JUDGMENT R.B. Mehrotra, J.
1. Accused/appellants Ambikaa Prasad Chaubey, Ram Nagina Singh and Chandra Bhan Singh have preferred this appeal against the judgment and order of Sri. M.H.H. Siddiqui, Additional Sessions Judge, Gyanpur, Varanasi dated 4-9-1978 whereby they have been convicted under Section 302 read with Section 34, I.P.C, and sentenced to life imprisonment and also under Section 307 read with Section 34, I.P.C, and sentenced to 4 years rigorous imprisonment. The trial Court has ordered both the sentences against the. accused/appellants to run concurrently.
2. The accused Vijay Bhan Singh who was brother, of accused/appellant, Chandra Bhan Singh was also charged for the aforesaid offences but during the pendency of the sessions trial i n the Court of Sessions Judge, he was allegedly killed in a police encounter. The trial consequently abated against him.
3. According to prosecution at about 5 p.m. on 12-4-1975 at village Khanpur, Police Station Gopiganj, Varanasi the aforesaid accused/appellants in furtherance of their common intention committed murder of Gajraj Singh and at the same time and place attempted to commit murder of Dharam Raj Singh P. W. 2 who happened to be the brother of deceased Gajraj Singh by tiring at him with a country-made pistol. P.W. 2 Dharam Raj Singh made a report of the aforesaid occurrence at police station Gopiganj on 12-4-1975 at 7 p.m. The police station is at about 5 miles from the place of occurrence. The first information report (which shall onwards be described as F.I.R. for the sake of convenience) was as follows:
"It is submitted that I am resident of village Balanpur. Vijay Bhan Singh, a resident of my village is involved in theft of a bicycle of village Bihanspur and my brother Gajraj Singh is witness against him. His evidence could not be recorded so far. Vijay Brian Singh persistently asked him not to appear as a witness otherwise it would not be good for him. There is a powerful gang of Bholanath Chaubey, Rama Kant Chaubey, Ambika Prasad Chaubey. Kallu Chaubey. Paras Nath Chaubey, Durga Chaubey, Vijay Bhan Singh, Chandra Bhan Singh and Chhotu Singh of my village. They were constantly giving threats. About a year back they had involved me and my brother Gajraj Singh in a murder case of village Swaleyganj. They were constantly looking for a chance to take the life of my brother Gajraj Singh. Myself, my two brothers and Vijay Bhan Singh and others were prosecuted under Section 107, Cr. P. C. by the police. For this reason they could not kill him. Some days back that case was dismissed. Since then Vijay Bhan Singh and others searching way day and night to kill my brother and my brother Gajraj Singh was running here and there to save his life. They stopped irrigation of our fields with the idea that if my brother goes for irrigating the fields, he might be killed then and there. For this reason our fields remained unirrigated. Today at about 5 p.m. my brother Gajraj Singh and myself both had gone to the house of Lalman Chaubey at village Sagar Raipur. Lalman Chaubey was not available at his house so we were returning to our house. In the way inside wheat field of Harish Chaubey son of Lalita Chaubey, resident of Sagar Raipur, Vijay Bhan Singh, Chandra Bhan Singh son of Jagannath Singh and Ram Nagina Singh resident of Darwasi who is the brother-in-law (wife's brother) of Chandra Bhan and Ambika Chaubey son of Jag Narain resident of Narain Chaubey who is of our village were found hidden. They were armed with guns and country-made pistols. On seeing us, they got up and Vijay Bhan Singh uttered that both of us would be killed being available. Chandra Bhan Singh and Vijay Bhan Singh fired as a result of which I sustained numerous pellet injuries on my chest and hand. We retreated back but they resorted to continuous firing. My brother Gajraj Singh fell down on receiving a gun-shot at some distance. We ran shouting from there, Ram Shanker Pandey resident of Jadho, Kailash Nath Pandey resident of Kalnua and Baij Nath Yadav resident of Balanpur who being passers by. saw the occurrence and shouted why they were playing such a havoc. Then the assailants retorted that they need not interfere and should have their own way otherwise they would also meet the same fate. On my alarm and on the sound of firing many residents of village Sagar Raipur Gandhi and Khanapur, who were working in the fields rushed to the spot, chased and challenged the assailants but they continued firing and escaped towards the east. Due to fear nobody could reach near them. My brother Gajraj Singh died as a result of gunshot. My report be entertained, matter be investigated and the culprists be got punished."
