JUDGMENT Amar Saran, J.
1. The appellant Phool Chandra was convicted along with two others, namely, Ram Chandra and Arjun, to life imprisonment under Sections 302 read with 34 IPC by an order dated 24.2.1982 passed by the III Addl. Sessions Judge, Fatehpur,. As co-appellants Ram Chandra and Arjun have died during the pendency of the appeal, as per the report of the CJM, Fatehpur, dated 23.12.2004, their appeals were abated by order of this court dated 20.7.2005. Now only the appeal of appellant Phool Chandra survives.
2. The prosecution case was that there was bitterness between the faction of Chamars to which the deceased Raj Lal belonged and the faction of Kurmis to which the appellant and the co-accused belonged. The deceased Raj Lal was a leader of the faction of Charmars, who had constituted a Yuvak Mangal Dal in village Tikauli. In 1974 he had given an application against the party of the Kurmis on the basis of which proceedings under Sections 107/116 Cr.P.C. were initiated against the Kurmis. One month prior to the incident in question, one Mathura Gosai had got a wall erected on the road which was toppled by the deceased. The appellant Phool Chandra and Ram Chandra again erected the wall and abused the deceased but the associates of Yuvak Mangal Dal demolished the wall after two days. This resulted in enmity of the Kurmis with the deceased. One day prior to the incident in question the deceased was sitting at his door when co-accused Ram Chandra Kurmis arrived at the canal road and began abusing the deceased. The deceased protested. The co-accused threatened to kill him. On the night of the incident (25/26.10.1980) at about 11 pm the appellant Phool Chandra, co-accused Arjun, who were armed with lathies and the co-accused Ram Chandra, who was armed with a countrymade pistol, arrived near the house of the deceased who was sleeping under a Gulmohar tree outside. On the exhortation of the appellant and Arjun the co-accused Ram Chandra fired on the chest of the deceased Raj Lal, who succumbed to his injuries at the spot. The informant Deo Raj, and Ramesh another brother of the deceased were sleeping under a chhappar nearby and he woke up on the barking of dogs and witnessed the incident in the light of the lantern which was burning in a pan shop nearby. PW 2, Ghasitey and PW 3 Ram Sajiwan, who had gone to see Khujuha mela (fair) also witnessed the incident as they were returning home at that time. Deo Raj lodged a written report (Ext. Ka-1) of this incident at 2.15 am on 26.10.1980 at PS Jehanabad, which was 5 kms away. The report was registered in the presence of SO, Ranvir Singh Solanki, by HM Vishambar Nath, who prepared the chik FIR (Ext. Ka 2) and made the necessary GD entries (Ext. Ka-3). As the informant had brought the dead body of his brother Raj Lal to the police station, the investigating officer, PW 5, SO Ranvir Singh Solanki, conducted the inquest (Ext. Ka-4) on the dead body by dictating it to SI Vijai Kumar Singh. The photo laash and challan laash and the report for RI, PS Fatehpur, for getting the postmortem done, were also in the handwriting of SI Vijai Kumar Singh, which was proved by PW 5, SO Ranvir Singh Solanki. The dead body was handed over to constable Man Singh and homeguard Ram Narain for taking it for postmortem after it was sealed. He also recorded the statement of Deo Raj, the informant, under Section 161 Cr.P.C. After conducting the other formalities, the investigating officer, PW 5, Ranvir Singh Solanki, reached the place of incident: where he prepared the site-plan (Ext. Ka - 11) on the ponting out of Ramesh Chandra. He also collected an empty 12 bore cartridge from the spot and dictated the memo to SI V.K. Singh. He took the lantern which was said to be burning in a nearby shop in possession and dictated its memo to SI V.K. Singh After that he recorded statement of the witnesses, Gluisiley and karri Sajivani Under Section 161 Cr.P.C. and took the complaints which had earlier been made by the deceased Raj Lal against the accused which the informant handed over to him. After completion of investigation, he submitted the charge-sheet on 16.11.1980 against the 3 accused.
