JUDGMENT S.K. Agarwal, J.
1. The appellant Gulzar Singh has filed this appeal against the judgment and order dated 8-5-1980 passed by Sri Munni Lal IInd Additional Sessions Judge, Rampur in S. T. No. 168 of 1978, whereby the appellant has been convicted under Section 302 I.P.C. and sentenced to life imprisonment.
2. The prosecution has alleged that appellant along with two unknown persons came to the place of occurrence at 11.00 P.M. After identifying the deceased in the torch light accused Gulzar Singh had given out loudly that Shiv Raj Singh is sleeping on that cot and they will teach him a lesson for siding or helping Baru Singh and Krishna Narain Mathur. The informant, Arun Kumar along with his brother Ajit Kumar, brother in law Satya Vir Singh and mother rushed towards the deceased. The wife of the deceased, who was sleeping at a few paces distance from her husband was also awakened. It is alleged that the appellant had fired a shot from his gun upon the deceased and thereafter all the three culprits ran towards north. The witnesses claimed to have identified the appellant and the two assailants in the light of lantern. They had removed injured Shiv Raj Singh to Bilaspur Hospital on a tractor trolley where he was pronounced dead. The FIR of this incident was lodged at 1.30 A.M. in the night intervening 4th - 5th May, 1978 by Arun Kumar eldest son of the victim. It was registered as Ext Ka-1. It was a written report prepared at the hospital. The chick report was prepared by constable clerk Jagdish Chandra.
3. In order to support this incident the prosecution had examined three eye-witnesses. They are Arun Kumar (PW-1), Bir Mati (PW-2) and Satya Vir Singh (PW-3). Baru Singh was examined as PW-4 in order to establish motive behind the murder of Shiv Raj Singh. The case was investigated initially by Shri Mukhbir Singh, S.O. (PW-14). The investigation in between was transferred from the civil police to C.I.D. Jagdish Prasad Pandey, C.I.D. Inspector (PW-11) investigated the case and submitted the charge sheet. Dr. K.K. Srivastava conducted autopsy on the body of deceased Shiv Raj Singh. B. Roy, Ballistic Expert (PW_15) was produced by the prosecution to settle the medical conflict created by the testimony of Dr. K.K. Srivastava, medical Officer (PW-12).
4. The autopsy in this case was conducted on 5-7-1975 at 12.50 at Civil Hospital, Rampur by Dr. K.K. Srivastava (PW-12). The body was brought to the hospital by constable Brij Behari Lal of PS. Bilaspur (PW-7) along with another constable. Following ante mortem injuries were found on the person of the victim :-
5. Wound of entry 8.0 cm x 4 cm through and through over left eye. Eye ball was found to be missing. Blackening tatooing and charring was present. This is a wound of entry. In the exit wound on chest 10.0 cm x 6.0 cm dimension over left of mandible was found. Bone of left mandible was found broken into pieces. Two ounces of digested food was found present in the stomach. The death resulted due to shock and haemorrhage on account of the injuries. The wound of entry is on the left eye and it had come out of the left inside angle of the mouth breaking mandible into pieces. No dispersal is reported in these injuries. The presence of blackening inside and around the wound of entry indicates that the shot was fired from almost point blank range.
6. The complete absence of any dispersal inside the body is the circumstance which created some confusion in the testimony of Dr. K.K. Srivastava. In order to resolve this controversy the prosecution examined Dr. B. Roy ballistic expert as PW-15. The anomaly does not appear to us having been resolved by the statement of these two witnesses. On the other hand it has further been confounded. According to the prosecution the shooting was resorted to by placing the barrel of the gun towards the mouth of the deceased piercing the mosquito net. Two burn marks in considerable length and width are present around the wound. This created serious suspicion in the authenticity of the prosecution story that the assailants came from the north and fired from the north east corner of their house upon the victim.
