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2022 DIGILAW 1930 (ALL)

Bhagwat v. State of U. P.

2022-12-07

ARVIND KUMAR MISHRA I, MAYANK KUMAR JAIN

body2022
JUDGMENT : MAYANK KUMAR JAIN, J. 1. This criminal appeal has been preferred by the appellants against the judgment and order of sentence dated 30.03.1984 passed by Sri Khem Singh, the then 6th Additional Sessions Judge, Azamgarh in Sessions Trial No. 72 of 1980 (State vs. Bhagwat and Others) arising out of Case Crime No. 910/79 under Sections 302/34 IPC, Police Station Kotwali District Azamgarh whereby appellants-accused Bhagwat, Sahab, Lalloo and Kamta were convicted under Section 302 read with Section 34 of IPC and sentenced to undergo life imprisonment. 2. Facts giving rise to the prosecution case are that Phool Chand submitted a written report (Ex Ka 1) to Inspector Kotwali, District Azamgarh on 28.10.1979, wherein it was stated that he along with his son Kunwar Bharat was sleeping in the Verandah adjacent to his ‘Baithak’ on 27.10.1979. At around 12:00 midnight, 10 to 15 persons came suddenly from the western lane flashing their torches. He heard the sounds “Yahi-Yahi.” He identified the accused Bhagwat, Sahab, Lallu, and Kamta among them. Apprehending danger, he ran towards his house. His son rushed towards his other house situated on the eastern side of his Baithak. Later, he also rushed toward the direction where his son had gone. He had a ‘danda’ in his hand He shouted while approaching his son. He heard three sounds and later found that his son had died. His wife and sister-in-law (‘Bhabhi’) had already come out. When he reached, he found that his wife was crying and saying that Bhagwat had killed her son with a bomb. At that time, his bhabhi Chandradeiya, his wife Jagpatiya and Hardev were present on the spot. 3. On the basis of the aforesaid written report (Ex Ka-1), the first information report (Ex Ka 3) was registered with Police Station Kotwali, Azamgarh as Case Crime No. 910 of 1979 naming the appellants as accused persons. The investigation was entrusted to Sub Inspector Bal Karan Singh, who started the investigation and prepared the inquest report (Ex C-1) of the dead body of the deceased Kunwar Bharat and sent it for post-mortem along with relevant documents. He recorded the statements of the witnesses and prepared the site plan (Ex. C-6) and other documents. The accused-appellants were arrested during the investigation. After the conclusion of the investigation, a charge sheet came to be filed against appellants under Section 302/34 of IPC. 4. He recorded the statements of the witnesses and prepared the site plan (Ex. C-6) and other documents. The accused-appellants were arrested during the investigation. After the conclusion of the investigation, a charge sheet came to be filed against appellants under Section 302/34 of IPC. 4. Thereafter, the case was committed to the Court of Session where it was registered as Session Trial No. 72 of 1980. Charges under Section 302/34 IPC were framed against the accused-appellants. The accused-appellants pleaded not guilty and claimed to be tried. 5. To bring home the charges against the accused-appellants, the prosecution produced four witnesses of fact PW-1 Hardev, PW-2 Phool Chand (the complainant), PW-3 Chandradeiya, PW-4 Jagpatiya (wife of the complainant) and three formal witnesses - PW-5 Dr. R.R. Rai, who conducted the post-mortem examination of deceased Kunwar Bharat, PW-6 Ram Achhaibar Dubey, HCP and PW-7 S.I. Bal Karan Singh, the Investigating Officer. 6. After the close of prosecution evidence, statements of the appellants-accused were recorded under Section 313 of Cr.P.C. in which they denied the commission of the crime and their presence at the house of the complainant at the time of the incident. They have also denied committing the murder of Kunwar Bharat. They alleged that the Investigating Officer filed a false charge sheet against them. They had been implicated due to village enmity and hence the witnesses deposed against them. 7. Hearing both the parties and after vetting the evidence and facts and circumstances of the case, the trial court recorded conviction and passed the sentence against the appellants as aforesaid. 8. Being aggrieved by the impugned judgment and order of sentence the accused-appellants have preferred the present criminal appeal. 9. We have heard Sri Daya Shankar Mishra, learned Senior Advocate assisted by Sri Chandrakesh Mishra, learned counsel for the appellants and Sri M.P.S. Gaur, Sri Alok Kumar Tripathi and Sri Om Prakash, learned AGA for the State and perused the record. We have also re-appreciated the evidence available on record. 10. On the basis of the evidence available on record, under the facts and circumstances of the case, it has to be determined as to whether on the intervening night of 27/28.10.1979 at around 12:30 a.m. the accused-appellants committed the murder of the son of the complainant Kunwar Bharat in furtherance of common intention. 11. 10. On the basis of the evidence available on record, under the facts and circumstances of the case, it has to be determined as to whether on the intervening night of 27/28.10.1979 at around 12:30 a.m. the accused-appellants committed the murder of the son of the complainant Kunwar Bharat in furtherance of common intention. 11. Learned counsel for the appellants argued that the complainant Phool Chand is not the eyewitness of the occurrence and he had not seen any of the appellants committing the murder of his son. The witness Hardev, who is said to be present at the time of occurrence, has not supported the prosecution story during his deposition. There are material improvements in the evidence of the complainant and against the facts mentioned in the First information report. There are material contradictions and discrepancies in the oral evidence of PW-2 Phool Chand, PW-3 Chandradeiya and PW-4 Jagpatiya. The medical evidence also does not corroborate the prosecution story. The FIR is also silent about so many facts narrated by the witnesses in their evidence. It is alleged by the prosecution that the deceased was sleeping in the Verandah, but none of the appellants, as alleged, approached him or caused any damage to him. If there would have been an intention to commit the murder of Kunwar Bharat, some immediate injury would have been caused to him at that time. As per the prosecution story, at the time of throwing the bomb, other persons were also standing there but none of them had suffered any kind of injury. No motive has been assigned to the appellants to commit the murder of Kunwar Bharat. The manner of assault as deposed by the witnesses of fact does not prove the prosecution story. The evidence of witnesses of fact is not reliable and it is full of material contradictions with each other. 