JUDGMENT A.S. Tripathi, J.
1. These three appeals are connected and are filed against the judgment and order passed by the then Sessions Judge, Bulandshehr on 30-4-1979 whereby the appellant, Ramesh Chand was convicted under Section 302, I.P.C.. and the remaining appellants were convicted under Section 302 read with Section 34, I.P.C. and were sentenced to imprisonment for life. All the four appellants were convicted, under Section 394, I.P.C. and were sentenced to undergo rigorous imprisonment for three years each. All the sentences were directed to run concurrently.
2. The aforesaid four appellants were convicted for having looted one Pyare Lal and committed his murder on 10-7-1978 at about 6.30 A.M. in village Sonda, Police Station Khurja Dehat, District Bulandshahr.
3. The prosecution case as disclosed in the first information report, Ex. Ka 1, was that the deceased, Pyare Lal of village Kaseru was doing money lending business. Reporter, Ban-wari Lal, P.W. 1 was the son of Pyare Lal, deceased. It is alleged that the appellants belong to same village, Appellants, Ramesh Chand, Bhagwati Prasad had borrowed money from Pyare Lal. Suits were pending against them at Aligarh. There was a date in the Court of Judge Small Causes, Aligarh on 10-7-1978 in the suit filed by Pyare Lal.
4. It is alleged that on 10-7-1978 at about 6 A.M. deceased, Pyare Lal, and his son, Banwari Lal Proceeded on cycles towards Khurja Junction railway station. They were to board Tata express as Khurja for Aligarh. The way to Khurja railway station was through village Saunda passing by the side of a canal. They were going on canal road. Pyare Lal was ahead of Banwari Lal. When Pyare Lal reached about a furlong ahead of Sondki Pulia, the accused-appellants came out of bushes and Pyare Lal fell down from cycle. Appellants, Ami Chand, Bhagwati Prasad and Jayanti Prasad caughthold of him and appellant, Ramesh Chand gave knife blows. Reporter, Banwari Lal raised alarm, whereupon witnesses, Sheedan Singh, Charan Singh, Hukum Singh and Buddha rushed forward and the accused-appellants after committing the murder of Pyare Lal and looting his wrist-watch and a plastic bag ran away.
5. P.W. 1 Banwari Lal got report, Ex.Kal, scribed by one Vinod Kumar and lodged the same at the police station the same day at 8-30 A.M. on the basis of which chik F.I.R. was prepared, which is Ex.Ka 9, and a case was registered in the general diary.
6. The investigation of the case was taken up by S.I. Sri Ashok Kumar, Gautam, P.W. 11. He recorded the statement of Head Constable, Ram Bhagwan, and went to the place of occurrence along with Sri R. K. Tyagi, Sub-Inspector, and Om Pal Singh, S.I. and other police officials. He reached the spot at 9.30 A.M. He deputed S.I., Sri R. K. Tyagi to prepare inquest report and other police officials were directed to make the search of the accused. Inquest report, Ex.Ka.2, was prepared. Diagram of injuries, Ex.Ka 3, Chalan naas Ex.Ka 4 and two letters, Ex.Ka. 5 and Ka. 6, for post-mortem were also prepared. The dead body was sealed and sent for post-mortem examination through Con-stajples, Ramesh Chand and Pheur Chand. Blood-stained earth and simple earth were also taken from the place of occurrence and were kept in separate sealed containers which are Exs. 2 and 3 and memo Ex.Ka7 was prepared. Cycle and umbrella of Pyare Lal were taken into possession and memo, Ex.Ka.8, was prepared. The statements of P.W. 1 Banwari Lal, P.W. 3 Sheedan Singh and P.W. 8, S.I.R.K. Tyagi, were recorded, the Investigating Officer also prepared a site-plan, Ex.Ka.13 and then he went to village Kaseru and recorded the statements of Charan Singh, Hukum Chand, Birju and Vinod Kumar. The statement of Buddha was also recorded.
7. On the same day, i.e.. 10-7-78, the postmortem examination was conducted at 5.15 P.M. by Dr. G. N. Srivastava, P.W. 10, who after completing the pos-tmortem examination prepared postmortem report, Ex. Ka. 12.
