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Allahabad High Court · body

2020 DIGILAW 877 (ALL)

Kaloo v. State of U. P.

2020-05-20

PANKAJ NAQVI, SAURABH SHYAM SHAMSHERY

body2020
ORDER : Saurabh Shyam Shamshery, J. 1. Appellants Kaloo, Pali and Kiran Pal have preferred this appeal against the judgment and order dated 05.05.2009 passed in Session Trial No. 103/1996, by the Additional Sessions Judge, Room No. 4, Bulandshahar, whereby the appellants were convicted under Section 302/34 and 307/34 I.P.C. and sentenced to life, with fine of Rs. 3000/- each and five years with fine of Rs. 2000/- each respectively and a default sentence of six months each. 2. PROSECUTION CASE - (a) Barfi Devi (PW-2), wife of the deceased submitted a written report, scribed by Ratan Singh (PW-1), son of the deceased at the Police Station Aurangabad, District Bulandshahar on 08.07.1991 at about 9.05 A.M. alleging that on 07.07.1991, she alongwith her husband Sukhpal and her nephew Ajab Singh (PW-4) were present at her house. At about 8.00 P.M. accused Ramveer S/o Chidda, Kaloo S/o Phike, Pali and Kiran Pal S/o Lakhmi who were related to her, came to her house and took her husband Sukhpal and his nephew Ajab Singh alongwith them to their tube-well on the pretext of taking care of their tube-well for two hours so that they could rest for a while as they have not had good sleep recently. (b) At about 12.00 midnight, when her sons Ratan Singh (PW-1) and Bharat Pal (PW-3) returned to their house after working for Balveer Halwai, she told them about their father having gone with Ajab Singh (PW-4) and asked them to go and check their whereabouts as despite assurance that they would come back soon they had not returned. The sons took a torch, went to the tube-well but came back crying that at tube-well they saw in torch light that the accused Ramveer armed with a spade, Kiran Pal with farsa, Pali with knife and Kaloo with a lathi were assaulting Ajab Singh (PW-4) and Sukhpal. (c) PW-2 her two sons alongwith villagers immediately rushed to the tube-well, where she found her husband Sukhpal lying dead on a cot and her nephew Ajab Singh (PW-4) lying seriously injured. With the help of villagers, Ajab Singh was sent to Government Hospital in a vehicle alongwith some villagers. She alleged that around ten days back Kanchhi, elder brother of accused Kaloo had died by falling into a well and the accused suspected that the deceased Sukhpal was responsible for his death. With the help of villagers, Ajab Singh was sent to Government Hospital in a vehicle alongwith some villagers. She alleged that around ten days back Kanchhi, elder brother of accused Kaloo had died by falling into a well and the accused suspected that the deceased Sukhpal was responsible for his death. She also alleged that for fear, she was unable to reach police station at night to lodge the F.I.R. and only in the morning she mustered courage to visit police station, to lodge the F.I.R., on 8.7.91 at 9:05 A.M. at P.S., at a distance of 7 kms. (d) The Investigating Officer (PW-) visited the place of occurrence, recovered a blood stained spade, pharsa, knife, blood stained part of cot and plain as well as blood stained earth. (e) Inquest of the dead body of the deceased was prepared. The accused were arrested. Autopsy of the deceased was conducted by Dr. S. Bhatnagar (PW-7) on 08.07.1991. Following injuries were found on the body of the deceased:- (i) Incised wound, 16 x 11 cm x bone deep, all big vessels cut, trachea and esophagus cut right side neck middle front. (ii) Incised wound 4 x 1cm muscle deep, right chest upper part, 5cm below collar bone. (iii) Incised wound 3 x 2cm left hand back, between index and middle finger. (iv) Incised wound 3 x 1cm x bone, right side of chin. (v) Incised wound 2 x 1cm, right angle of ear, muscle made deep. According to the doctor, death was caused due to shock and haemorrhage as a result of ante-mortem injuries. (f) Injured witness Ajab Singh (PW-4) was examined at AIIMS on 08.07.1991, where some treatment was given and wounds were managed. Thereafter, he was referred to Safdarjang Hospital, Delhi, but not admitted due to non-availability of bed. Finally, he was admitted at Guru Teg Bahadur Hospital, Shahdara, Delhi. After treatment, he was discharged on 10.07.1991. (g) After investigation charge-sheet was submitted against all the four accused, case being exclusively triable by Sessions was committed to it and charges were framed under Section 307/34 I.P.C. as well as under Section 302/34 I.P.C., to which the accused did not plead guilty, case went on trial. 3. After treatment, he was discharged on 10.07.1991. (g) After investigation charge-sheet was submitted against all the four accused, case being exclusively triable by Sessions was committed to it and charges were framed under Section 307/34 I.P.C. as well as under Section 302/34 I.P.C., to which the accused did not plead guilty, case went on trial. 