Allahabad High Court
Satley And Others vs State Of U.P. on 5 October, 2018
Bench: Pradeep Kumar Singh Baghel, Rajiv Gupta
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved Court No. - 5 Case :- CRIMINAL APPEAL No. - 644 of 1988 Appellant:- Sattey And Others Respondent:- State Of U.P. Counsel for Appellant:- P N Lal, Janardan Yadav, Manoj Kumar Singh Counsel for Respondent:- DGA Hon'ble Pradeep Kumar Singh Baghel,J.
Hon'ble Rajiv Gupta,J.
(Delivered by Hon'ble Pradeep Kumar Singh Baghel, J.)
1. The appellants--Sattey, Bajrangi, Sheo Murat and Bahadur stand convicted for commission of offences under Section 302/34 I.P.C. by the judgment dated 17th March, 1988 and order of sentence whereby they have been sentenced to undergo rigorous imprisonment for life.
2. The prosecution case, is briefly encapsulated hereafter. On 6.7.1979 at about 12.00 noon Bechan, son of Dwarika Yadav was having an afternoon siesta in his hut (a small dwelling of simple construction made of natural material as of logs or grass). At that time, the P.W. 1, the informant, after working in his field, which is near the place of occurrence, was taking rest at a well. He saw that Sattey (appellant no. 1), Bajrangi (appellant no. 2), Sheo Murat (appellant no. 3) and Bahadur (appellant no. 4) approached the hut where Bechan was sleeping, they threw bomb on Bechan and when he tried to run away towards east of his hut to save his life but the assailants had thrown two more bombs in quick succession on him. One of the bombs hit Bechan on his temple (Kanpati) and head and he succumbed to his injuries at the spot. It is further mentioned that the first informant and one Bechai sounded the alarm whereafter Shiv Nath Yadav (P.W.-3), Rama Kant, Ram Nath and a large number of people of nearby places reached the spot and they have seen the incident. It is further mentioned that the informant and other persons tried to catch hold the assailants but they fled away by threatening them by scaring bombs, which they were carrying in the direction of east and north. The informant and other persons chased them upto Bandha and during their chase, Santu (P.W.-2) got injured as the assailants were throwing bombs and stones on the people who were chasing them.
3. On the basis of the said written report, a first information report was registered at 13.50 hours being Case Crime No. 162 under Section 302 I.P.C. Head Moharrir P.W.5 Krishna Chand Dubey prepared the chik report. The investigation was entrusted to S.N. Chaubey who was not produced. On the same day, the police reached the spot and prepared fard of an alive bomb (Exh. Ka-5), which was found towards east side of Village Madhuwan in a field. The police also prepared fard of parts of the cot which were bloodstained (Exh. Ka-6). From the spot the police collected the pieces of exploded bomb and prepared fard thereof (Exh. Ka-7). It also took in possession the bloodstained dhoti of the deceased (Exh.Ka-8) and collected bloodstained soil (Exh.Ka-9).
4. The I.O. conducted the inquest proceedings and it was duly signed by the witnesses (Exh. Ka-15). The dead body was sent for autopsy. P.W.-6 Dr. B. Das conducted post-mortem on 07th July, 1979 and issued his opinion. According to his opinion, the cause of death of the deceased was ante-mortem injuries. The details of the injuries found on the body of the deceased shall be discussed at the appropriate place in the judgment.
5. The investigation commenced by Sri S.N. Chaubey, the then Station Officer of the police station, who was not produced by the prosecution. After completion of investigation the police submitted the charge-sheet against all the appellants on 17th September, 1979. The Magistrate committed the matter for trial to the Court of Session.
6. On 01st April, 1980 XIth Additional Sessions Judge, Azamgarh framed charges against the appellants for commission of offence of homicide punishable under Section 302 I.P.C. read with Section 34 I.P.C. The charge reads as under:
"That you, on 6/7/79, at about 12 noon in village Semra Khajura P.S. Madhuban of this district, in furtherance of common intention of all did commit murder by intentionally causing the death of Bechai alias Bechan, and their by committed an offence punishable u/s 302 I.P.C. read with section 34 I.P.C., within the cognizance of this court and hereby charge you that you be tried by this court on the said charge."
