JUDGMENT Imtiyaz Murtaza, J.
1. This appeal has been filed against the judgment and order dated 28.9.1996 passed by the Sessions Judge, Azamgarh in S.T. No. 427/1995 whereby the appellants have been convicted under Section 302 I.P.C. and sentenced to undergo imprisonment for life. The prosecution case in brief is that about 3-4 months prior to the occurrence wife of informant Ram Chandra was sleeping in his kachcha house and his parents were sleeping in another house, at that time informant was not in his village. In the night Ratan and Firtoo entered into his house. His father woke up and challenged them. Both of them went away. But his father could not speak out of fear. Thereafter his father sent his wife to her parents house. Ratan and Firtoo were annoyed with his father. The informant returned to his village in the night of 16/17.6.95. His father was sleeping outside the house. His mother was sleeping inside the Osara. He and his younger brother were sleeping on the roof. At about 11.15 p.m. he woke up due to bursting of a bomb. He saw from the roof by flashing his torch that Ratan and Firtoo were running away from there. Several persons collected who witnessed the occurrence. The informant did not disclose the names of assailants due to fear nor chased them. His mother had also seen them.
2. The written report was lodged by the informant Ram Chandra at Police Station Rani Ki Sarai, District Azamgarh on 17.6.95 at 1.30 a.m. After registration of the case Sub-inspector M.D. Pandey started the investigation. Me prepared inquest report (Ex.Ka. 12), letter to C.M.O., Photo lash, Challan lash and letter to R.I. were prepared (Ex.Ka. 13 to Ex.Ka. 16). Me also recorded the statement of Head Constable Vibhuti Prasad. He prepared the site plan (Ext.Ka. 17). He collected plain and blood stained earth from the spot. He also collected the residue of bomb and blood stained rope (Ex.Ka. 18). He also collected the torch of the informant (Ex.Ka. 18-A).
3. Thereafter the investigation was conducted by Amar Jeet Singh, Sub-inspector. He arrested the accused persons and submitted the charge sheet (Ext.Ka. 5).
4. Post mortem was conducted by Dr. R.S. Singh on 17.6.95 at 3.15 p.m. He noted the following ante mortem injuries:
1. Lacerated wound 24 cm x 20 cm x cranial cavity deep with roof of cranial cavity missing alongwith brain material, remaining part of right temporal and part of parietal bone fractured. Margins lacerated, blackened and yellowish gun powder present.
2. Superficial scorching over inner aspect of left upper limb with blackening of skin alongwith neck on left side.
In the stomach semi-digested food 300 gm and in small intestine and large intestine 400 gm pasty and faecal matter were found. In his opinion the death was caused due to haemorrhage and shock as a result of anti mortem injuries.
5. After the conclusion of the investigation charge sheet was submitted and the case was committed to the Court of Session.
6. The prosecution in order to prove its case produced eight witnesses in all.
7. P.W.1 is Ram Chandar, informant of the case. He stated that he alongwith his younger brother was sleeping on the roof of his house and his father was sleeping in front of the house and his mother was sleeping in Verandah. His grand mother was sleeping in front of the kachcha house. At about 11.15 p.m. a bomb exploded. He saw from the roof that Ratan and Firtoo were running away towards eastern side. He flashed his torch and saw them. Several persons of the village had collected there. His brother, mother and grand mother also witnessed the occurrence. He scribed the report from a boy of his village. The F.I.R. is Ex.Ka. 8. Recovery memo of torch was prepared by the investigating officer (Ex.Ka. 1). He stated that he heard the sound of only one bomb and there was smoke. He had seen the accused persons 6-7 steps away from the place of occurrence. After the explosion of the bomb he came down within 2-3 minutes. He had gone to lodge the report alongwith 10-12 persons. They stopped at the house of Pradhan and he also accompanied them to the police station. The name of the Pradhan is Dukhanti.