3. PROSECUTION WITNESSES - (I) PW-1 Ratan Singh supported the prosecution version and stated that when he alongwith his brother Bharat Pal (PW-3) reached their house after work at about 12 midnight on the intervening night of 7/8-7-1991, their mother Barfi Devi (PW-2) informed that accused had taken their father (Sukhpal) and nephew (Ajab Singh) to their tube-well on the pretext of guarding their tube-well for two hours so that they could sleep for some time as they had not slept in last few days. PW-1 alongwith his brother (PW-3) went at the tube-well, they saw in torch light that accused persons were assaulting their father and PW-4/Ajab Singh. PW-1 attributed phawada (spade) to accused Ramveer, pharsa (sharp weapon) to accused Kiran Pal, lathi to accused Kaloo and knife to accused Pali. The accused threatened them that if they do not return, they would also face same consequence. PW-1 and his brother (PW-3) returned and told their mother about the occurrence, thereafter they alongwith their mother and villagers went to the place of occurrence, where they found their father lying dead on the cot and Ajab Singh (PW-4) lying seriously injured. PW-1 supported the alleged motive. (II) PW-1 was subjected to detailed cross-examination wherein it was pointed out that his version about threats from accused at the place of occurrence was not mentioned either in the F.I.R. or in his statement under Section 161 Cr.P.C. He stated about the presence of many persons from the village. In cross-examination, he was unable to describe the mode and manner of assault as also the specific role of the accused. He saw only accused Kaloo assaulting his father with lathi as also the accused assaulting his father. (III) Smt. Barfi Devi (PW-2), wife of the deceased Sukhram also supported the prosecution case. In her chief-examination, she stated that the deceased and injured Ajab Singh (PW-4) were accompanied by the accused to the tube-well. He saw only accused Kaloo assaulting his father with lathi as also the accused assaulting his father. (III) Smt. Barfi Devi (PW-2), wife of the deceased Sukhram also supported the prosecution case. In her chief-examination, she stated that the deceased and injured Ajab Singh (PW-4) were accompanied by the accused to the tube-well. PW-1 Ratan Singh, PW-3 Bharat Pal were sent to the place of occurrence at about 12 midnight, both witnessed the occurrence, returned and told her about the same. This witness also mentioned the weapons attributed to all the accused as told by her sons. She also supported prosecution case regarding the motive. (IV) This witness was also cross examined in extenso. She stated that wife of accused Kaloo was related to her and due to this relationship accused Kaloo accompanied her to the police station for lodging first information report. Her sons i.e. PW-1 and PW-3, witnessed the occurrence from a certain distance but were unable to ascertain whether Sukhpal and Ajab Singh were alive or not at that time when she reached the place of occurrence, her husband was already dead, however, injured Ajab Singh (PW-4) was alive. She specifically stated that when she found her husband lying dead on cot, there were injuries on his neck and the body was cold. She reiterated that her son Ratan Singh (PW-1) and accused Kaloo accompanied her to the police station for lodging the F.I.R. (V) Bharat Pal (PW-3), another son of the deceased, accompanied his brother Ratan Singh (PW-1) to the place of occurrence and also witnessed the occurrence in torch light. He supported the prosecution case on the issue of information given by his mother about the visit of the accused to their house who accompanied his father and Ajab Singh to the tube-well. He attributed the alleged weapons to the accused and also supported the prosecution about the alleged motive. He was also cross-examined in detail in which he stated that accused Kaloo assaulted Ajab Singh and his father with a lathi. He and his brother remained at the place of occurrence for about five minutes when all the accused were continuously assaulting his father and Ajab Singh. He denied that the police nominated the accused persons in the present case as they were under pressure as they could not solve two earlier occurrence which took place in the village. He and his brother remained at the place of occurrence for about five minutes when all the accused were continuously assaulting his father and Ajab Singh. He denied that the police nominated the accused persons in the present case as they were under pressure as they could not solve two earlier occurrence which took place in the village. (VI) Ajab Singh (PW-4), the injured witness, supported the prosecution story only to the extent that he