JUDGMENT : B. Amit Sthalekar, J. 1. The present criminal appeal has been filed against the judgment and order of the trial court dated 17.02.2001 passed by the Fourth Additional Sessions Judge, Farrukhabad in S.T. No.235 of 1993 convicting and sentencing the appellants to undergo imprisonment for life under Section 302/34 IPC and to pay a fine of Rs.5,000/- with default stipulation. 2. Briefly stated the facts of the case are that a written report was submitted by the informant-Shiv Singh, resident of village Moodh Ka Nagla, Girau, Police Station-Kayamganj, District Farrukhabad that on 28.11.1992 at about 9.30 pm. he alongwith his son Sumer Singh and his younger brother Mahavir Singh (the deceased) were picking potatoes in their agricultural field and after that they were sitting around a bonfire to warm themselves. Around 9.30 pm. accused Shiv Nath Singh, Mahadev, Beche and Kuber (who has died during trial) came there and asked his brother Mahavir Singh to come with them to trap and hunt birds near the pond. Mahavir accordingly went with the accused persons. Around 10.00 pm. in the night the informant heard sound of firing and also cries of Mahavir Singh for help whereupon the informant and his son Sumer Singh ran towards the pond and in the light of torch, which he was carrying in his hand, he saw that the accused persons had surrounded his brother Mahavir Singh and were assaulting him. On hearing the cries some of the villagers also came rushing to the spot with torches. The accused thereupon ran away towards the West. When the informant and his son reached the spot, they saw the bloodstained body of Mahavir, lying in the field. The informant in his written report (Ex. Ka-1) has stated that the accused Shiv Nath Singh and Mahadev were carrying Tamancha whereas Beche was carrying Takora and Kuber was carrying a lathi. It is also stated in the written report that there was old enmity between the informant and the accused persons with regard to land. The First Information Report could not be written in night because the informant was fearful of his life. The First Information Report was dictated to scribe Ajeet Singh and submitted in the Thana, Kayamganj on 29.11.1992 at 8.30 a.m. On the basis of the written report the police registered a First Information Report on 29.11.1992 (Ex. Ka-3). The First Information Report could not be written in night because the informant was fearful of his life. The First Information Report was dictated to scribe Ajeet Singh and submitted in the Thana, Kayamganj on 29.11.1992 at 8.30 a.m. On the basis of the written report the police registered a First Information Report on 29.11.1992 (Ex. Ka-3). The distance of the Thana from the place of the incident has been mentioned as 9 km. South. 3. Exhibit Ka-2 is the recovery memo dated 11.01.1993 showing the recovery of the torch which was stated to have been in the possession of the informant/P.W. 1 in the light of which he saw the accused persons. 4. Exhibit Ka-12 is the recovery memo of recovery of blood stained earth and plain earth. 5. Post mortem was conducted on 30.11.1992 at 12.30 pm. 4. Exhibit Ka-12 is the recovery memo of recovery of blood stained earth and plain earth. 5. Post mortem was conducted on 30.11.1992 at 12.30 pm. and the report of the injuries is as under: 1- vkÃ MCyw dVk gqvk ?kko 6 lsaeh0 x 1 lsaeh0 x gÏh rd xgjk lj ij nkfguh vksj nkfguh HkkSag ls 2 lsaeh0 Åij FkkA fdukjs lkQ dVs g, FksA ,afxy 'kkiZ FksA 2- vkÃ0 MCyw0 dVk gqvk ?kko 2-5 lsaeh0 x 1 lsaeh0 x gÏh rd xgjk cka;s xky ij FkkA blds fdukjs lkQ dVs Fks o ,afxy 'kkiZ FksA 3- dVk gqvk ?kko 2 lsaeh0 x 0-5 lsaeh0 x gÏh rd xgjk ckbZa HkkSag ds Ckkfjd fdukjs ij FkkA blds fdukjs lkQ dVs gq, FksA ,afxy 'kkiZ FksA 4- ,y0 MCyw0 QVk gqvk ?kko 7 lsaeh0 x 1-5 lsaeh0 x gÏh rd xgjk lj ij ckÃa vksj ck;s dku ls 2 lsaeh0 Åij rdA 5- ,y0 MCyw0 QVk gqvk ?kko 5 lsaeh0 x 1-5 lsaeh0 x dkfVZyst rd xgjk nkfgus dku ds lkeus dh vksj FkkA 6- QVk gqvk ?kko 1-5 lsaeh0 x 1 lsaeh0 lj ij ihNs dh vksj FkkA 7- [kjkl ds lkFk uhyxq fu'kku 4 lsaeh0 x 2 lsaeh0 ck;s da/ks ds ihNs dh vksjA 8- uhyxw fu'kku 9 lsaeh0 x 6 lsaeh0 ck;s gFksyh ds ihNs dh vksjA 9- QVk gqvk ?kko 1-5 lsaeh0 x 0-5 lsaeh0 x gÏh rd xgjk nkfguh vxyh Hkwtk ds Ckhp ds fgLls ij ihNs Hkhrj dh vksj FkkA 10- [kjkl ds lkFk uhyxw fu'kku 2-5 lsaeh0 x 1-5 lsaeh0 xnZu ij ckÃ ,oa ihNs dh vksj fupys fgLls ijA 11- QVk gqvk ?kko 1 lsaeh0 x 0-5 lsaeh0 x eklis'kh rd xgjk nkfgus vaxwBs ij gFksyh dh rjQ FkkA 12- [kjkl ds lkFk uhyxw fu'kku 3 lsaeh0 x 1 lsaeh0 nkfgus gkFk dh fjax fQaxj ds ihNs csl ds ikl esa FkkA 13- [kjkl 1 x 0-5 lsaeh0 nkfgus dksguh ds ihNs dh vksj FkkA vkUrfjd ijh{k.k % lj dh ÝaVy ckÃ vksj dh Viksjy vkDlhfiVy ,oa fefMy Qkslk esa ÝsDpj ik;k x;kA efLr"d ,oa mldh f>Yyh QVh gqÃ FkhA 'ks"k vax lkekU; ik;s x;sA esjh jk; esa e`rd dh e`R;w lnek ,oa jDrlzko ds dkj.k gqÃ Fkh ftudk dkj.k e`R;w ls iwoZ vk;h pksVsa FkhA 6. The doctor in his report has stated the cause of death as shock due to excessive bleeding caused by ante mortem injuries. 7. The doctor in his report has stated the cause of death as shock due to excessive bleeding caused by ante mortem injuries. 7. The investigation was carried out by P.W.6, Investigating Officer Dalmor Singh, who has since retired but at the time of incident was posted as Senior Sub Inspector. The Investigating Officer has stated that a First Information Report was lodged on 29.11.1992 on the basis of which a Case Crime No.466 of 1992, under Section 302 IPC was registered and investigation was entrusted to him. The Investigating Officer has stated that he recorded the statement of the informant and the Panchayatnama of the body was carried out and thereafter the body was sent for post mortem. The Investigating Officer has proved the recovery memo (Ex. Ka-12). He has also proved spot map Ex.Ka-11 and map of the field of informant, Ex. Ka-13 as well as recovery of torch Ex. Ka-2 and thereafter he filed the charge-sheet, Ex. Ka.14. The Investigating Officer, P.W.6 has also stated that he prepared the Panchayatnama in his own handwriting which has also been proved. The P.W.6 