JUDGMENT M.C. Jain, J.
1. Seven persons, namely, I. Dhan Prasad, 2. Jag Mohan, 3. Desh Raj, 4. Madan, 5. Kishori, 6. Kunwar Lal and 7. Kamta were tried in S.T. No. 191 of 1980 before Sri Manphool Singh, the then III Additional Sessions Judge, Hamirpur. Out of them, Madan Lal, Kunwar Lal and Kamta were acquitted whereas rest came to be convicted by Judgment and order dated 18-11-1981 under Section 302, I.P.C. read with Section 149, I.P.C. and sentenced to life imprisonment. Each of them was also convicted under Section 148, I.P.C. and sentenced to two years rigorous imprisonment. Both the sentences have been ordered to run concurrently. They are in appeal before this Court. Out of them Desh Raj died during the pendency of the appeal and the appeal has, therefore, abated so far as he is concerned. At present this Court of appeal is concerned only with three appellants, namely Dhan Prasad, Jag Mohan and Kishori.
2. The incident occurred on 12-4-1980 in the Village Budera, Police Station Panwari District Hamirpur. The life of Kadhora was cut short in this incident. The F.I.R. was lodged by his father Gumna P.W. 1 the following day on 13-4-1980 at 7.15 a.m. The distance of the police station from the place of occurrence was six kms. As per prosecution version, Dhan Prasad was armed with small gun, Jag Mohan with big gun, Desh Raj (now dead) with axe, Kishori with spear, Madan (acquitted) with axe, Kunwar Lal with lathi and Kamta with Lathi. All excepting Kamta are the sons of Ram Dayal Lodhi whereas Kamta was said to be their associate. They allegedly exterminated Kadhora as he was doing pairvi on behalf of his father Gumna in connection with land litigation pending in the court of Consolidation Officer at Panwari. They, therefore, nursed animosity against Kadhora who had become their eyesore. On the fateful day at about 5.30 p.m. Gumna P.W. 1, his daughter Raj Kunwar, wife Rooprani P.W. 2 deceased Kadhora were returning back after working in their field to reach their house. Kadhora was proceeding a few paces ahead of the rest. When he reached in front of the house of Ajawa Behana in the village abadi he was ambused, fired upon and assaulted by the accused. The first shot was allegedly fired by Dhan Prasad followed by second fire by Jag Mohan. After sustaining such two shots, the victim Kadhora fell down on the ground whereafter he was further assaulted by Desh Raj and Madan by axes and by Kishori by spear. Those holding lathis, namely, Kunwar Lal and Kamta allegedly held out that he might have breathed his last and they must have run away. Then all the assailants escaped, after threatening the complainant and his family members not to lodge the report as otherwise they would also be exterminated. At the alarm of the family members of the deceased other witnesses Bhagirath P.W. 3 and Umrao were attracted to the scene who also saw the occurrence with their own eyes. At the relevant time they were sitting at the Chabutara in front of the door of one Phoola near the seen of occurrence. Out of fear, the complainant Gumna could not muster courage to lodge the F.I.R. in the night and the same was lodged the following day at 7.15 a.m. A case was registered followed by investigation by Ram Singh P.W. 5.
3. Post mortem over the dead body of the deceased Kadhora was conducted by Dr. A.K. Srivastava, P.W. 4 on 14-4-1980 at 1.20 p.m. The following antemortem injuries were found on his person :
1. Punctured wound 4 cm x 3 cm x muscle deep on outer aspect of left arm 10 cm below achromion process. Clots present.
2. Incised wound 5 cm x 3 cm x. bone deep on left side of forehead, 5 cm above left eye brow. Clots present.
3. Incised wound 2 cm x 1 cm on right side of forehead, 1 cm above right eye brow, bone deep. Clots present.
4. Incised wound 2 cm x 1 cm on root of nose, bone deep. Clots present.
5. Incised wound 2 cm x 1 cm on right side of chin, bone deep. Clots present. Fracture of right lower jaw.
6. Punctured wound 1.2 cm. x .3 cm x cavity deep on right side of chest, 4.5 cm below right nipple. Clots present.
7. Gun shot wound of entry 3 cm x 1.5 cm on outer aspect of right arm, 21 cm below achromion process with scorching and blackening 6 cm x 6 cm round the wound. Clots present, 5 pellets of pea size, one plastic wad and two cork wad pieces found in the wound.
