JUDGMENT V. Sahai, J.
1. The five appellants namely, Chunni, Bateshwar, Sallu, Ram Ratan and Indra Pal alias Inder, were convicted and sentenced under Sections 302/149 I. P. C. and 148 I.P.C. Under the first count they were awarded Life Imprisonment and under the second count they were awarded two years' R. I. Both the sentences were directed to run concurrently. The aforesaid convictions and sentences were recorded by Shri Mohan Singh, III Additional District & Sessions Judge, Hardoi vide his orders dated 4-8-1979 and 6-8-1979. Feeling aggrieved by the aforesaid conviction and sentences, the five appellants have come up in appeal before this Court.
2. The prosecution case as it emerges from the recitals contained in the F. I. R. lodged by Kunwar - real brother of deceased Sundar on 19-6-1978 at 8.10 p.m. at Police Station Pihani, District Hardoi, the distance between the place of incident and the aforesaid Police Station being 13 miles, runs as under:-
3. Between the informant and appellants Sallu and others protracted enmity is alleged to be subsisting about 7 or 8 years ago, it is alleged that in an incident the father of appellant Sallu, namely, Talli was killed and for Talli's murder the informant had been implicated. On 19-6-1978 when the sun was about to set, the deceased and the informant are alleged to have been returning from the market and when they had reached the Abadi of the village in front of the house of Teeka, they saw the five appellants out of whom Sallu, Ram Ratan and Indra Pal were armed with guns and Chunni and Bateshwar with country made pistols sitting there. When the deceased and the informant reached near them, the accused persons are alleged to have challenged them and the appellant Sallu is alleged to have said 'Aj Saran Ka Marin Dala Jai Aur Bap Ka Badla Poor Kar Leen Jai." It is alleged that they were chased and appellants Sallu fired with his gun on deceased Sundar and the aforesaid shot struck Sundar and injured him. Sundar after getting injured is alleged to have kept running on. The accused persons chased Sundar, who ultimately fell down in Ram Sahay's field and there as a result of firing, they injured him. On the cries of the informant, Khanjan (P. W. 2), Thakur Prasad (P. W. 3) Arak, Ram Naresh (both not examined) came at the place of the incident and are alleged to have seen the incident. They are said to have challenged the appellants, Sallu and others, who leaving Sundar in an injured condition are said to have run away in the northern direction. Thereafter a cot was arranged for and Sundar who was still alive, was brought on it to Bus-stop from where he was brought on a Bus to Pihani. He was taken to police station Pihani by the informant Kunwar who is alleged to have been accompanying him and there Kunwar lodged the F. I. R. at the time stated above. On the basis of the F. I. R. Crime No. 145 of 1978 was registered against the five appellants.
4. The injured Sundar was sent to Primary Health Centre Pihani along with a letter addressed to the Medical Officer but before he could reach the Primary Health Centre, he succumbed to his injuries. The investigation of the case was taken up by Shri Hargovind Singh, who has not been examined by the prosecution in the instant case. Shri Hargovind Singh recorded the statement of the informant, prepared the inquest report, sent the dead body for autopsy and recovered from the place of the incident - from Ram Sahay's field plain and blood stained earth, some wads and empty cartridges. After the transfer of Shri Hargovind Singh, the subsequent, investigation was conducted by Sub Inspector Rananjai Singh (P. W. 5). Shri Rananjai Singh after interrogating the accused submitted the charge-sheet (Ex. ka 4) against them.
5. The autposy on the dead body of the deceased was conducted by Dr. J. K. Varma (P. W. 6) on 21-6-1978 at 9. a.m. Dr. Varma found the following ante-mortem injuries on the person of the deceased :-
1. A gun shot wound of entry 3.5 cm x 4 cm cavity deep on the right side of stomach at about 9. 'O' Clock position, 17 cms. away from umblicus i. e. inverted, lacerated margins. Blackening and tattooing present around the wound. Two places of wadding recovered underneath from chest in cavity.
2. Seven gun-shot of exit of 1 cm x 1 cm to 2 cm x 1.2 cm, all cavity deep on the top side abdomen margins. No blackening or tattooing 6 cm lateral to umblicus going outward and 5 cms above umblicus level going downward. One big pellet recovered from the original wall within the area under the skin. These wounds were exit wounds of injury No. 1.