7. A perusal of the statements of the three eye witnesses gives out this clear picture. The deceased was sleeping in an open court yard. This court yard is completely open towards east. No crop was standing in this side. A single shot was fired. Assailants could easily manage their retreat from this eastern before the witnesses could have awakened and noticed any one of them. Had there been no barking of the dogs these persons may not have arisen before the assailants had withdrawn or were in the process of withdrawing after firing. In any event the distance between the place of their sleeping and the distance between the spot 9A in the site plan was so much that by the time they will gather themselves and ready to move the accused will flee. Their father was fired while in slumber. He never woke up nor could cry. The assailants would be showing already their back on them.
8. The two sons were sleeping on the spot 9-F according to site plan. Their residential portions are adjacent to each other on the southern end of the house. Thereafter good amount of vacant land is lying to be covered.
9. PW-3 Satya Vir Singh is said to have come from the thrasher where he was looking after the thrashing of wheat. He was coming to quench his thirst. This is common knowledge that a loud sound emanates when a thrasher operates. Alongwith Satya Vir Singh several other labourers who were working at the thrasher are claimed to have arrived at the scene of the occurrence. None of them were examine by the Investigating Officer or were produced in Court in support of the version of the prosecution.
10. The three eye-witnesses are related to each other.PW-1 Arun Kumar is son of deceased Shiv Raj Singh, Bir Mati (PW-2) is the wife of the deceased and PW-3 Satya Vir Singh is the brother-in-law of Arun Kumar. The distance between the thrasher and the place of the incident has deliberately been not disclosed in the site plan. The motive suggested by the prosecution in the incident is too fragile. This is a case where the prosecution has come with a positive motive and if that motive is not established by an intrinsically reliable evidence then it will certainly reflect adversely upon the prosecution witnesses, it is a night incident. We can not forget. Only one shot was fired.
11. A perusal of the evidence of the prosecution clearly shows that there is no direct motive against the appellant for killing Shiv Raj Singh. The FIR brought on record by the prosecution as Ex. Ka-7 as a corroborative piece of evidence for motive and proof of it is not sufficient in itself. It was lodged by the appellant on 8-5-1975 against the deceased and his son and two other persons Dayal Singh and Boota Singh for an incident of 5-7-1975. It shows that the deceased and his son had gone to his field alongwith two others and asked to go away from that field while he was ploughing it. Apart from this FIR, there is no other FIR between the two parties. The other FIR is Ext. Ka-8. It was lodged by one Jugendra Singh. Gulzar Singh was cited as a witness in this FIR. This is a complaint against high handed approach of Shiv Raj Singh especially over sharing of canal water going through deceased's field. The third FIR was lodged by Baru Singh. In this FIR Balkar Singh, Dhiraj Pal Singh, Har Charan Singh, Gurusaran Singh, Gulzar Singh, Karnail Singh, Hardip Singh, Pooran Singh and Ajit Singh were nominated as accused persons. This FIR is against the forcible ploughing of 12'/2 hectares of land belonging to the wife of Baru Singh by above said persons. Apart from these FIRs, there is no documentary evidence to show that these FIRs gave rise to any prosecution of these persons in any Court. Baru Singh has filed a criminal suit for cancellation of the sale deed fraudulently outlined for his land by Dhiraj Pal Singh and also Swaran Singh who happen to be the brother in law of Gulzar Singh. It is alleged that Shiv Raj Singh was standing on the side of Krishna Narain Mathur and Baru Singh. This is an admitted fact to the prosecution witnesses that the sale deed stands in the name of Dhiraj Pal Singh and Swaran Singh. Gulzar Singh has no concern with this land except that he is related to Swaran Singh. There is no evidence that Gulzar Singh is even a party in the suit filed by Saru Singh. In the absence of such evidence, it will be very difficult to acknowledge any animus of Gulzar appellant against the deceased. If any motive was there it was against Dhiraj Pal Singh and Swaran Singh and his brother. No independent witness came forward to support the case of the prosecution that Ch. Shiv Raj Singh was doing any pairvi on behalf of the aforesaid two persons Baru Singh and Krishna Narain Mathur. As a matter of fact there is absolutely no evidence on record with regard to Krishan Narain Mathur.
