JUDGMENT M. Chaudhary, J.
1. This is a government appeal from judgment and order dated 31st of March, 1981 passed by III Additional Sessions Judge, Budaun in Sessions Trial No. 386 of 1978 State v. Aminuddin and Anr. acquitting the accused of the charge levelled against them under Section 307 read with Section 34 IPC. Trial of accused Raisul Hasan was separated as at the stage of the statement of the accused he absented himself and his presence could not be procured. Accused Janab Alain died during pendency of the case.
2. Brief facts giving rise to this appeal are that Argaban-ud-din and Burhan-ud-din were real brothers and Imran-ud-din was the son of their cousin sister Bujan. Bujan was married to Iqtidar-ud-din. Iqtidar-ud-din and Biqar-ud-din were real brothers and Aquil Ismail was the son of their sister Salam Begum. Nozim-ud-din was the son of Biqar-ud-din. Janab Alam, Nawab Alam and Zaney Alam were real brothers and Raisul Hasan was the son of Zaney Alam. Zulfikar-ud-din and Aminuddin were the sons of Smt Idrisan, cousin sister of Janab Alam. Argaban-ud-din and their family members were on inimical terms with Aminuddin and their family members. Some 5-6 months prior to the occurrence Janab Alam was caused gunshot injury and a report of that incident was lodged by Aminuddin against Iqtidar-ud-din and his ccousins Nazim-ud-din and Aqull Ismail and all three were being prosecuted for causing firearm injuries to Janab Alam During the night between 3rd and 4th of August 1978 Argaban-ud-din and his sister's son Imran-ud-dln along with one Shakir, Asrar and Shabbir Khan were returning back to their village from Kailash 'Talkies after seeing night night show and at about 00:30 mid night as they reached near Har Prasad temple they saw Aminuddin and Janab Alain armed with guns along with Zulfiqar-ud-din with countryrnade pistol and Raisul Hasan with lathi present near the boundary of the temple in the electric light. Sighting Imran-ud-din and Argabart-ud-din they shouted that they had good opportunity and they would not let them go alive and immediately Janab Alarn fired a shot at Argaban-ud-din but he had a narrow escape and Aminuddin fired at Imran-ud-din hitting him at his face and again Janab Alam fired at Imran-ud-din causing firearm injuries at his should of and their two associates were shouting that they would not be permitted to go alive. Sustaining the firearm injuries Imran-ud-din fell down and then all the miscreants took to their heels shouting that they had avenged for being fired at. Then leaving injured Imran-ud-din under supervision of Shakir, Asrar and Shabbir Khan, Argaban-ud-din went to his house and informing his family membera thereabout returned back to the spot but by that time his companions had taken Imran-ud-din to the Hospital. Then Argaban-ud-din ruslied to the Hospital and after seeing him he went to the police station Budaun Kotwall and gave written report of the occurrence to the police there at 2:40 a.m. the same night. The police prepared check report on the basis of written report of the occurrence handed over by Argaban-ud-din at the police station and made entry regarding registration of the crime in GD. SI Laxman Singh to whom, investigation of the crime was entrusted recorded statement of Argaban-ud-din, the first informant at the police station itself.
3. Medical examination of injured Irnran-ud-din by Dr Hamidullah, Medical Officer District Hospital Budaun at 1:40 a.m. revealed below holed injuries on his person:
1. Multiple gun shot Wounds dispersed an face, neck, lips, chin measuring 0.2 cm x 0.2. cm circular in shape with Inverted margins. Fresh oozing of blood from the wounds present but no tattooing or blackening present. Dispersal about 1.2 cm apart.
2. Multiple gun shot wounds dispersed on left deltoid region left Upper arm top of left shoulder region, each measuring 0.2 cm x 0.2 cm but no tattooing or blackening present. Dispersal about 1.2 cm apart.
3. Left canine tooth broken.
The doctor opined that all the injuries were caused by firearm and fresh in duration. Injury no. 3 was found to be grisvous. All the injuries were kept under observation.
4. SI Laxman Singh to whom investigation of the crime was entrusted went to the District Hospital, Budaun and recorded statements of the witnesses and took blood stained vest of Imran-ud-din and prepared its memo (Ext Ka 7). Then he went at the spot, inspected the scence of occurrence and prepared its site plan map (Ext Ka 8). Thereafter he Searched for the assailants but in vain.
