JUDGMENT I.S. Mathur, J.
1. This appeal is directed against the judgment and order dated 8-2-1979 passed by II Additional Sessions Judge, Bulandshahr convicting the appellants under Section 302 read with 34, I.P.C. and Section 324 read with 34, I.P.C. and sentencing them to life imprisonment on the first count and two years rigorous imprisonment on the second count.
2. It appears that these appellants, alongwith with one Ranvir Singh, were tried in Sessions Trial No. 146 of 1978. Accused Satyapal was charged under Section 148, I.P.C., Section 302 read with 149, I.P.C. and Section 307 read with 149, I.P.C. and the accused Ajab Singh and Ranvir Singh were charged under Section 148, I.P.C., Section 302 read with 149, I.P.C. and Section 307 read with 149, I.P.C. In another Sessions Trial No. 54 of 1978 arising out of the same incident, two other accused, namely Ompal and Subhash were tried for offences under Sections 147, 148, 302 read with Section 149, I.P.C. and Section 307 read with Section 149, I.P.C. Both these sessions trials were consolidated and a common judgment has been delivered by the learned IInd Additional Sessions Judge. Out of these five accused, accused Ranvir Singh, Ompal and Subhash have been acquitted of the offences with which they have been charged. Only the present appellants have been convicted as noted above.
3. The prosecution case was that the appellant Satyapal was running a milk dairy near the bus stand in village Sathla for some time and one Brijendra (P. W. 2) also opened a milk dairy in his own village. This caused enmity between Satyapal and Brijendra. On 21-10-1977 at about 3 p.m. informant Amarpal (P.W. 1), along with Kushalpal and Bijendra and 2-3 other companions, was standing at the Bus Stand waiting for a bus. Accused Satyapal with a gun, Ajab Singh and three other persons who had lathis and kattas, also came there. They attacked the informant Amarpal Singh and his companions with lathis and katta. Satyapal fired from his gun and the other from their kattas, as a result of which he and Kushalpal received gun shot injuries. The informant, Amarpal Singh, ran towards the grove and Kushalpal jumped into a pond. Satyapal again fired at Kushalpal, whereafter Kushalpal came out of the pond and ran on the road. Satyapal and his companions followed him and again fired at him, as a result of which Kushalpal died at the spot. In the meanwhile, police personnel, who were on duty in connection with Ram Lila, came at the spot. On seeing them Satyapal and his companions escaped. The informant was lifted by the police from there while Kushalpal's dead body was left behind. A first information report was got scribed by informant Amarpal (P.W. 1) from one Jang Bahadur. This report was lodged at the police station at 4 p.m. on 21-10-1977.
4. A case was registered at the police station B. B. Nagar. P.W. 5, S. I. Sukkhan Khan prepared panchayatnama (Ext. ka-4). He also prepared challan lash (Ext. ka-5) and letter Ext. ka-10 and sealed the dead body and sent it for postmortem examination. The informant Amar Pal was also sent for medical examination at District Hospital Bulandshahr.
5. On post mortem examination on the dead body of Kushal Pal, the doctor found following injuries.
1. Gun shot wound of entry with ediox 4"x3" with fracture of right side maxilla bone and right mandible. Wound is oval cavity deep.
2. Gun shot wound of entry 1 1/2" x 1/2 x chest cavity on upper part of shoulder.
3. Gun shot wound of exit 1/2" x 1/4" on back right scapular region.
4. Gun shot wound of entry 1/4" x 1/4" on inter-scapular region. Right scrotum.
5. Gun shot wound of exist on Scapular region right side. Both gun shot wound of entry Blackening.
The doctor also found that rigor mortis was present. The upper lobe of the right lung was lacerated. He prepared the post mortem report Ext.ka-3.
6. On medical examination of Amarpal, Dr. Akil Ahmad found the following injuries :
1. Multiple gun shot wound of entry clavicle in an area of 14 c.m. x 16 c.m. each wound 1 c.m. x 1 1/2 c.m. no blackening.
