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2020 DIGILAW 968 (ALL)

Ram Sahai v. State of U. P.

2020-06-18

REKHA DIKSHIT

body2020
JUDGMENT : 1. Since above-mentioned appeals have been filed against conviction order passed by the trial court by a common judgment, the same are being decided by a common judgment. 2. These appeals arise against the judgment of conviction and order of sentence dated 25.11.2005 passed by learned Additional Sessions Judge, Lucknow in Sessions Trial No.1189 of 2001, arising out of Case Crime No.92 of 2000, under Sections 148, 302/149 and 506 I.P.C., Police Station – Bakshi-Ka-Talab, District-Lucknow, whereby the learned Additional Sessions Judge has convicted the accused-appellants, namely, Ram Sahai, Lachiman Pasi, Darshan Pasi, Gaya Prasad and Maharaj Deen under Sections 148, 302/149 and 506 I.P.C., and sentenced them under Section 302 IPC read with Section 149 I.P.C. to undergo life imprisonment, under Section 148 I.P.C. to undergo three years' rigorous imprisonment and under Section 506 IPC to undergo one year rigorous imprisonment. 3. At earlier occasion, the learned members of the Division Bench, Hon'ble Prashant Kumar and Hon'ble Dinesh Kumar Singh, JJ. hearing the appeals, had given different opinion and delivered separate judgments in the aforesaid appeals. Hon'ble Prashant Kumar, J. vide order dated 27.10.2018 allowed the aforesaid appeals and set aside the impugned order of conviction and sentence dated 25.11.2005. Hon'ble Dinesh Kumar Singh, J. vide order dated 27.10.2018 dismissed the aforesaid appeals upholding the impugned order of conviction and sentence. 4. In view of difference of opinion, the matter was laid before Hon'ble the Chief Justice under section 392 Cr.P.C and by order dated 17.11.2018 of the Hon'ble the Chief Justice, matter has been nominated to this Bench. 5. On the issue relating to the scope of hearing of appeals by the third Judge nominated under section 392 Cr.P.C., it was admitted to the learned counsel for the parties that in view of settled position of law, the judgment delivered by the third Judge would be the judgment in Appeals and that would bind the outcome of the appeals and the previous opinions expressed by the learned Hon'ble Judges will not affect the determination of the third Judge, whether or not the third Judge agrees with either of them or with both of them or records a separate finding on the issues involved in the appeals. In this regard, it would be sufficient to reproduce, the observations of the Supreme Court given in the case of Sajjan Singh and others vs. State of M.P. reported in (1999) SCC (Cri.) 44, which is as follows: "10. Statement of law is now quite explicit. It is the third Judge whose opinion matters; against the judgment that follows therefrom that an appeal lies to this Court by way of special leave petition under Article 136 of the Constitution or under Article 134 of the Constitution or Under Section 379 of the Code. The third Judge is, therefore, required to examine whole of the case independently and it cannot be said that he is bound by that part of the two opinions of the two Judges comprising the Division Bench where there is no difference. As a matter of fact third Judge is not bound by any such opinion of the Division Bench. He is not hearing the matter as if he is sitting in a three Judge Bench where the opinion of majority would prevail". 6. The accused-appellant Lachiman Pasi has reportedly died, as such, Criminal Appeal No.1651 of 2005 against him stands abated vide order dated 16.05.2016. 7. Now, the appeal proceeds against Ram Sahai and Darshan Pasi (Criminal Appeal No.1596 of 2005), Gaya Prasad (Criminal Appeal No.114 of 2006) and Maharaj Deen (Criminal Appeal No.1650 of 2005). 8. Narrated concisely, the prosecution case against the appellants is that on 25.08.2000, in the election of Gramsabha of village Shivpuri, Sonapati (PW-3) a candidate of Up-pradhan [supported by Sandeep Singh (deceased)] was declared elected, whereas Ram Dayal, another candidate of up-pradhan (supported by the appellant Maharaj Deen) had lost the election. It is alleged that because of the aforesaid reason the appellant Maharaj Deen had developed animosity with the deceased. 