7. The prosecution in support of its case produced the first informant P.W.-1 Harijan Yadav, who claimed to be an eye witnesses, as Santu P.W.-2, who also claimed that he was present on the spot at the time of occurrence of the incident; Shiv Nath, who is also an eye witness, as P.W.-3; Ram Bahadur Lal, P.W.-4 Constable in Civil Police, who was sent with the dead body for post-mortem from the spot; Krishna Chandra Dubey, P.W.-5 who was a Sub-Inspector of Police and who had prepared the chik FIR (Exh.Ka-2) and made entries in the G.D.; Dr. B. Das, P.W.-6 conducted autopsy; and Krishna Dev Tiwari, Constable, as C.W.-1, who has deposed that he had worked with Inspector S.N. Chaubey in 1981 and proved his signatures on the documents. C.W.-1 has also proved the documents pertaining to various fards prepared by the I.O. Sri S.N. Chaubey in 1981.
8. After the prosecution evidence was closed, all the accused persons were given opportunity and their statements under Section 313 Cr.P.C. were recorded. They pleaded to be not guilty. All of them have stated that due to enmity they have been falsely implicated in the case.
9. The trial Court found that the prosecution has established the charges against the appellants and they were found guilty for commission of offence under Section 302 I.P.C. read with Section 34 I.P.C. and accordingly, convicted and sentenced them by the impugned judgment and order.
10. We have heard Sri V.P. Srivastava, learned Senior Advocate assisted by Sri Manoj Kumar Singh, learned counsel for the appellants, and Sri A.N. Mulla, learned A.G.A.
11. Learned counsel for the appellants submitted that the FIR was anti-time; the appellants have been implicated due to enmity and some of the eye witnesses are chance witnesses. Their very presence was doubtful. He has drawn our attention to the inquest report to demonstrate that at the time of preparation of inquest, the F.I.R. was not registered. It is pointed out from the original inquest report that details of FIR has been inserted in different ink at the top of inquest report which itself demonstrate that insertion has been made later on. It is submitted that since Investigating Officer was not produced, hence, no question could be put to him for explaining the said lacuna.
12. The learned Senior Advocate has laid immense emphasis to establish from the evidence on record that there was deep rooted enmity between the parties and witnesses for said reasons were partisans, therefore, not credible and trustworthy.
13. The learned A.G.A. submitted that Prosecution has established the charges against the appellants beyond doubt. There are four eye witnesses of the incident. The Trial Court has rightly relied on their evidence. He denied the fact that F.I.R. is ante time. He has further submitted that there was bad blood between the parties, hence, there was motive behind the murder of Bechan. The various discrepancies and contradiction pointed out by the learned counsel for the appellant, according to him, are minor and insignificant.
14. We have considered the submission of learned counsel for the parties and have gone through carefully the material on record.
15. P.W.-1 Harijan Yadav, who is the first informant, has deposed that the appellants Sattey, his son Bajrangi and Sheo Murat have formed an unlawful gang. Before the incident, there were several criminal cases involving one Sukhraj and Sattey. In one of the case under Section 107 Cr.P.C. along with Sattey, Bajrangi and Sheo Murat were also parties. One of the accused Bahadur is his cousin brother. About 10-12 years back Sattey and others had assaulted him and a case under Section 307 I.P.C. was registered against Sattey. In the said case, Sattey, Dhanraj and Jangi were convicted and their conviction was upheld by the High Court. The appellant no. 4 is Bhanja (son of sister) of Dhanraj, who is no more. Dhanraj had a minor son, who was being looked after Jangi and Bahadur. Later on, Jangi was also murdered. In his murder, there were 12-14 accused persons. Deceased Bechan was also one of the accused in the said murder. In the case under Section 307 I.P.C. Bechan was a witness and he had deposed against Jangi and Sattey.
