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Allahabad High Court · body

2019 DIGILAW 889 (ALL)

Ranveer v. State of U. P.

2019-04-09

ANIL KUMAR IX, RAM SURAT RAM (MAURYA)

body2019
JUDGMENT : Anil Kumar-IX, J. 1. Heard Sri Mukhtar Alam and Sri Keshari Nath Tripathi, for the appellants, Sri Jitendra Kumar Rawat, holding brief of Sri Vinod Kumar Srivastava, for the informant and Sri I.P. Srivastava, A.G.A. 1st, for State. 2. Ranveer, Parasadi, Nawab and Hari Shankar have filed this appeal from the judgment of VIIIth Additional Session's Judge, Aligarh, dated 29.01.1991, passed in S.T. No. 137 of 1988, State vs. Ranveer and others, [arising out of Case Crime No. 194 of 1987, under Section 307 of Indian Penal Code, 1860 (hereinafter referred to as the 'IPC')], Police Station Akarabad, district Aligarh, convicting the appellants, under Section 302/34 IPC and sentencing imprisonment for life to them. Parasadi (appellant-2) has died during pendency of the appeal and the appeal has been abated for him. 3. On the complaint (Ex-Ka-1) of Rakshpal Singh (PW-1), FIR (Ex-Ka-14) of Case Crime No. 194 of 1987 was registered under Section 307 IPC at P.S. Akrabad, district Aligarh, on 22.12.1987 at 18:55 hours, by Head Moharrir Bhagwan Singh (PW-8), against Ranveer, Parasadi, Nawab sons of Ram Singh and Hari Shankar son of Geetam Singh. It has been stated in the FIR that a dispute in respect of the land was going on between the informant and Ranveer and others. Shishupal son of Sri Than Singh (father's elder brother's son of the informant, in relation of the village) was a witness in his sale deed. On 22.12.1987 at about 5:15 PM, Shishupal was coming to his village from Sikandra Rau. Then in the way, he took one bundle of dry chaff from his field and was coming towards his village from the fields of village Tuamai. In the way, Ranveer Singh son of Ram Singh armed with pistol, Parsadi son of Ram Singh, armed with farsa, Nawab Singh son of Ram Singh, armed with spear and Hari Shankar son of Geetam Singh, armed with farsa met him. They assaulted Shishupal Singh from their respective weapons, in order to kill him, due to which he fell down there. This incident was witnessed by Dariyab Singh son of Sri Ram Prasad, Dan Singh son of Sri Charan Singh. In the meantime, several persons of his village collected there and they had brought Shishupal to the police station in serious condition. Proper action be taken after lodging report. 4. After lodging of FIR, SI Gobardhan Das (PW-9), started investigation. This incident was witnessed by Dariyab Singh son of Sri Ram Prasad, Dan Singh son of Sri Charan Singh. In the meantime, several persons of his village collected there and they had brought Shishupal to the police station in serious condition. Proper action be taken after lodging report. 4. After lodging of FIR, SI Gobardhan Das (PW-9), started investigation. He copied the check FIR and G.D. entry in case diary. He and Constable Vijay Singh allegedly took Shishupal Singh to Primary Health Centre, Akrabad, from where he was referred to the higher centre and was taken to the hospital of J.N. Medical College Aligarh, where Dr. Mohammad Arshad (PW-6) conducted his medical examination on 22.12.1987 at 8:30 PM and prepared Injury Report (Ex-Ka-8), in which following injuries were noted:- (1) Incised wound 4 cm x 2cm x 1 cm over sternum; grievous in nature; caused by sharp weapon.(1) Incised wound 4 cm x 2cm x 1 cm over sternum; grievous in nature; caused by sharp weapon. (2) Incised wound 8 'x 1'' (muscles are visible) inguinal region; grievous in nature; caused by sharp weapon. (3) Incised wound (i) 5'' x 1/4'' palmar aspect of right hand; grievous in nature; caused by sharp weapon (ii) 1'' x 1/8 '' over right thumb grievous in nature; caused by sharp weapon. (4) Incised wound (i) 3'' x 2'' x 1'' in ulnar aspect of right hand; grievous in nature; caused by blunt weapon (ii) 1-1/2'' on dorsal aspect of right hand; grievous in nature; caused by blunt weapon. (5) Incised wound avulsion of left pinna; grievous in nature; caused by blunt weapon. (6) Incised