3. PW 6, Dr. J.S. Rai, M.O. conducted the postmortem on the dead body of the deceased, Raj Lal on 29.10.1980 at 1,15 pm at Sadar Hospital, Fatehpur. The body of the deceased was well built and muscular. Rigor mortis was absent from both the limbs. Blister was present. The abdomen was distended. Greenish discolouration was present. Scrotum and penis were swollen. The deceased had the following ante-mortem injuries.
'Gunshot wound of entrance 1" x 1" x cavity deep front of right side of chest. 4" at 1. O'clock position, right nipple. Margin lacerated inverted. Blackening and tattooing present. Direction from front to back slightly down ward. Five big shots and one wadding piece found.
One wadding piece and five big shots were also recovered from the body.
4. The sixth and seventh fight ribs posterior part was fractured. The second right rib anterior part was fractured. The right pleura was lacerated. The right lung was lacerated "and it contained 1 1/2 pounds of blood. The heart was lacerated. The stomech contained 11/2 ounce Semi-digested food. The cause of death was shock and haemorrhage as a result of ante mortem injuries. The postmortem report was numbered Ext. Ka-15. According to the doctor, the deceased might have died on 25/26.10.1980 at about 11 pm. The injuries were! Sufficient in the ordinary course to cause death. In cross-examination he stated that there could have been 4 - 5 hours' margin on either side about the time of death.
5. Apart from PW 5 Ranvir Singh Solanki and PW 6 Dr. J.S. Rai, who conducted the postmortem on the deceased which was described above and PW 4 Babu Lal, the scribe of FIR, the prosecution has examined three eyewitnesses in this case.
6. PW 1 Deo Raj was the informant of this case and brother of the deceased Raj Lal. He reiterated the version given in the FIR that the deceased was heading a Yuvak Mangal Dal in the village which was opposed to by the accused. One month prior to the date of incident, one Mathura Gosai had tried to build a wall on the road in the village .Tikauli which Was Opposed by the Yuvak Mangal. Dal and the deceased had Deceived the help of others and succeeded in getting the wall demolished but the party of the accused again reconstructed the wall after two days which was again demolished by some members of the Yuvak Mangal Dal the deceased was not present on the second occasion when the wall was demolished In 1974 Raj Lal alias Rajola, deceased, had given an application against Arjun and Ram Chandra and against Hari Prasad, the brother of the appellant Phool Chandra for troubling the poor Harijans and proceedings under Sections 107/116 Cr.P.C. were initiated against them. On the night in question at about 11 pm the deceased was sleeping under a Gulmohar tree on a cot. This witness Deo Raj was lying in a Chhappar along with another brother Ramesh at a distance of 6 paces. It was a bright night In the paan gumti a lantern was burning. At that time the three accused arrived. Co-accused Ram Chandra was carrying a country made pistol whereas Phool Chanel and Arjun were carrying lathies. On their arrival the dogs started barking loudly but Raj Lal remained sleeping. However, Rajesh woke up as a result of the barking of dogs. He heard the appellant and Arjun exhorting Ram Chandra to murder Raj Lal On the exhortation Ram Chandra fired at the deceased Raj Lal from a distance of hardly 4 to 8 fingers. Ram Sajivan and Ghasitey, who was returning from Khajuha mela (fair) also raised an alarm on the cries of this witness. After that the accused ran away. Thereafter he went near the deceased and dictated the report to Babu Lal. He proceeded with the report and the dead body to the police station. The dari (carpet) on which the deceased was lying was taken into possession by the appellants. He was interrogated by the police.