16. This witness (P.W.-1) has further deposed that when first bomb exploded, there was huge smoke, due to which he was not able to see as to which accused had thrown the bombs. He has stated that he had not seen as to from which side the accused persons had come. However, it is his guess that they had come from west ward. Towards west side of hut of Bechan, there was open land. He had also stated that hut of Bechan was open from three sides and it was covered only from one side. In the cross-examination he was asked that why he had not taken help of a teacher of the primary school for preparation of FIR, which was near the house of deceased Bechan. His reply was that after explosion of the bomb teachers had left the school out of fear and there was no one in the school. The said school was established by Bechan and later it was taken over by Zila Parishad.
17. P.W.-2 Santoo deposed that his house is hardly 60-70 paces towards west from the place of occurrence. At the time of incident he was sitting at the door of his house and from there hut of Behan was clearly visible. While sitting there he heard explosion of the bomb. Later, he came to know that the bomb was exploded in the hut of Bechan. Hearing the noise of explosion of the bomb, P.W.-1 Harijan, Kamta, Bachai, Shiv Nath, P.W.-3, and Ram Nath rushed towards the place of occurrence. When they reached near the hut, he found that Sattey, Bajrangi, Sheo Murat and Bahadur, all the accused, were present there and they fled towards north. They had chased them upto a distance of 1-2 bigha land. He has also stated that while running one of the accused had thrown stone on him and he got injured. He had also deposed that I.O. did not ask any question from him. After 2-4 days of the incident, he met the I.O. but he did not ask any question regarding his injury. He has further clarified that at the police station also the I.O. did not ask any question from him. He has further deposed that Jheeru had got his signatures on some blank papers in Azamgarh Civil Court on the pretext that his signatures are needed for a bail application. But later on he discovered that an affidavit was got filed on his behalf in this criminal trial wherein it was mentioned that he does not want to give any evidence on behalf of the prosecution. He filed a fresh affidavit clarifying the said fact. In his statement he had stated that before giving the testimony in the Court he had not told any one about this incident. He has also deposed that school, which was near house of deceased Bechan, was closed for the last 3-4 days before the incident. He was not aware that why the school was closed, which was hardly 30-40 paces from his house.
18. P.W.-3 Shiv Nath also claims to be eye witness. He has stated that his field is about a furlong from the house of Bechan. On the date of the incident at 12.00 noon while he was returning from his field to his house, he saw that Benchan was sleeping in his hut on a cot, at the same time accused came from the direction of west. One of the accused had thrown a bomb on Bechan which hit him on his feet. He has tried to run away from the place but the accused had thrown 2-3 more bombs on him, out of which two bombs hit his temple (Kanpati) and he succumbed on the spot itself. When he sounded alarm, Santoo, P.W.-2, Harijan, Bechai, Rama Kant and Ram Nath rushed to the spot. All of them chased the accused, who had fled away from the scene. In the cross-examination he had referred some earlier cases between the parties. The witness (P.W.-3) could not recall the khata number of his agricultural plot. He had also stated that he had told in his statement under Section 161 Cr.P.C. to the I.O. that when the accused Sattey had thrown the bomb, it hit Bechan's feet. He was not aware whey the I.O. did not record this fact in his statement. It is stated that on the place of occurrence only five persons were present with their weapons and all the witnesses were present on the spot chased the accused. He also could not recall that later on which accused had thrown bomb on Bechan due to the fact that there was smoke in the area so there was very poor visibility.
19. P.W.-4 Ram Bahadur Lal is a formal witness. He has stated that he was entrusted duty to carry dead body from the place of occurrence to Azamgarh for post-mortem. It was stated that he carried the dead body on the horse-cart. No one from the family of the deceased or resident of the family accompanied the dead body. They reached Azamgarh via Dohari Ghat. They departed at 4.00 P.M. from the place of occurrence and reached Dohari Ghat at about 5-5.30 P.M., from there they reached Azamgarh in the night at about 10.30-11.00 P.M. Since they had reached quite late, hence their arrival could not be recorded in the G.D. in police line. On the next date at 6.00 A.M. entry was made in the papers and the papers regarding post-mortem were handed over to concerned Doctor at 12.00 noon.
