused Hari Singh is absconding and he has not been arrested till date. 5. The prosecution in order to prove its case examined P.W. 1 Keshav Deo, who is the informant and real brother of the deceased, as an eyewitness of the occurrence. He stated before the trial Court that he was going to attend the engagement ceremony of Jasbant's son alongwith the deceased and some other persons and when he reached near the house of Kirori, the accused armed with deadly weapons accosted them suddenly. He in his evidence has further narrated the manner in which the deceased was killed by the accused as spelt out in the F.I.R. He proved the written report of the occurrence (Ext. Ka 1). He further deposed that he identified the accused in the light of the torch and the same was produced before the Investigating Officer and inspected by him. He proved the memo of torch (Ext. Ka 2). P.W. 2 Raghuvir another eye-witness of the incident who was a resident of the same village and who was allegedly accompanying Keshav Deo and the deceased Ranno at the time of the incident while they were going to the house of Jaswant Singh, in his evidence tendered before the trial Court corroborated the statement of P.W. 1 in all material details. P.W. 3 Jaswant Singh is the third eye-witness of the incident who deposed that he had gone to invite Keshav and others to participate in the engagement ceremony which was taking place in his house and when he alongwith the deceased and his family members was returning to his house, the incident took place. He also corroborated the evidence of P.W. 1 Keshav Deo in all material particulars. Apart from the three eye-witnesses, the prosecution also examined four formal witnesses. P.W. 5 Dr. P.K. Sharma, who had conducted the post-mortem examination of the deceased's body and proved the post-mortem report (Ext. Ka 14) of the deceased. He also deposed that panchayatnama, nakshanash and other connected papers (Ext. Ka 5 to Ext. Ka 13) were received by him alongwith the dead body. P.W. 6 S.I. S.K. Kulshrestha, the first investigating officer of the case, in his evidence tendered before the trial Court, narrated the various steps taken by him during the course of investigation. He proved the site plan of the occurrence (Ext. Ka 15), recovery memo of the blood stained earth and empty cartridges collected by him from the place of incident as (Exts. Ka 16 and Ka 17). He also stated that he had recovered a 'katta' from the possession of Pooran on 27.11.1985 and prepared it's recovery memo which was proved by him as (Ext. Ka 18). P.W. 7 S.I. Veerpal Singh proved the inquest report (Ext. Ka 19) by deposing that it was in his handwriting. P.W. 8, the second investigating officer of the case, who had filed the charge-sheet against the accused and proved the same. After recording the prosecution evidence, the accused were examined under Section 313 Cr. P.C. They pleaded not guilty and alleged false implication on account of enmity. They also stated that since admittedly deceased Ranno was a shady character, he was killed by some other person and the accused were falsely roped in. 6. The accused examined Lal Singh, Kishan Chandra, Nawal Singh and Hari Singh, Head Wireless Operator as D.Ws. 1 to 4. D.W. 1 Lal Singh stated before the trial Court that his father Jaswant Singh had neither gone to invite Keshav Deo nor the accused had indulged in any brawl. D.W. 2 Kishan Chandra stated that the copy of the F.I.R. was received on 24.11.1985 in the office of the District Magistrate. 7. 1 to 4. D.W. 1 Lal Singh stated before the trial Court that his father Jaswant Singh had neither gone to invite Keshav Deo nor the accused had indulged in any brawl. D.W. 2 Kishan Chandra stated that the copy of the F.I.R. was received on 24.11.1985 in the office of the District Magistrate. 7. D.W. 3 Nawal Singh has stated that no recovery memo was prepared before him and that the I. O. neither inspected the torches of Rootan and Keshav Deo in his presence nor he had given the torches to the custody of the witnesses nor prepared 'fard supurdgi". In the police station he was made to sign some papers. He also deposed that neither any blood stained earth nor empty cartridges were recovered in his presence nor any recovery memo was prepared in his presence, Darogaji had obtained his signatures on three blank papers. 8. D.W. 4 Hari Singh, Head Wireless Operator, Police Office, Mathura produced the original wireless set message register, which he stated, had been brought by him. He produced the carbon copy of the original message which was received from the police outpost Jait. He deposed during trial that it was in his handwriting and bore his signatures. He further deposed that the aforesaid message was received by him at about 00.25 hrs. Apart from the aforesaid message, he had not received any other message. The message did not contain any details of weapons, witnesses, and place of incident. 