12. The evidence in this connection consists of only brother and brother-in-law PW-1 Arun Kumar, PW-3 Satya Vir Singh and wife of the deceased Bir Mati (PW-2). The testimony of Baru Singh (PW-4) does not inspire any confidence. He had admitted that when he came back after retirement from his job he started looking after agriculture and then he had felt that Dhiraj Pal Singh and Swaran Singh are trying to usurp his land. Thereafter he claimed that he started living with his friend and class fellow, the deceased Shiv Raj Singh, Dhiraj Pal Singh and Raghuvir Singh disliked this and as a result of their disliking they manipulated fake sale deed in favour of Subedar Swaran Singh and his family members by producing a different lady as wife of Baru Singh. When he learnt about this fictitious execution of the sale deed in favour of the nephew and brother-in-law of Gulzar Singh, he launched cases against Swaran Singh and Dhiraj Pal Singh. Ch. Shiv Raj Singh started doing pairvi on his behalf which annoyed Dhiraj Pal Singh and Raghuvir Singh as a result of which they had extended threat to Shivraj Singh. So far as the extension of threat by the appellant and others to Shiv Raj Singh is concerned, we do not find any reliable evidence on record. There is no document on record to establish the case of prosecution on this point except the oral testimony. There is nothing which may establish the motive and repel the doubt. In the cross examination this witness has very clearly admitted that no sale deed was executed in the name of the Gulzar Singh. The Sale deeds were in favour of the brother-in-law of the appellant. Sale-deed was in favour of the nephew and brother-in-law of the appellant in respect of two hectares of land. No doubt, he claimed that even after the execution of the sale deed he continued to be in possession over that land. He has given out names of other persons in whose favour execution of the sale deed had taken place. Preetam Singh, Hazur Singh, Jogendar Singh, Ajit Singh, Brahm Singh and Dhiraj Singh are the other beneficiaries of the sale-deed. Ajit Singh is younger son of the deceased. This witness has deliberately pleaded ignorance with regard to enmity of Shiv Raj Singh deceased with Dhiraj Pal Singh and Balkar Singh and others. It was admitted to PW-1 Arun Kumar. He claimed his presence on all the occasions when threat was extended either by Gulzar Singh or Dhiraj Pal Singh or Mahendra Singh. He admitted that he did not know whether any reports with regard to the threat were made by Shiv Raj Singh or not. He admitted in para-5 of his cross examination that one Bobby Sahab was doing pairvi in his cases. He had given out the complete name of Bobby Sahab as Krishna Vir Singh. He had further admitted that the above said Bobby Sahab had appeared as a witness for him in a criminal case. He had admitted that pairvi on his behalf is being done by Boby Sahab. He had very categorically admitted that Bobby Sahab was doing pairvi mainly in criminal and civil litigations. He has admitted that criminal case against Swaran Singh had not proceeded because he did not appear. Thus from the statement of Baru Singh, we do not find any support to the case of the prosecution that the appellant was nursing any grudge against the deceased on account of his doing any pairavi. On the other hand his evidence clearly shows that Dhiraj Pal Singh, Balkar Singh and Raghuvir Singh were nursing grudges against deceased Shiv Raj Singh. Merely because of the existence of one FIR about two years ago made by the appellant against the deceased does not impress us to hold that the appellant had any direct motive against him especially when no prosecution of the deceased ever commenced on that FIR. Even PW-1 Arun Kumar, S/o the victim had taken the name of Dhiraj Pal Singh and Gulzar Singh having taken possession over the property whereas Baru Singh had denied that he was ever divested of the property in lieu of the execution of the sale deeds. It appears to us that these sale-deeds were genuinely executed and possession was handed over by the executant of the sale , deed to the executees, but subsequently for the reasons apparent i.e. at the instance of Krishan Vir Singh alias Boby Sahab, he started harassing executives by filing civil and criminal litigations against them and their family members.