20. P.W.-5 Krishna Chandra Dubey was posted as A.S.I. at the relevant time. He had deposed that on 06th July, 1979 he had prepared chik report and proved it, which was Exh. Ka-2 at 1.00 P.M. on 06th July, 1979, the case was lodged. He has also proved the signatures and papers submitted by Jagendra Nath Tripathi, who was I.O.
21. C.W.-1 Krishna Dev Tiwari was a Constable in Civil Police. He has deposed that in 1981 he was posted with Inspector S.N. Chaubey, I.O., in district Gorakhpur. He had proved his signatures on various fards and other documents. He has stated that S.N. Chaubey, I.O., was not traceable but his posting or place of residence could not be traced. He was not aware regarding the whereabouts of S.N. Chaubey.
22. Learned counsel for the appellants has laid much stress on the fact that the FIR is ante-time for the reason that after the incident had occurred, the police was completely clueless. Hence, there is false implication of the appellants due to enmity. He has drawn our attention to the inquest report, wherein the details of case crime number, etc. have been written in a separate handwriting and a portion has been kept blank regarding the name of the informant. He has stated that from the naked eye it is clear that few lines at the top of the page have been written later on by a different ink. About the said delay a question was put to Krishna Chandra Dubey, P.W.-4, who has stated that dead body was brought to Azamgarh from the place of occurrence in the night hence no entry was made there. P.W.-4 in his statement has stated that no family member or the resident of the village accompanied the dead body. The unexplained delay in the post-mortem and the fact that admittedly the papers were handed over to the Doctor at 12.00 noon on the next date raises a reasonable doubt that the papers were not ready. The blank space left in the inquest report regarding the name of the informant also raises serious doubt.
23. Learned Senior Advocate next submitted that delay in post mortem has a material bearing in the case. It is pointed out that Doharighat is only 40km from Azamgarh but there is no entry of dead body on 6.7.1979 in Azamgarh Police Line coupled with the fact that at the time of preparation of the inquest report, there is no mention of the F.I.R. therein and it was inserted later on by manipulation. It clearly established that police was completely clueless regarding the assailants and when the police could not find out real assailants, the appellants have been implicated due to enmity between the parties. He has also pointed out that in fact the body was brought next day in the morning for the post mortem and there is no explanation why there is no entry in the G.D. maintained by R.I. at Azamgarh. In fact the papers were not ready by that time and the Investigating Officer had no other option but to implicate the appellants.
24. Significantly, P.W. 4 Ram Bahadur Lal, in his cross-examination, deposed that he had taken the dead body of the deceased on buggy (ikka) and no family members of the deceased or any villager accompanied him. They left the place of incident at 4.00 p.m. They reached Doharighat at about 5.30 p.m. and thereafter, they reached at Azamgarh at about 10.30-11.00 p.m. He has clearly admitted that he did not inform the police line regarding their arrival and it was not recorded in the papers and their arrival was recorded in the next morning. He handed over the papers to the doctor at 12.00 noon.
25. The A.S.I. Krishan Chandra Dubey (P.W.5) stated that he was posted as Head Moharrir at Police Station Madhuvan at that time. He admitted that though the F.I.R. was lodged on 6.7.1979, the papers were sent on 7.7.1979 in the morning through constable Janardan Tiwari.
26. From the statements of P.W. 4 and P.W. 5, we find that the submission of Sri Srivastava that the papers were not ready on 6.6.1979 that is why delay occurred in handing over the papers to the doctor on the next day at 12 noon, appears to be correct. It is significant to mention that defence has cross-examined the prosecution witnesses in respect of the delay, hence, the said issue has been considered by us in detail.
