JUDGMENT M. Chaudhary, J.
1. This is an appeal from judgment and order dated 19lh of March, 1998 passed by VII Additional Sessions Judge Meerut in Sessions Trial No. 2693 of 1995 State v. Anil and Anr. acquitting the accused of the charge levelled against them under Section 302 IPC.
2. Brief facts giving rise to this appeal are that Ved Pal, Hukam Singh and Husan Singh were real brothers and Devendra was the son of Hukam Singh, All of them used to reside at village Rajapur within the limits of police station Saroorpur, District Meerut. Ved Pal was dealer of Mr price shop there. In the forenoon of 3rd of July, 1995 Anil went to the house of Ved Pal to have sugar on his ration card and asked Ved Pal to give 20 Kgs of sugar. Ved Pal replied that only one kilogram of sugar was to be provided to him on his ration card and that he could give him only that much sugar. Thereon Anil went annoyed uttering that he used to provide sugar to others as demanded by them and why he would not give him the sugar demanded by him. After a little while Ved Pal alongwith Tazuddin and Bhopal all the three proceeded to the house of Peetam as there was a least and at about 1:00 p.m. when they were going there Anil armed with countrymade pistol and Jagpul with a brick followed them and in front of the house of Ishwar Anil fired at Ved Pal with countrymade pistol and sustaining the firearm injury Ved Pal fell down and then Jagpal gave him brick blows. Immediately Tazuddin and Bhopal challenged them and then both the assailants took to their heels. Ved Pal succumbed to the injuries sustained by him instantaneously on the spot. Then Husan Singh got a report of the occurrence scribed by his nephew Devendra and went to police outpost Khiwai, police station Saroorpur and handed over written report of the occurrence to the police there. The police prepared check report on the basis of the written report handed over there and made entry regarding registration of the crime in the GD accordingly. Investigation of the case was entrusted to SI K.K. Shastri who visited the scene of occurrence. Me drew inquest proceedings on the dead body of Ved Pal-preparing the inquest report (Ext Ka 4) and other necessary papers (Exts Ka 5 to Ka 9) and handed over the dead body in sealed cover alongwith necessary papers to constables Gaya Prasad and Subhash for being taken for its post mortem.. Then he collected blood stained and simple earth from the scene of occurrence and also picked up blood stained brick from there, sealed them in separate packets and prepared their memos (Exts Ka 10 & Ka 11). He also inspected the scene of occurrence and prepared its site plan map (Ex.1 Ka 12). He also recorded statements of the witnesses. Next day investigation of the case was taken up by station officer J.K.Singh, police station Saroorpur in his hands.
3. Autopsy on the dead body of Ved Pal conducted by Dr. H.M. Saxena, the then Senior ENT Surgeon District Hospital Meerut on 4th of July 1995 at 3:00 p.m. revealed below noted ante mortem injuries on the dead body:
1. Multiple lacerated wounds in tin area of 5 cm x 2 cm x bone deep on left side forehead varying in size maximum 2 cm x 0.5 cm and minimum 1 cm x 1 cm.
2. Contusion 8 cm x 5 cm on the left side face and forehead including eye.
3. Lacerated wound 4 cm x 1 cm x hone deep on right forehead extending to inner end of eye brow.
4. Lacerated wound 2 cm x 1 cm x bone deep on right side face 1.5 cm below right eye.
5. Contusion 8 cm x 4 cm on face and nose on right side front below right eye.
6. Multiple lacerated wounds in an area of 10 cm x 8 cm x bone deep on hack of head maximum 2.5 cm x 1 cm and minimum 2 cm x 1 cm 6 cm inner to right ear.
7. Firearm wound of entry 2 cm x 1.5 cm x chest cavity deep on right side neck front part 1 cm above the root of neck with blackening on the wound margins, piece of wadding superficially present over the wound.
8. Firearm wound of exit 3 cm x 2 cm x chest cavity deep on right side back of chest 23 cm inner to the right shoulder communicating to injury No. 7.
On internal examination occipital and parietal bones underneath injuries No. I, 3 and 6 were found fractured. Brain and its membranes were lacerated. Middle cranial fossa at the base of skull was fractured and thoracic vertebrae TI and T2 were fractured under injuries No. 1 & 2. 2nd and 3rd ribs were fractured Right lung and pleura, oesophagus, trachea and cervical vessels were lacerated. Chest cavity contained clotted blood 200 ml.
