JUDGMENT Mukteshwar Prasad, J.
1. Three accused namely, Durga Prasad Chand, Kripa Shanker Chand and Satya Narain Chand have come up in appeal to this Court under Section 374 Cr.P.C. against the judgment and order-dated 23.10.81 passed by II Additional Sessions Judge, Gorakhpur in ST. No. 7 of 1980 whereby the three appellants were convicted under Sections 148, 323, 307 and 452 I.PC. all read with Section 149 of the Penal Code and each of them was sentenced to undergo rigorous imprisonment for a period of three years, one year, four years and three years respectively thereunder. All the sentences were directed to run concurrently.
2. Briefly stated, the facts of the prosecution case as revealed from the record were as under:-
P.W. 1 Ganga Chand, son of Dulam Chand, is the informant. The accused are collaterals of the informant. The informant had four brothers Babu Ram Chand, Gulab Chand and Chunnu. The accused were very rich and influential persons. After death of Dulam Chand in the year 1966, Durga Prasad Chand deposited ten times of land revenue in respect of 0.23 acres Sirdari and got a fictitious sale deed executed. After having come to know this mischief, Ganga Chand filed an application for cancellation of Bhumidhari sanad and a civil suit for cancellation of the sale deed also. Ram Prakash, nephew of the informant, was killed by Durga Prasad Chand, Satya Narain Chand, Ram Rekha Chand and Ram Pratap Chand and they were facing trial in the court of Session. The parties were litigating in civil, revenue and criminal courts in the month of December, 1978. Consequently, the parties were having strained relations since long.
3. On 25.12.78 at about 11-30 P.M., the informant and his brother Babu Ram Chand were sleeping in the outer verandah. A lantern was burning there. Accused Durga Prasad Chand armed with a gun, Ram Pratap Chand armed with a country made pistol, Kripa Shanker Chand armed with a Pharsa, Suresh Chand armed with Akari, Satya Narain Chand, Lauhar Singh and Prahalad Singh who were having spears in their hands and Ram Rekha Chand armed with a lathi alongwith 10-12 persons armed with lathies arrived there after forming an unlawful assembly and in prosecution of the common object of that assembly, they assaulted Babu Ram mercilessly with spears and Akari and caused a number of injuries. The assailants used firearms also. Both brothers raised alarm which attracted co-villagers Jangi Chand, Rajendra Chand, Ram Pati Chand, Motivar Chand (P.W. 3), Ram Kishun Kahar, Dukkhi Chand and informant's son Ran Vijai Chand and his nephew Randhir Chand. The witnesses were flashing their troches. The informant was having a torch and they identified the assailants in the light of torches and lantern. Ganga Chand received lathi blows.
4. Babu Ram was sent to PHC, Gola for medical examination of his injuries where Dr. N. Mehta examined his injuries on 26.12.78 at 9-10 a.m.
5. P.W. 5 Dr. N. Mehta, the then M.O. of PHC, Gola (Gorakhpur) found five incised wounds on the scalp, neck back, right thigh and right leg of different dimensions. He further found one lacerated wound on the right sole, one contusion on the outer side of the right thigh and three abrasions.
6. In the opinion of Dr. Mehta, injuries No. 1, 3, 4, 5, 7, 8, 10 and 11 were simple. Injury No. 2 was dangerous. Injuries No. 1, 2, 3, 6, 7 and 8 were caused by sharp edged weapons, including Pharsa. Injury No. 6 was grievous and remaining injuries were caused by lathies. Dr. Mehta advised X-ray of injury No. 12. The injuries were 1/2 day old at the time of examination. The injured was referred to District Hospital, Gorakhpur for X-ray and treatment.
7. A written report of the incident was prepared by Gulab Chand on the dictation of his brother Ganga Chand. The informant handed over the report to the local police and a case was registered at P.S. Gola on 26.12.78 at crime No. 221 at 8-15 a.m.
8. The local police sent the informant to PHC, Gola for medical examination through Constable Om Prakash Singh C.P. No. 967. Dr. Mehta examined the injuries on 26.12.78 at 12-30 P.M. and found two contusions on the right upper arm and left forearm. There were two abrasions also on the left forearm and right knee. All the injuries were simple caused by blunt and hard object and were about 1/2 day old at the time of examination.
