JUDGMENT D.K. Trivedi, J.
1. The above mentioned four Criminal Appeals are directed against the judgment and order dated 18-1-1979 passed by the VII Additional Sessions Judge, Hardoi convicting the appellants under Section 302/34 I.P.C. and sentencing each of them to imprisonment for life.
2. The brief facts of the prosecution case are that accused Sita Ram is the father-in-law of the deceased Bahadur and it is said that the daughter of Sita Ram was married to Bahadur deceased but due to some differences between the husband and wife accused Sita Ram was annoyed with the deceased Bahadur. It is said that just before the incident deceased Bahadur beat his wife and, therefore, she was taken away by accused Bechey at the house of Sita Ram. Sita Ram is the elder brother of deceased Bahadur and sister of Mewa Ram (P.W. 1) is married to Siya Ram. It is said that Mewa Ram (P.W. 1) by chance came to the house of deceased Bahadur and, therefore, he was deputed alongwith Daya Shanker the cousin brother of Bahadur deceased to bring the wife of deceased Bahadur back to her house. It is said that Mewa Ram (P.W. 1) and Daya Shanker went to the house of accused Sita Ram and made a request for sending the wife of Bahadur with them. Sita Ram instead of sending her back, snatched their bicycle and returned them back to their village. Mewa Ram and Daya Shanker returned to the village of Bahadur and narrated the incident to the mother of the deceased. It is said that the mother of the deceased informed Mewa Ram that deceased Bahadur had also gone to the house of Sita Ram in the morning. It is said that at about 9-00 a.m. P.W. 2 Prem Chandra met deceased Bahadur at Baghrai Bus Stand and deceased Bahadur made an enquiry about Mewa Ram and Daya Shanker P.W. 2 Prem Chandra informed Bahadur that both these persons had gone on a bicycle and thereafter the deceased went towards village Chitepur and P.W. 2 Prem Chandra went to the door of Kallu Barhai in village Baghrai and stayed there. It is said that after an hour P.W. 2 Prem Chandra saw that the deceased was being chased by the accused persons and on an enquiry Sita Ram told him that the deceased had beaten his daughter and turned her out and, therefore, he would kill him. However, on the intervention of the witnesses the accused persons returned back to their village and the deceased sat down there. It is said that after sometime the deceased insisted that he would go to the village of Sita Ram and would recover the bicycle of his brother-in-law. It is said that the deceased thereafter has gone towards village Chitepur and at village Chitepur asked about the bicycle of his brother-in-law, Sita Ram told him that it would be given soon and thereafter the accused abusing him took him towards South-West of village Chitepur, It is said that after 2 or 11/2 hours the accused persons returned back to their village but the deceased did not turn up. However, the witnesses after sometime came to know that the body of deceased Bahadur was hanging over a mango tree situated towards village Baghrai. On the other hand, Sita Ram alleged that he was returning from village Adampur market and there in the way he was informed that the body of his son-in-law Bahadur was hanging on a mango tree and, therefore, he reached the place of incident and found that the body of his son-in-law Bahadur was hanging on a mango tree with his Dhoti in the neck. Sita Ram accused thereafter lodged an information on the same day at about 8-35 p.m. On receipt of the said information S.I. Mathura Singh was deputed to prepare an inquest report etc. who reached the place of the incident in the night itself. However, on the next day he prepared an inquest report as well as other papers for post-mortem examination.
3. The post-mortem examination on the dead body of Bahadur was conducted by Dr. A.M. Singh on 27-6-1977 at about 11-00 a.m. The Doctor found the following ante mortem injuries on the dead body of deceased Bahadur.
4. Ligature mark 4 cm x 4 cm situated low down the neck below the thyroid cartilage encircling the whole of neck horizontally and completely with a small abrasion on the back of neck 1 cm X 0.5 cm in size. The base of the mark is pale with reddish margins. There is congestion of the muscular area. The cornea of hyoid bone is fractured.
5. According to the Doctor the death was caused due to asphyxia as a result of strangulation. On receipt of the post mortem report the case was converted under Section 302 I.P.C. and the investigation was entrusted to S.I. Mathura Singh. S.I. Mathura Singh recovered Atlas cycle from the house of accused Ram Bilas on 29-6-1977 and recorded the statement of the other witnesses. S.I. Mathura Singh after completing investigation submitted charge-sheet against the accused persons.
