Devi Gulam & Others vs State Of U.P. on 21 October, 2016

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Allahabad High Court

Devi Gulam & Others vs State Of U.P. on 21 October, 2016

(Delivered by Hon'ble Arvind Kumar Mishra-I,J.) Heard Sri G.S. Chaturvedi, learned Senior Counsel assisted by Sri Samit Gopal, learned counsel for the appellants, Sri Saghir Ahmad, learned AGA assisted by Km. Meena, Ms. Manju Thathur, learned AGAs, Sri Syed Hasan Shaukat, brief holder for the State and perused the record of this appeal.

By way of instant criminal appeal, challenge has been made to the judgment and order of conviction dated 31.03.1990 passed by the Additional Sessions Judge/Special Judge, Fatehpur, in Sessions Trial No.390 of 1988 State Vs. Devi Gulam and others, arising out of Case Crime No.29 of 1987 under Sections 302/34, 325 and 325/34 IPC, Police Station Jafarganj, District Fatehpur, whereby accused-appellants Devi Gulam, Ram Gopal and Mithlesh Kumar Shukla have been sentenced to life imprisonment under Section 302 read with Section 34 IPC, accused-appellants Devi Gulam and Ram Gopal have been further sentenced to three years rigorous imprisonment under Section 325 read with Section 34 IPC and each of the accused-appellants has been sentenced to pay a fine of Rs.500/- under Section 325 IPC and default stipulates additional rigorous imprisonment for three months. All the sentences were directed to run concurrently.

Relevant to mention that appellant no.2 Ram Gopal has died during pendency of the appeal. The appeal in respect of appellant no.2 Ram Gopal stood abated on 22.09.2015. The instant appeal is being heard and disposed of in respect of the surviving appellants namely Devi Gulam and Mithlesh Kumar Shukla.

The prosecution story in nutshell as unfolded by the written report Ext. Ka-1 contains fact that informant Daya Ram son of Babu Lal lodged the written report at Police Station Jafarganj, District Fatehpur, regarding the incident in question at 00:35 hours on 16.03.1987 which took place in the evening of 15.03.1987 around 6:30 p.m. at village Sahamalpur. The distance from the place of occurrence to the police station is about 23 kilometers. The report discloses facts that one Ram Gopal @ Ganma, resident of informant's village, is Secretary of milk dairy. The informant's brother Deshraj carries milk to this dairy. While pasteurizing milk, fat contents were obtained in lesser quantity by Ram Gopal @ Ganma, due to which altercation took place between informant's brother Deshraj and Ram Gopal @ Ganma several times at several occasions, as a result of which Ram Gopal @ Ganma was abhorrent towards Deshraj. The report further describes that Devi Gulam, uncle of Ram Gopal @ Ganma, is Gram Pradhan of informant's village who used to give land of Gram Samaj on lease to the villagers on receiving money consideration (for the same), which was objected to by the informant's brother Deshraj and certain complaints/applications in that regard were moved before the authority concerned which resulted into initiation of proceedings under Sections 107/116 Cr.P.C. between the parties. In the wake of aforesaid factual position, Devi Gulam was also abhorrent towards the informant's side. The report proceeds on describing that the incident occurred around 6:30 p.m. on 15.03.1987 when the informant's brother Deshraj, Dinesh son of Shyam Bihari, Ram Singh son of Gajodhar Singh and Radhey Shyam son of Chandra Bhushan, all residents of the same village, were returning after basking (burning of woods piled on Holika), and Devi Gulam possessing gun, Ram Gopal @ Ganma possessing countrymade pistol and Mithlesh Kumar Shukla possessing Lathi were seen standing near milk dairy. No sooner did informant's brother Deshraj reach near dairy than Devi Gulam exhorted "Maro Sale Ko Aaj Bachke Jane Na paye" . In the meanwhile Devi Gulam and Ram Gopal @ Ganma fired on him which fire hit the informant's brother and he fell down and Mithlesh Kumar Shukla gave lathi blows to Dinesh as a result of which he sustained injuries. Upon hearing sound of firing, several persons arrived on the spot and the assailants make their escape good. The informant arranged some conveyance for taking the injured Deshraj and Dinesh to the concerned police station. When so conveying, they arrived at Etra crossing then his brother Deshraj succumbed to his injuries. It has been mentioned in the first information report that dead body of the informant's brother has been brought to the police station. Report be lodged and appropriate action be taken. This written report is Exhibit Ka-1.