4. After entertaining the aforesaid F.I.R. lodged by P.W. 2 Dharam Raj Singh, Head Constables Satruhan Singh P.W. 6 scribed the check report Ext. Ka-8 on 12-4-1975 at 7.00 O' clock. The aforesaid prosecution witness registered a case under Sections 302/307, I.P.C, against the accused person in the general diary. The aforesaid extract of general diary has been proved and exhibited as Ext. Ka-9 by the prosecution, Sri Vishnu Deo Singh P.W. 7 at that time was posted as Station House Officer of P. S. Gopiganj. He started the investigation and recorded the statement of Dharam Raj Singh at the Police Station itself. Thereafter he went to the place of occurrence where he found the dead body of the deceased lying on the spot. By the time Station House Officer reached spot it had become dark and there was no suitable arrangement for light. Accordingly, he left the dead body of the deceased in the custody of Constables Gulap Singh and Bhardwaj Upadhyay and started searching the accused persons.
5. On 13-4-1975 the Investigating Officer recorded the statement of Kailash Nath Pandey P.W. I and Ram Shanker, P.W. 3 and on 13-4-1975 itself at 5.30 a.m. he prepared the inquest report of the dead body of the deceased. After preparing the inquest report he sent the dead body of the deceased Gajraj Singh for post-mortem examination and prepared the memo Ext. Ka-16 and sent the same to the concerned doctor with a letter of request for the postmortem examination. For the post-mortem examination, the dead body was sent in the custody of: Constables Gulap Singh and Brsan Ram. The Investigating Officer found two bicycles Ext. Ka-1 and Ka-2 on which the names of Vijay Bhan Singh and Chandra Bhan Singh were recorded and took them in his custody and prepared memo Ext. Ka-4 in respect of the same. The Investigating Officer recovered 5 empty cartridges from the field of Jugai. The empty cartridges have been marked Ext. 3 to 7. He also found 4 wads Ext. 8 to 11 4 empty cartridges Ext. 1,1 to 15, one pellet Ext. 16 and took them in his custody and sealed them on the spot itself. The Investigating Officer found on the place of occurrence 5 pellets which were marked Ext. Ka-3 and also found 4 empty cartridges which were marked Ext. Ka-17. He also recovered 4 wads and one pellet from the place of occurrence. The Investigating Officer also took in his cusody blood stained clothes of Gajraj Singh and marked the same as, Ext. Ka-1. The Investigating Officer recovered from the spot blood stained earth and prepared memo Ext. Ka-2 concerning the same in the presence of the witnesses. The Investigating Officer thereafter inspected the site and prepared site plan Ext. Ka-8. The Investigating Officer examined the witnesses and after concluding the investigation on 12-6-1975 submitted charge-sheet against the accused.
6. The post-mortem examination of the dead body of the deceased was done by Dr. S. N. Dubey, P.W. 4 on 13-4-1975 at 4 p.m. According to postmortem examination, one day had elapsed since the death of the deceased. The doctor found the following ante-morten injuries on the dead body;
(1) Gun shot wound 3 1/2 cm x 2 cm brain deep on the back on the back side of the head, morgins of the wounds were inverted singed and tattooed.
(2) Gun-shot wound 4.2 cm x 3 cm brain deep in the middle of forehead, morgins of the wound were everted.
19. The accused Ambika Prasad Chaubey in his statement under Section 313, Cr. P. C. also stated that he was Lekhpal of Tahsil Gyanpur and on 12-4-1975 he was present in the office of the Tahsildar in connection with collection duty. In connection with collection duty a departmental meeting was called in which all the lekhpals were present because all the lekhpals were ordered to be present in the said meeting. This accused further stated that the said meeting had started at 10 a.m. and lasted till 5 p.m. He also stated that he was present there along with concerned officer and worked under the supervision of Babban Lal Srivastava, Kaneongo. He continued to work there till his arrest by the police and even on 14-4-1975 and 15-4-1975 he was present on duty at Tahsil. This accused further stated that Dharam Raj Singh and others had committed murder of his son Dharam Deo and they are accused in the said murder case and because of this enemity they have involved him in the instant murder case. He has also stated that his father and mother of Dharam Raj Singh were litigating in the Court of Consolidation Officer regarding some land. The accused Ram Nagina Singh under Section 313, Cr. P. C. has stated that he had been falsely implicated simply because he is relative of accused Vijay Bhan Singh and Chandra Bhan Singh.