wound 4 cm x 1/8 cm left cheek; grievous in nature; caused by sharp weapon. (7) Lacerated wound 4 cm x 1/8 cm left side of upper neck; grievous in nature; caused by sharp weapon. (8) Incised wound 6'' x 2'' x 1'' right side of upper neck; grievous in nature; caused by sharp weapon. (9) Incised wound 6'' x 1/8'' on right scalp; grievous in nature; caused by sharp weapon. (10) Lacerated wound 4 cm x 1 cm on occipital region; grievous in nature; caused by sharp weapon. (11) Incised wound 5''x 1/2'' on occipital region; grievous in nature; caused by sharp weapon. (12) Lacerated wound and fracture of skull (occipital region). 5. (9) Incised wound 6'' x 1/8'' on right scalp; grievous in nature; caused by sharp weapon. (10) Lacerated wound 4 cm x 1 cm on occipital region; grievous in nature; caused by sharp weapon. (11) Incised wound 5''x 1/2'' on occipital region; grievous in nature; caused by sharp weapon. (12) Lacerated wound and fracture of skull (occipital region). 5. During treatment, Shishupal Singh died on 22.12.1987 at 11:15 PM in the hospital of J.N. Medical College Aligarh. From the hospital, information was sent to the police station Civil Lines, Aligarh, for conducting Inquest of the dead body on 23.12.1987 at 00:45 hours. Then SI Vijay Kumar (PW-4) conducted Inquest (Ex-Ka-2) of the dead body on 23.12.1987 between 10:30 AM to 12:45 PM. He prepared photo lash, challan lash, letters to the authorities (Ex-Ka-3 to Ka-6) for conducting postmortem of the dead body. He dispatched the dead body for postmortem, through Constable Purshottam Gautam and Home-Guard Om Prakash. Dr. V.M. Agnihotri (PW-5) conducted autopsy of the deceased on 23.12.1987 at 3:45 PM and prepared Postmortem Report (Ex-Ka-7), in which following ante-mortem injuries were noted:- (1) Incised wound 11cm x 3.5 cm x 1.5 cm transversely placed on the upper aspect of right side of neck. (2) Incised wound 03 cm x 0.3 cm x 0.3 cm on the upper aspect of right shoulder. (3) Incised wound 7 cm x 01 cm x 0.5 cm on the back of neck in upper part. (4) Multiple incised wounds 26 in numbers, spread all over the scalp, 1.5 cm x 0.3 cm x 0.4 cm to 3 cm x 0.3 cm x 0.4 cm, fracture in the left frontal bone present. (5) Incised wound 04 cm long cutting the upper part of left pinna through and through. (6) Incised wound 04 cm x 0.5 cm x 0.5 cm on the left cheek. (7) Incised wound 11 cm x 02 cm x 0.6 cm transversely placed on the left side of neck. (8) Incised wound 04 cm x 1.5 cm x 0.3 cm on the left side of neck, 02 cm above injury no. (7). (10) Incised wound 05 cm x 1.5 cm x 0.5 cm on the back of left shoulder. (11) Incised would 3.5 cm x 1 cm x 1 cm on the middle of chest. (8) Incised wound 04 cm x 1.5 cm x 0.3 cm on the left side of neck, 02 cm above injury no. (7). (10) Incised wound 05 cm x 1.5 cm x 0.5 cm on the back of left shoulder. (11) Incised would 3.5 cm x 1 cm x 1 cm on the middle of chest. (12) Gun shot wound of entry 03 cm x 1.5 cm x 1.2 cm on the outer aspect of middle of right upper arm, depth directed towards axilla and a bullet-metallic was recovered from right axilla, no tattooing no blackening. (13) Incised wound 07 cm x 2 cm x 2 cm on the lower end of left forearm, ulna bone is cut. (14) Multiple incised wounds 05 in numbers on the back of left hand 1 cm x 0.5 cm x 0.5 cm to 2.5 cm x 0.5 cm x 0.5 cm. (15) Multiple incised wounds 02 in numbers on the left palm 1.5 cm x 0.3 cm x 0.4 cm to 2.5 cm x 0.3 cm x 0.4 cm. (16) Multiple incised wounds 02 in numbers 6 cm x 1 cm x 0.5 cm and 02 cm x 0.5 cm x 0.5 cm on the right palm. (17) Incised wound 7.5 cm x 2.5 cm x 1 cm on the back of upper part of right forearm. (18) Incised wound 14 cm x 3.5 cm x 1.5 cm on the right side of waist. (19) Incised wound 22 cm x 1 cm x 0.5 cm obliquely placed on the right side of back. (20) Multiple incised wounds 05 in numbers 01 cm x 0.5 cm x 0.5 cm to 04 cm x 0.5 cm x 0.5 cm on the upper part of back. (21) Cut open wound 02 cm long transversely placed on the right leg lower end, 1 stitch applied. In internal examination left side of brain was covered with blood; both chambers of heart were empty; both the lungs were pale; stomach contained 02 onz. pasty material; fluid and gas present in small intestine and faeces and gas in present in the large intestine; gall bladder was half full; liver, spleen and both kidneys were pale. According to Doctor cause of death was shock and hemorrhage due to aforesaid injuries. 