JUDGMENT Amar Saran, J.
1. This appeal by the appellants Jai Singh and Buban arises from the judgement and order dated 23.12.1981 passed by the VI Additional District and Sessions Judge, Ghaziabad convicting them to imprisonment for life under Section 302 IPC read with Section 34 IPC.
2. As the appellant Buban has died and report of his death was received from the in-charge Chief Judicial Magistrate, Ghaziabad dated 20.10.2004 verifying the fact of his death on 7.6.1994, hence appeal of Buban abates and only the appeal of the appellant Jai Singh survives.
3. We have heard Shri Ram Babu Sharma, learned counsel for the appellant and Shri R.K. Singh, learned Additional Government Advocate.
4. The case of the prosecution was that the deceased Mangal Singh, was a 'Baildar' in the Canal Department and was residing at Bungalow Nahar Timohi in village Inayatpur. There was old enmity of the deceased and his brother Bhim Singh the informant of this case with the appellant Jai Singh and his brother Bhanwar Singh (the co-accused who died during trial) and Buban, the co-appellant who has died during the pendency of this appeal. One year prior to this incident, these persons had beaten the deceased and his father Dhani Ram at the same place about which a report was lodged by the deceased at the police station and a case was pending in that regard. On account of the aforesaid enmity, the appellant Jai Singh, his brother Bhanwar Singh, (who died during the trial) and Buban (who died during the pendency of this appeal) and one unknown person came to the Canal Bungalow in the night of 15/16.5.1978 at about 2.00 A.M. and pressed the deceased on the cot and committed his murder. The appellant Jai Singh was armed with a pistol, Bhanwar Singh was armed with knife and Bankey was armed with a Danda. On the shriek of the deceased, the informant Bhim Singh, his nephew Satvir, son of Mangal Singh the deceased and Vidya, who were present at the Canal, Bungalow, as they were keeping watch over their dried crops which had been kept for threshing, and Gulzar, who was a 'Tandail' (a messenger carrier) also employed in the Canal Department, woke up and witnessed the incident. After the incident, the accused persons are said to have threatened the witnesses by flashing the pistol and knife at them. As it was night time, the report of this incident was lodged the next morning on 16.5.1978 at about 7.45 A.M. by Bhim Singh at police station Masoori, which was at a distance of four and a half miles.
5. Clerk Constable Zabarddin prepared the chik FIR (ext. Ka.1) Thereafter investigating officer S.I. Omkar Singh, who was present at the police station when the report was lodged took up the investigation and recorded the statements of C.C. Zabarddin and the informant at the police station. After that, he proceeded to the place of occurrence where he directed S.I. Harsharan Singh to prepare the inquest. He also recorded the 161 Cr.P.C. statement of Vidya and Satveer at the spot and after obtaining the inquest report, prepared the site plan on the pointing out by the informant Bhim Singh, which is Ext. Ka-5. He also took the plain and blood stained earth from the spot and the cot on which the deceased was lying in his custody. The recovery memo was prepared by SI Harsharan Singh on his dictation. Thereafter, he took the torch, with which the informant and witnesses had recognized the accused, in his possession and prepared the recovery memo, which is ext. Ka-8. He also recorded the 161 Cr.P.C. statements of the inquest witnesses Atar Singh, P.W. 3 and others. On his dictation SI Harsharan Singh prepared the photo laash, which is ext. Ka-9 and challan laash and police form No. 13. The body was sealed and handed over to Constable Somveer Singh and Raghubir Singh for post mortem and a letter for post mortem was prepared by SI Harsharan Singh for the C.M.O. The search for the accused was made in their houses, but they could not be arrested. Thereafter, the I.O. recorded, the statement of the witness Gulzar and then returned to the police station. On 1.6.1978, he got the statement under Section 164 Cr.P.C. of the witness Gulzar recorded by the Judicial Magistrate. On 31.5.1978, the investigating officer submitted charge sheet against the accused persons (vide ext. Ka-14.)
