Allahabad High Court
Balwant Singh And Others vs State Of U.P. on 17 July, 2019
Author: Pritinker Diwaker
Bench: Pritinker Diwaker, Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Reserved on: 01.05.2019
Delivered on: 17.07.2019
CRIMINAL APPEAL No. 5750 of 2006
1. Balwant Singh
2. Kala Singh
3. Smt. Mahendro Bai ---------Appellants
Vs
State of Uttar Pradesh --------- Respondent
___________________________________________________________
For Appellants : Sri Noor Mohammad, Advocate
For Respondent/State : Sri Amit Sinha, AGA ___________________________________________________________
Hon'ble Pritinker Diwaker, J.
Hon'ble Raj Beer Singh, J.
Per: Raj Beer Singh, J.
1. The present criminal appeal arises out of impugned judgment and order dated 15.09.2006 passed by the learned Additional Sessions Judge, Court No.5, Bijnor in Session Trial No. 430 of 2001 (State vs. Balwant Singh & three Ors), under Section 302/34 of IPC, P.S. Badhapur, District Bijnor, whereby appellants Balwant Singh, Kala Singh and Smt. Mahendro Bai have been convicted under Section 302/34 of IPC and have been sentenced to imprisonment for life along with fine of Rs. 35,000/- each. In default of the payment of fine, the appellants have to further undergo additional rigorous imprisonment of one year.
2. The case of the prosecution is that there was a dispute between the parties on account of boundary of land and about 20 days prior to the incident, an altercation has taken place between deceased Ramesh and the appellants Balwant Singh and co-accused Bittu Singh. On the day of incident, i.e. on 09.04.2001, at 5:15 PM complainant's younger brother Ramesh (deceased) had gone to his land and while returning from there, at around 6:00 PM, all the accused persons met him in the way. Appellant Balwant Singh was having a sword, Bittu Singh was having a rod while Kala Singh was having a 'barchi' and Smt. Mahendro Bai was standing at some distance. After seeing Ramesh, appellant-accused Smt. Mahendro Bai hurling abuses, exhorted her husband and sons to kill the deceased. Co-accused Bittu Singh and appellant Kala Singh attacked the deceased with sword, rod and barchi with intention to kill him. Hearing noise, one Balkar Singh, Ranga Singh and many other persons reached there but the appellants ran away towards jungle. Ramesh sustained injuries and he was taken to government hospital Nagina, but from there he was referred to Bijnor. On the next day, he was referred to Meerut Medical College and was admitted there. On 12.04.2001, Ramesh succumbed to the injuries sustained by him.
3. Complainant Santa Singh reported the matter to police by submitting written complaint Ex. Ka-1 and on that basis case was registered under Section 302/34 of IPC against all the four accused persons on 12.04.2001, at 15:45 hours vide FIR Ex. Ka-3.
4. Initially the deceased was medically examined at district hospital, Bijnor on 10.04.2001 vide MLC Ex.Ka.5 and following injuries were found on his person:
(i) incised wound on right side of abdomen in posterior axillary line 4 cm above the along the anterior superior iliac spine 6.5 cm x 3 cm depth not provide clotted blood in center present while bleeding at upper part of wound.
(ii) incised wound over front of abdomen 3cm x 2cm placed ound 4 cm above the umbilicus depth not provide.
(iii) incised wound on left back of abdomen below 6 cm renal angle 3cm x 1 cm muscle deep.
(iv) incised wound over right index & middle finger middle phalanx 2 cm x 0.6 and 2 cm x 0.5 cm muscle deep.
(v) Back muscle swelling over right chest lower part anterior axillary line 14 cm x 12 cm rounded tender swelling.
(vi) Incised wound 0.8 cn x 0.3 cm skin deep over outer 1/3 front of right eyebrow Injury Nos. 1, 2, 3 and 4 were caused by sharp object and Injury no. 5 by hard and blunt object. As per statement of patient, injury is caused by blow of sword. Injury nos. 1 to 2 is caused in one stab. Patient has very low general condition with guarding and rigidity i.e internal abdominal injury. Injury nos.2 and 5 of patient is of left side rib. For injury no.5 patent is admitted and advised x-ray of left side chest and abdomen.