has also stated that when the informant came to the Thana there was nobody else with him. Thereafter the Investigating Officer left for the site at 9.00 am. but the informant did not go with him. The Investigating Officer reached the spot at about 11.00 am. He has stated that the distance from Police Station to the place of the incident is about 12 km. When he reached the spot the informant was present there and on his pointing out he has inspected the site and prepared the site map. The Investigating Officer has stated that the potato field of the informant is about half furlong from the site where the incident occurred although entry with regard to that effect has not been made in the site plan. From the site where the body was recovered the pond is towards the North though the distance has not been mentioned in the site plan and even the pond has not been shown in the site plan. The investigating officer has also stated that at the spot no net for trapping birds was recovered. The P.W.6 has stated that he did not even go upto the pond. The investigating officer has also stated that at the spot no net for trapping birds was recovered. The P.W.6 has stated that he did not even go upto the pond. He has also stated that on 11.01.1993 he went to the village for the last time and on the very same day he filed the charge-sheet. He has also stated that at the place of incident no empty cartridges or pellets were recovered. 8. In his cross-examination the P.W.6 has also stated that when he reached the spot the body of the deceased was lying in the field. There were injuries on the body of the deceased. The informant had disclosed to him that Shiv Nath Singh and Mahadev Singh were carrying Tamancha in their hands, the accused Beche was carrying Takora whereas the accused Kuber was carrying a Lathi. The Investigating Officer has also stated that during investigation he tired to make recoveries of the alleged weapons used in the murder of the deceased but no weapon could be recovered but a lathi as alleged to be used by Kuber Singh has been recovered. 9. P.W.1, the informant Shiv Singh in his testimony has stated that the deceased Mahavir was his younger brother and on the date of the incident in the night the informant alongwith his son Sumer Singh and younger brother Mahavir Singh had gone to their potato field to collect potatoes and after that they were sitting around a bonfire to warm themselves. Around 9.30 pm. accused Shiv Nath Singh, Mahadev Singh carrying Tamancha, Beche Singh carrying Takora and Kuber Singh carrying a Lathi came there and asked Mahavir to come with them to the pond to trap and hunt birds. Mahavir went with the accused persons. At about 10.00 pm. they heard the sound of firing and at the same time they heard the cries of Mahavir Singh. The informant and his son rushed to the pond carrying the torch. When they reached the field of Roop Ram they saw that the accused Shiv Nath Singh, Mahadev Singh, Beche and Kuber Singh had surrounded Mahavir and were assaulting him with Takora and Lathi. On hearing their cries some villagers came there with torch whereupon the accused persons ran towards the West. When the informant saw his brother he was lying dead in a pool of blood in the field of Roop Ram. On hearing their cries some villagers came there with torch whereupon the accused persons ran towards the West. When the informant saw his brother he was lying dead in a pool of blood in the field of Roop Ram. The witness further stated that there was old enmity between the accused persons and him with regard to land. He has also stated that the written report about the incident was got scribed on dictation through Ajeet Singh, resident of village Pithaura which was then read out to him and thereafter the informant put his thumb impression in the report which is Ex. Ka-1. The informant further stated that he went to the Police Station-Kayamganj about 8.30 am in the morning and submitted it there. He did not go in the night to lodge the FIR since he was scared for his life. He had shown the torch to the Sub Inspector and he has also verified the recovery memo of the torch Ex. Ka-2. 10. In the cross-examination the P.W.1 stated that on the night of the incident there was still some light but later on he stated that it was dark but the light was beginning to show. His potato field is about 500-600 meters from the village and the pond where the accused had taken his brother for trapping and hunting birds is stated to be North of the village at a distance of about one furlong. P.W.1 also stated that he had not seen any net with the accused persons for trapping birds but he had seen that they were carrying Tamancha in their hands. He did not try to stop his brother from going with the accused persons since from his side he has not maintained any enmity towards the accused persons though they maintained enmity towards him. The cause of enmity was about eight years prior to the incident. He also stated that his brother, i.e. the deceased, never used to go for bird trapping and on the day of the incident also he did not sent his brother with the accused persons but instead the accused persons took away his brother forcibly. He has also stated that within 15 minutes of the accused persons taking away his brother he heard a single sound of fire and his brother's screaming. He has also stated that within 15 minutes of the accused persons taking away his brother he heard a single sound of fire and his brother's screaming. When the P.W.1 alongwith his son reached the spot he saw Mahavir lying dead in the middle of the field. Later he stated that he saw the accused persons assaulting his brother Mahavir and Mahavir was having convulsion and in great pain. 11. The P.W.1, informant further stated that at his cousin brother Dev Singh's house there was dacoity in which he and his brother Mahavir Singh were named and that very day there was dacoity in his house also. The informant has lodged a named report about this dacoity against four or five persons. On the day when Mahavir was murdered