JUDGMENT M.C. Jain, J.
1. Four persons, namely, Ram Sewak, Ram Swarup, Kamta and Madan were charged for causing the murder of one Krishna Singh and for dishonest misappropriation of his gun from the spot after shooting him dead in S.T. No. 17 of 1980 before IV Additional Sessions Judge, Hamirpur. They were acquitted by judgement and order dated 19.3.1981 which has been assailed by the State through this appeal.
2. Broad essentials of the prosecution case as surfacing from the F.I.R. and evidence may be put forth. The incident took place at the outskirts of village Sirsi Khurd, Police Station Maudaha, District Hamirpur on 15.10.1979 at 5.30 P.M. and the report was lodged the following day at 5.00 A.M. by Arimardan Singh PW 1 (cousin of the deceased Krishna Singh) who claimed himself to be an eye-witness. The accused Ram Sewak was the Pradhan of the village and the deceased was Up-Pradhan. On the fateful day, the deceased accompanied by the first informant, Bhawani Din PW 2, Devi Din, Ranjit Singh and Ram Chandra had gone from the village to Block Development Office at Maudaha in connection with the sanction of digging of a pond in the village as a part of draught relief measure. The Block Development Officer was not available, though they waited for sufficient time. Ultimately, relevant papers including the resolution of the Gaon Sabha were handed over to a clerk there and all these persons were returning back to the village. They boarded a bus at Maudaha bus stand and reached Khanna at 3.30 P.M. wherefrom they were returning to their village on foot. Krishna Singh was 15-16 paces ahead of others and was carrying his S.B.B.L. gun. When they reached about 2-2 1/2 kms. ahead of village Ratwa on chakroad near the chak of Ranjaur Singh at about 5.30 P.M. the four accused suddenly came from the side of the village. Ram Sewak and Ram Swarup were armed with rifles whereas Kamta and Madan had S.B.B.L. guns. Spotting Krishna Singh, Ram Sewak and Madan exhorted and the other two Ram Swarup and Kamta opened fire on him from rifle and gun respectively. Receiving injuries, Krishna Singh died at the spot. During the incident, Madan kept issuing threats to the witnesses that they would also be shot dead if any body dared to proceed ahead. The accused then opened two more shots in the air and ran away. Enmity was pleaded in the F.I.R. itself and it was also stated that after committing the murder of Krishna Singh, Ram Sewak accused took away his licensed gun too. Distance of the police station from the place of occurrence was about five miles and the explanation offered by the prosecution for late lodging of the F.I.R. was that owing to fear of the accused, the report could not be lodged in the night.
3. On the lodging of the F.I.R. (which was got scribed by the informant from Laxmi Singh PW 5), Head Constable Kamta Prasad PW 4 prepared the chick report and registered a case by making entry in G.D. The investigation was taken up by S.I. Jagdish PW 6 who reached the spot, prepared inquest report of the dead body of the deceased and busied himself in other activities related to investigation. The dead body after being sealed was sent for post mortem which was conducted by Dr. S.N. Dixit PW 3 on 16.10.1979 at 4.35 P.M. The deceased was aged about 32 years and about one day had passed since he died. He had received one gunshot wound of entry 3 cm x 2 cm chest x cavity deep on right side chest, 4 cm below mid of right clavicle with blackening and tattooing. The margins were inverted. There were five gunshot wounds of exit communicating and corresponding to the gunshot wound of entry. All of them had everted margins. The doctor recovered two big shots from the left side back and a wad piece from left lung. The cause of death was firearm injuries sustained by the deceased on his chest.
4. The defence was of denial and false implication. In short, all the accused pleaded their absence at the alleged spot. According to them, they were at different places at the alleged time.
5. The prosecution in all examined six witnesses out of whom Arimardan PW 1 and Bhawani Din PW 2 were eyewitnesses. Laxmi Singh PW 5 was the scribe of the F.I.R. Head Constable Kamta Prasad PW 4 had prepared chick report and registered the case making entry in G.D. Dr. S.N. Dixit PW 3 had conducted post mortem over the dead body of the deceased and S.I. Jagdish PW 6 was the Investigating Officer. One Shiv Balak was examined by the defence to support the plea of alibi of the accused Ram Swarup. He claimed that he too had gone to the Block on 15.10.1979. There he had met Krishna Singh deceased also but he was all alone there.