alongwith his uncle Sukhpal went to the place of tube-well on the night of occurrence. He stated that they were assaulted by unknown persons. He did not attribute the assault to the accused persons. He was declared hostile. (VII) Ompal (PW-5), driver in the police department is a witness to the incriminating recoveries. He stated in cross-examination that recovery memos and pachayatnama were already prepared before he reached the place of occurrence and he just signed on them. Rampal (PW-6) Constable Clerk, entered relevant contents in G.D. and prepared check FIR on the basis of written report submitted by Barfi Devi (PW-2). (VIII) Dr. S. Bhatnagar (PW-7) conducted the postmortem of the deceased and proved the autopsy report. In cross-examination, he stated that injury No. 1 could possibly be caused by a heavy cutting weapon while injury Nos. 2, 3 & 4 by a spade. He also stated that there was no injury of lathi. (IX) J.K. Yadav, (PW-8) was the Investigating Officer, who took over the charge after initial investigation from S.I. Charan Singh (PW-9), who also supported the prosecution version. In cross-examination, he stated that after taking over investigation, he did not visit the place of occurrence. (X) Charan Singh (PW-9) was the first Investigating Officer who supported the prosecution story regarding recoveries and inquest report. In cross-examination, he stated that PW's 1 and 3 witnessed the occurrence in torch light from a distance of about 20 steps. At the time of occurrence height of corn (sown in the fields near the scene) was 3 inch. Dead body was found at the fields of accused Kaloo. (XI) Chandra Bhan (PW-10) was a witness to the panchayatnama, he proved its contents. 4. During trial, accused Ramvir died, trial abated against him. 5. STATEMENTS OF THE ACCUSED UNDER SECTION 313 Cr.P.C. - Accused/appellants under Section 313 Cr.P.C., denied the prosecution case and refused to say anything in defence. They also did not lead any evidence. (XI) Chandra Bhan (PW-10) was a witness to the panchayatnama, he proved its contents. 4. During trial, accused Ramvir died, trial abated against him. 5. STATEMENTS OF THE ACCUSED UNDER SECTION 313 Cr.P.C. - Accused/appellants under Section 313 Cr.P.C., denied the prosecution case and refused to say anything in defence. They also did not lead any evidence. 6. JUDGMENT OF THE TRIAL COURT - The learned Sessions Judge, after considering the materials and evidences on record came to conclusion that eye-witnesses are reliable, ocular evidence is compatible with the medical evidence, convicted the appellants as above. 7. Heard Shri Dharmendra Singhal, learned Senior Counsel assisted by Shri Kalim Uddin, learned counsel for appellant no. 1, Shri Chandra Narayan Mishra, learned counsel for appellant no. 2, Shri Gaurav Kakkar, learned counsel for appellant no. 3 and Shri A.N. Mulla, learned A.G.A., for respondent State. 8. ARGUMENTS ON BEHALF OF THE APPELLANTS - Learned Counsels appearing on behalf of the appellants vehemently argued that the entire prosecution story was false and real genesis of the occurrence withheld. It is specifically argued that:- (i) The prosecution story rests on three eye witnesses PW's 1, 3 and 4 but they were unable to explain delay of 9 hours in lodging the F.I.R. (ii) The injured witness Ajab Singh (PW-4) completely resiled from the prosecution version as well as from his statement under Section 161 Cr.P.C. He completely denied involvement of the accused appellants and attributed the assault to unknown persons which belies the prosecution version. (iii) The injured witness Ajab Singh (PW-4) was examined at AIIMS Hospital, Delhi and as per the M.L.C. time of incident was at about 10.00 P.M. on 07.07.1991 whereas as per the prosecution case as mentioned in F.I.R., evidence of Pws 1, 2 and 3 the time of occurrence was at about 12.00 P.M., on 07.07.1991, contradiction remained unexplained. (iv) The alleged motive behind the occurrence was contradictory, misconceived and completely diluted by the testimony of Barfi Devi (PW-2), as she specifically stated that accused Kaloo accompanied her to the police station for lodging the F.I.R., which completely destroys the prosecution story. (iv) The alleged motive behind the occurrence was contradictory, misconceived and completely diluted by the testimony of Barfi Devi (PW-2), as she specifically stated that accused Kaloo accompanied her to the police station for lodging the F.I.R., which completely destroys the prosecution story. This also destroys the alleged motive as in case relations between the informant's family and the accused family were actually strained then in no circumstance accused Kaloo would have accompanied the first informant to the police station to lodge the F.I.R., in which he is also named as an accused. (v) As per prosecution story, eye-witnesses