the case relating to dacoity was still pending. The P.W.1 also stated that in the police station Kayamganj a case under Section 25 Arms Act was registered against the deceased Mahavir Singh. He also stated that there was no dacoity but rather there was a theft in which the informant's cousin (Mausera Bhai) had got Mahavir arrested due to previous enmity. At the time when the accused persons were actually assaulting Mahavir they were about 10-12 steps away from the informant and his son. P.W.1 also stated that Ajeet Singh the scribe is a resident of Village Pithaura Thana, Kayamganj and had come to the place of incident at about 6-6.30 in the morning. Some persons from village Girau had also come there. The persons from his own village did not write down the written report as they were illiterate and because Ajeet Singh had stated that he could read and write, therefore the informant dictated the incident to him which was taken down by him in his handwriting. The P.W.1 has also stated that alongwith him one Jawahar Singh and Shiv Singh of the village had gone to the Thana but later he stated that other than him there was no other Shiv Singh. The Investigating Officer came to the village for conducting investigation at about 10.00 am. next day. The witness further stated that he saw the accused persons in the light of the torch and the natural light which was present at the time as the moon has risen at that time. 12. The Investigating Officer came to the village for conducting investigation at about 10.00 am. next day. The witness further stated that he saw the accused persons in the light of the torch and the natural light which was present at the time as the moon has risen at that time. 12. At one place the P.W.1 has stated that the agricultural field of Roop Ram is after his own field. Then he stated that the pond is adjacent to the field of Roop Ram. He has also stated that he had heard the sound of only one shot being fired from Tamancha but he could not see who had fired the shot. He also stated that there was enmity between him and the accused persons with regard to dispute relating to land in the sense that the informant had taken lease of government land but the accused persons had taken forcible possession of half portion of that land but he also stated that with regard to this dispute he had never complained to any authority nor any court case was pending in this regard. 13. In his statement recorded on 14.9.1995 the P.W.2, Sumer Singh, son of P.W.1 has disclosed his age as 15 years which means that in 1992 when the incident occurred he would be about 12 years of age. This witness has stated that the incident had occurred in the night when he alongwith his father and uncle Mahavir had gone to the field for picking potatoes and after that they were sitting near a bonfire to warm themselves. At about 9.30 pm the accused Shiv Nath Singh, Mahadev Singh carrying Tamancha, Beche Singh carrying Takora and Kuber Singh carrying a Lathi came there and asked Mahavir to come with them to the pond for trapping and hunting birds upon which his uncle Mahavir went with the accused persons. At about 10.00 pm. he heard the sound of firing and his uncle Mahavir Singh screaming. He alongwith his father ran towards the field of Roop Ram carrying a torch and in the light of the torch he saw the accused Shiv Nath Singh, Mahadev Singh carrying Tamancha, Beche carrying Takora and Kuber Singh carrying a lathi assaulting his uncle. His uncle had received injuries. He alongwith his father ran towards the field of Roop Ram carrying a torch and in the light of the torch he saw the accused Shiv Nath Singh, Mahadev Singh carrying Tamancha, Beche carrying Takora and Kuber Singh carrying a lathi assaulting his uncle. His uncle had received injuries. On hearing the cries some villagers also came to the spot with torch upon which the accused persons left Mahavir and ran towards the West. When he saw his uncle Mahavir, was lying dead in a pool of blood in the field of Roop Ram. 14. In the cross-examination, the P.W.2 has stated that to the East of the pond is the village Girau and nobody from that village came there upon hearing of the cries. The village Badagaon is to the North of the pond and from there also nobody came to the site hearing the shouts. His statement was recorded on the next day after the incident. The accused persons had come to their village from the West side. Further this witness has stated that the field of Roop Ram is about one furlong to the North of his own field. He then stated that when he reached the place of the incident Vikram, Kalicharan of village Badagaon had already reached there and were carrying torches in their hands. The witness also stated that no net for catching or trapping birds was found near the pond. His uncle had not trapped any birds. He also stated that in front of him his uncle was inflicted 5-6 blows of Takora and 4-5 blows of lathi but none of the accused had fired at his uncle Mahavir. P.W.2 does not know whether any bullet injuries were received on the body of the deceased but he stated that at the site one cartridge was found but he does not know whether it was empty or live. He also stated that seeing the assault he and his father raised shouts but the accused persons did not fire at them although they were 10-12 steps away from the place of the incident. 