12. To buttress his argument, learned counsel for the appellants argued that PW-3 Chandradeiya stated that she did not suffer any injury while she followed the appellants and at the time of occurrence she was standing close to Kunwar Bharat. No bloodstained clothes were handed over to the Investigating Officer even though she had stated that bloodstains occurred on her clothes during the incident. No bloodstained clothes were handed over to the Investigating Officer even though she had stated that bloodstains occurred on her clothes during the incident. It is further submitted that PW-1, the complainant alleged that 10-15 persons came to the house flashing lights of the torches but he named only the appellants as accused and other persons were not named for the reason best known to the complainant. None of the appellants suffered any kind of injury while it is a case of the prosecution that the bomb was thrown upon the deceased from close proximity. No motive was available to the appellants to commit the murder of Kunwar Bharat since there was no enmity with him. The appellants have falsely been implicated. There was no source of light at the time of occurrence and it is not possible to identify the appellants, in the light of the torch by the witnesses. The torches were not taken into possession by the investigating officer during the investigation. The trial Court has not rightfully appreciated the evidence and has ignored important aspects of the case. The Investigating Officer has been examined as a Court witness which was beyond the jurisdiction of the trial Court. The prosecution has utterly failed to prove the charge against the appellants. The appellants are liable to be acquitted and the appeal deserves to be allowed. 13. Per contra, learned AGA argued that the first information report of the matter was promptly registered at 02.10 am while the incident took place at around 12:30 am. The appellants were identified by the witnesses in the light of the torches which they were having at the time of occurrence. The witnesses of fact have corroborated the prosecution version and if there are minor contradictions or discrepancies which do not adversely affect the case of the prosecution, they are to be ignored. The medical evidence is consistent with the prosecution story. Kunwar Bharat, a boy of 13 years of age was brutally murdered by the appellants by throwing a bomb at him. The presence of the appellants on the spot is proved by the witnesses of fact. The investigation of the case was fairly conducted by the Investigating Officer and based on evidence collected during the investigation, a charge sheet was filed against the appellants. The appellants have rightly been convicted and sentenced by the trial Court. The presence of the appellants on the spot is proved by the witnesses of fact. The investigation of the case was fairly conducted by the Investigating Officer and based on evidence collected during the investigation, a charge sheet was filed against the appellants. The appellants have rightly been convicted and sentenced by the trial Court. The judgment of the trial Court was passed after appreciating the evidence available on record rightfully. The prosecution has succeeded to bring home the charge against the appellants. Thus, the appeal is liable to be dismissed. 14. PW-1 Hardev is the witness of the FIR and is said to be present at the place of occurrence. He stated in his evidence that on the day of the occurrence at around 12-12.30 am he was at his residence. Upon hearing the sound of a bomb explosion, he reached “Siwan.” He reached the place of occurrence where a dead body was lying. No one was present there. A dead body was lying there which he could not recognize. Hours later he came to know that the body was of Kunwar Bharat, son of Phool Chand. He did not see anyone attacking him with a bomb. He arrived at the place of occurrence after the incident. 15. PW-2 Phool Chand is the complainant and father of the deceased Kunwar Bharat. He stated in his evidence that his son Kunwar Bharat, aged 13 years, was murdered at around 12-12:30 midnight. He was sleeping in the Verandah of his ‘Baithak’ along with his son Kunwar Bharat. On hearing the barking of a dog he woke up and also awakened his ‘Bhabhi Chandradeiya’ and asked her why the dog was barking. She came out and told him that some persons were approaching flashing the torchlight. 10 to 15 people came there. Out of them he identified Bhagwat, Sahab, Kamta and Lalloo. He hid inside the house and then climbed up on the roof of his house. His son ran towards his ‘Kachcha’ house. Bhagwat chased his son, caught hold of him and took him through the lane to the eastern side. The complainant came down from the roof and went to his house but no one was there. Then he rushed to his ‘Rahat’ on the eastern side. He heard the sound of 2-3 bomb explosions. Beerbal, Hardev, Chandradeiya and his wife Jagpatiya met him. The complainant came down from the roof and went to his house but no one was there. Then he rushed to his ‘Rahat’ on the eastern side. He heard the sound of 2-3 bomb explosions. Beerbal, Hardev, Chandradeiya and his wife Jagpatiya met him. He was informed by his wife and Chandradeiya that Bhagwat had killed his son by throwing a bomb over his head and then ran away. He went close to his son who was lying on road, south to “Rahat.” Due to the explosion, his head was severed and he died. He identified the accused in the light of the torch which was in their hands. Before this incident, the accused Bhagwat wanted to carve out a water drain through his ‘Chak’ which the complainant had resisted. For this, Bhagwat had filed a civil suit and hence, Bhagwat was inimical to him. Report of this occurrence was dictated by him to Udaybhan Singh and after hearing the same, putting his thumb impression he handed it over to the police station. He has proved the written report as Ex. Ka-1. He also stated that Bhagwat lodged a false report about the dacoity at his house naming the complainant. But after the investigation, the final report was submitted on that matter. 