JUDGMENT K.N. Ojha, J.
1. Instant appeal has been preferred against the judgment and order of conviction and sentence dated 23.2.1981 passed by IV Additional Sessions Judge, Agra, in Sessions Trial No. 468 of 1979, by which appellants Pooran, Maharaj Singh, Munna and Rakesh were convicted under Sections 147 and 302 read with 149 I.P.C. and were sentenced to undergo R.I. of one year and life imprisonment, respectively. It was directed by the trial court that both the sentences would run concurrently.
2. It was reported by the Chief Judicial Magistrate, Agra that the appellant no. 3 Munna son of Pooran had died, hence the appeal filed by him stood abated as per order dated 8.1.2004 passed by this Court.
3. During the pendency of the appeal, the appellant no. 4 Rakesh absconded and he could not be arrested. Sri Ghanshyam Joshi, learned counsel for the appellants Pooran and Maharaj Singh, agreed to advance arguments for appellant Rakesh also. We have heard him and Sri A. K. Dwivedi, learned AGA from the side of the State.
4. The occurrence is said to have taken place on 9.4.1979 after 8.00 P.M. and F.I.R. was lodged on 10.4.1979 at 7.30 A.M. The place of occurrence was Arhar field of one Hariom behind Nardanand Ashram in Mohalla Devnagar of town Firozabad, police station Firozabad (South), then comprised in district Agra. The distance of the police station from the place of occurrence was about 1 1/2Kms. FIR was lodged against three accused Pooran, Maharaj Singh and Munna only. The appellant Rakesh came to light later on. He was put up for identification and he was also booked to face trial.
5. According to prosecution, Tej Bahadur Mishra PW 3 is resident of House no. 163, Street No. 3, Mohalla Mahavir Nagar, town Firozabad, district Agra (now district Firozabad). His son Vippi alias Vivekanand aged about six years had gone somewhere on 9.4.1979 at 7.30 P.M. There was fair of Mahavir Jayanti and Hanuman Jayanti on that day. Several children and ladies of the Mohalla had gone to the fair and Vippi was also insisting in the day to go to the fair. Hence it was suspected by Tej Bahadur Mishra and other family members that Vippi might to have gone to the fair with the ladies and children of the Mohalla. When the ladies and children of the locality returned back from the fair without Vippi, Tej Bahadur and his family members were disturbed and started search for him. No trace of Vipi was found in the night. In the following morning of 10.4.1979 Nathu Ram, a person of the same locality, told the informant that he had seen Vippi along with appellants Maharaj Singh and Munna going towards Nardanand Ashram on 9.4.1979 at about 7.30 P.M. On further search of Vippi in that side Santosh Kumar PW 5, Ratan Kumar and Tara Shanker, PW 9 told him that they had seen Vippi going towards Arhar field behind Nardanand Ashram along with Pooran, Munna, Maharaj Singh and two other unknown persons at about 8.00 P.M. on 9.4.1979. Bhure, PW 6 of the same locality went to Arhar field to answer the call of nature in the following morning at 6.00 A.M. He found the dead body of Vippi in the Arhar field. On getting this information Tej Bahadur and other persons of his Mohalla went to that Arhar field and identified the dead body of Vippy. It was the prosecution case that Munna, Pooran and Maharaj Singh nursed grudge against the complainant because a quarrel had taken place on 7.4.1979 between Mahesh son of Pooran with some other persons. Pooran had suspicion that it was at the instigation of the informant. Hence, Pooran had to shift his residence elsewhere and while doing so, on 8.4.1979 he had threatened to take revenge.
6. After the FIR was lodged against Pooran, Maharaj Singh and Murina, son of Pooran and two unknown persons, investigation started at the hands of I.O. C. S. Rathore, PW 12. He reached the spot, prepared inquest report and performed other activities related to investigation including the recording of statements of the informant and other witnesses. Dead body of Vippi @ Vivekanand was sent to mortuary. PW 2 Dr. B. C. Tiwari conducted the postmortem examination on 10.4.1979 at 10.00 A.M. over the dead body of Vippi and found the following ante-mortem injuries:
I. Multiple contusions and abrasions in area 14 cm x 8 cm on the front and lateral aspect of neck.
8. The I. O. arrested the accused Pooran, Munna and Maharaj Singh from near Hazari Lal Degree College, Firozabad, on 10.4.1979 and submitted charge sheet against Pooran, Munna and Maharaj Singh on 15.4.1979. The accused Rakesh was absconding. He was arrested on 22.4.1979 from near Mahatma Gandhi Balika Degree College, Firozabad and was made Baparda. His identification was done in jail. Thereafter, charge sheet was submitted against him also. After the case was committed to the Court of Sessions, accused Pooran, Maharaj Singh, Munna and Rakesh were charged under Section 147 and 302 read with 149 I.P.C.