The contents of this written report (Ext. Ka-1) were taken down in Check FIR at Police Station Jafarganj, District Fatehpur by Qamrul Hasan PW-5 which is Ext. Ka-5. On the basis of entry made in Check FIR, relevant entries were also noted in the concerned general diary at Serial No.2 at 00:35 hours on 16.03.1987 at Case Crime No.29 of 1987 under Sections 302, 307 IPC. General diary entry has been proved as Ext. Ka-6.

We notice from record that investigation of the case was taken over by Paras Nath Tiwari, PW-6 the very same day on 16.03.1987 and he took various steps for completing investigation. In the process, he prepared site plan of place of occurrence Ext. Ka-7 and recorded statement of informant Daya Ram and other witnesses. Investigation was then taken over by Suraj Singh, Station House Officer, Jafarganj, who recorded statement of the injured witness Dinesh on 05.04.1987.

We also notice that inquest report of deceased Deshraj was prepared on 16.03.1987. It commenced around 00:50 hours on 16.03.1987 and completed at 2:10 a.m. This inquest report is Ext. Ka-9.

In the opinion of the inquest witnesses and police personnel, it was thought proper to send dead body for post mortem examination in order to ascertain real cause of death. In the process, relevant papers were prepared and dead body of Deshraj was sent for post mortem examination to mortuary at Fatehpur. Post mortem examination on the cadaver of the deceased Deshraj was conducted by Dr. M.P.S. Kannaujia PW-3, on 16.03.1987 at 3:30 p.m. who found following ante mortem injuries:

(1) Gunshot injury 2 ½ cm x 2 cm on the front of right side chest. Margins inverted wound of entry depth upto left lung cavity. Direction downward, backward and to left 3 cm above nipple at 12 O' clock position surrounded by multiple lacerated wounds. Margins inverted wound of entry of varying size ½ cm x ½ cm to ½ cm x 1/3 x cavity deep.

(2) Gunshot injury 2 cm x 1 ½ cm cavity deep on outer surface of upper part of left arm. Margins inverted, wound of entry.

(3) Gunshot injury ½ cm x ½ cm x cavity deep ½ cm not opened near injury nos.2. Margins inverted, wound of entry. Direction of injury nos.2 and 3 is downward, backward and and to the right.

Cause of death was spelt to be shock and haemorrhage as a result of ante mortem injuries. Duration was stated to be around one day. This post mortem examination report is Ext. Ka-2.

On perusal of the record, we further come across injury report of the injured Dinesh Ext. Ka-3 whereby it is reflected that his medical examination was done by Dr. M.H. Khan, PW-4 on 16.03.1987 at 2:45 p.m. wherein he found following injuries on the person of the injured Dinesh:

(1) Lacerated wound over middle of head over both parietal bone .5 cm x .5 cm x .5 cm. Margins are raggid. Hair crushed, edges swollen, injury vertical, 9 cm above bridge of nose. No sign of inflammation present.

(2) Bruise on the left side of forearm posterio- lateral aspect 10 cm x 2 cm red in colour, oblique. Injury is 1 cm above wrist joint, crepe-tum present. Advised x-ray left forearm.

(3) Bruise on the top left side of shoulder joint 6 cm x 2 cm, red in colour. Oblique.

(4) Bruise on the left side of neck and chest 6 cm x 2 cm, red in colour, vertical. Injury is 8 cm lateral to the top of shoulder joint.

(5) Traumatic swelling on the back of right side of shoulder joint, red in colour In the opinion of the doctor, injury no.2 was kept under observation while rest other injuries were reported to be simple in nature and caused by blunt object. Duration was stated to be about one day. Dr. M.H. Khan PW-4 has also proved supplementary report Ext. Ka-4 which indicated fracture in ulna on several places. He has also proved x-ray plate material exhibit-I. The Investigating Officer took note of the aforesaid fact and after completing investigation, filed charge sheet Ext. Ka-8 against the accused-appellants under Sections 302, 307 IPC.