3. A gun shot wound of entry of 5 cm x 3.5 cm x cavity deep on the left side chest in the posterior axillary lane, just above the level of up castal margin @ inverted concerted margin blackening and tattooing present around the wound. Direction was to the right and slightly forward. Two pieces of wadding and thirty six small pellets recovered from the chest and abdominal cavity on the left side.
4. A gun shot wound of entry of 6 cm x 5 cm x through and through deep on the back of right forearms 10 cms above the wrist @ inverted, lacerated margins, blackening and tattoing present around the wound.
5. A gun shot wound of exit of 10 cms x 8.5 cm x through deep on the front of right fore-arm. 7 cm above the wrist @ averted, lacerated margins. No blackening or tattooing present. It was the exit wound of injury No. 4. Both bones underneath fractured into pieces. Five tissued and blood vessels badly lacerated underneath.
6. A gun shot wound of entry, 5 cm x 4.5 cm x through and through deep on the back of left arm just above the elbow @ inverted and lacerated margins, blackening and tattoing present around the wound.
7. 'A gun shot wound of exit of 7.5 cm x 9 cm x through and through deep on the front of left arm (partly over the elbow and rest above it) with averted and lacerated margins. No blackening or tattoing present. This was the exit wound of injury No. 6. Bone underneath fractured into pieces. Soft tissue and blood vessels lacerated badly.
6. Dr J. K. Verma also recovered pieces of wadding and pellets from the body of the deceased. In the opinion of Dr. Varma, death was the result of shock and haemorrhage on account of the ante-mortem injuries sustained.
7. The accused were committed by Shri N. K. Singh, II Addl. Munsif Magistrate, Hardoi on 3-10-78 to face their trial under Sections 303/149 I. P. C. and 148 1. P. C.
8. To substantiate its case during trial in all, prosecution examined eight witnesses. Out of them three namely. P. W. 1 Kunwar, P. W.2, Khanjan and P. W. 3, Thakur Prasad are eye witnesses. P. W. 4 is Head Moharrir Hari Prasad Awasthi, who registered the case on the basis of the F. I. R. P. W. 5 is Rananjai Singh and P. W. 7 is Ram Lakhan Singh, both of them are said to have been associated with the investigation of the case. The remaining two witnesses, P. W. 6 J. K. Varma and P. W. 8 Shahjahan are doctors, the former performed the autopsy on the dead body of the deceased and the latter deposed that the deceased was dead when he reached the Primary Health Centre.
9. The defence of the appellants was denial and false implication on account of enmity. In defence they did not examine any witness.
10. The learned Sessions Judge believed the evidence of the three eye witnesses and passed the order under appeal. Feeling aggrieved, the appellants have preferred the present appeal.
11. We have heard Mr. Nagendra Mohan, learned counsel for the appellants and Mr. Anadi Banerji Additional Public Prosecutor at a considerable length. We have also perused the entire evidence on record and have carefully gone through the evidence of the three eye witnesses. We are inclined to agree with the submissions of the learned counsel for the appellants that the prosecution has failed to bring home the guilt of the appellants beyond reasonable doubts and the learned Trial Judge erred in convicting and sentencing them in the manner stated above.
12. The main submission of the learned counsel for the appellants is that integral part of the prosecution case is false and during trial the prosecution case has been modulated from that as has come forth earlier to bring it in conformity with the medical evidence. The learned counsel has also referred to us some glaring improbabilities in the prosecution case. He has also pointed out that enormous prejudice was caused to the appellants on account of prosecution not examining P. W. 5 S. I. Rananjai Singh who conducted practically the whole investigation in the instant case. Counsel for the appellants also submitted that there was no immediate motive for the commission of the instant murder.