9. P.W. 4 S.I. Gopal Singh took up investigation of the case. He reached the place of occurrence on 27.12.78 and after inspection prepared site-plan. He collected blood stained earth, akari and one used cartridge (khokha) and prepared Fard. He prepared Fard Supurdginama in respect of lantern and torches. He interrogated the witnesses, including P.W. 3 Mativar Chand and after completing investigation, submitted charge sheet.
10. After committal of the case to the court of Session, the appellants alongwith others were charged under Sections 148, 307, 323 and 452 I.P.C. all read with Section 149 I.P.C. on 15.11.1980. Accused Ram Rekha Chand was charged under Sections 147, 307/149, 323/149 and 452/149 I.P.C. All the accused pleaded not guilty to the charges and claimed to be tried.
11. In order to substantiate its allegations, the prosecution examined P.W. 1 Ganga Chand, one of the injured and informant, P.W. 2 Babu Ram Chand, brother of the informant and another injured, P.W. 3 Mativar Chand who is named in the F.I.R. as an eyewitness, P.W. 4 S.I. Gopal Singh, I.O. of the case and P.W. 5 Dr. N. Mehta, the then M.O. of PHC, Gola (Gorakhpur) who examined the injuries of Babu Ram and Ganga Chand on 26.12.78 and proved injuries report.
12. All the three appellants in their statements given under Section 313 Cr.P.C. totally denied their complicity in the alleged crime and pleaded their false implication on account of enmity. Appellant Durga Prasad Chand pleaded that his licensed gun was deposited in Sadar Malkhana, Gorakhpur on 9.4.77 and was released in his favour in the month of January, 1979. He asserted that the informant's brother Gulab Chand, scribe of the written report, was a police Constable and by exercising his influence he got a false case set up against him and others. He claimed himself to be a Railway employee.
13. Accused Satya Narain Chand pleaded that he was falsely implicated on account of enmity. Kripa Shanker Chand claimed himself that he was a student of B.A. and studied at Gorakhpur. Both Kripa Shanker Chand and Satya Narain Chand took the plea that murder of Ram Prakash, nephew of the informant, was committed by Gulab Chand and he was an accused in cross case which was pending in the court of Session.
14. Accused examined D.W. 1 Ali Ahmad, Malkhana Moharrir, Sadar Malkhana, Gorakhpur in his defence.
15. After having considered the entire oral and documentary evidence on record and the arguments advanced on behalf of the parties, learned trial Judge found the three accused Durga Chand, Satya Narain and Kripa Shanker guilty and convicted and sentenced them as mentioned above.
16. I have heard learned counsel for the appellants, learned A.G.A. and perused the record carefully.
17. Learned counsel for the appellants has assailed the impugned judgment mainly on the grounds that eight known and 10-12 unknown assailants attacked upon Babu Ram and Ganga Chand on the fateful night. The assailants were armed with licensed gun, country made pistol, spears, pharsa and akari. In other words, at least seven assailants were armed with firearms and deadly weapons. They however, did not succeed in causing death of the informant or any member of his family. The parties were admittedly litigating for the last several years and were at daggers drawn. However, no firearm injury was caused to Babu Ram and his brother Ganga Chand and this circumstance was not explained by the prosecution in the court below. Enmity is a double-edged weapon and it cuts both ways. Therefore, the false implication of the appellants cannot be ruled out. According to learned counsel, Babu Ram was assaulted somewhere else in the night and he could not identify his assailants. He however falsely implicated the appellants on account of long standing enmity. It was further contended that Durga Prasad Chand was a licensee of gun but his licensed gun was deposited in Sadar Malkhana, Gorakhpur on 18.7.77 and was released in favour of Durga Chand on 19.1.79 by the orders of the Judicial Magistrate, Bansgaon. It means, the licensed gun of appellant No. 1 (Durga Chand) was deposited in Malkhana and was not in his physical possession on the impugned night. Therefore, there was no question of using the gun by him in the crime in question. It was also contended that P.W. 3 Mativar Chand is highly interested witness and has always been helping the informant and his family and appeared as eyewitness on their behalf in several cases. It was also contended that learned Judge disbelieved the prosecution evidence in respect of remaining five assailants and acquitted them. He however found the three appellants guilty on the same evidence and thus, erred in convicting them. Admittedly Ram Rekha, one of the assailants, was about 75-80 years old and as such, his complicity in the crime was rightly disbelieved by the court below.