6. pasty material; fluid and gas present in small intestine and faeces and gas in present in the large intestine; gall bladder was half full; liver, spleen and both kidneys were pale. According to Doctor cause of death was shock and hemorrhage due to aforesaid injuries. 6. SI Goberdhan Das (PW-9) allegedly recorded statements of the informant and the injured Shishupal Singh at the Primary Health Centre Akrabad. He filed a copy of statement of Shishupal Singh as Exhibit-Ka-16. He arrested Hari Shankar on 23.12.1987. On the information of the death of Shishupal Singh, the case was converted under Section 302 IPC, on 23.12.1987 at 8:24 AM. Thereafter, investigation was undertaken by SHO Chandra Pal Singh (PW-7). He inspected the place of occurrence on the pointing out of Dariyab Singh and prepared site-plan (Ex-Ka-9). He took blood stained earth and plain earth from the spot and prepared its recovery memos (Ex-Ka-10 and Ka-11). He prepared recovery memo (Ex-Ka-12) of the bundle of chaff, lying on the spot. On 23.12.1987, he recorded statements of Dariyab Singh and Gyan Singh and others. After completing investigation, he submitted charge sheet (Ex-Ka-13) against the accused, on 13.01.1988, on which cognizance was taken. 7. On committal, the case was registered as S.T. No. 137 of 1988. Additional Sessions Judge framed charge on 14.06.1988, against the accused. The accused pleaded "not guilty" and claimed for trial. In order to prove the charge, the prosecution examined Rakshpal Singh (PW-1), the informant and an eye witness, Gyan Singh (PW-2), an eye witness, Dariyab Singh (PW-3), an eye witness, SI Vijay Kumar (PW-4) to prove Inquest report (Ex-Ka-2), Dr. V.M. Agnihotri (PW-5), to prove postmortem report (Ex-Ka-7), Dr. Mohammad Arshad (PW-6) to prove Injury Report (Ex-Ka-8), SI Chandra Pal Singh (PW-7), second Investigating Officer, HM Bhagwan Singh (PW-8), to prove check FIR and SI Gobardhan Das (PW-9), first Investigating Officer, to prove dying declaration (Ex-Ka-16) of Shishupal. 8. All the incriminatory materials and facts were put to the accused, under Section 313 CrPC. They denied the evidence and materials and claimed false implication due to enmity and party-fraction in the village. Ranveer, Parsadi and Nawab Singh denied that Hari Shankar was their friend. They took plea that Kripal, their brother was abducted and in that case Rakshpal Singh, Rohan Singh son of Gyan Singh and Shishupal Singh were accused. They denied the evidence and materials and claimed false implication due to enmity and party-fraction in the village. Ranveer, Parsadi and Nawab Singh denied that Hari Shankar was their friend. They took plea that Kripal, their brother was abducted and in that case Rakshpal Singh, Rohan Singh son of Gyan Singh and Shishupal Singh were accused. Later on Rakshpal Singh got a sale deed fabricated of the land of Kripal through his impostor. Then Smt. Kamlawati widow of Kripal filed Civil Suit No. 213 of 1986 for cancellation of the sale deed, which was pending. Hari Shankar also stated that a litigation between his father and father of Dariyab Singh (PW-3) was going on. They examined Dr. Mohammad Arshad as (DW-1). They have also filed papers relating to these litigation. 9. Additional Sessions Judge, after hearing the parties, by the impugned judgment held that Shishupal Singh (the deceased) was a witness in the sale deed allegedly executed by Kripal in favour of Rakshpal and Civil Suit No. 213 of 1986 was filed for cancellation of this sale deed as such the accused had motive to commit the offence. SI Gobardhan Das (PW-9) did not obtain certificate from the doctor relating mental and physical fitness of Shishupal before recording his statement as such Ex-Ka-16 cannot be read as the dying declaration of Shishupal Singh. The incident took place on 22.12.1987 at 5:15 PM and on that day sun set was at 5:46 PM. However, the charges were proved from the statements of Rakshpal Singh, Gyan Singh and Dariyab Singh (PWs-1, 2 and 3). On these findings, he convicted the appellants and sentenced as mentioned above. Hence, this appeal has been filed. 