JUDGMENT S.K. Agarwal J.
1. This appeal was filed by Jai Narain, Ramesh, Rama Kant, Sajiwan Lal, Afat Lal, Vijai Pal, Jai Narain and Rajjan Lal against their convictions and consequent sentences recorded by the learned Sessions Judge, vide order dated 31-8-80. All the appellants were convicted under Section 302/149, IPC and sentenced to life imprisonment. They were conviction and sentenced under Section 323/149, IPC to 6 months rigorous imprisonment. Accused Mat Lal and Ramesh were also sentenced under Section 148, IPC to undergo 1 1/2 year's rigorous imprisonment. Appellant Jai Narain, Rama Kant, Sajiwan Lal, Vijai Pal, Jai Narain and Rajjan were converted and sentenced to undergo one year's rigorous imprisonment under Section 147, IPC. All the sentences were to run concurrently. One of the appellant Jai Narain died during the pendency of this appeal. His appeal, therefore, has abated.
2. Brief facts as disclosed in the FIR are that Avdhesh Kumar used to work at the flour Mill of one Shiv Das whose flour mill is in the same village of which the informant, the accused persons and the deceased were residents. He was returning from the flour mill on 23-10-1979 at about 8-30 a.m. after performing his duties at night, he was chased by all the appellants. In order to save his life he rushed towards his house, entered therein and bolted himself into a room. At the relevant time the informant, his mother, father, sister and his wife were also present in the house. These accused also entered his house. Jai Narain picked up an Axe which was lying in the courtyard and broke the door of the room open. The assailants belaboured the deceased in that room, in the courtyard, and then lifted and brought him out of the house where he was thrown on the ground and belaboured again with lathis. He was also beaten according to the evidence with bricks. His mother came to rescue him. She fell upon him. She too was assaulted by the assailants with lathis and bricks. The incident was witnessed by Maiku, Ram Sahai and others who arrived at the scene of occurrence. The accused persons on the arrival of the witnesses took to their heels. The injured were brought upto Hussaina Kothi on a bullock-cart and from there they were taken on a Tempo to police station Ghatampur. Kailash Narain, P.W. 1, informant prepared a written report at Hussaina Kothi itself and handed the same over at P.S. Ghatampur. It was submitted at 10-20 a.m. on 23-10-1979. The police station is about 11 km. from the village of occurrence. A case under Section 147, 148, 308, IPC was registered there, the check report and other papers were prepared by P.W. 8 Kailash Nath, head Moharrir. Check report is Ext. Ka. 12. The written report is Ext. Ka. 1. The General diary was also prepared. It is Ext. Ka. 13. Injured Avdhesh was sent to Primary Health Centre, Ghatampur, that very day from where he was after medical examination referred to U.P.M. Hospital, Kanpur. On 24-10-1979 he reached there and succumbed to his injuries during afternoon hours. The case was converted to one under Section 304, IPC on receiving the information of his death. Inquest memo was prepared on 25-10-79 at 12.00 noon at the mortuary of the above hospital. It is Ext. Ka. 2. The dead body was sealed and sent for post mortem examination. Autopsy was conducted by P.W. 7 Dr. J.N. Mehrotra on the same day at 4.45 p.m. post mortem Examination report is Ext. Ka. 10. The age of the deceased was 21 years and the time of his death was about a day. Following ante-mortem injuries were found on the person of Avdhesh Kumar deceased :
1. One lacerated wound 2 cm. x 1/2 cm. with two stitches on the right temporal bone. 7 cm. above the right eye brow.
2. One abraded contusion 24 cm. x 9 cm. on the outer-side of the right upper arm.
3. One abraded contusion 10 cm. x 6 cm. on the outer side of the left elbow joint.
4. Multiple abrasions in an area of 10 cm. x 3 cm. on the front of the upper part of the right leg 7 cm below the right knee cap.