2. Traumatic swelling 15 c.m. x 17 c.m. on whole of the right hand.
3. Lacerated wound 2 1/2 c.m. x 1/2 c.m. x muscle deep. Left little finger.
4. Gun shot wound of entry in scrotum. Right side 1/2 c.m. Not probed.
According to the doctor, the first three injuries were caused by blunt weapon and injury No. 4 was caused by gun shot and was kept under observation.
7. After completing the investigation, charge sheet was submitted against all the accused.
8. The accused denied the allegations about their complicity in this crime. Accused Satyapal admitted that he was running a milk dairy at the village Sathla and Bijendra had also opened another milk dairy in village-Chitsona but stated that none of the persons who supplied milk to his dairy, shifted to the dairy of Bijendra. He also stated that his own dairy was running well and, therefore, he has been falsely implicated in this case.
9. Accused Ajab Singh also denied allegations regarding the alleged complicity in the crime and stated that there was no enmity. It is submitted that Satyapal had his dairy at Sathla Bus stand and Bijendra also had one in Chitsona.
10. The prosecution examined seven witnesses P.W. 1 Amar Pal and P.W. 2 Bijendra Singh are the alleged eye witnesses and have deposed that accused satyapal had become inimical to Bijendra as Bijendra had opened a dairy, which had effected the business of Satyapal. They have also deposed that one of the accused had lathi and he gave a lathi blow to Amarpal and that the accused also fired at him and deceased Kushalpal, as a result of which Kushalpal died and Amarpal received gun shot injuries. P.W. 3 Dr. Akil Ahmad, who examined the injured Amarpal Singh, has proved his injury report Ext. Ka-2. He stated that injury Nos. 2 and 3 were inflicted from a blunt weapon and injuries Nos. 1 and 4 were caused by gun shot. He also, proved the post mortem report Ext. Ka-3. In his cross examination, he stated that in all probability a person could not walk more than 2 -- 3 paces after getting injury Nos. 2 and 3 and, after getting injury No. 1, the injured cannot walk a distance of more than 1 -- 2 paces. Constable Nain Singh took the dead body for post mortem. P.W. 5 S.I. Sukkhan Khan has stated that he went to the spot on hearing about this shoot out, he found the dead body of Kushal Pal, he also found Amarpal injured. He sent Amarpal to B. B. Nagar police station with P.W. 4 C/Gopi Chandra. He also prepared panchanama Ext. Ka-4. P.W. 6 Mahendra Singh has stated that he completed the investigation and submitted the charge sheet Ext. Ka-11. P.W. 7 S.O. Ranvir Singh conducted remaining investigation and proved the chik report Ext.Ka-12, G.D. report Ext. Ka-13, site plan Ext. Ka-14. He also stated that he found blood at the place where Kushalpal's dead body was found and took the blood stained earth and also ordinary earth. He prepared the memo Ext. Ka-15. He also arrested the accused. In his cross examination he stated that he did not find any blood at the bus station or near the pond.
11. We have heard the learned counsel for the appellant and the learned special counsel for the complainant as also Additional Government Advocate. On a careful scrutiny of the evidence, we are of the opinion that the prosecution has failed to prove its case beyond reasonable doubt against any of the appellants. To begin with, the first information report is of an extremely doubtful nature. According to the informant P. W. 1 Amar Pal, he had become unconscious due to the injuries and it was only when he regained some consciousness' that he dictated the first information report. In his examination in chief he stated that he had dictated this report to one Jang Bahadur, but, in his cross examination, he made a categorical statement that he had given the information to the Sub-Inspector and it was the Sub-Inspector who dictated this report to Jang Bahadur. P.W. 5 Sukkhan Khan stated that he had sent Amar pal to the police station but P.W. 1 Amar Pal Contradicted him when he stated that he went to the hospital directly from the place of occurrence. It would appear that the first information report was allegedly lodged at 4 p.m. and injury report indicates that this injured witness Amar Pal was medically examined also at the same time i.e. 4 p.m. This indicates that he could not have lodged the report.