27. Pertinently, the issue with regard to delay in lodging the F.I.R. and interpolation in blank places in the inquest report could have been explained by the Investigating Officer but the Investigating Officer was not produced. In his statement, C.W.1 Krishna Dev Tiwari simply stated that despite best effort to search, the then Investigating Officer, Sri Narain Chaubey, he could not be traced. He went to Lucknow to serve summons in C.I.D. Branch but no correct information regarding his whereabouts could be gathered. Except the said submission, there is no explanation on record why the Investigating Officer was not produced. In our view, the said explanation is not tenable. Location of a Government Official can easily be traced from the records even in case of retirement of the employee, his residence can be easily traced from where he draws his pension. In view of this, the explanation offered by prosecution that he was untraceable, cannot be accepted.
28. It is trite that non-examination of the Investigating Officer is not vital to the prosecution case specially when no prejudice is likely to be suffered by the accused but it is equally settled that in some cases, non-examination of the Investigating Officer can cause serious prejudice to the accused and his presence is necessary to explain certain circumstances which can be properly explained only by the Investigating Officer. The reference may be made to the Judgments of the Supreme Court in Arvind Singh Vs. State of Behar, (2001) 6 SCC 407; Rattan Lal Vs. State of J&K, (2007) 13 SCC 18; and Ravishwar Manjhi Vs. State of Jharkhand, (2008) 16 SCC 561. As discussed above, in the present case, without any plausible explanation, Investigating Officer has not been produced. Hence, the plea has been raised by the defence in respect of the manipulation in the inquest report and delay in post mortem remained unexplained. In Lahu Kamlakar Patil and another (supra), the Supreme Court has observed as under:-
"...In Behari Prasad v. State of Bihar, (1996) 2 SCC 317, this Court has stated that non-examination of the investigating officer is not fatal to the prosecution case, especially, when no prejudice is likely to be suffered by the accused. In Bahadur Naik V. State of Bihar, (2000) 9 SCC 153, it has been opined that when no material contradictions have been brought out, then non-examination of the investigating officer as a witness for the prosecution is of no consequence and under such circumstances, no prejudice is caused to the accused. It is worthy to note that neither the trial Judge nor the High Court has delved into the issue of non-examination of the investigating officer. On a perusal of the entire mateiral brought on record, we find that no explanation has been offered. The present case is one where we are inclined to think so especially when the informant has stated that the signature was taken while he was in a drunken state, the panch witness had turned hostile and some of the evidence adduced in the court did not find place in the statement recorded under Sections 161 of the Code. Thus, this Court in Arvind Singh v. State of Bihar (2001) 6 SCC 407, Rattanlal v. State of J & K, (2007) 13 SCC 18 and Ravishwar Manjhi v. State of Jharkhand, (2008) 16 SCC 561, has explained certain circumstances where the examination of investigating officer becomes vital. We are disposed to think that the present case is one where the investigating officer should have been examined and his non-examination creates a lacuna in the case of the prosecution." (Emphasis Supplied)
29. The next question, which falls for our determination is regarding the presence of the eye witnesses on the spot at the time of the incident.
30. Learned counsel for the appellants submitted with vehemence that P.W.1, P.W. 2 & P.W. 3 were not present on the spot at the time of occurrence, hence, their evidence is concocted and incredible.
