JUDGMENT B.P. Singh, J.
1. Naqli and his son Vijai Pal have appealed against the judgment and order dated 16th May, 1986, passed by Special Sessions Judge, Muzaffarnagar in Sessions Trial No. 316 of 1983 Under Section 302/34, IPC and Section 25 of Indian Arms Act by which Naqli was sentenced to undergo life imprisonment for the offence Under Section 302, IPC and to a term of one year's R.I. for the offence Under Section 25 of the Indian Arms Act, while Vijai Pal was convicted for the offence Under Section 323, IPC and was sentenced to pay a fine of Rs. 200. A fine of Rs. 200/- also imposed upon the appellant Naqli for the offence Under Section 302, IPC.
2. The case of the prosecution, as was unfolded in the evidence of Bhopal Singh and other witnesses, may briefly be stated as follows:
3. Bhopal Singh, P.W. 1, son of Sukhbir Singh, is a resident of village Gyana Majra P. S. Charthawal. Accused Naqli and Vijai Pal also reside in the same village. Prior to the occurrence of this case, Bhopal Singh's grandfather, Jabar Singh, had lodged a report against Naqli in which it was alleged that Naqli had demolished the Mend of the field of Jabar Singh. Consequently, relations between the family of Jabar Singh and the accused became strained. On the night of 1/2-6-1983, Sukhbir Singh deceased along with Bhopal Singh, PW-1 and Indrapal PW-2 was sleeping upon his tube-well where the wheat and chaff were kept. At about 4 a.m. accused Naqli and Vijay Pal, accompanied by one of their relation Sukbir Singh of village Raipura, came there. The deceased Sukhbir Singh was sleeping upon his cot at that time. Both the accused and their relation Sukhbir Singh pounced upon the deceased Sukhbir Singh. The deceased raised alarm as a result of which both Bhopal Singh and Indrapal were awakened. Naqli then gave out that he would teach the deceased a lesson for lodging report regarding dismantling of the boundary. Naqli was armed with a country made pistol at that time. When Bhopal Singh and Indrapal attempted to save the deceased Sukhbir Singh, Naqli threatened them that he would shoot them if they left their place. Both the accused along with their relation Sukhbir Singh then started grappling with deceased Sukhbir Singh, who in the meantime, had got up from his cot. Upon the alarm being raised by Bhopal Singh and others Narendra son of Suba had also come there. Naqli then fired from his country made pistol upon the deceased Sukhbir Singh and Vijai Pal and Sukhbir Singh were pressing the deceased Sukhbir Singh at that time. The deceased was hit by the bullet and died on the spot. It was a moon-lit night. After the firing of the shot villagers from the side of the village also came there. At that stage, the accused along with their relation bolted away towards East.
4. A report Ext. Ka-4 of the occurrence was lodged by Bhopal Singh in P. S. Charthawal, on 2-6-1983 at 6-40 a.m. S. O. Ram Ratan Singh, PW-7, who was posted as Station Officer, P. S. Charthawal in June, 1983, was present upon the Police Station when the report Ext. Ka-4 was lodged by Bhopal Singh. S. O. Ram Ratan Singh PW-7, started investigation in the case as soon as the report was lodged. He reached upon the scene of occurrence and carried out routine investigation. During the course of investigation S.O. Ram Ratan Singh P.W. 7 had recovered a used cartridge from the scene of occurrence and had sealed it under the recovery memo Ext. Ka-17. On 3-6-1983 S. O. Ram Ratan Singh, PW-7, had arrested accused Naqli and on the pointing out of the accused a country made pistol Ext.Ka-2 as recovered from near the tube-well of the accused and was sealed under the recovery memo Ext.Ka-2. Before the charge sheet could be submitted in the case, S.O. Ram Ratan Singh was transferred and thereafter S.O. Satish Chand Pachori, PW-8, who had succeeded S.O. Ram Ratan Singh, PW-7, as Station Officer, P.S. Charthawal, had submitted the charge-sheet Ext. Ka-19 Under Section 302, IPC in the case. A charge sheet Ext. Ka-23 Under Section 25 of the Indian Arms Act was also submitted by S.I. Suresh Babu Govil, PW-9, after carrying out routine investigation.