6. The post mortem on the body was conducted by Dr. M.C. Varshney, Medical Officer, P.L Sharma Hospital, Meerut on 17.5.1978, who found the following ante-mortem injuries on the body of the deceased Mangal Singh:
"Gun shot wound of entry 3 cm x 2.5 cm. Chest cavity deep on the right side of neck middle part. Blackening, tattooing and charring present around the wound in an area of 17 cm X 13 cm involving the right shoulder and right side front of chest upper part."
7. On 26.5.1981 charges were framed against Jai Singh and Buban under Section 302 IPC read with Section 34 IPC for intentionally and I knowingly committing the murder of Mangal Singh on 15/16.5.1978 at about 2 A.M. The accused pleaded not guilty to the charge and claimed to be tried.
8. The prosecution has examined seven witnesses in this case. P.W. 1 Bhim Singh, P.W. 2 Gulzar P.W. 4 Vidya and P.W. 5 Satveer are the eye witnesses. P.W. 3 Atar Singh was a formal witness of inquest (ext. Ka-2) and also the witness of sealing of the dead body. P.W. 6 S.I. Omkar Singh was the investigating officer of this case. He took the steps already described hereinabove and submitted the charge sheet. P.W. 7 Dr. M.C. Varshney conducted the post mortem examination as mentioned above.
9. P.W. 1 Bhim Singh deposed that the appellants Jai Singh add Buban belong to his village. One year prior to this incident Jai Singh, Bhanwar Singh and Chandu had indulged in Marpeet with his father for which a case was pending in court. On the date of incident, the informant Bhim Singh, came to the Canal Bungalow in order to look after his cut crops. At a small distance his brother deceased Mangal Singh was sleeping and Satveer, Vidya and Gulzar were also sleeping nearby. His brother Mangal Singh was a 'Baildar' and Gulzar P.W.2 was a 'Tandail' in the canal department. At about 2 A.M. on the fateful night, he heard the shriek of his brother. On his cry, he woke up and on flashing his torch, he saw Jai Singh, Buban, Bhanwar Singh and one unknown person pressing Mangal Singh. Bhanwar Singh and Buban had pressed the deceased, While Jai Singh carried a revolver and Bhanwar Singh was armed with a knife. The appellant Jai Singh fired at the deceased, who died on the spot as a result of the fire. Due to fear the he lodged the report the next morning.
10. P.W. 2 Gulzar in his examination-in-chief has deposed that three years earlier, on the date of incident, he was sleeping outside the Canal Bungalow on the 'Patri'. His quarter was hardly 4-5 paces from the Canal Bungalow. The other relations of Mangal Singh were also sleeping there, but he claimed not to know their names. Mangal was also sleeping at that place. At about 2 A.M. in the night on the sound of fire, he woke up but he remained lying on the cot. He claimed not to have recognized the assailants. At that stage this witness was declared hostile.
11. However on cross-examination by the prosecution, this witness has re-affirmed his statement to the investigating officer where he admits to have stated that at 2 O' clock on the fateful night, Jai Singh, Buban, Bhanwar Singh and one unknown person came to the Canal Bungalow and pressed Mangal Baildar. On the cries of the 'Baildar', Bhim Singh, flashed a torch whereupon they saw Jai Singh armed with a pistol, Bhanwar Singh carrying a knife and two others who were armed with Dandas. He also reaffirmed his 16l Cr.P.C. statement to the investigating officer in which he had stated that Jai Singh pointed a pistol and Bhanwar Singh pointed a knife in the direction of the witnesses, issued threats to them and asked them to run away and not to make a sound or else they would be killed. Bhanwar Singh, Buban and one unknown person pressed Mangal Singh on the cot and Jai Singh fired at Mangal causing his death.
12. Again to the court's query initially he said that as it was night time he could only see the assailants running away and he only recognized Bhanwar Singh. But again when he was asked by the prosecution whether he still works in the ward of the Canal and whether the statement made to the investigating officer was correct, he reiterated his earlier statement. Thereafter on a query by court enquiring as to which of the two statements, the immediately preceding statement where he had deposed that he could only recognize Bhanwar Singh, or his, earlier version to the investigating officer that the assailants were Jai Singh, Buban and one unknown persons, was correct. He replied that the letter statement was correct. On a specific question by the court whether he identified Jai Singh and Buban as the assailants, he answered in the affirmative.
