JUDGMENT M.C. Jain, J.
1. Sessions Trial Nos. 79 of 1977 and 187 of 1977 were decided together by judgment and order dated 14th September 1981, passed by Sri L.S.P. Singh, IV Additional Sessions Judge, Kanpur. The accused in Sessions Trial No. 79 of 1977 were five, namely, Pussa, Sunder Lal, Ram Prasad, Saheb Lal and Battu Lal. It was one Kali Charan who was tried in the other Sessions Trial No. 187 of 1977. All of them were afforded the benefit of doubt and acquitted whereagainst these two appeals have been lodged by the State. The charges against Pussa, Sunder Lal, Ram Prasad and Kali Charan were under Section 302/149, 307/149 and 395 I.P.C. There was also charge of Section 120B read with Section 302 I.P.C against all the six accused respondents, namely, Pussa, Sunder Lal, Ram Prasad, Saheb Lal, Battu Lal and Kali Charan.
2. The incident took place in between the night of 27/28.2.1976 at about 1.30 O' clock in village Jagdishpur, Police Station Mangalpur, District Kanpur and the F.I.R. was lodged on 28.2.1976 at 9,15 A.M. by Surendra Kumar Awasthi (PW 2). Ram Narain died in the incident and Mohan Lal and Mahalaxmi sustained injuries. A dacoity was also allegedly committed at the house of Surendra Kumar Awasthy.
3. The broad features of the incident may be related. Ram Narain deceased was the son of Mohan Lal (PW 4) and the informant Surendra Kumar (PW 2) is the real brother of the deceased. Mohan Lal had five sons including Ram Narain. All of them lived with him in one and the same house in village Jagdishpur. There was litigation regarding some land between Mohan Lal and accused Sunder Lal. Accused Pussa was on the side of the accused Sunder Lal. Accused Ram Prasad is the son of accused Pussa. Pussa had also given evidence against the informant in a case of causing mischief by fire. This was the previous background.
4. On the fateful night and time, the informant Surendra Kumar and his uncle Ram Kishan were sleeping at their tubewell. The accused Pussa, Ram Prasad and Sunder Lal accompanied by four other persons went to the tubewell and after flashing their torches towards them observed that neither Mohan Lal nor Ram Narain was there. At the instance of Pussa, the miscreants caught hold of Surendra Kumar and his uncle Ram Kishan. They forcibly brought them to Mohan Lal's house. Ram Prasad accused, after peeping through the door, told his companions that both Ram Narain and Mohan Lal were sleeping on one and the same cot, and its was a good opportunity to kill them. Two miscreants who were carrying guns fired. On hearing gunshots, Virendra Kumar and another son of Mohan Lal rushed out of the house and made a hue and cry in the village. The miscreants then entered the house through the door opened by Virendra Kumar. One of the miscreants observed that they had already achieved their object and they should also loot some property before departing. The miscreants then looted the guns and cartridges belonging to Mohan Lal. They also assaulted the sister of Mohan Lal, A number of villagers came near the house of Mohan Lal, some of whom were carrying torches also. One Ram Sajiwan set ablaze a heap of Puyal kept in front of the house of Jai Ram producing a flood of light. The miscreants committed dacoity for about half an hour and decamped with the looted booty. The complainant's Bua Maha Luxmi who had come out of the door, was also hit by a miscreant by the butt of the gun. After the departure of the miscreants, the informant went near Ram Narain and found him dead and his father Mohan Lal in injured condition. In the morning, he went to the Police Station along with his injured father where he lodged the F.I.R.
5. P.N. Pandey, PW 8 who was then posted as Head Constable prepared the check report and registered the case under Section 396 I.P.C. The case was investigated by S.I. Yogendra Singh PW 10 who went to the site and recorded the statements of witnesses. He prepared site plan of the place of occurrence and busied himself with the activities relating to the investigation. Panchayatnama of the dead body of the deceased was prepared. After being sealed, it was sent for post mortem.
6. The post mortem was conducted on the dead body of the deceased on 29.2.1976 at 2.30 P.M. The deceased was aged about 25 years. He had received gunshot injuries and had died as a result of shock and haemorrhage owing to the injuries sustained by him.
7. Dr. S.R.D. Lakhani PW 11 had examined the injuries of Mohan Lal on 28.2.1976 at 8.05 A.M. He, too, had received gunshot injuries, The same Doctor had examined the injuries of Maha Laxmi, wife of Karuna Shanker on 28.2.1976 at 6 P.M. She had sustained a lacerated wound caused by blunt object.
8. The accused denied the charges and pleaded not guilty. The defence was that a dacoity was perhaps committed at the house of Mohan Lal and Ram Narain was killed during the course of such , dacoity while his father received injuries at the hands of dacoits.
9. The prosecution examined 12 witnesses. Five witnesses were examined by the defence also.
10. We have heard Miss N.A. Moonis, A.G.A. from the side of the State and Sri R.N. Upadhyaya, the counsel representing the accused respondents.
11. The argument from the side of the State is that the trial court ignored the trustworthy evidence adduced on record to prove the guilt of the accused respondents and thus erred in recording acquittal Learned counsel for the accused stood by the side of the acquittal and supported the same.
12. The post mortem report of the deceased Ram Narain and the injury report of the injured Mohan Lal indicated that they sustained firearm injuries. The sustaining of blunt object injury by Maha Laxmi could also not be doubted in view of her medical examination report. Therefore, the conclusion was inescapable that they were subjected to violence, Ram Narain deceased and Mohan Lal by firearms and Maha Laxmi by blunt object. But that is not the end of the matter to decide the culpability of the accused respondents.