5. Sukhbir Singh of village Raipura was not prosecuted. At the trial both Naqli and Vijai Pal pleaded not guilty and claimed to be tried.
6. In all the prosecution examined 9 witnesses, Bhopal Singh, PW-1, Indrapal Singh, PW-2, Janak Singh-PW3, Dr. S. K. Sharma PW-4, Dharampal Singh PW-5, Jai Pal Singh PW-6, S. O. Ram Ratan Singh PW-7, S.O. Satish Chand Pachauri PW-8 and S. I. Suresh Babu Govil PW-9, in the case. The accused did not lead any evidence in their defence.
7. The learned Sessions Judge accepted the evidence of the witnesses for the prosecution and held that the accused were guilty of the offences with which they were charged and were sentenced as aforesaid.
8. Aggrieved by the judgment and order of the trial court, Naqli and Vijai Pal have come up in appeal.
9. We have heard the learned counsel for the parties and we have gone through the record of the case in the context of the arguments advanced at the Bar.
10. S. O. Ram Ratan Singh, PW-7, has deposed about the steps which were taken by him during the course of investigation. He has also stated that on 3-6-1983 he had recovered the country made pistol Ext. 1 on the pointing out of accused Naqli from near the tube-well and sealed the same under the recovery memo Ext. Ka-2. He also claimed that on 2-6-1983 he had recovered a used cartridge from the place of occurrence and had sealed the same under the recovery memo Ext. Ka-17, S. O. Satish Chand Pachauri has proved the charge sheet Ext. Ka-19, while Suresh Babu Govil has proved the charge sheet Ext. Ka-23 and has deposed regarding the various steps which were taken by him while investigating the case Under Section 25 of the Indian Arms Act against accused Naqli. He has also proved the sanction of the District Magistrate Ext. Ka-2. Dr. S. K. Sharma PW-4 had conducted the postmortem examination of the dead body of the deceased Sukhbir Singh on 2-6-1983 at 4-30 p.m. in District Hospital, Muzaffarnagar and had found the following ante mortem injuries upon the dead body of the deceased :--
1. G.S. wound of entry 2 cm x 2 cm x cavity deep over left side chest 2 cm below left clavicle medial third. Tattooing and blackening present. The one second left rib, lacerated left lung pressed to Rt. Side in superior mediastinum, lacerated Rt. lung, liver and fractured both Rt. Ribs.
2. Abrasion 3 cm x 2 cm x over left side chest 1 cm lateral to Inj. No. 1.
3. Contusion 6 cm x 4 cm over Rt. side back lower third in post axillary line."
Dr. S. K. Sharma PW-4, on internal examination had found that the left second rib under injury No. 1 and 10th rib under injury No. 3 were fractured; the memberances under these injuries were lacerated. In the opinion of the Doctor, the death of Sukhbir Singh was caused due to shock and haemorrhage as a result of the abovementioned ante mortem injuries.
11. Janak Singh, PW-3, has corroborated the evidence of S.O. Ram Ratan Singh PW-7 regarding recovery of the country made pistol from near the tube-well upon the pointing out of the accused Naqli, Head Constable Dharampal Singh PW-5 has proved the FIR Ext. Ka-4, FIR Ext. Ka-5, FIR Ext. Ka-6, and G. D. Entries Exts. Ka-7, Ka-8 and Ka-9, he has also stated that a sealed bundle was deposited by S.O. Ram Ratan Singh PW-7, in the Malkhana of the Police Station on 3-6-1983 at 9-05 p.m. Constable Jai Pal Singh PW-6 had taken the dead body of Sukhbir Singh on 2-6-1983 from the place of occurrence in a sealed cover and had produced and identified the same before the Doctor at the time of the post mortem examination.