13. Again when the court questioned him as to which of the two versions whether he could only recognize Bhanwar Singh or whether his claim to have recognized Jai Singh and Buban was correct. He replied that his nomination of Jai Singh and Buban as the murderers was correct and he resiled from the statement that he could identify Bhanwar Singh alone.
14. On the cross examination by the accused, he denied the suggestion that Mangal Singh had given any evidence in his favour in any case and he affirmed that when the investigating officer came to the spot, he gave his statement and he stayed at the place of incident at the canal bungalow from the night of the incident until the evening of the next day. He further staled that all the witnesses were sleeping on the canal patri to look after their dried crops. He also specifically denied the suggestion of the defence that he was falsely deposing because Mangal Singh used to give evidence in his favour and that he did not see the incident.
15. This witness was recalled on an application by the prosecution. He then admitted that he had sent a report about the incident to the Junior Engineer at Dehra in the morning, which was signed by him, (vide ext. Ka-3). But on further cross-examination by the accused he stated that the 'halkara' took the report to the Junior Engineer, but if was done after the arrival of the investigating officer.
16. P.W. 4 Vidya has deposed that he was sleeping at the Canal Bungalow along with Satveer, Gulzar and Mangal Singh. Mangal Singh was sleeping in the Verandah whereas the other persons were sleeping on canal Patri to look after their 'pair' (cut crops). Mangal and Gulzar were sleeping there because they were working in the canal department. At about 2 A.M. he heard the shriek of Mangal and on Bhim Singh flashing a torch, he saw Buban and Bhanwar Singh pressing Mangal Singh and Jai Singh fired on the neck of Mangal Singh with a revolver. Bhanwar Singh was carrying a knife. Buban and one unknown person were carrying lathies. On their raising protests against the accused persons on opening their eyes, Jai Singh pointed his pistol towards them and shouted that if anyone rose up, they would be killed. Mangal Singh died on the spot. The accused ran away towards the tube well.
17. P.W. 5 Satveer, son of Mangal Singh deposed that his father was murdered three and a quarter years back. He was sleeping on the Patri of the Canal in front of the Canal Bungalow along with Vidya, Bhim Singh and Gulzar. His father was sleeping on the Verandah. His father and Gulzar used to work in the ward of the canal. In the night at about 2 A.M. on hearing the shriek of his father he woke up and saw four persons. On flashing of the torch by his uncle Bhim Singh, he saw that those persons were Jai Singh, Buban, Bhanwar Singh and one unknown person. Jai Singh was armed with a revolver, Bhanwar Singh was carrying a knife, Buban and the unknown person were carrying Dandas Buban and Bhanwar Singh pressed his father and Jai Singh fired a shot on his father. When the witnesses asked the accused why they were behaving in this fashion, Jai Singh pointed a revolver in their direction and asked them to lie quietly or else they would be killed. The accused after murdering his father, ran away from the eastern door.
18. P.W. S.I. Omkar Singh was the S.O. of police station Masoori on 16.5.1978. The steps for commencement of investigation and lodging report etc. have already been detailed above. In his cross-examination he has stated that he could not remember whether the witnesses had told him when they had placed their cots. He further stated that he has shown the same in the site plan at point 'A'. He states that apart from the official accommodation, which Gulzar had at the Canal Bungalow, he did not have any other house. He claims to have prepared the recovery memo of the torch, but he had not written in the recovery memo whether the torch was functioning or not. He denied the defence suggestion that he did not go to the place of incident and did not record the statements of the witnesses.