9. On 31.08.2000 in a meeting of Gram Sabha for appointment of various committees, the deceased asked all the non-members to vacate the meeting hall, as such, the deceased along with Devendra Singh (PW-1), Santosh Singh, Ram Vilas Lodh (DW-1), Virendra Yadav (DW-5) came out of the meeting hall and sat on chairs kept under the sycamore (Guller) tree. A little later, the accused persons, namely, Darshan Pasi, Lachiman Pasi, Gaya Prasad, Sahai Pasi and Maharaj Deen also left the meeting hall and went towards their home. A little later, the accused persons, namely, Darshan Pasi, Lachiman Pasi, Gaya Prasad, Sahai Pasi and Maharaj Deen also left the meeting hall and went towards their home. After a little while, Darshan Pasi possessed with Addhi (fire arm), Lachiman Pasi and Sahai Pasi possessed with katta (countrymade pistol), Maharaj Deen and Gaya Prasad possessed with Banka (a sharp cutting weapon) exhorted to kill the deceased Sandeep Singh, whereupon Darshan Pasi shot fire on the deceased, who ran and took shelter inside the boundary wall of Ram Avtar. All the accused-appellants chased and kill the deceased inside the boundary wall of Ram Avtar. The aforesaid occurrence was witnessed by Devendra Singh, Santosh Singh, Ram Vilas Lodh, Virendra Yadav, up-pradhan Sonapati and her husband Kallu. 10. The FIR was lodged on 31.08.2000 at 16.05 hours, registered as Case Crime No.92 of 2000, under Sections 147, 148, 149, 506 and 302 IPC against the accused-appellants. The dead body of the deceased Sandeep Singh was sent for postmortem, where he was examined by Dr. Vinod Kumar (P.W.-4), Exhibit Ka-2 is postmortem report in which antemortem injuries are as follows:- "1. Incised wound 5 cm X 1.5 cm bone deep present on back of head on left side just behind left ear; 2. Incised wound 4 cm X 1.0 cm X bone deep on back of head left side just behind and below injury no. 1; 3. Incised wound 1.5 cm X 1.0 cm bone deep on left side (left side) face 2 cm infront of tragus of left ear; 4. Incised wound 2 cm X 0.5 cm X cartilage deep in upper part of pinna of left ear; 5. Multiple incised wound in area of 12 cm X 6 cm X skin deep on left side neck 3 cm below lobule of left ear; 6. Incised wound 3 cm X 1 cm X bone deep vertically present on right side face just below outer angle right eye; 7. Incised wound 3 cm X 1 cm X muscle deep obliquely situated on upper part of front of neck 4 cm below chin; 8. Incised wound 4 cm X 3 cm X trachea deep present in middle of front of neck underlying trachea larger cut through and through; 9. Multiple incised wounds in area of 9 cm X 7 cm present in front of neck above and below injury no. 8; 10. Incised wound 4 cm X 3 cm X trachea deep present in middle of front of neck underlying trachea larger cut through and through; 9. Multiple incised wounds in area of 9 cm X 7 cm present in front of neck above and below injury no. 8; 10. Incised wound 10 cm X 0.5 cm X muscle deep on top of left shoulder situated anteroposteriorly; 11. Multiple firearm wound of entry in an area of 10 cm X 7 cm present on front of left side chest and outer aspect of left shoulder 8 cm above left nipple varying in size from 0.3 cm X 0.5 cm X skin deep to 0.5 cm X 0.5 cm muscle deep; 12. Firearm wound of entry 4 cm X 3 cm X bone deep present on left palm at the base of index and middle finger; 13. Incised wound 2 cm X 1 cm X muscle deep on back of left wrist joint." 11. Subsequent to lodging the FIR Ram Chandra Dixit (P.W.-5), initially commenced with the investigation, which was handed over to Shri Abdul Rahman (P.W.-7), later on, who proceeded with the same and submitted chargesheet (Exhibit Ka-15) after completion of investigation. The charge was framed against the accused-appellants under Sections 148, 302/149 and 506 IPC by the trial court. 12. To bring home the guilt of the accused-appellants, the prosecution examined as many as eight witnesses, namely, P.W.-1 -Devendra Singh (eye witness), P.W.2–Om Prakash Singh (Informant), P.W.-3 – Sonapati (eyewitness), P.W.-4 – Dr. Vinod Kumar, P.W.-5 – Ram Chandra Dixit (Investigating Officer), P.W.-6 – Uday Narayan Shukla, P.W.-7 – Abdul Rahman (Investigating Officer) and P.W.-8 -Vishambhar Singh (scribe of the FIR). 13. P.W.-1, the alleged eyewitness of the said incident, has categorically stated that on the date of incident, the deceased asked all the nonmembers of the Gram Sabha to leave the meeting hall, as such, he himself along with Santosh Singh, Ram Vilas Lodh, Virendra Pratap Yadav, Kallu Raidas left the meeting hall and sat under sycamore (Guller) tree. It has further been deposed that accused Maharaj Deen, Darshan Pasi, Lachiman Pasi, Gaya Prasad and Sahai Pasi also left the meeting hall and headed towards their houses. After sometime all of them returned back, possessed with firearm, and banka and chased the deceased with the intention of inflicting fatal injuries to him. It has further been deposed that accused Maharaj Deen, Darshan Pasi, Lachiman Pasi, Gaya Prasad and Sahai Pasi also left the meeting hall and headed towards their houses. After sometime all of them returned back, possessed with firearm, and banka and chased the deceased with the intention of inflicting fatal injuries to him. He has further deposed that Maharaj Deen and Gaya Prasad assaulted the deceased with Banka, whereas Lachiman Pasi and Sahai Pasi inflicted injuries from their Katta, consequently, the deceased received injuries on his neck and skull. 