JUDGMENT Amar Saran, J.
1. Three appellants Randhir, Ram Babu and Chidda have preferred this criminal appeal against the judgement and order dated 20.11.1980 passed by the VI Additional Sessions Judge, Agra convicting and sentencing the appellants to undergo imprisonment for life under Sections 302/149 IPC, five years rigorous imprisonment under Sections 307/149 IPC and two years rigorous imprisonment under Section 147 IPC. However, all the sentences were to run concurrently.
2. As Randhir and Ram Babu have died, hence the appeal against them has abated by, order of this Court dated 4.2.2004. Two other persons Lakhpat and Munshi who were also accused in the initial report had been killed in a police encounter, and did not face trial in this case. Hence only the appeal of Chidda survives.
3. Heard Shri A.N. Mishra, learned counsel for the appellant and Shri S.S. Yadav, learned Additional Government Advocate representing the State.
4. In brief, the case of the prosecution was that around the midnight of 4/5.12.1979, the appellant Chidda, Randhir, Ram Babu Lakhpat, Munshi and four unknown miscreants arrived at the house of Moti Lal and shouted for Moti Lal to come out as Daroga Ji was standing outside. On hearing the cries, the informant Moti Lal rushed to the roof of his house and flashed his torch recognising the accused persons named above and raised a cry. After that he jumped from his roof far gathering the villagers. After his departure, the miscreants cut open the door with an axe and entered the house. When his father Gulzari tried to rise up from the cot, on which he was lying, the miscreants fired at him, causing his death. A lantern was burning inside the house and after entering the house., the miscreants again fired resulting in injuries to the informant's wife Smt Shanti. Inside the house, Lakhpat cried out that Moti had run away on that day, but how long would he escape and that they would kill both the brothers, i.e. Motilal and Sarnam. Old enmity of the informant with Lakhpat and Randhir is said to be the motive for the incident because in an earlier case conviction of 4-5 years had been secured of Randhir and his brother Moooga. Randhir and Hoonga had absconded and they suspected that the informant and his brother Sarnam used to give information to the police about their whereabouts. As a result of the hue and cry having been raised, Rameshwar, Meva Ram and other persons of the village gathered with lathies and axes. The accused Lakhpat was armed with a gun, whereas the other accused were armed with lathies, axes and country, made pistols. The report of this case was lodged against five named accused persons and four unknown accused persons by the informant at 8.30 A.M on 5.12.1979 (Ext Ka. 15) at police station Jaitpur, district Agra, which was 12 miles from the informant village Dassu Ka Pura.
5. The report was lodged in the presence of P.W. 5. SI Sarwan Singh Yadav, S.O. who immediately took up the investigation of this case. He went to the village along with the informant accompanied by SI Brij Mohan Udenia, who conducted inquest on the body of Gulzari (Ext. Ka 8) and whose writing was proved by SI Sarwan Singh Yadav. SI Sarwan Singh Yadav also recorded the statements of Moti Lal, Ram Shanker, Meghnath, Smt Shanti, Smt. Kalawati and other witnesses. After investigating the spot, he prepared site plan, sealed the dead body and thereafter handed over the sealed dead body to Constables Rati Ram and Harpal Singh for taking it for post mortem. He also got prepared photo Lash, (Ext. Ka 10), Challan Lash (Ext. Ka 11), letter for R.I. (Ext. Ka 12) through SI Brij Mohan Udenia. From the spot, the blood stained clothes of the deceased were taken into possession by SI Brij Mohan Udenia, which were sealed vide Ext. Ka 13. SI Sarwan Singh Yadav, P.W. 5, took some pellets from the spot and prepared the recovery memo (Ext. Ka 4). He also examined the torch, Dibia and lantern of Moti and the memo in respect thereof (Ext. Ka 3 ) was prepared. He also took a piece of the door of the house of Moti in possession and prepared its memo as Ext. Ka 5. He also examined inquest witnesses Ram Shanker etc.
6. P.W. 3 Dr. K.N. Sharma, who was posted as Medical Officer, PHC, BAH, district Agra, conducted medical examination of the injuries of Smt Shanti, wife of Moti Lal on 6.12.1979 at 11.00 A.M. He found the following injuries on her person:
"1. Abrasion 9/10 cm x 3/10 cm on left forehead, oblique, crest present (1-1/2 cm above left eyebrow).