5. The postmortem on the dead body of the deceased was conducted by PW-4 Dr. N.K. Gupta on 12.04.2001, at 4:00 PM, vide postmortem report Ex. Ka-2 and following injuries were found on the person of the deceased:
"(i) A stitched wound deep 6cm x 1 cm cavity deep with one stitch present on the right flank of abdomen, 2 cm above the illiac bone (right).
(ii) Incised wound deep 3 cm x 1 cm x cavity deep present on the back of left side of abdomen, 5 cm away from the midline at L2-3 level.
(iii) Incised wound deep 3 cm x 1 cm x cavity deep present over the front of abdomen, 4 cm below the umbilicus at 6 'o' clock position.
(iv) Lacerated wound deep 1 cm x 0.5 cm x muscle deep present on the left side of forehead, above the anterior end of left eyebrow.
(v) Incised wound size 2 cm x 0.5 x muscle deep cut over the front of index finger of right hand; middle phalanx
(vi) Incised wound deep 1 cm x 0.25 cm x muscle deep present on the dorsal surface of middle finger As per Autopsy Surgeon, the cause of death of the deceased was shock and hemorrhage as a result of injuries sustained.
6. During the course of investigation, sample of plain and blood stained stone were taken from the spot vide memo Ex. Ka-13. After arrest of accused Bittu Singh, his statement was recorded vide memo Ex. Ka-15 and thereafter on the basis of his disclosure statement, the sword, used in the incident, was recovered from the house of accused Balwant Singh at the instance of appellant accused Balwant Singh. On 14.04.2001, accused Bittu Singh has also got recovered two rods form his house. After completion of the investigation, all the four accused persons were charge-sheeted.
7. Learned trial court framed charge under Section 302/34 of IPC against all the accused appellants. They pleaded not guilty and claimed false implication.
8. It appears from record that accused Bittu Singh was declared juvenile and his case was separated and sent to Juvenile Board.
9. In order to bring home the guilt of the appellants-accused, prosecution has examined eight witnesses. The accused persons were examined under Section 313 of Cr.P.C., wherein, they have denied the prosecution evidence and claimed false implication. One Balwant Singh was also examined as court witness CW-1 by the Court.
10. After hearing and analyzing the evidence on record, learned trial court convicted all the three accused persons under Section 302/34 of IPC vide impugned judgment and order dated 15.09.2006 and sentenced them as stated in paragraph no.1 of the judgment.
11. Heard Sri Noor Mohammad, learned counsel for the appellants and Sri Amit Sinha, learned A.G.A. for the State.
12. Learned counsel for the appellants has submitted:
(i) that PW-1 Santa Singh and PW-2 Balkar Singh are not eye-witnesses to the alleged incident. PW-1 has admitted in his cross examination that he was told about the incident at his home. Similarly, PW-2 Balkar Singh stated in his cross examination that when he reached at the spot deceased Ramesh was in bleeding condition and was lying dead at the road. PW-2 has further stated that the deceased Ramesh has told him that he has been killed by Kala, Bittu and Balwant Singh. It was argued that in view of cross examination of these witnesses, it is clear that PW-1 and PW-2 are not eye-witnesses to the alleged incident.
(ii) that both the material witnesses, PW-1 Santa Singh and PW-2 Balkar Singh, are related to the deceased and thus, they are "interested witnesses." As per prosecution version, many persons had reached at the spot, but none of them have been examined. Thus, the testimony of PW-1 and PW-2 is not reliable.
(iii) that the prosecution has failed to prove any motive on the part of the accused persons to commit the murder of the deceased. It was pointed out that PW-1 Santa Singh in his cross examination has stated that the boundary of their land was not adjoining to the land of accused persons and thus, the question of any enmity on account of boundary dispute does not arise.
(iv) that there is delay of three days in lodging the FIR. The alleged incident took place on 09.04.2001 at 6:00 PM, but FIR was lodged on 12.04.2001 at 15:45 hours. No explanation has been offered regarding the delay in FIR. It is argued that these facts show that FIR was lodged after consultation and the accused persons were falsely implicated.
