JUDGMENT T.P. Garg, J.
1. This appeal by Sheo Dutt Dubey son of Mathurai accused is directed against his conviction under Section 304, Part II, IPC and sentence to undergo five years' Rigorous Imprisonment passed by Sri M.B. Godbole, Sessions Judge, Jalaun at Orai vide his judgment dated 9-11-1979.
2. The accused was charged under Section 302, IPC on the accusation : that on 3-5-1978-at about 10 a.m. in the town of Konch near the shop of Narain, he committed the murder of Khachere by inflicting Lathi injuries on him with the intention or knowledge of killing him. The accused claimed trial.
3. Briefly the facts of the case are as under:-
On 3-5-1978 at about 10.00 a.m. Parmai son of Khachere (since deceased) lodged a First Information Report, Ex. Ka 2, at Police Station Konch; that Sheo Dutt accused and Babu, both sons of Mathuri. who live in his mohalla, had dispute over the property between them and their relations were strained inter se. Further that his father, Khachere was on good terms with Babu, the brother of Sheo Dutt accused for which Sheo Dutt Dubey accused was annoyed. Further that at about 10 a.m. on that day i.e. on 3-5-1978 his father had gone to market to fetch some green vegetables where Sheo Dutt Dubey, accused, met him and complained that he was trying to be a great well wisher of Babu and he would be done to death. Khachere told him that he had absolutely no concern whatsoever with their family dispute on which the accused started belabouring his father causing him injuries on his head and other parts of the body. Jwala Prasad and Bala Prasad residents of his Mohalla and one Radhey Shyam Srivastava resident of Subhash Nagar, Konch witnessed the occurrence besides several other persons. The complainant and his brothers sent their father to the hospital while the complaint himself went to the Police Station to make a report, Ex. Ka 2.
4. Initially a case under Section 308, IPC was registered by the Police vide G.D. report No. 12, a copy of which is Ext. Ka 3. Sub-Inspector Dalthamman Singh, P.W. 5 of Police Station Konch investigated the case. He recorded the statement of Khachere in the case diary and thereafter, went to District Hospital Orai. He inspected the place of occurrence and prepared a site plan. Ex. Ka 7.1 le look blood strained earth in his possession vide memo Ex. Ka-8. Subsequently Khachere expired on the same day on which the case was converted into one under Section 304, IPC vide G.D. report No. 9, copy of which is Ex. Ka9. An inquest report and other connected documents (Ex. Ka 10 to Ex. Ka 13) were prepared by Sub-Inspector A.P. Tripathi. After completion of the investigation, P.W. 5, Inspector Dalthamman Singh submitted a charge-sheet Ex. Ka. 14 against the accused in the Court.
5. In support of the case, the prosecution examined as many as five witnesses. They are Dr. L.C. Gupta P.W. I, Permai P.W. 2, Jwala Prasad and Bala Prasad, alleged to be the eye-witnesses, P.Ws. 3 and 4, and Sub Inspector Dal Thamman Singh Investigating Officer, P.W. 5. The statement of accused was recorded under Section 313, Cr. P.C. The accused has denied the allegations and stated that it was a false case against him. He did not opt to lead any evidence in his defence.
6. Learned Trial Judge believing the prosecution version and disbelieving that of the accused held him guilty under Section 304, Part II, IPC and sentenced to him 5 years' R.I. vide his judgment dated 9-11- 1979 and against which the present appeal has been filed.