15. P.W.3 is Head Constable, Lajvir Singh. This witness has stated that on 29.11.1992 i.e. the date of the incident he was posted at Police Station Kayamganj. At about 8.30 am in the morning the informant Shiv Singh came to the Thana and submitted his written report Ex. 15. P.W.3 is Head Constable, Lajvir Singh. This witness has stated that on 29.11.1992 i.e. the date of the incident he was posted at Police Station Kayamganj. At about 8.30 am in the morning the informant Shiv Singh came to the Thana and submitted his written report Ex. Ka-1, on the basis of which the witness registered a Chik Report No.311 in his handwriting and signature. The witness has identified the Chik Report Ex.Ka-3. He has also stated that he made entries in the G.D. Ex.Ka-4. In his cross-examination the P.W.3 has stated that the Investigating Officer had gone to the site for investigation in the official jeep. 16. P.W.4 is the Sub-Inspector Mahadev Singh, who has conducted the inquest. This witness has stated that on 29.11.1992 he was posted at Thana Kayamganj as Sub-Inspector and on receiving information about the incident he went to the place of incident alongwith Senior Sub Inspector Dalmor Singh and under his supervision he carried out the Panchayatnama of the deceased and prepared the report, Ext. Ka-5, which he proved and which is in his handwriting and signature and which also bares the handwriting and signature of Dalmor Singh. He however stated that thereafter he issued the letter for C.M.O., letter for R.I., Photographs of the dead body and Challan of the dead body was prepared in his handwriting and signature which was Ex.Ka-6 to Ex. Ka-9. Thereafter the body was sealed and alongwith the Panchayatnama and other papers the body was sent for post mortem at 12.30 pm on 29.11.1992. 17. In the cross-examination this witness has stated that the dead body was recovered from the field of Roop Ram. 18. P.W. 5 is Dr. S.K. Srivastava, Sr. ENT Specialist District Hospital, Faizabad who conducted the post mortem of the deceased Mahaveer, Ext. Ka10 and has proved the same. The ante mortem injuries found by him on the person of the deceased have already been noted above. 19. In his testimony the doctor has stated that the death has occurred one and half days earlier. He has also stated that cause of death is shock and excessive bleeding due to ante mortem injuries. On the basis of the injuries he has also opined that there is frontal left side comporal and occipital and middle fossa fractured. The brain and membrane were torn. He has also stated that cause of death is shock and excessive bleeding due to ante mortem injuries. On the basis of the injuries he has also opined that there is frontal left side comporal and occipital and middle fossa fractured. The brain and membrane were torn. The doctor has also opined that it is possible that the death could have been caused on the night of 28.11.1992 at about 10 p.m. He has also opined that the injuries could have been caused by blunt and sharp edged weapon such as Lathi and Takora and that these injuries were sufficient to cause death of the deceased. The incised wound caused to the deceased are possible to have been caused by a sharp edged weapon which may be a Gandasa or knife. He has also opined that these injuries could have been caused either when the deceased was in a standing position or had fallen on the ground. 20. P.W. 6 is the investigating officer of the case and after completion of the investigation he has submitted charge sheet against the accused persons. His testimony has already been noted above. 21. The accused Shiv Nath in his statement recorded under section 313 Cr.P.C. when asked whether he alongwith others had come to the field on 28.11.1992 at about 9.30 p.m. and taken Mahaveer to the Talab with them on the pretext of trapping birds and thereafter on hearing the sound of fire arm when the informant and his son Sumer Singh reached near the Talab shouting, they saw in the light of the torches that he and others had surrounded the deceased Mahavirr and were assaulting him and when the informant and his son reached at the spot, he alongwith others ran away, he denied the allegations. Again when he was asked whether he and Mahadeo were carrying Tamancha, Bechchey was carrying a Takora and Kuber was carrying a Lathi with which they have killed Mahavir, he denied the allegations. When he was asked whether there was enmity with the deceased and the informant's family with regard to a land in dispute the accused denied the allegations. He also stated that they have been implicated in this case due to Partibandi. 22. The accused Mahadeo was put identical questions which he has denied in his statement under section 313 Cr.P.C. 23. He also stated that they have been implicated in this case due to Partibandi. 22. The accused Mahadeo was put identical questions which he has denied in his statement under section 313 Cr.P.C. 23. D.W. 1 is one Vikram Singh who appeared on behalf of the defence and stated that Mahavir belonged to his village and was murdered and his dead body was found near the Talab. Persons from Barabiku village had come to his village and informed that Mahavir's dead body was lying near the pond and that some people had murdered him. Hearing this information family members of the deceased Mahavir alongwith Kuber Singh, brother Shiv Singh (i.e. the accused) reached the place of incidence and the accused persons had also gone there. He also stated that at the time of incidence Sumer Singh was aged about 8 – 9 years. In the morning Shiv Singh, brother of the deceased Mahavir had gone to the police station and had returned from there at about 12 p.m. and alongwith him police had also come in the village. The Daroga dictated some report to one Ajeet upon which Shiv Singh put his thumb impression. The spot where the dead body of Mahavir was found was about 1 km. from the village. The witness also stated that deceased Mahavir was a person of bad character and that there were several reports against him in the police station. The witness also stated that Mahavir had committed dacoity in the house of his cousin, son of his Tau, and Shiv Singh informant was also involved with him. He had also committed a dacoity in the house of one Veer Sahai and in the house of his real maternal aunt. The deceased Mahavir had also thrashed his wife with Lathi and thrown her out of the matrimonial house. This witness also stated that no one had seen the murder of Mahavir is being committed. In cross-examination the witness also stated that he had no enmity with the deceased Mahavir. He was also not aware as to whether Mahavir was convicted of any offence. There is no enmity with regard to land between the informant Shiv Singh and the accused nor had