JUDGMENT S.C. Jain, J.
1. Appellants Mahendra Singh, Iswar Chand , Niranjan Singh and Tejvir Sharma were Charged and tried for an offence punishable under Section 302 read with Section 34, I.P.C. on the allegations that they, in furtherance of their common intention on 27-1-1978 at about 8.30 p.m. in Danganj Mandi Khurja, intentionally caused the death of Rajendra alias Tati by means of Knives. The role assigned to Tejvir and Mahendra Singh was that of 'catching hold of Rajendra (deceased) by his arms whereas Ishwar Chand and Niranjan Singh stabbed him by knives which they were having. Believing the prosecution version as correct, the learned Sessions Judge found all the four accused persons guilty of the offence under Section 302 read with Section 34, I.P.C. and sentenced them to undergo rigorous imprisonment for life.
2. Aggrieved, this appeal has been filed.
3. As per the prosecution version, one Sukhbir son of Munshi was murdered about 2 1/2 years before this incident. Rajendra deceased was one of the accused in that case. Ishwar Chand and Niranjan appellants were the prosecution witnesses in that case. About 3 months prior to this incident, deceased Rajendra was released on bail in that, case. After release of Rajendra (deceased) on bail he started living at the shop of P.W. 4 Chhetrpal in Mandi Danganj in the town of Khurja. Bhavi Chand (P.W. 4) is father of the deceased Rajendra. Though he was residing at village Achheja Khurd which was at a distance of 5 Km. from Mandi Dan Ganj but he used to go to Khurja every day with the meals for his son Rajendra. On 27-1-1978 at about 8.30 p.m. deceased Rajendra, his father Bhavi Chand and two others, namely Karori and Malkhan Singh were present at the shop of Chhetrapal Singh P.W. 4 Appellant Tejvir came there. He called Rajendra and asked him to accompany him for taking tea. Rajendra accompanied him. After some time, a gun shot was heard. The cries of Rajendra 'Bachao' were also heard. Upon this, Bhavi Chand (father of the deceased) Kirori, Chhetrapal and Malkhan Singh rushed towards that place. Girraj who was present at the adjoining shop also came out and rushed towards that side. They saw that accused Tejvir and Mahendra Singh had caught hold of Rajendra by arms and accused Niranjan Singh and Ishwar Chand were assaulting him with knives. On seeing them, the accused tried to run away but Bhavi Chand, father of the deceased Rajendra succeeded in apprehending Tejvir and he was made to sit under the tin shed of the shop of Chhetrapal. P.W. 1 Bhavi Chand got scribed the F.I.R. from Girraj P.W. 2 which is Ext. Ka-1 and took it to the police station where the F.I.R. was registered at 9.10 p.m.
4. The Investigating Officer recorded the state- ment of (P.W. 1) Bhavi Chand, Girraj (P.W. 2) and Chhetrapal (P.W. 4). He made local inspection and made site plan Ext. Ka-12. The blood stained and ordinary earth were also taken into possession at the place where the deceased had fallen down and sealed them, and memo was prepared Ext. Ka-13; a cycle which was also found at the western gate of Mandi was also taken, into possession and search of the remaining accused was made and they were arrested later on.
5. Dr. Aqil Ahmad (P.W. 5) who conducted the, post-mortem of the dead body on 28-1-1978 at 3.30 p.m. proved the post-mortem report Ext. Ka-2. Six ante-mortem injuries were found on the body of the deceased which are as under:
(1) Incised wound 1" x 3/4 bone on left side head, 3 1/2 above left ear.
(2) Incised wound (punctured) right side chest, 1 1/4" x 1/2" x chest cavity 2" above right nipple at 12 O'clock position.
(3) Punctured wound 2" x 1" chest cavity, Left side chest, 2" above left nipple, at 11 O'clock position.
(4) Incised wound 2" x 1/2" x bone left arm in the middle.
(5) Incised wound 2" x 1/6" x muscle on back of right shoulder.
(6) Incised wound 2 1/2" x 1/6" on left little finger skin deep.
6. As per the opinion of the doctor, death was due to shock and haemorrhage as a result of ante-mortem injuries.
7. The motive of murder was alleged to be the old enmity on account of the murder of Sukhbir Singh who was connected with the appellants and Rajendra (deceased) was one of the accused in that case. Rajendra was released on bail and this was not liked by the appellants and as such they formed a common intention to commit the murder of Rajendra.
