JUDGMENT M.C. Jain, J.
1. The appellant is one Alim Ullah who is aggrieved by judgment and order dated 30-3-1981 passed in Sessions Trial No'. 2 of 1981 by Sri U. S. Tripathi, the then IX Additional Sessions Judge, Kanpur, convicting him under Sections 302, I.P.C, and 25 of the Indian Arms Act. He has been awarded life imprisonment for the former offence and one year's rigorous imprisonment for the latter. Both the sentences have been ordered to run concurrently.
2. The incident took place on 2-10-1980 at about 11 a.m. in Mohalla Ajitganj near the house of Usman Khan, P. S. Babupurwa, Kanpur and the report was lodged the same day at 11.50 p.m. by Constable Islam Mohammed. He was posted at Outpost New Labour Colony of P. S, Babupurwa at the relevant time, On the fateful day and time, he was on process serving and patrol duty, At about 11 a.m., when he reached north of the house of Usman Khan In Ajitganj Colony, he observed that the appellant had caught hold of a person (Gulam Rasool deceased) by his collar and was threatening that he could not escape, He was having a country made pistol in his hand at that time, After threatening him as aforesaid, he opened shot on the chest of the deceased. As a result, he fell down and died instantaneously, Constable Islam Mohammad P.W, 1 chased the accused appellant, raising alarm, Rehmat Ali P,W, 3 and Abdul Jabbar P.W, 4 helped him and the accused appellant was apprehended in front of the house of Smt, Rohni P,W, 5, At the time of his arrest, he was having a eountrymade pistol with a fired cartridge in Its barrel, Constable Islam Mohammad P,W, 1 required Smt. Rohni P.W, 5 to keep a watch on the dead body and took the accused appellant to the police station along with Rehmat Ali P.W, 3 and Abdul Jabbar P.W, 4, On reaching the police station, he prepared an F.I.R. which he lodged there. The country made pistol and fired cartridge in the barrel were taken into possession and sealed with the preparation of recovery memo. SSI S. K. Gupta P.W. 6 started investigation after the case was registered. On reaching the spot, he found the father and wife of the deceased to be present who identified the dead body as that of Gulam Rasool. After necessary formalities, the dead body was sent for postmortem which was conducted on 3-10-1980 at 12.05 p.m. by Dr. S. D. Mishra P.W. 9. The deceased was aged about 35 years and about one day had passed since he died. In upper extremity rigor mortis was present meekly. It was also present in lower extremely. Postmortem staining was present all over the body. The scrotum and penis were bloated due to decomposition. Skin was peeled off at places. The following ante-mortem injuries were found on his person:
1. Gunshot wound of entry 2 cm x 2 cm x thoracic cavity deep on the right side front of chest 31/2 cm above right nipple at 1 O'clock position. Margins inverted. No blackening or tattooing.
2. Gunshot wound of exit 2 cm x 2 cm x thoracic cavity deep on the left side back in its middle part, between 8th and 9th ribs'. 4.5 cm away from mid line. Margins averted and bloody fluid oozing out of the wound,
3. Contusion 3.2 cm x 3 cm on the right side front of neck in its middle part.
3. The death had occurred due to shock and haemorrhage as a result of Injury sustained.
4. At the trial, the prosecution examined in all nine witnesses, As regards the factum of the murder by the accused appellant, the only testimony was that of Constable Islam Mohammad P.W. 1, Constable Ramesh Prasad P.W. 2 had acribed the chik F.I.R, Rehmat Ali P.W. 3 and Abdul Jabbar P,W, 4 were examined as persons who helped Islam Mohammad P.W. 1 in apprehending the accused appellant and taking him to the police station, taut they were declared hostile as they only deposed about the dead body lying at the spot, According to them, they were later on called at the police station, Smt, Rohni P,W, 5 also spoke about seeing the dead body after she had come out of her house on shouts, S, K. Gupta P.W. 6 was the Investigating Officer whereas Constable Dashrath Singh P,W. 7 carried the dead body for postmortem. Constable Ahibaran Singh Yadav P.W, 8 was posted at the Police Outpost, New Labour Colony and proved the G. D. entry of 2-10-1980 at 10.40 a.m.. regarding Constable Islam Mohammad leaving outpost with certain papers. It was Dr. S. D. Misra, P.W. 9 who had conducted autopsy on the dead body of the deceased.
5. The defence was of denial and of false implication due to enmity with the police. As the case and evidence of the prosecution found favour with the learned trial Court, the impugned judgment of the conviction and sentences was recorded where against this appeal has been preferred.
6. Sri R. B. Sharma was appointed amicus curiae to argue out the appeal for the appellant. We have heard him and Sri Shekhar Yadav, learned A.G.A. from the side of State. The record of the case has also been perused. 7. The case rests on the sole testimony of Constable Islam Mohammad P.W. 1. He stated that when he reached the spot, he observed the accused appellant catching hold of the deceased by his collar and at that time, he was having countrymade pistol in his hand. It is also in his testimony that he threatened the deceased that he would not escape and so saying he fired pistol shot upon the chest of the deceased due to which he fell down and died. According to him, with the help of Rahmat Ali P.W. 3 and Abdul Zabbar P.W. 4, he apprehended the accused appellant with pistol containing a used cartridge in its barrel in front of the house of Smt. Rohni P.W. 5 to which side he had run after committing this crime. He was given some beating while being so apprehended. He was then taken to the police station with the witnesses Rahmat Ali P.W. 3 and Abdul Zabbar P.W. 4 where he lodged the F.I.R. and handed over the accused appellant with pistol containing a used cartridge in his barrel. Smt. Rohni P.W. 5 was allegedly left at the scene to watch the dead body of the deceased. However, Rahmat Ali P.W. 3 and Abdul Zabbar P.W. 4 did not support the prosecution story. They stated that they had only seen the dead body. Abdul Zabbar P.W. 4 is the son-in-law of Smt. Rohni P.W. 5 near whose house the murder had taken place. She also did not support the prosecution case as her version was that she was taking meals inside her house and had come out on shouts. She had then seen a dead body lying at a distance of 10-15 paces from her house. Rahmat Ali P.W. 3 and Abdul Zabbar P.W. 4 also denied to have accompanied Constable Islam Mohammad with the accused to the police station. According to them, they had been called at the police station and made to sign a paper. All these witnesses were declared hostile by the prosecution.