witnessed the occurrence at night in torch light, but no torch was recovered. (vi) Ajab Singh (PW-4) was seriously injured, tractors and motorcycles were available in the village, yet the injured was taken to the hospital only next day which prosecution failed to explain. (vii) PW-2 Barfi Devi specifically stated that when she reached the place of occurrence dead body of her husband was cold and rigor mortis was gradually passing off. At the most, witness would have taken 45 minutes to reach the place of occurrence and within that time the body could not have become cold which indicates that the incident did not occur at the time alleged by PW's 1 and 3. (viii) Presence of accused - Kaloo with the informant at the police station seriously dents the prosecution case as no accused would accompany the informant who is going to lodge an FIR against him. (ix) Ratan Singh (PW-1) and Bharat Pal (PW-3) are not reliable, they are not eye-witnesses and their presence at the place of occurrence is highly doubtful on account of the following:- (a) Incident at midnight of 07/08.08.1991 but medical examination of injured was conducted in the morning on 08.07.1991. (b) F.I.R. delayed by 9 hours. (c) Not a single injury of lathi despite there being specific testimony of PW-3 that 3-4 strokes of lathi were inflicted upon their father. (d) Unnatural conduct of PW's 1 and 3 that although they saw the incident for almost five minutes during which their father and Ajab Singh were mercilessly assaulted but none of them attempted to rescue them. 9. ARGUMENTS ON BEHALF OF PROSECUTION/STATE - (i) Shri A.N. Mulla, learned A.G.A. appearing on behalf of the State supported the impugned judgment. (d) Unnatural conduct of PW's 1 and 3 that although they saw the incident for almost five minutes during which their father and Ajab Singh were mercilessly assaulted but none of them attempted to rescue them. 9. ARGUMENTS ON BEHALF OF PROSECUTION/STATE - (i) Shri A.N. Mulla, learned A.G.A. appearing on behalf of the State supported the impugned judgment. He submitted that it is conclusively proved that deceased and injured witnesses went on the fateful night to the tube-well of the accused persons on their request. Even injured hostile witness has stated that he and deceased were assaulted at the tube-well. (ii) PWs-1 and 3 were natural witnesses, as their mother had sent them to the place of occurrence as their father and Ajab Singh had not returned till midnight. They were consistent about the manner of assault notwithstanding minor contradictions which alone could not dent the prosecution case. These eye-witnesses were of tender age, therefore, it was not unnatural that they could not rescue their father and the injured nephew. (iii) Although it has come in the evidence of PW-2 (Barfi Devi) that accused Kaloo was related to her and accompanied her to the police station for lodging the F.I.R. but the entire prosecution story cannot be considered to be false only on the basis of such a conduct. It is possible that the accused person intentionally accompanied the first informant to check or verify as to what would be the contents of the F.I.R. Possibility of PW-2 being in a state of fear from accused cannot be ruled out. 10. DELAY IN LODGING F.I.R. AND ACCUSED ACCOMPANING PW-2/FIRST INFORMANT FOR LODGING THE F.I.R. - The occurrence took place around midnight on the night of 7/8.7.1991. F.I.R. was lodged on 08.07.1991 at 9.05 A.M. by PW-2. Distance between the place of occurrence and Police Station was reported to be 7 kms. It took about 9 hours in lodging the F.I.R. Only explanation for delay mentioned in the written report was fear, which is not a plausible explanation as PW-2 stated that villagers accompanied her to the place of occurrence on the fateful night, therefore, there was no reason to fear from going to the police station to lodge the FIR promptly. 11. 11. It is well settled that mere delay in lodging the F.I.R. may not prove fatal in all cases, but in a given circumstance, even a minor unexplained delay in lodging the F.I.R. could be one of the factors which may affect credibility of the prosecution version. The Apex Court in State of H.P. Vs. Gian Chand 2001 (6) SCC 71 has held that:- "12. Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the Court in its guard to search if any explanation has been offered for the delay and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is possibility of embellishment in prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case.