13. Thus, we are of the clear opinion that the evidence on record clearly shows that there was enmity between Balkar Singh, Dhiraj Pal Singh and Mahendra Singh on the one hand and the deceased on the other hand and civil and criminal cases were contested between them. The appellant has been just introduced as person favouring three. We are not prepared to accept it. We do not find any other reason on record for the appellant to commit the murder of the deceased. We are not inclined to place any implicit reliance on the story of threatening as well for there is no direct motive to do so. PW-1 Arun Kumar has pleaded ignorance to the fact that whether his father lodged any report under Sections 504, 506 IPC against any person for extending threat. This act of the PW-1 is deliberate. This is unacceptable to us that if any threat was extended to Shiv Raj Singh or he was abused he would not have taken such action and this witness being his eldest son would not have any knowledge of the same as pleaded by him.
14. The other litigation under Section 307 IPC was also contested between the deceased and Balkar Singh which clearly appears to have been compromised. He had admitted that his father never told that he apprehended any danger from Balkar Singh and Dhiraj Pal Singh, but he admitted the fact that he and his father used to remain alert against these two persons i.e. Dhiraj Pal Singh and Balkar Singh. They knew that at any time they can kill any one of them.
15. Thus the admitted position is that deceased Shivraj Singh did not take his enemies as lightly as it appears from the statement of PW-1 Arun Kumar itself. This witness PW-1 Arun Kumar has pleaded ignorance about the litigation launched by Baru Singh against the executees of the sale deed. He had pleaded ignorance with regard to other litigations. He claimed that only on one occasion the appellant had extended threat to his father and that was on the night of the incident itself. This fact does find place in the FIR but not in the manner in which he is stating this now. This report did not show that the threat was extended in the evening before the day of incident. The fact that this threat was given in his presence on the evening of the day of occurrence as alleged by him in his statement in Court is in direct conflict with his deposition which was made to the Investigating Officer. He stated as there was anxiety, therefore, he failed to disclose the fact to the Investigating Officer. The deceased had four licensed arms in his house. He has admitted that Dhiraj Pal Singh is a big farmer and rich man and the appellant is an ordinary farmer. He pleaded ignorance whether Gulzar Singh has his own land or not. A suggestion in cross examination was given to him that Bhupal Singh was his first cousin. He pleaded ignorance to the fact that his father had launched a criminal case under Section 436/307 IPC against this Bhupal Singh and whether he was convicted in that case or not. He admitted that Bhupal Singh was later on murdered but pleaded ignorance that in that case his father's hand was suspected or not.
16. He further admitted that initially the police of PS Bilaspur investigated this case but subsequently it was transferred to CID. He was given a suggestion that the police of PS Bilaspur suspected his brother's hand in the murder of his father and, therefore, they got the case transferred to CID. He had admitted that the distance between his residence and that of his father was about 30-32 paces. He had alleged that he and his brother were sleeping in front of their own portion. He admitted that they were separate in mess although he had denied that the relationship between his father and the two brothers were very strained and that is why they had separated from him by raising a partition hedge. He further admitted that the thrasher was another 60-65 paces from his residential portion although the defence suggestion is that it was beyond a furlong. He admitted that when a thrasher operates, it is impossible to stay even up to the distance of one furlong. Then he corrected it by stating that it is impossible to remain before the thrasher upto the distance of 50 yards. He further admitted that if wind is blowing then this distance may be larger. He admitted that Satya Vir Singh, PW-13 had come to the spot from the thrasher. He was a resident of district Meerut and was called to help him in his agriculture. He claimed that since he had to go to Rudrapur, Bilaspur and Rampur frequently, specially Rudrapur, so he had called his brother-in-law. He admitted further that Rudrapur is 7-8 miles away from his house. On the night of the incident wheat was being thrashed on the thrasher. It was only his wheat. This very clearly indicates that he had separated himself from the