(v) that oral testimony is not consistent with the medical evidence. It was pointed out that as per the prosecution version, besides sword and rod, deceased was also attacked with 'barchi' but no such injury, which might have been caused by 'barchi', was found on the person of the deceased.
13. Refuting the contentions of the learned counsel for the appellants, it was submitted by the learned State counsel that PW-1 Santa Singh and PW-2 Balkar Singh are eye-witness to the incident and they have made a clear and cogent statement in the court that it were the accused persons, who committed the murder of the deceased Ramesh. As the case is based on direct evidence, the proof of motive is not of much significance. No material contradiction or inconsistency could be shown in the statements of the witnesses. The weapons used in the incident were also recovered at the instance of the accused persons. Regarding delay in FIR, it was submitted that the deceased has sustained serious injuries and from the spot he was taken to Bijnor and thereafter, he was shifted to Medical College, Meerut, thus, the priority of the family members of the deceased would be to save life of the deceased and not to rush to the police station to lodge the FIR. It is argued that in such facts and circumstances, no adverse inference can be drawn on account of the delay in lodging the FIR.
14. Perusal of record shows that trial court has based conviction of appellants on evidence of PW-1 Santa Singh and PW-2 Balkar Singh. PW-1 Santa Singh in his statement stated that boundary of their land is adjoining with the land of accused persons and that about 20 days prior to the incident an altercation had taken place over that issue thereafter on the day of incident at about 6:00 PM, when his brother Ramesh was returning from land and reached near culvert, accused Bittu having rod, accused Kala Singh having barchi, accused Balwant Singh having sword confronted the deceased Ramesh and that accused Mahendro Bai who was also standing nearby, exhorted them to kill deceased Ramesh and thereafter deceased was attacked by Balwant Singh with sword and by Bittu with iron rod with intention to kill him. Accused Kala Singh was also exhorting to kill the deceased. Hearing noise, one Balkar Singh, Ranga Singh and several other persons reached there and thereafter accused persons went away. He also stated that his brother Ramesh and eye-witnesses have told him about the incident. The deceased was taken to Nageena Hospital, Bijnor and from there he was referred to Meerut. PW-1 further stated that on 12.04.2001, his father informed him on phone about the death of Ramesh and thereafter he has filed written tahreer Ex. Ka.1 at the police station. In his cross-examination PW-1 has stated that his house is situated at about 750 meters from the spot of incident and that Ramesh and witnesses have told him at his home about the incident and have also told him as to how the incident had taken place. He has further stated in cross-examination that between their land and the land of accused persons, there is land of one Mukundi, Phool Singh and Hakam Singh etc and each plot is of about 2 acres. As there were land of other persons between the land of the parties thus, the boundary on their land and of the accused persons was not common.
PW-2 Balkar Singh stated that on the day of incident at around 6:00 PM while he was present at the house of his uncle Kaka Singh, he heard noise and reached at the spot and saw that Balwant Singh having sword and Bittu having iron rod (saria) were assaulting Ramesh, while Kala Singh having barchi was exhorting to kill the deceased. Similarly, accused Mahendro Bai was also exhorting to kill the deceased. When accused persons were challenged by them, they went away. In his cross-examination, PW-2 has stated that he cannot tell the number of assailants and stated that when he reached at the spot the deceased was bleeding from stomach and again stated that when he reached at the spot deceased Ramesh was lying dead. In further cross-examination, he stated that when he reached at the spot deceased Ramesh was crying of injuries and he has told that he was assaulted by Kala Singh, Bittu and Balwant Singh.
PW-3 Haridutt Singh is a witness of the seizure of stone piece as well as recovery of sword from Balwant and rod at the instance of accused Bittu.
PW-4 Dr. M.K. Gupta has proved postmortem report Ex. Ka.2 while PW-6 Dr. Anand Swaroop Jain has medically examined the deceased and proved the medical examination report Ex. Ka.5.
PW-5 Head Constable Mukhraj Singh has record FIR and PW-7 S.I. Om Prakash has conducted inquest proceedings. PW-8 S.S.I. R.S. Rana has conducted investigation. C.W. 1 Balwant S/o Kakka is a witness of seizure of blood stained stone piece and simple stone piece from the spot.