8. The plea of the appellants is that they have been falsely implicated in this case on account of their old enmity with the family of the deceased Rajendra and that their presence at that time and place is most doubtful. The presence of the prosecution witnesses is also doubtful. It is pointed out that Chhetrapal PW 4 at whose shop the witnesses were allegedly sitting has not supported the case of the prosecution at all and according to him, he closed his shop on that day at 7 p.m. and no body was present at that time at his shop. He also denied having made any statement before the police about the occurrence. The manner in which the offence was committed and place of occurrence has also been disputed. It is also urged that there is delay in sending the special report to the Magistrate. Even a copy of the F.I.R. was not sent to the Medical Officer along with the dead body, who was to conduct the post-mortem. The apprehension of Tejvir appellant at the spot has also been challenged. According to the learned counsel for the appellants; had Tejvir appellant been arrested at the spot in such a situation, he would have been given beating by the complainant party, but there is no evidence or record that Tejvir was found having any mark of beating when he was produced before the police Officer or before the Magistrate. It has also been argued that Bhavi Chand (P.W. 1) (father of the deceased) is an old man of 65 years of age and it was impossible to apprehend Tejvir appellant who was a young boy of 26 years. The theory of catching hold of the deceased by the accused Mahendra Singh and Tejvir has also been challenged. The injuries alleged to have been found on the shoulder, arms and finger of the deceased could not have been inflicted if this theory of the prosecution of catching hold of the deceased by arms is believed.
9. In this case, prosecution has examined four eye witnesses, namely Bhavi Chand (P.W. 1) father of the deceased Rajendra, Giriraj (P.W. 2), Kirori (P.W. 3) and Chhetrapal Singh (P.W. 4) besides the statement of Dr. Aqil Ahmad who conducted the post-mortem on the dead body of the deceased Rajendra who appeared as P.W. 5 and the other police officers.
10. From the statements of these witnesses, it is to be found out whether the statement of these witnesses is sufficient for conviction of these appellants. Regarding motive, admittedly, there was some enmity between the parties on account of the murder of Sukhbir Singh in which Rajendra deceased was one of the accused and at the time of the occurrence he was on bail. There might be a motive on the part of the appellants to kill Rajendra on account of that enmity but in the presence of eye witnesses, motive loses its significance. Motive to commit an offence or crime is not essential but if it is alleged, it must be proved beyond all reasonable doubt. It is a double edged weapon and can cut either side.
11. We have to see whether the prosecution has succeeded in proving its case and the evidence is cogent and reliable.
12. In this regard, from the evidence on record the basis of the prosecution case has fallen to the ground. Chhetrapal P.W. 4 has not supported the prosecution case at all. He is a pivot around which the entire case of the prosecution revolves. He was declared hostile and was allowed to be cross-examined by the Government counsel but he did not support the case of the prosecution even in cross-examination. According to Chhetrapal P.W. 4, he closed his shop at 7 p.m. on that day as usual, there was no body at his shop at that time. He also denied that Rajendra deceased used to work at his shop. Even father of the deceased, P.W. 1 could not tell in what capacity Rajendra was living at the shop of Chhetrapal P.W. 4. According to P.W. 4 neither the deceased was an employee nor a labourer nor he was residing at his shop and he was not doing anything. The theory of Bhavi Chand P.W. 1 that he used to come daily from his village to Khurja Mandi with the meals of his son is also not believable. Why he was not residing at this village and why he was residing at the shop of Chhetrapal at Khurja where he was doing no work, has not been satisfactorily explained.
13. Appreciating the statement of each alleged eye-witness individually we find that they have not come with the truth and it is very unsafe to rely upon the statement of these witnesses for the conviction of the appellants. As per the statement of these wit- nesses, Tejvir Singh appellant took Rajendra from the shop of Chhetrapal P.W. 4 on the pretext of taking tea. It has been admitted by the P.W. 1 that there was no tea shop inside the Mandi. AH the shops of Mandi were closed at that time. The place of incident i.e. inside the Mandi, seems to be improbable on account of the fact that there was no tea shop inside the Mandi. There is also contradiction in the Statements of the witnesses as from where they saw the incident. In reply to question No. 26, Bhavi Chand stated that he and other witnesses saw the accused running away when they came out of the room to Chhetrapal. It seems that they had not reached the place of occurrence and their version of seeing this incident becomes im- probable. The distance of the shop of Chhetrapal and the place of occurrence has not come on record. It was 8.30 in the night. The statement of this witness P.W. 1 who being the father of the deceased and the interested witness is most unreliable in the present circumstances of the case. Admittedly, there was no gun shot injury on the body of the deceased. The story of firing the gun has been introduced just to show the presence of these four witnesses at the place of occurrence and giving credibility to the prosecution version. When the gun shot was not fired to kill the deceased, it was not essential to fire the gun shot just to attract the attention of others. According to the prosecution version, there was no other person at the sight at the time when the gun shot was fired and the theory of firing of gun shot is not believable. The version of P.W. 1 that he succeeded in catching hold of the accused Tejvir also does not seem, to be probable. This witness was 65 years of age at that time and Tejveer accused was 26 years of age. According to P.W. 1 Bhavi Chand, when he came out of the room of Chhetrapal P.W. 4 he saw the assailants running. It was not possible for P.W. 1 to run so fast as to catch hold of Tejveer. There was no injury either on the body of this witness Bhavichand P.W. 1 or on the body of Tejveer appellant. In natural circumstances an accused alleged to have killed a person, if apprehended at the spot, he would definitely receive beatings at the hands of the person at the spot. The presence of P.W. 1 at that place is most doubtful and being an interested and chance witness no reliance can be placed on his testimony. If his version that two of the appellants caught hold of the deceased by his arms, is correct, then there would not have been any injuries on the shoulder, arm and finger of the deceased. The medical report also belies the testimony of this witness regarding the manner in which this incident is alleged to have taken place.