deceased by the petition. He further admitted that some 6-7 labourers had visited the spot alongwith Satya Vir Singh. He admitted that in the presence of the labour no discussion took place with regard to the assailants. The labour also did not make any enquiry. This sounds to us highly improbable. According to him when the Sub Inspector came to the spot he was at the hospital. According to him he never learnt whether Investigating Officer had come to his house or not. He admitted that Investigating Officer made no enquiry and recorded no statement of any of the labour. He claimed that he was in High School. He admitted that his father was unconscious at the house but when they reached hospital, they were told by the doctor about his being dead. Further he states that he was unable to give out the time when he started for the police station to lodge the FIR after the doctor had informed that his father is dead. According to him he was informed by the doctor about death of his father immediately within 10 minutes of his arrival. He claimed that he took 15 minutes in transcribing the FIR which was transcribed at the hospital. He took about one and quarter hour in reaching the hospital by the tractor. They started for the hospital after half an hour of the assailant's running away from the spot. He had admitted that he was awakened by the dog's bark. He did not woke up by the hearing the talks of the assailants. He categorically admitted that he heard the talks between the assailants only after he was arisen by the dog's barking. He heard the assailants talking in low voice. This fact that he was awakened by the barking of dogs is not there in the FIR. He had admitted further that before flashing of torch visibility was very poor. According to him he had only moved 7-8 steps towards north when firing took place. The distance between the cot of the father and the cot of these witnesses is more than 30-32 paces. Even in this circumstance in the absence of any proper light, according to his own deposition it would not have been possible for him to identify the assailants. When the assailants were talking in a low voice it will not be possible for them to overhear the conversation. He has stated that the appellant was standing on the north east corner of the cot of his father at distance of 2-3 steps. The appellant fired on his father by bending a bit. He was having a single barrel gun. According to him, there was a distance of about a foot between the barrel of gun and the mosquito net. He claimed that he saw a hole in the mosquito net later on. This hole in the mosquito net was 1, 1/2 inches. According to him it was a clear cut hole. There was no burning around the holes. It clearly indicates that the shot was fired from outside the net. He further admitted that in the net there was no other hole. He further admitted that there are 5-6 small holes. He did not see any pellets on the bed. He had taken his father on the same cot to the hospital. He has admitted that Baru Singh and K.N. Mathur were living with his father in the house for some 15-20 days before the murder of his father. But he admitted that they were not present at the time of occurrence. Both of them had gone to the farm of Krishna Vir Singh at Bilaspur. They had gone to village Pairva in Bilaspur many days before the incident. They used to visit him but they were generally living in that village. This further belies his statement and Baru Singh PW-4 that they were living with the deceased. He has admitted that there was some dispute between Ajit Kumar and Gulzar Singh. Lastly he denied that merely because of enmity between the family members of both the parties with Balkar Singh and Dhiraj Pal Singh, Gulzar Singh has been involved in this case falsely. He had admitted that there was apprehension to his life and other family members as well from Dhiraj Pal Singh, Balkar Singh and Swaran Singh etc. but did not state about any such danger from the appellant. The above statement further tend to point that the informant could not muster courage to implicate any one of these powerful rivals and so he easily chased to implicate a weaker person, the appellant who as per his own statement is a small farmer.
17. Despite threats being extended by the appellant on the event of the murder, this witness claimed that he had gone to his field all alone and came back also in the night. It is beyond comprehension that the witness could do so if he apprehended any danger from the appellant. This completely negatives any theory of threats extended by the appellant as set up by the prosecution. He is contradicted by Baru Singh who said about threats having been extended to deceased on several occasions. We are unable to place any implicit reliance on the testimony of this witness.