9. The Special Judge, Mathura after considering the submissions advanced before him by learned counsel for the parties and scrutinizing the evidence on record convicted the accused-appellants Than Singh and Bheema and awarded aforesaid sentences to them while the accused Pooran and Rootan were acquitted. 10. Sri Bhavya Sahai, learned counsel appearing on behalf of the appellants submitted that the F.I.R. in this case is ante timed. The genesis of the occurrence has not been established by the prosecution. The medical evidence does not corroborate the ocular version. There are material contradictions in the evidence of eye-witnesses. 11. There is no evidence of any source of light at the place of occurrence, as the recovery of torch, in the light of which, the eye-witnesses of the occurrence claimed to have identified the accused, is doubtful. The medical evidence does not corroborate the ocular version. There are material contradictions in the evidence of eye-witnesses. 11. There is no evidence of any source of light at the place of occurrence, as the recovery of torch, in the light of which, the eye-witnesses of the occurrence claimed to have identified the accused, is doubtful. There is no evidence that Than Singh was previously known to the witnesses and hence, how could he be identified by the informant and the Witnesses. The false implication of Than Singh is apparent on the face of record. The trial Court strangely acquitted the accused Pooran and Rootan on the basis of the same set of evidence, on which, it had convicted the appellant Than Singh. 12. The prosecution also deliberately did not examine Kirori as an eye-witness during the trial in front of whose house, the incident taken place and it was from his house that the witnesses claimed to have seen the occurrence. Although his evidence on the points of assault and presence of the informant and other witnesses at the place of occurrence would have been the most reliable and material to establish the guilt of the accused. Even his statement under Section 161 Cr. P.C. was recorded on 24.11.1985. Neither the recorded conviction of the appellant Than Singh nor the sentence awarded to him can be sustained and are liable to be set aside. 13. Per contra, learned A.GA. has submitted that it is fully proved from the evidence of three eye-witnesses examined by the prosecution during trial that Rootan was shot dead by the appellant Than Singh alongwith other co-accused at about 7.00 p.m. on 23.11.1985 in front of the house of Kirori, F.I.R. in this case is not ante timed. There is no material contradiction between the medical evidence and the ocular version. All the accused were identified by the witnesses in the light of the torches which were produced before the I. O. of the case on 24.11.1985, inspected by him and found in working order and their 'fard supurdgi' was prepared. The Court below has given cogent reasons for acquitting co-accused Pooran and appellant Than Singh whose case stands entirely on a different fooling, is not entitled to claim acquittal on the basis of parity. This appeal lacks merit and is liable to be dismissed. 14. The Court below has given cogent reasons for acquitting co-accused Pooran and appellant Than Singh whose case stands entirely on a different fooling, is not entitled to claim acquittal on the basis of parity. This appeal lacks merit and is liable to be dismissed. 14. We have heard learned counsel for the parties and perused the entire record. 15. As regards, the first submission made by learned counsel for the appellant that the F.I.R. in this case is ante timed. Our attention has been invited to the fact that the special report of the case and the F.I.R. were sent to the concerned authorities after a considerable delay and there is no mention of the crime number on the various memos prepared at the time of the inquest proceedings including the inquest report. There is also evidence of D.W. 4 Hari Singh on the record who disclosed that the radiogram was received as late as at 12.45 a.m. and time of lodging of the F.I.R. and the arms used by the appellant were not mentioned. In the panchayatnama also the names of the accused and the roles assigned to them individually are not mentioned therein. 16. Per contra, learned A.GA. has submitted that the radiogram which was received at 12.25 a.m. clearly refers to the names of the accused who were armed with fire-arms and had committed the murder of Ran No. The radiogram further shows that the S.I. had proceeded to the spot. Radiogram is only a brief message conveyed through wireless only with the object to apprise the authorities and nothing more is expected and needed in it. The radiogram clearly shows that the F.I.R. had already come into existence and investigation had been set in motion. With regard to the non-mention of the case crime on the inquest report, it has been submitted by learned A.GA. that on the top of the inquest report "silsila No. 119 under Section 302 I.P.C., police out post, Jait" has been mentioned and a copy of the F.I.R. was attached with it. 17. Upon perusing the inquest report (Ext. Ka 5), we find that a copy of the F.I.R. was attached to the inquest report and on the inquest report "silsila No. 119, under Section 302 I.P.C." was mentioned and panch witnesses had opined with regard to cause of death that "bandook evam katlon ki goli se mara". 