JUDGMENT M.C. Jain, J.
1. Six accused respondents, namely, Laxmi, Durg Vijai, Ramayan, Brij Raj, Kishore and Amla were tried for the offence of rioting and murder of one Vidyapati Misra before 2nd Additional Sessions Judge Deoria in S.T. No. 207 of 1995 and were acquitted by judgment and order dated 22.12.1997 impugned in this appeal filed by the State.
2. Resume of the case as surfacing from the F.I.R. and evidence adduced before the trial court may be put forth. The accused and the deceased Vidyapati Misra were residents of one Gaon Sabha of Village Kurmipatti Nauka Tola, Police Station Nebuanaurangiya, District Padrauna. The deceased and Laxmi Accused were the members of the Gaon Sabha Laxmipur alias Kurmipatti. The Gaon Sabha had allotted some land to members of weaker sections and others including one Moti Dhobi. The accused Laxmi got sale deed executed in his favour of the land allotted to Moti Dhobi. The sale deed being illegal, the Gaon Sabha had instituted a suit in this behalf and pairvi was being done by the deceased on the basis of the resolution passed by the Gaon Sabha. It infuriated the accused Laxmi. He and his associates were on a look out for an opportunity to get rid of Vidyapati Misra from doing pairvi in that case on behalf of Gaon Sabha.
3. On 27.7.1994 in the morning Vidyapati Misra had gone to Padrauna for some work. In the evening Sanjai Kumar Misra PW 1-son of the deceased (informant) and Thagai PW 2 (brother of deceased) had gone to the crossing. Meanwhile Vidyapati Misra also reached the crossing on his return journey from Padrauna at about 7.30 P.M. They started back journey to home on bicycles. Vidyapati Misra was on one cycle going ahead of Sanjai Kumar Misra and Thagai on another cycle. Thagai, sitting on carrier of the cycle plied by Sanjai Kumar, was flashing torch illuminating the path for Vidyapati Misra. At about 8.00 P.M. these three reached just ahead the grove of Pradhan near Lagunahi Tola when the accused persons emerged from the shrubs existing on both sides of the way. The accused Laxmi Yadav exhorted his remaining five fellow accused to kill Vidyapati Misra abusing him for doing pairvi in the case. Instantaneously, Laxmi Yadav himself fired from country made pistol on Vidyapati Misra and two accused Durg Vijai and Ramayan threw bombs on him which struck him on head and shoulder resulting his instantaneous death on the spot. Sanjai Kumar Misra and Thagai raised alarm but in vain. No witness approached the spot. Offering threats, the accused went away. They were allegedly identified by Sanjai Kumar Misra PW 1 and Thagai PW 2 in the light of torch. The third witness Jagdish Shukla PW 3 (not named in the F.I.R.) was also examined. He was brother-in-law (Bahnoi) of Sanjai Kumar Misra. He claimed that he had gone to his Sasural on the fateful day and in the evening at about 6.00 P.M. he had gone to Kurmipatti crossing to take tea. He was returning from there. At about 8.00 P.M., he heard noise of bomb which stunned him. He claimed to have seen all the six accused respondents running towards east. He claimed to have identified them in the light of torch that he had. Reaching the place of explosion, he found his father-in-law to be lying dead and Sanjai Kumar Misra and Thagai to be there. Thagai told him about the incident of bomb explosion and shooting by country made pistol. For about half of an hour, he stayed at the spot and then went to his in-law's house where he remained the whole night consoling the members of the family of Vidyapati Misra.
4. After the incident, Sanjai Kumar Misra PW 1 came to his house, leaving his uncle Thagai at the spot. He scribed the F.I.R. and along with Munsarim (Up-Pradhan of the Gaon Sabha) went to the Police Station where he lodged the same. A case was registered by head constable Ram Briksha Ram PW 6 on the basis of the F.I.R. lodged the same night at 11.30 P.M. by Sanjai Kumar Misra. The police came in action and investigation was taken up by S.O. Shyamrathi Arya PW 7 in whose presence the F.I.R. was lodged. He immediately came to the spot along with police personnel. There was no light arrangement. So leaving two constables near the dead body, he left for the arrest of the accused persons. The next morning he reached the spot and busied himself with activities related to investigation. The deceased's cycle was found to be there of which he prepared a Fard. From the spot he collected bloodstained and simple earth and also took in possession a lathi which the accused had left there. The statement of the witness Thagai, who was present, was also recorded by him. He inspected his torch and prepared a Fard of it also. The inquest report was prepared as also other necessary papers and after being sealed the dead body was sent for post mortem through constable Ram Babu Awasthi PW 4 and Yamuna Pandey.