31. According to the P.W.1, he has a small piece of land near the place of occurrence. On the day of occurrence, he was working in the field and then went to the adjoining well to drink water. In his long cross-examination, he has given details of the enmity between the parties. He has admitted that his land on which he was working on the date of the incident was allotted in consolidation proceedings to another farmer Samu and he was not in possession of the said land. It is pertinent to mention that the in the site plan, the field of the P.W. 1 has not been shown. In his deposition, he has stated that he had shown his fields to the I.O. and it is about 15 paces North to the well where he was drinking the water. According to him, the Investigating Officer had seen his fields where he was working. He has also stated that when the first bomb was exploded, huge smoke arose covering the place of incident. He has admitted in his cross-examination that due to huge smoke, he could not see incident after explosion of first bomb as there was nothing visible. He also stated that he had not seen accused coming from the west and only has assumed that they had come from the western side. There are other contradictions in his statement. He has stated that the school which was established by the decased Bechan was running when the incident took place. When a question was put to him why he did not approach any teacher of the institution for writing the F.I.R., he deposed that after explosion of the bombs. all the teachers had fled away from the institution due to fear. He has also stated that hut of the Bechan was open from three sides and it was covered towards north only. He further stated that he had seen accused approaching Bechan's hut but he could not notice that which appellant had thrown first bomb. In his cross-examination, he has stated that the deceased was one of his collateral. From the evidence of the P.W. 1, it is clear that he admitted that the land on which he was allegedly working, was not in his possession on the date when he deposed, i.e., 2.7.1980. The incident had taken place a year back on 6.7.1979. He has not mentioned that when possession of the said land was handed over to Shamu whom the land was allotted in the consolidation proceedings. Further there is no explanation on record as to why his land has not been shown in the site plan. This discrepancy could have been explained by the Investigating Officer but without any justifiable reason, the Investigating Officer, who had prepared site plan, has not been produced and, hence, they could not cross-examine the Investigating officer on the ante time F.I.R. and non-showing the fied of P.W.1, who claims to be an eye witness. For the said reasons, we do not find the witness trustworthy.
32. From the Judgment of the trial court, it is clear that defence has filed several documentary evidence before the trial court, which have been noted in paragraph 6 of the Judgment. The document Ext. Kha-7 clearly indicates that possession of the plot on which P.W.1 was alleged to be working on the date of incident, i.e., 6.7.1979 was handed over on 31. 3.1979 itself to one Shamu.
33. Similar is the case with regard to P.W. 3 also, who has even failed to recall the number of his plot. It is unbelievable that a small farmer will not even remember number of his plot in an area where the consolidation proceedings were conducted recently. Thus, the trial court's finding based on the statements of P.W.1 and P.W.2 suffers from perversity.
34. This material evidence, as discussed above, has been completely escaped from the notice of trial court. If the possession of field of P.W.1 was duly handed over to Shamu in 1979, before the occurrence of incident, the presence of the P.W.1 on the spot from where he claimed to see the incident raises serious doubt. For the said reason, it would not be safe to rely on his testimony.
35. P.W.2, Santu, the next eye witness, is the cousin of P.W.1. P.W. 2, in his statement, has stated that before his deposition, no one had asked him regarding the said incident although he was an eye witness of the incident. He has also stated that for the first time, he has made statement in the court and he had never told anyone regarding the said murder. He has stated that he has seen the incident while he was sitting at the main entrance of his house. He has stated that while running away, the accused had thrown stone which hit him at his chest but no medical examination was conducted. He has also stated that the Investigating Officer did not make any inquiry from him. This witness has earlier given an affidavit that he had not seen the incident. Later he filed another affidavit that first affidavit was obtained from him under pressure and, in this regard, he has filed an F.I.R. against Jheeru, who had obtained his thumb impression on a blank papers for preparing a wrong affidavit. He has also stated that the school which was near the place of incident was closed for last 2-3 days whereas the P.W. 1 has stated that the school was open and after explosion of the bombs, the teachers had fled away from the school. He has not explained as to why the school was closed for the last 2-3 days. It is significant to mention that the said institution was initially established by the deceased Bechan but later on it was taken up by the Zila Parishad. The statement of this witness is not reliable as he had filed two contradictory affidavits. In Surajit Sarkar Vs. State of West Bengal, 2013 (2) SCC 146, Supreme Court has disbelieved the statement of eye witness on the ground that witness after he witnessed the attack did not inform anybody else. The I.O. had recorded his statement after one and half month of the incident. This fact was found sufficient to discard his presence on the place of occurrence. The Supreme Court further relied its earlier Judgment in Ganesh Bhavan Patel and another Vs. State of Maharashtra, (1978) 4 SCC 271. In this case, the murder took place at 7 p.m. Prosecution's case was that incident was witnessed by three eye witnesses. The police reached on spot soon after incident but their statements were recorded on the next day. In that context, the Court observed as under:-
"15. As noted by the trial Court, one unusual feature which projects its shadow on the evidence of PWs Welji, Pramila, and Kuvarbai and casts a serious doubt about their being eyewitnesses of the occurrence, in the undue delay on the part of the investigating officer in recording their statements. Although these witnesses were or could be available for examination when the investigating officer visited the scene of occurrence or soon thereafter, their statements under Section 161, Cr.P.C. were recorded on the following day. Welji (PW3) was examined at 8 a.m., Pramila at 9.15 or 9.30 a.m., and Kuvarbai at 1 p.m. Delay of a few hours, simpliciter, in recording the statements of eye-witnesses may not, be itself, amount to a serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye-witnesses to be introduced. A catena of circumstances which lend such significance to this delay, exists in the instant case."