(emphasis supplied) 12. In the present case, the prosecution is not able to satisfactorily explain the delay of 9 hours in lodging the F.I.R. No doubt a delay of 9 hours in lodging the FIR, when the occurrence took place at midnight would not on its own discredit the prosecution case in its entirety. We have to now consider whether the intervening period, was utilised for concocting a story to falsely implicate the appellants. It is evident from the testimony of PW-2 that she had knowledge of murder of her husband at about 12.00 in the night as well as about the identity of the assailants as informed by her two sons PWs-1 and 3. However, she did not disclose this fact to anyone till next morning even to villagers who accompanied her to the place of occurrence and the police station. She has not denied that accused Kaloo accompanied her to the police station for lodging the F.I.R. An accused who had allegedly committed the murder of the husband of informant, who (informant) is also aware of his identity, as authenticated by her two sons would never accompany the informant to the police station. She has not denied that accused Kaloo accompanied her to the police station for lodging the F.I.R. An accused who had allegedly committed the murder of the husband of informant, who (informant) is also aware of his identity, as authenticated by her two sons would never accompany the informant to the police station. Thus, in the present case, F.I.R. comes under grave suspect and it is fairly possible that time taken in lodging the F.I.R. was utilized to falsely implicate accused/appellant. 13. EFFECT OF DECLARING INJURED WITNESS PW-4/AJAB SINGH AS HOSTILE WITNESS - PW-4 accompanied the deceased to the fields (tube-well) of accused Kaloo on the request of accused persons. PW-4 in chief-examination supported the prosecution only to the extent that he went to the tube-well of accused Kaloo alongwith the deceased on the fateful night. He attributed the assault at them to unknown persons. He was declared hostile. He did not support the prosecution case that accused person came to his home and asked to accompany them to the tube-well. 14. In Gura Sing Vs. State of Rajasthan, A.I.R. 2001 SC 330 : (2001) 2 SCC 205 , the Supreme Court held that:- "11. … .......... In a criminal trial where a prosecution witness is cross-examined and contradicted with the leave of the Court by the party calling him for evidence cannot, as a matter of general rule, be treated as washed off the record altogether. It is for the court of fact to consider in each case whether as a result of such cross-examination and contradiction the witness stands discredited or can still be believed in regard to any part of his testimony. In appropriate cases the court can rely upon the part of testimony of such witness if that part of the deposition is found to be creditworthy." 15. Considering the law as discussed above, in the present case part of testimony of the hostile witness can be relied only to the extent that he (PW-4) alongwith deceased were at the tube-well of accused Kaloo on the fateful night, which alone is not sufficient to nail the accused. 16. STATEMENT OF BARFI DEVI (PW-2) - PW-2 is witness on three points, firstly accused accompanied her husband and nephew (PW-4) to the tube-well at about 8.00 P.M., on 07.07.1991. 16. STATEMENT OF BARFI DEVI (PW-2) - PW-2 is witness on three points, firstly accused accompanied her husband and nephew (PW-4) to the tube-well at about 8.00 P.M., on 07.07.1991. Secondly, she sent her two sons PWs-1 and 3 to the place of occurrence who came back and told her that accused assaulted her husband and nephew and thirdly about motive behind alleged assault, that few days prior to the occurrence, elder brother of accused Kaloo fell into the well and died, however, accused Kaloo suspected her deceased husband for the death. 17. She in her cross-examination alleged that accused themselves killed the elder brother of accused Kaloo and threw his dead body into the well. If it was true then there was no reason for accused Kaloo to suspect the deceased for the murder of his elder brother. Thus, the prosecution failed to prove the motive. PW-4 has not supported the testimony of PW-2 that accused accompanied him and the deceased to the tube well. 18. TESTIMONY OF RATAN SINGH (PW-1) AND BHARAT PAL (PW-3) - Since PW-4, the injured witness did not support the prosecution version, therefore, entire prosecution case is based on the testimony of PW's-1 & 3, who claim to be eye-witnesses. Pw's-1 and 3 visited the place of occurrence, on their mother's direction to ascertain the whereabouts of their father PW-4, who had not returned as promised. At the place of occurrence, both of them saw in torch light that accused Ramveer with a spade, Kiran Pal with farsa, Kaloo with lathi and Pali with a knife were assaulting their father and PW-4. Accused threatened them of dire consequences. Thereafter, these witnesses returned and told their mother (PW-2) about the assault. 