17. Upon perusing the inquest report (Ext. Ka 5), we find that a copy of the F.I.R. was attached to the inquest report and on the inquest report "silsila No. 119, under Section 302 I.P.C." was mentioned and panch witnesses had opined with regard to cause of death that "bandook evam katlon ki goli se mara". However in the copy of the site plan which was prepared on the same day and at the same time, the same Ext. Ka 15 case crime No. 380 was strangely mentioned alongwith "silsila No. 119". 18. In our opinion, the failure of the Investigating Officer to mention the crime number on the inquest report and the other memos prepared at the time of the inquest was merely an irregularity or at the most an instance of carelessness on his part and the same may not in itself be indicative of the fact that the F.I.R. was ante timed but what has to be seen is that where in a case it appears that the investigation is perfunctory and serious irregularities have been committed by the investigating officer and it is not proved that the special report was promptly dispatched to the concerned authorities, cumulative effect of such omissions or irregularities on the credibility of the prosecution story can always be examined by the Court. Although P.W. 4 who had registered the case, prepared and proved the chik F.I.R. and the G. D. entry (Exts. Ka 3 and 4) in his examination-in-chief had deposed that the special report was dispatched to the concerned authorities through a constable on 24.11.1985 itself, however, he failed to disclose either the name of the constable through whom the special report was dispatched or the name of the constable who had brought back the special report. Record shows that the special report was signed by the C.J.M. and the relevant Q D. entry of 24.11.1985 by which the special report is alleged to have been dispatched, was neither exhibited nor proved during trial although it would have been the best piece of evidence to prove that the special report was sent to the concerned authorities on 24.11.1985 and in that case the delay in signing of the special report by the C.J.M. would not have in any manner adversely affected the prosecution case. 19. 19. Thus, upon consideration of the cumulative effect of the failure of the investigating officer to hold the inquest immediately after the incident on 23.11.1985 and to mention crime numbers on the inquest report and the other memos prepared by him during the inquest, on which, merely "silsila number" was mentioned without any explanation why if the case had been registered, crime number was not mentioned although on the site plan of the place of occurrence (Ext. Ka 15), which was also alleged to have been prepared on the same day, crime number was mentioned and the failure of the prosecution to prove by leading any cogent evidence that the special report was dispatched on 24.11.1985, we hold that the F.I.R. in this case is ante timed. If the F.I.R. had come into existence before holding of the inquest, in that case there was not reason for the I.O. to mention "silsila number" on the inquest report. 20. It has also been argued by learned counsel for the appellant that there is absolute contradiction between the medical evidence and ocular testimony which is irreconcilable. In this regard it may be noted that the prosecution case is that four persons Hari Singh (armed with a gun), his brother Bhola, nephews Rootan and Than Singh (appellant) armed with country made pistols had shot at the deceased from their respective firearms with the intention of causing his death. Recovery memo (Ext. Ka 17) which was prepared by the investigating officer on 24.11.1985 indicates that he had collected two white coloured empty cartridges of 42 bore on which something was written in English and three red colour empty cartridges from the place of incident which were fired by the accused at the deceased Ran No. Ext. Ka 7 was proved during trial by RW. 6 S.I. Surendra Kumar, the I.O. of the case. The recovery of five empty cartridges from the place of occurrence indicates that at the most five shots were fired by the accused at the deceased. How-. ever, the post-mortem report of the deceased narrates an entirely different story. As we have already noted that in the post-mortem report of the deceased which was proved by RW. 5 Dr. RK. The recovery of five empty cartridges from the place of occurrence indicates that at the most five shots were fired by the accused at the deceased. How-. ever, the post-mortem report of the deceased narrates an entirely different story. As we have already noted that in the