8. P.W. 2 Smt. Indrawati is wife of the deceased. She stated that the occurrence took place about nine months ago. She was sleeping in the Verandah of her Pacca House. Her husband Ram Surat was sleeping outside Verandah. At about 11.15 p.m. she was awakening and saw that Ratan and Firtoo came from the side of their house and Ratan threw a bomb which hit her husband on the head. Thereafter the assailants ran away towards eastern side. In the moon lit night she had seen and recognized the assailants. Her son was sleeping on the roof. After hearing the sound of bomb he came down. He had a torch in his hand, which was flashed by him from the roof. She had disclosed the names of Firtoo and Ratan to the villagers who had collected there after explosion of the bomb. She further stated that about 3-4 months prior to the occurrence both the accused had entered into the house of her daughter-in-law and her husband had seen both of them coming out from his house and they had scolded her daughter-in-law. The accused had also threatened her husband.
9. In the cross examination she stated that her clothes were smeared with the blood of her husband and the investigating officer had also prepared some documents. Ratan and Firtoo had not covered their faces and they were wearing underwear and Bandi and when they ran she cried. She further stated that she cried their names for about half an hour. She stated that she did not know how the investigating officer had mentioned that due to fear she did not disclose the names of Ratan and Firtoo. She further stated that Ram Chandar had himself seen the assailants throwing bomb. She further stated that both Ratan and Firtoo had thrown bomb. She further clarified that only one bomb was thrown by both the accused. Several persons had collected there and all of them had seen Ratan and Firtoo fleeing from the place of occurrence. Her statement was recorded next day at 8.00 a.m.
10. P.W.3 Prema stated that prior to the occurrence her husband was doing service in Punjab for the last 5-6 months. Ratan and Firtoo were her neighbour. About six months prior to the murder of her father-in-law they had entered into her house and when they were coming out of the house her father in law had seen them. Her father-in-law had scolded her and sent to her parents house. She stated that they have committed murder of her father-in-law because he had stopped them coming to her.
11. In the cross-examination she stated that at present she is living in village Vishenpur in the house of her in-laws. She stated that earlier her husband lived in Punjab. He was doing service there. Her husband had returned from Punjab about 8-10 days prior to the occurrence. The investigating officer did not record her statement. She is not a witness in the charge sheet.
12. P.W.4 Amar Jeet Singh is investigating officer of the case, who submitted charge sheet against Ratan and Firtoo. He stated that Indrawati had given her statement that Ratan and Firtoo had thrown bomb. She had not stated that it was a moon lit night in which she had seen and recognized the accused persons. She did not state that she had disclosed the names of Ratan and Firtoo to the persons, who reached at the place of occurrence.
13. P.W. 5 is Head Constable Vibhuti Prasad. He stated that on 17.6.95 he was posted as Head Moharrir at Police Station Rani Ki Sarain. He prepared chik F.I.R. on the written report (Ex. 10 ka. 1) and he also prepared G.D. entry (Ex.Ka. 8). A copy of the G.D. entry is Ka. 9.
14. P.W.6 is Constable Bansh Narain Yadav. He escorted the dead body in sealed condition to the mortuary alongwith constable Shree Kant Gupta. He reached at the police station at 10.30 a.m. alongwith paper.
15. P.W.7 is Dr.R.S. Singh. He conducted the autopsy on the dead body of the deceased.
16. We have already mentioned ante mortem injuries in the earlier part of the judgment.
17. P.W.8 Maharaj Deen Pandey is the first investigating officer of the case.
18. The case of the defence is of denial. The Sessions Judge relying upon the prosecution evidence convicted the appellants as aforesaid.
19. We have heard learned counsel for the appellants Sri M.P. Yadav and learned A.G.A. for the State and also perused the entire record.
20. Learned counsel for the appellants has challenged the findings of the Sessions Judge on several grounds. Firstly it is submitted by the learned counsel for the appellants that the occurrence had taken place in the night and the witnesses had no opportunity to see the faces of the assailants. The appellants are falsely roped in this case on account of previous enmity.
21. There are contradictions in the statements of the witnesses and there was no light in which the assailants could be recognized.