8. Following ante-mortem injuries were found on the body of the deceased, Pyare Lal:
1. Incised wound 3" x 1" x bone deep with cutting the bone of the roof left thumb. Blood clot was present.
2. Stabbed wound 2" x %" x cavity deep, tail downward with omentum (blood of intestine) coming out from wound gap on upper part of right middle abdomen with blood clot.
3. Stabbed wound \W x 3/4" x cavity deep with omentum coming out, 1/4 medial to injury No. 2, with blood clot present and omentum coming out.
4. Stabbed wound 1" x 3/4" x cavity deep over lower part of abdomen, 1" below the injury No. 2, with omentum coming out.
5. Stabbed wound 3/4" x 1/2" x cavity deep, 3" medial to injury No. 4, with ometum coming out.
6. Abrasion l/2" x 1/6" over right chest, 4 1/2 " below the right nipple.
On internal examination, the doctor found multiple lacerations and tears on the per-etoneum under the injuries. Heart was half full. Abdominal cavity contained about 2 be (sic) clotted blood, stomach was found full of gases with browinsh liquid about 5 oz. Small intestine was full of gases and partially feacal matter. There was also laceration and clotted blood. Large intestine was full of gases and partly feacal matter. There were multiple lacearations on lever in an area of 2" x 1 1/2" with clotted blood. Gall bladder and bladder were half full.
9. The doctor reported that death was caused due to shock and haemorrhage as a result of ante-mortem injuries.
10. On 18-7-1978 accused, Ramesh Chand and Ami Chand were arrested. Other accused had surrendered in Court. After completing the investigation, the Investigation Officer submitted charge-sheet, Ex. Ka. 15 on 6-9-1978.
11. The appellants denied the charges and pleaded not guilty.
12. The prosecution in support of its case has examined P.W. 1 Banwari Lal, the informant, P.W. 2 Charan Singh and P.W. 3 Sheodan Singh as eye-witnesses P.W. 4 Dharma and P.W. 5 S. Birju were also examined. These two witnesses have stated to have only seen the appellants sitting in bushes, P.W. 6 Vinod Kumar is the scribe of the first information report. P.W. 10 Dr. G. N. Srivastava, conducted the post-mortem examination and proved the post-mortem report, Ex.Ka 12 P.W. 11, S.I.A.K. Gautam was the Investigating Officer. S.I.R.K. Tyagi, P.W. 8, completed the formalities of inquest and prepared memos, Exs. Ka. 7 and Ka. 8 P.W. 9 Head Constable Ram Bhagwan and P.W. 7 constable Ramesh Chand are the other formal witnesses.
13. The appellants in their statements under Section 313, Cr.P.C. stated that they were falsely implicated on account of enmity.
14. Appellant, Amichand, has stated that he used to live at Shahdra. His uncle, Har-chand Left the village due to the fear of Banwari Lal, P. W. 1. There was partibandi in the village. He was earlier prosecuted in a dacoity case which was alleged to have been committed at the house of Pyare Lal and was acquitted. He admitted that he was also prosecuted for theft and was also acquitted.
15. Appellants, Ramesh Chand has stated that he was falsely implicated on account of enmity. He had borrowed Rs. 300/- twenty years back from Pyare Lal. He had paid the same. However, Pyare Lal had filed a civil suit which was pending against him. According to his version, on the date of occurrence he had left his village to obtain a sale-deed at Chandos and reached there at 8.15 A.M. The sale deed was executed in favour of Nawab Singh and Smt. Parme-shwari and he was a witness to that sale deed. He returned to the village same day at 7.30 P.M. and later on, he came to know about the murder of Pyare Lal. He filed a number of documents in support of his version.
16. Appellant, Bhagwati Prasad has stated that he was falsely implicated on account of enmity. Pyare Lal, no doubt, had filed a civil suit against him for recovery of money which was pending at Aligarh.
17. The appellant, Jayanti Prasad stated that he used to live in factory at Shadhra. The factory used to be locked at 5 p.m. He was at Shahdra at the time of occurrence and was falsely implicated on account of enmity.
18. The appellants have examined in defence D.W. 1 P.S. Sharma, Manager, R.K. Traders, who stated that appellant, Jayanti Prasad remained at Shahdra. D.W. 2 Rishi-pal Singh, Principal, Uchchtar Madhyamik Vidyalaya was examined to prove the attendance of Ami Chand in the college on 10-7-1977 from 7 A.M. to 11 A.M. who was said to have accompanied the reporter. He was examined to show that Ami Chand could not accompany the reporter and the first information report was lodged later on and was anti-timed.