Consequently, the case was committed to the court of Sessions, from where it was made over for trial and disposal to the aforesaid concerned court where the prosecution opened its case by stating the charges brought against the accused-appellants and it also stated the evidence by which it proposed to prove guilt of the accused-appellants. Learned trial court after hearing the accused-appellants was satisfied with prima facie case against the accused-appellants and, accordingly, framed charges under Sections 302/34 and 325/34 against Devi Gulam and Ram Gopal @ Ganma, whereas, it framed charge under Section 325 IPC against Mithlesh Kumar Shukla.

In turn, the prosecution was required to adduce its testimony in support of charge. Therefore, the prosecution produced in all six witnesses. A brief sketch of the same is as here under:

Daya Ram, informant PW-1 claims himself to be eyewitness and has described the incident. Dinesh PW-2 is an injured witness and he claims to have been present on the spot at the time of the occurrence and he was medically examined the next day of the incident on 16.03.1987 at 2:45 p.m. at district hospital, Fatehpur and he is a star witness of the prosecution. Dr. M.P.S. Kannaujia PW-3 has conducted autopsy on the cadaver of the deceased Deshraj on 16.03.1987 and he has proved post mortem examination report Ext. Ka-2. Dr. M.H. Khan PW-4, as emergency medical officer, has medically examined the injured Dinesh on 16.03.1987 at 2:45 p.m. and has proved injury report of Dinesh Ext. Ka-3 besides proving the supplementary medical report Ext. Ka-4 and the x-ray plate material exhibit-I. Constable Qamrul Hasan PW-5 has made relevant entries in the concerned Chek FIR and general diary whereby the case was registered against the accused-appellants at Police Station Jafarganj on 16.03.1987. Paras Nath Tiwari PW-6 is Investigating Officer. He has proved his part of investigation besides proving part of investigation conducted by another Investigating Officer Suraj Singh who has filed charge sheet Ext. Ka-8.

Thereafter evidence for the prosecution was closed and statement of the accused-appellants was recorded under Section 313 Cr.P.C. wherein they claimed their implication false and baseless on account of enmity. In turn, defence produced Satya Narain DW-1 who was running cooperative society for milk dairy and was tester in that cooperative society.

Thereafter evidence for defence was also closed and the matter was posted for extending arguments pros and cons by the parties and after vetting the case on merits, the learned trial court returned finding of conviction against the accused-appellants and convicted them under Sections 302/34, 325/34 and 325 IPC, ut supra.

Consequently, this appeal.

It has been vigorously claimed by Sri G.S. Chaturvedi - learned Senior Counsel for the accused-appellants - that the entire prosecution case is fabricated and is based on guess work. The circumstances and testimony on record when read cumulatively proves that no one in fact witnessed the incident. The prosecution witnesses of fact have not given coherent and consistent version of the incident vis-a-vis conduct of the prosecution witnesses on the spot, which on the face is unnatural and testimony so forthcoming does not establish presence of these witnesses (PW-1 and PW-2) on the spot at the time of occurrence.

The fact is that no such incident ever took place around 6:30 p.m., but it took place in the darkness of night around 9:00 p.m. A lot of deliberation was made in consultation with the police and thereafter the first information report was lodged against the accused-appellants at inordinate delay around 00:35 hours on 16.03.1987. Reason assigned for such delay has been said to be waiting for conveyance (tempo) hardly satisfies reason that after such ghastly incident, conveyance was arranged only after more than two and half hours of the incident. What a strange patience when the victim was in the jaws of death! It has been stated that the injured Deshraj was kept wrapped under quilt cover by the side of road but no such 'quilt' cover was ever given to the police. The Investigating Officer did not find any blood stains on the place of occurrence. Testimony of informant PW-1 itself establishes that he arrived on the spot only after the incident had taken place, but his examination-in-chief narrates description of the incident from its very beginning as to how the incident commenced which testimony indicates hollowness and hits at creditworthiness of the prosecution witnesses besides pointing that they are improving their testimony and are chance witnesses.