22. In order to appreciate the prosecution case, it is necessary to examine the evidence of the eye witnesses in the light of the submissions made by the learned counsel for the appellants. It is not disputed that the occurrence had taken place in the dark hours of night. The case of the prosecution from the F.I.R. is that the informant was sleeping on the roof and he woke up due to explosion of bomb and thereafter he flashed his torch and saw the accused persons 6-7 steps away from the place of occurrence. The statement of P.W.1 also shows that the height of the roof on which he was sleeping is of 9 ft. It is admitted that at the time of occurrence P.W.1 Ram Chandra was sleeping. His statement that he immediately saw that accused persons were 6-7 steps away from the place of occurrence can not be accepted simply because he woke up due to explosion of bomb and he will take some time in understanding as to what actually happened. Thereafter it is expected that he will move towards the place of occurrence. He will certainly take some time in waking up and flashing his torch and then seeing the occurrence. It is also not expected that the assailants will come in close proximity of the target at the time of throwing bomb. Normally the bomb after explosion causes injuries in a considerable area. The bomb is thrown from some distance also.
23. In this view of the matter when the P.W. will reach and flash his torch the assailants will cover considerable distance. It is also in his evidence that due to explosion there was smoke. In any case he was not in a position to see the faces of the assailants. In the first information report he had mentioned that immediately after the occurrence he did not disclose the name of the assailants to the persons who had collected after the explosion. This conduct also shows that he had no knowledge about the names of the persons who had caused explosion; otherwise in the normal circumstances he would have disclosed the names of the assailants. He gave an explanation that out of fear he did not disclose the name of the persons cannot be accepted. There can not be any reason for any fear in mind. The assailants had already run away and several persons had collected there and he had also lodged the report in which he had mentioned the name of the assailants. His explanation that he did not disclose the name of the assailants who collected after the explosion of bomb, it can easily be inferred that at that time who had caused the explosion. In our opinion his evidence cannot be acted upon and he was not in a position to see the faces of the assailants.
24. P.W.2 Smt. Indrawati says that it was a moon lit night in which she had recognized the accused persons. She had introduced the moon lit night for the first time in Court. In her statement under Section 161 Cr.P.C. she did not state that she had witnessed the occurrence in the moon lit night. There was no source of light in which she could identify the assailants. The torch which is mentioned as a source of light by P.W.1 was on the roof. The statement of P.W.2 Smt. Indrawati with regard to participation of appellants is contradictory to the statement made by P.W.1 Ram Chandra. She stated that immediately after the occurrence she had disclosed the name of Ratan and Firtoo to the persons who had collected after the occurrence. This is an after thought. In the first information report informant had not mentioned that due to fear he did not disclose the name of the assailants to any of those persons who had collected there. There are contradictions with regard to the throwing of bomb in the statement of P.W.2 Smt. Indrawati P.W.2 firstly stated that Ratan and Firtoo both had assaulted the deceased with the bomb and again she stated in her statement that only one bomb was thrown by both of them simultaneously. In the first information report the case of the prosecution was that it was a case of single explosion. So far as the source of light is concerned P.W.1 Ram Chandra sated that the investigating officer had taken the possession of the torch, but in Court it was produced by the informant. The torch had no glass and the informant stated that at the time of coming out from the staircase the torch had fallen down and the torch does not indicate that the torch which was taken by the investigating officer had no glass. The torch which was produced in Court had not cell. This is only introduced as a source of light.
25. In our opinion there was no source of light in which the assailants could be recognized. There is no other evidence except these two eye witnesses and their testimony is not sufficient to convict the appellants.
26. In our opinion the Sessions Judge has not considered the testimony in its true prospective. The prosecution has failed to prove its case beyond reasonable doubt.
27. In view of our discussions made above, we allow this appeal.
28. The conviction of the appellants Ratan Rajbhar and Firtoo is also hereby set aside. Both these appellants are acquitted of the charges they were convicted for. They are in jail. They shall be released forthwith unless wanted in any other case.