13. In order to appreciate the submission of the learned counsel for the appellants we may again briefly look at the prosecution case. The case of the prosecution is that while returning from the market when the deceased Sundar and his brother informant Kunwar reached the Abadi of village Hannapas Gawan, they found in front of the Teeka's house the five appellants armed with fire-arms waiting there. Seeing them the deceased tried to run and according to the F. I. R. and statement of the informant Kunwar recorded under Section 161 Cr. P. C. as soon as he started running, Sallu fired a shot at him as a result-of which he was injured but kept on running for some distance. According to the evidence of P. W. 1 Sallu had fired the shot from a distance of 15 to 20 paces (30 to 40 feet) even after sustaining fire-arm injury as a result of the shot fired by Sallu, the deceased kept on running and reaching the field of Ram Sahay where he is said to have fallen down and thereafter fired upon by the appellants. We have already reproduced in our judgment the ante-mortem injuries sustained by the deceased. There are four gun-shot wounds of entry and a common feature in all those four injuries, is the presence of blackening and tattooing meaning thereby that the shot was fired from a very close ranged/Both Text Book writers and P. W. 6 Dr. J. K. Varma have stated that the outer limit of distance of firing in cases where there is blackening etc. is 6 feet. We are inclined to agree with this opinion. Now we propose testing the prosecution case in the background of the ante-mortem injuries suffered by the deceased. The informant P.W. 1 Kunwar in his statement in the trial court has candidly admitted that when the first shot was fired by Sallu, the deceased Sundar was at a distance of 15 to 20 paces (Kadams) (30 to 40 feet) from Sallu and other appellants. In the FIR and in his statement recorded under Section 161, Cr. P. C. it has been stated by him in unequivocal terms that the first shot which Sallu fired on the deceased Sunder struck Sunder and he was injured as a result thereof. Obviously, this averment is false because as we have pointed out above blackening and tattooing was found in all the four ante-mortcm gun-shot wounds of entry sustained by the deceased. We have no hesitation in holding that there is no gun-shot injury as a result of firing from a distance of 15 to 20 paces. Realising this patent conflict between recitals in the FIR and the statement under Section 161, Cr. P. C. of the informant on the one side and the medical evidence on the other, prosecution modulated during trial the statement of P.W. 1 Kunwar in terms that Sallu's fire did not strike the deceased. When confronted with the recitals contained in the FIR he said in his statement that since he had lost his mental balance, he had stated in the FIR that Sallu's shot had struck the deceased. When the informant was confronted during trial with his statement recorded under Section 161, Cr. P. C. he stated that he did not tell this to the Investigating Officer. The aforesaid change in the informant's statement in trial in our opinion on account of the fact that the prosecution wanted to bring its case in conformity with the medical evidence. For the reasons mentioned above, arc not prepared to place reliance on the modulated statement of P.W. 1 Kunwar. The irresistible conclusion is that the prosecution case that Sundar was fired near the house of Teeka is false and the entire incident took place only at one place namely, Ram Sahay's field. We are fortified in taking such a view from some other circumstances also namely, there is no blood either near the house Teeka nor between Teeka's house and Ram Sahay's field though the distance is about one furlong. Another circumstance which makes us have grave doubts on anything happening near Teeka's house is that we find it extremely improbable that is the heart of village Abadi where Teeka's house was situate, five persons with fire-arms in gaze of every one would be openly watting. Another circumstance which tarnishes the truthfulness of P. W. 1 Kunwar is that in his' statement in the trial Court the informant has specifically stated that Ram Ratan fired on the deceased. However, there is no such avernment in his statement under Section 161 Cr. P. C. and when the informant was confronted with the aforesaid statement, he attributed its absence to collusion on the part of the Investigating Officer, with the accused. We are not prepared to believe this. In view of the infirmities and improbabilities as pointed out above, we have no hesitation in holding that P. W. I Kunwar did not see the incident. Consequently we reject his testimony. We strongly feel that the informant being the real brother of the deceased is falsely deposing in the instant case.
14. Coming to the evidence of P. W. 2 Khanjan we also find that he has stated that on the date of the incident from his house he was going towards Bus-stop and when he reached near Sumer's house, he heard some cries and saw that to the north of the Teeka's house in the lane Sundar was running being chased by the five accused persons. We have already stated our reasons for rejecting that part of the incident which is alleged to have taken place near Teeka's house. Since this witness deposes about that part, his credibility is shaken. In his cross-examination he said that he was going to purchase Biris at the Bus-stop which is at a distance of three furlongs from his village. We find it rather amusing that he should not have purchased Biris from the market which was situate only at a distance of one and a quarter furlongs. His conduct also shows that he did not see the incident. He stated that after the incident for twenty minutes he stayed at the place of the incident, but he did not discuss the incident with the informant and others who were present there. Such a conduct in a number of cases, by the Apex Court, has been described as impossible conduct. In our opinion this witness was apprehensive of the police and consequently has deposed in the instant case. He admitted that the police had challaned him earlier in a case under Sections 399/402 I. P. C. in which he had been acquitted. Obviously the witness did not want to annoy the police for the second time by refusing to depose in the instant case. For the reasons stated above, we do not feel inclined to place reliance on his testimony and we express our grave doubts on his claim that he was present at the place of the incident and saw the incident.