any quarrel ensued between them. 24. In cross-examination the witness also stated that he had no enmity with the deceased Mahavir. He was also not aware as to whether Mahavir was convicted of any offence. There is no enmity with regard to land between the informant Shiv Singh and the accused nor had any quarrel ensued between them. 24. D.W. 2 is one Kuber Singh who has stated that deceased Mahavir belonged to his village and was murdered about 8 years earlier and his dead body was found near the Talab of Biku. The information regarding the dead body was given to him by the persons from Barabiku village after which he alongwith some other persons of the village had rushed to the spot. Mahavir's brother Shiv Singh alongwith his mother and Vikram had also gone there. Shiv Singh had gone to the police station and lodged the report and returned from there at about 11 a.m. alongwith police. The deceased Mahavir was a person of bad character and had consulted in the murder of one Ram Chander. He had also committed Dacoity in the house of one Deo Singh who was the son of his real uncle, Tau. There was some incident in the house of the maternal uncle of Mahavir deceased in which the name of the deceased had cropped up. The witness also deposed that Sumer Singh, P.W. 2 was aged about 7 – 8 years at the time of the incident. He deposed that the Talab (Pond) from where the dead body of Mahavir was found, was at a distance of about 1 km. from the village and some papers were prepared in the presence of the Daroga on the dictation by Shiv Singh and Darogaji was present in the village till 3.00 p.m. The witness received information about the murder of Mahavir at about 7.30 a.m. i.e in the morning and thereafter he went to the place of incidence at about 8.00 a.m. alongwith D.W. 1 Vikram Singh. The dead body was sealed in his presence. This witness has deposed that it is wrong to say that he is giving his evidence because there was enmity between him and Mahavir and Shiv Singh. 25. D.W. 3 is Ramprakash Pandey, Lekhpal, Jirau Pargana Shamshabad Tehsil Kayamganj District Farrukhabad and has deposed that in Nagla Mundh Plot No. 111 belongs to Shiv Singh and there is no pond near this field. 25. D.W. 3 is Ramprakash Pandey, Lekhpal, Jirau Pargana Shamshabad Tehsil Kayamganj District Farrukhabad and has deposed that in Nagla Mundh Plot No. 111 belongs to Shiv Singh and there is no pond near this field. Plot No. 16 and 17 belong to Kuber Singh and others and to the north of the same is a Talab which is in village Berabiku. The Distance between plot no. 111 and plot no. 16nand 17 is about 600 mts. and if one went by the chak road the distance is about 910 mts. This witness has also brought the Khatauni and the map of the village showing the plots which were filed as Ext. Kha-1 to Kha-4. The plot no. 19 belongs to Roopram in village Mundh which is adjacent to south and to the south of plot no. 16 and 17 and is about 510 mts. from plot no. 111 and if one went by the chak road this distance is about 820 mts. This witness further stated that he had gone to the village concerned on 28.11.2000 i.e. two days prior to the recording of this testimony on the instruction of one Advocate Ram Pal Singh to take measurement of the distance between plot of Shiv Singh and the place where the dead body was found and at that time alongwith him one Ramakant Lekhpal of village Chilauli was also present. This witness further stated that he is Lekhpal of Jirau and where the border of his village ends the boundaries of the Talab commences. The distance between the filed of Shiv Singh, Plot No. 111 and the Talab is about 2 – 982 furlongs and via chak road it is 4 – 522 furlongs. 26. On the basis of the evidence brought on record by the prosecution as well as the evidences of defence witnesses, the trial court has convicted and sentenced the appellants, as aforesaid. Hence this appeal. 27. Heard Sri Dharam Pal Singh, learned Senior Counsel assisted by Sri Amar Singh for the appellants and Sri M.C. Joshi, learned AGA for the State and perused the documents on record. 28. Hence this appeal. 27. Heard Sri Dharam Pal Singh, learned Senior Counsel assisted by Sri Amar Singh for the appellants and Sri M.C. Joshi, learned AGA for the State and perused the documents on record. 28. The submission of Shri Dharam Pal Singh, learned senior counsel for the appellants is that Ajeet who is alleged to be the scribe of the written report was not examined by the prosecution as witness and therefore, the written report cannot be relied upon as it has not been proved by its scribe. In our opinion the mere fact that the scribe of the written report was not produced as witness to prove the report would not vitiate the trial for the reason that it is on the basis of the written report which was submitted on 29.11.1992 at about 8.30 a.m. that the F.I.R. was registered and on the basis of the F.I.R. the SSI Dalmor Singh, who is the IO of the case, went to the spot at about 11 a.m. and commenced the investigation. The inquest was held on the same day i.e. 29.11.1992 at about 11 a.m. and completed at about 12.30 p.m. and thereafter the dead body was sealed and after completing all the formalities it was sent for post mortem examination. We may also note here that the informant Shiv Singh who submitted the written report in his testimony has proved the written report Ext. Ka-1 and has stated that it bears his thumb impression and therefore when the author of the written report has himself proved the same, we have no reason to doubt the validity of the same. The investigating officer Dalmor Singh has also in his testimony has stated that F.I.R. was registered on the basis of the report submitted by Shiv Singh, the informant, in his presence on 29.11.1992 as he was on duty at that time on the post of SSI in P.S. Kayamganj. Therefore, we have no reason to doubt the authenticity of the written report. Head Constable Lajveer Singh, P.W. 3 who was posted in police station Kayamganj on 29.11.1992 has also proved that Shiv Singh, the informant had come to the police station at about 8.20 a.m. with the written report Ext. Ka-1 and submitted the same on the basis of which he had registered the F.I.R. being Case Crime No. 311 of 1992 in his handwriting and signature. Ka-1 and submitted the same on the basis of which he had registered the F.I.R. being Case Crime No. 311 of 1992 in his handwriting and signature. P.W. 3 has also proved the written report Ext. Ka-1 as well as the F.I.R. Ext. Ka-3. Thus we have no reason to doubt the veracity of the written report which has been proved by the prosecution witnesses. 