Similar is the case of the another injured witness (Dinesh PW-2) because his presence on the spot too becomes doubtful. There was no motive or occasion for the accused-appellant Mithlesh Kumar Shukla to have caused any injury to the injured Dinesh. In absence of any specific motive, it is beyond comprehension as to how and why accused-appellant Mithlesh Kumar Shukla will indulge in the act of causing sudden 'Lathi' blow to the injured Dinesh. No circumstance or evidence on record can be construed to such an extent and ambit that the incident of shooting was pursuant to the sharing of common intention by all the accused in furtherance of the act.

Assuming it to be that some lathi blows were given to the injured Dinesh but that act, per se, becomes an isolated act of accused-appellant Mithlesh Kumar Shukla, unconcerned with sharing of any common intention, because assault by Lathi was caused only after previous stage of offence ceased to exist as soon as the shooting was complete and assault by Lathi then becomes altogether separate and subsequent act of Mithlesh Kumar Shukla alone, he could not be saddled with any responsibility for sharing common intention with the other co-accused-appellants.

There is no explanation qua delay in lodging of the first information report. Similarly, there is no explanation for causing delay in getting the injured Dinesh medically examined at 2:45 p.m. on 16.03.1987 only after 14 hours of the lodging of the first information report. More surprising is the fact that statement of injured witness Dinesh was recorded subsequently by the Investigating Officer only on 05.04.1987, whereas, he was medically examined on 16.03.1987. All these anomalies appearing in the prosecution case virtually hit at the root and when weighed cumulatively, these anomalies render the prosecution case full of doubt.

One of the eyewitnesses Ram Singh has stated to the Investigating Officer that he came to know about death of Deshraj only in the morning of 16.03.1987, whereas, Ram Singh was witness of inquest and inquest of the deceased Deshraj was held in the night intervening of 15/16.03.1987 and inquest was completed at 2:10 a.m. then how is it possible that Ram Singh came to know about death of the deceased Deshraj only in the morning on 16.03.1987. This way holding of inquest and lodging of the first information report become ante time. Therefore, it is probable that after deliberation was done, the police personnel connived with the informant side and on account of enmity with the accused-appellants, the informant named accused persons at the instance of the police.

Sri Saghir Ahmad, learned AGA while retorting to the aforesaid arguments submitted that entire prosecution case is consistently proved. Presence of the prosecution witnesses on the spot is natural and it cannot be termed unnatural. In such type of cases, certain contradictions are bound to occur, but natural testimony of witnesses of fact, notwithstanding these contradictions as appear in this case are of trivial nature and they do not hit at the root of the prosecution case and charge substance of the prosecution case is very much established against the accused-appellants. The very nature of the incident itself is self-speaking and explanatory of fact that all the accused-appellants were acting in furtherance of their common intention and their common intention was to cause harm on the informant's side which they successfully executed. Their act cannot be separated as act exclusively done by a particular accused regarding which another accused was unaware.

The entire incident formed part of one single transaction. The doctor witness has categorically testified that injury on the person of the injured Dinesh could have been caused around 6:30 p.m. on 15.03.1987. Thus, presence of the injured Dinesh on the spot cannot be disputed. Merely recording of evidence of injured witness after a gap of 20 days from the date of occurrence will not render his testimony irrelevant or inadmissible. His testimony on the whole inspires confidence. Description of injuries has been noted in the concerned general diary when the first information report was lodged. Therefore, there is no motive for false implication, either.

To say that the first information report is outcome of deliberation between the police personnels and the informant is most casual, whereas, testimony and circumstances when taken as whole do not give clue to any such imagination. Circumstances of the case explain the delay in lodging of the first information report which cannot be doubted. The case of the prosecution is proved to the hilt.

We have also considered respective submissions of both the sides.

After considering aforesaid submissions rival claims, core consideration for adjudication of this appeal relates to fact whether the incident was caused by the present accused-appellants in furtherance of their common intention and the incident was witnessed by the prosecution witnesses of fact particularly PW-1 and PW-2 and the prosecution was successful in establishing its case beyond reasonable doubt?