15. Coming to the evidence of P. W. 3 Thakur Prasad, we find in his statement that al the time of the incident he was returning from the market and had stopped at Semal's house situate at a distance of 20 paces from Teeka's house because Semal's mother was ill. He stated that after some-time he heard cries and saw that Sundar was runing in the lane near Teeka's house. We have earlier stated that no part of the incident took-place at Teeka's house. Another reason which discredits his testimony is that in his statement under Section 11 Cr.P.C. he stated that while he was going to his house, he heard cries and thereafter reached the place of the incident. Obviously he denied this statement when confronted with it in the trial Court and we feel hesitant in accepting his denial and find this conflict between his statement in the trial Court and his statement under Section 161 Cr. P. C. an example of his untruthful-ness. We further find that although like the informant Kunwar (P. W. I) and Khanjan (P. W. 2), he lives in the same village but his statement under Section 161, Cr. P. C. was recorded after 2 or 3 days. The exact date of recording of his aforesaid statement would have been established by the prosecution had it examined S. I. Rananjai Singh who recorded his statement. For reasons best known to the prosecution it has not cared to examine S. I. Rananjai Singh and, therefore, we have no option but to hold that there is no explanation for the delay in recording his statement under Section 161 Cr. P. C. In AIR 1979 SC 135 (Ganesh Bhavan Patel v. State of Maharashtra), in paragraph 18, the Hon'ble Supreme Court has said :-
"Normally in a case where the commission of the crime is alleged to have been seen by witnesses who are easily available, a prudent investigator would give to the examination of such witnesses precedence over the evidence of other witnesses."
Another infirmity in his statement is that he stated that three shots were fired from vey near by putting barrel on the body of the deceased but no searching or singing of heirs has been found by the Autopsy Surgeon. In view of the infirmities pointed out above, we have no hesitation in concluding that he too in all probability, did not see the incident. At any rate he is not a truthful witness.
16. Learned counsel for the State contended that P. Ws. 2 and 3 were independent witnesses and there was no reason for them to falsely implicate the appellants in the instant case. We regret that we cannot subscribe to the contention of the learned State Counsel that since they were independent, their evidence should automatically be believed. It has been repeatedly emphasised by the Apex Court and in decisions of our Court that the evidence of an. independent witness has also to pass test of being in tune with improbabilities and being trustworthy and in consonsance with attending circumstances. This is certainly not the case here.
17. We may also mention that according to the prosecution a part of the incident took place in Abadi of the village where other persons must have been there. Prosecution has not produced any other eye witness. The observation of the learned trial Judge in the judgment that people are afraid and reluctant to depose is not backed up by any evidence on record.
18. We do not find any immediate motive on account of which the happening of the present incident was probable. The motive alleged by the prosecution is that for the murder of appellant Sallu's father Talli, the informant and others were rundown. The evidence of P. W. 1 discloses that three year's prior to the happening of the present incident that case was acquitted by the Hon'ble High Court. There is no evidence of any further inimical strain between the parties since the acquittal of the aforesaid case by the High Court. No immediate motive has been given out by the prosecution. To our mind, it appears extremely improbable that Sallu and other appellants would have waited for three long years to avenge the murder of former's father.
19. Before parting with our judgment we would like to express our gratitude to the vehemence and fair manner in which the learned State counsel has argued this appeal. We regret that we are not able to accept his submissions that the evidence of the eye witnesses inspires confidence and that the conviction of the appellants has been rightly arrived at by the learned trial Judge.
20. In view of the infirmities pointed out above, it would not be safe and prudent for us to sustain the \ convictions and sentences of the appellants as recorded by the learned trial Court. We feel that the appellants deserve benefit of doubt. Consequently, this appeal succeeds.
21. We allow the appeal and set aside the conviction of five appellants namely (1) Chunni son of Balli Dhanuk, (2) Bateshwar son of Kutai Dhanuk, (3) Sallu son of Balli Dhanuk, (4) Ram Ratan son of Manohar Dhanuk, (5) Indra Pal alias Indar son of Balli Dhanuk, under Sections 302/149, I.P.C, 148 I.P.C. and the sentence of Life Imprisonment and two years' R. I. imposed on them. We are informed that the appellants are on bail. They need not surrender. Their sureties shall stand discharged and the personal bond cancelled.