12. It may be further noted that, in the first information report, there is no averment or indication that any of the accused had used lathi also, but, in his statement in Court, P.W. 1 Amar Pal, stated that one of the accused had used lathi as well. According to the statement made by this witness, P.W. 1 Amarpal, a number of facts dictated by him do not find place in the first information report. He has stated that he had informed the scribe about the milkmen who had stopped giving milk in the dairy of Satyapal, after Bijendra had opened his dairy, but this statement does not find place in the first information report. Again it is stated by this witness that he had informed the scribe that Kushal Pal lived with Bijendra, but this statement also does not find place in the first information report. Thus the material omissions indicate that this injured witness P.W. 1 Amarpal did not really dictate the first information report and, as admitted by him in his cross-examination, it was the Sub-Inspector who got the first information report scribed on his own dictation.
13. Indeed, it seems that P.W. 1 Amarpal was really not in a fit state of mind or in proper physical condition to be able to dictate this report. As noted above, according to his own admission, he had become unconscious due to the injuries. He states that he regained some consciousness and during that period he dictated the first information report but it can not be said with certainty that, during that period, he became absolutely in fit state of mind to give a clear and coherent version of the incident, particularly when he himself admits in cross-examination that he did not dictate the report.
14. The fact that P.W. 1 Amarpal, who is alleged to be informant and an eye witness, could not have and did not really dictate the first information report, is a most damaging circumstance against the case of the prosecution. It was alleged P.W. 1 Amarpal who was the eye witness and if the first information report has not been scribed by him or on his dictation as alleged by the prosecution and it has been got scribed by the Sub-Inspector the very foundation of the case is shaken and it becomes highly doubtful.
15. The learned counsel for the complianant submitted that it is not necessary that the first information report should contain minutest details of the incident and, if the factum of user of lathi has not been mentioned therein, the version given in the first information report can not be doubted. It is true that first information report is not required to contain minutest details and a broad version of the incident is sufficient P. Narayana v. State of Andhra Pradesh, 1975 SCC (Cri) 427 : (1975 Cri LJ 1062). It is also true that first information report is not a substantive piece of evidence and can be used for corroboration or contradiction only. Hasib v. State of Bihar, AIR 1972 SC 283 : (1972 Cri LJ 233). However, in the present case the first information report is not being used as substantive evidence. It is being used for contradiction. It cannot be said that the omissions pointed out by the learned Counsel for the appellants are not material or do not amount to contradiction. When it is mentioned in the first information report that the appellants attacked with kattas and gun, it was equally natural that user of lathi should also have been mentioned. It might have not mattered if the first information report had only contained a statement that the accused assaulted the deceased and P.W. 1 Amarpal, but, when the details of the nature stated above are given, it is also a natural consequence that lathi would have also been mentioned, if the reason were really caused. The suppression of material facts in the first information report is a serious matter and must cast doubt about the prosecution version Manna Lal v. State, 1967 Cri LJ 1272 : (AIR 1967 Cal 478).
16. In connection with the first information report it is also important to note that the Sub-Inspector Sukkhan Khan had reached the place of occurrence and had found the dead body of Kushalpal and also injured Amarpal. He also started the investigation in as much as he prepared the panchayatnama Ext. Ka-4 and sent Amarpal with a constable. Where circumstances indicate that after receiving some information, however, incomplete, police had started investigation, any subsequent information given about the commission of the offence by any other person cannot be regarded as the first information report (Manna Lal v. State 1967 Cri LJ 1272 : AIR 1967 Cal 478). The Sub-Inspector who had got the information and, in consequence thereof started investigation, should have got this information reduced in writing and, in fact, that would have only been the first information report. For this reason also the alleged first information report must be found to be of a doubtful nature and cannot legally be considered to be one. The failure of the prosecution to put in the evidence the information received by S.I. Sukkan Khan is again a strong circumstance against the case of the prosecution.
17. There is also considerable force in the submission of the learned counsel for the appellant that there was absolutely no motive for the appellants to commit the murder of Kushal Pal or even to injure Amar Pal. The learned Sessions Judge has himself held that the prosecution has failed to prove any motive against the appellants. The prosecution has come with a definite case that this murder has been committed or injury has been caused on account of the fact that Satpal had a dairy and Bijendra (P.W. 2) opened another dairy which adversely affected the business of Satpal. Neither in first information report nor in any statement it has been stated that there was any enmity at all between these accused and Kushal Pal or Amarpal. Even though there is no definite proof of the fact that opening of the dairy by Bijendra adversely affected the business of Satpal, the proof of the same could not lead to the inference that there was any motive in so far as Kushal Pal or Amar Pal are concerned A belated attempt appears to have been made during evidence when it was stated by P.W. 2 Bijendra that Satpal was his partner, but this cannot be believed and this statement must be rejected as an afterthought. Motive, if any, could have been against Bijendra and not against Kushalpal or Amarpal. However, it is surprising to note that even though Bijendra was present at that very place, where Kushalpal and Amarpal were allegedly attacked, but no attempt even was made to attack Bijendra and he did not get any injury whatsoever.