5. One abrasion 1 cm. x 1 cm. on the outer side of the right ankle joint.
6. One abrasion 1 1/2 cm. x 1/2 cm. on the inner side of the right ankle joint.
7. One abrasion 1 cm. x 1 cm. on the inner side of the right big toe base.
8. Multiple abraded contusions stitched at four points in an area of 19 cm. x 2 cm. on the front of the left leg.
9. One abraded contusion 28 cm. x 16 cm. on the upper part of the right side back of chest.
10. One abrasion 4 cm. x 2 cm. on the outer side of the left buttock.
11. One stitched wound 4 cm. in the web between right thumb and index finger and five stitches present.
The cause of death was shock and haemorrhage as a result of ante-mortem injuries. Before his demise Avdhesh was also examined at the Ghatampur Primary Health Centre on 23-10-79 at 2.00 p.m. by Dr. G. S. Dhanik P.W. 2 found following injuries on his person.
1. Lacerated wound 2 cm. x 0.5 cm. on Rt. and front of scalp 6 cm. above Rt. Eyebrow, Clotted blood present.
2. Contusion 16 cm. x 1 cm. on Rt. side of back 7 cm. from mid line and 5 cm from lower and of Rt. Shoulder bone. Red in colour.
3. Contusion 5 cm. x 1 cm. over Rt. shoulder blade 8 cm below from the top of Rt. Shoulder joint, Red in colour.
4. Abrasion 1 cm. x 0.5 cm. on front of lower leg 10 cm. below the Rt. Knee joint.
5. Abrasion 1 cm. x 0.5 cm. on front of Lt. Leg 12 cm. below the Lt. Knee joint.
6. Abraded contusion 3 cm. x 2 cm. on front of Lt. Lower leg 3 cm. below the injury No. 5.
7. Lacerated wound 2 cm x 1 cm. x skin deep on front of Lt. Lower leg 4 cm. above Rt. Ankle joint Bleeding present.
8. Lacerated wound 3 cm. x 1 cm. x muscle deep on right palm 1 cm. from 1st joint of Rt. Thumb clotted blood present. Injury No. 1 to 5, 7 and 8 were found simple in nature and were caused by some blunt object. Injury No. 6 was kept under observation and referred to U.R.M. Hospital for X-ray and treatment. It was also caused by some blunt object.
According to post mortem examination report except Injury No. 1 also other injuries were on non-vital parts. The appellants denied the charges levelled against them and pleaded not guilty. Appellant Jai Narain pleaded that S.I. Vijai Pal Singh was annoyed with him when he refused to give him a hen. He was taken into custody on 30-7-1979 by the said S.I. This led to some scuffle between him and the S.I. Other accused Sajiwan Lal, Jai Narain, Afat Lal and Rama Kant also protested seriously against the high handed activity had conduct of this S.I. The S.I. left the scene extending threat to him. He claimed that he had absolutely no enmity with the deceased. Relations between him and the deceased were cordial. Relations of the deceased were strained with Kailash Narain, his own brother, on account of suspicion of illicit intimacy of the deceased with his wife. It is further submitted by him that Avdhesh Kumar was before this incident thrown into the well by the informant P.W. 1 Kailash Narain and it was Jai Narain appellant who saved him by taking his out from the well.
3. The prosecution in support of its case has examined eye-witnesses P.W. 1 Kailash Narain, informant, P.W. 2 Maiku, P.W. 4, Smt. Chandrawati mother of the deceased and the informant and P.W. 5 Smt. Suraj Mukhi wife of the informant. The formal witnesses examined by the prosecution are Vijai Pal Singh P.W. 6 the Investigating Officer, Dr. G.S. Dhanik P. W. 2 and Dr. G.N. Mehrotra P.W. 7, P.W. 2 had initially examined the deceased before his death and Dr. G. N. Mehrotra conducted the autopsy. Kailash P.W. 8, Head Moharrir prepared all the papers pertaining to the registration of the case.
Smt. Chandrawati was also injured, her medical examination took place on 23-10-1979 at 2.30 p.m. half an hour after the medical examination of Avdhesh Kumar by the same doctor P.W. 2. Her injuries are as under :--
1. Contusion 10 cm. x 1 cm. on Lt. side of back 1 cm. from midline and 4 cm below the lower end of Lt. shoulder blade, Red in colour.