19. D.W. 3 Parmanand Sharma was reader in the Court of Judge, Small Causes, Aligarh. He came with the record of S.C.C. Suit No. 789 of 1976 (Pyare Lal v. Bhagwati Prasad) in court on 10-7-1978. The appellants also filed a number of documents which will be discussed later on.
20. The trial Judge also made local inspection of the spot and recorded a report which is on record.
21. After assessing the evidence on record, the learned Sessions Judge, Buland-shahr found the appellants guilty and convicted and sentenced them accordingly as mentioned above.
22. Aggrieved by the said judgment and order, the present appeals have been filed.
23. We have heard learned counsel for the parties and perused the record.
24. We first of all proceed to examine the version given by the eye-witnesses.
25. P.W. 1 Banwari Lal, is the son of deceased. He is reported. He got the report scribed by Vinod Kumar and lodged the same at the police staton Khurja Dehat at 8.30 A.M. on 10-7-1978. According to him his father, Pyare Lal used to do money lending business in the village. The appellants belong to his own village. He stated that the appellants had been taking loan from Pyare Lal. Pyare Lal had filed a civil suit against Bhagwati Prasad which was decreed. Bhagwati Prasad had filed an appeal against that decree which was pending. Pyare Lal also filed a suit against appellant, Jayanti Prasad and Bhg-wati Prasad and on 10-7-1978, date was fixed in one of those cases in court. At about 6 A.M. the deceased, Pyare Lal and Banwari Lal left the village on cycle to appear in court for pairvi. They were going to catch Tata. Express at Khurja. In the way forest of Sonda was lying. There was a Pulia and a canal road in between. When they reached near pulia Pyare Lal was ahead. The witness, Banwari Lal was behind him. When they reached one furlong ahead to that Pulia they found that the appellants were sitting hiding themselves in bushes. They came out of the bushes and got Pyare Lal fell down from the cycle. The appellants caught hold of him and the appellant, Ramesh Chand gave knife blows to him. On alarms the witnesses Sheodan Singh, Charan Singh, Hukurn Singh and Buddha reached the spot. After killing Pyare Lal and looting him, the appellants left the place of occurrence.
26. In cross-examination he admitted that his father was living with several women in the village. He also admitted that he mostly used to live at Shahdra and occasionally used to come in the village. He also admitted that his father had filed a suit for recovery of Rs. 22000 / - against one Ram Bhul which was pending. He also admitted that against other persons three suits were pending at Aligarh. One appeal was pending in the High Court at the time of occurrence. He also admitted that 3-4 years earlier to the occurrence, dacoity had taken place in his house. Appellants, Ramesh Chand, Ami Chand and six other persons were accused in that case and they all were acquitted. He showed ignorance about the suggestion that his father used to keep ornaments against loan and after dacoity a number of panchayats had taken place for returning those ornaments. He also showed ignorance about the suggestion that the ornaments of Shyama Nai, Bhagirath, Kha-charoo Singh and Ambi Singh Thakur and that of number of persons of village Sondho, Tikri, Kamalpur and others were deposited against loan with Pyare Lal. He also showed his ignorance as to whether Pyare Lal had returned the ornaments to any person who had taken loan against the ornaments. The witness also could not say about any other date in any of the cases pending against Bhagwati Prasad and Jayani Prasad, appellants. He also could not say that on any other date Pyare Lal had gone for doing Pairvi in any of the cases. He also could not say about the name of suit which was pending. He, however, denied the suggestion that he never used to go for doing Pairvi in any case along with his father. He also admitted that witness, Vinod Kumar, scribe of the first information report is his cousin. He also admitted that quota of sugar in the village was earlier in the name of his cousin, Vinod and on application given by Rarnesh Chand, Jayanti Prasad and Ami Chand, appellants, the quota of Vinod Kumar was cancelled and was given to Kesri, father of appellant, Ramesh Chand. This was suggested as immediate cause for false implication of appellant, Ramesh Chand in this case. He also stated that he and his father Pyare Lal had taken two parathas before starting for Khurja. The postmortem report shows that no food material was found in the stomach of the deceased. He denied the suggestion that his father was killed in darkness near pulia by some unknown persons and a boy of the village had informed him about the occurrence later on. He also admitted that one Ami Chand son of Rewati had accompanied him to police station and he was a servant in Kesri School and the" school used to start from 7 A.M. to 11 A.M. in those days.