18. It is not the case of the prosecution that the gun shot was intended to be fired at Bijendra and it hit Kushalpal and Amarpal by mistake. The case, in fact, is that, even while Kushal Pal and Amarpal tried to run away, they were chased by the appellants and repeatedly fired at. This cannot be believed unless it was the fact that there was enmity of these appellants against Kushalpal and Amarpal the appellants or the assailants could not have chased Kushalpal or Amarpal while leaving their alleged arch enemy Bijendra at the spot and apparently with no attempt to attack him. The inference is inevitable that the murder of Kushalpal or injuries to Amarpal could not have been caused by these appellants. It cannot be believed that any person could be so determined to murder some body without any rhyme or reason and leave the real enemy. In the circumstances stated above, the absence of motive must lead to the inference that appellants could have not committed the murder or caused injury and that must have been caused by some one else.
19. The learned counsel for the complainant referred to State of Haryana v. Sher Singh, AIR 1981 SC 1021 : (1981 Cri LJ 714) in support of his submission that the prosecution case cannot be thrown out merely on account of absence of motive. In this case, relied upon by the learned counsel for the complainant it has been observed by the Supreme Court that prosecution is not bound to prove the motive, but if motive is alleged the Court has to consider it and see whether it is adequate.
20. In State of U.P. v. Hari Prasad, 1974 SCC (Cri) 203 : (1974 Cri LJ 1274), the Supreme Court has observed that if the crime is alleged to have been committed for a particular motive, it is relevant to inquire whether the pattern of the crime fits in with the alleged motive.
21. Indeed, the legal position would appear to be that it is not necessary for the prosecution to allege or prove any motive and if there is reliable testimony to indicate that the alleged accused have really committed the crime, the absence of the motive would not be relevant. However, where the prosecution comes with positive allegation as to the motive, its failure to prove it must necessarily be a circumstance against the prosecution case, it will be a relevant inquiry, in such a circumstance, as to whether the pattern of the crime fits in with the alleged motive. In fact, in the case relied upon by the learned counsel for the complainant also, nothing contrary would appear to have been laid down. As noted above, in that case also it has been observed by the Supreme Court that if the motive is alleged the Court has to consider it and see whether it is adequate.
22. In the present case, as already noted above, the prosecution came with a positive allegation as to motive, but that motive is neither proved against these appellants nor it can be said to be adequate. Further, the fact that the appellants are alleged to have attacked and murdered Kushalpal and also injured Amarpal, against whom there is not even an allegation of motive, clearly indicates that the pattern of the crime does not fit in with the alleged motive. As pointed out above, it could have been understandable, on proof of the alleged motive regarding opening of dairy by Bijendra, if the appellants had attacked Bijendra and in any such attempt, the bullet might have hit Kushalpal or, Amarpal. But it cannot be believed that the appellants shall make a determined effort to chase and murder Kushalpal and injure Amarpal, without having any motive against them. It must accordingly be held that the failure of the prosecution to prove motive against the appellants creates a grave doubt about their version.
23. We are also inclined to agree with the learned counsel for the appellants that the prosecution has failed to prove the place of occurrence. According to the prosecution witnesses, there was shower of blood at the place where the deceased Kushalpal and Amarpal were first standing, and were allegedly hit, but no attempt would appear to have been made to collect blood stained earth from the place. Further, P.W. 1 Amarpal has stated that blood had come out near the culvert where he was hit by a bullet and that blood had fallen in the grove where he had gone after being hit. Although it is stated by the Investigating Officer that blood was collected from these two places, yet it is extremely surprising that it was not sent for chemical examination and there is absolutely no proof of the fact that the alleged blood was human blood. The result is that prosecution has failed to substantiate the version of the prosecution witnesses as to the place of occurrence.
