JUDGMENT M.C. Jain, J.
1. The accused respondents Laljit, Ram Samujh, Ram Anuj, Raj Kumar and Ramdeo were tried before VI Additional Sessions Judge, Azamgarh in Sessions Trial No.377 of 1978 for the charges under Sections 147 and 307 read with Section 149 IPC. They were acquitted by judgment dated 16.4.1981 which has been challenged by the State by means of this appeal. Ramdeo died during pendency of the appeal and the appeal against him abated under order dated 28.2.2005.
2. A brief reference to the factual matrix of the case as emerging from the FIR and the evidence adduced at the trial would suffice. The incident took place in between the night of 26/27.4.1976 at about mid-night in village Godhana, P.S. Pawai, District Azamgarh and the report was lodged on 27.4.1976 at 4.45 A.M. by Daya Ram PW 1 (brother of the victim Rajdeo). Daya Ram claimed himself to be an eyewitness and the so called independent eyewitness examined was Ram Awadh PW 3 besides the injured Rajdeo PW 2 himself. The injury report of Rajdeo was proved by the Compounder Rajendra Prasad Shukla PW 4 with the help of Medico Legal Register of P.H.C. Pawai. The injured was examined there on 27.4.1976 at 7 A.M. In all eight visible injuries were reported. Out of them, three were incised wounds (one on the head, second on the left ear in middle and third on left side of face). Others were lacerated wounds and traumatic swellings over other parts of the body. All the injuries were simple. Incised wounds had been caused by sharp edged weapon and the rest by blunt object.
3. The two sides were neighbours and had a joint well used for irrigation. In the evening preceding the night of incident, for the irrigation purposes Rajdeo PW 2 had demanded bucket and other material related to persian-wheel from the accused persons other than Raj Kumar which they were keeping. There was an altercation on this issue. The accused did not give the bucket etc. to Rajdeo. The accused Laljit and Ramdeo even threatened Rajdeo PW 2 that they would not leave him to be fit enough to carry out irrigation. In the fateful night, Rajdeo was sleeping on a cot in front of his house. Daya Ram PW 1 was sleeping in the eastern Osara of his house. A lantern was glowing at the door. Their father Basanti and Ram Awadh PW 3 were sleeping in the north in the barn (Khalihan) . The other family members were inside the house. The accused came over there and started assaulting Ramdeo with gupti, lohbanda and lathis with intention to murder him. Ram Samujh was armed with gupti and Ramdeo was armed with lohbanda. Others were armed with lathis . Rajdeo raised alarm attracting Daya Ram PW 1, Ram Awadh, Lotu, Mangru and Alidad. Daya Ram PW 1 and Ram Awadh PW 3 had flashing torches also. After assaulting Ramdeo, the accused ran away with their weapons towards eastern side.
4. The defence was of denial and false implication due to enmity. As the evidence of the prosecution did not commend itself to the trial judge, he recorded the acquittal.
5. We have heard Sri K.P. Shukla, learned A.G.A. from the side of the State and Sri A.B. Saran, learned Senior Advocate for the accused respondents. The record is before us which we have carefully perused. On cross checking the evidence with the finding of the trial judge, we note that the finding of acquittal is quite apt, proper and justified. It is neither a case of perversity nor of misreading of evidence. The acquittal is backed by cogent reasons recorded by the trial judge. We refer to them in nutshell in the para that follows.
6. The motive assigned by the prosecution against the accused persons for the commission of crime in question was weak, infirm and tenuous. It could not be proved either that there was a common bond amongst the accused to unite them for the commission of this crime. Admittedly, Raj Kumar had no concern whatsoever with the joint well of the parties. Rajdeo PW 2 had done nothing in preceding evening to incur the displeasure of the accused, because it were the latter who had had their way by not giving him bucket and other materials of persian-wheel for irrigation purposes. In any case, it was not such an issue that five persons would have gone well armed to assault Rajdeo in the night. Further, out of the five accused, Ram Samujh had gupti; Ramdeo had lohbanda and remaining three had lathis . If they were so armed and used their such weapons to assault Rajdeo, he would have received much more serious injuries in the alleged murderous assault than those only as reported in his medical examination report. It would be recalled that all the injuries were simple. It is also significant to point out that gupti would have caused a punctured wound. No punctured wound was suffered by the victim. Lotu, Magru and Alidad named as eyewitnesses in the FIR were not examined. They resided in immediate neighbourhood of the place of incident. Daya Ram PW 1 unsuccessfully tried to explain their non-examination by saying that he had enmity with them. He, however, came to admit that he had good relations with his other neighbours Aurangzeb and Mushtiri Begum. Kallu, Mallu and Sher Ali were also his other immediate neighbours but they were also not examined. Instead, the case was sought to be supported only by the testimony of interested and highly partisan witnesses (Daya Ram PW 1, Rajdeo PW 2 and Ram Awadh PW 3). Ram Awadh PW 3 was very much bracketed with the prosecution witnesses against the accused in the previous litigation. It came in evidence that earlier to the present occurrence Ram Samujh accused initiated a case against Daya Ram PW 1, Raj Deo PW 2 and Ram Awadh PW 3 under Sections 147 and 323 IPC. The father of the accused Laljit had filed a case against all of them under Section 436 IPC. There had also been litigation between them and the accused under Section 107 Cr.P.C. Obviously, there was enmity between the accused on the one hand and these witnesses on the other. In the face of all these facts, the possibility could not be ruled out that Rajdeo was attacked in the night by unknown persons and owing to the previous background of enmity, the accused respondents were nominated as culprits making capital of the happening.
7. In view of what has been discussed above, the appeal completely lacks merit and is hereby dismissed. It has already abated in respect of accused respondent Ramdeo. The other accused respondents are on bail. Their bail bonds are cancelled and sureties are discharged.
8. Certify the judgment to the lower court.