15. So far as the question of delay in lodging the FIR is concerned, it is well settled that delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions, as they are, one cannot expect from these villagers to rush to the police station immediately after the occurrence. Human nature as it is, kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. Of course, in cases arising out of acute factions, there is a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger of convicting such innocent persons, the courts should be cautious to scrutinize the evidence of such interested witnesses with greater care and caution and separate grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so, the contents of the FIR also will have to be scrutinized carefully. If delay in lodging the FIR has been explained from the evidence on record, no adverse inference can be drawn against the prosecution merely on the ground that the FIR was lodged with delay. There is no hard and fast rule that any delay in lodging the FIR would automatically render the prosecution case doubtful.
16. In Sahebrao & Anr. Vs. State of Maharashtra (2006) 9 SCC 794, Apex Court has held that :
"The settled principle of law of this Court is that delay in filing FIR by itself cannot be a ground to doubt the prosecution case and discard it. The delay in lodging the FIR would put the Court on its guard to search if any plausible explanation has been offered and if offered whether it is satisfactory."..
In Bhagaloo Lodh and Another v. State of Uttar Pradesh [(2011) 13 SCC 206], it has been held that prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding the truth of its version and where there is a delay in lodging the FIR without any explanation, a presumption can be raised that the allegations in the FIR were false and that it contains a coloured version of the events that had taken place.
In Awadesh v. State of M.P. [AIR 1988 SC 1158], the Apex Court found that the FIR was lodged belatedly because the names of the assailants were not known and a lot of deliberation took place before lodging the FIR the Apex Court held that the prosecution has failed to prove its case beyond reasonable doubt.
In Ganesh Bhavan Patel v. State of Maharashtra[(1978) 4 SCC 371], it was held that the inordinate delay in the registration of the FIR and further delay in recording the statement of material witnesses, caused a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story. In State of M.P. v. Mansingh and others [(2003) 10 SCC 414], it was observed that if the date and time of the FIR is suspicious, the prosecution version is not rendered vulnerable but the court is required to make a careful analysis of the evidence in support of the prosecution case.
In Mehraj Singh v. State of U.P. (1994) 5 SCC 188, the Apex Court considered a similar grievance regarding the alleged ante-timing of FIR. In this connection, following pertinent observations were made in para 12 of the Report: (SCC p. 195-96) "FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eye-witnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets benefit of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in dispatching or receipt of the copy of the FIR by the local Magistrate. Prosecution had let no evidence at all in this behalf. The second external check equally important is the sending of the copy of the FIR along with dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174 Cr.P.C. is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante-timed to give it the colour of promptly lodged FIR."
"The FIR in a criminal case is a vital and valuable piece evidence though may not be substantive piece of evidence. The object of insisting upon prompt lodging of the FIR in respect of the commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of the eye-witnesses present at the scene of occurrence. If there is a delay in lodging the FIR, it loses the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of large number of consultations/deliberations. Undoubtedly, the promptness in lodging the FIR is an assurance regarding the truth of the informant's version. A promptly lodged FIR reflects the first hand account of what has actually happened, and who was responsible for the offence in question. (Thulia Kali v. State of T.N. (1972) 3 SCC 393, State of Punjab v. Surja Ram 1995 Supp (3) SCC 419, Girish Yadav v. State of M.P. {(1996) 8 SCC 186 and Takdir Samsuddin Sheikh vs. State of Gujarat (2011) 10 SCC 158."