20. During the pendency of appeal, accused/ appellant No. 3 Chandra Bhan Singh died, hence the appeal against him stood abated.
21. Learned counsel for the accused/appellant Sri J. S. Sengar also told the Court that he has received information that accused/appellant Ambika Prasad Chaube has also died. In this connection the Chief Judicial Magistrate, Varanaasi was directed to enquire and make report but his report has not been received so far. Hence under the existing circumstances it is not possible to abate the appeal of Ambika Prasad Chaubey and same is being decided on the assumption that he is alive.
22. Sri J. S. Sengar learned counsel for the accused/appellant in support of the appeal and learned Additional Public Prosecutor on behalf the prosecution were heard and the documents were examined.
23. The prosecution case is mainly based on the evidence of eye-witnesses and out-of such witnesses the not-able evidence is that of Dharam Raj Singh who is brother of deceased Gajraj Singh and besides being an eye-witness had lodged F.I.R. Thus it is necessary first to scrutinise the evidence of P.W. 2. In the above circumstances Sri J. S. Sengar learned counsel for the accused/appellants has mainly advanced arguments in respect of accused/appellant Ram Nagina Singh, but accused/appellant Ambika Prasad Chaubey is entitled to be benefited by the above arguments. Dharam Raj Singh while giving the details of the case has deposed on oath that on the date of occurrence he along with his brother deceased Gajraj Singh had gone to the house of Lal man Chaubey, who had urged a day before that he and his brother Gajraj Singh should reach as there was mutual partition. In that connection this witness and his brother deceased Gajraj Singh had gone to the house of Lalman Chaubey at about 4.30 p.m. but Lalman Chaubey was not there and his mother stated that there was some quarrel between Lalman Chaubey and his pattidars and that his patlidars had threatened Lalman and as such he has gone away some-where. This witness and his brother Gajraj Singh returned to' their house and on way back when he and his brother Gajraj Singh had travelled for about 1 1/2 furlong from the house of Lalman Chaubey and reached the wheat field of Harish where 4 persons were sitting. The witness has given the names of those persons as accused Chandra Bhan, Ambika Prasad Chaubey and Ram Nagina Singh and has stated that the above three persons and Vijay Bhan Singh were under cover of the wheat crop. Vijay Bhan Singh was holding gun whereas rest of the 3 persons were holding kattas. On seeing Gajraj Singh and his brother the above named 4 persons got up and shouted that they were found at an opportune moment and must be killed. At that time this witness and his brother Gajraj Singh were at 10 paces north west of the aforesaid accused persons. When the three accused persons and Vijay Bhan Singh, started firing at the witness and his brother Gajraj Singh, the witness and his brother ran towards the north west. The accused persons chased them and continued firing. While running this witness went ahead whereas,. his brother Gajraj Singh was left behind. Thereafter what the witness stated is necessary to be reproduced in the words of the witness himself. Extract of the statement of prosecution witness Dharam Raj Singh is as under:
In the field of Onkar Chaubey my brother Gajraj Singh fell on receiving gunshot. At that time he went only 2'/2 bigha cast in the field of Onkar Chaubey when he fell in the field. The shots which hit the deceased were fired by the gun from a distance of 8-10 paces. When Gajraj Singh fell down on receiving gun shot, all the 4 accused fired at him from distance of 2 persons. Gajraj Singh died on the spot due to said injuries. 1 also received 5-6 pellets on my chest, neck and arm. He sustained pellet injuries at the hands of the accused person in the Court and Vijay Bhan. This occurrence was seen by Kailash Nath, Ram Shanker Baijnath and others.
24. In the cross-examination P.W. Dharam Raj Singh has made the following statement:
"When first shot was fired on us we were on the western mend of the field of Harish. The first shot hit both of us. That shot hit me on the chest both arms and neck. I cannot tell where my brother was hit by the first shot. 1 was not hit by any other shot. After receiving first shot we ran backward. I was ahead of my brother. My brother was behind me.
"When the second shot was fired 1 was running. My brother was also running after me. I stood 25-30 paces in the north where my brother had fallen down. Where I sustained injury that place was 70-80 paces from the place where we had sustained first shot.
