JUDGMENT M.C. Jain, J.
1. Both these appeals have arisen from judgement dated 24.3.1982 passed by VI Additional Sessions Judge, Mainpuri in S.T. No. 272 of 1980. Shiv Mangal Singh and Chhotey Singh filed Criminal Appeal No. 782 of 1982. Out of them, Chhotey Singh died during the pendency of the appeal and the same abated so far as he was concerned under order dated 2.12.2005. Crimial Appeal No. 794 of 1982 has been filed by Gandharv Singh and Rajvir Singh, both sons of Chhotey Singh. Gandharv Singh was convicted under Section 302 I.P.C. with sentence of life imprisonment and the other three under Section 302 read with Section 34 I.P.C. To each of them also sentence of life imprisonment was awarded. That apart, all of them were convicted under Section 323 read with Section 34 I.P.C. with the sentence of one year's rigorous imprisonment. The sentences were to run concurrently. We propose to decide both appeals together by this common judgement.
2. The relevant facts may be stated shortly for the appreciation of succeeding discussion. The incident occurred on 11.7.1979 at about 9.00 A.M. in village Onha situate at a distance of four miles from the Police Station Kurra, District Mainpuri and the F.I.R. was lodged the same day at 10.30 A.M. by an eye-witness-Brij Raj Singh PW 1. In the incident, Gopal Singh was murdered and Ram Nath PW 2 and Sompal sustained injuries. A day preceding the occurrence, paddy crop grown by Naresh Singh PW 3 had been grazed by the cattle of the accused Shiv Mangal Singh and Chhotey Singh. Naresh Singh, his cousin Brij Raj Singh PW 1 and Gopal Singh deceased complained of it to the accused that very day who retorted back with abuses, threatening that their cattle would continue to cause damage the same way and that they would also deal with them properly. On the eventful day at about 9.00 A.M., Brij Raj Singh PW 1 and his brother Gopal Singh were sitting at the door of their house. Gopal Singh's son Ram Nath was going towards his fields. Four accused were at the door of one of them Chhotey Singh. Shiv Mangal Singh had his licensed rifle and the other accused were armed with lathis. When Ram Nath reached near the house of Chhotey Singh, Rajvir Singh accused struck him with lathi. On the cries of Ram Nath, Brij Raj Singh PW 1, Gopal Singh deceased and their mother Sarbati Devi rushed to his rescue. Accused Gandharv Singh then struck lathi on Sarbati Devi who fell down. Gandharv and Rajvir Singh then pulled Gopal Singh to the ground there. Rajvir Singh sat on his chest while Gandharv Singh throttled him (Gopal Singh), gagging his mouth. Naresh Singh PW 3 and some other persons were attracted to the scene but could not dare to interfere as Shiv Mangal Singh with his rifle ready in his hand was saying that anybody approaching would be killed. Chhotey Singh was hurling abuses and inciting the other accused to kill Gopal Singh. Due to fear, none could come forward to save Gopal Singh. The witnesses and other villagers who had gathered were only imploring the accused to leave Gopal Singh, pleading for his life. The accused then left Gopal Singh and went away. It was found that he had breathed his last. The dead body of the deceased-Gopal Singh was then removed by his relations and placed on a cot under neem tree at a short distance away.
3. Brij Raj Singh wrote down the F.I.R. and took it to the police station where he lodged it. A case was registered with preparation of chick report and entry in G.D. by the then Head Constable Babu Singh PW 4 and investigation was taken up by S.I. Netrapal Singh examined as CW1. He reached the spot and prepared inquest of the dead body of the deceased and other necessary papers. He did other activities related to investigation. The dead body, after being sealed, was sent for post mortem which was conducted by Dr. A.N. Saxena PW 5 on 12.7.1979 at 10.00 A.M. The deceased was aged about 52 years and about one day had passed since he died. The following two ante mortem injuries were found on his person:
1. Bruise 5cm x 3 cm on right side neck, 3 cm below angle of mandible right, Brown dry.
2. Bruise 6 cm x 2.5 cm on left side neck, 4 cm below left angle of mandible. Brown dry.
4. On internal examination, membranes and brain were found congested, fracture of hyoid bone was found. On opening, trachea was found red congested containing blood froth and mucus. Both lungs were congested. The death had occurred one day before due to asphyxia caused by strangulation.
5. The defence side dispensed with formal proof of the injury reports of Sarbati Devi and Ram Nath PW 2. The former was examined on 11.7.1979 at 8.00 P.M. Three contusions were found on her person. The latter was examined on 11.7.1979 at 8.10 P.M. One contusion was found on his person. Injuries of both of them were simple, caused by blunt object and about half day old as opined by the Doctor of P.H.C. Karhal where they were examined.