5. The post mortem over the dead body of the deceased was conducted by the Dr. K. Singh on 28.7.1994 at 3.45 P.M. The deceased was aged about 38 years and about one day had passed since he died. The following ante-mortem injuries were found on his person:
1. Extensive lacerated wound 16.5 cm x 17.5. cm x skull. Bones broken and with brain tissues exposed and lacerated on the whole back part of head. Margins irregular. Brain broken wound tissues blackened in colour. Three iron particles found in lacerated brain tissues.
2. Lacerated wound 13 cm x 12 cm x bone deep on the outer part of right shoulder. Margins irregular. Tissues blackened in colour. Yellowish explosive powder present on the skin around the wound.
3. Circular lacerated wound 3.7 cm x 3.7 cm x chest cavity deep on the left side chest, 3 cm transversely left nipple. Margins irregular and inverted. Blackening and tattooing present.
6. On internal examination, occipital bone, both parietal bones and both temporal bones were found broken into pieces. Skull was fractured. Left third and fourth ribs were fractured. Right lung was congested. Left lung was congested and lacerated. Pleura was congested and lacerated. Heart was lacerated and congested. Nine metallic pellets were recovered from heart tissues and cavity. Three wadding caps and 21 metallic pellets were recovered from the chest. The death had occurred due to shock and haemorrhage as a result of extensive ante mortem injuries of explosive and firearm.
7. After conclusion of the investigation, the accused persons were booked for trial who pleaded false implication due to enmity.
8. The prosecution in all examined seven witnesses. Out of them, as noted above, Sanjai Kumar Misra PW 1 and Thagai PW 2 were allegedly eye-witnesses and Jagdish Shukla PW 3(son-in-law of the deceased) was a witness who had allegedly seen the accused persons running from the spot. Remaining evidence was more or less of formal nature including medical and investigation aspects of the case.
9. The trial judge recorded acquittal, finding the presence of so-called eye-witnesses at the spot to be doubtful as also for the absence of any independent witnesses. He also found that the motive assigned by the prosecution was quite weak.
10. We have heard Sri R.S. Sengar, learned A.G.A. from the side of the State and Sri G.S. Chaturvedi, learned senior advocate for the accused respondents. The record is before us which we have carefully perused. For the appellant-State, the acquittal has been criticized as being based on faulty appreciation of the evidence. On the other hand, the learned counsel for the accused respondents has argued that the acquittal is perfectly justified and sustainable in the wake of most unsatisfactory evidence of the prosecution.
11. Keeping in view, the post mortem report of the deceased, it admits of no doubt that he was the victim of violence. Two of the ante mortem injuries were of bomb explosion and one of shooting. The shooting had been done with close range as blackening and tattooing were present. Further, three wadding caps as also 30 pellets had been recovered from the heart and chest cavity of the deceased.
