Amar Singh & Another vs State Of U.P. on 10 February, 2017

[Cites 4, Cited by 1]

Allahabad High Court

Amar Singh & Another vs State Of U.P. on 10 February, 2017

(Delivered by Hon'ble Arvind Kumar Mishra-I,J.) By way of instant criminal appeal, challenge has been made to the validity and sustainability of the judgment and order of conviction dated 28.01.1995 passed by IV-Additional Sessions Judge, Etawah, in Sessions Trial No.300 of 1992 State Vs. Amar Singh and another, arising out of Case Crime No.232 of 1992 under Section 302 IPC, Police Station Ekdil, District Etawah, whereby accused-appellants Amar Singh and Hom Singh have been sentenced to life imprisonment under Section 302 IPC.

Heard Sri S.V. Singh, learned counsel for the appellant Amar Singh, and Amicus Curiea for the appellant Hom Singh, Sri A.N. Mulla assisted by Sri J.K. Upadhyay and Kumari Meena, learned AGAs for the State and perused the record of this appeal.

Facts discernible from record suggest that the first information report was lodged by the informant Ram Shanker @ Pappu son of Karan Singh, resident of Kasba and Police Station Ekdil, District Etawah, on 08.07.1992 at 2:45 p.m. against the present appellants for committing murder of his brother Hori Lal by giving him knife blows, with specific allegations that his brother (Hori Lal) had gone to village Aminabad from brick-kiln at Nagina by tractor for unloading bricks of Virendra Singh. Since agriculture field of the informant was also located in village Aminabad, he too accompanied his brother on the tractor in order to take stock of crops growing in the field. It was around 1:45 p.m., the informant's brother parked his tractor at the house of Virendra Singh and went for toilet at Abadi situate towards house of Parshuram. The informant was waiting on the tractor. As soon as his brother reached near house of Rambati, all of sudden, he heard shrieks of his brother, whereupon the informant along with Ram Sevak and a number of villagers arrived on the spot, when they saw Amar Singh and Hom Singh causing knife blow to his brother. On being challenged, the assailants made their escape good towards northern side. The informant's brother died on the spot. The dead body was lying on the spot. Some altercation had earlier taken place between family of the deceased and the accused persons and due to this, the accused persons were inimical towards the deceased. Request was made for lodging of the first information report and appropriate action. This report was scribed by Krishna Murari Sharma son of Data Ram Sharma and has been proved by Ram Shanker @ Pappu PW-1 as Ext. Ka-1.

Relevant entries were made in the concerned Check FIR No.192 of 1992 at 2:45 p.m. on 08.07.1992 at Case Crime No.232 of 1992 under Section 302 IPC, Police Station Ekdil, District Etawah and on the basis of the same, case was registered against the two accused persons including the present appellant. Check FIR is Ext. Ka-2 and general diary entry is Ex. Ka-3.

The investigation of the case was followed by S.I. Nand Kishore PW-6 who after perusing the Check FIR and started investigation at 2:50 p.m. on 08.07.1992. He recorded statement of Head Clerk and the informant. He held inquest of the deceased Hori Lal after reaching to the spot at 3:35 p.m. and completed the same at 5:00 p.m. Inquest report is Ext. Ka-7. He prepared site plan of the place of occurrence as Ext. Ka-5. The Investigating Officer collected simple and blood stained concrete/soil and prepared a memo of the same as Ext. Ka-6.

In the opinion of the witnesses and the Investigating Officer, it was thought proper to send dead body for post mortem examination in order to ascertain cause of death. In the process, the Investigating Officer also prepared certain papers for sending dead body of Hori Lal to mortuary for conduction of post mortem examination. These papers are Ext. Ka-8 and Ext. Ka-9.

Thereafter, the dead body of the deceased Hori Lal was sent for post mortem examination at District Hospital, Etawah. Post mortem examination on the cadaver of the deceased Hori Lal was conducted by Dr. K.D.R. Srivastava PW-5, on 09.07.1992 at 2:00 p.m. who noted following ante mortem injuries:

1. Stab wound 2 cm x 0.5 cm x muscle deep on right side of neck, 3 cm down from right ear.

2. Stab wound 3 cm x 0.5 cm x trachea deep cut on front and right side of neck, 1 cm down from injury no.1.

3. Stab wound 3 cm x 0.5 cm x bone deep on inner aspect of left upper arm, 4 cm below from left axillary region.

4. Stab wound 1.5 cm x 0.5 cm x bone deep on outer side of left upper arm, 5 cm down from posterior axillary fold.

5. Stab wound 3.5 cm x 1 cm x chest cavity deep on front of left side chest, 3 cm above left nipple.

6. Stab wound 2.5 cm x 0.5 cm x chest cavity deep on front of chest at lower part of sternum. Sternum fractured.

7. Stab wound 2.5 cm x 0.5 cm x chest cavity deep on front of right side chest, 1 cm medial and down from right nipple.

8. Stab wound 3.5 cm x 0.5 cm x chest cavity deep on front of right chest, 1 cm down from injury no.7.

9. Stab wound 4 cm x 0.5 cm x abdominal cavity deep on front of upper abdomen at epigastric region of abdomen.

10. Stab wound 2 cm x 0.5 cm x abdominal caviy deep on right side of abdomen, 3 cm down from injury no.8.

11. Stab wound 2 cm x 0.5 cm x abdominal cavity deep on right side of abdomen, 1 cm down from injury no.10.

12. Stab wound 3 cm x 0.5 cm x abdominal cavity deep on lateral side of right side and abdomen, 3 cm away from injury no.11.

13. Stab wound 2 cm x 1 cm x abdomen cavity deep on right side of lateral abdomen just close to injury no.12.

14. Stab wound 3 cm x 1 cm x abdominal cavity deep on front of right side of abdomen, 5 cm above to umbilicus on right side. Membrane is coming out of wound.

15. Stab wound 2 cm x 1 cm x abdominal cavity deep on front of abdomen at umbilicus.

16. Stab wound 3.5 cm x 1 cm x bone deep on outer side of lower part of right upper arm, 6 cm above the elbow joint.

17. Stab wound 2 cm x 1 cm x bone deep on inner side of right upper arm, 7 cm above the right elbow joint.

Cause of death was spelt to be shock and haemorrhage as a result of ante mortem injuries. This post mortem examination report has been proved by the doctor PW-5 as Ext. Ka-4.

The Investigating Officer after completing the investigation submitted charge sheet against the accused-appellants Ext. Ka-10.

As a sequel to that, the case was committed to the court of Sessions from where it was transferred for conduction of trial and disposal to the aforesaid trial court i.e. IV-Additional Sessions Judge, Etawah who after hearing the accused-appellants on point of charge and also after hearing the prosecution and perusing the record was satisfied with prima facie case against the accused-appellants and, accordingly, framed charge under Section 302 IPC. Charge was read over and explained to the accused-appellants who abjured charge and opted for trial.

Thereafter, the prosecution was required to adduce its testimony in support of charge in order to establish guilt of the accused-appellants beyond reasonable doubt. In turn, the prosecution produced in all six witnesses, reference of whom is given here in below:

Ram Shanker @ Pappu PW-1 is the informant and claims himself to be eyewitness. The other two witnesses Ram Sewak PW-2 and Virendra Singh PW-3 have not supported the prosecution version and have been declared hostile. Constable Uma Shanker Pandey PW-4 has made relevant entry in the concerned Check FIR and general diary and has proved the process. Dr. K.D.R. Srivastava PW-5 has conducted autopsy on the dead body of the deceased Hori Lal on 09.07.1992 and has proved post mortem examination report Ext. Ka-4. S.I. Nand Kishore PW-6 is the Investigating Officer. He has detailed various steps taken by him in completing investigation and has proved filing of charge sheet against the accused-appellants.

Except as above, no other testimony was adduced by the prosecution. Consequently, evidence for the prosecution was closed and statement of the accused-appellants was recorded under Section 313 Cr.P.C. wherein they claimed to have been falsely implicated in this case.

Defence also produced Krishna Murari Sharma as DW-1. He is scribe of the written report Ext. Ka-1 and has testified on that aspect before the trial court. Babu Lal Pal, Lekhpal DW-2 has testified on certain revenue aspect and about location of some agriculture field and has proved Ext. Kha-1 Khatauni concerning Khata No.398 and map of road Ext. Kha-2, leading towards Nagla Aminabad. Thereafter, evidence for the defence was closed and the case was posted for arguments.

Learned trial Judge after hearing the parties on merit recorded aforesaid finding of conviction against the accused-appellants and sentenced them to imprisonment for life under Section 302 IPC vide impugned judgment and order dated 28.01.1995.

Consequently, this appeal.