27. P. W. 2, Charan Singh is the person of the same village. He stated that at the time of occurrence, he was taking milk for selling at Khurja. When he reached near the pulia in village Sounda he saw that appellants, Bhagwati Prasad, Jayant Prasad and Ami Chand had caught hold of Pyare Lal and appellant Pyare Lal and appellant, Ramesh Chand had given knife blows to him. They had also looted the deceased, Pyare Lal, and ran way. He left the place and thereafter went to Pali. In cross examination the witness admitted that he was going from east towards west when he saw the occurrence. This statement is inconsistent with the site-plan which shows that the occurrence had taken place at the patri of canal. The way at that place was only north-south. There was no way east west from which the witness could proceed. This statement shows that the witness was stating on imagination. This witness further admitted that his brother, Jaipal had earlier deposed in a decoity case against the appellant, Ami Chand and Ramesh Chand. He also admitted that the case under section 324, I.P.C. was instituted against the witness by one Ram Bhul. He also admitted that Naresh, brother of appellant, Ramesh had deposed against him in one case. He also admitted that that case was instituted by him against Naresh, brother of Ramesh Chand', appellant. He also admitted one Shiv Dutt had sold half of his house to him. The whole house was sold by Shiv Dutt to the grand father of appellant, Ramesh. This sale-deed was scribed on 21-8-1974. He also admitted that one Prabhudayal had also joined him in the purchase of half of his house. Appellant, Bhagwati was admitted to be the brother of Shiv Dutt. In this way this witness is highly inimical to the appellants.
28. This witness further stated that he had seen the occurrence from 20 paces from the Pulia. According to Banwari Lal, P.W. 1 the occurrence had taken place at one furlong ahead of pulia, this witness claims that he had seen the occurrence from 200 paces before Pulia;. In this way the distance could be more than 1 1/2 furlong and on account of forest and bushes it could be said that the witness was not in a position to see the actual occurrence.
29. P.W. 3 Sheodan Singh is another witness of fact. According to him, timing could be about 6 A.M. he was at hundred steps ahead of sonda ki pulia when he heard the alarms of Banwari Lal. According to him the witnesses Charan Singh, Buddha and Hukam Singh were also along with him. They reached near Banwari Lal. According to him they had not seen anybody causing injuries to Pyare Lal. He simply saw four persons running away and they were the four appellants. Pyare Lal was lying dead. According to him Pyare Lai was lying dead in bushes four-five steps away from the Patri of canal. Inquest report was prepared before this witness. In cross-examination, the statements given under Section 161, Cr.P.C. were put to the witness and he had seen only Ramsh Chand giving knife blows and other appellants had caught hold of Pyare Lal. The witness denied this suggestion that any such statement was given by him to the Investigating Officer. He had also not seen robbing of the articles of Pyare Lal. He simply stated that the bag was not on cycle and, therefore, the appellants might have taken it away. He admitted that he was convicted in a case under Section 302, I.P.C. and an appeal was pending in the High Court. He also admitted that Ram Autar, father of the appellant, Ramesh Chand was witness against him in that case. He also admitted that dacoity cases were instituted against him and he was prosecuted but was acquitted. This witness also is inimical to the appellant, Ramesh Chand.
30. P.W. 4 Dharma is another eye-witness. According to him he was carrying milk for sale at Khurja. He claims that he had seen the appellants sitting in the bushes when he was going towards Khurja and when he returned back then-he came to known that Pyare Lal was murdered. He had not seen actual occurrence. He also admitted that a number of dacoity cases were instituted against him. He denied the suggestion that he was a pocket witness of the police.