6. The eyewitness account did not find favour with the trial judge who recorded acquittal on the principal premise that these two witnesses were not at all present at the time of the alleged incident and they did not witness it.
7. We have heard Sri M.C. Joshi, learned A.G.A. from the side of the State and Sri V.C. Tiwari, Senior Advocate assisted by Sri A.K. Awasthi from the side of the accused-respondents. The record has been carefully perused. It is urged from the side of the State that the trial judge gravely erred in rejecting the testimony of two eyewitnesses whose evidence clinchingly established the guilt of the accused. The impugned judgement, it has been urged, is perverse being based on faulty appreciation of the evidence. On the other hand, the counsel appearing for the accused-respondents has supported acquittal on the lines of the reasoning adopted by the trial judge.
8. It should be stated before proceeding further that the accused-respondent Ram Sewak died during the pendency of the appeal and the same abated against him under order dated 19.9.2005. This appellate Court is, therefore, presently concerned with the remaining three accused-respondents- Ram Swarup, Kamta and Madan.
9. On cross-checking the findings of the trial court with the evidence on record, we are of the view that the acquittal is perfectly justified and no interference is called for therewith. We would do well to state reasons for our this conclusion.
10. To begin with, in the present case the clouds of suspicion hovered over the spontaneity of the F.I.R. itself. The incident allegedly took place at 5.30 P.M. on 15.10.1979 at a distance of about five miles from the concerned police station but the F.I.R. was lodged after inordinate delay on 16.10.1979 at 5.00 A.M. by a so-called eye-witness Arimardan Singh PW 1 (cousin of the deceased). The object of insisting upon prompt lodging of the F.I.R. is to obtain the earliest information regarding the circumstances in which the crime was committed including the names of actual culprits and the part played by them, if known and the names of the witnesses, if any. The delay in lodging of the F.I.R. often results in improvement which is creation of afterthought. Unexplained delay in the lodging of F.I.R. not only gets bereft of the advantage of spontaneity but danger also creeps in of the introduction of coloured version of the incident. Arimardan Singh PW 1 stated before the court that he had got scribed the F.I.R. from Laxmi Singh at about 8.00 P.M. in the night itself. On the other hand, Laxmi Singh PW 5 stated that the F.I.R. was written by him at about 1-1.30 A.M. The recital of the F.I.R. and the date appended hereon indicate that it had been written on 16.10.1979 and not at about 8,00 P.M. on 15.10.1979 as alleged by Arimardan Singh (informant).
11. The conduct of Arimardan Singh PW 1 (own cousin of the deceased) was wholly unnatural and irreconcilable of his claim of being an eye-witness. He stated that after the accused left the scene on committing this crime, he did not even touch Krishna Singh to make sure whether he was still alive or dead. He was the own cousin of the deceased. After the arrival of other villagers, he left for the village and did not return to the spot. The explanation of not lodging the F.I.R. in the night because of fear of the accused was not at all convincing. The time of sunset on that date was 5.26 P.M. He was accompanied by four others and certain villagers had also allegedly reached the spot. Under the circumstances, the F.I.R. could be lodged within reasonable time after the incident had occurred. Afterall, the report is shown to have been lodged the following day at 5.00 A.M. For doing that, he must have started from the village while it was still dark. Obviously, sufficient time gap intervened between the incident and the lodging of the F.I.R. and there was every scope for concoction and deliberation. It came down from his cross-examination that the deceased used to reside separately from him. It is also there in his testimony that after the incident, the licence of the gun of the deceased had come out of his pocket and fallen on the spot. He did not pick the same at the time of the incident. It was actually the Investigating Officer who had picked up the licence of the gun from the spot. It is strange that the gun number of the deceased was mentioned in the F.I.R. itself. It gives an inkling as if the F.I.R. was ante timed and prepared even after the visit of the Investigating Officer of the spot because there was no occasion for Arimardan Singh PW 1 to have remembered the number of the gun of the deceased by heart.