2. Contusion 8 cm. x 1 cm. on Lt. side of back 1 cm below the injury No. 1 Red in colour.
3. Contusion 5 cm. x 2 cm. over top of Rt. Shoulder joint 4 cm from the lateral end of Rt. Collar bone.
4. Lacerated wound 0.5 cm. x 0.5 cm. x skin deep over Rt. palm over Ist joint of Rt. Little finger.
5. Abrasion 1 cm. x 0.5 cm. on front of Rt. Leg 8 cm. above Rt. Ankle joint.
All these injuries were found simple in nature and were caused by some blunt object. Duration of her injuries was less than 12 hours.
4. Learned counsel for the appellant has contended that if the defence case is tested on the anvil of probability, the defence version will stand fortified from the prosecution evidence itself that the injuries to the deceased and his mother Smt. Chandrawati P.W. 4 were caused by Kailash Narain P.W. 1 himself. Following circumstances were indicated by him in support of his contention. Presence of pieces of the door leaves cut by an axe, an axe stained with blood, belonging to P.W. 1 was also found near the bro-ken door are very important pieces of evidence in favour of the defence. None of these facts were mentioned in the FIR. These were crucial facts and they ought to have been there. Blood had allegedly fallen inside the house but it was not recovered at all. There is no explanation available for it. Serious modulations were introduced in the FIR version at the stage of the trial which ultimately would go to prove the correctness of the defence case. Presence of mother, father, sister, wife of the informant and the informant is alleged in the trial but on a perusal of the FIR it appears that informant's presence was not mentioned therein. Complete silence of the father of the deceased and his not coming in the witness box has serious adverse effect on the veracity of the prosecution version. He was not examined even under Section 161 Cr. P.C. and the explanation offered for it is most implausible. Presence of blood stained bricks at the spot was alleged by the prosecution, in the assault it was used but neither the medical report nor the post mortem examination report suggest any use of the bricks. Over and above all the motive has not been proved though alleged.
5. We will like to deal with the motive aspect of the case first.
6. According to the prosecution complainant party was acting as informer against the accused persons. Two days ago on the information provided by informant about gambling in the house of Jai Narain, the accused deceased, Rama Kant and some others were arrested from his house by the police, but they were let off and no prosecution was launched. It is contended that this is a wholly false one improbable story. Avdhesh admittedly fell into the well and appellant Jai Narain took him out from there. It is suggestive of the fact that the deceased was close to Jai Narain and was not inimical with him as claimed by the prosecution. It is further claimed that there is no motive for the other accused to join hands with Jai Narain. The evidence on motive is such that we find it difficult to accept the same. On the other hand as earlier discussed the affinity of the deceased with appellant Jai Narain is established from the prosecution evidence itself. It is an admitted fact to P.W. 1 that Avdhesh Kumar was also arrested from the house of appellant Jai Narain in the above said gambling case along with others, Avdhesh and appellant Jai Narain were let off by the police in the village itself. Rest of the arrested accused were taken away by the Police Inspector but they were also let off at Nauranga. Thus the prosecution clearly admits that the police had not registered any case under the gambling Act against any one of the arrested persons. No other evidence to prove it was brought on record by the prosecution. Even P.W. 4 Smt. Chandrawati did not advert a word about it nor did P.W. 5, wife of the informant. These facts and circumstances clearly show that the alleged motive remained wholly unsubstantiated.