14. P.W.-2 Om Prakash, the complainant and father of the deceased has deposed in his oral testimony that the incident took place on 31.08.2000 and has reiterated the testimony of P.W.-1. It has further been stated that when he returned from school, Devendra Singh, Santosh Singh, Ram Vilas and Virendra Yadav, who were accompanying the deceased came to him and narrated the incident, thereafter he got the complaint scribed by Vishambhar Singh and after signing the same lodged it in the police station concerned. He has also specified that he received the first information report of murder of a son at his home from Devendra Singh and Santosh Singh around 3.00 PM, subsequently the process of scribing and lodging of FIR commenced. 15. P.W.-3 Sonapati wife of Kallu reiterated the political animosity between the parties and also identified the accused-appellants during the trial. She has further narrated the entire incident and categorically stated that the accused applicant present in the court have not committed the said crime but some outsiders murdered the deceased as such she has been declared hostile by the court. 16. P.W.-4 Dr. Vinod Kumar Singh conducted postmortem of the dead body of the deceased and submitted report (Exhibit Ka-2) in which cause of death of the deceased has been assigned to antemortem firearm injuries. 17. P.W.-5 Ram Chandra Dixit initially was entrusted the investigation of the present case. He prepared necessary prosecution documents relating to the crime and forwarded the dead body for postmortem. 18. P.W.-6 Uday Narain, Head Constable has proved in his oral testimony the chik FIR (Exhibit Ka-13) of the present case. 19. P.W.-7 Abdul Rahman, who received the investigation subsequently from P.W.-5 recorded the statement of the witnesses after completion of the investigation, submitted chargesheet (Exhibit Ka-15) against the accused-appellants. 20. 18. P.W.-6 Uday Narain, Head Constable has proved in his oral testimony the chik FIR (Exhibit Ka-13) of the present case. 19. P.W.-7 Abdul Rahman, who received the investigation subsequently from P.W.-5 recorded the statement of the witnesses after completion of the investigation, submitted chargesheet (Exhibit Ka-15) against the accused-appellants. 20. P.W.-8 -Vishambhar Singh, the scribe of the written complaint lodged by the complainant, has proved the said report in his oral testimony which is exhibit Ka-1. 21. Incriminating evidence and circumstances were put to the appellants under Section 313 Cr.P.C. in which they categorically stated that they have been falsely implicated in the present case due to political enmity. The accused-appellants Maharaj Deen has specifically denied his presence at the place of occurrence. It has also been stated that the Investigating Officer has submitted chargesheet on wrong and false facts as he has not committed the alleged offence. 22. The appellants have adduced as many as six witnesses in defence, namely, D.W.-1 Ram Vilas, D.W.-2 Ramdayal, D.W.-3 Nadir, D.W.-4 Prem Ashutani, D.W.-5 Virendra Pratap Yadav, D.W.-6 Aneesh Kumar Singh. 23. D.W.-1 Ram Vilas has deposed in his oral testimony that he is familiar with both the parties as he is resident of the same village. He has categorically denied the murder of the deceased by the accused-appellants and has stated that he does not know, who were the assailants of the deceased. 24. D.W.-2 Ramdayal, membership of Shivpuri Gram Panchayat, has deposed in his oral testimony that the deceased was killed on the date of incident but the assailants fled away from the place of occurrence. The present accused-applicants are not the assailants. He has also stated that he witnessed the assailants fleeing away but could not recognize them. 25. D.W.-3 Nadir, Member Village Panchayat Committee, has deposed in his oral testimony that meeting of panchayat members was scheduled at Panchayat Bhawan on 31.08.2000 and the deceased was killed on the same day around 2-2.30 P.M. in the courtyard of Ram Avtar situated near Panchayat Bhawan. After hearing a lot of noise, committee member came out and saw six people fleeing from the place of occurrence. They were possessed with country-made pistol, spears and bankas. He has further stated that none of the accused-appellants has caused murder of the deceased as far as the identification of the assailants is concerned, he could not see their faces. 