The doctor opined that the death was caused due to shock and haemorrhage as a result of ante mortem injuries about one day ago.
4. It appears that accused Anil surrendered in ice court of Chief Judicial Magistrate Meerut. He was interrogated by the investigating officer in the Jail. Then he took accused Anil on police remand and on 25th of July 1995 he recovered a countrymade pistol alongwith a Jive cartridge of 315 bore from near the manger from the eastern and southern corner of the courtyard in his house at the instance of accused Anil. He sealed the countrymade pistol alongwith live cartridge recovered at the instance of accused Anil in a packet and prepared its recovery memo (Ext Ka 13). SI Ram Sanehi, police station Soroorpur visited the place of alleged recovery of the country made pistol alongwith live cartridge at the instance of accused Anil by the investigating officer and prepared its site plan map (Ext Ka 15).
5. After completing the investigating the police submitted charge sheet against the accused accordingly.
6. After framing of the charge against the accused the prosecution examined Bhopal (PW 1) and Husari singh (PW 2) as eye witnesses of the occurrence. PW 3 Devendra who scribed the written report of the occurrence on the dictation of Husan Singh, the first informant has narrated Ice said fact. PW 4 Gaya Prasad to whom dead body in a scaled cover along with necessary papers was handed over for being taken for its post mortem has stated the said fact. PW 5 Dr. B.M. Saxenu, Senior BNT Surgeon who conducted autopsy on the dead body of Ved Pal has proved the post mortem report. PW 6 SI K.K. Shastri who initially investigated the crime has proved the police papers. PW 7 station officer J.K. Singh police station Soroorpur who took investigation of the crime in his hands on 4th of July, 1995 and recovered countrymade pistol alongwith a live cartridge at the instance of accused Anil from the courtyard inside his house has also appeared as a witness of alleged recovery and proved the recovery memo. After completing the investigation he submitted charge sheet against the accused accordingly (Ext Ka 15). PW 8 SI Ram Sahehi who prepared the siteplan of the place from where the alleged recovery of countrymade pistol alongwith live cartridge - was allegedly made has proved the site plan of the place of recovery. PW 9 1IC B.K.Singh, the then JIM posted at police outpost Khewai police station Saroorpur who prepared check report on the basis of the written report of the occurrence handed over by Husan Singh to him and made entry regarding registration of the crime in the GD has proved these papers (Exts Ka 16 & Ka 17). Me also proved other relevant GD entries.
7. Both the accused pleaded not guilty denying the alleged occurrence altogether and stating that they were got implicated in the case falsely on account of enmity. They also examined DW 1 Harpal Singh, Radio Centre officer posted at District Control Room Dehat, District Meen it. He staled that on 2nd of February 1997 an information was received from police station Saroorpur that Taluddin was shot dead by some unknown persons. In his cross-examination he stated that subsequently an information was received the same night that Taluddin was a witness in the murder case of Ved Pal who was murdered in the year 1995 and that murder case was listed for prosecution evidence.
8. On an appraisal of the parties evidence the learned trial court disbelieved the prosecution evidence observing that presence of PW2 Husan Singh at the scene of occurrence was doubtful and acquitted the accused.
9. Feeling dissatisfied with the impugned judgment and order this state appeal has been preferred on behalf of State of UP assailing acquittal of both the accused.
10. We have heard learned AGA Sri K.P. Shukla for the State appellant and Sri P.N.Mishra learned counsel for the accused respondents and gone through the record.
11. A perusal of the record goes to show that PW 1 Bhopal and PW 2 Husan Singh have appeared as eye witnesses of the occurrence. Out of these two witnesses PW 1 Bhopal has not supported the prosecution case as he stated in his examination-in-chief that he was resident of village Saroorpur and his sister was married to the elder brother of Ved Pal and that the fateful day he had not gone to village Rajapur in order to attend the feast at the house of Peetani but had gone to village Rajapur only after the murder of Ved Pal. He was declared hostile and cross-examined by the prosecution with the permission of the court but to no use. PW 2 Husan Singh, brother of the deceased stated that Ved Pal was a dealer of fair price shop and the alleged day Anil had gone to the house of Ved Pal and asked him to provide 20 kgs of sugar on his ration card but the latter did not accede there to and told him that one and a half kg of sugar was used to be provided to him on his ration card and he would get-only that much and that thereon Anil went away threatening him with murder. He further stated that in the noon he alongwith his brother Ved Pal and one Taluddin and Bhopal were going to intend a feast at the house of Peetani; that at about 12-1 noon as they reached in front of the house of Ishwar Anil armed with countrymade pistol and Jagpal with a brick reached there; that he evoked Ishwar to accompany them and in the meanwhile Anil fired at Ved Pal with countrymade pistol; that sustaining firearm injury Ved Pal fell down and then Jagpal crushed his head with brick and that Ved Pal sustained firearm injury on the back of his neck and that as they raised hue and cry both the assailants fled away and sustaining the fatal injuries Ved Pal died on the spot instantaneously.