6. The prosecution in order to support its case examined 10 witnesses. Out of them P.W. 1 Mewa Ram is the brother-in-law of Siya Ram along elder brother of deceased Bahadur. He proved the earlier incident and refusal of Sita Ram for sending the wife of Bahadur to the village of deceased Bahadur. He also proved the snatching of bicycle by Sita Ram accused. P.W. 2 Prem Chandra is a resident of village Baghrai and he proved that Sita Ram chased deceased Bahadur and on enquiry Sita Ram informed that Bahadur used to beat his daughter hence he would kill him P.W. 3 Bodil is another witness who proved that Sita Ram and others chased Bahadur with Lathis and said that he would kill Bahadur because he used to beat his daughter. P.W. 4 Ram Avtar is the witness of recovery of the cycle from the house of Ram Bilas accused P.W. 5 Ram Bhajan is the resident of the village of Sita Ram and he stated that two persons on cycle came to the house of Sita Ram but Sita Ram snatched their cycle. P W 6 Constable Moharram AH brought the dead body of deceased Bahadur to mortuary for post mortem examination. P.W. 7 Raghuraj Singh was posted as Head Constable at Police Station Sandi and he proved the First Information Report lodged by Sita Ram as well as other entries in the General Diary. P.W. 8 Siya Ram is the real brother of Bahadur deceased and he proved that Bahadur used to beat his wife and hence she left his house and went alongwith accused Bechey. P.W. 9 Mathura Singh, S.I., Police Station Sandi conducted the investigation and submitted charge-sheet in this ease P.W. 10 Dr. A.N. Singh conducted and autopsy on the dead body of deceased Bahadur proved the post mortem examination report Ext. Ka-15
7. On the other hand the accused persons denied the prosecution case and stated that they have been falsely implicated in this case due to enmity.
8. The learned Sessions Judge, after considering the evidence on record came to the conclusion that the prosecution has succeeded to pro vine the guilt of the appellants beyond reasonable doubt, hence he convicted and sentenced the appellants as mentioned above.
9. The appellants aggrieved by the said judgment and order preferred Criminal Appeal No. 174 of 1979 through their Counsel. Another Criminal Appeal No. 221 of 1979 was filed by Ram Bilas from Jail. A no her Criminal Appeal No. 227 of 1979 was filed by Sita Ram from Jail Yet another Criminal Appeal No. 223 of 1979 was filed by Bechey from Jail All these four criminal appeals are directed against the same judgment and order, hence all these four appeals are consolidated and heard together.
10. We have heard learned Counsel for the appellants Shri Siddharth Verma who has been appointed as Amicus Curiae on behalf of the appellants as well as the Additional Government Advocate at great length and perused the record The main contention of the appellants, Counsel is that the whole prosecution case, appears to be conducted one and the learned Court below committed an error in holding that the prosecution has successfully proved the guilt of the appellants beyond reasonable doubt. He further contended that even accepting the testimony of these witnesses, it cannot be said beyond doubt that the prosecution has successfully proved the guilt of the appellants and further even the evidence adduced by the prosecution is totally unreliable and no reliance can be placed on the said testimony He further pointed out several glaring discrepancies and infirmities in the prosecution case and relying on the said infirmities be contended that the prosecution has failed to prove the guilt of the appellants beyond reasonable doubt hence they are entitled to get the benefit of doubt. On the other hand Additional Government Advocate contended that the learned Court below committed no illegality in convicting the appellants and sentencing each of them to undergo imprisonment for life under Section 302/31 I.P.C According to the Additional Government Advocate for prosecution case is fully proved from the circumstances alleged by the prosecution and it cannot be said that the prosecution has failed to prove the guilt of the appellants beyond reasonable doubt.
11. The contention of the appellants' Counsel is in two-folds Firstly he contended that even accepting the prosecution case, it cannot be said that the offence under Section 302 I.P.C. is proved beyond doubt against the appellants and secondly the statement of the prosecution witnesses are not believable. We find force in it.