post-mortem report of the deceased which was proved by RW. 5 Dr. RK. Sharma who had conducted autopsy on the dead body of the deceased indicates as many as eight fire-arm wounds of entry, which indicates that more than five rounds of shots at the time of the incident must have been fired. None of the witnesses have deposed that any of the accused had fired at the deceased twice, hence no explanation is coming forth from the side of the prosecution with regard to the presence of more than five ante-mortem gun shot wounds of entry on the body of the deceased. This inconsistency in the oral evidence and medical evidence, in our opinion, is sufficient to discard the prosecution case and hold that none of the witnesses had seen the occurrence. 21. This brings us to the next ground of challenge by learned counsel for the appellant to the impugned judgement and order. It has been argued that it was pitch dark at the time of the incident and although the three witnesses of fact have deposed that they had seen the occurrence in the light of the torches which were being carried by P.W. 1 informant Keshav Deo and Rootan but none of the torches were exhibited during trial although the I.O. of the case R W. 6 Surendra Kumar deposed that he had inspected both the torches which were of "Jeep make" and found the same to be in working condition and after inspecting the same, he had given the torches in the custody of P.W. 1 and prepared "fard supurdgi but since the torches were not exhibited during the trial the prosecution's claim that the witnesses had identified the accused in the light of the torches, appears to be extremely doubtful. The prosecution has failed to come up with any explanation for non-production of the two torches in the light whereof, the witnesses had identified the accused but in view of the fact that the witnesses claimed that all the accused were known to them previously and as alleged by the prosecution a close encounter had taken place before the main incident between the accused and the witnesses when the accused after catching hold of the deceased Ranno had ordered all the witnesses to clear as they were going to kill Ranno and in the process, the witnesses must have had an opportunity to have a look at the accused from a very close proximity and hence even if it is held that the prosecution has failed to prove the instances of any source of light at the place of the incident, even then, in our opinion, the witnesses could have easily recognized the accused when they had met the accused in front of the house of Kirori, even if, there was no light as they were previously known to them. 22. But since we have already held that the F.I.R. in this case is ante timed and the medical evidence does not corroborate the ocular version, we cannot help but hold that the three so-called eye-witnesses produced by the prosecution during the trial were planted to suit the prosecution case and they were tutored to depose inculpatory facts against the appellant and the question whether they could have recognized the accused or not is not at all of any relevance and is merely academic. 23. The last ground on which learned counsel for the appellant appearing for Than Singh has challenged his conviction is that all the four accused in this case stood on the same footings. The role of firing at the deceased was assigned to all the four accused Hari Singh, Bheema, Rootan and Than Singh by all the so-called eye-witnesses of the incident. They deposed in unison that while accused Hari was armed with a gun, the other accused Bhola, Rootan and Than Singh were armed with country made pistols and all the four accused had fired at the deceased. The medical evidence on record indicates that as many as eight wounds of entry were found on the body of the deceased. They deposed in unison that while accused Hari was armed with a gun, the other accused Bhola, Rootan and Than Singh were armed with country made pistols and all the four accused had fired at the deceased. The medical evidence on record indicates that as many as eight wounds of entry were found on the body of the deceased. During the course of investigation a country made pistol was recovered on the pointing out of the accused Pooran which was allegedly used by him in shooting Rootan. The recovered country made pistol was sent to the ballistic expert and according to his report dated 8.4.1986, the empty cartridges recovered from the place of occurrence were not fired from that country made pistol. The learned trial Judge on the basis of the report of the ballistic expert acquitted the co-accused Pooran holding that Pooran should not be convicted as the country made pistol recovered from his possession was not one, which was used in committing the murder of Rootan, while the appellant Than Singh from whom, no recovery of any country made pistol was made, was convicted alongwith the co-accused Bhima and sentence for life imprisonment was illegally awarded by the trial Judge although there is no evidence on record on the basis of which the roles of the four accused could be distinguished. 