18. Now coming to the deposition on PW-2 Bir Mati we find her no better than this witness. She was sleeping in front of her room on a cot which was a distance of about 3 steps from her husband. She also states that she was awakened by barking of the dogs. Admittedly dogs were barking on the southern side i.e. near the house of PW-1. When she woke up, she saw three persons standing on the north east corner of the cot of the victim including the appellant. Two persons were unknown. She also stated the same thing, which her son stated that the appellant flashed torch upon the cot of her husband and said that as the victim had helped Baru Singh and Mathur they will teach him a lesson. On hearing this she claimed to have raised alarm. She saw both sons coming up alongwith Satya Vir with torches in their hands running. In the meantime according to her, the appellant had fired a shot on her husband. Thereafter culprits took to their heels towards north. According to her two unknown persons also accompanied Gulzar Singh. Out of the culprits one was holding a rifle and the other was armed with lathi. In her cross examination she had admitted that on her instance the investigation was withdrawn from the local police and was transferred to CBCID. This application was moved by her 8-10 days after the incident. The explanation for doing so was especially her apprehension of police callousness and apathy as no arrest of the appellant was made by the local police. According to her the appellant moving close to her house on 3-A days. She, did not speak of any threat having been extended. After giving the application it was claimed that she had not seen the appellant near the house.
19. She admitted that the local police had suspected her sons to be involved in the murder which appear to us probable from the circumstances available from the above, discussion and the evidence of PW-1.
20. She had further admitted that at her house at the time or incident two Alsatian dogs were present. They were left unchained during night. She further admitted that two permanent servants Rahmat Ullah and Jagan were also living in the house. She denied the suggestion that Rahmat Ullah had told the Investigation Officer that the person who fired was resembling her younger son Ajit Kumar. She further admitted that when she was awoken, she heard talks between the assailants after she awoke. Her husband was having mosquito net on his cot. She was without any mosquito net. She said that except uttering words that they will teach him a lesson for helping Baru Singh and Krishna Narain Mathur the assailants did not utter any other word. Fire was made upon her husband. Thereafter according to her she raised alarm and got down from her cot. From this statement it appears that she had very little opportunity to identify the assailants. The assailants were on the back of her husband. Her cot has not been shown in the site plan near the deceased. The position of her cot was different in the site plan. It is unbelievable that any person who is Hindu will sleep towards north and that is why in the site plan the cot has been shown north-west. She had told that at the time of firing the gun was in side the mosquito net. Here she contradicts her son PW-1. She admitted that the pillow was not there when the deceased was taken to the hospital. She herself admitted that she removed the pillow from beneath the head of the deceased in order to prevent the flow of blood. This is a clear lie. She admitted that she did not pay any attention to see that the pillow was embedded with pellets, which were 14 in number or not. Now she carne to know of this fact from the recovery memo of the pellets as well as from the statement made by her children that the pillow was containing pellets. She did not remember how many days after the murder she learnt this fact. This clearly indicates that she had been tutored about this fact and also the fact she removed the pillow to prevent the flow of the blood. She said that only one fire was made. Recovery of pellets was made by the Investigating Officer in the presence of herself, son Ajit Kumar and brother in law Satya Vir Singh.
21. We find in the circumstances difficult to accept this recovery even. PW-1 does not speak of this recovery. She had admitted that Baru Singh and Krishna Narain Mathur were living at her house. But she denied that they were present on the date of the incident. She further admitted that thrasher was being operated by Satya Vir Singh at a distance of 50-60 paces behind the residential portion of Arun Kumar (PW-1). She further stated that none of the labour who came to the spot enquired about the assailants nor about the cause of the death of her husband. She further pleaded that she did not remember that any one of them had told these labourers names of the assailants or not. She was unable to give out the names of those labourers who came to the spot. She pleaded ignorance to the fact that her husband had taken huge loan from the cane society. She further pleaded ignorance to the fact that the deceased had taken loan in the names of her sons. She denied that any clash had taken place between the sons and the father on the evening of the day of the incident and in that clash they had wielded guns upon one another or this quarrel was on account of loans stated above. She denied this. She pleaded ignorance to the fact that whether Sub-Inspector of PS Bilaspur had examined their guns or not or came to the conclusion that one of them was used. She claimed that she came back to her house on the next day of the occurrence. She further admitted that the dogs were used to be unchained during night hours and she was awakened only by barking of the dogs. When she awakened, the dogs were on the west south side of her house that means towards the portions of her sons. According to her, dogs stopped barking immediately after firing was made. This is most unusual. All the eyewitnesses were attracted to the spot by dog barking. Dogs barking are introduced in evidence purposely. If it would have been true, then a mention of this in FIR ought to have been there. This is a serious omission and creates a serious doubt in these witnesses having been awakened before the fire was made upon the victim. This definitely constitutes a material improvement in the prosecution case.