At the very inception, we gather from first information report that the incident allegedly took place at 6:30 p.m. on 15.03.1987 when Deshraj (deceased), Dinesh son of Shyam Bihari, Ram Singh son of Gajodhar Singh and Radhey Shaym son of Chandra Bhushan of the same village were returning after basking (burning of woods piled on Holika), when Devi Gulam possessing gun, Ram Gopal @ Ganma possessing countrymade pistol and Mithlesh Kumar Shukla possessing Lathi were seen standing near milk dairy and after exhortation was given by Devi Gulam, it was followed by firing done by Devi Gulam and Ram Gopal @ Ganma on the informant's brother Deshraj due to which Deshraj sustained gun shot injuries and fell on the ground and Mithlesh Kumar Shukla ran towards Dinesh and caused on him Lathi blows.

In this factual background, testimony of informant Dayaram PW-1, and injured Dinesh PW-2 becomes core consideration for assessment of veracity of the occurrence. While scrutinizing testimony of PW-1, apart from the other aspects appearing in his testimony, we come across specific testimony in his cross examination regarding occurrence on page 22 of the paper-book that this witness reached on the spot only after episode of firing had already occurred. In the last line of first paragraph on page 22 of paper-book, this witness has categorically stated that when he arrived on the spot no firing took place before him. It means that episode of firing had by that time ended. This specific testimony by itself is inherently fair enough to raise doubt on the testimony of this witness regarding the incident, as appearing in his examination-in-chief, which gives details of commencement of the occurrence that such and such accused persons possessing gun and countrymade pistol along with accused Mithlesh Kumar Shukla possessing Lathi in their hands were standing near dairy when Deshraj (deceased) reached near dairy along with the other persons then Devi Gulam gave exhortation and firing was done.

As per testimony of PW-1, he ran towards place of the occurrence after hearing first sound (of fire). As per his cross examination, he arrived on the scene of occurrence only when firing was over. It means that he did not witness any episode of 'firing' as to who fired upon the deceased Deshraj. Even in the first information report, it has been described that at the relevant point of time when Deshraj, Dinesh, Ram Singh and Radhey Shyam were returning after basking (burning of woods piled on Holika), name and presence of the first informant Daya Ram along with other persons has not been stated in the first information report. Thus, this witness cannot be believed to have been present on the scene of occurrence although it may be reasonably inferred under weight of his testimony that he arrived on the spot subsequently to the incident. Therefore, his version/narration regarding the incident as appearing in his testimony when taken as a whole does not inspire confidence. This way, we have no hesitation in holding that he happens to be chance witness and not reliable as an eyewitness of the occurrence.

Now we may switch over to another aspect of this case which relates to testimony of the injured witness Dinesh. No doubt, a reasonable and prudent person will always think about presence of a person who sustained some injuries in any transaction say the offence under consideration. In this particular backdrop of facts, on perusal of his (PW-2) testimony, we come across certain pieces of specific testimony of this witness that he was accompanying Deshraj, Radhey Shyam and when they reached near milk dairy then they saw the accused-appellants possessing gun, countrymade pistol and Lathi and Devi Gulam exhorted the others and thereafter firing was done.

At this stage, we come across fact that accused during course of trial of this case before the trial court whereby it transpires that in spite of specific query being raised by the learned DGC (Crl.) and by the trial court itself, this witness (PW-2) never stated about fact that the firing in fact hit the deceased or not! The prosecution could not explain this legal anomaly appearing in the ocular testimony of this witness as to how and why this witness is unable to spell on the context - whether shot hit the deceased Deshraj or not ! This witness testified in his examination-in-chief that he sustained injuries which were caused by accused-appellant Mithlesh Kumar Shukla. He has further stated on page no.25 of his examination-in-chief that deceased Deshraj died near Etra crossing then he says that deceased Deshraj died due to injuries caused by firearm. He has stated that firing was done by Devi Gulam and Ram Gopal @ Ganma and he goes on completing sentence by deposing that Deshraj received gun shot injuries and fell down instantaneously.

This witness (PW-2) has further stated that he was medically examined at Sadar Hospital where medical report regarding his sustaining fracture was given. In his cross examination, he has been suggested that in fact this witness and other injured/deceased (Deshraj) sustained injuries around 9:00 p.m. the very same night which suggestion has been specifically denied by him. He has further stated on page 27 that he along with other persons including Ram Singh were strolling at some paces from each other.