It has been vehemently contended on behalf of the accused-appellants that imputation against the accused-appellants is not based on any testimony but the same is outcome of suspicion as a result of collusion between the informant and the police authorities concerned. In fact, the incident was not witnessed by any one and it took place at a time when not a single prosecution witness was present on the spot. Presence of the informant Ram Shanker @ Pappu PW-1 is highly doubtful and unnatural because he was engaged in carpentry work and on the day of occurrence, he himself has testified that he had gone to work somewhere else. He has also testified, to the effect, that on that day, he remained confined to his home after finishing his work till evening. Therefore, his presence on the spot and particularly at the time of occurrence becomes highly improbable. Due to this reason, inquest report does not contain name of the informant as one of the inquest witnesses and the relevant prosecution papers do not bear his signature. This particular aspect indicates absence of the informant on the spot when the occurrence took place. No plausible explanation has been given by the prosecution for such omission.

Krishna Murari Sharma, the scribe has not been produced by the prosecution and non-production of him was deliberate because he, in fact, did not scribe the written report at the instance of the informant in the village where the occurrence took place but he was made to write the report at the concerned police station around 8:30 p.m. also, on the day of occurrence at the instance of the police.

The Investigating Officer himself admits that he did not record any statement of the scribe under Section 161 Cr.P.C. because he was afraid of fact that falsity will be exposed. The scribe has been produced by the accused-appellants and he has denied having written report in the village but he has stated to have written the report at the police station. The two other witnesses PW-2 and PW-3 have not supported the prosecution version that Hori Lal was given knife blow by the accused-appellants.

Learned trial Judge failed to take stock of the aforesaid factual and legal aspects of this case which were very much apparent to it and erroneously recorded conviction against the accused-appellants, which finding is not based on material on record. The motive imputed is weak and unfounded. The prosecution has failed to prove its case beyond all reasonable doubt.

Learned AGA while retorting to the aforesaid contentions has submitted that the case of the prosecution is consistently proved by testimony, fact and circumstances on record and it cannot be said that finding of conviction is vitiated either on fact or in law because scrutiny made by the trial court is wholly justified. The trial court has given various reasons in support of finding of conviction. The wholesome reading of testimony of Ram Shanker @ Pappu, informant PW-1, will reflect that he was present on the spot at the time of occurrence and he accompanied his brother (deceased Hori Lal) up to the village Aminabad where occurrence took place and his presence cannot be rendered doubtful. The witnesses who have turned hostile have also supported the case of the informant that they saw Hori Lal on the spot and Ram Shanker @ Pappu was present over there and was weeping.

Learned AGA has further submitted that the eye account testimony inspires confidence and there is no reason to disbelieve the same as that would amount to brushing aside cogent testimony merely on suspicion. Scribe has been won over by the defence. The defence is taking advantage of laches committed by the Investigating Officer. It is established law that mistake committed during investigation by the Investigating Officer would not amount to throwing away the case of the prosecution. Evidence on record profusely indicates involvement of the accused-appellants in the occurrence. The trial court has taken correct view of law and facts and has justifiably recorded conviction against the accused-appellants.

We have considered the above submissions and also considered claim of the accused-appellants. Point for determination of this appeal, basically relates to fact whether the prosecution has been able to prove its case and particularly the occurrence and consequently charge beyond all reasonable doubt against the accused-appellants or the incident was not witnessed by anyone?

At the very outset, we may take note of contents of the first information report Ext. Ka-2. Bare perusal of the same reflects that on the day of occurrence i.e. 08.07.1992, the deceased Hori Lal was going to unload bricks at the house of Virendra Singh in village Aminabad. Certain agriculture field was also owned by the informant in Aminabad, therefore, he accompanied his brother (deceased Hori Lal) on the tractor. They reached at the house of Virendra Singh around 1:45 p.m. and the deceased Hori Lal parked his tractor at the house of Virendra Singh and went for toilet towards house of Parshuram in Abadi area. The informant kept on waiting on the tractor. No sooner did the deceased Hori Lal reach near house of Rambati than he shrieked, the informant Ram Shanker @ Pappu, Ram Sewak and a number of villagers rushed to the spot and saw Amar Singh and Hom Singh both sons of Nathu Ram giving knife blow to the deceased Hori Lal. The informant and others challenged them when the assailants fled away from the scene. The informant's brother (Hori Lal) died on the spot.