10. The counsel for the appellant relied upon the judgments of this Court in Avadh Ram and other Vs. State, 2004 (48) ACC 365 in which it has been held that it is very natural that if the first informant had seen the occurrence, he would state where he himself was when the occurrence took place and how did he see the same; when the presence of eye witness on the spot is doubtful the inconsistency in the ocular and medical evidence acquires importance not to be ignored as a minor contradiction. Supreme Court in State represented by Inspector of Police Vs. Supreme Court in State represented by Inspector of Police Vs. Sait alias Krishna Kumar, 2008 (15) SCC 440 has held that the residual question was the reliability of the evidence. Supreme Court in Mani Ram Vs. State of U.P., 1994 (supp 2) SCC 289 and Kapildeo Mandal and others Vs. State of Bihar, 2008 (16) SCC 99 has held that medical evidence will assume importance while appreciating the evidence led by the prosecution by the Court and will have priority over the ocular version. Supreme Court in Govinda Raju alias Govinda Vs. State, 2012 (4) SCC 722 and this Court in Rafiullah and others Vs. State of U.P., 2016 (6) ADJ 277 have held that the court should also draw adverse inference against the prosecution for not examining the material witnesses. 11. We have considered the arguments of the counsel for the parties and examined the record. The motive of the incident as set up by the prosecution was that Shishupal Singh (the deceased) was a witness in the sale deed allegedly executed by Kripal (brother of Ranveer, Parsadi and Nawab Singh) in favour of Rakshpal Singh. Smt. Kalawati widow of Kripal filed Civil Suit No. 213 of 1986, for cancellation of this sale deed, on the allegation that the sale deed was obtained through an impostor of Kripal, which was pending. For Hari Shankar, it has been stated that he was friend of Ranveer and others. On its basis, the prosecution alleged that Ranveer, Parsadi, Nawab Singh and Hari Shankar had motive to commit murder of Shishupal Singh. But on behalf of the accused, it is stated that Rakshpal Singh (PW-1) has admitted that Rakshpal, Rohan Singh son of Gyan Singh and Shishupal Singh were accused in a case under Section 364 IPC, relating to abduction of Kripal. Later on Rakshpal fabricated sale deed of the land of Kripal. Daryab Singh (PW-3) admitted that Geetam Singh, father of Hari Shankar had filed a case for cancellation of patta granted to him, which was pending. Due to this enmity, they were falsely implicated on suspicion. From evidence on record, enmity between the accused and the witnesses Rakshpal Singh, Gyan Singh and Daryab Singh (PWs-1, 2 and 3) was proved. The enmity is a double edged weapon, which may be a reason for commission of crime and also for false implication. Due to this enmity, they were falsely implicated on suspicion. From evidence on record, enmity between the accused and the witnesses Rakshpal Singh, Gyan Singh and Daryab Singh (PWs-1, 2 and 3) was proved. The enmity is a double edged weapon, which may be a reason for commission of crime and also for false implication. Supreme Court in Anil Rai v. State of Bihar, (2001) 7 SCC 318 , has held that the enmity is a double-edged weapon which can be a motive for the crime and also the ground for false implication of the accused persons. In case of inimical witnesses, the courts are required to scrutinize their testimony with anxious care to find out whether their testimony inspires confidence to be acceptable notwithstanding the existence of enmity. Where enmity is proved to be the motive for the commission of the crime, the accused cannot urge that despite proof of the motive of the crime, the witnesses proved to be inimical should not be relied upon. Bitter animosity, held to be a double-edged weapon, may be instrumental for false involvement or for the witnesses inferring and strongly believing that the crime must have been committed by the accused. Such possibility has to be kept in mind while evaluating the prosecution witnesses regarding the involvement of the accused in the commission of the crime. 