7. From the evidence of Kailash Narain P.W. 1 we find that the deceased was brought to the police station on the bullock cart provided by Jai Narain. This also creates seri-ous doubt in his participation in the assault upon the deceased and his mother. P.W. 1 informant Kailash Narain claims that he himself had not sent for his bullock cart. It was brought by Gargee. The fact remains that even if the bullock cart was brought by an other villager it creates serious doubt in the participation of this accused in the incident in the presence of this witness. He had given an evasive response to the question that when he started for the police station with Avdhesh, Jai Narain and other persons were on the spot or not. They reached the police station around 10.00 a.m. and were sent to the hospital for medical examination within 15 minutes. The informant was at the police station for about 1 1/2 day and thereafter went to Kanpur. He remained there upto the next morning. The medical examination of the deceased was conducted at 2.00 p.m. no explanation is forthcoming why his medical examination was conducted with this enormous delay. The prosecution probably waited for the victim Avdhesh to become unconscious. Why no statement of his was recorded by the police inspector and why no dying declaration of the deceased was also recorded. According to P.W. 2 Dr. G.S. Dhanik he was conscious when he examined him, he was not re-examined by the prosecutor.
8. It is admitted to the informant that Avdhesh fell into the well about 2 years ago but denied that he pushed him in the well. He further pleaded ignorance as to who took him out from the well. His father has executed an agreement to sell his land to Ram Swaroop brother of Jai Narain accused. Possession was also given. He failed to redeem the land. Ram Swaroop, the vendee, till this date did not require them to execute the sale deed. He had denied that he wanted to retrieve that plot from Ram Swaroop but his denial appear to be deliberate. It is also admitted to the informant that a proceeding under Section 107/117, Cr. P.C. was contested between his uncle Chhotey Lal and Jai Narain's father and his brother. It is admitted to this witness that his father had taken Rs. 5000/- from Ram Swaroop and executed an agreement to sell a piece of his land but he could not redeem the plot. No panchayat was held for it. It had taken half an hour to arrange the bullock cart. Nauranga is about 11 km. from his village. Surendra reached Mughal Road after his reaching there within 5-10 minutes. Surendra had paper and pen with him. It took him 10-12 minutes to prepare the report. 15-20 minutes after the preparation of his report the Tempo arrived. Hospital is two furlong from the police station. He came back to the village 3 days after the occurrence. He left the village on 23-10-1979. It is admitted that it is not written in the report that some Gamblers were arrested and they were let off later on that very day. But this is true that some gambler were arrested and were let off. Two in the village itself and three were let of later on. This fact is not transcribed in the report nor disclosed in his Section 161, Cr..P.C. statement. What weapon was in the hands of each individual accused was neither transcribed in the report nor disclosed to the Investigating Officer. His report did not contain that Jai Narain broke the door open with an axe. In the report it is not written that his wife and sister Prabha were also present at the spot. He has stated that his mother had also returned on 26-10-79 from hospital. His mother was also assaulted with bricks and lathis. Assault by bricks is not supported from her medical evidence. Avdhesh did not regain his consciousness after the incident. He denied that he did not go to Kanpur hospital with Avdhesh and his mother. He had not suffered injuries as mentioned in the FIR nor he underwent any medical examination. He has further stated that the injury was simple therefore he did not undergo any medical examination. He was suggested by the defence that on the date of occurrence his sister was in her husband's house. On 23-10-79 his mother had gone to the flour mill of Shiv Das for taking flour on the asking of Avdhesh. In the house Avdhesh and his wife were alone, they were locked in a room and were engaged in amorous activity. He arrived there at that very time all of a sudden. Finding his wife not within sight; he in anger broke open the door and started belabouring his brother. In the meantime his mother came back and fell upon his brother and suffered injuries in the process. They were saved by Dularey, Ram Nath and Guljari. The two suffered injury in the above manner. Later on in collusion with Chheda Kachhi and Vinai Pal Singh he had falsely involved the appellants in the offence. This witness denied all this. From his evidence it is evident to us that he is concealing the true facts from the Court. He apparently presented a coloured version before the Court. His absence for three days from the village was not duly and properly explained. The explanation attempted by his mother did not get corroboration from his statement.