"After first shot the second shot was fired from a distance of 12-14 paces while running due to which he fell down. That shot had hit him on his buttock. The roots of Sugar cane were still in the field where by brother had fallen down.
My brother had fallen down 4-5 paces towards east from the western boundry of the field of Onkar and 10.15 paces away from the south west corner to the north of the said field. Roots of the sugarcane were 4 angul high and were dry. The field was not ploughed.
25. P.W. 2 Dharam Raj Singh has stated further as follows in the cross-examination :
"I cannot say where my brother sustained first gun-shot. The shot which was fired from near the field of Harish had hit me. 1 cannot say whether that shot hit my brother or not. As soon as I sustained gun-shot, I turned back and started running. After running 25-30 paces, I turned back and saw my brother running after me. After seeing my brother coming I stopped at a distance of 25-30 paces and when my brother came near to me then I moved 10,15 paces and stopped. Then 1 turned back and saw that my brother had fallen down. I had stated before the Sub-Inspector that first of all two accused had fired out of the pellets which had hit me 5-6 remained in my body which were removed by the Doctor. The doctor had removed pellets from left side of neck, right side of chest, right shoulder and fore-arms. I sustained 5-6 injuries in all on my body and the pellets were inside the wounds. At the time of medical examination blood was woozing down out of these wounds.
26. Before considering the evidence of eyewitness P.W. 2 it is necessary to keep in view that it is admitted between the parties that there was graave enmity between the two parties. Before this occurrence Brahmdeo son of Ambika Prasad Chaubey had been murdered and the deceased Gajraj Singh and the witness Dharam Raj Singh were accused in that case. Besides this, the prosecution has made it a basis for establishing guilt against the accused/ appellants that there was bitter enmity between the two sides and because of the aforesaid enmity the accused committed murder of Gajraj Singh and attempted to commit the murder of P.W. 2 Dharam Raj Singh. On the other hand contention of the accused/appellants is that they have falsely implicated in the case due to enmity. According to them deceased Gajraj Singh was himself a highly controversal person having so many enemies and some of these enemies might have committed his murder and the prosecution has cooked up the case.. in order to falsely implicate the accused/appellants. This is settled principle that enemity is a double edged weapon and cuts both ways. On the basis of enmity it is possible that the accused committed the murder of Gajraj Singh and attempted to commit murder of witness Dharam Singh. As against it is also possible that the accused have been falsely implicated in the murder case of Gajraj Singh. The evidence of P.W. 2 has to be scrutinised from this angle.
27. Dharam Raj Singh sustained injury in that very occurrence in which Gajraj Singh was murdered. In order to appreciate the evidence of Dharam Raj Singh it is necessary to consider that the injuries found on his person could be caused in the manner stated by him. In this connection relevant portion of the statement of Dharam Raj Singh is reproduced below :
"When first shot was fired at us we were on the passage along the western boundary of the field of Harish. That first shot had hit both of us. That shot hit me on my chest, both arms and neck. I do not know where shot hit my brother. Thereafter the second shot did not hit me. We ran backwards after having hit by the first shot. I was ahead whereas my brother was behind me. I had stated to the Sub-Inspector of Police that the first two shots were fired by two accused and thereafter all the 4 accused had fired. Out of the pellets which hit me 5-6 pellets were embodied in my body. The pellets which were took out by the doctor were on left side of neck right side chest, right shoulder and both fore-arms. There were, in all 5-6- injuries on my body and all the pellets were inside them. At the time of medical examination negligible bleeding was there from the said injuries."
28. In order to examine veracity of the statement of Dharam Raj Singh it is necessary to consider the statement of Dr. S. N. Pandey who examined the injuries of Dharam Raj Singh and gave statement before the Court. From his evidence the statement of Dharam Raj Singh that 5-6 pellets were taken out by the doctor is proved to be untrue.
29. In respect of the injuries of Dharam Raj Singh Dr. S. N. Pandey P.W. 5 who has done the medical examination has stated that injuries of Dharam Raj Singh were caused with some pointed weapons. In cross-examination Dr. Pandey has stated that all the injuries were of same diameter and they could be caused by small pellets even from a distance of 100 feet. He has also stated that these injuries could be from several shots. Injury No. 3 could be caused from front whereas the injuries 4,5 & 6 could be caused from right side. Injury No. 4 could be caused from back. Injury No. 1 could be caused from the left side.
