JUDGMENT Palok Basu, J.
1. This appeal has been filed by Harban Sahai, Sarwan Sahai (both brothers) Virendra and Vimlesh, who is nephew (Bhanja) of appellants No. 1 and 2, against their conviction under Section 302/ 34, IPC and sentence of imprisonment for life awarded to them by the VI Additional Sessions Judge, Shahajanpur on 16-2-1979 in Sessions Trial No. 418 of 1978.
2. The charge against the appellants was that on 6-1-1978 at about 4.30 p.m. they in furtherence of their common intention caused the murder of one Jagdish Prasad in village Kamalnainpur, falling within police station Kanth, district Shahjahanpur.
3. The prosecution case as disclosed by Shashi Bhushan, informant, who is said to have lodged a first information report about the incident on 6-1-1978 at 6-30 p.m. is that he and Jagdish Prasad were returning from Shahajahanpur and when they reached the sugarcane field of one Maiku at about 4.30 p.m., the appellants came out of that field, from the sugarcane plants. The appellants Harban Sahai, Vimlesh were having guns whereas the other two had lathis. Sarwan Sahai and Virendra exhorted that today the death of the father should be avenged and the deceased should not be let off. The informant and Jagdish Prasad ran to save themselves. When Jagdish Prasad reached the field of Shyam Manohar, having wheat crop, Harban Sahai and Vimlesh fired their guns, as a result of which Jagdish Prasad fell down. Several witnesses, including Shiv Sagar Lal (PW 2) reached the spot and on their challenging, the appellants ran away. Arrangement was immediately made to take Jagdish Prasad to the doctor, but he collapsed on the Rasta.
4. The motive about the incident is said to be the fact that Shyam Manohar had been murdered some times past for which the informant and Jagdish Prasad, his uncle, -were convicted and sentenced to the imprisonment for life. They had preferred an appeal in the High Court and were bailed out. The family members of the said Shyam Manohar had been having grudge against the deceased and the informant.
5. It is said that Deo Raj Singh (PW 5) recorded the first information report, at 6.20 hours, when (PW 3) Sri Bhanvar Singh, Station Officer, was present at the police station, who was entrusted with the investigation of the case. The relevant entries, Ext. Ka 10 and Ext. Ka 11 regarding the registration of case has been duly proved by PW 5. The Station Officer directed the S.I., namely, Jagvir Singh to complete the inquest on the dead body of the deceased, who was brought as such to the police station having died in the way. The relevant document regarding Panchayatnama (inquest report) Ext. Ka 8 and Naksha Nazari Ext. Ka. 7 and other connected papers have been duly proved.
6. However, PW 3 Bhanwar Singh states that he reached the village of the incident in the same night and recorded some statements and he recorded the statements of other witnesses on 17-1-1978. He also says that the site plan was prepared by him on 7-1-1978. He admits that he took the samples of blood stained earth and ordinary earth (Exts. 1 and 2) from that place and put the same in sealed packets separately. He then prepared fard (Ext. ka 4), but in the evidence it has come that the alleged blood stained earth was not sent to the chemical examiner or seriologist.
7. The post-mortem examination of Jagdish Prasad was concluded by PW 7, Dr. R.S. Pandey at 2.30 p.m. on 7-1-1978. According to him the deceased was a man of good mascular built of about 40 years of age. Rigor mortis was present and blood was there in the both nostrils, ears and mouth. He found following 10 ante mortem injuries upon the dead body:--
1. Lacerated wound 5 cm x 1 cm x bone deep on left side head 4 cms above left ear.
2. Lacerated gun shot wound 1 cm x .25 cm on left temporal region depth left temporarl lobe. Left temporal bone is fractured, one pellet was found at left temporal lobe of the brain with lacerated margins and brain matter, 3 cm, from left ear.
3. Abrasion 1 cm x .25 cm infornt of left ear.
4. Lacerted wound 3 cm x 1 cm x bone on left side from head top. Eye brow lacerated with fractured left frontal and left bone, the broken piece has periced into left frontal lobe-frontal bone.
5. Lacerated wound 3 cm x 1 cm x bone on left side face 3.5 cm below left eye lid.
6. Abrasion 1 cm x 5 cm on left side face 1 cm above injury No. 5.
7. Multiple abrasions (10) in an area of 7 cms x 6 cms on right side face 2.5 cm below right eye.
8. Lacerated wound 1.5 cm x 1 cm on right side chin depth up to bone, mandible right side including right 1, 2, 3 teeth loose and the bone is fractured.
9. Lacerated wound 1.5 cm x 1 cm on lower lip depth .5 cm x .5 cm injury has broken upper central 1st inciser left teeth.
10. Incised wound 2.5 cm x 1 cm x 4/10 cm on right side chest at upper IIIrd just lateral to dorsal spine.
On the internal examination he had found blood in brain and membrance, lungs and pleura (probably). There was two ouns digested food in the stomach, bladder was emty but faceal matter was there in the large intestine. Cause of death according to him was bleeding and shock due to ante mortem injuries. He opined that the death could have been caused at any time at 4.30 p.m., 5 p.m. on 16-1-1978. He also stated that injury No. 2 could have been caused by fire arm. He also extracted a big mattlie shot (Ext. 3) from the injuries. According to him injury No. 10 could have been caused by 'kanta' and rest of the injuries by blunt object. Injuries 2 and 4 were sufficient to cause death in the ordinary course of nature and looking at those injuries it could have been said that death could have been caused either instantaneously or after some time.