19. P.W. 7 Dr. M.C. Varshney, Medical officer of P.L. Sharma Hospital, Meerut, conducted the post mortem examination on 17.5.1978 at 3.00 P.M. The ante mortem injuries found on the body of the deceased have been described above. On internal examination, he found that the neck vessels of the deceased lacerated on the back side. Vth, VIth and VIIth vertebrae and cervical ring were broken. Right pleura was lacerated. Trachea and right lung were lacerated and that in the thoracic cavity on the right side 300 cc blood was present. Esophagus was lacerated in the neck region. The cause of death was shock and haemorrhage. Fifty five pellets and Wadding pieces were recovered from neck, right side and thoracic cavity, right side which were sent to the SSP through C.M.O. Meerut. The doctor opined that the injuries could have been received on 16.5.1978 at 2 A.M. In his cross-examination, the doctor admitted that there was only an entry would on the neck, but no exit wound and even in a close range fire, it was not necessary that any exit would be there and the pellets could have been scattered in the body. as there was blackening, tattooing and charring on the injury, the fire must have been from within 3-4 feet.
20. In his statement under Section 313 Cr.P.C., the appellant claims to have been falsely implicated due to enmity and he did not lead any evidence in defence. He was 49 years in age at the time of his examination under section 313 Cr.P.C. on 11.12.81, which implies that he would now be about 73 years in age.
21. It is argued by the learned counsellor for the appellant that the incident in question took place at 2.00 A.M. in the night on the fateful day when a single shot appears to have been fired on the deceased when be was sleeping and the accused whenever they were, must have run away immediately thereafter and normally it is not expected that the witnesses would have been present to witness the incident at that time. This argument of the learned counsel is further buttressed by the circumstance that the investigating officer has only indicated the cot of the deceased in the recovery memo, and in the site plan, but he his not noted or shown the presence of the cots of the deceased in the site plan, at point 'A' where he claims to have shown the presence of the witnesses. Presence of their cots would have afforded some corroboration of the presence of these witnesses at the spot. Moreover, P.W. 2 Gulzar "Tandail", who could be expected to of present on the Dak Bungalow, admits that he has a quarter, which was hardly 4-5 paces from the Dak Bungalow and in such circumstances it could not be ruled put that he was sleeping in his quarter and not on the Canal Patri near the deceased.
22. The other witness Bhim Singh, P.W. 1, the brother of the deceased, P.W. 4 Vidya, P.W. 5 Satveer, the son of the deceased also had little reason for sleeping at the Canal Patri and the only reason for their presence was to look after their dried crops or Khalihan, which was at a distance of 500 yards from the Canal Bangalow. It was further admitted by Bhim Singh, P.W. 1 that between the Khalihan and the Bungalow although no sugarcane crop was standing, however a canal intervened and it is not understandable as to what protection those witnesses would have given to their crops, if they did not sleep near their crops, but at such a long distance at the Canal Patri near the Canal Bungalow. From the circumstance, it does appear that the witnesses have shown themselves to be sleeping on the Canal Patri near the Bungalow merely to become witnesses of the murder of the deceased.
23. It is rightly argued by the learned counsel for the appellant that the testimony of the witnesses becomes further unreliable as there are omnibus allegations in the FIR that the accused persons pressed the deceased who was sleepping on the cot whose shriek was heard by the witnesses, but it is not even stated that the appellant had fired on the deceased with a pistol.
24. The vagueness of this description and the fact that there was no injury of knife, which was assigned to Bhanwar Singh or Danda, which was assigned to Buban and the unknown accused on the deceased, are also suggestive of the fact that the deceased appears to have been done to death when he was sleeping all alone at the place of incident and the accused have been subsequently implicated on account of suspicion and enmity on a reconstruction of what might have happened at the time of incident, with the aid of the police. Also presence of an unknown assailant suggests that the accused did not want to be identified at the time of incident and in such circumstances it is not explicable why known persons would accompany the unknown assailant to commit the crime.