5. Next morning injured Imran-ud-din was referred to Medical College Aligarh for his treatment and then he was rushed to Aligarh. But due to some problem he was not admitted there and then he was taken to District Hospital, Aligarh where he was admitted. X-ray of his lower jaw and left shoulder revealed multiple radio opaque foreign body shadows of metallic density in upper part of shoulder and lower law. No bony abnormally was seen.
6. After completing the investigation the police submitted charge sheet against the accused accordingly.
7. After framing of the charge against the accused the prosecution examined Argaban-ud-din (PW I), Jmran-ud-diii (PW 2) and Shabbir Khan (PW 3) as eye witnesses of fhe occurrence.^p^lw medically examined injured tmran-ud-din in District Hospital Budaun on 4th of August 1978 has proved the injury report. PW 5 Or N. K. Maheshwri Anesthetist who x-rayed left shoulder and lower jaw of it\|umJ Imran-ud-din has proved the x-ray report. PW 6 SI Laxman Singh who investigated the crime and after completing the investigation submitted charge sheet against the accused has proved the police papers. PW 7 Dr P.K.Wadhwa, the then Dental Surgeon,District Hospital Aligarh who found two teeth of injured Imran-ud-din broken in part and noted the said fact in bed head ticket has stated that fact.
8. The accused denied the alleged occurrence altogether stating that they were got implicated in the case falsely on account of enmity. They did not adduce any evidence in their defence.
9. We have heard Sri A.K. Verma, learned AGA for the State appellant and Shri P.N. Mishra, Learned Senior Advocate for the accused respondents and gone through the record.
10. Admittedly Argaban-ud-din and his family members on one hand and Aminuddin and his family members were on inimical terms.Some 6-7 years prior to the occurrence one Nazurruddin and his brother Wajiruddin were murdered and accused Janab Alam and his brother Zaney Alam alongwith few others were prosecuted therefor and in that murder case Burhanuddin @ Shamin, brother of Argaban-ud-din appeared as witness against the accused and that case ended in the conviction of Janab Alam and others. At the time of occurrence the accused were on bail from the High Court in appeal. Admittedly some eight years prior to the occurrence some dispute took place between accused Aminuddin and Zulfiqar-ud-din on one hand and Fazal Rahim on the other over tubewell and in that case the accused were prosecuted and Argaban-ud-din and his brother Burhanuddin and sister's son Imran-ud-din stood as witnesses for Fazal Rahim. Admittedly some 6-7 months prior to the occurrence accused Janab Alam was fired at and received injuries and Azimuddin lodged a report of that incident against Imran-ud-din and his cousins Nazimuddin and Aquil Ismail and they were being prosecuted therefor. At the time of occurrence Zaney Alam, brother of Janab Alam was also prosecuted under DIR and Iqtidar-ud-din, father of Imran-ud-din appeared as a witness against Zaney Alam. Thus admittedly "the parties were inimical with each other. However, enmity cuts both ways. If the accused had motive to attack Argaban-ud-din,and Imran-ud-din due to enmity the latter could also implicate the accused falsely due to that.
11. PW1 Argaban-ud-din and PW2 Imran-ud-din both deposed that the injuries caused to Imran-ud-din bled much and the blood fell on the berm of the roadside. However PW6 SI Laxman Singh who inspected the scene of occurrence at the pointing out of PWI Argaban-ud-din, maternal uncle of the injured in the morning at 8: 30 a.m. staled that no blood was found at the scene of occurrence nor any empty cartridge, pellets etc. were found there. PWI Argaban-ud-din also admitted that when the incestigating officer visited the scene of occurrence- no blood, empty cartridge or pellets were found there. However, PWI Argaban-ud-din stated that at about 2:30 or 3:00.a.m. after the occurrence there were rains and it cou(d be that due to rain blood was not available there. PW3 Shabbir Khan stated that about 2:30 a.m. when treatment was being provided to Imran-ud-din in the emergency ward he alongwith Shakir and Ashraf were stands outside the main gate of the hospital. It has come in evidence that gate of the hospital was at a distance of about 50 paces from the emergency ward. According to PW 1 Argaban-ud-din at about 2:30 a.m. or so when he reached the hospital all the three persons were standing in front of the main gate of the hospital. It goes to falsify the statement of PW 1 Argabaa-ud-din that at about 2:30 and 3:00 a.m. it was mining. Since no empty cartridge, pellet or tikli etc. was found at the scene of occurrence nor any blood was found there it doubtful if the incident occurred at the place alleged by the prosecution.