12. As regards the first contention is concerned it may be pointed out here that it is not disputed that there is no eye witness account in this case. According to the prosecution case itself the deceased Bahadur was killed between 12 to 3.00 p.m. just outside the vilage Abadi and thereafter he was hanged on the mango tree. This mango tree is situate near the Galiara which connects Hardaf road and Shagabad road from Sandi. The site-plan prepared by the Investigating Officer clearly shows that there were only two mango trees near the Galiara. It has also come in evidence that from this mango tree village Baghroi is situate at a distance of 3 to 4 furlongs and village Chitepur is situate at a distance of 5 furlongs In these circumstance it is strange that Bahadur was killed near the Galiara and thereafter he was hanged on the mango tree but no-one witnessed this incident. Again it is also strange that persons came to know of this incident only after 2 or 3 hours and not before specially when it is the case of the prosecution that this Galiara connects roads of Hardoi and Shahabad P W 5 Ram Bhajan is the only witness who stated that he saw the deceased lastly in the company of the accused persons. According to him his house is situate just in front of the house of the accused and he was knitting the cot when at about 12 in the noon Bahadur again came to the village and demanded cycle. It is said that Sita Ram and other appellants took him towards south-east of the village and after about 3 hours at about 3-00 p.m. he came to know that the dead body of Bahadur was hanging on the mango tree. In fact, apart from the fact that at about 12 noon the deceased left village Chitepur alongwith accused persons and thereafter the accused persons returned to their houses and at about 3-00 p.m. persons came to know that the dead body of the deceased Bahadur was banging on the mango tree, there is nothing on the record to connect the accused persons with this murder. Even according to the statement of this witness there is a gap of about 3 hours and there is no connecting evidence thereafter to connects the accused persons with the crime, therefore, in our opinion, only on the above mentioned circumstances even if we believe the same then it cannot be said that the accused persons are responsible for this murder. On the basis of evidence of P.W. 5 Ram Bhajan that he last saw the deceased in the company of the accused persons as mentioned above, it cannot be said beyond reasonable doubt or certainty that the accused persons are the persons responsible for the murder of Bahadur who was admittedly son-in-law of accused Sita Ram. The motive alleged by the prosecution is that the deceased Bahadur used to beat the daughter of Sita Ram but only on account of this, it cannot be said that Sita Ram can go to the extent of killing his son-in-law. The evidence of this witness is also not above board. According to him his house is situate just in front of the house of the appellants. He further stated that he was knitting the cot and, therefore, he saw the whole incident from 7-00 A.M. to 12 in the noon. However, in cross-examination he admits that the back portion of the house of Sita Ram is situate on the Galiara which runs north-south and lies in front of his house. If the above mentioned statement is correct, then the house of this witness according to him lies just on the back of the house of Sita Ram and not in front of the house of Sita Ram. He also admits that he remained present on his door throughout the day. He also admits that the appellants did not beat Bahadur and only chased him. It is strange that the appellants did not beat Bahadur on any occasion when he visited the village of the accused but killed him afterwards as alleged by the prosecution. From the conduct of P.W. 5 Ram Bhajan as well as the fact that his house lies towards the back side of the house of accused Sita Ram, it is not possible for us to believe that this witness is a truthful witness. In these circumstances it is not possible to believe the statement of P.W. 5 Ram Bhajan and told that the accused persons are responsible for this murder. In these circumstances, in our opinion, the circumstances relied upon by the prosecution are not sufficient to hold beyond reasonable doubt that the accused persons are responsible for the murder of Bahadur and, therefore, in our opinion the accused persons are entitled to get benefit of the doubt. In our opinion on the basis of cumulative effect of proved circumstances, inference cannot be drawn beyond doubt that it were the accused persons who are responsible for the murder of Bahadur and, therefore, the accused persons are entitled to be acquitted on this ground alone.