17. In the light of above discussed legal position, in the present case it may be seen that the alleged incident took place on 09.04.2001 at 6:00 PM, while the FIR was lodged on 12.04.2001 at 15:45 hours. The distance of police station from the spot of incident is shown 4 kilometers. In the FIR, it was mentioned that after the incident, the deceased was first taken to government hospital Nagina and from there he was referred to district hospital, Bijnor. On 11.04.2001, the deceased was referred to Meerut Medical College and was admitted there. As per the complainant, in the morning on 12.04.2001, he was informed by his father on telephone that the deceased has expired. Thereafter, FIR was lodged on 12.04.2001 at 15:45 hours. Merely because the deceased was shifted to various hospitals, it cannot be ground for such long delay in lodging the FIR. No doubt, first priority of the family members of the deceased would be to save life of the deceased and not to rush to the police station to lodge FIR, however, it cannot be assumed that after the incident, all the family members of the deceased remained so busy in treatment of the deceased that they could not get time till 12.04.2001 to lodge FIR. It also transpires from the record that after the incident, deceased was taken to Nagina and the police station Badhapur has been shown in the sub district Nagina. Thus, distance of police station Badhapur from Nagina was not much, but despite that, none of the family members of the deceased informed the police till 12.04.2001. Even as per the complainant, he was informed by his father in the morning on 12.04.2001 that deceased has expired, but despite that the FIR was lodged at 15:45 hours. These facts indicate that the FIR was not prompt and it was lodged with undue delay and therefore, this possibility cannot be ruled out that the FIR was lodged after consultation.
18. So far as the presence of PW-1 Santa Singh and PW-2 Balkar Singh at the spot of the incident is concerned, PW-1 Santa Singh though, in his examination-in-chief, inter alia, stated that his brother deceased was murdered by the accused persons as the deceased was attacked by accused-appellant Balwant Singh with sword, Bittu Singh with a rod and by Kala Singh with barchi, while Smt. Mahendro Bai had made exhortation to kill the deceased, however, in cross-examination, PW-1 Santa Singh stated that his house is situated at a distance of 750 meters from the place of incident. Deceased Ramesh and witnesses have told him about the incident at his home and also told as to how incident has taken place. From this statement of PW-1, it becomes doubtful whether PW-1 has actually seen the incident. Examining the statement of PW-1 as a whole and particularly his cross-examination, it cannot be held with certainty that PW-1 has actually witnessed the alleged incident.
19. Similarly, in his examination-in-chief, PW-2 Balkar Singh has stated that after hearing the noise, he as well as one Ranga Singh have reached at the spot and saw that accused Balwant Singh, having sword and Bittu having a rod were assaulting deceased Ramesh, while Kala Singh having a 'barchi' was standing there and was saying that the deceased must not remain alive today. Similarly, Smt. Mahendro Bai was also exhorting them to kill the deceased. However, in his cross-examination, PW-2 has stated that after hearing the noise when he as well as Ranga Singh and some other persons reached at the spot, they saw deceased Ramesh was bleeding from his stomach and he was lying on the road and it was deceased Ramesh, who told them that he was attacked by Kala Singh, Bittu Singh and Balwant Singh. From the statement of PW-2 Balkar Singh, it appears that he has reached at the spot after the incident and he has not seen the assailants, while attacking the deceased. At the best, what was told by the deceased to him, may fall within the category of 'dying declaration' but on this aspect, his statement is not consistent with his previous statement.
20. From the cross-examination of both PW-1, Santa Singh and PW-2 Balkar Singh, the presence of these witnesses, at the time of incident at the spot, appears to be doubtful and it can not he held that they have seen the actual assailants. It is well settled that the statement of a witness has to be read as a whole and after considering the entire statement in the specific attending facts and circumstances of the case, proper inference has to be drawn. In the present case, in view of the aforesaid facts, it appears that PW-1 and PW-2 have not witnessed the actual incident and did not see the assailants of the deceased, as it appears from their cross-examination, that they have reached at the spot after the incident. Here it would be pertinent to mention that there was undue delay in lodging the FIR. Therefore, in view of these facts, it would be throughly unsafe to base conviction of the appellants on the basis of statements of PW-1 and PW-2.