16. PW-3 Chandradeiya stated in her examination-in-chief that on the day of the occurrence she was sleeping in her house. Phool Chand and Kunwar Bharat were sleeping in the same house on a common cot. Phool Chand woke her up and asked her to check as to why the dogs were barking on the roof. She went to the lane in the Verandah and saw 10 to 15 persons carrying torches approaching. They were armed with “Lathi, Goli and Bhala.” They came in front of their Verandah. She informed Phool Chand who then climbed up the roof of the house. Assailants flashed the torchlight on the cot of Phool Chand. Due to this, Kunwar Bharat rushed towards his mother’s ‘Kuchcha’ house. Assailants chased Kunwar Bharat. She also went after them crying. Kunwar Bharat knocked on the door of his mother. The moment his mother opened the door, Bhagwat, Sahab, Lalloo and Kamta caught hold of Kunwar Bharat and dragged him towards ‘Rahat’. She along with the mother of Kunwar Bharat ran after them. She saw that three bombs exploded at the door of the Bhagwat. She also went after them crying. Kunwar Bharat knocked on the door of his mother. The moment his mother opened the door, Bhagwat, Sahab, Lalloo and Kamta caught hold of Kunwar Bharat and dragged him towards ‘Rahat’. She along with the mother of Kunwar Bharat ran after them. She saw that three bombs exploded at the door of the Bhagwat. Bhagwat attacked Kunwar Bharat with a bomb towards the south of ‘Rahat’. All the assailants ran away towards the western side. She identified the accused in the light of the torch. Kunwar Bharat died after sustaining injuries from the bomb. 17. PW-4 Jagpatiya stated in her examination-in-chief that on the day of the occurrence she was sleeping in her ‘Kachcha’ house. Her son Kunwar Bharat was sleeping with his father in the ‘Pakka’ house. Chandradeiya was also sleeping there. At midnight Kunwar Bharat came to her crying and started banging on the door. As soon as she opened the door accused Sahab, Bhagwat, Lalloo and Kamta came there Bhagwat and Sahab caught hold of Kunwar Bharat, and Kamta and Lalloo pushed him towards ‘Rahat’. They were in all 10 to 15 people. Lalloo, Kamta and one unknown person were having torches. Chandradeiya also came there. She along with Chandradeiya went after Kunwar Bharat and Bhagwat. These people took Kunwar Bharat to the southern side of ‘Rahat’ Bhagwat attacked Kunwar Bharat with a bomb. His head was severed and he died. She wept and cried. Phool Chand, Birbal and Hardev came in this order. All the assailants ran towards the western side. When these 10-15 people were taking away Kunwar Bharat, she heard three bomb explosions at the door of Bhagwat. 18. PW-5 Dr. R.R. Rai stated in his evidence that he conducted the post-mortem on the body of deceased Kunwar Bharat on 28.10.1979 at 3:15 pm. The age of the deceased was 13 years. The following injuries were found: Anti-mortem Injuries 1. Badly lacerated wound on head and face in the area of 20 cm x 17 cm, must of skull missing, most of skull badly fractured and most of bone pieces missing. Membrane of brain matter missing. Most of brain matter missing in to pieces. Both eye ball with eye brows and eye lids and nose and upper or lower lip with surrounding facial muscles with skin missing with facial bone with upper jaw missing. Membrane of brain matter missing. Most of brain matter missing in to pieces. Both eye ball with eye brows and eye lids and nose and upper or lower lip with surrounding facial muscles with skin missing with facial bone with upper jaw missing. Lower jaw badly fractured into pieces. Tongue lacerated in whole, whole face except right ear badly lacerated parts missing. The lacerated wound of head and face looking in one. 2. Multiple abrasion in a area of 30 cm x 15 cm on front of both shoulder upper part and front sides of neck. Yellow powder seen in places. This witness has proved the post-mortem report as Ex Ka-2. 19. PW-6 H.C. 105 Achhaivar Dubey stated in his evidence that on 28.10.1979 he was posted at Police Station Kotwali Azamgarh as head Moharir. On the basis of the written report (Ex Ka-1), he prepared the first information report in his writing and signature. The first information report is proved as Ex Ka-3. Registration of the case was entered in Rapat at 2.20 am. The witness has proved the entry of G.D. as Ex Ka-4. 20. CW-1 S.I. Balkaran Singh is the Investigating Officer of this case. He stated in his examination-in-chief that in October 1979 he was posted as S.I. in Kotwali Azamgarh. The case was registered in his presence and the investigation was entrusted to him. He reached the place of occurrence on 28.10.1979 and the inquest proceedings were conducted. This witness has proved the inquest report as Ex C-1. Documents such as the photo of the dead body “Khaka Naash” report to C.M.O. and other documents were proved by this witness as Ex C-2 to Ex-4. The dead body of the deceased was sent for post-mortem. The evidence of the witnesses was recorded. He collected plain soil and blood-stained soil from the place of occurrence. He prepared the recovery memo which he proved as Ex C-5. During the investigation, he prepared the site plan of the place of occurrence which he proved as Ex C-6. After concluding the investigation, he submitted the charge sheet against all the accused which is proved by him as Ex C-7. 21. Now we proceed to re appreciate the documentary and oral evidence produced before the trial court. 22. During the investigation, he prepared the site plan of the place of occurrence which he proved as Ex C-6. After concluding the investigation, he submitted the charge sheet against all the accused which is proved by him as Ex C-7. 21. Now we proceed to re appreciate the documentary and oral evidence produced before the trial court. 