7. PW 2 Ghasitey is the second eye-witness. He also mentions the dispute of Raj Lal and his organization the Yuvak Mangal Dal with the accused. On the fateful night at about 11 pm he was returning from Khajuha after seeing Ram Lila accompanied by Ram Sajivan. When they reached near the canal culvert, they heard the cries of Deo Raj and Ramesh. On the cries he reached the spot where Raj Lal was sleeping and stood 12 paces from there. He saw that the accused Arjun and Phool were carrying lathies and Ram Chandra was armed with a countrymade pistol. He heard Phool Chandra and Arjun exhorting Ram Chandra to kill the enemy. The accused Ram Chandra immediately fired on Raj Lal, who was killed at the spot. He raised an alarm but did not pursue the accused out of fear. However, this witness was declared hostile after he mentioned in the cross examination that the report was lodged at 8 or 9 am. He also admitted that that night Mauji Lal, the owner of the paan shop, Was not present in the gumti. He further stated that one day prior to the date of incident he had also gone to the mela (fair). The fair was held in the month of Kuwar. He had gone on the second day. He returned by a truck. Ram Lila was held on the third day ("Teej") which started at 4 pm and ended at 7 pm. In reply to a question whether Ram Lila started in the evening and ended the next morning he remained silent for several minutes. To a specific suggestion that he had given a completely false statement, he simply remained silent and failed to give any reply to the suggestion put to him.
8. PW 3 Ram Sajivan said that there was a dispute between the deceased Raj Lal and the accused over a wall. He also claimed to have returned with Ghasitey after seeing the fair at Khajuha. When they reached near the culvert he heard barking of dogs. At some distance they saw the accused going in the direction of the village. They reached the door of Raj Lal. Then Deo Raj and Ramesh raised an alarm. They then saw Ram Chandra, armed with a countrymade pistol and the appellant Phool Chandra and Arjun carrying lathies. He saw Phool Chandra and Arjun exhorting Ram Chandra to fire on Raj Lal whereupon Ram Chandra fired which struck Raj Lal on his chest. The night of the incident was bright and a lantern was burning brightly at the paan shop. On further alarm being raised and the villagers gathering, the accused ran away to the north. He admits to being a relation of Deo Raj, the informant in his cross-examination although he denied being his brother-in-law.
9. The appellant denied the prosecution case in his statement under Section 313 Cr.P.C. and claimed to have been falsely implicated on account of enmity. He did not lead any evidence in defence.
10. We have heard Sri V.B. Srivastava for the appellant and the learned AGA for the State.
11. Learned counsel for the appellant contended that this was a case of single shot in the middle of night and the accused had fled away immediately after the incident and there was no likelihood of the witnesses having witnessed the incident. As only a role of exhortation has been assigned to the appellant, it was argued that this role was artificially assigned to tile appellants and was a concoction just to falsely involve the appellant and Arjun with the offence and only to create a circumstance for the witnesses to be present at the spot when the accused Ram Chandra is said to have fired at the deceased. The witnesses Ghasitey and Ram Sajivan are chance witnesses and the witness Ghasitey has even been declared hostile by the prosecution. The presence of the burning lantern is doubtful and there is some contradiction about what the clothes which were worn by the deceased, at the time of firing which renders the prosecution case unreliable.
12. On a careful examination of the evidence we find that the deceased had been fired upon from a very close distance as he has received gunshot wound of entrance 1" x 1" in size x cavity deep on the right side of chest in which blackening and tattooing was present and five big shots and one wadding piece were recovered. If the deceased was sleeping outside in the night and the assailant had ample opportunity to fire at him, there indeed would be no reason for the other accused to exhort the accused who had fired a single shot on the deceased. Under these circumstances it appears likely that the story of dogs barking and the witnesses arriving and thereafter exhortation being given by the appellant and the accused Arjun before the shot was fired by the accused Ram Chandra have just been added to give colour to the case to involve the appellant and the accused Arjun in this crime with the aid to Section 34 IPC, and to provide an opportunity to the witnesses to be present at the time of incident. Also, the story that after the witnesses Deo Raj, Ghasitey and Ram Sajiwan, PWs 1, 2 and 3, respectively, heard the barking of dogs and reached the spot, yet the accused persons remained waiting there and only after their arrival the appellant and Arjun exhorted, whereupon Ram Chandra fired with a countrymade pistol on the deceased, is intrinsically improbable. We are also of the view that the exhortation in unison by the appellant and the accused Arjun but co-accused Ram Chandra to fire on the deceased is a weak kind of evidence and we respectfully the observations in the case Pandurang v. State of Hyderabad, AIR 1955 SC 216 that it would be unsafe to arrive at a finding of common intention on the basis of such evidence, that all exhorted in unison as "in a Greek chorus," without particularising and specifying the words or role attributed to each accused, and assigning a general role to all accused is the course adopted by witnesses who are mentally lazy, and unwilling to differntiate the distinct part or words used by each accused.