12. The evidence of these witnesses except the evidence of S.O. Ram Ratan Singh PW-7 and Janak Singh PW-3 regarding the recovery of the country made pistol from the accused Naqli and the evidence of S.O. Ram Ratan Singh PW-7 regarding recovery of the used cartridge from the place of occurrence has not been challenged from the side of the appellants.
13. It is significant to note that the recovered country made pistol and the used cartridge were sent to the Forensic Expert for comparison and report on an application moved by the accused Naqli in this regard. It appears that the report of the Forensic Expert was not in favour of the prosecution and for this reason the report was not proved by the prosecution. No attempt was made to examine the Forensic Expert as a witness in the case. Under the circumstances, it would be reasonable to presume that the report of the Forensic Expert did not support the prosecution theory that the used cartridge, which was said to be found on the scene of occurrence, was fired from the country made pistol, which was alleged to have been recovered on the pointing-out of the accused Naqli.
14. Learned counsel for the appellants has argued that the country made pistol was planted by the investigating agency under the belief that the used cartridge was fired from the same. It was further contended that when the investigating agency could take recourse to such steps, the inference would be that the investigation was not fair. The above contention has force. If S. O. Ram Ratan Singh PW-7 is to be believed, he had not said anything to accused Naqli and accused Naqli himself told him about the country made pistol. It is highly unnatural that an accused on his own and without any persuasion would speak to the Investigating Officer about an unlicensed country made pistol. Even an ordinary criminal is to be credited with average intelligence. Accused Naqli must have known that he was inviting trouble when he was giving information on his own regarding country made pistol. At least he was to be booked for the offence Under Section 25 of the Indian Arms Act. Such a conduct would not have been possible unless some pressure was applied to accused Naqli. All this leads to the inference that the part of investigation relating to the recovery of the country made pistol and the cartridge was not fair. It may also be pointed out here that the investigation was not only unfair, but the Investigating Officers did not perform their duties in a responsible way. When Sukhbir Singh of village Raipur was named in the FIR an effort should have been made to apprehend him also, but it appears that the Investigating Officers did not bother to make any enquiry regarding Sukhbir Singh of village Raipura.
15. The case of the prosecution regarding the main occurrence rests upon the evidence of Bhopal Singh PW-1 and his first cousin Indrapal PW-2 we have already detailed the version of Bhopal Singh PW-1 in the statement of the case and the same need to be repeated here. Indrapal PW-2 has claimed that he had come to the house of his maternal uncle Sukhbir Singh on 1st June, 1983 after finishing his examination in Muzaffarnagar where he was studying. Regarding the main occurrence he has corroborated the evidence of Bhopal Singh PW-1. We have examined the evidence of these two witnesses of fact in the light of the arguments advanced at the Bar and we are of the view that their evidence cannot be termed as reliable for the reasons we shall presently state.
16. Let us first examine the question of motive. Now motive in a Criminal Trial, especially in a murder case, is always relevant. The reason is very simple. A man is not supposed to take the life of another just for the fun of it. There must be reasons which provoke or motivate a man to commit the serious crime of murder. The motive has been defined as the ulterior intention i.e. an intention with which the desired result is achieved. Thus, the motive, being a state of mind, there may be cases when the prosecuting agency may not be able to know as to what was the motive for a particular offence. It has been repeatedly held that the failure of the prosecution to prove motive in a criminal trial is not always fatal, especially when there is eyewitness account of the occurrence and the evidence of the witnesses inspires confidence and can be placed in the category of wholly reliable evidence, but when the prosecution comes out with the motive and the motive is either not proved or is held to be insufficient, the evidence of witnesses of fact has to be scrutinised with great care and caution.