13. On scrutiny of the record, we find several black spots in the prosecution story as put forth and the evidence adduced in the court, justifying acquittal. Taking up the case of accused Saheb Lal and Battu Lal first, it is the own case of the prosecution that they did not actually participate in the incident. They came to be charged only on the ground of conspiracy, Durgesh Chand PW 1 belonging to an adjoining village Bhawanpur deposed before the court that about 10-15 days after the occurrence, they (Saheb Lal and Battu Lai) came to him and repeated their visits thereafter for about 2 or 3 times and told him that there had been a meeting at the house of one of them (Saheb Lai) about 2-3 days before the incident which was attended by Saheb Lal, Battu Lal, Pussa, Ram Prasad, Sunder Kori and Peer Baba. It was decided to commit dacoity at the house of Mohan Lal. It ' was by mistake that Ram Narain was killed during the course of dacoity. They sought his help in the matter and requested him to persuade Mohan Lal to get the matter hushed up. They also told him that two criminals from outside had come in the garb of hermits. Obviously, the evidence of this witness simply consisted of alleged extra judicial confession of Saheb Lal and Battu Lal accused. The evidence of this witness (PW 1) was incapable of inspiring confidence, as rightly held by the trial Judge, for the reason that he was not a man in authority and there was no earthly reason as to why his help would have been sought by Saheb Lal and Battu Lal. Instead, Durgesh Chand PW 1 came to give evidence from the side of the prosecution. It indicated that he was not a trusted man of accused Saheb Lal and Battu Lal. So, there could hardly be any reason for these two accused to have made any extra judicial confession before this witness and for seeking his help. The prosecution thus failed to establish that there was any conspiracy as alleged.
14. The manner of the start of the incident as put forth by the prosecution was not better than a cock and bull story. Surendra Kumar PW 2, informant, stated that he and his uncle were sleeping at their tubewell and the accused at first went to them. After observing that neither Mohan Lal nor Ram Narain was there, they allegedly caught hold of them and brought them to the house of Mohan Lal. The learned trial judge, in our opinion, rightly held it to be a fabricated story, so that Surendra Kumar could pose to be an eyewitness. As per the own testimony of this witness, a number of houses situate in the way. Obviously, the miscreants would not have taken the risk of taking both these persons from the tubewell upto the house of Mohan Lal. There was a great risk of their game being exposed if Surendra Kumar and his uncle had chosen to make hue and cry in the way. Any person from the houses falling in the way could have detected the accused going towards the house of Mohan Lal and the entire plan could have been defeated. Having regard to the ordinary human conduct, the miscreants would not have gone to the tubewell to awake the informant and his uncle and bring them forcibly to the house of Mohan Lal. Further, as per the F.I.R., the enmity of the accused was with the informant himself and his father Mohan Lal. The prosecution could not give any reason as to why Ram Narain was singled out for the murder. The miscreants would have committed the murder of the informant at the tubewell itself. There was no sense in their saying at the tubewell that neither Mohan Lal nor Ram Narain was there. It should justifiably be taken that the informant was not present at the time of the occurrence and the miscreants did not take him and his uncle with them to the house of Mohan Lal.
15. The testimony of injured Mohan Lal PW 4 was not helpful in establishing the guilt of the accused. He stated in his cross-examination that he became unconscious on receiving the shot which as fired from the open window, having iron bars. So, there could hardly be any occasion for him to have seen the faces of miscreants or to have recognized them.
16. To create evidence of availability of light at the spot, oft-repeated story of setting ablaze Puyal was put forth. The evidence is that Puyal was set ablaze by Ram Sajiwan and it produced a flood of light, The evidence in this behalf is not consistent and trustworthy. Munnu Tiwari PW 3 stated that Puyal was near the house of Pan Kunwar at the distance of 25-30 paces from the house of Mohan Lal. On the other hand, Ram Babu PW 5 stated that the Puyal was kept at a distance of 10 paces from the house of Mohan Lal towards south east. As per the site plan, the Puyal set ablaze was at point 'E' which was towards south from the house of the informant. Thus, there was no uniformity in the statements of the prosecution witnesses regarding the place of Puyal. It created genuine doubt about the availability of light. Further, no immediate neighbour of the informant came forward to support the prosecution case. Needless to say? the persons residing in the neighbourhood of the victim would have been the best witnesses. We veer around the opinion that only trusted men of the informant were marked as prosecution witnesses as the informant did not expect support from independent neighbours.
17. It was also an undisputed fact that there was enmity between Mohan Lal (prosecution side) and three named accused, Pussa, Ram Prasad and Sunder Lal who were residents of the same village. The possibility of their false implication could not be ruled out.
18. So far as the accused Kali Charan was concerned, all the four eyewitnesses, i.e., Surendra Kumar PW 2, Munnu Tiwari PW 3, Mohan Lal PW 4 and Ram Babu PW 5 picked him up before the court during their deposition. The identification memo indicated that at his identification parade, Kali Charan was identified by all the witnesses including these four. The performance was too good to be believed. There was no recovery from him. Since the availability of light itself at the spot was doubtful, the inference should justifiably be drawn that the witnesses identified-him, not because they had seen him participating in the crime at the spot but for some other reason.
19. What appears to be the truth is that a dacoity took place at the house of Mohan Lal by unknown miscreants in which Ram Narain died of firearm injuries and Mohan Lal sustained injuries. Maha Laxmi, too, sustained a blunt object injury at the hands of one of the participants in the crime. Making capital of old enmity, the complainant named the accused in the F.I.R. and others came to be of the named three accused.
20. Judged in the right perspective, the acquittal is perfectly justified, not requiring any inference by this Court.
21. We dismiss the Government appeals No. 307 of 1982. Govt. appeal No. 308 of 1982 already, stands dismissed as a later under cross dated 19.11.2003 because of the death of respondent Kali Charan.
22. Certify the judgment to the lower court.