24. The manner of assault also appears to be highly doubtful. As already noted above, there was no indication in the first information report that either the deceased or injured Amarpal were attacked with lathi. However, during evidence the prosecution tried to make improvement when P.W. 1 Amarpal stated that he was first attacked with lathi. This would appear to be a belated attempt to explain the injury which, according to the doctor, could have been caused by a blunt weapon only. There according to doctor, P.W. 3 Akil Ahmad, the deceased could not have moved more than 2-4 paces after getting injury No. 2 and that he could not have walked more than 1-2 paces after getting injury No. 1. According to him, the deceased would have, in the normal course, fallen immediately on getting the injury No. 2. However, the prosecution witnesses P.W. 1 Amarpal and P.W. 2 Bijendra would make us believe that, in spite of getting these injuries, the deceased ran quite a long distance. The prosecution witnesses have also made rather unbelieveable statement that, out of six assailants, five fired at them and Kushalpal, but only Kushalpal was injured, at that point of time even though all these persons were standing together only a few feet away.
25. In Ram Narain Singh v. State of Punjab 1975 SCC (Cri) 571 : (1975 Cri LJ 1500), the Supreme Court has observed that where the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence, then it is a most fundamental defect and unless reasonably explained, it is sufficient to discredit the entire case. In the present case, it is quite apparent that the evidence of the witnesses is quite inconsistent with the medical evidence and the statement of the doctor. The sequence of even to particularly running of the deceased and Amarpal for quite a distance even after getting bullet injuries, is quite inconsistent with the statement of the doctor. The doctor, P.W. 3 Akil Ahmad, is categorical in his statement that the deceased could not have walked more than 2-4 paces after getting the injuries.
26. Indeed, the statements of the prosecution witnesses on almost all material points are most inconsistent and not facts and circumstances appearing from the evidence do not inspire confidence in their testimony. P.W. 1 Amarpal, who is alleged to have dictated the first information report, did not mention therein that he was attacked with lathi also. According to his own statement, he started running away immediately after getting lathi injuries and he only heard 5 or 6 gun shots, while he was lying in the grove, and that he did not see anything after he ran away from the culvert and till he saw the dead body of Kushalpal. It would appear from this statement that this witness did not really see how the deceased Kushalpal was attacked and who really attacked him. He has stated in the examination in-chief that he had dictated the first information report to the scribe Jang Bahadur Singh, but he contradicted himself in his cross-examination where in he admitted that he only gave the facts to the Sub-Inspector and it was he who dictated the first information report to Jang Bahadur Singh. According to him, he had got it scribed in the first information report that there was enmity regarding dairy and giving of milk, but this fact does not find place in the first information report. Moreover, on his own admission he had become unconscious on getting injuries and it seems unlikely that he could see or coherently describe the incident. His statement is not quite consistent with the medical testimony nor it could be believed in regard to the place of occurrence.
27. The learned counsel for the complainant laid much emphasis on the fact that P.W. 1 Amarpal is an injured witness and it was submitted by him that his testimony cannot be lightly discarded. Reliance has been placed by him on the Supreme Court decisions (Sic), Shyam Behari v. State of U.P. (1983) 1 Crimes 640 (All); Jamuna Chaudhary v. State of Bihar, AIR 1974 SC 1822 : (1974 Cri LJ 890) and Jagat Singh v. State, 1984 Cri LJ 1551 (Delhi). It has been observed in these cases that injured person is the best witness and that he would not easily substitute a wrong person in place of his real assailant. It has also been observed in the last mentioned case that the testimony of an injured witness cannot be discarded merely on the ground of slight discrepancy. However, it may be noted that it has not been observed in any of these cases that the testimony of injured witness must necessarily be accepted, even though there may be circumstances to indicate that he may not have been in a position to witness the incident properly or there may be circumstances to show that his testimony is otherwise not reliable. Indeed, it is not an infallible rule that the testimony of an injured witness must be accepted irrespective of there being grave infirmities in the statements. In the present case, it has been noted above that the testimony of this witness suffers from grave infirmities and, on his own admission, he was really not in a position to witness the whole incident or in fit mental state to describe it coherently at the first available opportunity, that is at the time of scribing of the first information report. Since the very first statement of the witnesses allegedly recorded by way of the first information report, has been found to be untrustworthy, his further statement must also necessarily create grave doubt about his version. Considering the entire facts and circumstances of the case, we are not prepared to accept the testimony of this witness as correct, merely because he is an injured witness.