2. Abrasion 2 cm x 3/10 cm on left forehead, oblique, crest present (1-1/2 cm away from: injury No. 1)
3. Abrasion 1/2 cm x 1/4 cm on right orbital region, oblique, crest present (1/2 cm below the outer angle of right eye).
4. Abrasion 1/2 cm x 2/10 cm on right lower eyelid, oblique, crest present (outer half)
5. Abrasion 4/10 cm. x 2/10 cm on the right face, oblique, crest present (1 cm below injury No. 3).
7. On 6.12.1979 at 11.20 A.M. Dr. K.N. Sharma, P.W. 3 medically examined Guddi, aged about one month, daughter of Moti Lal and Shanti Devi, and found the following injury on her person:
"Abrasion 1/4 cm x 1/20 cm on left ear, upper 1/2 cm over raised border, crest present, oblique."
8. Post mortem was conducted On the body of deceased Gulzari by Dr. M.K. Rawat, P.W. 7 on 612,1979 at 3.00 P.M. He found the following ante mortem injuries on the body of the deceased:
" 1. Gun Shot would of entry with inverted margins l-1/2" x 1-1/4" x chest cavity deep left side front of chest 2" below the right nipple at 5 O"clock position.
2. Abrasion 3/4 x 3/4" on left Side front of chest."
9. On internal examination, Dr. Rawat found that 9th and 10th ribs of the deceased fractured. Sternum in middle on right side was fractured. Right pleura was lacerated. Lung was lacerated under injury No. 1. In the opinion of the doctor, the deceased died due to syncope as a result of shock and haemorrhage on account of the aforesaid injury No. 1. After completion of investigation P.W. 5, SI Sarwan Singh Yadav submitted charge sheet on 11.1.1980 (Ext Ka 14) against Randhir and Chidda.
10. Seven witnesses have been examined in this case. The steps taken by Investigating officer, P.W. 5, SI Sarwan Singh Yadav, and the injury reports of Smt. Shanti and Km. Guddi which were examined by P.W. 3 Dr. K.N. Sharma and the post mortem examination report prepared by P.W. 7 Dr. M.K. Rawat, have been described hereinabove.
11. P.W. 1, Moti Lal, the informant, P.W. 2, Smt. Shanti, wife of Moti Lal and P.W. 4 Smt. Kalawati, wife of Moti Lal's brother Sarnam have been examined as eye witnesses in this case. Head Constable Ramesh Chandra Pandey, P.W. 6 proved the chik FIR.
12. The defence of the appellant Chidda was of denial. He claimed to have been falsely implicated because he was the son of maternal uncle of co-accused Randhir and he used to visit Randhir's village on some occasions, hence in view of the enmity of Randhir with the informant Moti Lal, he was falsely roped in the present case.
13. P.W. 1, Moti Lal, the informant, reiterated the versions mentioned in the FIR. In his deposition dated 17.9.1980, he claimed that there was enmity of Moti Lal and his father Gulzari with co-accused Randhir and his brother Moonga for the past 16 years and that 18. years prior to that date, there was a criminal case between his father and his brother Sarnam and Moonga Ram and Randhir. In that criminal case Gulzari had received injuries and Moonga and Randhir faced trial. His father Gulzari and Sarnam gave 'evidence against Moonga and Randhir, in that case which resulted in their conviction for 4-5 years. After that 107/117 Cr.P.C. proceedings also took place between the side of Moti Lal and Randhir and Moonga about 10-12 years earlier. The appellant Chidda was the son of maternal uncle of Moti Lal. The other accused named above are also related to Moti Lal. Two to four days prior to this incident, co-accused Lakhpat after being released from jail come to the village where he had threatened the witnesses that he would kill 2 to 4 persons of Moti Lal's party. Moti Lal first stated that he was a police informer, but later he corrected himself stating that accused Randhir, Moonga and Lakhpat suspected that he was a police informer, whereas he was not an informer. On the fateful night at about 12.00 midnight, when he was sleeping inside his house near his wife and children, whilst his father Gulzari was sleeping in the Chapper, he heard cries that Daroga Ji was present and that the door should be opened. Thereafter he climbed up the roof and on flashing his torch, he saw that there were eight or nine miscreants of whom, he recognized five miscreants Randhir, Babu Ram, Chidda, Lakhpat and Munshi. Lakhpat was armed with a gun, whilst the other accused were armed with axes, spears and country made pistols. Then raising cries he jumped from his roof shouting that miscreants had come to his house. On his