22. These facts were not present in the statement of the witnesses under Section 161 Cr.P.C. also, it has been stated in Court with a view to make their presence and witnessing of incident probable at the time of occurrence. Prosecution appear to be conscious that without this fact being introduced it shall be difficult to make the presence of the witnesses acceptable. Such statement of the barking of the dogs is not acceptable to us because PW-1 Arun Kumar did not say in Court or at any earlier opportunity that in his house there were two dogs as stated by PW-2. Moreover we do not find the evidence of these witnesses credible for the simple reason that the prosecution withheld from Court two witnesses, her servants who used to live in the house round the clock. It is difficult to believe that these witnesses had not seen anything. The only inference available from their non production is that they were not ready to support this false case in the manner in which it has been brought.
23. Now we come to the testimony of PW-3 Satya Vir Singh we feel it is impossible for him to be there in time to see the assailants and also the act of shooting. He was present at the thrasher. Thrasher was away at 50-60 paces behind residential portion of Arun Kumar. It has been admitted that a very strong wound is generated when a thrasher is operated. In the presence of such, it is impossible to hear gun shot report or barking of the dogs. His version that he was coming to quench his thirst in our opinion is an act of ingenuity. Thus he is a liar. He is supporting prosecution case out and out being brother-in-law of Arun Kumar PW-1. In our opinion, his presence for the aforesaid reason is absolutely doubtful at the time of occurrence on the spot. He is a resident of Meerut. The reason for his presence is disclosed by PW-1 and he himself admitted that he was called by FW-1 for helping him in his agricultural work. He came despite the fact he being an agriculturist has sufficient work at his house also. He said that he heard the barking of the dogs and seeing the dogs running in a particular direction he followed them. It appears that he is referring to stray street dogs. It is no body's case. When he had read over his statement given under Section 161 Cr.P.C. these facts were not found present therein. He was unable to explain this omission. This is a very material omission which goes to very root of his presence at the scene of incident before shooting. By the time he will cover 50-60 paces and 30-32 paces in the courtyard, the assailants will not remain there for him to identify them and to clearly see the incident. Thus we reject the testimony of this witness as wholly ' false. He appears to us a got up witness story of barking of dogs we discard completely in the fact and circumstances of this case.
24. The incident had taken place in the dead of night when all the persons were fast asleep. One shot has been fired only. A perusal of the site plan gives an indication that the victim was sleeping in front of the room adjacent to a verandah which is extending on both sides. Thus even if we accept the testimony of PW-1 and PW-2 that after they were awoken and by the time they gathered themselves and stood on their legs they could not see the assailants themselves. They, in all likelihood, shall be off their view.
25. We are also not prepared to accept the case of prosecution that the appellant had made any oral statement before firing upon the victim. The circumstances completely belie the situation. Those who had chosen to execute their plan in the dead of night will not execute the same in such a manner so as to enable the witnesses to see them. Stealth and silence were their forty and they will never commit such folly as suggested by prosecution to put in jeopardy their plan and expose them to their identification by witnesses.
26. For the reasons assigned above, we find that the prosecution failed to establish beyond any reasonable doubt that it was the appellant who had committed the murder of the deceased Shiv Raj Singh and therefore the appellant is entitled to benefit of doubt. Accordingly we allow this appeal and set aside the order of conviction and acquit him of the offence charged for. He is on bail. He need not surrender. His bail bonds are cancelled and sureties discharged.