7. Learned counsel for the parties have been heard and records have been gone through. It was at the outset argued by the learned counsel for appellant that the evidence of Parmai, Complainant. P.W. 2, is at complete variation with the earlier version given by him to the Police and contained in his report Ex. Ka. 2. Further that the evidence of Parmai finds no corroboration whatsoever from any iota of evidence on record because both the alleged eye-witnesses; namely, Jwala Prasad and Bala Prasad have resiled and not supported the prosecution case. It has been further submitted by him that the prosecution has also withheld the best evidence in this case by not producing an alleged eye-witness; namely, Karan Singh. After hearing the learned A.G.A. and going through the evidence on record, I find that the argument advanced on behalf of the appellant carries considerable weight. Parmai complainant came in witness box as P.W. 2 and made a statement that at about 10 a.m. on the day of occurrence he was present in his house, that one Karan Singh son of Shiv Deen came to inform him that the father Khachere had been given beating by Sheo Dutt and he was lying near the shop of Narain; that thereafter, he called his brothers and Mohallawalas and taking them with him went to place where his father was lying near the shop of Narain and that he found his father lying injured. In reply to a question on behalf of the State as to whether he asked his father as to who had assaulted him, the witness replied that his father told him that Sheo Dutt accused came and told him that he was a well wisher of Babu and Sheo Dutt was armed with Lathi and he said that he would take his life. Thereafter, Sheo Dutt started belabouring him with Lathi and he entreated Sheo Dutt and told him that he had no eoneern with the dispute between the two brothers. But despite that he was given lathi blows by the aeeused. He goes on to say that Bala Prasad, Jwala Prasad. Radhey Shyam and Lamberdar were seen present on the spot at that time; that he removed his lather to Koneh Hospital with the help of his brothers, Jamuna Dass, Prabhu Dayal and Radhey Shyam while he himself went to Police Station to make a report. In his cross-examination, he admitted that he had not stated in his report to the police that his father told him anything about the occurrence after his arrival at the place of occurrence. From the evidence of this witness in cross-examination it is clearly established that he has made material improvements in his statement in the Court, over the first version given by him to the police and contain in FIR Ex. Ka 2. In the report, Ex. Ka. 2, there is no mention that this witness was present in his house at the time of occurrence and that he was informed by a boy, namely; Karan Singh, about the occurrence on which he along with his brothers and other residents of his mohalla went to the place of occurrence where his father was lying and who then made a statement before him. Again in his statement in the Court, he has mentioned that a boy namely; Karan Singh, came to his house and told him about his lather lying injured at the shop of Narain and thereafter, he went to the place of occurrence. This thing does not find mention in the report Ex. Ka. 2 to the Police nor Karan Singh, who is alleged to have informed him about the occurrence has been produced in evidence by the prosecution showing that the best evidence has been withheld from the Court. From the evidence of Parmai P.W. 2. the only eyewitnesses who has shown to have witnessed the occurrence is Karan Singh aforesaid, but then he has not been brought in the witness box nor even cited by the prosecution in order to prove its case against the accused. Moreover, there is no mention in the First Information Report Ex. Ka. 2 made by Parmai P.W. 2 that soon after the occurrence, he was present at his house when the occurrence took place and further he was told by Karan Singh about any such occurrence. Karan Singh is not even cited as a witness by the prosecution. All this shows that the best evidence has been withheld from the Court for the reasons known to the prosecution and which throws considerable doubt on the veracity of the case.
8. Moreover, in the report made to the police Ex. Ka. 2, there is no mention that Parmai went to the place where his father was lying injured and on inquiry his father told him about the assailant, the injuries and cause of annoyance for the accused to commit the crime. In fact, by introducing the aforesaid evidence in the Court through Parmai, P.W. a definite improvement is shown to have been made by introducing a dying declaration allegedly made by the deceased before his son Parmai. But then, the attempt on the part of the prosecution to do so has rendered its story completely unreliable. This thing finds further support from the fact that in his report Ex. Ka. 2 to the Police, Parmai nowhere says that he went to the place of occurrence after having been informed by Karan Singh and there he saw his father lying in injured condition. In fact, a perusal of the report Ex, Ka. 2 made to the Police by the complainant rather shows and gives an impression to the Court that Parmai himself was an eye-witness to the occurrence. But then, the said version given by the complainant in the report Ex. Ka. 2 at the earlier is at complete variance with his version of occurrence given in his evidence before the Court. In his evidence in the court, he has nowhere stated nor has given any such impression that he saw the occurrence at all rather the occurrence was perhaps seen by Karan Singh who has not been produced and his father has made a dying declaration before him about which he is completely silent in his earlier statement made to the police. All this shows that a lot of improvement has been made by the prosecution to prove its case against him which has rendered its story completely unreliable.
