Allahabad High Court
Natthu And Others vs State Of U.P. on 30 September, 2019
Author: Pritinker Diwaker
Bench: Pritinker Diwaker, Raj Beer Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
AFR
Reserved on: 17.09.2019
Delivered on: 30.09.2019
CRIMINAL APPEAL No. 2171 of 1990
1. Natthu
2. Suleman Khan
3. Harchhatiya
4. Kamta ---------Appellants
Vs
State of Uttar Pradesh --------- Respondent
___________________________________________________________
For Appellants : Sri Harish Chandra Mishra, Advocate
For Respondent/State : Sri Amit Sinha, AGA ___________________________________________________________
Hon'ble Pritinker Diwaker, J.
Hon'ble Raj Beer Singh, J.
Per: Raj Beer Singh, J.
1. This appeal has been preferred against the judgment and order dated 30.11.1990 passed by the Learned Sessions Judge, Banda in session trial No. 303 of 1989 (State vs. Nathu & three Ors), under Section 302/34 IPC, P.S. Kamasin, District Banda, whereby all the four accused-appellants, namely, Natthu, Suleman Khan, Harchhatiya and Kamta have been convicted under Section 302/34 of IPC and sentenced to undergo imprisonment for life.
2. According to the prosecution case, there was enmity between complainant Ghanshyam and persons of Yadav and Muslim community. On 13.05.1989, while complainant Ghanshyam, his brother Shiv Sagar and his crop-sharer (bataidaar) Raj Bahadur were present at their 'dera' (residential accommodation in jungle), at around 11:30 p.m. they heard noise and commotion from side of 'dera'' of Badri Yadav. As complainant accompanied by his brother and crop-sharer reached there, accused-appellant Nathu having gun, Suleman Khan having lathi, Harchhatiya having pharsa and Kamta having spear, made exhortation that complainant and his companions have disturbed them a lot and they ran to apprehend and kill them. All the four accused persons ran towards the complainant and his companions and chased them. They caught Raj Bahadur and started assaulting him with pharsa, spear and lathi, while complainant and his other companions succeeded in running away towards their 'dera'. All the four accused persons dragged Raj Bahadur towards river and on the next day morning, when complainant made search for Raj Bahadur, his dead body was found near the bandha and there were signs of injury at his body.
3. Complainant Ghanshyam Mishra reported the matter to police by filing written complaint Ex. Ka-4 and on that basis case was registered under Section 302 of IPC against all the four accused persons on 14.05.1989 at 14:45 hours vide FIR Ex. Ka-2.
4. Inquest proceedings regarding death of deceased Raj Bahadur were conducted vide Inquest report Ex. Ka-6 and other related documents were prepared. The dead body of deceased was sealed and sent for postmortem.
5. The postmortem on the dead body of deceased Raj Bahadur was conducted by PW-1 Dr. K.C. Gupta on 19.07.1990, vide postmortem report Ex. Ka-1 and following injuries were found on the person of the deceased:
"(i) Lacerated wound 2 cm x 2 cm x skull deep on right side forehead just above the medial end of right eyebrow.
(ii) Lacerated wound 2 cm x 1 cm x skull deep on right side forehead just adjacent to lat end of right eyebrow.
(iii) Lacerated wound 1.5 cm x 1 cm x muscle deep on right side face, 2 cm below right eye.
(iv) Lacerated wound 6 cm x 3 cm x scalp deep on left side head, 7 cm, above left eyebrow.
(v) Contusion 3 cm x 2 cm on right side head, 8 cm above right eyebrow.
(vi) Lacerated wound 4 cm x 2 cm x skull deep on right head, 7 cm above right ear.
(vii) Lacerated wound 3 cm x 2 cm x scalp deep on left side head 10 cm above left ear.
(viii) Contusion 5 cm x 2 cm on right side back of head 7 cm above and behind right ear.
(ix) Contusion 9 cm x 4 cm on right side forearm right mandible (angle).
(x) Abraded contusion 7 cm x 3 cm on left side front of chest just lat to medial end of left clavicle.
(xi) Abrasion 6 cm x 2 cm on right side chest, 3 cm below right clavicle.
(xii) Multiple abraded contusions in an area of 30 cm x 11 cm on postero lat. Aspect of upper and forearm 3 cm above the wrist.
(xiii) Lacerated wound 4 cm x 2 cm x above deep on dorsam of distal phalanx of index finger of right hand underneath bone fractured.
(xiv) Contusion 3 cm x 2 cm on front of right side chest 5 cm below right nipple at 6 ''o' clock position.
(xv) Abraided contusion 10 cm x 5 cm on anterior aspect of upper most part of right thigh.
(xvi) Lacerated wound 1 cm x 1 cm x muscle deep on medial aspect of right leg, 9 cm above the medial malleolus.
(xvii) Contusion 5 cm x 3 cm on medial aspect of left thigh in the middle.