9. Coming to the testimony of P.W. 2 Dr. G.S. Dhanik we find in his cross-examination that Avdhesh and Chandrawati were brought by a constable and none-else of their family was with them. According to him it is probable that the injuries sustained by these two were caused by lathi and Danda. Injury of Avdhesh is not possible from a Pharsa. If the Pharsa was blunt this injury was possible. Injury No. 1 was kept under observation. In cross-examination he had admitted that Avadhesh was conscious since he was referred for U.R.M. Hospital he did not admit him in his P.H.C. There can be 6 hours difference in the injuries. Thus he denied the arrival of P.W. 1 Kailash Narain along with the victims. From his evidence thus it is clear that the deceased was conscious and the informant was not present in the P.H.C. when he was examined. He is elder brother of the deceased whose condition was critical at that time. It was but natural for him to contact the doctor at least. His failure to do so is most unnatural. His absence at the primary health centre at the time of their medical is, therefore, confirmed.
10. P.W. 3 Maiku had denied to have seen the incident. He had also denied any knowledge whether Avdhesh is alive or dead. On this prosecution declared him hostile and was cross examined. In cross-examination he denied that any statement of this witness was recorded by Investigating Officer under Section 161 Cr. P.C. He was read over his statement recorded by the Investigating Officer, which he denied to have made. He had pleaded ignorance as to how this was written by him. He also denied his collusion with the accused persons. His evidence is to be ignored.
11. P.W. 4 Chandrawati, mother of the deceased Avdhesh and informant P.W. 1 in her statement denied the presence of her husband in the courtyard, but claimed the presence of Kailash Narain, his wife Suraj Mukhi, her 5 year old son and her daughter Prabha. According to her Avdhesh Kumar came inside the house, entered into a room and bolted himself from within. The appellants followed him. Jai Narain picked up an axe lying in their courtyard and cut the door open. He dragged Avdhesh out of that Room. Afat Lal assaulted him with Kanta. He fell down, others assaulted him with lathi and Dancla. He was lifted out of the house by all the accused. They also tried to assault his elder son when he raised alarm. Maiku, Gargee and Ram Sajiwan came to the spot. Avdhesh was assaulted outside the house also. When she fell upon him she too was beaten. She also sustained injuries. Vinai Pal pulled her away. Avdhesh was also assaulted with bricks. When the villagers started filing in the appellants ran away to the North. They also surrounded Avdhesh some time before the occurrence. Its report was lodged at the police station. They were examined medically at Ghatampur Hospital. The appellants also threatened them after the occurrence not to give evidence else they will also be killed. A report was made by her husband at police station Ghatampur and a complaint was moved to the District Judge also. They had threatened them twice and on both the occasions reports were lodged. These reports were filed by her, but they had not been proved and exhibited. When the Investigating Officer recorded her statement she was not knowing that any report was lodged by Avdhesh against the appellant. She came to know of it two months later on opening his box. She did not show it to the Investigating Officer nor delivered it to him. She did not speak about it to her husband also. This fact was not told to any other person in the village. Neither Kailash nor her husband asked her to give the application so that it may be given at the police station. He was injured by bricks in a crushing manner, he was assaulted with bricks by Jai Narain, Ballu and Rajjan. These persons have left their weapons on the ground while doing so. Assault by bricks was made by sitting on the floor.