8. It may be stated that it is well embedded legal position that even the sole testimony of a witness can form basis of conviction provided it finds corroboration from other physical factors and circumstances. It is also of no consequence that the sole witness is the police personnel.
9. When the testimony of the sole witness Constable Islam Mohammad P.W. 1 is tested, it emerges out that there are certain factors which shake the very foundation of the prosecution story. First of such factors, as argued by the amicus curiae, is that on the injury sustained by the deceased was such that sufficient blood would have gushed out. There was a gunshot wound of entry on right side front of chest with corresponding exit wound on the left side back. But the truth of the matter is that no blood was found by the Investigating Officer at the spot. The prosecution case is that the dead body kept lying at that very spot, but the testimony of Investigating Officer Shri Krishna Gupta P.W. 6 is that he did not find any blood at the spot and as such he could not collect any bloodstains therefrom. The absence of blood at the spot renders the spot of incident to be doubtful that the murder had taken place there.
10. Secondly, it is manifest from the statement of eye-witriess Constable Islam Mohammad P.W. 1 that the accused appellant was holding victim by his collar by one hand and from the pistol in another hand he, fired shot on his chest from a close range. But at the postmortem, no blackening or charring was found around the wound. When the shot had been fired with such a close range, the accused appellant holding the victim by collar and firing shot on him on his chest by other hand, such signs ought to have been there. As per medical jurisprudence, if a firearm is discharged from very close to the body, surrounding skin is usually scorched and blackened by smoke and tattooed with unburnt grains of powder. No blackening or scorching as found if the firearm is discharged from a distance of more than four feet. The absence of blackening or scorching around the wound of entry despite the shot having been fired from a very close range goes unexplained.
11. Thirdly, the postmortem report shows that rigor mortis was present. Dr. S. D. Mishra P.W. 9 who conducted autopsy stated that it was in the process of passing out from upper extremity of the body but was present in lower extremity. Scrotum and penis were bloated due to decomposition and skin had peeled off at places. In general, rigor mortis sets in 1 to 2 hours after death, is well developed from head to foot in about 12 hours, is maintained for about 12 hours and passes off in about 12 hours. Broadly stated, decomposition follows disappearance of rigor mortis, but this is not always the case, since, in Northern India, especially during the hot months from April to October, it commences before rigor mortis has completely passed from the lower extremity. In the present case, the postmortem was conducted on 3-10-1980 at 12.05 p.m. and the probable time of death was estimated about 1 day. According to the prosecution, this incident took place on 2-10-1980 at about 11 a.m. There could be variation of about 6 hours in the approximate time of death as estimated by the Doctor. The absence of blood at the spot taken together with other signs found on the dead body i.e. scrotum and penis were bloated due to decomposition and skin was peeled off at place, the possibility cannot be ruled out that actually the murder took place around the place where the dead body was found sometime earlier before it had completely dawned, and not at the time alleged by the prosecution and after the murder the dead body was thrown out. There could be a sex angle also in the commission of this crime which remained obscure.
12. We should also point out, in the fourth place, that it has come in the testimony of Investigating Officer S.K. Gupta P.W. 6 that when he had reached the spot, the father and wife of the deceased were present near the dead body. They were not examined by the prosecution. The result is that it could not be elicited as to what were the antecedents of the deceased, whether the father and wife of the deceased knew the accused appellant from before, whether the deceased had any dealing or connection with the accused appellant. At times, the motive satisfies the judicial mind as to the authorship of a particular crime. In the absence of any evidence on the above aspects of the matter, nothing has come on record as regards the motive for the commission of this crime.
13. It goes without saying that it is for the prosecution to prove its case to the hilt beyond any ray of doubt. In the case at hand, the prosecution utterly failed to discharge this burden as discussed above. Many important aspects of the case are lost in obscurity making a dent in the prosecution version as coming through the mouth of the only eye-witness Constable Islam Mohammad. The conviction of the accused appellant cannot be sustained merely on conjectures or for the reason that he himself could not explain or produce any evidence as to why he was falsely implicated.
14. The appeal deserves to be allowed.
15. We place on record our appreciation that Shri R.B. Sharma, learned amicus curiae argued the appeal after thorough preparation and discharged his professional duty dedicatedly.
16. The appeal is hereby allowed. The conviction and sentences passed against the appellant Alim Ullah are set aside and he is acquitted. He is already on bail.
17. Sri R. B. Sharma, Advocate who argued the appeal as amicus curiae shall get Rs. 1000/- as his fee.
18. Let a copy of this judgment along with the record of the' case be immediately sent to the Court below for necessary entries in the relevant register under intimation to this Court within two months.