12. Obviously, the principal question is whether the so-called eye-witnesses were present at the spot and saw the incident as they claimed. In the same context the question of alleged presence of Jagdish Shukla PW 3 is also important as he claimed to have seen the accused persons running from the spot. On scrutinizing the evidence of these three witnesses in the light of attending circumstances, we find ourselves in agreement with the trial judge that their presence at the spot was most doubtful. The reasons may be stated briefly. As per the prosecution, it was a planned murder. We note from the testimony of Sanjai Kumar Misra PW 1 son of the deceased that his father had gone to Padrauna in the morning of the fateful day, but it was not certain by what time he would return. According to him, he and his uncle had reached the market at about 5.30 P.M. and were there till 7.30 P.M. He as well as Thagai PW 2 claimed that they had gone there for shopping. The trial judge rightly observed that the shopping in the rural areas is ordinarily done in day time, and not at about time of dusk. None of them could give any plausible explanation about purchases that were to be made. Sanjai Kumar Misra stated that cells of torch had been purchased which had been filled in the torch being used by Thagai to illuminate the path on back journey on cycle. He could not say as to what purchase had been made by his uncle Thagai. Thagai PW 2 stated that he had purchased vegetables. It could not stand to reason that after making such small purchases, these two witnesses would have stayed in the market aimlessly for about two hours to be joined by Vidyapati Misra at about 7.30 P.M., when it was not even certain as to at what time he was to return from Padrauna. It was stated that though alarm was raised by both of them but no other person reached the spot and the accused persons ran away. Even the name of Jagdish Shukla PW 3 is not there in the F.I.R. However, Thagai PW 2 stated that on their shouts Triveni alias Ghogha, Budhi Ram, Ram Balak etc., had reached the spot but the accused had run away before their arrival. None of these witnesses was produced who could at least say that Sanjai Kumar Misra and Thagai were there. As per the own saying of the prosecution, it was a chance meeting of the deceased and these witnesses at the crossing which, as we said, could not be believed.
13. From the evidence it was also clear that the deceased Vidyapati Misra and Thagai, though real brothers, were living separately. It was not explained as to why Sanjai Kumar Misra PW 1 and Thagai PW 2 all of a sudden decided to go to the market together.
14. Further, it is noted that as per Sanjai Kumar Misra PW 1, the deceased Vidyapati Misra was ahead of him and Thagai by about 3-4 paces behind, when he was attacked.Laxmi had allegedly first opened shot on Vidyapati Misra and instantaneously Durg Vijai and Ramayan had thrown bombs on him. The explosion was of such intensity and power that it blew off the head of the deceased. It could not be believed that despite being of such tremendous strength of the explosive, the persons in the close proximity i.e. Sanjai Kumar Misra and Thagai did not receive splinters and bloodstains over them.
15. In the F.I.R. it is no where stated that accused had left one lathi at the spot. It came to be so stated by Thagai for the first time. This matter was brought up by the Investigating Officer while preparing memo of recovery made from the spot including of such lathi. It appears that since a lathi had been recovered at the spot, prosecution thought it proper to be introduced by Thagai PW 2 that a lathi had also been left by the accused at the spot.
16. The reason assigned by Jagdish Shukla PW 3 for having gone to the crossing was wholly preposterous that though he was in his Sasural, yet he went to the crossing for taking tea. It may be stated at the risk of repetition that his name was not there in the F.I.R. Thagai PW 2 did not produce any vegetable etc., allegedly purchased by him before the Investigating Officer when he visited the spot in the night itself.
17. We should also say as a passing reference that no role has been assigned to the accused Brij Raj, Kishore and Amla. The prosecution could not prove any common bond either amongst the accused which could have united them to commit the murder of Vidyapati Misra in the manner as alleged.
18. The trial judge was also justified in his finding that motive assigned by the prosecution was too weak. It has come in the testimony of Sanjai Kumar Misra PW 1 that litigation of Gaon Sabha in respect of land where of Laxmi had allegedly secured a sale deed from Moti Dhobi was going on since 1990. Obviously, there was no quick igniting cause for commission of murder of Vidyapati Misra over that score all of a sudden.
19. All factors taken together, it appears that in fact the murder of Vidyapati Misra remained undetected for some time and the accused persons came to be implicated due to suspicion only. The presence of Sanjai Kumar Misra PW 1 and Thagai PW 2 as also of Jagdish Shukla PW 3 at the spot was most doubtful. No reliance could be placed on their testimony. The acquittal is based on fair and reasonable assessment of the evidence on record. True, Vidyapati Misra was done to death in a diabolical manner but the accused persons or any of them could not be proved to be associated with this crime.
20. Finding no merit in this appeal, we hereby dismiss it.
21. Certify the judgment to the lower court.