Before adverting to the meritorial evaluation of testimony of this witness (PW-2), it would be proper to look into the injuries caused to this witness as reflected in medical examination report Ext. Ka-3. Injury report describes in all five injuries. Injury no.1 - lacerated wound over middle of head over both parietal bone in the measurement of 5 cm x .5 cm x .5cm. Margins are raggid. Hair erased. Injury no.2 - bruise on the left side of forearm posterio- lateral aspect in the measurement of 10 cm x 2 cm red in colour..... Injury no.3 - bruise on the top left side of shoulder joint in the measurement of 6 cm x 2 cm red in colour. Injury no.4 - bruise on the left side of neck and chest in the measurement of 6 cm x 2 cm, red in colour and injury no.5 - traumatic swelling on the back of right side of shoulder joint, red in colour. Except injury no.2 which was kept under observation, rest of the injuries were stated to be simple and caused by blunt object. Duration was stated to be about one day.

It is disconcerting to note that medical examination of injured Dinesh PW-2 was done on 16.03.1987 at 2:45 p.m. when the first information report had already been lodged at Police Station Jafarganj at 00:35 hours on 16.03.1987. If it was, in fact, so and it was also noted in the general diary that Dinesh sustained injuries then reason requires satisfactory explanation for such inordinate delay for about 14 hours occasioned in medical examination of the injured after lodging of FIR. The entire testimony on record when taken as a whole vis-a-vis circumstances of this case do not supply any reasonable explanation about such startling delay in medical examination.

Thus the injuries, even after perusing supplementary medical report Ext-4, cannot be termed either serious or vital injuries. Here motive for causing Lathi blows to Dinesh becomes irrelevant when the accused persons had no specific motive for causing any assault on the injured Dinesh. When episode of firing had already been completed in context of Deshraj then there was no occasion for causing assault by the accused-appellant Mithlesh Kumar Shukla on Dinesh. Even this aspect has not been explained by the prosecution. Certainly prosecution has not explained certain vital aspects of the occurrence and awesome silence on particular aspect of the case makes serious dent in the prosecution case.

Sri Saghir Ahmad, learned AGA has submitted that injured Dinesh was son of 'Bua' of accused-appellant Devi Gulam, therefore, only minor injuries were caused to him. Assuming it to be correct explanation even then why injuries caused to the injured Dinesh have not been explained and motive for causing such assault became absurd because there is no whisper either factual or circumstantial that injured Dinesh ever made any overt effort or offered any resistance to the principal offender who caused firing on the deceased Deshraj.

Hence in absence of any such overt act being attributed to PW-2 causing of Lathi blows to the injured Dinesh appears to be an imagination and afterthought process of the prosecution and it cannot be said that injuries were serious in nature. The defence has also suggested that as per testimony of Dr. M.H. Khan PW-4, these injuries could have been caused around 8:00 - 9:00 p.m. on 15.03.1987. This testimony appears in the first paragraph of cross examination of this witness on page 34 of paper-book. Thus possibility of injuries being caused around 8:00 or 9:00 p.m. on 15.03.1987 cannot be ruled out.

Here in the wake of above specific circumstances and testimony on record, we have every reason to doubt presence of even PW-2 on the spot that he witnessed the incident. It appears that case has been managed after well thought out deliberation by the police in collusion with the informant. As per testimony of Dinesh PW-2 appearing in his examination-in-chief in the first paragraph on page 25 of the paper-book, this witness could not tell specifically about fact that firing done in fact either hit the deceased Deshraj or not. Even more surprising is the fact that statement of the injured was recorded by the Investigating Officer only on 05.04.1987 as stated by Paras Nath Tiwari PW-6 on page 38 of the paper-book. This inordinate delay in recording statement of the injured Dinesh has been tried to be explained in testimony of Dinesh itself in his cross examination in the last paragraph of his testimony as appearing on page 30 of the paper-book which spells to the effect that after medical examination was done, this witness came back home after 19-20 days but he has not stated anything as to where he in fact went to after getting himself medically examined and why? This abysmal silence and non-explanation on one of the crucial aspects of this case generates doubt in the testimony of PW-2 as intriguing and improving which gives clue to deliberation process on the part of the prosecution.