9. Apart from medical and formal evidence, the prosecution examined PW 3 complainant Tej Bahadur Mishra, who lodged the FIR, PW 4 Nathu Ram son of Lala Ram, PW 5 Santosh Kumar, PW 6 Bhuri Singh, PW 7 Nathu Ram son of Harpal, PW 8 A. P. Srivastava, Special Executive Magistrate, Agra, who conducted identification of Rakesh and PW 9 Tara Shanker.
10. The defence was of denial.
11. After appreciating the evidence, the learned Additional Sessions Judge held that the charges under Sections 147 and 302 read with 149 were proved against the appellants. Hence the impugned order of conviction and sentence was passed.
12. The evidence against the accused appellant Rakesh was of identification. He was not named in the FIR. It was only written in the FIR that Pooran, Maharaj Singh and Munna along with two other persons were seen on 9.4.1979 at about 7.30 P.M. going with Vippi towards Arhar field behind Nardanand Ashram. After Rakesh was arrested by the police on 22.4.1979, he was put up for identification in jail on 7.6.1979. Thus, the identification parade was conducted 59 days after the occurrence which was inordinately delayed. Besides, the three witnesses, who are said to have identified Rakesh in jail were Santosh Kumar, Ratan Singh and Tara Shanker, who were residents of Mohalla Mahabir Nagar, town Firozabad. Out of them, Santosh Kumar and Tara Shanker were produced as witnesses. The accused Rakesh was also resident of the same Mohalla Mahabir Nagar, Firozabad. PW 12 police Inspector C. S. Rathore, who investigated the case stated that Rakesh accused was resident of the same Mohalla Mahabir Nagar. He used to live in lane no. 4 Mahabir Nagar, Firozabad. He admitted that the house of the accused Rakesh was at a distance of 8 or 10 houses from the house of the complainant Tej Bahadur. When the witnesses, who are said to have identified Rakesh in jail were also residents of the same Mohalla Mahabir Nagar, the identification lost its significance. It is presumed that the witnesses being of the same locality where the accused Rakesh was living, must have seen him prior to the occurrence and if he would have been seen at the time of the occurrence, he must have been named in the FIR, which was lodged by the father of the victim on the basis of the information given by the witnesses to him. This is in addition to the fact that identification parade was conducted with undue delay. The witnesses were knowing Rakesh prior to the occurrence. Rakeh had no motive to kill Vippi as there is no evidence to show any enmity between Rakesh and the family of the victim. Thus the evidence adduced against the accused Rakesh is not sufficient to prove his involvement in committing the murder of Vippi.
13. Now there remain only two accused, namely, Pooran and Maharaj Singh, who are real brothers, It is not denied that they were living in Mohalla Mahabir Nagar. Some dispute took place between Pooran accused and the complainant Tej Bahadur and circumstances took such turn that Pooran left the locality and shifted his residence elsewhere on 9.4.1979. This fact has come in the evidence of PW 3 Tej Bahadur Mishra. PW 3 Tej Bahadur Mishra, father of the deceased, also stated that earlier his relations with Pooran were cordial but their relations became strained since 6.4.1979 because Pooran made complaint to him that his brother-in-law (sala) used to cast covetous eye on his daughter. Therefore, exchange of hot talks took place and Pooran threatened Tej Bahadur of dire consequences. A new development further took place because Mahesh son of Pooran accused quarreled with some boys of the same locality on 7.4.1979 and 'marpeet' took place. Pooran had suspicion that there was hand of the complainant in the occurrence. As a consequence of all this, Pooran vacated the house on 8.4.1979 but he threatened that he would destroy the whol