31. P.W. 5, Birju, is another eye-witness. He stated that the appellants were running away at the time of occurrence. When he reached near the pulia he asked them as to who were they and as to why they were running. Then one of them scolded him by saying that they are coming after committing the muder of Pyare Lal and they will also commit his murder if he states anything. According to this witness, there was one bag in the hands of Jyanti. He further stated that when he reached near the pulia he saw the dead body of Pyare Lal lying there, Banwari Lal and others were present there from before. The witness, Birju, further stated that Sheodan Singh had disclosed that the appellants had killed Pyare Lal. This statement is contrary to the statement of Sheodan Singh. Sheodan Singh had not seen the four assailants. He had simply seen the appellants running away. Further this witness in his cross-examination admitted that the persons who were running had covered their faces by clothes. He also admitted that in one case the appellant, Ramesh Chand was a witness against him. He was also convicted in a case under Section 457, I.P.C. for having committed theft at the house of Guljari. He also stated that his statement was not recorded by the Investigating Officer. He also admitted that his brother was a witness against the apellant, Amichand. He admitted that Chheda Lal is the brother of appellant, Bhagwati Prasad.
32. This witness, Birju, P.W. 5, was declared hostile. On a question put by the learned State Counsel he admitted that the persons who were running had covered their faces by clothes and they could not be identified. He could identify by voice of the appellant, Amichand. They were talking together. He also admitted that when he' reached the spot Banwari Lal had not disclosed the name of any assailants. He admitted clearly that he had asked the name of the assailants from Banwari Lal and Banwari Lal did not give the name of any of the assailants. This statement is contradictory.
33. P.W. 6, Vinod Kumar, is the scribe of the first information report. He is also the cousin of Banwari Lal, reporter.
34. In an answer to question No. 19, P.W. 1, Banwari Lal, has stated that Vinod Kumar met him at the cross road of private bus stand whereas P.W. 6, Vinod Kumar, has stated that he met Banwari Lal at Khurja junction railway station and then they went to the police station. He also stated in answer to question No. 13 that Khurja junction was four kilometres from the bus-stand cross-road. On this statement it was suggested that Banwari Lal was not present and he met the reporter at the railway station when he came back from Shahdra and only then report was lodged later on and Banwari Lal was not present at the time of occurrence. Anti-timing of the first information report was, however, denied by the reporter, Banwari Lal.
35. We find that five witnesses said to be the eye-witnesses were produced by the prosecution. We have examined earlier that they were all inimical to the appellants. They were also partisan witnesses as suggested. Out of them P.W. 5 Birju claimed to have seen the appellants, running away after the occurrence. He had not seen the actual occurrence. In examination-in-chief, he stated that when he asked to running appellants, they threatened him to dire consequences like that of Pyare Lal. He also claims to have seen one bag in the hands of appellant, Jayanti. In cross-examination the witness has admitted that the appellants who had committed the murder of Pyare Lal were running away hiding their faces by clothes and he could not identify them and he could only guess that they might be the appellants, from the voice and their talks. This self contradictory statement makes him highly unreliable. He was declared hostile. He was cross-examined by the State counsel. He also stated that he could not identify the assailants by face. As such this witness could not be relied upon to establish the charge.
36. Similarly, P.W. 4, Dharma, claims to have seen the appellants sitting in bushes before the occurrence. He was also highly inimical to the appellants and a partisan witness. In cross-examination this witness had not disclosed the fact that he had seen anybody in the bushes before the occurrence. He did not disclose this fact to anybody. He stated that he had disclosed this fact to one Ram Bhul Singh but Ram Bhul Singh was not produced. Then P.W. 3 Sheodan Singh disowned the prosecution version. His statement as discussed above was also self contradictory and the witness was declared hostile as he did not support the prosecution case.
37. Then remains the testimonies of P.W. 1 Banwari Lal and P.W. 2 Charan Singh. They were equally inimical and partisan witnesses.
38. Therefore, we find that simply on the basis of oral testimony of witnesses, as discussed above, and specially when they are not trust worthy, no charge of murder and robbery could be established against the appellants.