14. P.W. 2 Giri Raj Singh is also not a reliable witness. From his cross-examination, it is apparent that he is inimical towards Mahendra and Niranjan appellants. He has admitted in reply to question No. 35 that he filed a criminal complaint under Section 420, I.P.C. against Mahendra and Niranjan Singh. In his statement it has come that in the night even the Palleders do no live in the Mandi. The shops in the Mandi are generally closed at 7 P.M. The shops of tea vendors, Halwai and Panwari remain open up to 9 or 10 p.m. but there are no shops of tea-vendors inside the Mandi.
15. The enmity of this witness with Mahendra and Nirajan appellants stands admitted in his own statement. In reply to question No. 38 in his cross-examination, he stated that he had litigation with Mahendra and Niranjan accused/appellant under Sections 107/117 Cr.P.C. He is tainted witness. His statement that he saw Mahindra and Tajvir catching hold of the deceased by his arms becomes unbelievable in view of the medical evidence.
16. Statement of P.W. 3 Kirori Singh also does not inspire confidence and cannot be relied upon safely for the conviction of these appellants. He is a chance witness. According to him, he had come to Mandi Danganj Khurja for selling his Gur and his Gur was sold at 2.30 p.m. on that day, but he stayed in the night because his payment was not made. However, he sent 'Buggi' to the village on the same day. His presence at that time is doubtful in view of the statement of Chhetrapal (P.W. 4), who has denied this version. The account book of the shop Keeper would have been the best evidence to show that the Gur of the witness Kirori Singh was sold on that day. Even the chit showing the sale of Gur has not been proved by this witness. Withholding the documentary evidence makes the oral testimony of this witness unbelievable. Persons can speak lie but the documents cannot.
17. Chhetrapal P.W. 4 in whose shop the witnesses were allegedly sitting at that time, has not supported the case of the prosecution. According to him, Rajendra deceased belonged to his village but he was not residing at his shop. He showed his ignorance about the occurrence and stated that as usual he closed his shop at 7 p.m. on that day also and no body was there at his shop on that day after 7.00 p.m.
18. P.W. 5 Dr. Aqil Ahmad who conducted the post-mortem proved six injuries on the body of the deceased. Injury No. 4 was an incised wound 2" x 1 1/2" x bone left arm in the middle. Injury No. 5 was an incised wound 2" x 1/6" muscle deep on the back right shoulder and injury No. 6 was an incised wound 2 1/2" x 1/6" on left little finger skin deep. If we accept the post-mortem report as correct, then these three injuries Nos. 4, 5 and 6 indicate that they could not have been received by the deceased if held by the appellants by his arms. These injuries falsify the prosecution version that two of the appellants were catching hold of him by arms and the other two were stabbing with knives.
19. The statement of Investigating Officer Sri P.S. Yadav who appears as P.W. 7 also makes the case of the prosecution doubtful. In Panchayatnama, the weapon of offence has not been mentioned. Even possibility of F.I.R. being ante-timed cannot be ruled out. In order to find out whether the F.I.R. is antitimed, we have to look into various circumstances in this regard. There is a delay in sending special report to the Magistrate. No copy of the F.I.R. was sent to the Medical Officer along with the dead body for post-mortem. There is no reference in inquest report about the F.I.R. and all these factors give rise to an inference that the F.I.R. is ante-timed.
20. There is also delay in taking the dead body for post-mortem to the doctor. As per the statement of Investigating Officer, the dead body was handed over after 10.00 but it reached the hospital next day at 3.30 p.m. The distance of the hospital was about 18 km. There is no satisfactory explanation as to why so much time was taken in taking the dead body to the hospital. The constable, who took the dead body handed over to him after 10.00 p.m., how he took the dead body at 9.00 p.m. makes the prosecution version doubtful.
21. There is another factor in this case, which makes the prosecution version doubtful. A cycle was allegedly recovered from near the place of incident. The name of some body else was written on it. It was not found connected with either of the appellants. The prosecution did not make any effort to find out as to whom that cycle belonged. It might be that cyclewala, who had committed murder of Rajendra.
22. In order to succeed, the prosecution must prove its case beyond reasonable doubt. The trial court has not appreciated the facts and law correctly while convicting these appellants under Section 302 read with Section 34, I.P.C.
23. We, therefore, accept this appeal and set aside the judgment and order dated 20-2-1980 passed by the Sessions Judge, Bulandshahr and acquit all the four appellants by giving them benefit of doubt. They are on bail, their bail bonds and sureties are discharged.
24. Appeal allowed.