cries Rameshwar, Meghnath and others arrived there. Rameshwar kept flashing his torch and reached at the Maraiya, which was 2.0 paces from the informant's house. There they saw that Lakhpat and other miscreants fired at his father with a gun and country made pistols. After that the miscreants cut the main door with an axe and entered the house. They again fired; which caused pellets injuries to his wife Smt. Shanti and no one else. On a further clarification by the State Counsel, he Admitted that some pellets struck his daughter Guddi, who was 1-2 months old. The miscreants also shouted that this time Moti had run away, but they would kill him in future. After the miscreants ran away, he went to the place where . his. father was lying and found him dead. A spent cartridge was also lying near his father. According to P.W. 1 Moti Lal, the appellant Chidda was armed with axe, whereas Randhir was armed with a country made pistol and Babu Ram was armed with spears. After that he went to the police station and lodged the FIR as mentioned above.
14. P.W. 2 Smt. Shanti, who was an injured witness in this case, stated that Guizari was. her father-in-law, who had been murdered 10 months prior to her evidence in court. The incident took place at about 12 midnight. At that time she was on the Kotha of the house. She heard the cries asking Moti Lal to open the door as Daroga and Deewan were standing outside. Thereafter Moti Lal left the Kotha and went to the roof. Moti was having a torch in his hand. She saw that there were five miscreants, whom she know from before and that they were Lakhpat, Munshi, Chidda, Ram Babu and Randhir. She identified the accused by the light of the Dibia, which was burning inside. Miscreants were looking for her husband Moti and crying that on this occasion he had escaped, but in future he would be killed. The miscreants fired with their country made pistols, which struck her as well as her daughter Guddi. Her father-in-law was killed by firing After giving her a beating, the miscreants ran away. Her sister-in-law Kalawati and Devar Sarnam were also present.
15. P.W. 4, Smt. Kalawati deposed that Gulzari was her father-in-law and informant Moti Lal was her Jeth and Smt. Shanti was her Jethani. On the fateful night she was sleeping in her Kotha, at about 8-9 P.M. However, On clarification sought by the State Counsel, she admitted that 2 or 3 hours of night were already over when the miscreants arrived. They created a noise outside her house and she heard the cries for Moti to open the door. After that she went with a lantern to her father-in-law and opened the door. She recognized the miscreants. They were 8 or 9 persons, out of Whom five persons were Randhir, Chidda, Lakhpat, Munshi and Ram Babu. Lakhpat was armed with a gun, Randhir and Munshi were having country made pistols and Ram Babu and Chidda were armed with axes. Lakhpat fired at her father-in-law, who was sleeping at the Chhappar, causing his death. After that miscreants entered the house looking for Mod and they were saying how long would Moti escape. After that the miscreants went to Shanti's room and cut open the door there and resorted to firing causing injuries to Shanti. Moti ran away from the house out of fear.
16. A suggestion was made to P.W. 1 on behalf of the accused that his father Gulzari had an affair with his first wife, who had committed suicide and subsequently he was carrying on with his present wife Shanti Devi and that Moti had actually murdered his father and given a beating to his wife and in that beating his daughter Guddi had even received injuries. The suggestion on behalf of the appellant seems too far fetched and completely unbelievable and the learned Sessions Judge has rightly given no credence to this version by observing that no son after murdering his father would lodge the report in the manner that he had done in this case. Intrinsically, also it is not possible to accept that a 65 year . old man would be having an affair with his son's wife and the son had committed his murder in retaliation, and blamed the act, on some miscreants. Also this theory is demolished on the ground that if indeed his son had murdered his father and both were the residents of the same house, why would the door of the house have been cut, which has been exhibited in this case, which clearly shows that: the miscreants were outsiders, who had come to the house.