8. He prepared post mortem report (Ex. Ka 12) and put the pellet (Ex. 3) in sealed cover and delivered it to the constable, who had brought corpse to the mortuary.
9. The Investigating Officer completed the investigation and filed a charge-sheet against the appellants, which has been proved as Ext. Ka 6. This is how the appellants were put to trial and stand convicted and sentenced.
10. The appellants have denied their participation in the incident and have attributed their implication due to enmity. Harban Sahai has further stated that he and Sarwan Sahai live separately and Vimlesh also has no connection with them and lives separately. The relationship between Virendra and Harban Sahai has also been denied. The appellants have said that there had been proceedings under Section 107/117, Cr.P.C. and that is the reason that Shiv Sagar, who had sided with the informant in those proceedings, had come to depose against them.
11. In order to prove the case against the appellants, the prosecution has examined only two eye-witnesses, namely, Shashi Bhushan (PW 1), the informant and Shiv Sagar Lal (PW 2). The other named eye witnesses have not been examined on the pretext that they have been won over by the accused.
12. Shri G.S. Hajela, learned Counsel for the appellants and Sri Doodh Nath Yadav, learned A.G.A. have been heard at length and the entire record has been scrutinised.
13. At the outset it is relevant to mention that the enmity being a double edged weapon one has to be very cautious by examining the testimony of such enmical witnesses and unless it is fully corroborated by the medical testimony, the said evidence does not inspire confidence.
14. As noted above, in the first information report, it has been stated that only lathis were there with two of the appellants. In the statement both the eye-witnesses have deposed that the lathis had small kanta attached. It is common knowledge that Kanta is an independent weapon and it is impossible to expect that while in the first information report one person mentions that the accused was armed with lathis, he would unequivocally mention in his statement that the accused was armed with a kanta. Choice, of course, is of the witness to describe whether the lathi was big or small. A lathi attached to a kanta must have been denoted by its complete description. In the instant case there is no mention of any kanta in the first information report. The post mortem report, noted above, indicates that injury No. 10 could have been caused by kanta. The prosecution had to explain the said injury and, therefore, both the eye-witnesses were made to make the changed statement in the court improving upon what they had stated in the first information report and the statement under Section 161, Cr.P.C. Thus, there is force in the cirticism that the prosecution witnesses have been tutored to make improved statements so as to bring it in conformity with the post mortem report.
15. Not only this, from the injuries noted in the post mortem examination report, there is one gun shot injury while the prosecution case is that two of the appellants had fired simultaneously. The consistent statement of the witness is that both the fires had hit the deceased. The doctor was made to make a statement that may be injury No. 7, which is multiple abrasions (10) in an area of 7 cms x 6 cms on right side face, is a gun shot injury. But in the cross-examination, the doctor has denied the possibility of such injury being caused while the deceased was being chased from behind and that is exactly what the prosecution case is that while the deceased was running away the two appellants armed with guns fired from behind. Consequently injury No. 7 even if it is said to be a gun shot injury would not go to corroborate the prosecution case in any manner.
16. Attention was drawn to the fact that even in the first information report Shashi Bhushan had specifically stated that the deceased had been given lathi blows from which he had fallen down. It was left ambiguous as to whether this lathi injury was caused at place X or place Y. The fact of the matter is that injuries No. 1 and 4 were very serious lathi injuries and it may be possible to hold that those injuries were caused by weapons such as lathi only and not kanta. Examining from this view also, the absence of any other incised wound, would exclude the use of kanta. Considering this aspect of the matter, one can unhesitatingly say that an attempt has been made by the prosecution to paint the eye-witnesses testimony so as to bring conformity between the post mortem and the first information reports.
17. Another interesting feature is that the Investigating Officer did not send the blood stained earth alleged to have been recovered to Chemical Examiner or seriologist for examination. It has been rightly emphasised that in such circumstances the Investigating Officer ought to have obtained a report of at least the chemical examiner to prove the place of occurrence. Thus, there is nothing to indicate that the murder was in fact committed at the place and manner as is said in the first information report. It was again rightly pointed out by the learned Counsel for the appellants that the Investigating Officer did not find any trampling of the wheat or other crops standing from the fields from which the deceased and the informant are said to have been running. It is certainly strange that the Investigating Officer has not made such important notings in the site plan prepared by him. He has not even taken the Khurpi or the grass in his possession nor has noted their presence nor shown the presence of PW 2 Sheo Sagar Lal, who alleges that he was present in his field only for that purpose i.e. cutting grass. It was rightly argued that Sheo Sagar Lal has a long standing enmity towards the appellants. It is admitted to him that 10-11 persons were from his side and 10-11 persons were from the side of the accused Harban Sahai and Sarwan Sahai, when litigation under Section 107/117, Cr.P.C. was going on between the appellants and Sheo Sagar Lal.
18. It cannot, therefore, be said that the prosecution has successfully proved the charges against the appellants beyond reasonable doubt.
19. In view of the aforesaid discussions, it cannot be said that the charge against the appellants is proved beyond all doubts. Consequently, this appeal succeeds and is allowed. The conviction and sentence awarded to the appellants are set aside. They are on bail. They need not surrender, their bail bonds are discharged.