29. Learned senior counsel next submitted that in the injury report there is no mention of any gun shot injury and therefore, the witnesses Shiv Singh P.W. 1 and Sumer Singh, P.W. 2 are not reliable witnesses when they stated that they had heard the sound of fire arm and therefore their testimonies that the accused Shiv Nath and Mahadeo were carrying a Tamancha is a false statement. We may refer to the statement of Dr. S.K. Srivastava, Sr. ENT Specialist District Hospital, Faizabad who has proved the post mortem report and has also made a note of the injuries found on the person of the deceased and also noted that death was caused due to the injuries received by the deceased. No doubt there is no mention of any fire arm injury on the person of the deceased in the post mortem report or even in the testimony of the doctor, P.W. 5 but the undisputed fact is that there were 13 injuries on the body of the deceased some of which were cut injuries or lacerated wound and P.W. 5 doctor has opined that the injuries could have been caused by Lathi and by a sharp edged weapon such as Takora. 30. Learned senior counsel next submitted that the doctor has stated that on post mortem examination it was found that the stomach of the deceased was found empty which is not possible if he was murdered at 10 p.m. when he would have had his dinner. 30. Learned senior counsel next submitted that the doctor has stated that on post mortem examination it was found that the stomach of the deceased was found empty which is not possible if he was murdered at 10 p.m. when he would have had his dinner. In our opinion the mere fact that in the post mortem examination the doctor has opined that the stomach of the deceased was empty is quite possible since neither of the prosecution witnesses have stated that they had gone to the field about 9.30 p.m. in the night after having their dinner nor was any such question put to them as to whether Mahavir deceased, had taken dinner before coming to the field or whether P.W. 1 and 2 had taken his dinner to the field itself before the incident occurred. When no question has been put to the witnesses in this regard, it cannot be assumed that the deceased must have had his dinner when the incident occurred. 31. Learned senior counsel next submitted that motive has not been established and that the accused persons in their statements recorded under section 313 Cr.P.C. had clearly stated that there was no enmity between them and the deceased or the family of the informant and therefore the testimony of P.W. 1 and 2 on this point is absolutely misconceived and concocted. We may refer to the testimony of P.W. 1 in which he has stated that there was prior enmity between his family and the accused persons with regard to land. As per P.W. 1 the land was taken by him from the government on lease but on half portion of the said land the accused persons has forcibly taken possession. At the same time the P.W. 1 stated that in this regard he had not taken any action nor reported the matter to any officer. He also does not say that he had approached any court for release of the half portion of the land which he alleges to have been in the illegal occupation of the accused. At the same time the P.W. 1 stated that in this regard he had not taken any action nor reported the matter to any officer. He also does not say that he had approached any court for release of the half portion of the land which he alleges to have been in the illegal occupation of the accused. Neither any plot number, chak number or khasra number of the disputed land has been disclosed in the testimony of P.W. 1 nor has the lease been placed on record nor has any government authority or any revenue or other authority been produced and examined by the prosecution on this question to show as to whether any lease of the government land has been taken by the informant Shiv Singh. Likewise there is nothing on record to show that the accused persons had allegedly taken forcible possession of half of this land and this would also be clear from the fact that P.W. 1 on his own statement never approached any authority with a complaint in this regard or any court for release of the said land allegedly occupied by the accused persons. In the circumstances we find that the prosecution has miserably failed to prove motive and the nature of enmity or otherwise between the members of the prosecution party and the accused persons. P.W. 2 in his deposition has only stated that there was some dispute between his family and the accused persons but here again the land in question has not been identified and neither any plot number, chak number or revenue record have been produced to show as to which is this land, half of which is alleged to be illegally occupied by the accused persons. The D.W. 1 Vikram Singh in his deposition has stated that there is no dispute with regard to the land between the informant Shiv Singh and the accused appellant. Under the circumstances it was imperative upon the prosecution to have established motive on the part of the accused persons to launch the assault upon the deceased Mahaveer. 32. P.W. 1 in his testimony has stated that the enmity was about 8 years old and that though he did not bear any enmity between the accused persons but the accused bore enmity towards him and the deceased. 