(xviii) Abraded contusion 5 cm x 3 cm on outer aspect of left thigh 4 cm below hip joint.
(xix) Lacerated wound 3 cm x 2 cm x bone deep on postero medial aspect of left forearm 6 cm above wrist.
(xx) Contusion 8 cm x 4 cm on anterio aspect of left cubital fossa.
(xxi) Contusion 7 cm x 6 cm on back of left shoulder underneath fracture of left shoulder.
(xxii) Contusion 8 cm x 6 cm on front of left side of chest, 2 cm below medial end of left clavicle underneath 2nd 3rd ribs on left side, anteriorly fractured.
As per Autopsy Surgeon, the cause of death of the deceased was shock and hemorrhage & comma as a result of ante-mortem injuries.
6. Initial investigation was conducted by S.I. Jagvir Singh (PW-5). He prepared site plan vide Ex. Ka-13 and a torch produced by complainant was seized vide seizure memo Ex. Ka-5. Further investigation was conducted by S.O. Surendra Singh, who has filed charge-sheet vide Ex. Ka-15.
7. Learned trial court framed charge under Section 302/34 of IPC against all the four accused appellants. They pleaded not guilty and claimed false implication.
8. In order to bring home the guilt of accused-appellants, prosecution has examined five witnesses. After prosecution evidence, accused persons were examined under Section 313 of Cr.P.C., wherein, they have denied the prosecution evidence and claimed false implication. However, no evidence was adduced in defence.
9. After hearing and analyzing the evidence on record, learned trial court convicted all the four accused persons under Section 302/34 of IPC vide impugned judgment and order dated 30.11.1990 and sentenced them as stated in paragraph no.1 of the judgment.
10. Heard Sri Harish Chandra Mishra, learned counsel for the appellants and Sri Amit Sinha, learned A.G.A. for the State and perused the record.
11. Learned counsel for the appellants has submitted:
(i) that there is undue and long delay in lodging the FIR. It was pointed out that as per prosecution version, alleged incident took place at 11:30 p.m. on 13.05.1989 while FIR was lodged on 14.5.1989 at 14:45 hours and the distance of police station from the spot was only ten kilometers. It was submitted that long delay in lodging the FIR has not been explained and it appears that the FIR was lodged after consultation which renders the prosecution version doubtful.
(ii) that presence of alleged eye-witnesses PW-3 Ghanshyam and PW-4 Shiv Sagar at spot is highly doubtful. It was stated that the conduct of these witnesses is highly unnatural and their statements suffer from inconsistencies and vice of improbability. It is not clear that if they were having enmity with persons of Yadav community, why they have gone at the ''dera'' of Badri Yadav. It was further pointed out that as per prosecution, all the accused persons exhorted to catch and kill complainant and his companions and started chasing them and that they caught hold Raj Bahadur while PW-3 Ghanshyam and PW-4 Shiv Sagar succeeded in running away and thus, in these circumstances, it was not possible for PW-3 Ghanshyam and PW-4 Shiv Sagar to see that deceased Raj Bahadur was assaulted by the accused persons and was taken away towards river.
(iii) that oral evidence is not consistent with medical evidence. It was pointed out that as per prosecution version, deceased Raj Bahadur was assaulted with pharsa, spear and lathi and that in his statement PW-2 Abdul Samad has stated that Kamta has given a spear blow at the deceased while accused-appellant Harchhatiya has given 3-4 blows with pharsa at the deceased but the deceased has not sustained any such injury which might have caused by these weapons. As per postmortem report, deceased has sustained as many as 22 injuries but all these injuries were lacerated wounds and contusion.
(iv) that there was no motive on the part of the accused persons to commit the murder of deceased as there was no enmity between the accused persons and the deceased.
12. Per contra, it has been submitted by the learned State counsel that PW-3 Ghanshyam and PW-4 Shiv Sagar are eye-witnesses of the alleged incident and they have made clear statements regarding involvement of the accused-appellants in the incident. No major contradiction or inconsistency could be pointed out in their statements. Regarding delay in FIR, it was stated that the alleged incident took place in night and that the police station was situated at a distance of 10 kms from the spot. The FIR was lodged after recovery of dead body of the deceased. Learned State counsel stated that in such facts and circumstances, delay in lodging the FIR can not be given much importance. Regarding alleged inconsistency between oral and medical evidence, it was submitted that if the testimony of eye-witnesses is found credible, the same has to prevail over the medical evidence. Further, there is no such major contradiction or inconsistency between the oral and medical evidence, which may go to the root of the matter. Learned State counsel submitted that learned trial court has appreciated the evidence in correct perspective and that the appellants have rightly been convicted.