39. In defence the appellants had filed a number of documents to show that there were a number of enmities between the appellants and the witnesses. It was also highly improbable that Banwarilal had accompanied his father at the time of occurrence for doing pairvi in civil suit. Ex. Kha-1 is the copy of judgment in criminal case under Section 457, I.P.C. which was lodged by Munshi, uncle of the reporter against Marchanda. Harchanda was uncle of the appellant Amichand. Ex. Kha-2 is the copy of challan report dated 12-8-1971 in which Pitamber Singh, brother of PW-5 Birju, was witness against the appellant, Amichand. Ex. Kha-3 is the copy of report dated 24-12-1975 lodged by the appellant, Ramesh Chand against PW-6, Vinod Kumar. Ex. Kha-4 is the copy of report dated 27-8-1970 lodged by accused, Ramesh Chand against PW-2 Charan Singh. Ex. Kha-5 was filed to show that the appellant, Ramesh Chand was Director of Sahkari Samiti. Exs. Kha-6 and Kha-7 are certificates given by Sahkari Samiti to show that PW-2, Charan Singh, and Bahori Singh, father of PW-5 Birju, were debtors, Ex. Kha-8 is the copy of sale deed dated 31-8-1974 by which entire house was sold to appellant, Ramesh Chand, whereas PW-2, Charan Singh, had claimed that half of the said house was sold to him. This was a cause of enmity between them. Ex. Kha-9 is the copy of statement dated 14-4-1978 of one Ram Autar, brother of Ramesh Chand in criminal case against Prahlad and another in which PW-3, Sheodan Singh is also an accused. Ex. Kha-10 is the copy of statement dated 7-10-1971 of Naresh, brother of appellant, Ramesh Chand in criminal case filed against PW-2, Charan Singh and his three brothers. Ex. Kha-11 is the copy of report dated 11-8-1970 under Sections 323/504, I.P.C. lodged by Naresh, brother of appellant, Ramesh Chand, against PW-2, Charan Singh. Ex. Kha-12 is the copy of sale deed dated 10-7-1978 executed by Nawab Singh and Anokhey Singh and Smt. Kanti Devi as guardian of minors, Roop Kishore, Lal Ram and Manak Chand, in favour of Smt. Rama Devi. This sale deed was executed at Tahsil Khari in District Aligarh. It was presented for registration between 1 p.m. and 2 p.m. and appellant, Ramesh Chand was one of the witnesses. This was filed to show that after committing the murder, Ramesh Chand could not go to execute a sale deed.
40. Ex. Kha-13 is a copy of an affidavit filed by Buddha, a named witness in the first information report, in which he has alleged that Banwarilal and Vinod Kumar were putting pressure upon him to give false evidence against the appellants.
41. Ex. Kha-14 is the copy ing application dated 18-7-1978 given by PW 6 Hukam Chand, to show that he did not see the occurrence and did not give any statement to any police officer. Ex. Kha-15 is the copy of affidavit dated 17-7-1978 filed by Hukam Chand that he had not seen any occurrence and he was being pressurised to give false evidence against the appellants. Ex. Kha-16 is the copy of application dated 18-7-1978 given by Buddha. Ex. Kha-17 is the copy of judgment dated 24-5-1977 passed in Session Trial No. 233 of 1976, State v. Radhey Singh and Ors., which arose out of a dacoity alleged to have been committed at the house of Pyare Lal. Appellants, Amichand and Ramesh Chand were named in the first information report about the case ended in acquittal. This was filed to show that two appellants were already implicated by Pyare Lal in a false dacoity case which ended in acquittal. This was filed to show the enmity and reasons for false implication.
42. Ex. Kha-18 is the copy of an application dated 10-7-1973 given by appellant, Ramesh Chand to the Superintendent of Police, Aligarh against Pyare Lal, Banwari Lal and Babu. Ex. Kha-19 is the copy of order dated 10-7-1978 is S.C.C. Suit No. 789 of 1976 (Pyare Lal v. Bhagwati Prasad) of the Court of Judge, Small Causes, Aligarh. This was filed to show that one of the appellants, namely, Bhagwati Prasad was present in court that day and he could not go to court after the alleged commission of murder.
43. On the point of motive, it was alleged by the prosecution that Pyare Lal filed a civil suit against the appellants and obtained decree from the lower court. That was the main reason to commit the murder. This was dealt with by the trial court, holding it as strong motive for commission of the murder. But we find that an appeal was filed against that judgment and was pending at time of occurrence. Since the appeal was pending, in our opinion, it was not a sufficient motive for commission of murder. However, the motive becomes immaterial when the eye-witnesses have been produced. In this case there was enmity between the parties. It could be said that there were chances of false implication on account of enmity in the circumstances of the case. In our opinion after assessing the facts and circumstances of the case, we find that long standing enmity may be the reason for false implication which is more probable.