The written report also describes the motive for committing the offence as some dispute between the deceased and the family of the accused some time ago due to which the accused were inimical towards the deceased. In the above factual background of this case, we have three prosecution witnesses of fact namely Ram Shanker @ Pappu PW-1 - the informant. He claims himself to have seen the occurrence and was present on the spot, whereas, the other two witnesses Ram Sewak PW-2 and Virendra Singh PW-3 have not supported the prosecution case, instead, they have testified only to the extent that they saw the informant weeping over there when they reached on the spot. Ram Sewak PW-2 has been named as witness in the first information report, therefore, his testimony has got relevance. May be that it either corroborates the prosecution version or erodes the prosecution case but apart from above, we have no any better testimony on the point of occurrence than the testimony of the aforesaid three witnesses of fact.

We may take into consideration testimony of the informant, Ram Shanker @ Pappu PW-1 and thereafter testimony of the two other witnesses of fact. In his examination in chief, PW-1 has virtually substantiated the contents of the occurrence as described in the written report and the fact that he accompanied his brother on tractor up to the village Aminabad and he arrived on the spot, then he heard shrieks of his brother who had gone for toilet. However, he claims that he rushed to the spot along with Ram Sewak, Virendra Singh and Rakesh Kumar and they saw Amar Singh and Hom Singh giving knife blow to Hori Lal in the street. When they challenged, the assailants made their escape good from the scene. He adds that Hori Lal died on the spot due to assault made by knife.

PW-1 proceeds on to elaborate on point of motive that prior to the incident, two years ago the mother of Amar Singh had dug out some potatoes from the informant's field, whereupon Hori Lal had some altercation with the mother of the accused and he also gave her little beating due to which the accused persons had grudge against Hori Lal. He goes on to add that after the occurrence, he got scribed the written report by Krishna Murari Sharma in the village itself and after hearing contents of the report, he made his signature on it and has proved the written report as Ext. Ka-1.

PW-1 has been cross examined at length by the defence wherein certain contradictory statement on factual aspect of presence of PW-1 on the spot at the time of occurrence is rendered doubtful. On page 17 of the paper book, he has testified to fact that he cannot say that at what time Hori Lal had gone by tractor for work because he (PW-1) had gone for work earlier and he is engaged in carpentry work for about 10-12 years. He has stated that usually he goes for work around 8:00 a.m. daily.

However, he (PW-1) has been cross examined on point of previous altercation on account of digging out of potatoes by the mother of the accused to the extent that he did not lodge any complaint regarding the same with any police authority. He has categorically stated that this incident occurred two years prior to the incident. He further testified that after that episode, his brother (deceased Hori Lal) used to visit agriculture field, time and again, and was engaged in cultivation but no dispute, whatsoever, took place between the accused and their mother on the one side and the deceased Hori Lal on the other side. This particular fact by itself reflects that the very motive for nurturing animosity against the deceased Hori Lal by the accused-appellants becomes oblivious by passage of time, because the deceased Hori Lal kept on visiting his agriculture field in the meanwhile after the occurrence of digging of potatoes by the mother of the accused and for about two years, no dispute or altercation of any sort took place between the deceased and the accused-appellants. Therefore, the motive cannot be said to be existing after things subsided in the mind of the accused. Even no independent circumstance or factual aspect has been brought forth by the prosecution which may have any positive bearing on the motive so suggested by the prosecution for committing the crime by the accused-appellants.

We may also observe that in cases where eye account testimony of occurrence is forthcoming, the motive point is relegated to the background and it is not necessary for the prosecution to always prove that aspect as proximate cause for committing the crime, but motive assumes some contextual importance working as impelling force for the accused because nothing happens without cause. Therefore, theory of causation leads and gives impression that some reasonable cause for causing the incident should be attached to the incident. Here, motive imputed is found to be almost non-existing and weak particularly in such a conspicuous situation when the victim was visiting his agricultural field time and again after the dispute and was easily available to the assailants at convenient place. Why should accused wait for efflux of two years before they can retaliate with the victim. How and why all of a sudden, without making any previous bickering for taking revenge, the accused-appellants immediately swung into action and that too to the extent of committing murder of Hori Lal, which under circumstances becomes improbable. On page 19 of the paper book, PW-1 has testified to fact that Krishna Murari Sharma arrived on the spot and he (PW-1) asked him to write the report whereafter he wrote the report and then he went to the police station for lodging the report.