12. In this case, Trial Court, relying upon Panchang of that year, has held that the incident had allegedly taken place on 22.12.1987 at 5:15 PM and on that day sun set was at 5:46 PM. Similarly Trial Court has held that SI Gobardhan Das (PW-9) had not obtained certificate from the doctor regarding mental and physical fitness of Shishupal before recording his statement as such Ex-Ka-16 cannot be read as his dying declaration. According to Rakshpal Singh (PW-1) statements of Shishupal Singh was recorded by Gobardhan Das at the police station while according to Gobardhan Das (PW-9) he recorded statements of Shishupal Singh at Primary Health Centre, Akrabad, in presence of SHO Chandra Pal Singh (PW-7). But SHO Chandra Pal Singh (PW-7) has stated that he had not gone to Primary Health Centre, Akrabad on that day. These are material contradictions, which raises doubts in respect of sanctity of recording statement of Shishupal Singh. But SHO Chandra Pal Singh (PW-7) has stated that he had not gone to Primary Health Centre, Akrabad on that day. These are material contradictions, which raises doubts in respect of sanctity of recording statement of Shishupal Singh. As such these findings are based upon materials on the record and are not liable to be set aside by this Court. 13. Constitution Bench of Supreme Court in State of Bihar v. Basawan Singh, AIR 1958 SC 500 , has held that it is thus clear there is no any universal or inflexible Rule of rejection even with regard to the evidence of witnesses who may be called partisan or interested witnesses. It is plain and obvious that no such Rule can be laid down; for the value of the testimony of a witness depends on diverse factors, such as, the character of the witness, to what extent and in what manner he is interested, how he has fared in cross-examination etc. There is no doubt that the testimony of partisan or interested witnesses must be scrutinised with care and there may be cases, where the court will as a matter of prudence look for independent corroboration. It is wrong, however, to deduce from that decision any universal or inflexible Rule that the evidence of the witnesses of the raiding party must be discarded, unless independent corroboration is available. Same view has been taken in Jarnail Singh Vs. State of Haryana, 1993 SCC (Cri) 869 and State of U.P. Vs. Kishan Chand 2004 SCC (Cri) 2013. 14. The counsel for the appellants submitted that Dan Singh son of Charan Singh was shown as a witness in the FIR and was also cited as the witness in the charge sheet but the prosecution has withheld this independent witness as such adverse inference is liable to be raised under Section 114 Illustration (g) of Evidence Act, 1872. According to the prosecution, under some confusion of pronunciation, the name of Gyan Singh has been written as Dan Singh in the FIR and charge sheet, which fact is proved from the parentage of Gyan Singh. Gyan Singh son of Ram Charan was examined as PW-2. As such no advantage of this inadvertent mistake can be given to the accused. In the circumstances the explanation given by the prosecution is convincing. 15. Gyan Singh son of Ram Charan was examined as PW-2. As such no advantage of this inadvertent mistake can be given to the accused. In the circumstances the explanation given by the prosecution is convincing. 