44. Regarding the time of occurrence, it is very important factor that there is discrepancy which has come out from the postmortem report. PW-10 Dr. G. N. Srivastava admitted that death could have been caused in between 3 or 4 a.m. The post-rnorteni report shows that stomach contained about five ounces of brownish liquid. The large intestine was not full of faecal matter. The prosecution witness, Banwari Lal, has stated that he and his father had taken two parathas each before they left their house. Dr. G. N. Srivastava already stated that it takes about three to four hours for digestion of such a paratha and if that was taken, semi-digested food could have been found in the stomach. Since no semi-digested food was found in the stomach, it was highly improbable that they left the house after taking two parathas each. The learned Sessions Judge erred in observing that five ounces of brownish liquid could be taken to be as semi-digested food of two parathas. The learned Sessions Judge observed in his judgment that this was a mistake on the part of the doctor and the doctor was careless in not finding the semi-digested food in the stomach. Dr. G. N. Srivastava was disbelieved on the point that no semi-digested food was found. In that view of the matter, the occurrence might have taken place in very early morning and not at 6 a.m. as alleged by the prosecution. The learned Sessions Judge went to this extent to observe in his judgment that he was unable to place reliance on his statement to draw an inference that the stomach did not contain any semi-digested food or that the occurrence took place in the very early hours. In view of the medical evidence on record, the learned Sessions Judge was not justified to observe that the doctor was careless and that he was also not justified to presume that semi-digested food was ignored by the doctor. In our opinion, it will be unjustified in view of the post-mortem report to show that the doctor deliberately ignored the presence of semi-digested food. This was an imagination on the part of learned Sessions Judge which is against the weight of evidence. This point itself makes the prosecution story highly improbable as the time of occurrence becomes doubtful, in view of the absence of semi-digested food in the stomach of the deceased after taking two parathas. This also shows that PW-1, Banwari Lal was not speaking the truth.
45. Regarding the place of occurrence, there are material loopholes. The learned Sessions Judge has also made inspection of the spot and prepared a inspection-note. The learned Sessions Judge had found that there was an over-bridge at Sonda Ki Pulia. Further he has observed that towards right side of canal road adjoining the over-bridge, there was a chak road going towards Sarewa. Towards back of the canal road, there was abadi of village Sonda. Towards north of the over-bridge, there was a Kulava No. 35 on the left side of canal about 350 steps. This Kulava was underground. There was no over-bridge at that place. At about 120 paces towards north of this place, there was the actual place of occurrence. The dead body was found towards right side of the canal. In the site-plan, Ex. Kha-13, prepared by the Investigating Officer, no such Kulava has been shown. The place of occurrence has been shown towards north of Pulia. The Investigating Officer had found the dead body towards north of the Pulia. From the local inspection report prepared by the learned Sessions Judge, it appears that the place of occurrence as shown by the Investigating Officer was different as the learned Sessions Judge had found this place towards north of the underground Kulava. The said Kulava was 350 paces north of the actual over-bridge. This discrepancy was tried to be explained from the local inspection report that the actual place of occurrence was not actually at 120 paces north to the over-bridge but it was at some distance from the underground Kulava. The place of occurrence was about 500 paces from the over-bridge. The witnesses claim to have seen the occurrence from south of the over-bridge, which makes doubtful whether the actual occurrence could be seen from such a long distance in view of the canal road and bushes. This confusion was also observed by the learned Sessions Judge, but he tried to explain this discrepancy from the local inspection report. What he had found is that in the local inspection report the learned Sessions Judge observed that:
"There is an over-bridge Sounda lying towards left and is visible from the over-bridge. Towards the right of canal road adjoining the over-bridge, there is a chak road which goes to village Sarewa. Towards the north of the over-bridge at about 350 paces there is Kulawa No. 35 on the left side of the canal. The Kulava is underground. There is no over-bridge at this place. At about 120 paces towards the north of this place, there is the place of occurrence."
46. In the site-plan prepared by the Investigating Officer, no Kulava was found by him there. He has mentioned a Pulia across the canal and the dead body was found just 120 paces north of that bridge. This discrepancy is not reconciled from the local inspection report. The Investigating Officer has clearly shown the over-bridge across the canal whereas the learned Sessions Judge found Kulava underground on one side of the canal. This goes to show that the place of occurrence was not actually visible and was find that it was a case of shifting place of occurrence which makes the prosecution case improbable.