19. In cross-examination, PW-1 stated that he alongwith PW-3 witnessed the occurrence from a distance of about 10-12 steps. They stayed at the place of occurrence for about a minute. He saw accused Kaloo assaulting his father with lathi, further he also saw all the four accused assaulting his father and PW-4. PW-3 supported the testimony of PW-1 in his chief-examination. He stated that he alongwith PW-1 stayed for about five minutes and witnessed the occurrence that accused were assaulting their father and PW-4. PW-3 specifically stated that he saw that accused Kaloo was assaulting the deceased and PW-4 with a lathi. 20. PW-3 supported the testimony of PW-1 in his chief-examination. He stated that he alongwith PW-1 stayed for about five minutes and witnessed the occurrence that accused were assaulting their father and PW-4. PW-3 specifically stated that he saw that accused Kaloo was assaulting the deceased and PW-4 with a lathi. 20. We after analysing the evidence of PW's-1 & 3, are of the view that none of these witnesses were able to indicate the mode and manner of assault as they were alleging use of lathi but there were no lathi injuries on both the victims. Although these witnesses were young and of tender age but once they could muster courage to go to the fields at midnight in search of their father and cousin but their inability to make even a futile attempt to rescue their close blood relatives, creates a doubt to discard the credibility of the prosecution story, doubting their presence at the scene. 21. TIMING OF KNOWLEDGE ABOUT THE OCCURRENCE - Learned counsels for the appellants vehemently argued that it was a blind murder and PW-2 came to know about the murder after a considerable period. PW-2 stated in her cross-examination that when she reached the place of occurrence, within an hour of the occurrence, dead body of her husband Sukhpal was cold and rigor mortis was passing off which indicates that the incident took place much prior to midnight. Absence of prompt FIR also shows that real time of occurrence was withheld. Considering the above, we are of the view that correct time of the occurrence was deliberately withheld. Even M.L.C. of PW-4 records a different time of occurrence. Prosecution appears to have withheld the real genesis of the occurrence. 22. OCULAR EVIDENCE AND MEDICAL EVIDENCE - PW-7/the doctor conducted the autopsy of the deceased. He opined that injuries caused to the deceased were attributable to a sharp edged weapon such as knife or farsa. In cross-examination, he stated that injury no. 1 may be caused by a heavy cutting weapon. He further ruled out the possibility of injury no. 2, 3 and 4 to be an outcome of injuries caused with a spade. 23. PW's-1 and 3 attributed lathi to accused Kaloo, however, there was no lathi injury on the deceased. In cross-examination, he stated that injury no. 1 may be caused by a heavy cutting weapon. He further ruled out the possibility of injury no. 2, 3 and 4 to be an outcome of injuries caused with a spade. 23. PW's-1 and 3 attributed lathi to accused Kaloo, however, there was no lathi injury on the deceased. Spade, pharsa and knife were recovered from the place of occurrence and accordingly false prosecution story was created on the basis of injuries of the deceased. As we have disbelieved PW's 1 and 3, possibility of creating a false prosecution story cannot be ruled out. No doctor was examined to prove the injuries caused to PW-4 which are mentioned in the reports of AIIM'S and GTB Hospital, Delhi. PW-4 was declared hostile, therefore, prosecution has failed to prove that author of injuries were the accused. 24. CONCLUSION - In view of above discussion, we are of the view that:- (i) Prosecution failed to explain the delay of about 9 hours in lodging the F.I.R. and intervening time was used to falsely implicate the appellants/accused. (ii) Circumstance of accused Kaloo accompanying first informant to the police station for lodging the F.I.R. in which he is also named as an accused seriously dents the prosecution version. (iii) The injured witness (PW-4) Ajab Singh did not support the prosecution case as regards the identity of the assailants. (iv) Testimony of Barfi Devi (PW-2) failed to prove any motive for the occurrence. (v) Testimony of alleged eye-witnesses (PW's-1 and 3) cannot be considered to be wholly trustworthy, their presence at the place of occurrence is doubtful. (vi) PW-2 reached the place of occurrence much after it took place. (vii) Ocular evidence does not corroborate medical evidence. 25. We, in view of above discussion, are of the considered view that the impugned judgment cannot be sustained and is liable to be set aside. 26. The appeal is allowed. The judgment dated 5.5.2009, is set aside. The appellants are acquitted of the charges. They are in jail, shall be released forthwith, if not detained in any other case. Copy of this judgment be sent to trial court for necessary compliance forthwith. Compliance be reported within two months.