13. According to the prosecution deceased Bahadur left the village just after the departure of Mewa Ram but strangely enough these persons did not meet in the way. It is said that cycle of Mewa Ram was snatched by Sita Ram and the said cycle was thereafter recovered from the house of Bechey. The number of the cycle which was recovered from the house of Bechey was 118607. P.W. 1 Mewa Ram gave the number of the cycle as 10807. Again he was asked to disclose the number to the Court after seeing the cycle but he failed to disclose the number of the cycle. Again he was asked to tell whether the number of his cycle was 118607 then he replied in the affirmative. These facts themselves show that he has no idea about the number of the cycle nor the same has been mentioned any-where before the recovery of the cycle. In these circumstances the statement of this witness is also not free from doubt and it is not possible for us to believe this witness.
14. Similarly, P.W. 2 Prem Chandra is resident of Village Baghrai. At about 9-00 a.m. he met with Bahadur at the Bus Stand. There-after he saw chasing of Bahadur by the accused persons. It is further alleged that on the intervention of the witnesses the accused persons left the deceased and returned back to their village. It is also alleged that Bahadur sometime thereafter left for the village of the accused persons saying that he will recover the cycle from the accused persons. After 2 or 21/2 hours he came to know that Bahadur was hanging on the mango tree. As he had seen chasing of the deceased by the accused persons, therefore, he believed that the accused persons are responsible for this murder. Even according to this witness the accused persons left the village without causing any injury to Bahadur on the request of the witness as well as other persons. According to him deceased Bahadur told them that he is going to the village of the accused persons. They are not the eye witnesses of this fact and, therefore, it cannot be said that these are the persons who last saw the accused in the company of deceased Bahadur. The village of Bahadur is situate at a distance of 5 Kws (10 miles)from the village of Prem Chandra. In examination-in-chief he stated that he saw two persons going towards the village of the accused in the morning but thereafter admitted that he did not see them going on the cycle. He further admits that he did not see earlier facts of the incident which he has narrated in his statement in the Court. He has no house near the house of Kallu and he has also no business-with Kallu. According to him by chance without any work, he went to the house of Kallu and sit there. After half an hour he helped Kallu in placing the Chappar and thereafter returned to his house. In these circumstances he can be said to be a chance witness, As pointed out above the statement of this witness is not consistent and cannot be said to be a reliable witness and, on the other hand, even if we accept the statement of this witness then he only states that he saw accused chasing the deceased and thereafter on their request the persons returned back to their village leaving the deceased in their custody.
15. P.W. 3 Bodil was also sitting at the door of Kallu and he only corroborated the statement of P.W. 2 Prem Chandra. According to him Bahadur used to pass from in front of his house once or twice and, therefore, he knew Bahadur from before. In our opinion this is not possible for him to recognise each and every person who used to pass just in front of the house of this witness. However, he admits that Prem Chandra was also preparing Chhappar of Kallu whereas Prem Chandra clearly denies and told that he was standing there.
16. P.W. 4 Ram Autar is the recovery witness of the cycle. He stated that he was going to Sandi from Hardoi but got down from the Bus at Baghrai. The circumstances under which he stated that he got down at Baghrai is not believable. According to him at Baghrai, Darogaji met him and he accompanied the I.O. to village Chitepur. According to him he came to Hardoi to attend the Court case but neither he has been able to disclose the name of his Vakil nor can identify the Court Room where he used to attend the case. He admits that he had taken ticket from Hardoi to Sandi. In these circumstances it is not possible to believe that he got down at Baghrai and thereafter the cycle was recovered in his presence. The other witnesses are formal in nature. P.W. 8 Siya Ram is the brother of deceased Bahadur. His statement is also not worth to be believed as he pointed out that he received the news of the death of his brother Bahadur on the third day. He also stated that the wife of Bahadur had some suspicion about the illicit relations of Bahadur with the wife of Siya Ram and on this score Bahadur never left his house. In these circumstances, it cannot be said that the appellants had a strong motive to commit the murder of Bahadur who was son-in-law of Sita Ram.
17. In view of the above discussion, the appeals succeed and are allowed.
18. Criminal Appeals No. 174/79, 221/79, 222/79 and 223/79 are hereby allowed. The conviction and sentences awarded by the Court below to all the appellants are hereby set aside. All the appellants are on bail. They need not surrender. Their bail-bonds are hereby cancelled and the sureties thereof stand discharged.