36. In the case at hand, the PW had witnessed the incident from his home which is only at a distance of 60-70 paces from the scene of occurrence yet he did not mention the fact to anybody else, much less I.O., who had reached the spot. Since I.O. was not produced by prosecution, the accused/appellant could not put the question to him about the reason why the PW's Statement was not recorded under Section 161 by I.O. This has caused a prejudice to the appellant. Additionally, Court had asked him some questions regarding lodging a First Information Report by him against one Jhiru Fauzdar. Later, he denied the said fact. The Court has made a statement about his demeanour. In view of these facts, we do not find it safe to rely on his statement. We also doubt his presence on the spot where incident occurred.
37. P.W. 3 Shiv Nath also claim to be eye witness. He appears to be a chance witness. On the date of incident, he was returning from his field to his home after having worked at his fields. He has stated that when he reached near the hut of the deceased Bechan, he was sleeping and, at the same time, appellants came towards the hut and thrown bombs. The first bomb hit on his feet and when deceased Bechan tried to escape, the appellants thrown three more bombs out of which two bombs hit at the temple of the deceased as a result of which he immediately succumbed to his injuries. The witness has stated that the assailants ran away towards east of his hut whereas the P.W. 1 has stated that they ran towards north and they have chased the assailants. He has given details of the enmity between the parties. He could not remember the plot number of his land. This witness has also stated that there was huge smoke when the first bomb exploded, hence, he could not see as to which appellant had thrown bombs subsequently, he has tried to make some improvements also in his statement, which he has not made in his earlier statement under Section 161 Cr.P.C. In the site plan, the land of the P.W. 3 has also not been shown.
38. For the aforesaid reasons, we are satisfied that there is reasonable doubt regarding presence of P.W.1 and P.W. And P.W.3 at the place of occurrence. Having regard to the fact that there is delay in lodging the F.I.R., interpolation in the inquest report and other discrepancies pointed out above, we find that the prosecution has failed to establish its case against the appellants.
39. Insofar the submission of the learned counsel for the appellants that the appellants have been falsely implicated for the reason of the enmity, we find that from the material on record and from the finding of the trial court, it is evident that animosity was prevailing before the parties. The appellant no. 2 is the son of appellant no. 1. From the perusal of the deposition of the prosecution witnesses regarding the enmity between the parties, following facts emerge:-
1. Sattey- appellant no. 1, his son Bajrangi- appellant no.2 and Shiv Murat-appellant no. 3 have a group.
2. Earlier a litigation under Section 107/117 ensued between one Sukhraj and Sattey wherein Bajrangi and Shiv Murat were also co-accused along with Sattey. Cousin of Harijan Yadav (PW 1), namely, Bahadur (name of appellant no.4 is also Bahadur) was murdered 12-10 years back. In the said case, the appellant no.1 Sattey along with Dhanraj and Jangi were accused and they were convicted under Section 307 I.P.C
3. Appellant no.4 Bahadur and Jangi were nephew of Dhanraj. After death of Dhanraj, the appellant no.4 Bahadur and Jangi were looking after family members of Dhanraj and his farming.