12. PW1 Argaban-ud-din and PW2 Imran-ud-din both stated that at about 00:30 a.m. as they were about to reach Har Prasad temple they saw all the four accused armed with guns, coutrymade pistol and lathi from a distance of some 50-60 paces. It is incomprehensible and unintelligible that they being on inimical terms with Aminuddin and his associates, after sighting them armed with firearms from a distance of 50-60 paces why they proceeded further towards them, though they had sufficient opportunity to go buck and run away being at a distance of 50-60 paces from them. Further, both of them staled that as they reached hear Har Prasad, temple all the lour assailants shouted that they would not let them go alive and Janab Alain fired at Argaban-ud-din with gun but he had a narrow escape and the shot fired by Aminuddin hit lmran-ud-din at his face and that in the meanwhile Janab Alain fired another shot at lmran-ud-din hitting him at his shoulder but thereafter none of the three assailants possessed with firearms fired at Argaban-ud-din. If the assailants had the intention to cause fatal injuries to Argaban-ud-din and Imran-ud-din they had full opportunity to cause fatal injuries to both of them. Julfiquar-ud-din, brother of Aminuddin who was possessed with countrymade pistol ded not fire at either of them. Furthermore, it appears to be somewhat improbable that leaving injured Imran-ud-din under the supervision of Shakir, Shabbir Khan and Ashraf, Argaban-ud-din, maternal uncle of the injured would go to his house directing them to stay there just to inform his family members and take money as stated by him. Admittedly Argaban-ud-din had more than Rs. 20.00 at that time for rickshaw etc and the police station was only one km away from the place of occurrence. Argaban-ud-din taking injured Imran-ud-din alongwith one of his companions could have very well gone to the police station situate at a distance of one km only from that place in a ricksliaw and could have sent his other companions to inform at his house about the incident. Further, PW3 Shabblr Khan stated that since (nttWHld-din Was feeling quite uncomfortable he asked them to take him to the hospital and then they took him to the District I Hospital, Budaun and then two of them took Inured Imran-ud-din giving support to him to the emergency room, PW2 Imran-ud-din stated that since he was feeling restless and uneasy he asked Shabbir and his companions to take him to the hospital and that they look him; to the District Hospital, Budaun in a rickshaw and since emergency word was upstairs, Shabbir and Shakir took giving support to him to the emergency room where the doctor was avallable However, a perusal of the injury report goes to show that he had gone lo the doctor himself and none accompanied him. All these lads facts and circumstances go a long way to render the presence of PW1 Argaban-ud-din and PW3 Shabbir Khan doubtfiil at the scene of occurrence. It appears that the incident did not occur at the time, place and in the manner alleged by the prosecution and Imran-ud-din was fired at somewhere else and he could not recognize the assailants and that on receiving information his maternal uncle Argaban-ud-din alongwith his relatives and acquaintance reached the hospital and it was thereafter that FIR was lodged at the police station.
13. There is also inconsistency between ocular testimony and medical evidence. PW2 Imran-ud-din, the injured stated that his two teeth were broken when he was fired at and received injuries at lower part of his face whereas a perusal of the injury report ( Ext Ka 2) goes to show that his left canine tooth was broken and other teeth were intact. However PW7 Dr P.K. Wadhwa, the then visiting surgeon, District Hospital, Aligarh stated that his two teeth were broken in part.
14. Thus, in view of the above incongruities and infirmities in the prosecution case and evidence we are in full agreement with the findings recorded by the learned trial judge. He has given cogent and convincing reasons for acquitting the accused and the findings recorded by him cannot be said to be perverse and erroneous. The appeal has got no merit and is liable to be dismissed.
15. The State appeal is hereby dismissed. The finding of acquittal recorded by the trial court is affirmed. Accused respondent Aminuddin is in jail. He shall be released from the jail forthwith, if not wanted to remain therein in any case. Accused respondent Zulfiqar-ud-din is already on bail. His bail bonds are hereby discharged.
16. Certified copy of the judgment alongwith record of the case be transmitted to the court below for necessary compliance under intimation to this court within two months.