12. This witness Husan Singh (PW2) is the real brother of the deceased and his presence at the scene of occurrence does not find mention in the HK of the occurrence lodged by him at police outpost Khewai, police station Saroorpur. After close scrutiny of the testimony of sole eye witness Husan Singh (PW 2) we find ourselves in full agreement with the findings recorded by the learned trial judge that implicit reliance an not be placed on his solitary and interested testimony. According to this witness Husan Singh (PW 2) he himself dictated report of the occurrence which was scribed by his nephew Devendra at his dictation but strangely enough the fact that he accompanied his brother Ved Pal and one Tazuddin and Bhopal while they were going to attend the feast at the house of Pee tain, does not find mention in the FIR. When this witness PW 2 Husan Singh was contradicted with his earlier statement given by him to the investigating Officer SI K.K.Shastri (PW 6) he admitted that he had stated before the investigating officer that his brother Ved Pal alongwith Tazuddin and Bhopal all the three were going to the house of Peetam to attend the feast there. PW2 Husan Singh further stated that he saw the assault at his brother Ved Pal Iron) a distance of some 50-60 yards. It also goes to lend support to the assertion made by him in the MR that Ved Pal alongwith Bhopal and Tuzuddin all the three were going to attend the feast at the house of Peetam because had he been accompanying them to the house of Peelani they hardly would have been at a distance of 5-7 paces from each other. Further, according to this witness PW 2 Husan Singh all the injuries on the head of the deceased were caused by Jagpal with brick. However according to Dr. B.M. Saxena Senior KNT Surgeon who conducted autopsy on the dead body stated in his cross-examination that all the injuries No. 1 to 6 could not be caused with brick. We have also gone through the ante mortem injuries No. I to 6 and we are of the view that injuries of the size 1 cm x 0.5 cm and 4 cm x 1 cm x bone deep could not be caused with brick. Further, from the post mortem report it is clear that only one shot was fired at Ved Pal. Autopsy conducted on the dead-body of Ved Pal revealed that the sustained ante mortem fire arm wound of entry on right side of neck Iron Part whereas PW 2 Husan Singh stated that the shot fired by Anil hit Ved Pal at ice back of his neck meaning thereby that according to this witness shot was fired at Ved Pal from backside. In view of these incongruities and inconsistencies in the prosecution evidence the learned trial judge rightly observed that implicit reliance could not be placed on the sole and Interested testimony of PW 2 Husan Singh.
13. Regarding the alleged recovery of countrymade pistol and one live cartridge from the courtyard inside his house at the instance of accused Anil by the investigating officer, it too is not worthy of credence for twofold reasons: (i) PW 7 station officer J.K.Singh, the investigating officer has nowhere deposed in his statement as to what disclosures were made by accused Anil to him leading to the alleged discovery mid (ii) the alleged recovery was not witnessed by any public witness or two respectable persons of that very locality. The investigating officer is himself the recovery witness. Hence the alleged recovery of countrymade pistol and live cartridge at the instance of accused Anil from the courtyard inside his house is not free from doubt.
14. Since the learned trial judge has given cogent and convincing reasons while recording acquittal of both the accused and the findings recorded by him can not be said to be perverse or erroneous warranting interference with the impugned judgment of acquittal, we see no good reason to interfere therewith. The acquittal of both the accused is hereby affirmed. The appeal has no merit and is liable to be dismissed.
15. The appeal is dismissed. Both the accused are on bail. Their bail bonds are hereby discharged.
16. Let copy of the judgment alongwith record of the case be transmitted to the court below immediately for necessary compliance.