8. Abrasion 1.5 cm x 1.2 cm on left knee cap. Congestion present on cutting.
9. 7 gun shot wound of entry, one of them 2.3. cm x 2 cm in size, rest other 1 cm x 1 cm each in size in area of 7 cm x 3 cm and 6 cm below lower angle of scapula on left side of back. Clots present.
10. Gun shot exit wound 2.5 cm x 1 cm just above right clavicle in clavical fossa. Clots present communicating with injury No. (9).
11. Multiple abrasion 20 cm x 2 cm on back aspect of left forearm, 2.5 cm below elbow point. Congestion present on cutting.
4. On internal examination, fracture of front bone and 6-7 ribs of left side had been found. Brain was soft and pulpy. Right and left lungs were lacerated and congested. Seven pellets were found in the right side of the chest. There was also fracture of right lower jaw. Liver was lacerated and congested. The death had occurred due to shock and haemorrhage as a result of ante-mortem injuries.
5. The defence was of denial and false implication.
6. The prosecution, in all, examined five witnesses. Out of them Gumna P.W. 1, his wife Roop Rani P.W. 2 and Bhagirath P.W. 3 were the eye witnesses of the fact.
7. We have heard Sri Kamal Krishna, learned counsel for the appellants and Sri Shekhar Yadav, learned A.G.A. from the side of the State Record of the lower Court has been summoned before us which has been carefully examined.
8. We form the opinion that prosecution case, as projected, suffers from inherent improbabilities and weaknesses, which render it impossible to sustain the conviction. We may relate them one by one to make our meaning clear. It has first to be noted I that the F.I.R. of the incident is inordinately delayed one. The incident occurred on 12-
4-1980 at about 5.30 pm. Though the distance of the police station from the place of occurrence was only six kms. the report was lodged the next day on 13-4-1980 at 7.15 a.m. by the deceased's father Gumna P.W. 1 who himself claimed to be an eye-witness of the incident. The stock explanation that he could not go to lodge the F.I.R. in the night is" not plausible. As he says he had seen the ghastly murder of his son with his own eyes. Not only this, Bhagirath P.W. 3 and his own relative Umrao had also reached the spot and seen the occurrence. He should have gone to lodge the F.I.R. with them. He did not do anything of the kind in the night and allowed time to pass away lodging the F.I.R. in the following day at 7.15 a.m. by oral narration. Obviously there was inordinate unexplained delay in the lodging of the F.I.R leaving much time for concoction and deliberation. It has to be pointed out that as per the G.D. concerning the registering of the case, he had gone to police station all alone in the morning to lodge the F.I.R. If an element of fear was deterring him from going to the police station in the night to lodge the F.I.R. he would have at least taken some one with him in the morning when he went to lodge the F.I.R. The factum of his going to lodge the F.I.R. the following day all alone militates against his explanation of being not able to go to the police station immediately after the incident out of fear. So, having regard to the facts and circumstances of the present case, the inordinate delay in lodging that F.I.R. gives a serious jerk to the prosecution case.
9. Secondly, it has been claimed by the prosecution that there was land litigation before the Consolidation Officer between the complainant Gumna P.W. 1 and the accused Kunwar Lal and five others who were the sons of Ram Dayal. The seventh accused Kamta was said to be their, associate. F.I.R. als6 states that before leaving the place of occurrence, the accused had offered threats to him that in case he dared to lodge the F.I.R, he would also be exterminated. As per the prosecution case, the accused persons were armed with deadly weapon. He being the head of the family and in litigation with the accused over land before Consolidation Officer would have been the first object of the fury of the accused. To say in other words, he would not have ordinarily been spared unharmed, had really he been present at the scene of occurrence.