22. In the present appeal, the question which needs to be determined is whether, on the intervening night of 27/28.10.1979, the appellants committed the murder of Kunwar Bharat, by throwing a bomb at him. 23. It is to be noted that in a criminal trial, the burden of proof lies upon the prosecution to prove the charge beyond reasonable doubt. 24. As per the case of the prosecution, as described in the first information report, the complainant Phool Chand was sleeping along with his son Kunwar Bharat in the Verandah adjacent to his ‘Baithak’. From the western lane, 10-15 persons came flashing the torchlights and they were shouting “Yahi-Yahi.” The complainant identified the appellants-accused Bhagwat, Sahab, Lalloo and Kamta. Out of fear, the complainant ran towards his ‘Kothari’ while his son rushed towards the house of the complainant which was situated on the eastern side of the ‘Baithak’. The complainant raised the alarm and rushed towards the direction where his son had run away. He heard the sounds of three bomb explosions and found his son had died. When he reached the spot, his wife (PW-4) was crying saying that appellant Bhagwat attacked his son with a bomb. The Sister-in-law of the informant, Chandradeiya (PW-3) and Hardev (PW-1) were also present there. 25. PW-2 Phool Chand in his examination in chief has made material improvements vis-a-vis the first information report. In his examination-in-chief, he stated that he woke up around 12-12:30 midnight to the sound of the barking of a dog. He asked his sister-in-law (bhabhi), PW-3, why the dog was barking. She came out and informed him that some persons are approaching flashing the torchlight. 10-15 persons came there and amongst them, he identified the appellants because they flashed the torch light on his cot. Bhagwat caught hold of his son and took him away to the eastern side. The complainant came down from the roof of his house and reached ‘Rahat’ where he heard 2-3 bomb explosions. 10-15 persons came there and amongst them, he identified the appellants because they flashed the torch light on his cot. Bhagwat caught hold of his son and took him away to the eastern side. The complainant came down from the roof of his house and reached ‘Rahat’ where he heard 2-3 bomb explosions. His wife and Bhabhi told him that Bhagwat attacked the head of his son Kunwar Bharat and went away. He found his son dead. 26. The facts that the informant woke up to the sound of barking of the dog; he identified the appellants in the light of the torch; Bhagwat caught his son Kunwar Bharat; he heard the sound of 2-3 bomb explosions when he was rushing to his son; all amount to improvements in his evidence since these facts find no mention in the first information report (Ex Ka 1). 27. In his cross-examination the complainant stated that he was standing in the Verandah when Chandradeya came to him and he then ran to his house but he also stated that when 10-15 persons came there he was sleeping with Kunwar Bharat. These statements are self-contradictory. 28. He further stated that he confronted these 10-15 people, standing at a distance of 4-6 steps from him and at this time, Kunwar Bharat was sleeping nearby on the cot. These people were not carrying any bombs or guns, but they had ‘lathi’ and ‘ballam’ or ‘gandasi’ and ‘bhala’. The complainant had also not mentioned these facts in his first information report. Moreover, later during the cross-examination, he stated that the assailants were not having ‘Gandasa’ instead they had only ‘lathi’ and ‘ballam’. He also stated that he did not see from the front whether the assailants were armed. 29. He stated that he had mentioned in his report that Bhagwat caught hold of his son after chasing him but this fact also does not find any place in the FIR. 30. PW-2 also stated in his cross-examination that he mentioned the barking of a dog in his report (Ex Ka-1). He also narrated that he asked his Bhabhi why the dog was barking but with regard to this fact also, the FIR is silent. 31. All of the above show that PW-2 has made material improvements during his statement and the entire deposition. 32. He also narrated that he asked his Bhabhi why the dog was barking but with regard to this fact also, the FIR is silent. 31. All of the above show that PW-2 has made material improvements during his statement and the entire deposition. 32. In his evidence, PW-2 stated that there was an earlier dispute between Bhagwat (one of the accused) and him concerning a drain of tubewell. Bhagwat wanted to carve out a drain through his ‘Chak’ which the complainant had resisted. As a result, Bhagwat filed a civil suit against the complainant. The complainant had preferred an appeal against the judgment relating to this matter, before the High Court. The complainant believes and had assigned this dispute as the motive behind the commission of this crime by the appellant-accused. Further, in his cross-examination, he stated that one out of the said 10-15 people shouted “yahi hai” and that these words were about him. He did not know why the assailants had come to his house. He told the Investigating Officer that the accused came along with other people to kill him. His son Kunwar Bharat was killed by these assailants since there was a dispute related to a drain. This evidence goes to show that the assailants came to target the complainant and not his son Kunwar Bharat. 