47. In defence DW-1, Sri P. C. Sharma, Manager of R. K. Traders, has deposed that appellant, Jayanti Prasad was in this factory and could not be present on the spot at the time of occurrence. He was cross-examined at length. Some discrepancy was found in the attendance register prepared in the factory. In view of the discrepancy, his testimony was discarded. We have examined the evidence adduced by Dr. P. C. Sharma. There are, no doubt, some discrepancies in the attendance register of the factory, but the oral testimony of Sri P. C. Sharma could not be discarded altogether.
48. Similarly the presence of Bhagwati Prasad was noted in the court of Judge Small Causes on 10-7-1978 on the order-sheet. DW-3, Sri Parmanand Sharma, Reader of the Court, was examined. He stated that Bhagwati Prasad was present in Court on that date. Since the Presiding Officer was on leave, the case could not be taken up. However, the witness admitted that he mentioned the date '10-8-78' later on, which was a mistake on his part. The learned Sessions Judge, however, discarded the evidence of DW-3, Parmanand Sharma and observed that Bhagwati Prasad could have easily reached Aligarh by 1 p.m. as a number of buses were available for Aligarh"This presumption is uncalled for as it was' based on imagination.
49. It was also pointed out that the appellant, Ramesh Chand was a marginal witness on sale deed dated 10-7-1978, Ex. Kha-12, which was executed on the same day at Tahsil Khari in District Aligarh. Tahsil Headquarter was 20 miles away from the place of occurrence. Therefore, it is highly improbable in the circumstances of the case that the accused after commission of such a murder could have become a marginal wit-i ness on a sale deed at Tahsil Headquarter., The learned Sessions Judge is not justified in observing that since the sale deed was pre-sented between 1 p.m. and 2 p.m. the appellant Ramesh Chand might have reached Tahsil Headquarter after committing the murder. A normal human conduct would be to escape from the police and the investigating authorities after commission of such a murder and not to go to Tahsil Headquarter for simply becoming marginal witness of the sale deed. Therefore, this fact was wrongly discarded by the learned Sessions Judge. It appears that Ramesh Chand became a marginal witness on the sale deed and it can, therefore, be in normal c6urse. Therefore, we find that this circumstance also makes the prosecution story doubtful.
50. Further DW-2, Sri Rishipal Singh, is the principal of Uchchatar Madhyamik Vidyalaya, Kaseru. He deposect that Ami-chand was a peon in his school and was present in the college from 7 a.m. to 11 a.m. His testimony, too, was completely discarded as some discrepancy was found in the attend-ance register.
51. We have to examine the veracity of the inimical and partisan witnesses produced by the prosecution in the light of the facts and circumstances of the case. What has to be seen is as to whether the prosecution witnesses could be present at the time of occurrence, whether they had given natural and trustworthy account of the occurrence and whether their testimony inspires confidence. Applying this test we find that all the prosecution witnesses are inimical to the appellant. Three of them have given self-contradictory statements and disowned the actual prosecution case. Only two witnesses, PW-1 and PW-2 Banwari Lal and Charan Singh, came forward to support the prosecution case. After examination of their testimony in view of the facts and circumstances of the case, we find that they do not inspire confidence.
52. After examining the entire facts and circumstances of the case we are of the opinion that the prosecution has not come forward with the true facts. The prosecution witnesses are highly partisan and inimical. They are also chance witnesses. Even the presence of PW-1, Banwari Lal, is doubtful. The time and place of occurrence are also not fixed and are doubtful. The testimony of prosecution witnesses does not inspire confidence. We, therefore, find that the charges against the appellants are not proved beyond doubt and as such they are entitled to acquittal.
53. Accordingly, the three appeals are allowed and judgment and order of the trial court are set aside. The appellants, Bhagwati Prasad, Amichand, Ramesh Chand and Jayanti Prasad are acquitted of the charges under Sections 302, 302/34 and 394, I.P.C. The appellants are on bail. They need not surrender. Their bail bonds and surety bonds are discharged.
54. Let a copy of this judgment be placed on the record of Criminal Appeals Nos. 1499 of 1979 and 1587 of 1979 which shall govern those appeals as well.