26. They were possessed with country-made pistol, spears and bankas. He has further stated that none of the accused-appellants has caused murder of the deceased as far as the identification of the assailants is concerned, he could not see their faces. 26. D.W.-4 Prem Ashutani, Joint Director, Saudaik Sahbhagita Unit, U.P. Jal Nigam, has established the presence of accused-appellant Maharaj Deen on duty on the date of incident from 10.00 A.M. to 5.00 P.M. as his signatures were obvious on the attendance register and the register was in the custody of dispatcher, Kali Shankar, as such there is no scope of manipulation. 27. D.W.-5 Virendra Pratap Yadav has stated in his oral testimony that he is acquainted with both the parties and is an eye witness of the said incident. It has further been deposed that none of the accused-appellants has committed the murder of the deceased. He has reiterated the version of the other defence witnesses. 28. D.W.-6 Aneesh Kumar Singh, Development Officer, Village Shivpuri, has deposed in his testimony that he was posted at the aforesaid place from 1999 to 2000 and is well-acquainted with the fact of meeting being held at Panchayat Bhawan. The accused-appellants were not involved in the murder of the deceased and has also categorically stated that he saw the assailants, who murdered the deceased but could not recognize them. 29. The trial court held that the appellants committed the said offence and prosecution established the circumstances, proving the appellants' guilty under Sections 148, 302/149 506 I.P.C. and sentenced them under Section 302 IPC read with Section 149 I.P.C. to undergo life imprisonment, under Section 148 I.P.C. to undergo three years' rigorous imprisonment and under Section 506 IPC to undergo one year rigorous imprisonment. Aggrieved by the verdict of the conviction, the appellants preferred the present appeals. 30. Heard Shri Mridul Rakesh, Senior Advocate assisted by Shri Manish Bajpai, learned counsel for the appellants, Shri Arun Sinha, learned counsel for the appellant in connected appeal and Shri Ranvijay Singh, learned AGA for the State of U.P. 31. Learned counsel for the appellants have submitted that the allegations made in the first information report by the complainant are not in consonance with the facts narrated by P.W.-1 Devendra Singh, the sole witness in support of the prosecution case. Learned counsel for the appellants have submitted that the allegations made in the first information report by the complainant are not in consonance with the facts narrated by P.W.-1 Devendra Singh, the sole witness in support of the prosecution case. It has further been argued that the testimony of P.W.-1 do not correspond with the medical evidence which creates doubt as to whether P.W.-1 has witnesses the incident or not. No firearm injury was found on the neck and skull of the deceased as stated by P.W.-1, instead it was sharp edged weapon injury. It has further been submitted that the alleged eyewitness mentioned in the first information report, namely, Ram Vilas Lodh (D.W.-1), Sonapati (P.W.-3) and Virendra Pratap Yadav (D.W.-5) have not supported the prosecution story, denying the involvement of appellants in the said commission of crime. 32. Learned counsel for the appellants have further submitted that the statement of P.W.-1, the alleged eyewitness was recorded by Investigating Officer after a period of 66 days, though, allegedly he was present at the place of occurrence. It has also not been clarified by the complainant (P.W.-2) as to how he came to know about the alleged incident as he has named the accused-appellants in the first information report, though, admittedly, he was not present at the time of incident. P.W.-1 has categorically stated that he could not meet P.W.-2 to inform about the incident and when he returned to the spot, police was present there. This fact is also admitted that when the first information report was scribed by P.W.-8 at the spot, the police was already present there. It has been specifically submitted that the prosecution has not explained as to how, and on what basis, the police arrived at the spot, which cause a serious dent in the prosecution case. 33. Per contra, learned AGA for the State contended that the prosecution has established the guilt of appellants in the commission of offence through the evidence of P.W.