33. The complainant stated that he had to face ten persons whom he did not recognize. Out of 10 to 15 persons, nobody rushed to the complainant or said anything to him. He was not attacked by any of them and nobody entered the Verandah or the room. He passed through these 10-15 persons within the close proximity of 2-1 steps. Even then, no one out of them rushed towards him to attack him. 34. If this evidence of the complainant is relied upon, it would appear that the assailants did not come there to attack him. The complainant in his evidence stated that when he was rushing toward his “Kaccha” House from Pucca house, he was actually behind the assailants within a distance of 10-15 steps. Even at that time, these assailants did not turn back to attack him. 35. The complainant in his evidence stated that when he was rushing toward his “Kaccha” House from Pucca house, he was actually behind the assailants within a distance of 10-15 steps. Even at that time, these assailants did not turn back to attack him. 35. Based on this evidence, it is unbelievable that on one hand, the complainant submits that the assailants had come to injure or attack him but on the other hand no injury was caused to him even when the assailants had enough opportunity to do so in the close proximity with him. The testimony of the complainant creates serious doubt about prosecution version as to why the assailants remained inactive and did not attack the complainant when they had sufficient opportunity to kill him since according to the complainant assailants came to target him. 36. So far as the question of the killing of Kunwar Bharat by appellants is concerned, PW2 stated that when his bhabhi Chandradeiya went from his house Kunwar Bharat was sleeping on the cot. The assailants did not make any effort to catch Kunwar Bharat and they did not even approach him. When Kunwar Bharat rushed from his “Pakka” house to “Kachha” house he passed through the same lane where the assailants were standing. PW-2 did not see assailants heading toward Kunwar Bharat or attacking him. 37. This evidence of the complainant belies the theory of the prosecution and creates reasonable doubt over the occurrence as stated by the prosecution. 38. PW-3 Chandradeiya stated that she heard the sound of three bomb explosions at the door of Bhagwat, the appellant. In her cross-examination, she said that when the informant came down from his roof she was with Kunwar Bharat at ‘Rahat’. Assailants did not make any effort to enter into the Verandah or ‘Pakka’ house of the informant. None of them either tried to catch her or Kunwar Bharat. When the informant was sleeping, none of the assailants headed towards him or Kunwar Bharat for attacking them, instead these 10-15 persons were standing at their place. 39. On the basis of the aforesaid evidence it appears to be quite unnatural as to why the assailants did not react and catch this witness or Kunwar Bharat at that time. This shows that the accused had no intention to kill Kunwar Bharat. 39. On the basis of the aforesaid evidence it appears to be quite unnatural as to why the assailants did not react and catch this witness or Kunwar Bharat at that time. This shows that the accused had no intention to kill Kunwar Bharat. This witness has also stated about the unnatural conduct of the accused that when she was heading towards the ‘Kachcha’ house, none of the assailants approached her. Kunwar Bharat stood for a while close to his cot. She stated that when the assailants flashed the light of the torch at Kunwar Bharat at that time the informant was on his roof. She saw Kunwar Bharat near the door of the ‘Kachcha’ house and at that time assailants were at a distance of 2-3 hands from Kunwar Bharat and she was towards the eastern side at a distance of 2-4 hands. When she and the wife of the informant were crying none of the assailants attempted to attack them. The assailants did not make any effort to catch them from the ‘Kachcha’ house to ‘Rahat’. When she reached the well she did not see Phool Chand. 40. PW-4 Jagpatiya, wife of the complainant and mother of the deceased, stated in her cross-examination that when she opened the door of her house, the assailants were 3-4 steps away from Kunwar Bharat and he was not surrounded. Neither she nor Chandradeiya was surrounded by the assailants. They were also not threatened by them even though they did not speak to them. None of the assailants tried to kill Kunwar Bharat at her house or on the way to ‘Rahat’. She along with Kunwar Bharat and the assailants stayed at ‘Rahat’ for about ten minutes. 41. This evidence of PW-4 Jagpatiya also raises serious doubt about the commission of the crime by the accused persons as said earlier. The assailants did not kill Kunwar Bharat at the place where he was sleeping, or when he passed through the assailants while he was approaching the house of his mother. They also did not try to kill him at the house of his mother (PW-4). They did not make any effort to kill him on the way up to ‘Rahat’ and they stood there for about ten minutes. 42. This conduct of the assailants clearly indicates that the assailants had no intention to kill Kunwar Bharat. They also did not try to kill him at the house of his mother (PW-4). They did not make any effort to kill him on the way up to ‘Rahat’ and they stood there for about ten minutes. 42. This conduct of the assailants clearly indicates that the assailants had no intention to kill Kunwar Bharat. Moreover, the assailants did not make any endeavor to catch or attack the complainant, PW-3 Chandradeiya or PW-4 Jagpatiya. 43. The Hon’ble Apex Court in the case of Durbal vs. State of U.P. (2011) 2 SCC 676 observed that: “17. The whole prosecution case is that on account of the dispute over fishery rights, the accused bore a grudge against Kaldhari (PW-1) and even threatened him with dire consequences. Whether there was any dispute over the fishery rights itself is highly doubtful. The only person apart from PW-1 who speaks about the dispute is Magan (PW-4) who was examined by the police after more than two months of the occurrence. It is true, motive for committing the crime pales into insignificance in a case where the prosecution story rests upon the evidence of eyewitnesses. But, for the purposes of evaluating and appreciating the evidence, the sequence of events cannot be ignored. 18. Be that as it may, there was no enmity whatsoever between the deceased and the accused. When the suggested enmity, if at all, was between the accused and Kaldhari (PW-1), there does not appear to be any reason as to why the accused should attack the deceased and leave Kaldhari unscratched. Admittedly, there was not even an attempt by the accused to attack Kaldhari. This story somehow appears unbelievable and difficult to accept. At any rate, there is no evidence adduced by the prosecution in this regard.” 