24. It has been argued by learned A.GA. that the incident had taken place into two parts. Firstly, the appellant Than Singh had allegedly caught hold of the deceased Ranno from his waist and then accused Hari Singh had asked others to run away as they were going to kill Ranno on which the informant and his companions took shelter inside the house of Kirori. The second part of the occurrence started when Ranno managed to escape from the clutches of appellant Than Singh and attacked them shouting " Turn mujhe kya maroge, abhi dekhta noon", on which, Hari Singh fired a shot in the air and appellant Than Singh again caught hold of Ran No. Due to fear, informant and other persons accompanying him had taken shelter inside the house of Kirori and after closing the door from inside, they had seen the occurrence and identified the accused in the torch light. Since in addition to firing at the deceased, appellant Than Singh has also been attributed the role of catching hold of the deceased hence his case stands on a different footing than that of the co-accused Pooran who was acquitted. 25. We do not find any merit in the aforesaid argument of learned A.G.A. because all the four witnesses of fact have consistently assigned the role of firing at the deceased to each of the accused and the role of appellant Than Singh, cannot be distinguished from that of Pooran merely because he was also ascribed the role of catching hold of the deceased. Moreover, the aforesaid consideration had not weighed with the learned trial Judge while acquitting co-accused Pooran and convicting the appellant Than Singh, as is evident from the perusal of the impugned judgement and order. 26. The trial Court by acquitting the co-accused Pooran obviously did not find the testimony of the eye-witnesses qua Pooran reliable, although their evidence could not be split to grant benefit to some co-accused while convicting others who stood on the same footing. 27. Faced with an identical situation, the Apex Court in the case of Ram Laxman v. State of Rajasthan, (2016) 12 SCC 398 in paras 6 and 7 of its judgement held as hereunder: 6. Strangely, the High Court disbelieved Ganesh qua the other co-accused and granted them acquittal but accepted his testimony in respect of the appellants by explaining that the maxim "falsus in uno, falsus in omnibus" stands disapproved since long as per the judgement of this Court in Ugar Ahir v. State of Bihar. 7. In our considered view the Division Bench committed a serious error in relying upon the aforesaid judgement. No doubt, it is an established principle of criminal law in India that only account of detecting some falsehood in the statement of a witness who is otherwise consistent and reliable, his entire testimony should not be discarded. It is equally settled law that if a witness is found undependable and unreliable his evidence cannot be split to grant benefit to some co-accused while maintaining conviction of another when in all respects he stands on the same footing and deserves parity." 28. It is equally settled law that if a witness is found undependable and unreliable his evidence cannot be split to grant benefit to some co-accused while maintaining conviction of another when in all respects he stands on the same footing and deserves parity." 28. Thus, in view of the principle enunciated by the Apex Court in the aforesaid case and after bestowing anxious considerations to the material on record, we are unable to agree with the reasons given by the trial Court for convicting the appellant Than Singh and acquitting co-accused Pooran. The evidence of the witnesses offset examined by the prosecution during trial is not of such nature which may be splitted to grant differential treatment to the different co-accused. 29. Since the case of the appellant Than Singh stands on the same footing as that of co-accused Pooran, who was acquitted, if not on better footing, appellant Than Singh was entitled to acquittal, apart from merits, on parity as well. 30. Thus, in view of the foregoing discussion, we are of the view that neither the recorded conviction of the appellant Than Singh nor the life sentence awarded to him can be sustained and is liable to be set aside. Criminal Appeal No. 2004 of 1986 qua appellant Than Singh is hereby allowed and he is acquitted of all the charges. 31. The impugned judgement and order dated 22.7.1986 passed by the Special Judge, Mathura in S.T. No. 15 of 1986; State v. Bhima and three others, under Sections 302/34, 201 and 511 I.P.C., P.S.-Vrindavan, district-Mathura is set aside to the extent indicated hereinabove. 32. Appellant Than Singh is on bail. He need not surrender. His bail bonds are cancelled and sureties discharged. However, he shall comply with the provisions of Section 437-A Cr. P.C. There shall however, be no order as to costs.