17. Bhopal Singh, PW-1, in his examination-in-chief has stated that his grandfather had lodged a report against the accused Naqli for dismantling the Mend of the fields and the accused Nakli had threatened his grandfather that he would be killed. In his cross-examination Bhopal Singh PW-1 admits that except the dispute relating to the dismantling the Mend there was no dispute between his family and the accused Nakli. He further admits that no application for demarcation of the fields, subsequent to the dismantling of the Mend, was moved by his family members. He also admits that no police personnel visited the village after the report regarding the dismantling of the Mend was lodged by his grandfather. Ext. Ka-5 is the report which was lodged by Jabar Singh against the accused Nakli for dismantling Of the Mend of his fields. This report Ex. Ka-5 has been proved by Constable Dharampal Singh PW-5. The evidence of Constable Dharampal Singh P. W. 5 is admissible in evidence only to the extent that the report Ex. Ka-5 was lodged by Jabar Singh at Police Station Charthawal on 12-5-1983. The FIR Ex. Ka-5 is not substantial piece of evidence. It is well settled that a FIR is only a previous statement of the maker and can be used only either to corroborate or contradict his evidence when he is produced as a witness at the trial. In this case Jabar Singh, the person who lodged this FIR Ex. Ka-5, is alive but he was not produced as a witness at the trial and as such the contents of this FIR Ex. Ka-5 are of not any help to the prosecution.
18. Thus, the only evidence which is admissible against the accused is that a report was lodged by Jabar Singh against the accused Nakli. When there was no other dispute between the two families and when no follow up action was taken by either the police or Jabar Singh after lodging FIR Ex. Ka-5 it was highly unlikely that Nakli would be provoked to the extent that he would commit the murder of deceased Sukhbir Singh. It is significant to note that it was Jabar Singh and not Sukhbir Singh who had lodged the FIR Ex. Ka-6. Thus, the motive, as set up by the prosecution in this case, cannot be said to be sufficient for the crime in question.
19. The most significant aspect of the case is that the oral evidence of these witnesses of fact is not in tune with the medical evidence on the record. If these P.Ws. are to be believed, the deceased Sukhbir Singh was standing when the fatal shot was fired by Nakli from the front. Dr. S. K. Sharma P.W. 4, who conducted the post mortem examination upon the dead body of deceased Sukhbir Singh has categorically stated in his cross-examination that if the shot in question was fired from the front from a distance of about 2 feet, injury No. 1 was not possible upon the dead body of Sukhbir Singh. He further states that injury No. 1 of deceased Sukhbir Singh could not be caused if the shot was fired from front. He goes on to state that injury No. 1 could have been caused if the deceased was lying and the shot was fired from the upper side of the left shoulder. There is absolutely no reason to doubt the evidence of Dr. S. K. Sharma PW-4. He was the own witness of the prosecution. He comes from the State Medical Service and was not connected with either the first informant or the accused. He has deposed about his act which was performed by him in the discharge of his official duties and he was not likely to make false statement in the case. There may fee cases where the evidence of the witnesses of fact may be preferred even if the medical evidence on the record was not supporting the prosecution version of the manner of assault, but this is only done when the evidence of the witnesses of fact can be termed as wholly reliable. In the present case the evidence of the witnesses of fact cannot be termed as wholly reliable and as such the medical evidence of Dr. S. K. Sharma PW-4 leads the inference that these two witnesses of fact were not present when the occurrence had taken place.
20. Another circumstance to note in this case is that there was only one gun shot injury which was caused at about 9 a.m. It appears a case of hit and run. But Bhopal Singh PW-1 has insisted that on being awakened he saw that the accused Naqli, Vijai Pal and Sukhbir had pressed his father upon the cot and that these accused had also grappled with his father. Accused Naqli had even given out that he would teach the deceased Sukhbir Singh a lesson for lodging the report regarding dismantling, of the Mend. There was no occasion for the accused Naqli to enter into this sort of drama if he had in fact come to murder the deceased Sukhbir Singh. Such a conduct was highly unnatural. Further more, the occurrence took place in the last hours of the night and it was still dark. Whosoever has committed the murder of deceased Sukhbir Singh has chosen the dark hours of night as the time of occurrence. It is obvious that the culprit was concious of avoiding the crime in broad day light. Even an ordinary criminal is expected to conceal his face by using some Dhata etc. especially when he commits a crime in the dark hours of night because he is concious of the danger of being recognised by the persons who may happen to be present at the scene of occurrence when the crime is committed.