32. P.W. 1 in his testimony has stated that the enmity was about 8 years old and that though he did not bear any enmity between the accused persons but the accused bore enmity towards him and the deceased. In our opinion the enmity the cause of which is about 8 years in the past and in the last 8 years there has been no incidence to even remotely suggest that the accused continued to bear a grudge and enmity against the informant and the deceased, we are not inclined to accept the case of the prosecution that there was a dispute with regard to the land which was the motive for the accused to execute a murderous assault on the prosecution party resulting in the death of Mahavir. The prosecution has not been able to establish that in furtherance of an enmity which may have been 8 years old, there was some act or conduct between the informant and the deceased on one hand, and the accused appellants on the other which was the immediate cause for triggering the assault by the accused persons against the deceased Mahaveer. Though the D.W. 3 Lekhpal Ram Prakash Pandey has in his testimony stated that the plot of Shiv Singh informant is Gata no. 111 but as we have already observed there is nothing on record to show as to whether this is the only plot of the informant which is stated to have been taken by him on lease from the government and half of which has been illegally occupied by the accused. No question has been put by the prosecution to D.W. 3, Lekhpal in this regard as to whether half of the plot Gata No. 111 was in the illegal occupation of the accused appellants. 33. We are therefore of the confirmed view that the prosecution has completely failed to establish motive on the part of the accused persons to execute the crime in the present case. 34. Shri Dharam Pal Singh, learned senior counsel further submitted that the P.W. 1 in his testimony has stated that the deceased, brother of the informant had never previously gone for hunting and trapping birds, therefore, it does not stand to reason that on the fateful night he would allegedly go with the accused persons for hunting and trapping birds. 34. Shri Dharam Pal Singh, learned senior counsel further submitted that the P.W. 1 in his testimony has stated that the deceased, brother of the informant had never previously gone for hunting and trapping birds, therefore, it does not stand to reason that on the fateful night he would allegedly go with the accused persons for hunting and trapping birds. Moreso, as per the testimony of P.W. 1 when the accused came to call Mahavir at 9.30 p.m. in the night, accused Shiv Nath and Mahadeo were armed with Tamancha, accused Bechey Lal was armed with Takora and accused Kuber Singh was armed with Lathi. Learned senior counsel further submitted that it has nowhere come in the testimony of P.W. 1 and 2 that the accused persons were carrying a net or any such other material which may be used in the hunting and trapping of the birds nor was any such net or otherwise was recovered from the accused appellants and that birds cannot be hunted or trapped at night with the Tamancha or Takora or Lathi. 35. The submission of the learned senior counsel has considerable force. P.W. 1 has stated that the accused came to the field at about 9.30 p.m. in the night when he alongwith his son Sumer Singh P.W. 2 and his brother deceased Mahavir were cleaning potatoes in the field at 9.30 p.m. and at that time accused Shiv Nath and Mahadeo appellants were armed with Tamancha and accused Bechey Lal was armed with a Takora (a sharp edged weapon) and accused Kuber Singh (who has died during trial) was armed with Lathi. In such circumstances it does not stand to reason that a man of ordinary prudence would go with the accused persons in the night for hunting and trapping birds for the first time. Moreso, when according to P.W. 1 there is enmity between his family and the deceased it would be surprising that even after seeing the accused persons armed as they were, the informant did not remonstrate with his brother deceased Mahavir not to go with the accused. It is equally and highly improbable that if the accused persons had pressed Mahavir in so many words to accompany them, P.W. 1 and 2 would not have accompanied Mahavir doubting the honest intention of the accused persons. 36. It is equally and highly improbable that if the accused persons had pressed Mahavir in so many words to accompany them, P.W. 1 and 2 would not have accompanied Mahavir doubting the honest intention of the accused persons. 36. We are equally astonished, that on one hand the P.W. 1 and P.W. 2 have stated that the accused persons came to their field where they were sitting around bonfire and armed, as they were, pressed Mahavir to accompany them for hunting and trapping birds at night time but they had no material with them such as a net or otherwise with which they could have trapped birds. We find it absolutely impossible to accept that if the accused were already armed with Tamancha and Takora and Lathi when they approached P.W 1 and P.W. 2 and the deceased Mahavir that they would be trapping birds with Lathi, Takora and Tamancha. We, therefore, find the entire story as set up by P.W. 1 the informant and supported by P.W. 2 to be beyond the pale of acceptability. 37. Shri Dharam Pal Singh, learned senior counsel also submitted that both the witnesses P.W. 1 and P.W. 2 have stated that they heard the sound of a fire arm and thereafter the cries of the deceased Mahavir and rushed to the spot but no cartridges, empty or otherwise were found at the spot and therefore the testimony of P.W. 1 and P.W. 2 is false and unreliable. 