44. In view of the observation made by the Hon’ble Apex Court in the case in hand also, on the basis of the prosecution evidence, it is clear that the complainant alleged that the appellants had enmity with him with regard to carving out some drain from his ‘Chak’ which the complainant had resisted. Further the complainant had stated that the recital of the word “yahi-yahi” was in reference to him. Therefore, the appellant had no enmity with Kunwar Bharat, the deceased. Further the complainant had stated that the recital of the word “yahi-yahi” was in reference to him. Therefore, the appellant had no enmity with Kunwar Bharat, the deceased. There does not appear any reason as to why the accused-appellant would attack Kunwar Bharat and leave the complainant and other witnesses of fact unscratched. Pertinent to mention here that there was not even an attempt by the accused-appellant to attack the complainant Phool Chand. Therefore, the case of prosecution appears to be unbelievable and difficult to accept. 45. In her deposition, PW-3 Chandradeiya stated that when 3-4 bombs exploded at the door of the accused Bhagwat she was near the well along with Kunwar Bharat. All the assailants were 2-3 steps away from them. Both of them stood there for two minutes. She and Kunwar Bharat went towards the southern ‘Rasta’ from the well and remained there for around one hour. 46. PW-3 Chandradeiya in her deposition stated that when accused Bhagwat threw a bomb upon Kunwar Bharat, she was standing at a distance of 3-4 hands from him. Kunwar Bharat was standing beside her. She did not sustain any injury. 10-15 persons were also standing at a distance of 3-4 hands from Kunwar Bharat. 47. It is highly improbable that when PW-3 was standing within close proximity of the deceased Kunwar Bharat and 10-15 persons were also standing within close proximity of Kunwar Bharat, none of them sustained any injury while it is alleged that a powerful bomb was thrown on the face of the Kunwar Bharat. 48. PW-4 Jagpatiya also stated in her cross-examination that Kunwar Bharat was attacked from a distance of 3-4 steps. She did not sustain any injury and did not receive any bloodstains on her clothes. 49. The aforesaid evidence of PW-3 Chandradeiya and PW-4 Jagpatiya also creates serious doubt about the prosecution story. These two witnesses stated that both of them and the assailants were standing very close to Kunwar Bharat but neither these witnesses nor any of the assailants sustain any injury. PW-5 Dr. R.R. Rai has stated in his evidence that the intensity of the bomb was very severe. It is highly improbable that the persons standing in close proximity to Kunwar Bharat did not sustain any injury while it was a powerful bomb. This improbability creates serious suspicion about the prosecution version. 50. PW-5 Dr. R.R. Rai has stated in his evidence that the intensity of the bomb was very severe. It is highly improbable that the persons standing in close proximity to Kunwar Bharat did not sustain any injury while it was a powerful bomb. This improbability creates serious suspicion about the prosecution version. 50. PW-4 Jagpatiya is an important witness in this case. She has alleged to have witnessed the incident. PW-4 in her examination in chief stated that when her son Kunwar Bharat came to her at midnight on the day of the occurrence and when she tried to open the door, the accused Sahab and Bhagwat caught hold of her son Kunwar Bharat and the accused Kamta and Lalloo pushed him and took him away. Assailants were 10-15 in number. 51. This fact has been narrated first time by this witness in the Court. and not mentioned in the first information report either by the informant or by any other witnesses such as PW-3 Chandradeiya. This witness has also stated in her examination in chief that when she was crying after the occurrence, her husband Phool Chand arrived at the spot and thereafter Beerbal and Hardev came there. This evidence proves that the informant is not the eyewitness of the incident. Further, this witness has also stated that she heard the sound of three bomb explosions at the door of accused Bhagwat when the assailants were dragging Kunwar Bharat. 52. PW-2 Phool Chand in the first information report mentioned that out of fear when the assailants came, he rushed towards ‘Kothari’ but in his evidence, he stated that he hid inside the house and thereafter he climbed up the roof of the house. The complainant, PW-1 Phool Chand, in his cross-examination stated that at the time of lodging the FIR, he went to the police station alone and nobody was accompanying him. However, CW-1 Bal Karan Singh, the Investigating Officer stated in his evidence that Ram Janam Singh and Harish Chandra R/o Devkhari came along with the complainant to the Police Station. These variations in the statements made by the informant amount to a material contradiction in the version of the complainant. 53. However, CW-1 Bal Karan Singh, the Investigating Officer stated in his evidence that Ram Janam Singh and Harish Chandra R/o Devkhari came along with the complainant to the Police Station. These variations in the statements made by the informant amount to a material contradiction in the version of the complainant. 53. PW-3 Chandradeiya stated that the assailants chased Kunwar Bharat, but PW-2 Phool Chand did not mention this in his evidence while it is said that both the witness were present at the ‘Pukka’ house when the assailants came. 54. PW-4 Jagpatiya first time had narrated in her statement to the Investigating Officer that Bhagwat was carrying a bag while PW-7 Balkaran Singh, Investigating Officer specifically denied that PW-4 stated that Bhagwat was carrying a bag. It is pertinent to mention here that none of the prosecution witnesses such as PW-2 Phool Chand and PW-3 Chandradeiya and PW-4-Jagpatiya stated in their evidence that the assailants were carrying a bomb in their hands. Therefore, the evidence that Bhagwat was carrying a bag at the time of occurrence amounts to an improvement and embellishment in the evidence of the prosecution witness. 55. PW-3 Chandradeiya has also stated in her evidence that when she informed about the assailants he climbed on the roof of ‘Kothari’. PW-3 in her evidence stated that all four accused caught hold of Kunwar Bharat and took him away near the ‘Rahat’. This evidence is not corroborated with the evidence of PW-2 (informant) while PW-4 Jagpatiya as referred to above, stated that Bhagwat and Sahab caught Kunwar Bharat and Kamta and Lallu pushed Kunwar Bharat towards the ‘Rahat’. This is the material contradiction in the evidence of the fact. PW-3 Chandradeiya in her cross-examination stated that when the assailants flashed the light of the torch on the cot of Kunwar Bharat at that time informant was on the roof. This evidence is also not corroborated by the evidence of PW-2 Phool Chand. 