4. Later on Jangi was also murdered. In the said case, several persons were made accused. Deceased Bechan in the present case was also one of the accused in that murder case along with P.W. 1 Harijan Yadav.
40. In support of the fact that several litigation were pending between the parties, some documentary evidence has also been filed. The Ext. Kha 4 is a copy of the F.I.R. which was registered under Section 302. In the said case, deceased Bechan was also an accused. Ext. Kha-5 is a copy of F.I.R. under Section 352, 504, 506 I.P.C. lodged by one Satyadev in which Rambadan Banshi and others were accused. Ext. Kha-6 is a copy of the F.I.R. lodged by Satyadev lodged against appellant no.4 Shiv Murat and others.
41. Additionally, from the statement of the P.W.1, P.W.2 & P.W.3 and their cross-examinations, it is evident that the parties were involved in a large number of criminal cases. It is true that enmity is a double edged sword but there is reasonable doubt that there is possibility that accused persons have been implicated due to the long existing animosity between them. In Dalip Singh Vs. State of Punjab, AIR 1953 SC 364, the Supreme Court has observed that if there is personal enmity then there is tendency to drag any innocent person against whom the witness has a grudge. Para 26 of the said Judgment reads as under:-
"26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is tendency to dran in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."
42. In view of the above, the submission of the learned Senior Advocate that due to the enmity, appellants have been implicated in the matter merits acceptance.
43. We have perused carefully findings of the trial court. The trial court in its cryptic order recorded its finding only on the basis of the enmity between the parties. It has not appreciated the evidence of P.W. 1, P.W. 2 and P.W. in correct perspective. It is well settled law that if the two views are possible on the evidence in a case, the view which is favourable to the accused should be adopted. Reference in this regard may be made to the Judgment of the Supreme Court in Kali Ram Vs. State of H.P., 1973 (2) SCC 808; Upendra Pradhan Vs. State of Orissa, (2015) 11 SCC 124; and State of Rajasthan Vs. Raja Ram, (2003) 8 SCC 180.
44. Learned A.G.A. has placed reliance on Judgment rendered by the Supreme Court in the case of Behari Prasad and others Vs. State of Bihar, (1996) 2 SCC 317. Facts of the said case is distinguishable from that of the present case. In that case, the Supreme Court held that in every case, non-examination of Investigating Officer would not fail the prosecution case on the ground that accused were deprived of opportunity to effectively cross-examine the witnesses for the prosecution and to bring out contradictions in their statements before the police. In the present case, non-examination of Investigating Officer, in our view, has caused prejudice to the appellant as the fact regarding not showing of the plot in the site plan and interpolation in the inquest report could not be made clear by the Investigating Officer. In the said case, the Supreme Court has also cautioned that case of prejudice likely to be sufferred by accused must depend on the facts and circumstances of the case and no universal straight-jacket formula can be laid down that non-examination of Investigating Officer shall per se vitiate the criminal trial. As noted above, in that case, the defence wanted to cross-examine the Investigating Officer only in respect of some contradictions in the statement under Section 161 Cr.P.C. Thus, the said case has no application in the facts and circumstances of the present case.
45. For all the reasons mentioned above, we are of the considered opinion that the appellants are entitled to the benefit of the doubt. Accordingly, the Judgment and order of the trial court holding the appellants guilty for the commission of offence under Section 302/34 I.P.C. are liable to be set aside.
46. Appeal is allowed. The Judgement and order of the trial court dated 17th March 1988 is set aside.
47. Appellant no. 3 Shiv Nath has died and the appeal as against him stood abated, vide order of this Court dated 27.2.2018. Rest of the appellants, Sattey, Bajrangi and Bahadur are on bail. They need not to surrender if they are not wanted in any other case. Their bail bonds are cancelled and sureties are discharged.
48. Judgement be certified and placed on the record.
49. Let the record of the trial court along with a certified copy of this order be sent to the concerned court below for ensuring compliance of the order.
50. Material exhibits, if any, be disposed of after statutory period in accordance with rules.
Dt/-5.10.2018 Ram Murti