21. Bhopal Singh P.W. 1 admits that he does not know the name of the father of the accused. But the name of the accused's father find place in the FIR Ex. Ka-4. The contention of the learned counsel for the appellants that the name of accused's father was mentioned in the FIR. Ex. Ka-4 after Bhopal Singh PW-1 had consultation with outsiders, was not without force.
22. Although the case of Bhopal Singh PW-1 in his F.I.R. and in his statement Under Section 161, Cr. P.C. was that his father was sleeping upon a cot and all the three accused had pressed him upon the cot, Bhopal Singh's reversion on his evidence is that on being awakened he saw that his father was grappling with these accused. When cross-examined in this point Bhopal Singh PW-1 stated that on seeing these accused, his father had got up from the cot and it was at this stage that he saw his father grappling with these accused, but this fact was not mentioned by him in the FIR. Thus P.W. 1 cannot be termed as a witness who has been consistent in his deposition.
23. It, was also contended from the side of the appellants that it was highly unlikely that Indra. Singh P W-2 was present on the scene of occurrence. There is force in this argument. It may be recalled that the occurrence took place in the night between 1/2-6-1983 and the FIR was lodged at 4-30 a.m. of S.I. Ram Ratan Singh P.W. 7, the Investigating Officer, is to be believed, he had recorded the statement of Bhopal Singh PW-1 and the statements of witnesses of Panchayatnama and recovery memos on 2-6-83. On his own admission, T.O. recorded the statement of witness Indrapal Singh P.W. 2 on 3-6-1983. Indrapal Singh PW-2 claims that he was present all through on 2-6-1983. It is not his case that he left the scene of occurrence or the village Mauza-Rajputana on 2nd June, 1983. Indrapal Singh PW-2 was one of the eye witnesses and if he was present upon the scene of occurrence on 2-6-1983, when the I.O. visited and inspected the scene of occurrence, his statement under Section 161, Cr. P.C. must have been recorded by the I.O. on the same day. The fact that his statement was not recorded by the I.O. on 2-6-1983 leads to the inference that Indrapal Singh PW-2 was not present when the occurrence had taken place.
It was quite likely that he was called to Mauza Rajputana sometimes on 3rd June, 1983 and his name was mentioned by Bhopal Singh PW1 as a witness in the FIR Ex. Ka-4 because he was under the belief that Indrapal Singh PW-2 would support his version of the occurrence.
24. Learned counsel for the appellants has contended that in all likelihood both, Bhopal Singh PW-1 and Indrapal Singh PW-2 not present when the occurrence is said to have taken place. The reason for the presence of these two witnesses upon the scene of occurrence is said to be that wheat crop was being thrashed there: Both these witnesses have insisted that they were sleeping at the tube-well because wheat was being harvested and was lying in the Khalihan which was near the tube-well. But on a perusal of the" site plan Ex. Ka-20 which was prepared by the I.O. on the very next day shows that no harvested wheat or thrashing machine was shown near the place of occurrence. On the other hand cherry field is shown to the north of the place of occurrence; Cherry field is shown towards the south of place of occurrence; field of Jit Singh is shown to the east of place of occurrence while the fields of Nasib Singh and cherry field of Nasib Singh are shown towards the west of the place of occurrence. Nowhere the harvested wheat or thrashing machine are shown. The absence of the harvested wheat and the thrashing machine in the said plan lands support to the appellants' contention that the pretext for which these two witnesses of fact are said to be sleeping near the place of occurrence was not correct.
25. Under these circumstances we are of the view that the evidence of witnesses of fact is not reliable and, therefore, the appellants are entitled to benefit of doubt.
ORDER The appeal is allowed. The conviction and sentence passed on the appellants are hereby set aside. The appellant Naqli is on bail. His bail bonds are cancelled and the sureties are discharged. The fine of Rs. 200/-, if deposited by Naqli, shall be refunded to him.