56. There are material contradictions between the testimonies of PW-2 Phool Chand, PW-3 Chandradeiya and PW-4 Jagpatiya and these material contradictions adversely affect the prosecution story. 57. This evidence is also not corroborated by the evidence of PW-2 Phool Chand. 56. There are material contradictions between the testimonies of PW-2 Phool Chand, PW-3 Chandradeiya and PW-4 Jagpatiya and these material contradictions adversely affect the prosecution story. 57. The Hon’ble Supreme Court in Krishnegowda vs. State of Karnataka, (2017) 13 SCC 98 observed that material contradiction in the testimony of prosecution witness creates serious doubt in the mind of the court about the truthfulness of the witnesses and hence it cannot be held that the prosecution has proved the guilt beyond reasonable doubt and the accused are entitled for benefit of doubt in such case. The Hon’ble Court held: “...26. Having gone through the evidence of the prosecution witnesses and the findings recorded by the High Court we feel that the High Court has failed to understand the fact that the guilt of the accused has to be proved beyond reasonable doubt and this is a classic case where at each and every stage of the trial, there were lapses on the part of the investigating agency and the evidence of the witnesses is not trustworthy which can never be a basis for conviction. The basic principle of criminal jurisprudence is that the accused is presumed to be innocent until his guilt is proved beyond reasonable doubt. 27. Generally in the criminal cases, discrepancies in the evidence of witness is bound to happen because there would be considerable gap between the date of incident and the time of deposing evidence before the court, but if these contradictions create such serious doubt in the mind of the court about the truthfulness of the witnesses and it appears to the court that there is clear improvement, then it is not safe to rely on such evidence. The minor variations and contradictions in the evidence of the eyewitnesses will not tilt the benefit of doubt in favour of the accused but when the contradictions in the evidence of the prosecution witnesses proves to be fatal to the prosecution case then those contradictions go to the root of the matter and in such cases the accused gets the benefit of doubt.” 58. In the instant case, the evidence of PW-2 the complainant, PW-3 Chandradeiya and PW-4 Jagpatiya have material contradictions with each other and they have made certain improvements in their evidence. In the instant case, the evidence of PW-2 the complainant, PW-3 Chandradeiya and PW-4 Jagpatiya have material contradictions with each other and they have made certain improvements in their evidence. Therefore, the evidence of these witnesses does not inspire confidence and hence is not trustworthy. Moreover, the eye witness PW-1 Hardev, named in the FIR has also not supported the prosecution version. In such case, the benefit of the doubt shall be extended to the accused-appellants. 59. PW-3 Chandradeiya in her statement stated that when she was approaching the ‘Kachcha’ house from the ‘Pakka’ house she did not raise any alarm to call her neighbours Rajendra, Mohan, Baldev and Chhedi. Phool Chand shouted for help from other people but nobody came forward. This fact also indicates that as per the prosecution witnesses when the assailants were taking Kunwar Bharat away with him they did not raise any alarm or they did not even try to obtain any assistance from the neighbours. This fact casts a shadow of doubt upon the prosecution story. 60. PW-3 also stated that when she hugged Kunwar Bharat after the incident, her clothes were stained with the blood of Kunwar Bharat and she continued to wear those bloodstained clothes but she did not give those clothes to the investigating officer. 61. PW-7 S.I. Totaram who conducted the investigation of this matter has denied that Phool Chand gave him the statement that the accused were carrying torch light in their hands. According to him, PW-2 did not give any kind of statement that he chased the assailants. PW-3 Chandradeiya did not give any statement that she along with the wife of the informant made any noise. They heard the sound of a bomb blast. The witnesses who said that a certain statement was given by them to Investigating Officer, have been denied by PW-7. 62. PW-1 Hardev is the witness of the first information report. It is stated by PW-2 Phool Chand and PW-4 Jagpatiya that Hardev came to the place of occurrence but this witness was examined as PW-1 and he denied the prosecution story in his cross-examination and also denied his presence at the time of occurrence. He stated that was at his house. He did not identify the dead body and hours later he came to know that the dead body is of Kunwar Bharat. He stated that was at his house. He did not identify the dead body and hours later he came to know that the dead body is of Kunwar Bharat. He did not witness any of the accused attacking Kunwar Bharat. In his cross-examination made on behalf of the defence he stated that the bomb was fired at the residence of the accused and he went there. Many persons from the village were also approaching them. The assailants ran away after seeing the mob. When the mob was chasing the assailants it was (Mob) hrowing the bomb and accidentally Kunwar Bharat suffered fatal injuries. 63. So far as the availability of a source of light at the place of occurrence at the time of the incident is concerned, based on which, the informant and PW-3 Chandradeiya identified the appellants, PW-1 Phool Chand narrated in his first information report (Ex Ka-1) that he saw appellants when they flashed the torchlight. In his deposition before the court, he stated that appellants threw the light from the torch on his cot and so he identified them. In his cross-examination, he stated that all 10-15 persons were not having torches with them but only 2-3 out of them were having them. All the four accused had not covered their faces. The accused were moving their torch and during this movement, the flashlight also fell on their faces. He told the Investigating Officer that the accused were moving their torches. He cannot say why this statement was not recorded by the Investigating Officer. He did not have any torch with him since it was dark during the night and thus he could not see where Kunwar Bharat was moving. The accused were not flashing their torches continuously. 