28. The testimony of the only other alleged eye witness Bijendra P.W. 2 is still more untrustworthy. We have noted above that the alleged enmity, if at all, was against this witness but it is quite unbelievable that the appellants would not make any attempt to attack him, even though he was standing just adjoining the deceased and P.W. 1 Amarpal. It is also surprising that even though this incident allegedly happened before this witness, he made absolutely no attempt to shout or try to save his friends Amarpal or alleged partner Kushalpal. He did not even care to go to the injured or the deceased after the assailants had escaped. He did not also try to take the injured Amarpal to the police station or to the hospital. According to him, when the accused fired, he did not try to run away and remained standing there. These facts clearly show that this witness could not have been present at the place or time of occurrence and he could not have seen anything. If he was really there, it is quite unbelievable that he would not have tried to help the injured or lodge the first information report nor it could be believed that he would not have been attacked. The testimony of this witness must accordingly be rejected.
29. We also find much force in the submission of the learned counsel for the appellants that the prosecution did not produce independent witnesses who must have been present at the place of occurrence. It may be true that it is not always necessary for the prosecution to examine a number of witnesses, but, where the circumstances are such that the partisan witnesses' testimony may not be found to be fully trustworthy or where it is patently clear that the alleged eye witnesses could not have been present at the place of occurrence and the occurrence has taken place at a public place, it would then become necessary that the prosecution should examine independent witnesses. The incident is alleged to have taken place at the bus-stand, a public place. It is also not disputed that there were shots fired at the place and a number of persons would have been present there. The examination of these witnesses would have given much support to the prosecution version in regard to the place of occurrence and the culpability of the appellants. In the circumstances of this case, the failure of the prosecution to examine such independent witnesses must be found to be quite an infirmity against their version.
30. The learned counsel for the complainant has relied upon V. Thevar v. State of Madras AIR 1957 SC 614 : (1957 Cri LJ 1000) in support of his submission that single witness testimony may be sufficient to prove the guilt of the accused. But it is stated in this very case that such testimony would be sufficient if it is found to be entirely reliable. In the present case, we have already noted above that the testimony of the two alleged eye witnesses is not trustworthy at all.
31. The learned counsel also relied upon Rameshwar v. State of U.P. 1987 Cri LJ 442 (All) in support of his submission that, under the law, plurality of evidence is not at all required for bringing home the guilt of the accused and it is the quality of the witnesses, which is significant in appraisal of evidence. It has, indeed, been so laid down in this case, but, as already noted above, the quality of evidence produced does not inspire confidence and, as such the culpability of the appellants cannot be said to have been established on the basis of the testimony of the witnesses examined.
32. To sum up, therefore, the first information report is a highly suspicious document and it cannot be said that it was got scribed or was scribed faithfully at the dictation of P.W. 1 Amarpal. There was absolutely no motive for the appellants to commit the murder of Kushalpal or to cause injuries to Amarpal P.W. 1 The place of occurrence has not been satisfactorily established and, in regard to the manner of assault, there are inconsistencies in the statement of the witnesses, medical evidence and the probabilities of the case indicate that the attack could not have been made in the manner described by the prosecution witnesses. The testimony of the alleged eye witnesses P.W. 1 Amar Pal and Bijendra P.W. 2 does not inspire confidence. The prosecution did not examine any independent witness. For all these reasons, we are of the opinion that the prosecution has failed to prove its case against any of the appellants beyond reasonable doubt. The appeal is accordingly liable to be allowed.
33. The appeal is allowed. The judgment and the order of the learned Sessions Judge, convicting the appellants under Sections 302/34, IPC and under Sections 324/34, IPC, is set aside. The appellants are held not guilty of the offences with which they have been charged and are acquitted.
The appellants are on bail. They need not surrender.