They had not pelted any brick bats in retaliation. As soon as the villagers assembled there the appellants ran away wading through the crowd. None tried to apprehend them. When Jai Narain used the Axe he had his lathi under his arm pit. Then stated that he had stationed it with the wall. After making the door open he left the axe and picked up his lathi. Jai Narain did not assault his son with bricks. Only a solitary Kanta blow was given. Pharsa was not plied on her son. She had not disclosed this fact to Investigating Officer that Afat Lal used his Kanta because it was not asked from her. Daroga was not informed about the manner of assault. Kailash did not accompany her to Kanpur hospital. Kailash was present in the P.H.C. When she proceeded for Kanpur Hospital. Kailash went back to the house to bring the necessary articles of daily use. She reached the hospital within 15-20 minutes hour half an hour afterwards. She was medically examined after half an hour or 45 minutes. On next day at 6-7 a.m. they proceeded for Kanpur. They reached Kanpur at 2-30 or 3.00 p.m. She admitted that she had not received any brick injury. She denied the defence suggestion that a quarrel between Kailash and Avdhesh took place and both used brick-bats. She also denied as incorrect that Kailash had assaulted Avadhesh with lathi and thereafter disappeared from the spot. She further denied that due to it he did not accompany injured to the P.H.C. and also to Kanpur. The report in collusion with the police was prepared later on was also denied. She also denied that she in falsely deposing to save her son Kailash. She denied that she had gone to fetch flour from flour mill of Shiv Das in the morning. She did not know the name of her son in law. She denied that Prabha was not present in the house on the date of occurrence. She was suggested that she had gone to flour mill. She found Kailash assaulting Avdhesh on her return. She fell upon him and suffered injuries in that process. All this was denied by her. Witnesses have not entered her house. It took her 45 minutes to reach Nauranga. She went on a bullock-cart upto Chandrapur and not to Nauranga. From there they hired a Tempo and went via Nauranga to Ghatampur. Surendra met them there. Avdhesh did not regain his consciousness upto the police station. He was semi-conscious in the hospital and was saying, 'Han Han' but was unable to speak properly. This is purely an attempt to explain the statement of P.W. 2 Dr. Dhanik.
12. The last witness P.W. 5 is the wife of informant Kailash Narain. She has supported in its entirety the version given by her husband and the mother-in-law, P.W. 1 and P.W. 4. She too supported the story of assault upon the deceased by bricks. She also stated that her mother-in-law was also assaulted with lathis and bricks. This fact is denied by her mother in law P.W. 4. She stated that her husband is a truck driver and used to return home after 8-10 days. In his absence she used to stay with her parents in law and the deceased. According to her, her Devar was not a grown up man. She neither liked him nor disliked him. She denied that she used to meet her Devar stealthily in the fields. She also denied that there was a rumour in her village that they regularly meet stealthily during the absence of her husband. She also denied that her husband entertained any suspicion against her conduct and for this reason he aban-dened truck driving. She further admitted that while driving tempo her husband some times use to return home at odd hours. She also denied that any quarrel or marpeet ever occurred between her husband and her Devar on account of her intimacy with him. The assailants were armed with Danda, Kanta and Ballam. Neither in FIR nor in 161, Cr. P.C. statement any Kanta was alleged by any witness. She had stated a new fact in her statement that some assailants had abandoned their lathi on the spot and some took away their lathi. She again said that they may have abandoned it somewhere else, but did not leave it at the spot. She claimed that she told the I.O. that the deceased was assaulted with Kanta and lathis in the courtyard also. She further stated that she also told the Investigating Officer that Jai Narain had also beaten her husband with lathi. If these facts are not there in her statement recorded under Section 161, Cr. P.C. she could not offer any explanation for the same. In her cross-examination she admitted that her mother-in-law was not assaulted with Kanta, Ballam or bricks. She further claimed that bricks were used in a manner which might have caused crushed injuries. She further stated that when her mother-in-law fell upon the deceased Vijay Pal beat her with lathi and then pulled her away. Person who were assaulting with bricks stopped the assault when the mother-in-law covered Avdhesh. According to P.W. 4, brick assault was made by sitting in crouching posture. It is not possible for her to fall on her son. They again started giving brick blows as soon as she was pulled away. If the use of Kanta and Pharsa is not there in her statement to the Investigating Officer she cannot say anything. Then she asserted that she did tell him about the use of Kanta and Ballam. Her mother-in-law after the occurrence went to police station along with the injured Devar. She can identify a few persons of her village only. She denied that she was made to cram the names of the accused and deposed in Court under the pressure of her husband. She further denied that her husband used to assault her because he was suspicious of her fidelity and on account of this she used to go to her mothers place frequently. She further denied that 5, 6 month before this incident any Panchayat was held to bring her back. She further denied that a year ago her husband had thrown Avdhesh in the well because of her. She claimed that Jai Narain threw him in the well and her husband had taken him out but her family members did not lodge any report for it. This is falsified by P.W. 1 itself. The accused had tendered an apology. Her husband when he tried to save her Dever was also given lathi blows. Her husband received only one lathi injury. Injury was not visible. Some blood had fallen in her inner Courtyard and some blood fell outside the house. She could not say where the blood in the inner courtyard was. She did not remember when her husband returned home from police station then said that he returned 3 days later along with her mother-in-law.