9. Moreover, the evidence of Parmai P.W. finds no corroboration from any iota of evidence. Jwala Prasad P.W. 4 and Bala Prasad P.W. 5 has resiled and have frankly stated that they did not see any such occurrence. In the absence of there being any independent witness to corroborate the statement of Parmai who is the son of the deceased, his evidence will have to be scrutinized with all the more care and caution. The trial Judge has relied upon the evidence of Parmai P.W. but then the reasons for doing so are neither cogent nor sound. The trial Judge has tried to highlight the relations between the accused and his brother Babu on the one hand and relations between the deceased and Babu on the other hand, to prove that the accused and the deceased might have fallen out and indulged in wordy dual in bazar when they came across each other and the accused inflicted injuries on the deceased. He has lost sight of the fact that Parmai's version given in the FIR Ex. Ka. 2 and that given in the Court subsequently in his evidence as P.W. 2 i s at complete variance with each and other and is rather contrary. As stated above, a bare perusal of the FIR shows that Parmai was perhaps an eye-witness of the occurrence which is not the case when we go through his evidence at P.W. In the Court he has introduced all together new and entirely different version by saying that his father made a story by declaration before him. In absence of any independent corroboration of Parmai P.W. it is not safe to place reliance on the sole testimony which is not only self contradictory but the same has been introduced in order to fasten the accused with the crime. The report was lodged by him with the police on 3-5-78 and he came in the witness box on 30-10-1970 i.e. after a period of one year and five months. Thus, the alleged dying declaration said to have been made by the deceased has been introduced for the first time after a period of one year and five months of the occurrence and so also Karan Singh has been introduced as an Eye-witness after that very period, thus, making the story of the evidence of Parmai P.W. unrealiable. It was half heartedly argued on behalf of the State that the Investigating Officer has recorded the statement of Parmai P.W. in his case diary with regard to the alleged dying declaration. But then that seems to be all by way of padding. It will be further established from another fact on record. The occurrence is shown to have taken place at about 10 a.m. Khachere is said to have expired at 2-45 p.m. on the same day after 4-5 hours of the occurrence, and was admitted in the hospital at Konch which is said to be the divisional Headquarters where a Tehsildar/Executive Magistrate, Judicial Magistrate, and Sub-Divisional Magistrate are all available all the time. There was no reason nor has been explained by Sub-Inspector Dalthamman Singh P.W. 5 I.O. as to why he did not approach any one of them to go to the Hospital and record the statement of Khachere who was in danger of death on account of injuries sustained by him. It has been stated by the said Investigating Officer in his evidence P.W. 5 that Khachere was very much in sense and was conscious when the alleged dying declaration was made by him. But then, this belies the statement of Paramai P.W. 2 who has stated that the condition of his father was very serious when he was sent to the Hospital. It was urged on behalf of the State that no' doctor was available at Konch Hospital so Khachere was removed to Orai Hospital at District Headquarters. But then it is undisputed that even at Orai, there was available a large number of Judicial Magistrates and Executive Magistrates who could have very well be approached to go to the Hospital and record the dying declaration of the deceased. All these show a complete apathy on the part of Investigating Officer in taking up the investigation of the case in right earnest and (sic) substantial improvement on the part of the complainant to rope in the accused by whatever means possible and make whatever improvement required for the purpose. All these have completely rendered the testimony of not only Parmai P.W. 2 but also of Investigating Officer, unreliable. In my opinion, therefore, the prosecution has failed to lead cogent and reliable evidence to prove its case against the accused beyond reasonable doubt, and the accused is, therefore, held to be entitled to the said benefit.
10. In view of the foregoing, this appeal succeeds and is accepted. The conviction and sentence of the accused are both set aside and he is acquitted of the charge and his bail bonds are discharged.