30. From the above statement of Dr. S. N. Pandey it is evident that the statement of Dharam Raj Singh as regards the manner of injuries sustained by him on the spot is fully disproved from the medical evidence. From the statement of Dharamraj Singh, it is clear that he and his brother Gajraj Singh were hit by the same first shot and that he was not hurt by second shot. From the above statement it is also clear that the shot hit deceased Gajraj Singh and later hit Dharamraj Singh and Dharamraj Singh sustained all the injuries from that very shot. The injuries found over the dead body of Gajraj Singh during the postmortem examination are not at all compatable with the injuries of Dharamraj Singh. Injury No. 1 sustained by Gajraj Singh is 3.5 cm x 2 cm x bone deep having its margins inverted. Similarly his injury No. 2* is 4.2 cm x 3 cm x bone deep having its margins everted likewise. Injury No. 3 and 4 of Gajraj Singh are 1 cm in diameter having blackening around them. All these injuries are not at all compatable with the injuries found on the person of Dharamraj Singh. Accordingly it cannot be believed that shot which hit deceased Gajraj Singh could cause injuries .which were found on the person of Dharamraj Singh on medical examination. Besides from 'the evidence of Dr. S. N. Pandey it is also evident that all the injuries found on the person of Gajraj Singh could not be caused from the shots fired from one direction and that those injuries could be caused from shots fired from different directions. From the evidence of Dr. S. N. Pandey it is wholly clear that the injuries found on the person of Dharam Raj Singh could not be caused in the manner stated by Dharam Raj Singh. From the evidence of Dr. S. N. Pandey it is also evident that in his examination in chief he has stated that injuries of Dharam Raj Singh were caused with some pointed weapons. The gun-shot pellets do not come within the definition of pointed weapons. According to Dr. Pandey gun-shot injuries on the person of Dharam Raj Singh could be caused from shots fired from the distance of 100 feet. According to Dharam Raj Singh he sustained injuries from the shot fired from the distance of 10-15 paces and at that time the assailants were in the wheat field at 10-15 paces towards south east.
31. This question has also to be considered as to whether injuries found on the person of Dharam Raj Singh could come from a distance of 10-15 paces. The injuries of Dharam Raj Singh are all of 0.25 cm diameter and are ski n deep. According to no ballastic expert such skin deep injuries having a diameter of 0.25 cm are possible to be caused by the pellets of a gun shot from one side alone.
32. Learned counsel for the defence Sri J. S. Sengar has contended that injuries on the person of Dharam Raj Singh were manufactured by heating some small nail and putting it on the body of Dharam Raj Singh and in order to make evidence of Dharam Raj Singh convincing he has been examined as an eye-witness. According to doctor Pandey injuries could be caused with some sharp edged weapons. After examining the whole evident this probability cannot be ruled out that injuries of Dharam Raj Singh were not caused to him in the manner alleged by the prosecution and on the other hand they might have been manufactured on this person. In this very context it is necessary to scrutinise the injuries of deceased Gajraj Singh in the light of evidence of Dharam Raj Singh. According to Dharam Raj Singh Gajraj Singh sustained gun-shot injuries from a distance of 8-10- paces and after Gajraj Singh fell down all the 4 accused fired at him from a distance of 2 paces. The details of the injuries found on the dead body of Gajraj Singh are detailed in the postmortem examination report. The post-mortem examination report has been proved by Doctor S. N. Pandey P.W. 4. According to him deceased Gajraj Singh had sustained injuries from the shot fired from a distance of less than 3 feet. From the version of the incident given by Dharam Raj Singh it could not be inferred in any manner whatsoever that the deceased Gajraj Singh was hit with a shot fired from a distance of less than 3 feet and fell down on account of it. According to Dharam Raj Singh Gajraj Singh deceased sustained first gun-shot from the distance of 8-10 paces. One pace is normally equal to 2 feet and accordingly in any case the distance of 8-10 paces would be equal to 15-20 feet and on that basis no injury on the person of Gajraj Singh from