13. On careful scrutiny of the evidence of P.W. 1 Kailash Narain, P.W. 4 Smt. Chandrawati and P.W. 5 Smt. Suraj Mukhi, we drew the inference that their evidence fell far too short of the necessary degree of reliability. Their evidence seems to be heavily glossed with untruth. They hold no sanctity for truth. All these witnesses belong to one family and are motivated by their strong instinct of self preservation. One of the two sons was already lost to them. It would be difficult for them to think of loosing the other son by his conviction for the murder of his own brother. It is so pressing a reason for them that they embellished their testimony just to save the surviving son P.W. 1. The motive was not proved at all. Rather in our opinion it was so mentioned in order to lend some assurance to their case, but the circumstances proved it otherwise. We have discussed this part in the early part of this judgment. There are serious contradictions in the evidence of these witnesses and Kailash Narain P.W. 1. There is clear evidence that the deceased had good relations with appellant Jai Narain. He was arrested from his house when he was playing game of cards in his house and was let of by police along with appellant-Jai Narain in the village itself. The defence has come out with the plea that the Police Inspector had a grudge against Jai Narain because of the fact that Jai Narain on a previous occasion thwarted his attempt to arrest him a year ago. He had taken out the deceased from the well when he was pushed in it. According to defence informant pushed him in the well. Taking out by this appellant further corroborates defence case that the relation between the deceased and the appellant-Jai Narain were cordial and smooth. They therefore had no motive to assault him so brutally. Medical evidence also is inconsistent with the prosecution story inasmuch as it does not corroborate the case of the prosecution that the deceased was assaulted outside the house by bricks. There are no brick injury apparently. No crushed injury were found. No typical brick dust was found in any injury. According to these witnesses large numbers of brick blows were given. It is clearly a false statement. Initially they said that their mother P.W. 4 was also assaulted with bricks. But they had resiled from this part of their case in their deposition in Court and that is rightly because there was absolutely no evidence of any use of brick. There is no sharp-edged weapon injury on the person of the deceased although use of Kanta and Ballam was alleged by witnesses in the evidence. The doctor P.W. 2 found only 8 injuries on his person out of them three were lacerated wounds, two contusion, one abraded contusion and two abrasion, but in the post-mortem examination as many as 12 injuries were found. One lacerated wound, 5 abraded contusion, one stitched wound, 5 abrasions and one abraded multiple contusion. Thus the number of injuries on the deceased were increased in the post-mortem examination report. Apart from it failure to record the statement of injured Avdhesh who later on died by I.O. is a very strong circumstance which makes things worse for the prosecution. According to Medical Officer who examined him Avdhesh was conscious. The doctor P.W. 2 referred him for the Urshila Hospital, Kanpur which clearly goes to show that the prosecution was trying to suppress the true genesis of the incident. Apparently no attempt was made at any point of time till his death to record his dying declaration by a Magistrate. The injuries suffered by the victim were not such which may make him unconscious immediately. According to the medical examination report there is only one injury on the scalp which was grievous. The other injuries were on the non-vital parts. Even the post-mortem report does not show any other injury on the vital part like scalp. No internal damage was caused to the ribs in the chest injury. Bed head ticket of the deceased was also deliberately withheld from Court. In these circumstances there is absolutely no possibility of the victim falling unconscious immediately as alleged by these witnesses. It is also admitted to P.W. 4 Smt. Chandrawati that the deceased was semiconscious at the P.H.C. and was saying han, han. P.W. 1 said that he became unconscious at the spot and never regained his consciousness till his death. It is a clinching inconsistency in the prosecution story which leaves enough room for us to infer that the occurrence had taken place in some other manner than alleged by these witnesses. An attempt to explain the statement of the doctor P.W. 2 further confounds the situation for the prosecution.