64. PW-3 Chandradeiya stated in her examination-in-chief that the assailants were having torches in their hands but in her cross-examination, she stated that 10-15 people did not throw torchlight upon her. These people instead threw light on the cot on which Kunwar Bharat was sleeping. 2-3 assailants were lighting torches on the way from ‘Kuccha’ House to the ‘Rahat’. 65. When we peruse the site plan (Ex C-6), we find that no source of light is mentioned or shown by the investigating officer from the ‘Pucca’ house to ‘Kaccha’ House of the complainant. 2-3 assailants were lighting torches on the way from ‘Kuccha’ House to the ‘Rahat’. 65. When we peruse the site plan (Ex C-6), we find that no source of light is mentioned or shown by the investigating officer from the ‘Pucca’ house to ‘Kaccha’ House of the complainant. CW-1 Sub Inspector Bal Karan Singh, the Investigating Officer has stated that the distance between the eastern house (shown as C) and the place where Kunwar Bharat was attaked with a bomb (shown as E) was 90 steps while the place where the accused took Kunwar Bharat with them (shown as D) was at a distance of about 80 steps. However, no source of light is shown at these places or anywhere in between them. 66. CW-1 Sub Inspector Bal Karan Singh had also denied that the complainant gave any statement that the assailants flashed their torches in such a manner that the light from these torches fell on the faces of the accused. Further, he said that the complainant did not give any statement that the assailants were lighting their torches in a circulatory manner. It is clear tha since the investigating officer denied that such a statement was given by the complainant to him, the identification of the accused/appellant by the complainant and PW-3 Chandrdeiya is doubtful. Moreover, it is important to mention here that neither such torches were recovered during the investigation nor these torches were produced in the court during the trial. 67. No source of light other than the torch-lights that the assailants were having had been asserted by the prosecution. This being the incident of midnight, the source of light has prime importance. The prosecution has failed to establish in which light the appellants were identified by the complainant and PW-3 Chandradeiya. The prosecution also failed to establish the source of light under which PW-3 and PW-4 Jagpatiya witnessed Bhagwat attacking Kunwar Bharat with a bomb at the ‘Rahat’. This also creates a serious doubt that PW-3 and PW-4 were the eyewitnesses of the incident. 68. It is also to be noted that it is alleged that 10-15 assailants came to the house of the informant but out of them he identified only the accused appellant and no one else. Even during the investigation the identity of assailants other than the accused assailants was not revealed. 69. 68. It is also to be noted that it is alleged that 10-15 assailants came to the house of the informant but out of them he identified only the accused appellant and no one else. Even during the investigation the identity of assailants other than the accused assailants was not revealed. 69. Given the above facts, we observe that there was not sufficient source of light during the entire sequence of events right from the house of the complainant where he was sleeping when the accused-appellant came to the place of occurrence where Kunwar Bharat was alleged to be killed by Bhagwat by throwing a bomb at his face. On account of this, the prosecution has utterly failed to establish that the accused-appellants were identified by the informant and PW-3 Chandradeiya and also that PW-3 and PW-4 Jagapatiya are the eyewitnesses in the absence of a light source at the place of occurrence. 70. On the basis of the above discussion and appreciation of documentary and oral evidence available on record, we conclude that the prosecution has failed to bring home the charge u/s 302/34 IPC against the appellants. Material contradictions in the evidence of the witnesses of the fact render the theory of the prosecution to be doubtful. Accused appllants had no motive to kill Kunwar Bharat. The identification of the appellant is not established by cogent evidence. The witnesses have made material improvements and embellishments in their testimonies. The evidence of witnesses of fact PW-2 Phool Chand, PW-3 Chandradeiya, and PW-4 Jagpatiya on reading as a whole does not inspire confidence and does not have any ring of truth. Appreciation of oral evidence of witnesses of fact raises doubt about the commission of the crime by the appellants. The Learned Trial Court has not appreciated the evidence available on record in a rightful manner and hence wrongly convicted the appellants. 71. The appellants are entitled to the benefit of the doubt since the prosecution has failed to prove charges against the appellants beyond the reasonable doubt. Thus the appeal is liable to be allowed. ORDER: 72. The criminal appeal is accordingly allowed. The Judgment of conviction and order of sentence passed by the learned trial court is hereby set aside. Appellants are hereby acquitted from the charges. 73. The Appellants are on bail. They need not to surrender. Their personal bonds and surety bonds are cancelled. 74. ORDER: 72. The criminal appeal is accordingly allowed. The Judgment of conviction and order of sentence passed by the learned trial court is hereby set aside. Appellants are hereby acquitted from the charges. 73. The Appellants are on bail. They need not to surrender. Their personal bonds and surety bonds are cancelled. 74. Let the certified copy of this order be transmitted to the trial court for compliance. 75. The lower Court record be also transmitted to the court concerned.