10. There is nothing on record to show that land litigation before Consolidation Officer had taken some serious turn to impel the accused to take the extreme step of doing Kadhora to death. It may be put this way that there was no quick igniting cause for the extreme step having been taken by the accused to do away with Kadhora who was simply allegedly doing pairvi in consolidation case on behalf of his father Gumna P.W. 1. In any case, Gurnna could be taken to be at the root of the litigation and not Kadhora. Therefore, ordinarily he would not be the sole object of the displeasure of the accused.,
11. So far as Roop Rani P.W. 2 is concerned, she is the second wife of Gumna P.W. 1. Really speaking the testimony of Gumna P.W. 1 and Roop Rani P.W. 2 should be taken as of one person through two mouths. Bhagirath P.W. 3 also does not appear to be an Independent witness. He could not deny that Ram Dayal, father, of accused had appeared as a witness against his father resulting in his conviction.,
12. Another strange feature of the case, is that none of the eye witnesses Imputed, any incriminating act to the accused, Madan, Kunwar Lal and Kamta who have been acquitted by the trial Court, Out of them, Madan Lal was holding an axe whereat Kunwar Lal and Kamta had lathis, The deceased did not sustain any lathi injury, He only suffered an abrasion on lift knee which hi could sustain on fall to the ground. It does net stand to logic that the persons holding lathis were only to prenounce that the deceased had, breathed his last and all of them must run away, Sis real brothers came to be implicated and global and global consideration leaves the impression that prosecution did not come forth with true story, implicated some of the assailants falsely and distorted the real version right from the beginning beyond recognition.
13. There is yet another aspect of the matter which we intend, to deal with hereinbelew indicating that this possibility of false implication of the accused appellants is very much there, It has come in the evidence that Kadhora was the son of first wife of Oumna P.W 1 known as Vaselawali, She was residing in Nauranga, Kadhora was born to him from Vaselawali, Kadhora sometimes used to live with her at Nauranga and sometimes with him. Roop Rani P.W. 2 is second wife of Gumna and is living with him for last about 20 years. She has also a son. The defence suggestion to Gumna P.W. 1 was that he did not want to give half share of land to Kadhora. Of course, Bhagirath P.W. 3 stated in his cross-examination that Gumna had given his entire land to Kadhora. Indeed, the accused persons could not reap any advantage by exterminating Kadhora, because even if he was exterminated, Gumna himself with his younger son born from Roop Rani was there. The real advantage of the murder of Kadhora could be reaped by his second wife Roop Rani. P.W. 2 who had a son. In reality it was she who was residing with Gumna with her son. Kadhora was living with his mother in different village Nauranga, So, the point that we wish to make is that the possibility cannot be ruled out that actually it could be Roop Rani P.W. 2 who might have masterminded the murder of Kadhora for her own benefit, and that of her son, By doing so, she killed two birds from one stone, To put it simply, the settled two issues thereby, First she reaped advantage for herself and her son excluding Kadhora from sharing the land in the name of Gumna, Secondly, by implicating the accused for the murder of Kadhora, she weakened the adversary party of land litigation, This possibility is very much there on the dispassionate examination of the facts, related circumstances and human behaviour guiding human action.
14. In view of the above discussion, we veer around the conclusion that the order of conviction and sentences against the appellants is based on weak evidence not answering the test of probabilites.
15. We would allow this appeal for the discussion made above.
16. The appeal is hereby allowed. It has already abated in respect of the appellant Desh Raj who has died Conviction and sentences passed against other appellants, Dhan Prasad, Jag Mohan and Kishori are set aside. They are already on bail.
17. Let a copy of this judgment along with record of the case be immediately sent to Court below for necessary entries in the relevant register under intimation to this Court within two months from the date of receipt.