14. There is yet another circumstance. This incident had taken place in a populated locality where so many houses about the house of the deceased and the informant. The witnesses from the locality must have arrived there and witnessed the incident. Why even one witness of the locality was not produced by the prosecution in corroboration of its version was not explained at all. An adverse inference clearly flows against the prosecution. The presence of many witnesses is admitted to all the witnesses especially P.Ws. 1 and 4. Three witnesses were named in the F.I.R. and the evidence. So far as P.W. 5 is concerned she admitted that she could identify only a few people of her village. She could not identify every person of her locality or village. In these circumstances failure to produce any independent corroboration for the prosecution story in our opinion has most critically affected the veracity of these witnesses and their version. In the circumstances as discussed above we are of the opinion that these appellants have earned their acquittal. The injuries of the deceased did not corroborate the participation of as many as 8 persons. One or two persons were sufficient to cause these injuries. Moreover the deceased appears to have tried to ward of the blows is established by medical evidence but no eye-witness alleged it.
15. The presence of a blood-stained axe inside the house belonging to informant is yet another circumstance which creates serious doubt in the genuineness of prosecution version. This fact did not find place in the F.I.R. or their 161 Cr. P.C. statements. Apart from it conduct of the informant in taking no interest in the well being of his critically injured brother at the P.H.C. his not accompanying him to Urshila Hospital, Kanpur further confounds the mystery. The defence suggestion that he himself was the assailant and after the occurrence he ran away from the spot is strongly supported from his above conduct and unnatural behaviour. Absence of any injury on his person despite allegations of assault impeaches his credibility beyond redeem. Evidence to the contrary that he returned with his mother after 3 days does not inspire our confidence. His wife, P.W. 5, stated that he returned along with his mother after 3 days. Like P.W. 4 she did not state that he came back on the day of occurrence to take clothes and money etc. Failure to examine their father further makes the matter worse. Denial of his presence at the spot by P.W. 4 Smt. Chandrawati is not worthy of any credence especially when P.W. 1 Kailash Narain asserted his presence. The evidence of these witnesses is so badly glossed and coloured that we find it impossible to undertake any exercise of separation of grain from chaff. It had hardly any grain. The independent witnesses were withheld because they might have spilled the beans regarding incident and illicit relationship of P.W. 5 with the deceased. That would have brought her husband to book. Failure to prove the alleged motive also has serious bearing upon their evidence. Except P.W. 1 Kailash no other witness said a word about the alleged motive in their statements.
16. From the oral evidence and the proven circumstances it is almost clear that deceased and P.W. 5 were inside a room. Her mother-in-law was not present in the house at that time. She had gone to fetch flour from the flour mill where her son was working. In the meantime her husband reached the house and found them locked in a room. He was enraged and in the process he had broken the door open and caused injuries to the deceased with a lathi. They supported the prosecution story as brought forth including assault by bricks. Assault by bricks is not corroborated in any manner from medical evidence. It will be too difficult for her to come out in the open and face her enraged husband. Her statement that Jai Narain fell her devar in the well and her husband took him out is a patent falsehood. It is Jai Narain who admittedly pulled him out from the well. Who threw him in the well is not corroborated from any independent source. P.W. 1 admitted that Jai Narain took Avdhesh out from the well. The fact that bullock cart was provided by Jai Narain for carrying the two injured to the police station and the Hospital lends strong credence to the defence suggestions. All these three witnesses had not given out the true version of the incident. Their statements are wholly coloured and also full of falsehood and embellishments. They had knowingly suppressed the truth. The defence version from their own evidence and circumstances stands heavily probabilised.
17. The appellants therefore are acquitted of all the charges for which they were convicted and sentenced. Their appeal is allowed. They are on bail they need not surrender. Their bail bonds are cancelled and sureties are hereby discharged.