13. We also find that the source of light to be unreliable in this case. The source of light has been described to be a lantern which was hanging on a peg in a nearby shop. As the owner of the paan shop one Mauji Lal was said to be absent from the village on the date of incident, according to PW 1 Deo Raj and PW 2 Ghasitey Lal, there was no reason for the lantern to be burning at that time. Moreover, the deceased, the informant and others were sleeping at the time when the incident took place. What was the need for the lantern to be burning at the paan shop at that hour. The distance which the light of a lantern carries is also very limited.
14. The witnesses PW 1 Deo Raj, who was brother of the deceased, and PW 3 Ram Sajivan, who admits to be a relation of the informant PW 1 Deo Raj, but denies being his brother-in-law, are also partisan. It is true that in a case where the evidence is intrinsically reliable, the mere partisanship of witness can do little damage to the prosecution case, because of the difficulty of obtaining independent persons who are willing to testify in Court in our faction-ridden villages. But where the evidence of the witnesses is not of such high order as has been shown above, the need for independent witness to corroborate the prosecution version assumes considerable importance. The only non-related witness examined by the prosecution to support its case is Ghasitey, PW 2, This Ghasitey we have seen is a faltering witness who has only half-heartedly supported the case of the prosecution as he was declared hostile when he stated that the FIR was lodged at 7 or 8 am on 26.10.1980 when the prosecution claimed the FIR to have been lodged at 2.15 am. Moreover, this witness is a reluctant and unwilling witness because in response to several questions put to him in cross-examination he becomes completely silent and adverse observations have been made on this demeanour of the witness by the learned trial judge. Even to a pointed suggestion by the defence that he was not deposing honestly, he does not defend himself but simply remains silent.
15. We also find that PW 2 and PW 3, Ram Chandra and Ghasitey, are clearly chance witnesses and the only reason for their presence at the spot is there return from the village Khajuha after witnessing Ram Lila there. There reaching the spot at the nick of time is too coincidental. PW 2 Ghasitey in his cross-examination states that Ram Lila commences at 4 pm and ends at 7 pm and thereafter he returned by a truck in which case there would be little reason for this witness to be present at the spot at 11 pm, the alleged time of incident, because Ghajuha where the Ram Lila was allegedly held was 10 kms from the place of incident. Rather on a pointed suggestion that Ram Lila starts at the evening and continues till morning he remained silent. Moreover, PW 2 Ghasitey and PW 3 Ram Sajivan, both state that the mela (fair) is held on the third day of the bright night (Ujala Paksha) of the month of Kuwar i.e. the third of Shukul Paksha of Kuwar. Teeja of Shukul Paksha was on 12. 10.1980 and not oil 25.10.1980 and there was no question of mela being held on 25.10.1980 and, consequently, the return of PWs 2 and 3 from the mela on 25.10.1980 at 1.1 pm is rendered doubtful. We think the learned sessions judge erred in not attaching importance to this circumstances by simply stating that the villagers do not have idea of time. Both the witnesses have clearly stated that mela is held on the third day of Shukla Paksha of the month of Kunwar. The villagers could at least be expected to know in terms of their own calendar when their festivals are held.
16. In view of the aforesaid circumstances and contentions raised by the learned counsel for the appellant, we do not think that the evidence adduced in this case is sufficient for sustaining the conviction of the appellant and the prosecution has failed to establish the case against the appellant beyond reasonable doubt. The result is that the appeal is allowed and the appellant is acquitted. He is on bail. He need not surrender to his bail bonds. His bonds arc cancelled and sureties are discharged.