15. The counsel for the appellants challenged the presence of Rakshpal Singh, Gyan Singh and Dariyab Singh (PWs-1, 2 and 3) on the spot. He submitted that Shishupal Singh was assaulted by unknown assailants in dark hours at the outskirt of the village Mohanpur. The villagers brought him to the police station, from where, SI Gobardhan Das (PW-9) and Constable Vijay Singh took Shishupal Singh to J.N. Medical College Aligarh, where Dr. Mohammad Arshad (PW-6) examined him on 22.12.1987 at 8:30 PM. Shishupal Singh died on 22.12.1987 at 11:15 PM, there. Lakhan Singh, the brother of Shishupal Singh was posted as the Constable in Delhi Police. Due to his influence, the FIR was registered at 18:55 hours, ante-timing it, preponing the time of incident, as 17:15 hours on 22.12.1987. 12 injuries were noted in Injury Report (Ex-Ka-8), 22 injuries were noted in Inquest (Ex-Ka-2) and 21 injuries were noted in Postmortem Report (Ex-Ka-7). Dr. Mohammad Arshad (PW-6) has categorically stated that on the body of Shishupal, there was no gunshot wound but in Postmortem Report (Ex-Ka-7) Injury No. 12 was shown as gunshot wound and one bullet was also recovered from that wound. The prosecution has failed to explain these discrepancies. The appellants summoned Dr. Mohammad Arshad (PW-6) along with Case Sheet of Shishupal Singh, who was admitted on 22.12.1987 at 8:30 PM and died on 22.12.1987 at 11:15 PM, but he had not produced the case sheet of Shishupal Singh. This material evidence has been withheld. 16. Rakshpal Singh himself wrote the complaint, on which basis, FIR has been lodged. In the FIR, it has been written that "In the way, Ranveer Singh son of Ram Singh armed with pistol, Parsadi son of Ram Singh, armed with farsa, Nawab Singh son of Ram Singh, armed with spear and Hari Shankar son of Geetam Singh, armed with farsa met Shishupal. They assaulted Shishupal Singh from their respective weapons, in order to kill him, due to which he fell down there. They assaulted Shishupal Singh from their respective weapons, in order to kill him, due to which he fell down there. This incident was witnessed by Daryab Singh son of Sri Ram Prasad, Dan Singh son of Sri Charan Singh." In cross-examination, Rakshpal Singh (PW-1) stated that Shishupal was brought from the place of occurrence to the police station by 4-5 persons of the village and he was also accompanying them. Darogaji did not interrogate him at the police station. From police station, Shishupal was brought to PHC Akrabad by darogaji and one police Constable and these police personnels brought Shishupal to Medical College. SHO Chandra Pal Singh (PW-7) inspected the place of occurrence on 23.12.1987 and prepared site-plan (Ex-Ka-9), on the pointing out of Dariyab Singh, in which, presence of Rakshpal Singh (PW-1) has not been noticed although presence of other two witnesses were noticed. Shushupal Singh and Rakshpal Singh both had same degree of enmity with Ranveer, Parsadi and Nawab Singh. If these accused had committed murder of Shishupal Singh for being a witness in the sale deed allegedly executed by Kripal, in favour of Rakshpal Singh, then in all probability, they would have not spared Rakshpal Singh, if he had been there at that time. Place of occurrence was 01 Km. away from abadi of village Mohanpur and the witnesses were empty handed. According to Dariyab Singh (PW-3), he had made noise on which Rakshpal had come after 1-1/2 minutes, from the side of Tuamai. From aforesaid facts, presence of Rakshpal Singh (PW-1) on the place of occurrence is doubtful. 17. Gyan Singh (PW-2) stated that on 22.12.1987 at about 5:00 PM, he was picking up bathuwa from the field of Jagdish. Shishupal was coming towards Ladhuwa, taking a bundle of dry chaff, through med of the field of Gokul and Mohar Singh, then the accused, Ranveer, armed with pistol, Nawab Singh, armed with spear, Parsadi and Hari Shankar armed with farsa, came out from the field of Mohar Singh. The accused told to catch, why he was allowed to go. Saying this, they attacked upon Shishupal Singh through their respective weapons. Shishupal threw the bundle of chaff and fled away towards the village but he could run away upto 15-20 paces, then the accused get him fell down, after assaulting him. Shishupal received several injuries. Ranveer shot upon Shishupal, while falling down and fled away towards south. Saying this, they attacked upon Shishupal Singh through their respective weapons. Shishupal threw the