-1 which is fully reliable as his presence at the place of occurrence has not been disputed. The FIR version has fully been supported by oral and documentary evidence, based on the said evidence, the court below rightly convicted the appellants and the impugned judgment warrants no interference. In this context, learned AGA has referred the following judgments: 34. The FIR version has fully been supported by oral and documentary evidence, based on the said evidence, the court below rightly convicted the appellants and the impugned judgment warrants no interference. In this context, learned AGA has referred the following judgments: 34. Considered the rival contentions and perused the impugned judgment and order of the trial court and material on record. 35. In the present case, the entire prosecution story rests on the sole testimony of P.W.-1, as the other alleged eyewitness of the occurrence D.W.-1, P.W.-3 and D.W.-5 have not supported the prosecution case and admittedly P.W.-2 (complainant), was not present at the place of occurrence. This legal proposition is not disputed that the conviction in any case can be based on sole testimony of single witness, subject to its trustworthiness and credibility. In this case, the entire case of prosecution rests on the evidence of P.W.-1, who was present at the time of incident, as well as, at the time of preparation of documents by the police, regarding the incident and the dead body, but his statement was not recorded on that day and the reason for the same is unexplained by the Investigating Officer. The statement of P.W.-1 was recorded after lapse of 66 days, without any explanation by the Investigating Officer in his oral deposition also, as P.W.-7. The delay caused in recording the statement of an eyewitness do not create a doubt in the credibility of his evidence but, then, it has to be scrutinized strictly, while appreciating the evidence. 36. A reference may be made to Mohd. Iqbal M. Shaikh & ors versus The State of Maharashtra reported in 1998 (4) SCC 494 , wherein it has been observed as under: "Let us now examine the reliability of the prosecution witnesses through whom the prosecution has to establish that the case against the appellants has been proved beyond reasonable doubt. As has been stated earlier the six witnesses who were supposed to be the eye-witnesses to the occurrence are PWs 1, 2, 3, 4, 9 and 10. It is to be noticed that while PW 4 was examined by the police on 17.1.1993 and PW 3 was examined by the police on 18.1.1993 but PW 2 Surya Kant was examined on 25.1.1993 and the three other eye-witnesses were examined on 29.1.1993 while the occurrence was on 7.1.1993. It is to be noticed that while PW 4 was examined by the police on 17.1.1993 and PW 3 was examined by the police on 18.1.1993 but PW 2 Surya Kant was examined on 25.1.1993 and the three other eye-witnesses were examined on 29.1.1993 while the occurrence was on 7.1.1993. It is established from the prosecution evidence itself that these witnesses were the inhabitants of Gandhi Chawl where the ghastly incident occurred and immediately on the next day of the occurrence they were shifted to a local school for safety and were staying there. Normally, therefore, there was no justification on the part of the investigating agency in not examining them for this length of time. The only explanation offered by the investigating officer is that on account of riot the Police was busy with law and order problem but that problem did not continue for this length of time and in fact the investigating officer has failed to indicate as to why the eye-witnesses though available had not been examined till 29.1.1993. We are conscious of the fact that merely because a witness was examined after a considerable period from the date of occurrence his evidence need not be discarded on that ground alone but at the same time while testing the credibility and assessing the intrinsic worth of such witnesses the delay in their examination by the police has to be borne in mind and their evidence would require a stricter scrutiny before being accepted..........." (emphasis added) 37. The foremost argument of learned counsel for the appellants to be considered, relates to the fact averred in the first information report and the facts narrated by P.W.