6. The accused denied the incident as also of the earlier day. According to them, they had been falsely implicated owing to party factions.
7. The prosecution examined five witnesses. Out of them, Brij Raj Singh PW 1, Ram Nath PW 2 and Naresh Singh PW 3 were witnesses of fact. The then Head Constable Babu Sing PW 4 had prepared chick report and registered the case in G.D. Dr. A.N. Saxena PW 5 had conducted autopsy on the dead body of the deceased. The Investigating Officer Netrapal Singh was examined as CW 1.
8. Believing the prosecution case on the basis of the testimony of the witnesses, the court below found the guilt of the accused to be established and convicted and sentenced them as stated earlier.
9. We have heard Sri P.N. Misra, learned Senior Advocate from the side of the accused-appellants and Miss N.A. Moonis, learned A.G.A. from the side of the State. Record is before us which we have carefully perused. The submissions of Sri Misra may be summarized thus: There was no motive on the part of the accused-appellants to commit this crime; the so-called injured of the incident were not sent for medical examination by the Investigating Officer immediately on reaching the spot and dead body was shifted from the alleged place of incident under neem tree on a cot; damage to the crop by the accused's cattle the previous day was not verified and that the story as put-forth by the prosecution was improbable to be believed.
10. On the other hand, the learned A.G.A. has urged that the testimony of the eye-witnesses fully established the guilt of the accused. The ocular version, according to her, was in conformity with the medical evidence. She pleaded for the endorsement of conviction of the accused-appellants with sentences passed against them. __ ___
11. On consideration of the matter in the light of the arguments advanced from the two sides in the wake of evidence brought on record, we find that the conviction recorded by the trial court is fairly questionable and is incapable of being sustained for several reasons which we intend to deal with in the discussion that follows:
Though the motive is insignificant in a case of direct evidence, but since the prosecution in the instant case came up with a motive, it is desirable to test it. The motive allegedly was that on the preceding day to the occurrence, the paddy crop of Naresh Singh PW 3 (cousin of complainant Brij Raj Singh PW 1 and the deceased Gopal Singh) had been grazed by the cattle of accused Shiv Mangal Singh and Chhotey Singh. Gopal Singh deceased, Brij Raj Singh PW 1 and Naresh Singh PW 3 had complained of it to the accused that very day, but they had hurled abuses in reply, holding out that their cattle would continue to cause damage the same way and that they would also deal with them. The next day (11.7.1979 at 9.00 A.M.), the incident occurred when Ram Nath PW 2 was going towards his fields. Obviously, the persons on the prosecution side had not done anything to the detriment of the accused to incur their displeasure. Instead, it were the accused whose cattle had grazed the paddy crop of Naresh Singh the previous day. When the persons on the prosecution side complained to them in this regard, they audaciously held out that their cattle would continue to cause damage the same way and they would even deal with those making complaint. Judged in this backdrop, it does not stand to reason that the four accused while sitting at the door of one of them Chhotey Singh would have started the incident of assault on Ram Nath Singh PW 2 who was going to his fields the following day. Ram Nath Singh is the son of Gopal Singh deceased. It has come down from his statement in para No. 4 that Naresh was living separately from them with separate agricultural holding. In other words, the agricultural land of Brij Raj Singh, Gopal Singh and Ram Nath was not joint with Naresh Singh. In this view of the matter, it was all the more improbable that the accused would have pounced upon Ram Nath, assaulting him when he was going to his fields the following day of the alleged grazing of their cattle in the field of Naresh Singh. Further, the Investigating Officer did not verify the alleged damage of the paddy crop of Naresh Singh, though as per the statement of Naresh Singh in para No. 4, the distance of that field from village abadi was only 100-150 paces. Thus, there was no physical corroboration of the alleged damage to the crop of Naresh Singh which, according to the prosecution, was the foundation of the present incident. Obviously, the very foundation of the alleged incident putforth by the prosecution was fishy.
Secondly, the so-called two injured of the felony, namely, Ram Nath Singh and Sarbati Devi were not immediately sent for medical examination by the Investigating Officer. The F.I.R., it would be recalled, was lodged by Brij Raj Singh PW 1 on 11.7.1979 at 10.30 A.M. and as recorded in the inquest report and as stated by the Investigating Officer, he immediately reached the spot. The preparation of the inquest report was taken up by him at about 12 O' Clock in the noon. However, medical examination of Sarbati Devi was conducted at P.H.C. Karhal on 11.7.1979 at 8.00 P.M. and that of Ram Nath Singh PW 2 at 8.10 P.M. that night. There was only one contusion on the person of Ram Nath Singh and three contusions on the person of Sarbati Devi. There was no apparent cause for delayed medical examination of these two so-called injured of the same incident. Ram Nath Singh with whom the incident allegedly started was not a witness of the inquest report either as we gather from perusal of the same ( Ext. Ka-10). It can justifiably be inferred that he was not present at the time the Investigating Officer reached the spot and started preparing the inquest report, as otherwise he would have naturally been one of the Panches.