bundle of chaff and fled away towards the village but he could run away upto 15-20 paces, then the accused get him fell down, after assaulting him. Shishupal received several injuries. Ranveer shot upon Shishupal, while falling down and fled away towards south. In cross-examination, he stated that Rohan Singh was his son, who was an accused in a case under Section 364 IPC relating to abduction of Kripal, brother of Ranveer and others. Field of Mohar Singh, in which he was picking up bathuwa was an adjoining field. The accused passed away from a distance of about 200 paces from him. The accused besieged Shishupal at a distance of 150 paces from him. He did not know that the accused had any talk with Shishupal, after coming. He reached on the spot after hearing the shouts and saw the fight. At that time, it did not come in his mind that the accused had an enmity with his son and due to that enmity they might kill him. He stayed at a distance of 20-25 paces. The fight was going on in west and north direction from the place of his stay. There was no tree at that place. There were bushes of patel. Large quantity of blood had fallen there. He came back from police station on foot. His statements were not recorded at the police station. The police station was at a distance of one kos (3 Kms.) from his village. He had told to darogaji that the accused Ranveer caused gunshot injury to Shishupal, while he was fallen. If this fact was not written then he could not give its reason. He cannot say that Ranveer opened fire putting his pistol upon Shishupal or from some distance. The accused Nawab caused spear injuries by piercing it. He cannot say as to how many blow of spear was caused. They remained assaulting through spear and farsa. He was seeing the incident openly and not by hiding. 18. Dariyab Singh (PW-3) stated that on the date of incident at about 5:00 PM, he was easing at usar land, which was adjoining to the field of Gokul and in north from the place of incident and in south from the village. He had heard the shouts of Shishupal. He was seeing the incident openly and not by hiding. 18. Dariyab Singh (PW-3) stated that on the date of incident at about 5:00 PM, he was easing at usar land, which was adjoining to the field of Gokul and in north from the place of incident and in south from the village. He had heard the shouts of Shishupal. Then he stand up at his place and saw from a distance of about 100 paces that the accused, Ranveer, armed with pistol, Hari Shankar and Parsadi armed with farsa, Nawab Singh, armed with spear, were assaulting Shishupal from their respective weapons. The witness Gyan Singh (PW-2) reached at the spot prior to him and Rakshpal (PW-1) came subsequent to him. Shishupal was assaulted in the field of Gokul. Shishupal was fallen down during fight and received injuries. He called the villagers along with a cot. Shishupal was put in the cot and taken to Tuamai on it. From Tuamai, he was boarded in a tempo and brought to the police station Akrabad. From the police station, he was sent to nearing hospital, where after providing first aid, he was immediately sent to medical college. Where he died after some time of his admission. In cross-examination, he stated that darogaji Sri C.P. Singh had recorded his statement. Prempal was son of uncle of Hari Shankar in relation of the village and not real uncle. He was being prosecuted for assaulting Prem Pal. The case Geetam Versus Ram Prasad relating to allotment of land was pending in the Court of ADM (R). On the date of incident, his father was admitted at Gandhi Eye Hospital, from many days prior to the incident and remained admitted many days after the incident. During these periods he was going to hospital daily. He denied that on the date of incident, he was in hospital with his father. When he had heard the shouts, he was washing in the water of pit, which was 1 to 1-1/2 feet deep. He came up to Medical College with the injured and went back in night. On the next day darogaji came for recording his statement at 8:00 to 9:00 AM, when he was ready for going to medical. He