-1, the eyewitness, in his oral testimony. This witness has substantiated the fact related to the scheduled meeting in Panchayat Bhawan on the date of the incident, where a number of people along with accused-appellants and the deceased were present but left the meeting hall before it started. After sometime the accused persons came possessed with addhi (firearm), katta and banka with intention of assaulting the deceased. This witness has substantiated the fact related to the scheduled meeting in Panchayat Bhawan on the date of the incident, where a number of people along with accused-appellants and the deceased were present but left the meeting hall before it started. After sometime the accused persons came possessed with addhi (firearm), katta and banka with intention of assaulting the deceased. As per his testimony, Darshan Pasi armed with Addhi, Lachiman Pasi and Sahai Pasi armed with a country-made pistol, Maharaj Deen and Daya Prasad with banka, chased the deceased, who took shelter inside boundary wall of Ram Avtar where Lachiman Pasi and Sahai Pasi inflicted injuries from their Katta on his neck and skull, Maharaj Deen and Gaya Prasad assaulted with banka. At the first instance, Darshan Pasi shot fire at him causing injuries on the chest and hand of the deceased. The factual position of assault and injuries as narrated by P.W.-1 do not corroborate with the medical evidence and the postmortem report, as, instead of firearm injuries on head and neck, it was sharp edged weapon injuries, which is not in consonance with the oral testimony of P.W.-1. The fact that the Dharshan Pasi shot fire on the deceased on his chest and palm under the tree do not found support from the physical findings of Investigating Officer as neither any empty cartridge or blood was found under or around the tree. 38. It is worth mentioning that P.W.-1 had categorically deposed that after receiving gun-shot injuries on chest and palm, the deceased ran and took shelter inside the boundary wall of Ram Avtar but no blood was found on the way, and, moreover no point of entry of the deceased inside the boundary wall has been shown in the site plan, if it be taken as that the deceased jumped four feet high boundary wall, which appears to be highly improbable, in an injured condition. The aforesaid submission and appreciation of testimony of P.W,-1 raises a question mark on his credibility and trustworthiness. 39. Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallised to the effect, that though the ocular testimony of a witness has greater evidentiary value vis-à-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallised to the effect, that though the ocular testimony of a witness has greater evidentiary value vis-à-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved. 40. In the instant case as referred to hereinabove, as many as five assailants attacked one person but the prosecution case from the very inception of FIR, is very clear that accused-appellant Darshan Pasi shot fire when the deceased was sitting under the tree, causing him injury on chest and left palm, Lachiman Pasi and Sahai Pasi fired on his neck and skull inside boundary wall and Maharaj Deen and Gaya Prasad assaulted the deceased with banka. This fact is categorically substantiated by P.W.-1 in his oral testimony. The postmortem report reveals no firearm injury, either on neck or skull or any other part of the dead body, whereas remaining injuries relate to sharp edged weapon, which may be attributed to alleged use of banka by Maharaj Deen and Gaya Prasad. 41. In any event unless the oral evidence is totally irreconcilable with medical evidence, it has primacy but here medical evidence makes ocular evidence improbable, thus, ocular evidence may be disbelieved, moreso in view of the fact that the P.W.-1 is the sole witness to shoulder the entire burden of prosecution case, as such, he has to be wholly reliable and trustworthy. A single fact discrediting the testimony of sole witness of prosecution, on whose premise the guilt is to be upheld, may lead towards his untrustworthiness. Thus, it can reasonably be concluded that a strict scrutiny and appreciation of testimony of P.W.-1 do not make him as much reliable and trustworthy to base the conviction of the accused-appellants on his sole and uncorroborated testimony. 42. It is fairly well settled that FIR is not substantive piece of evidence, but in the present case, the issue is whether FIR was exactly lodged as narrated by P.W.-2. 42. It is fairly well settled that FIR is not substantive piece of evidence, but in the present case, the issue is whether FIR was exactly lodged as narrated by P.W.-2. The oral testimony of P.W.-2 indicates that he filed a written complaint on the basis of information received from P.W.