12. There are strong reasons which go to demonstrate that Arimardan Singh PW 1 and Bhawani Din PW 2 were not at all present at the spot. They did not witness the incident, but deposed relying on their imagination and spinning a case against the accused-respondents on account of previous background of enmity. All the accused-respondents were heirs of common ancestor and belonged to one family. There was enmity between the deceased and Arimardan Singh on the one hand and the accused on the other from before. Arimardan Singh PW 1 stated that Raj Kumari Devi was Krishna Singh's cousin sister whose Khalihan had forcibly been possessed by Ram Sewak Singh accused. In this regard, there had been proceedings between two sides under Section 107 Cr.P.C. and serious bitterness had grown between two sides in this behalf. He himself was bracketed also with Krishna Singh's party in proceedings under Section 107 Cr.P.C. against the accused.
13. Bhawani Din PW 2 was also not an independent person. He admitted that Harnam Singh was the uncle of Ram Swarup. He could not dare to deny the suggestion that Arimardan Singh's father and his own grand-father Chokhey were accused in the case of murder of Bani Singh-uncle of Harnam Singh.
14. Moreover, as per the prosecution case and evidence, Krishna Singh deceased and the above named two eye-witnesses remained together in Maudaha Block and were returning therefrom. Arimardan Singh PW 1 stated that the deceased Krishna Singh did not purchase anything from the market. However, the Investigating Officer recovered from his pocket a cash memo-Ext. Ka-7. It was for the purchase of certain clothes from Sarvodaya Vikas Ashram, Maudaha. Some cloth, one dhoti and one Lungi had been purchased through this cash memo. If Arimardan Singh PW 1 was actually accompanying Krishna Singh, he would have noticed the purchase made by the deceased. Assuming that the deceased had left the cloth for stitching with some tailor, then Dhoti and Lungi would have definitely been with him at the time of the incident. To reconcile the inconsistency, Bhawani Din PW 2 made an effort by saying that the deceased had purchased cloth from the market and had left the same with the tailor for stitching. It was a crude attempt to render the eye-witness account consistent with recovery of cash memo from the pocket of the deceased. But the improvement made by the prosecution through the testimony of Bhawani Din PW 2 was like a square peg in a round hole. In any case there could be no point or justification in leaving Dhoti and Lungi by the deceased with the tailor. There was no explanation from the side of the prosecution about the same and inference could justifiably be drawn that they were not present on the spot at the time of alleged incident.
15. There is yet another ground dislodging the alleged presence of these two eye-witnesses at the spot. In the F.I.R. it was stated that the accused Ram Swarup fired on the deceased from rifle and Kamta with SBBL gun and on receiving the injury of the shots fired by them, he ( Krishna Singh) died at the spot. So, the case projected in the F.I.R. was that one shot of rifle made by Ram Swarup and the other of SBBL gun opened by Kamta hit the deceased. It was a case of two shots. Arimardan Singh PW 1 made improvement in his testimony before the court that it was the shot opened by Kamta from SBBL gun that had hit the deceased and the shot issued by Ram Swarup from rifle had not hit him. He had to admit in his cross-examination that he came to know of it after the post mortem report. He also stated that at the spot, he had not been able to see that the shot opened by Ram Swarup had not hit the deceased. It was also there in his testimony that Ram Swarup had opened shot on Krishna Singh from rifle from about 5-6 paces. It is illogical that the shot of rifle opened by Ram Swarup from a distance of 5-6 paces in day light would have missed the target. The truth of the matter was that two so-called eye-witnesses were not at all present at the spot and they did not see the incident. It was in the earliest version of the prosecution i.e. F.I.R. that it was a case of two shots, one by rifle attributed to Ram Swarup and the other by SBBL gun assigned to Kamta. Since in post mortem it was found to be a case of single shot, the two eye-witnesses made desperate attempt to reconcile their testimony with medical evidence. The same failed to inspire judicial confidence. We note that Bhawani Din PW 2 stated before the court that he had come to know on the spot itself as to whose shot had hit the deceased. If it were a fact, it would have ordinarily been so stated in the F.I.R. because this witness was present at the time Arimardan Singh got scribed the F.I.R. from Laxmi Singh. Not only this, he had also accompanied Arimardan Singh PW 1 to the police station at the time of lodging of the F.I.R. also.
16. So, in view of the above discussion, we endorse the view taken by the trial judge that the testimony of so-called two eye-witnesses was incapable of being believed. Unless the prosecution establishes the guilt of the accused beyond the reasonable doubt, conviction cannot be passed on the accused.
17. We see no merit in this appeal and it is hereby dismissed. It has already abated against accused Ram Sewak.
18. Judgment be certified to the lower court immediately.