did not go to the place of occurrence on that day along with darogaji. Shishupal fell down at 10 to 15 paces away from the place of fight. On the next day darogaji came for recording his statement at 8:00 to 9:00 AM, when he was ready for going to medical. He did not go to the place of occurrence on that day along with darogaji. Shishupal fell down at 10 to 15 paces away from the place of fight. The accused were regularly assaulting him up to that place. Ranveer opened fired from the front of Shishupal. He cannot say that fire was done either from left side or from right side. He had seen Shishupal, first of all, throwing bundle of chaff by the side of med of the fields of Gokul and Mohar. He had made noise on which Rakshpal had come after 1-1/2 minutes, from the side of Tuamai. He, Gyan Singh and Rakshpal lifted Shishupal, at that time he was alive and drenched with the blood. His clothes were also stained with the blood. 19. According to Gyan Singh (PW-2), Shishupal was brought to police station on a cot while according to Daiyab Singh (PW-3), Shishupal was put in the cot and brought to Tuamai on it. From Tuamai, he was boarded in a tempo and brought to the police station Akrabad. According to Gyan Singh (PW-2), Shishupal was chased then he threw the bundle of chaff and ran away and was assaulted at the place where he had fallen down. But according to Dariyab Singh (PW-3) Shishupal was being assaulted from the place where he threw the bundle of chaff. According to Gyan Singh (PW-2), Ranveer caused gunshot injury to Shishupal, while he was fallen. He could not say that Ranveer had opened fire putting his pistol upon Shishupal or from some distance. According to Dariyab Singh (PW-3), Ranveer opened fire from the front of Shishupal. Dariyab Singh (PW-3) stated that on the next day darogaji came for recording his statement at 8:00 to 9:00 AM, when he was ready for going to medical. He did not go to the place of occurrence on that day along with darogaji. While according to SHO Chandra Pal Singh (PW-7) he made spot inspection on the pointing of Dariyab Singh on 23.12.1987. Dariyab Singh (PW-3) admitted that his father was admitted at Gandhi Eye Hospital, from many days prior to the incident and remained admitted many days after the incident. During these periods he was going to hospital daily. While according to SHO Chandra Pal Singh (PW-7) he made spot inspection on the pointing of Dariyab Singh on 23.12.1987. Dariyab Singh (PW-3) admitted that his father was admitted at Gandhi Eye Hospital, from many days prior to the incident and remained admitted many days after the incident. During these periods he was going to hospital daily. Dariyab Singh (PW-3) gave an affidavit (Ex-Kha-1 and Kha-2) in which he had denied of being present at the place of incident. Although in cross-examination, he had stated that this affidavit was filed due to undue pressure of SHO Chandra Pal Singh (PW-7). But no reason has been given as to why Chandra Pal Singh (PW-7) would pressurize for giving an affidavit in favour of the accused, when he had himself supported the prosecution case. From these contradictions, presence of Gyan Singh and Dariyad Singh (PWs-2 and 3) at the place of occurrence, which was at a distance of one Km. from village abadi, is doubtful. These witnesses were inimical, on strict scrutiny, it cannot be said that there was no inconsistency in their statements. 20. In view of the aforesaid discussions, the appeal succeeds and is allowed. The judgment of VIIIth Additional Session's Judge, Aligarh, dated 29.01.1991, passed in S.T. No. 137 of 1988, State vs. Ranveer and others, (arising out of Case Crime No. 194 of 1987, under Section 302 IPC), Police Station Akrabad, district Aligarh, convicting the appellants, under Section 302/34 IPC, is set aside. The appellants are discharged from the charges as levelled against them. Their bail bonds are cancelled and sureties are discharged. Office shall communicate this order to the Court concerned to take consequential action under intimation to this Court. Original records be also returned.