-1 (Devendra Singh), Santosh Singh, Ram Vilas (D.W.-1) and Virendra Pratap Yadav (D.W.-5), but it has been specifically denied by P.W.-1 that he ever met P.W.-2 (the complainant) before the scribing of written report. As far as the Ram Vilas (D.W.-1) and Virendra Pratap Yadav (D.W.-5) are concerned, they have deposed before the court as defence witnesses and have neither supported the prosecution case nor the version of P.W.-2 (the complainant), and Santosh Singh has not been produced as witness from either side. As per statement of P.W.-1 when he returned back to the spot, the police was already present there. This fact is also substantiated by P.W.-8 (scribe of the FIR), who has gone to the extent of deposing that it was written on the dictation of the police. Thus, it can be logically and reasonably concluded that the police got the information of the incident prior to lodging of any FIR, as they were present on the spot even before scribing of the FIR, therefore, creating a doubt in the entire prosecution case. The aforesaid discussion effectively establishes the fact that it is not clear as to how P.W.-2 got information of the incident and, how come, the police was present at the spot, even before lodging of any first information report, thus leading towards a serious doubt in the prosecution case. It raises an issue about the information given to the police of the incident, may be the present first information report is an afterthought as the enmity has been claimed by the parties. 43. It is pertinent to mention here that the defence witnesses have narrated an entirely different story, though D.W.-1 (Rama Vilas) and D.W.-5 (Virendra Pratap Yadav) are named as eye witnesses in the first information report, filed by the complainant. This fact goes a step further to create suspicion regarding the genuineness of the case. 44. 43. It is pertinent to mention here that the defence witnesses have narrated an entirely different story, though D.W.-1 (Rama Vilas) and D.W.-5 (Virendra Pratap Yadav) are named as eye witnesses in the first information report, filed by the complainant. This fact goes a step further to create suspicion regarding the genuineness of the case. 44. In view of the above, it appears that only facts which have been established by the prosecution beyond doubt are, that there was ill-will between the parties on account of election, that the murder of the deceased was committed and his dead body was found inside the boundary wall of Ram Avtar on 31.08.2000. These facts raise strong suspicion that the accused-appellants committed the murder of the deceased and the sole testimony of single eye witness be recorded as conclusive of the circumstances of the case. It is highly improbable to conclude on the basis of testimony of single eye witness that the accused-appellants committed murder of the deceased. The prosecution has utterly failed to discharge his burden of proving the accused beyond reasonable doubt at the time and place as alleged in the charge. The accused-appellants are entitled to get benefit of doubt. 45. Thus, on the basis of analysis made herein above, this Court is of the view that the trial court's finding on the point of holding guilty the accused appellants, namely, Ram Sahai, Darshan Pasi, Gaya Prasad and Maharaj Deen for the offence under Sections 148, 302/149 and 506 I.P.C. is not in accordance with the evidence and law and the same is not sustainable, and the appeals filed by the appellants namely Ram Sahai, Darshan Pasi, Gaya Prasad and Maharaj Deen are liable to be allowed. 46. For all the reasons stated above, the appellants are entitled to the benefit of doubt and accordingly are entitled to acquittal. 47. In the result, the appeals are allowed and the judgment and order dated 25.11.2005 passed by learned Additional Sessions Judge, Lucknow in Sessions Trial No.1189 of 2001 is hereby set aside so far as it relates to the appellants, namely, Ram Sahai, Darshan Pasi, Gaya Prasad and Maharaj Deen are acquitted on benefit of doubt of the charges levelled against them. 48. The appellants Ram Sahai, Darshan Pasi and Maharaj Deen are in jail. They shall be released forthwith, if they are not wanted in any other case. 48. The appellants Ram Sahai, Darshan Pasi and Maharaj Deen are in jail. They shall be released forthwith, if they are not wanted in any other case. The appellant, Gaya Prasad is on bail. He need not surrender. His bail bonds and sureties stand discharged. 49. The Senior Registrar is directed to ensure compliance by forwarding a certified copy of this judgment to the court concerned forthwith.