17. There is substance, however, in the other contention of the learned counsel for the appellant that evidence in this case is not reliable enough to fix the identity of the appellant as an accused in this case, and that it can not be stated with any degree of confidence that the appellant Chidda also participated in this incident. In this connection, it has been rightly argued by the learned counsel for the appellant that for a solitary injury that was received by the deceased, the prosecution has sought to implicate at least 8 or 9 persons. There is also no specification as to the role assigned to the different accused and in the FIR, it was only mentioned that Lakhpat was carrying a gun, whereas the other accused were variously armed with axes, lathies and country made pistols and even the weapon that was assigned to. the appellant was not specified. Subsequently, also in the evidence no specific role has been assigned to the appellant and even the weapon that has been assigned to the appellant. Chidda is an axe according to P.W, 1 Moti Lal and P.W. 4 Smt. Kalawati, whereas according to P.W. 2 Smt. Shanti a country made pistol has been assigned to the appellant.
18. The next contention of the learned counsel for the appellant was that there is grave doubt whether there was any source of light in this case and in any case the source of Light has been changing from stage to stage. In the FIR; it was mentioned that informant P.W. 1 identified the assailant by flashing his torch from the roof and that a lantern was burning inside the house.
19. It is rightly argued by the learned counsel for the appellant that if the informant P.W. 1 flashed his torch on the assailants and he was the main target and the assailants were searching him, he would not have been spared and the assailants would have fired at him specially when he was not at any distance and was raising cries at . that time. Furthermore, in his examination-in-chief, P.W. 1 stated that there was no source of light inside the house, but a lantern was (burning at the Chapper where the deceased was sleeping and it was with the source of that light that the miscreants were identified. Later in his cross examination, he changed his version and stated that the lantern was burning inside the house and even a Dibia was burning inside the house and tried to clarify that what he gave in his examination in chief by saying that there was no lantern in the house, he meant that there was no light in his room.
20. Like P.W. 1, Moti Lal, P.W. 2, Shanti claimed to have recognize the miscreants from the light of Dibbi, which was burning in her house. Whereas, P.W. 4 Smt. Kalawati came out with another version that she carried a lantern outside from her room where her father in law was lying and; identified the accused by that lantern light.
21. We, therefore, find that in view of the inconsistent evidence from stage to stage about the source of light, No. reliance can be placed that there was adequate light for identifying the accused.
22. Apart from the doubtfulness about the source of light as pointed out above, Smt. Shanti Devi would have run for shelter as soon as the attack was launched by the assailants at her house. Also the injuries received by Smt. Shanti Devi were only simply abrasions, which were caused due to friction against some hard object. There is no affirmative evidence indicating that the injuries received by her were due to any fire arm. Also even if these abrasions could have been caused due to fire arm, it is quite likely that the fire arm was discharged in the darkness from some distance causing those simple abrasions and Smt. Shanti Devi, is unlikely to have been in a position to identify the assailants.
23. Admittedly, there was enmity between the parties as 107/117 Cr.P.C. proceedings were initiated between the parties 18 years prior to the incident and Gulzari and Sarnam succeeded in getting co-accused Randhir and Moonga convicted and sentenced for 4-5 years for an incident which took place 10-12 years ago. Also as P.W. 1, who appears to be a police informer, could have many enemies against whom he may have been giving information to. the police and any of whom may have had a hand in wanting to eliminate him. Also being a police informer he was not likely to have been at all hesitant in including as many as accused persons against him as he chose if he lodged the report and it was in that background, he had named the five accused persons accompanied by four unknown persons for the single fire arm injury, which was received by his father. So far as the appellant Chidda is concerned, he was resident of another village Arawali, which lies in district Etawah and there could be substance in the argument of (earned counsel for the appellant that the appellant had only been implicated because he used to visit the village where his maternal cousin brother Randhir resided and it cannot be ruled out that he may have been falsely implicated because of the enmity of Moti Lal with Randhir and others.
24. In view of the aforesaid facts and circumstances, the prosecution has not succeeded in proving the case against the appellant beyond reasonable doubt and the appellant is liable to be acquitted of all the charges leveled against him. He is on bail. He need not surrender to his bail bonds. The sureties are discharged.
25. The appeal is allowed.