18. On the other hand, learned A.G.A. supported the judgment under appeal and urged that the appellants and others had formed unlawful assembly and they all in prosecution of the common object of that assembly made murderous assault on Babu Ram and caused injuries to his brother Ganga Chand also on the impugned night. Consequently, the appeal is liable to be dismissed.
19. I have given my anxious consideration to the entire submissions made on behalf of the parties. I have scrutinized the evidence led by the parties carefully. After doing this exercise what I feel is that the court below did not arrive at correct conclusion and erred in convicting the three appellants.
20. There is sufficient reliable medical evidence on record to the effect that Babu Ram was assaulted mercilessly with lathies and sharp edged weapons on the fateful night and Dr. Mehta found as many as five incised wounds, one lacerated wound, one contusion and abrasions on different parts of the body. Injury No. 2 was dangerous and injury No. 6 was grievous. Dr. Mehta further found two contusions and two abrasions on different parts of body of Ganga Chand on 26.12.78. He opined that injuries were about 14 day old at the time of examination. It is therefore clear that both brothers sustained injuries in question on the fateful night and became victim of murderous assault. In other words, the prosecution succeeded in establishing that offence in question was committed in which both brothers were assaulted mercilessly.
21. Now the point for determination is as to whether the three appellants alongwith others perpetrated the crime on account of long standing enmity. It is well settled that in a criminal trial, the prosecution is under an obligation to prove its case beyond reasonable doubt. The parties were admittedly litigating in civil, revenue, consolidation and criminal courts. The informant and P.W. 3 Mativar Chand were convicted and sentenced to imprisonment for life. Where parties are on inimical term, the courts are required to scrutinize the evidence with great care and caution. In my opinion, the court below failed in its duty in separating the chaff from grain.
22. As noted above, besides the two brothers, who sustained injuries in the course of incident, the prosecution examined P.W. 3 Mativar Chand who is said to be an eyewitness. I however find that he is a pocket witness of the informant and the court below rightly excluded his testimony from consideration. When his testimony is scrutinized, it emerges that he did not remember any fact/incident except that some of the assailants named in the F.I.R. attacked upon two brothers with lathies, spears, gun, pharsa and Akari. According to him, he heard the noise and reached the door of Babu Ram flashing his torch. He found that eight accused named in the F.I.R. alongwith 8-10 unknown persons were present there and were assaulting Ganga Chand and Babu Ram with lathies, spears, pharsa and Akari. He testified that Durga Chand and Ram Pratap were armed with gun and Katta respectively and Durga Chand fired a shot at the time of fleeing. It means, only one shot was fired by Durga Chand from his gun. The witness could not disclose the weapons with which the remaining six accused named in the F.I.R. were armed. In cross-examination, the witness gave out that Ram Pratap did not fire. He further demolished the prosecution case by saying that out of eight assailants named in the F.I.R., one was armed with a pharsa and one was having a spear. As per prosecution version, three assailants namely, Satya Narain Chand, Lauhar Singh and Prahlad Singh were armed with spears. He failed to disclose as to who was carrying pharsa and spear. Thus, in my opinion, he failed to extend any help to the prosecution. It is noteworthy that he was about 60 years old at the time of incident but claimed to have good eyesight.
23. P.W. 2 Babu Ram Chand, who became the first victim of attack by the appellants and his associates, supported the prosecution story halfheartedly. He was sleeping on Poowal in his outer Osara where a lantern was burning. Randhir Chand was also sleeping there by the side of Babu Ram but he sustained no injury. According to Babu Ram, only six named assailants alongwith 10 unknown persons attacked upon him and his brother on the night in question out of which, Durga Chand and Ram Pratap were having gun and Katta respectively. Satya Narain and Lauhar Singh were carrying spears. Surendra Chand was having Akari and Ram Rekha Chand was carrying a lathi. In other words, Babu Ram named six assailants only in his statement given in the court and could not name Kripa Shanker and Prahlad Singh as his assailants. He categorically stated that both Durga Chand and Ram Pratap had fired at him with their weapons but he sustained no firearm injury. In cross-examination, Babu Ram disclosed that three used cartridges (khokha) and pellets were lying on the ground. He gave a death blow by saying that Randhir was sleeping by his side but he sustained no injury. According to Babu Ram, 3-4 shots were fired at him from a distance of 4-5 steps but the pellets hit in the wall and not at him.