We also take note of fact that letter written to Medical Officer, Fatehpur by concerned police personnel at Police Station Jafarganj also does not bear any specific time as to when it was sent from the concerned police station to the hospital, which aspect also create doubt about presence of PW-2 on the spot. Not only this, testimony forthcoming from PW-1 and PW-2 also establishes that both the witnesses of fact and the description contained in the first information report assert presence of Ram Singh on the spot along with deceased Deshraj when the incident took place and Ram Singh happens to be one of the inquest witnesses.

As per testimony of Paras Nath Tiwari PW-6, Investigating Officer on page 40 of the paper-book, it has emerged that Ram Singh had given statement to the Investigating Officer that he came to know about death of deceased Deshraj only in the morning and this statement given to the Investigating Officer virtually exposes hollowness of the prosecution case that calculated efforts have been made and things improved on substantial aspects of occurrence and on factual presence of prosecution witnesses on the spot.

Argument has been extended by learned AGA that this isolated testimony will not become positive piece of evidence and as such and will not make any dent in the prosecution story, but this argument does not hold good for specific reason that this piece of testimony (that Ram Singh came to know about death of Deshraj next morning) does not support exclusively other pieces of specific testimony on occurrence emerging in the testimony of these witnesses of fact. How can Ram Singh give such statement that he came to know about death of the deceased Deshraj only in the morning when he was a witness in inquest report. Admittedly, the inquest report was prepared in the night of 15/16.03.1987 and was completed at 2:10 a.m. Therefore, it is obvious that case has been tried to be managed by the police at great convenience and possibility of consultation and deliberation get strengthened.

It has been stated that the deceased Deshraj was placed in quilt cover after he sustained gun shot but this quilt cover was never taken into possession by the Investigating Officer. The Investigating Officer has stated specifically in his cross examination on page 39 of the paper-book that as soon as he arrived on the spot after receiving information, he did not find any blood stains on the spot. The Investigating Officer in his cross examination on the same page also stated that Ram Singh was an eyewitness of the incident. Therefore, various anomalies when collected together and taken as a whole make substantial dent in the prosecution case and create lot of doubt on the prosecution story and particularly, on the prosecution's assertion that the incident in fact was caused by the present appellants at 6:30 p.m. on 15.03.1987.

It is settled principle of criminal jurisprudence that in cases where evidence and circumstances when weighed substantially and taken cumulatively raised strong suspicion about manner and style of the occurrence that it was so caused by the accused-appellants, then benefit of doubt would be the only reasonable outcome of judicial scrutiny and this benefit of doubt always works in favour of the accused (appellants).

The learned trial court could not appraise substantive facts and testimony of this case in right perspective and considered things from narrow angle without properly scrutinizing the same on its entirety and intrinsic potency, instead it read testimony and circumstances only on its face value, whereas, proper scrutiny of fact vis a vis testimony on record would have brought truth on the surface. It is very easy to consider and examine testimony recorded in examination in chief, whereas, the Court has to cautiously contemplate on testimony as a whole and particularly as emerging from cross examination and then to record finding on merit for arriving at just conclusion.

We may record our satisfaction that arguments extended on behalf of the present appellants carry force and the same are approved and sustained by us. Consequently we hold in unambiguous term that the prosecution has not been able to prove its case beyond reasonable doubt against the two surviving appellants namely Devi Gulam and Mithlesh Kumar Shukla. Thus charges framed against them become doubtful and they are entitled to benefit of doubt.

In the wake of above discussion, we may sum up that the finding of conviction recorded by the trial court is on the face erroneous and perverse and the same cannot be sustained in the eye of law. Therefore, judgment and order of conviction dated 31.03.1990 passed by the Additional Sessions Judge/Special Judge, Fatehpur, in Sessions Trial No.390 of 1988 State Vs. Devi Gulam and others, arising out of Case Crime No.29 of 1987 under Sections 302/34, 325 and 325/34 IPC, Police Station Jafarganj, District Fatehpur, is hereby set aside. Accused-appellants are acquitted of all charges as above. Accordingly, the instant appeal is allowed.

In this case, the accused-appellants Devi Gulam and Mithlesh Kumar Shukla are already 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 informant and follow up action.

Dt. 21.10.2016 rkg

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