21. So far as the question of motive is concerned, it is well settled that if a case is based on direct evidence, motive has no much significance. Clear proof of motive lends additional assurance to other evidence, but the absence of motive does not lead to contrary conclusion, however in that case, other evidence has to be closely scrutinized. If positive evidence is clear and cogent, the question of motive is not important. However, this is relevant to lend assurance the other evidence. In Shivji Genu Mohite V. State of Maharashtra, AIR 1973 SC 55, the Supreme Court has held that in case the prosecution is not able to discover an impelling motive, that could not reflect upon the credibility of a witness to be a reliable eye-witness. Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case. But that would not be so in cases where there are eye- witnesses of credibility, though even in such cases if a motive is properly proved, such proof would strengthen the prosecution case and fortify the court in its ultimate conclusion. But that does not mean that if motive is not established, the evidence of an eye-witness is rendered untrustworthy. Therefore, in case there is direct trustworthy evidence of witnesses as to commission of an offence, the motive part loses its significance as held in Bikau Pandey & Ors. V. State of Bihar, (2003) 12 SCC 616; and Abu Thakir & Ors. V. State of Tamil Nadu, (2010) 5 SCC 91).
In the present case it was alleged in the FIR that there was a dispute of boundary between deceased Ramesh and the accused persons and about 20 days prior to the incident, an altercation has taken place on this account. However, in his cross-examination, PW-1 Santa Singh stated that between the land of the deceased and the land of accused persons, there is land of Mukandi, Phool Singh and Hakam Singh etc. It was stated that there were 2-3 pieces of land of various persons between the land of the accused persons and the deceased. From the statement of PW-1, it appears that the agricultural land of the deceased and the accused persons was not adjoining and there was no common boundary between their land. In view of these facts, the question of dispute over boundary does not arise. The prosecution has not clarified that when the land of deceased and of accused persons was not adjoining and there was no common boundary then what was the dispute of boundary between them. Considering all these facts, it cannot be said that the prosecution has been able to establish the alleged motive of the incident. Though as stated earlier, proof of motive is not sine-qua-non for sustaining conviction, however in the present case, in view of the fact that presence of the alleged eye witnesses at the spot has not been established and there was delay in FIR, the fact that motive was alleged but could not be proved, would also make a dent on the veracity of prosecution version.
22. It is a cardinal principle of criminal jurisprudence that the guilt of the accused must be proved beyond all reasonable doubt. The burden of proving its case beyond all reasonable doubt lies on the prosecution and it never shifts. Another golden thread, which runs through the web of the administration of justice in criminal cases, is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. [Vide Kali Ram V. State of Himachal Pradesh, (1973) 2 SCC 808; State of Rajasthan V. Raja Ram, (2003)8 SCC 180; Chandrappa & Ors V State of Karnatka, (2007) 4 SCC 415; Upendra Pradhan V. State of Orissa, (2015) 11 SCC 124 and Golbar Hussain & Ors. V. State of Assam and Anr., (2015) 11 SCC 242]. 39. In the instant case, considering the entire evidence on record, it appears that the presence of PW-1 Santa Singh and PW-2 Balkar Singh at the spot at the time of alleged incident is highly doubtful and it cannot be held that PW-1 and PW-2 have seen the actual assailants committing the incident. Besides PW-1 and PW-2, no other eye-witness to the incident was examined by the prosecution. Though recovery of sword and rods was shown from the accused persons, but in the absence of any positive expert report that these weapons were used in the incident, mere recovery of the alleged weapons cannot be a conclusive factor so as to hold the accused persons guilty. As stated earlier, the FIR was also lodged with undue delay and the motive was alleged, but could not be proved. Applying the aforesaid position of law, in the facts and evidence of the present case, it is apparent that the prosecution has failed to prove its case beyond doubt.
23. The net result of the above discussion is that the prosecution has not been able to prove its case against any of the accused-appellants beyond resonable doubt. The trial Court erred in convicting the appellants for the murder of the deceased. Accordingly, the conviction and sentence of the accused-appellants Balwant Singh, Kala Singh and Smt. Mahendro Bai under Section 302/34 of IPC is set aside and all the appellants are acquitted of the charges levelled against them.
24. The appeal is allowed.
25. The appellant, namely, Balwant Singh, is stated to be in judicial custody, if not required in any other case, he be released forthwith. Appellants, namely, Kala Singh and Smt. Mahendro Bai are on bail, their personal bonds are cancelled and sureties are discharged.
Date: 17.07.2019
A. Tripathi
(Raj Beer Singh, J) (Pritinker Diwaker, J)