We will consider this aspect at latter stage of our judgment after discussing and evaluating factual testimony of occurrence as given by the three prosecution witnesses of fact. Surprisingly, on page 21 of the paper book, PW-1 has testified categorically that on the day of the occurrence, he remained confined to his home till evening after doing his work. This specific piece of testimony elicits truth to the ambit that PW-1 was not present on the spot. His claim to be present on the spot is itself nullified by the aforesaid specific testimony. On page 23 of the paper book, PW-1 claims to have seen the occurrence along with Ram Sewak and Virendra Singh. He has further testified that he does not know parental name of Krishna Murari Sharma, Ram Sewak and Virendra Singh. He did not spell parental name of the aforesaid persons to Daroga Ji but he cannot ascribe any reason as to how Daroga Ji recorded parentage of the aforesaid three persons in the statement. Then this witness added that perhaps Daroga Ji would have come to know parentage of the aforesaid three persons after visiting the village. This aspect exposes existing collusion between the police authority and the informant.

It is further noticeable that PW-1 claims that dead body of the deceased Hori Lal was sealed in his presence on the spot. However, inquest report Ext. Ka-7 does not name him as witness of inquest. Five witnesses mentioned in the inquest report are Hori Lal son of Kehari Chamar, Hakim Singh son of Ram Gopal, Parshuram son of Matadin, Munshi Lal son of Genda Lal and Babu Ram son of Teek Ram Lohar. The point is that no worthy circumstance and explanation has been given either by the prosecution or by PW-1 as to how and why he was not made inquest witness if he was present on the spot. This also raises doubt about presence of PW-1 on the spot at the time of holding of inquest. He has been suggested that the report was not written in the village but it was written at the police station whereupon this witness has denied the suggestion by telling that it is incorrect to say that the report was scribed at the police station by Krishna Murari Sharma after consultation with Daroga Ji.

In the backdrop of the aforesaid scrutiny of testimony of PW-1, it would be relevant to take stock of testimony of the other two witnesses of fact namely Ram Sewak PW-2 and Virendra Singh PW-3. Ram Sewak PW-2 has been named as witness in the first information report, whereas, in examination in chief of PW-1 even Virendra Singh has been named along with Ram Sewak as the persons who witnessed the occurrence. But Ram Sewak PW-2 has testified to the extent that the deceased Hori Lal and Ram Shanker @ Pappu were seen by him on tractor. The tractor was parked near door of Virendra Singh. Hori Lal went for toilet towards northern side. After a little while, some noise was heard from house of Rambati whereupon this witness (PW-2) along with PW-1 and Virendra Singh rushed to the spot where they saw Hori Lal lying dead.

PW-2 has specifically testified that he cannot say as to who committed murder of Hori Lal. This witness has also not recognized the accused-appellants as culprits who perpetrated the crime in the trial court. He has been declared hostile and cross examined by the prosecution. He has denied suggestion that he saw the incident. However, he says on page 26 of the paper book that Virendra Singh PW-3 arrived on the spot after he had reached to the spot. He has further testified on page 27 of the paper book in his cross examination that at the time of his arrival, the assailants were not present on the spot. He further says that when shrieks were raised he arrived on the spot after 10-15 minutes. Meaning thereby, that he did not arrive just after shrieks were raised but he took some time to arrive on the spot.

Similarly, testimony of Virendra Singh PW-3 also assumes importance. In his examination in chief, he says that he saw Hori Lal alone on his tractor. He did not see any other family members of Hori Lal. The incident took place around 2:00 p.m. He did not see any one killing the deceased. This witness was also declared hostile and cross examined by learned ADGC (Crl.), whereupon he has denied suggestion that he is favouring the accused. He also testified to fact that he arrived on the spot after hearing shriek/noise when he saw Ram Shanker @ Pappu (PW-1) near dead body of Hori Lal. He has denied to have given any specific statement to the Investigating Officer. He further adds on page 30 of the paper book that Ram Shanker @ Pappu arrived on the spot after 15-20 minutes after his (PW-3) arrival on the spot.

Now cumulative reading of testimony of PW-2 and PW-3 renders claim of the informant Ram Shanker @ Pappu PW-1 doubtful on the particular aspect of seeing the incident simultaneously by PW-1, PW-2 and PW-3 at the time of occurrence. The wholesome reading of testimony of the three witnesses of fact establishes consistently that all the three witnesses of fact, though arrived on the spot, but at a time when dead body of Hori Lal was lying over there and they did not witness the actual occurrence. Both PW-2 and PW-3 specifically denied having seen the assailants on the spot committing the offence. PW-1 himself has stated in his cross examination that he remained confined to his home till evening after he returned home from work. Thus, natural outcome of testimony on the point of witnessing the occurrence equally supports claim of the accused-appellants that the witnesses of fact did not see act of assault being caused to the deceased Hori Lal. Therefore, testimony of three eyewitnesses on particular aspect of the occurrence is not clinching and not inspiring confidence instead it is contradictory to each other in material particulars and the same is wholly unreliable.