38. The injuries caused to the deceased, as noted by the doctor P.W. 5 who conducted the postmortem examination of the deceased, only mentions abrasion, incised and lacerated wounds and there is no mention of any injury being caused by fire arm. The learned A.G.A. submitted that Tamancha may have been fired in the air to scare away any person approaching them but this would be highly improbable for the reason that a person wanting to commit murder in the darkness of the night would not fire a Tamancha in the air, the sound of which would only serve to attract any person or persons who may hear the sound and come rushing to the spot particularly when the Tamancha has not been used in the execution of the murder of the deceased. There is no recovery of any cartridge or pellet from the place of incidence and there is no recovery memo of any such cartridge or pellet alleged to be recovered from the spot. We, are therefore, not convinced with the story line set up by the prosecution that P.W. 1 and P.W. 2 had heard the sound of fire arm. 39. The learned Senior counsel next submitted that in the testimony of the prosecution witnesses it has been stated that the pond (talab) was adjacent to the field of Roop Ram but in the Site Plan no such pond has been shown, therefore the entire story of the prosecution that the deceased was taken by the accused persons towards the pond is a false and concocted story. No doubt, the Site Plan Ext.Ka.11 does not mention the presence of the pond but this can be only attributed to the ineptitude and negligence of the Investigating Officer conducting the investigation but we may hasten to add that merely because in the Site Plan the pond has not been shown at all, it would not vitiate the trial. We may note that P.W.-1 in his evidence has stated that Talab was towards the north of the village. P.W.-2 Sumer Singh has stated that between the Talab and field of Roop Ram there is field of Kuber which is about 4-5 bighas in area. D.W-3 Ram Prakash Pandey, who is the Lekhpal of Village Jirau, Tehsil Kayamganj has stated that the Talab does not fall within his area and falls outside his jurisdiction. He has stated that the distance between the field of informant Shiv Singh which is Gata no. 111 upto Talab is a distance of 2.98 furlongs through the fields and by Chak Road it is 4.522 furlongs. The P.W.-1 has stated that the Talab is about 1 furlong from the village towards the north. We may hasten to add here that P.W.-1 and P.W.-2 are rustic villagers and therefore, even if P.W.-1 has stated that the Talab was adjacent to the field of Roop Ram but the P.W.-2 on the other hand has stated that between the field of Roop Ram and Talab there is the field of Kuber, coincides with the Site Plan since to the north of the field of Roop Ram the Site Plan shows the field of Kuber Singh and not the Talab. Thus the existence of the Talab has not been disputed by either the prosecution witnesses or by D.W. 3 since the body of the deceased was found in the field of Roop Ram and nowhere near the Talab (pond), the absence of the Talab from the site plan is of little or no significance in the presence case. 40. The learned Senior Counsel then submitted that the torch, in the light of which, the P.W.-1 and P.W.-2 are stated to have witnessed the crime being recovered on 11.01.1993 i.e. about one and a half months after the date of the incident and that too on the date on which the charge sheet was filed, the same is therefore, too much of a circumstance and its recovery is too dramatic to be plausible, hence no credence can be given to the testimony of P.W.-1 and P.W.-2 that they were carrying a torch on the fateful night and in the light of the torch they witnessed the crime being committed. 41. The submission of the learned senior counsel has force. The P.W. 1 and P.W. 2 in their testimonies have stated that on hearing the sound of fire arm and cries of the deceased Mahavir they rushed to the spot and saw the accused in the light of the torch which P.W. 1 was carrying, and in the natural light, but the torch itself was recovered from the possession of the P.W. 1 by the IO P.W. 6 on 11.1.1993 i.e. about one and half months from the date of the incidence and that too on the very day on which the IO filed the charge sheet. 42. The learned A.G.A. on the other hand, submitted that there may be a lapse or ineptitude on the part of the IO but since the torch was recovered its existence and use on the fateful night by the P.W. 1 and P.W. 2 cannot be ruled out. 42. The learned A.G.A. on the other hand, submitted that there may be a lapse or ineptitude on the part of the IO but since the torch was recovered its existence and use on the fateful night by the P.W. 1 and P.W. 2 cannot be ruled out. We are not inclined to accept the submission of the learned A.G.A. For the reason that if it was the specific case of the prosecution that P.W. 1 and P.W. 2 had witnessed the accused persons executing the crime in the light of the torch which P.W. 1 was said to be carrying then it does not stand to reason as to why the IO should not have made efforts to recover the torch on the very day when he went to the site for conducting the investigation i.e. on 29.11.1992 itself as it would have been the most natural act on the part of the IO to have enquired about the torch and made efforts to recover the same on that very day. It does not stand to reason that when the prosecution alleges that the witnesses saw the accused committing the crime in the light of the torch why the torch was shown to have been recovered from the P.W. 1 only on the date on which the charge sheet was filed. We are quite clear in our mind that the alleged recovery of torch after one and half months of the crime was nothing but a realization by the IO that the crime was witnessed by the P.W. 1 and P.W. 2 in the light of the torch and unless the recovery of the torch is shown the prosecution story would fail miserably. We therefore reject the submission of the learned A.G.A. 43. On a careful consideration of the evidence on record we find that the prosecution has miserably fail to prove the guilt of the appellants beyond reasonable doubt. The appeal is therefore allowed. The appellants are acquitted of the charges. The judgement and order dated 17.2.2001 of the trial court convicting and sentencing the appellants, as aforesaid is set aside. 44. The appellants are on bail. They need not surrender. Their bail bonds and sureties are discharged. 45. Appellants are directed to file personal bond and two sureties to the satisfaction of the court concerned in compliance of section 437-A Cr.P.C.

Shiv Nath v. State of U. P.