24. P.W. 1 Ganga Chand, who is informant and one of the injured, could not name all the eight assailants in his statement given in the court. He did not name Ram Rekha, as one of the assailants, in his examination-in-chief. He too corroborated the testimony of his brother on the point that both the assailants having firearms fired at Babu Ram but he sustained no firearm injuries and the pellets hit on the wall. In cross-examination, the informant disclosed that licensed gun was used in the incident. He did not see Durga Chand firing at his brother. The witness was attacked by the assailants having lathies and at least he sustained three lathi blows. Contrary to this, Dr. Mehta found two contusions only on his left forearm and right upper arm. The informant further testified that his brother sustained spear injuries caused by 2-3 assailants. Babu Ram gave out that the assailants having spears assaulted him for about 20 minutes by piercing their weapons.
25. Dr. Mehta gave out in very clear words that when spears are pierced in the body, the nature of injury would be either punctured or penetrating.
26. After a thorough scrutiny and close analysis of the entire evidence on record, including the statement of D.W. 1 Ali Ahmad, I have arrived at the conclusion that the learned Judge committed error in proper appraisal of the evidence on record. So far the complicity of Durga Chand is concerned, he was an old man aged about 52 years in the month of September, 1981. As per prosecution version, he was having his licensed gun and resorted to firing in the course of incident. Contrary to this, he led evidence in his defence that his licensed gun was deposited in Sadar Malkhana in the year 1977 which was released in his favour in the month of January, 1979 by the orders of Judicial Magistrate, Bansgaon. Therefore, there was no question of using his licensed gun for the attack on Babu Ram. Admittedly, no firearm injury was caused to any of the brothers. Besides, there is material contradiction in the evidence on record regarding number of shots which were fired at him by the appellants and number of used cartridges which were recovered from the place of incident. The 1.0. recovered only one used cartridge from the spot and prepared Fard. On the other hand, P.W. 2 Babu Ram Chand disclosed that three cartridges (used) were lying on the ground besides pellets. Contrary to this, the 1.0. found no pellets on the ground or even marks of pellets in the wall. According to the informant, seven unknown assailants took part in the incident. On the other hand, his real brother Babu Ram disclosed that six known assailants attacked upon him and caused injuries. Thus, I find that the two brothers have contradicted each other regarding number of known assailants also. In this view of the matter, the complicity of Durga Chand in the crime appears to be highly doubtful.
27. So far the involvement of Satya Narain Chand and Kripa Shanker Chand is concerned, their complicity was also not proved by reliable and convincing evidence. As noted above, both alone cannot be held responsible for causing incised wounds to Babu Ram. The simple reason is that at least three assailants (Satya Narain, Lauhar Singh and Prahlad Singh) were having spears in their hands and Kripa Shanker was carrying a pharsa. Suresh Chand was armed with Akari. Besides some unknown assailants were also armed with spears. Therefore, it will not be just and proper to hold two assailants only responsible for causing incised wounds to Babu Ram. Even if they are held responsible for causing incised wounds with the aid of Section 149 I.P.C., the others who were having spears could not be acquitted on the basis of same evidence. The court below has already acquitted the other assailants who were carrying spears and found their involvement doubtful. I therefore hold that complicity of Satya Narain Chand and Kripa Shanker Chand also in the alleged crime was not established by reliable and direct evidence. Consequently, I hold that this appeal filed by the accused has merits and it must succeed and all the appellants are entitled to acquittal.
28. In the result, the appeal succeeds. The conviction and sentence recorded against the appellants are hereby set aside and they are acquitted. They are on bail. They need not surrender. Their bail is cancelled and sureties are discharged.