the pellets of a gun fired from a distance of 15-20 feet was possible to have been caused. For the injuries found on the person of deceased Gajraj Singh learned counsel for the defence suggested that injury No. 1 and 2 had been caused by single shot and that suggestion finds support from the evidence of Doctor Dubey. It is also established that the injury No. 1 and 2 were caused with a shot fired from a distance of less than 3 feet but the injuries No. 3 and 4, according to contention of the learned counsel for the defence, could not be caused with a gun or pellet fired from a gun and that those injuries could be caused with some explosive substance. Even if for the sake of argument it is believed that injuries No. 3 and 4 could be caused by the pellets fired from a gun then these injuries could not be caused from a distance of 15-20 paces and on this basis also the occurrence and manner in which Gaj Raj Singh sustained injuries as propounded by the prosecution the evidence of Dharam Raj Singh cannot be relied upon. As regards the statement of Dharam Raj Singh it is also worth mentioning that according to him the occurrence took place at 7' p.m. whereas the injuries of Dharam Raj Singh were examined at 1.45 a.m. The reason for delay in medical examination as explained by the prosecution is that Dharm Raj Singh went to hospital for medical examination but returned back due to non - availability of medical officer and again went to the hospital, whereas Head Mdharrir Satrugan Singh stated that letter for medical examination of Dharam Raj Singh filed as Ext. Ka-1 was prepared immediately after scribing first information report and Dharam Raj Singh was sent to Government hospital Gopiganj with constable Pasupati Nath Giri. According to Dr. Pandey on that day he was on night duty and continuously he was at his house and he had examined the injuries of witness Dharam Raj Singh on call given by the hospital employees. He has also stated that Dharam Raj Singh had reached hospital at 1.45 a.m. It is clear from this fact that the delay in the medical examination of Dharam Raj Singh also substantiates the suspicion that the prosecution might have manufactured injuries of Dharam Raj Singh during that gap of time.
33. On the basis of above discussion if the statement of Dharam Singh cannot be believed then the very basis of the prosecution case falls to the ground. The result is that the accused/appellants are entitled to a benefit of doubt.
34. In this back-ground scrutiny of the evidence of Investigating Officer Vishnu Deo Singh P.W. 7 who was the Station Officer, P. S. Gopiganj on the date of occurrence is also necessary. According to the statement of Investigating Officer, after the first information report lodged by Dharam Raj Singh, he immediately left for the place of occurrence for necessary action and reached the place where the dead body of Gajraj Singh was lying. He has stated that by the time he reached there it had become dark and there was no arrangement of light and for this reason the inquest report could not be prepared in the night and leaving the dead body in the custody of two constables be left for search of the accused. The place of occurrence is at a distance of 1 1/2 Furlong from the house of Lalman Chaubey at Raipur. This is wholly un-natural for the Investigating Officer to delay the preparation of the inquest report, and to leave the dead body on the place of occurrence for whole night only because of absence of light, when the village Raipur is 1V2 furlong way from the place of occurrence. On such occasions it is not difficult for the police officers to arrange light from the village. In every village there is achaukidar who can make arrangement of light for the help of police. During these days it is difficult to believe that no patromax or any other source of such light could be available in that village. More important aspect in this context is that the investigating officer made no effort to procure the source of light and on the other hand he thought it belief to leave the dead on the spot for the whole night and prepared the inquest report on the next day i.e. 13-4-1975. Kailash Nath and Ram Shanker are the witnesses of the first information report as well as the inquest report. On the spot 4 empty cartidges, one big pellet, Tikulies and two bicycles were found by the Investigating Officer and on both the bicycles the names of Vijaay Bhan Singh and Chandra Bhan Singh were found engraved.