25. It is next contended by the learned counsel for the appellant that the key witness P.W.2 Gulzar, who might have had some reason for being present at the Canal Bungalow as he also worked on the Canal like the deceased Mangal, has been declared hostile by the prosecution. It is contended by the learned AGA, that from the mere fact that a witness has turned hostile, his evidence is not entirely effaced. This is the correct statement of the law, and from the mere fact that a witness has turned out hostile, his testimony is not to be automatically discarded, but its intrinsic worth has still to be evaluated, and it has also to be ascertained whether any part of the statement of a hostile witness can be relied upon, and whether on a careful scrutiny there are any corroborative circumstances for relying on any part of the testimony of the hostile witness. However, in this case we find that this witness is taking somersaults in his position at every stage. Initially he deposes that he heard the fire at about 2.00 A.M. and woke up, but he remained lying on the cot and did not recognize the assailants. After being declared hostile, and being cross-examined by the prosecution he re-affirmed his 161 Cr.P.C. statement to the police, wherein he had nominated the appellant and the other two named accused and the unknown person. He again resiled from the position on a court's question, he replied that he saw the accused persons while they were running away and he could only recognize Bhanwar Singh. But again on a query by the prosecution, he admits that he works in the Ward of the Canal and his statement to the investigating officer was correct and when clarification was sought by the court as to which of the two positions, his statement nominating only Bhanwar Singh or the version given to the investigating officer, are correct. He replied that the latter was correct, he states that he had wrongly uttered the words that he could only recognize Bhanwar Singh. On a query by the accused, he denied that Mangal Singh, the deceased has ever given any deposition in his favour, which had resulted in his false testimony against the accused.
26. It might have been possible for this Court to rely on the testimony of this vacillating and flickering witness, if the document ext. Ka-3 which has been sent to the Junior Engineer, Delra and which substantially contained the more detailed versions of the incident than what was mentioned in the FIR, and which even specified that the appellant had fired on the deceased resulting in his death, could be relied upon. This testimony ext. Ka-3 is shown to have been received by the Camp Office of the Junior Engineer, Dehra at 7.00 A.M. However, it is quite apparent that this endorsement is not correct a P.W. 2 has admitted in his cross-examination that this document was only prepared after the arrival of the investigating officer and as the FIR of this incident was lodged at 7.45 A.M, the investigating officer would have only come later than that and there was no question of this document having reached the Camp Office of Junior Engineer, Dehra at 7.00 A.M. Moreover, as neither the Junior Engineer nor anyone from his office has come forward to prove the receipt of this document at Dehra Camp Office at 7.00 A.M, hence this entry on the said document cannot be read in evidence. Rather it goes to suggest that the prosecution was trying to create a false document to substantiate the claim of the witnesses being present at the time of incident and witnessing the event. It is mentioned by Gulzar, P.W. 2 that there was a telephone connection at the, Canal Bungalow and it is quite possible that information was sent to the police, who may have come and thereafter this FIR ext. Ka-4 and the letter to the Junior Engineer, Dehra ext. Ka-3 were brought into existence and the case fabricated against the appellant and other accused.
27. There is also substance in the contention of the learned counsel for the appellant that hardly any motive has been suggested for this incident and it is only mentioned that one year earlier to this incident some Marpeet with the father of the deceased had taken place in which the appellant Jai Singh, Bhanwar Singh and one Chandu were the accused and the case in that regard was pending in court. What was the nature of that case and what was the report thereof have not been filed or described, nor the stage of the trial and the need to put any pressure on the deceased etc. has been deposed to. Apparently, from this half hearted statement of Bhim Singh, there does not appear to be any adequate reason for the appellant and other accused to commit the murder of the deceased.
28. In fact, we find that there was greater enmity of the appellant Jai Singh with the witness Vidya, who is not related to the deceased or Bhim Singh or Satveer. Vidya, P.W. 4 admits that it was true that there were many criminal cases between him and the appellant Jai Singh and in some of those cases he was the accused, whereas in other cases Jai Singh was the accused, but conviction had not been recorded in any case and under such circumstances, it could not be ruled out that the appellant has been implicated at the instance and instigation of this witness.
29. In this view of the matter, it cannot be said that on the evidence on record, the prosecution has been successful in establishing the case against the appellant beyond reasonable doubt.
30. In view of what has been indicated hereinabove, the appeal succeeds and is allowed. The conviction of the appellant as above is set aside and he is acquitted. He need not surrender. He is on bail, his bail bonds are cancelled and sureties are discharged.