Thirdly, as per the own case of prosecution, two of the accused, namely, Shiv Mangal Singh and Chhotey Singh ( now dead) did not participate in actual assault. Shiv Mangal Singh was allegedly armed with rifle and Chhotey Singh had a lathi. Chhotey Singh allegedly simply exhorted Gandharv Singh and Rajvir Singh to kill Gopal Singh who had allegedly been downed by them on the ground. Shiv Mangal Singh was scaring the witnesses with his rifle. It is unusual feature that Shiv Mangal Singh with a superior weapon (rifle) only held it to scare away the witnesses and did not participate in the incident. The role of exhortation assigned to Chhotey Singh was also unconvincing. It sounds to be illogical that he would be contented only by exhortation without using the lathi that he allegedly held.
Fourthly, the incident allegedly took place in front of the house of the accused Shiv Mangal Singh and Chhotey Singh on the way, but the dead body of Gopal Singh was removed from that spot and kept on a cot under neem tree behind the Chaupal of Chhotey Singh and Shiv Mangal Singh accused. It is there in the testimony of Brij Raj Singh PW 1 that Gopal Singh had been found to be dead immediately after the incident. Naresh Singh PW 3 also testified in para 3 that Gopal Singh died on the spot itself. It being so, it was hardly necessary to remove the dead body from the spot to be kept on a cot under neem tree behind the Chaupal of Shiv Mangal Singh and Chhotey Singh accused before the arrival of the Investigating Officer. The removal of the dead body of Gopal Singh from the alleged spot creates genuine doubt as to the happening in the manner alleged by the prosecution.
Fifthly, no apparent injury was found by the Investigating Officer while preparing of inquest report when he found the dead body on a cot under neem tree behind the Chaupal of the accused. The opinion of the Panches (Puran Singh, Vishwanath Singh, Tilak Singh and Kamtal Prasad) is recorded to this effect:
ßge lc iapks dh jk; gS fd xksiky flag dh e`R;q gks xbZ gS] fdl izdkj e`R;q gqbZ] mldk dkj.k ge yksxksa dks ugh ekywe gS AÞ
12. The gist of the testimony of the eyewitnesses was that after downing Gopal Singh on the ground, Rajvir accused had sat on his chest and Gandharv Singh had pressed his mouth and neck with his hands. He was allegedly felled to the ground facing the sky. In the post mortem also, no injury was found on any other part of his body excepting a bruise 5 cm x 3 cm on right side of the neck and another bruise 6 cm x 2l/2 on the left side of neck. There was no injury indicative of any struggle which would have ordinarily been there in case of alleged throttling of the deceased by Gandharv Singh as testified by the prosecution witnesses. Though Brij Raj Singh PW 1 stated that Gopal Singh was fluttering when throttled, there was neither any injury on his back nor on chest which would have ordinarily been there if he ( Gopal Singh) had been downed with back downward and Rajvir Singh sat on his chest when he was throttled by Gandharv Singh.
13. It was the month of July. In the post mortem conducted on 12.7.1979 at 10,00 A.M. it was estimated that the death had occurred one day before. Leaving margin for probable time of death on either side, it could have taken place a little before dawn under the cover of darkness on 11.7.1979. The place where the dead body was found by the Investigating Officer on a cot under neem tree belonged to the prosecution side. The neem tree was a little east to the house of Naresh Singh PW 3. Possibility could not be ruled out that Gopal Singh had been done to death under the cover of darkness while sleeping under the neem tree a little east to the house of Naresh Singh PW 3. It has come in the testimony of Brij Raj Singh PW 1 that the accused were his collaterals. May be that some animosity was brewing silently in the hearts of the persons on the two sides and needle of suspicion stayed on the accused persons who so came to be implicated. Ram Nath PW 2 and Sarbati Devi were not established to have sustained injuries in the same incident as alleged by the prosecution. As a matter of fact, the prosecution utterly failed to establish the happening of the whole incident including the murder of Gopal Singh in the manner alleged by it. Rather, careful scrutiny of the evidence on record indicates as if the prosecution suppressed the genesis and origin of the occurrence and presented a distorted picture, weaving a story implicating the accused on mere suspicion. The trial court was, therefore, not justified in convicting the accused.
14. For the foregoing reasons, we allow both the criminal appeals and set aside the order of conviction and sentences as passed against the accused by the court below. The appeal has already abated in respect of Chhotey Singh who died during the pendency of the appeal.
15. Certify the judgement to the lower court immediately.