35. According to prosecution witnesses accused/ appellants after shooting deceased Gajraj Singh and after causing injuries to Dharam Singh escaped towards east. It is a pleasant surprise that all the 4 accused came to the spot on two bicycles and ran away on feet leaving the bicycles on the spot which were were having their names engraved. From these discussions the only conclusion that can be drawn is that the accused after committing the crime had left their identity mark on the spot so that there may not be any difficulty to prosecution to prove the case against them. No witness had made any mention of the bicycles of the accused in his evidence. It is against normal human conduct and is wholly unnatural and unbelievable that the accused while running away from the spot could leave their bicycles as a mark of their identity. There is force in the argument of defence counsel that on the next day the police managed two such bicycles and planted them against the accused so as to connect them with this crime. The Investigating Officer has admitted that he did not sent for ballestic examination the empty cartridges recovered from the spot and when asked he replied that it did not strike to his mind. Certainly this explanation given by the Investigating Officer is not satisfactory and there is no justification that while empty cartridges and tikulies, found on the spot, were not sent for ballestic examination. In this regard it is also worth mentioning that the first information report of the occurrence was registered at police station Gyanpur at 7 p.m. on 12-4-75. Gyanpur is a Sub-Division of District Varanasi and there is Court of Judicial Magistrate at Gyanpur and the Judicial Magistrate resides there. Under Section 157, Cr. P. C. it is responsibility of the prosecution to send a report of cognizable offence if the same is found reliable by the I.O. to the nearest Judicial Maagistrate. According to first information report the information of the aforesaid report was sent on the next day. There could be no justification for not sending the above information report to Gyanpur Sub-Division even after the fact that a judicial Magistrate and S.D.M. stood posted there. The prosecution has offered no explanation for it. As against it the Investigating Officer in the course of his evidence had admitted that the first information report Ext. Ka-8 does not bear the signature of Judicial Magistrate, Gyanpur. From the analysis of the above circumstances a strong doubt is created that the first information report was not registered at the time when it is said to be registered and that it was registered at some later time in the evening on 12-4-75. In the context of what has been stated above, it would be sufficient to say that the other two eyewitnesses of the prosecution namely Kailash Nath Pandey P.W. 1 and Ram Shanker P.W. 3 are chance witnesses. At the time of occurrence they were passing that way. These witnesses belong to different villages and incidently reached the place of occurrence. Amongst these two witnesses P.W. I Kailash Nath Pandey has been declared hostile by the prosecution and he has been cross-examined. For this reason also it is not possible to reply on the evidence of this witness. According to Kailash Nath Pandey he knew only Vijay Bhan Singh and he could not recognise any other accused. From the above statement it is evident that from the statement of P.W. 1 no offence is made out against the present accused/appellants. According to P.W. 3 Ram Shanker he was on the spot at 5 p.m. and the next day at 5 a.m. he again reached the place of occurrence and at that time he met Sub-Inspector of Police and that in between he was not at the place of occurrence. According to this witness when he reached the place of occurrence at 4.45 a.m. the Sub-Inspector was engaged in writing work and that the dead body was lying under a loth. From the statement of this witness, the evidence of the Investigating Officer appears to be false. According to Investigating Officer he reached the place of occurrence the next morning at 8.30 a.m. and then he completed the entire process of inquest. This contradiction in the statements of these witnesses only establishes that the prosecution has not led satisfactory evidence in support of its case. The aforesaid Kailash Nath Pandey and Ram Shanker are the witnesses of F.I.R. as also of all the memos Exts. Ka-1 to Kri-4 and Ext. Ka-17. The above evidence gives rise to a suspicion that recovery memos prepared by the investigating officer during the investigation were got signed by these witnesses afterwards whereas the fact was they were not present when these memos were prepared.
36. After a thorough scrutiny of the oral and documentary evidence adduced by the prosecution. we are of the view that the prosecution has failed to establish guilt against the accused/appellants beyond reasonable doubt. On the basis of scrutiny of evidence of prosecution case we are of the opinion that on the basis of evidence, the guilt is not proved against accused/appellants beyond reasonable doubt and appellants/accused are entitled to the benefit of 'doubt.
37. This bench has perused and analysed the judgment of the learned Sessions Judge and is of the view that the conclusion drawn by the Sessions Judge on the basis of the prosecution evidence was not fit to be drawn, are not acceptable. Accordingly, I his bench sets aside the judgment and order dated 4-(>-78 of the Additional Sessions Judge. Gyanpur, Varanasi Prasad in Sessions Trial No. 34 of 1975; State v. Chandra Bhan Singh convicting the appellants under Section 302 read with Section 34. I.P.C. and Section 307 read with Section 34, I.P.C, and declares the appellants not guilty. The appeal of the accused/appellants is allowed accordingly. The accused appellants are on bail. They need not surrender. The personal bonds and bail bonds filed by appellants/accused are discharged.
38. Under Section 7 of the Official Language Act, the Registrar is directed that the English translation of this judgment by some competent person to be supplied to the concerned parties within a month on their application. The parties should not be supplied copies of this judgment without English translation nor a copy of this judgment be sent to subordinate Court without its English translation.