Now we may consider the claim of defence that the written report was scribed at the police station. Before we take note of that aspect, it would be relevant to mention at this juncture that Krishna Murari Sharma - the scribe - though prosecution witness, was produced by the defence as DW-1. Krishna Murari Sharma has specifically stated in his examination in chief that on the day of occurrence, it was around 8:30 p.m., he was going to Ekdil from Bharthana and was standing at the bus station Ekdil when he went to the police station and wrote report there after copying contents of the report from register. He has proved the written report to have been scribed by him which is Ext. Ka-1. He has denied suggestion that it is incorrect to say that this report was written by him at 2:00 p.m. He has gone to the extent that he does not know any person as Ram Shanker @ Pappu and he never scribed report at his instance. He has also stated in his cross examination that he received summons from the court and then he came to depose before the trial court.

Both factual and legal aspects on the point of scribe favour the defence, on two counts; - on factual count the scribe has not supported the prosecution version and no worthy reason has been assigned by the prosecution as to how and under what circumstances the scribe took U-turn and is not supporting the prosecution claim that he worte the report at 2:00 p.m. on the day of occurrence in the village. Secondly, on legal aspect admittedly - he was the prosecution witness but testimony of the Investigating Officer S.I. Nand Kishore reflects that he did not record any statement of Krishna Murari Sharma under Section 161 Cr.P.C. He has been suggested by the defence on page 37 of the paper book in his cross examination that he deliberately avoided recording of statement of Krishna Murari Sharma, because he was made to write the report at the police station, although he has denied the suggestion.

However, the Investigating Officer could not ascribe any particular reason for not recording statement of Krishna Murari Sharma but he says that it was mere slip. This explanation is on its face non-serious and reflects on manner and style of the Investigating Officer as to how he conducted the investigation, but in this case, omission on the part of the Investigating Officer on the whole gives rise to the legal presumption to the magnitude that Krishna Murari Sharma DW-1 who, if produced, by the prosecution as witness would have been unfavourable to the prosecution, therefore, presumption can be drawn against the prosecution by virtue of the mandate contained in Section 114 (g) of the Evidence Act. Certainly this aspect helps case of the accused-appellants.

That way, we can conclude that the first information report on the whole becomes doubtful. Obviously, the factual testimony of occurrence has failed to inspire confidence and so is the first information report, overall outcome would be that the case of the prosecution is shrouded in mystery as to what in fact occurred at the time of incident on the spot and who in fact committed murder of the deceased Hori Lal. Therefore, the prosecution has not been able to prove charge beyond all reasonable doubt against the accused-appellants.

Learned trial court while evaluating testimony on record perhaps failed to take note of particular aspects of this case which relate to the time of occurrence, and the occurrence being witnessed by prosecution eyewitnesses and fact of the first information report being ante timed and misread evidence while recording conviction against the accused-appellants.

Here in this case we can also observe that overall reading of testimony on record apart from creating doubt on the involvement of the accused-appellants in the commission of the offence also gives rise to the two possible views that they might be involved in the incident and they might not be involved in the incident.

It is cardinal principle of criminal jurisprudence that in case two views are possible on the same testimony of fact then the view which favours the accused would be preferred by the Court. Certainly, the trial court failed to appreciate that aspect of the case in its consideration and committed manifest error of law. The trial Judge based his finding of conviction more on conjectures, surmises and whims than material on record and finding of conviction under Section 302 IPC is grounded on no substantive evidence, but it is based on imaginary hypothesis connecting various links without any clinching and inspiring testimony and the same is liable to be set aside by us.

Therefore, the impugned judgment and order of conviction dated 28.01.1995 passed by IV-Additional Sessions Judge, Etawah, in Sessions Trial No.300 of 1992 State Vs. Amar Singh and another, arising out of Case Crime No.232 of 1992 under Section 302 IPC, Police Station Ekdil, District Etawah, is hereby set aside. Accused-appellants are acquitted of charge as above.

Accordingly, the instant appeal succeeds and the same is allowed.

In this case, the appellants are on bail. They need not surrender in this case. Their bail bonds cancelled and sureties discharged. However, they shall furnish surety bonds in compliance with Section 437A Cr.P.C.

Let a copy of this judgment/order be certified to the court concerned for necessary information and follow up action.

Dt. 10.02.2017 rkg

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