13. We have considered the rival submissions and perused the record.
14. In evidence, PW-3 Ghanshyam has stated that on the night of 13.05.1989 when he along with his mother and deceased Raj Bahadur was present at his ''dera'', at about 11:30 p.m. hearing noise from dera of Badri Yadav, they having lathi and torch, reached at dera of Badri Yadav. There accused-appellant Nathu having gun, Suleman Khan having lathi, Harchhatiya having pharsa and Kamta having spear, met them. Accused-appellant Kamta exhorted that PW-3 and his companion be caught and all the accused persons tried to assault them. PW-3 Ghanshyam and his companion ran away but accused-appellants caught hold of Raj Bahadur and started assaulting him with lathi, pharsa and spear and dragged him towards river, while complainant and his brother escaped. On next day morning, the dead body of deceased Raj Bahadur was found near tie of drainage (nala bandha) and there were signs of injury on his body. PW-3 Ghanshyam further stated that he has no enmity with anyone. However, there was some enmity with accused-appellant Kamta over the issue of damaging of crop by cattle. He further stated that the deceased Raj Bahadur has given beatings to father of Suleman Khan and Nathu and thus, they were having enmity with Raj Bahadur. He has also stated that about 2-3 months prior to the incident, an incident of beating took place between PW-3 Ghanshyam and accused-appellant Harchhatiya. PW-3 has further stated that he reported the matter to the police by submitting written complaint vide Ex. Ka-4.
15. PW-4 Shiv Sagar has stated that on the night of incident at about 11-11:30 p.m., he along with complainant and his mother was present outside the village. They heard cries of Badri Yadav, who was saying that miscreants were taking away his goat. PW-4 Shiv Sagar, his brother Ghanshyam, his mother Kalawti and deceased Raj Bahadur went towards the dera of Badri Yadav and as they reached near field of Baghaniya, some miscreants, concealing themselves in the barren land, came out and among them, accused-appellant Kamta exhorted to apprehend PW-4 and his companions. Accused-appellant Nathu was having gun, Suleman Khan was having lathi, Harchhatiya was having pharsa and Kamta was having spear and they chased PW-4 and his companions and caught Raj Bahadur. They started assaulting Raj Bahadur by spear, pharsa and with the butt of gun and took him towards western side. PW-4, his brother and mother ran away and came in their dera. All the accused persons were identified in the light of torch. PW-4 has further stated that on the next day morning, dead body of the deceased Raj Bahadur, which was having signs of injuries, was found.
16. PW-1 Dr. K.C. Gupta has conducted postmortem on the body of the deceased.
17. PW-2 Abdul Samad has recorded the FIR, while PW-5 S.I. Jagvir Singh has conducted investigation of the case.
18. So far as the contention regarding delay in lodging the FIR is concerned, the case of prosecution is that alleged incident took place on 13.05.1989 at 11:30 p.m. while FIR has been lodged on 14.05.1989 at 14:45 hours and distance of police station from the spot is ten kilometers. Apparently there is delay in lodging the FIR, however, it is well settled that prosecution version can not be rejected solely on the ground of delay in lodging the FIR. The Apex Court in the case of Apren Joseph alias Current Kunjukunju and others Vs. State of Kerala reported in AIR 1973 Supreme Court 1, has observed as hereunder:-
"Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in lodging of the first information report should be satisfactorily explained."
Similarly relevant extract of the judgment delivered by Hon'ble Apex Court in the case of Ravinder Kumar and another Vs. State of Punjab reported in AIR 2001 SC 3576, is reproduced herein below:-
"The attack on prosecution cases on the ground of delay in lodging FIR has almost bogged down as a stereotyped redundancy in criminal cases. It is a recurring feature in most of the criminal cases that there would be some delay in furnishing the first information to the police. It has to be remembered that law has not fixed any time for lodging the FIR. Hence a delayed FIR is not illegal. Of course a prompt and immediate lodging of the FIR is the ideal as that would give the prosecution 17 a twin advantage. First is that it affords commencement of the investigation without any time lapse. Second is that it expels the opportunity for any possible concoction of a false version. Barring these two plus points for a promptly lodged FIR the demerits of the delayed FIR cannot operate as fatal to any prosecution case. It cannot be overlooked that even a promptly lodged FIR is not an unreserved guarantee for the genuineness of the version incorporated therein."
In Sahebrao & Anr. Vs. State of Maharashtra (2006) 9 SCC 794, Court has held:
"The settled principle of law of this Court is that delay in filing FIR by itself cannot be a ground to doubt the prosecution case and discard it. The delay in lodging the FIR would put the Court on its guard to search if any plausible explanation has been offered and if offered whether it is satisfactory.".
In view of above discussed law, it is manifest that delay per se is not fatal but court has to examine the explanation furnished by prosecution for explaining delay. There may be various circumstances particularly number of victims, atmosphere prevailing at the scene of incidence, the complainant may be scared and fearing the action against him in pursuance of the incident that has taken place. If prosecution explains the delay, Court should not reject prosecution story solely on this ground. Therefore, the entire incident as narrated by witnesses has to be construed and examined to decide whether there was an unreasonable and unexplained delay which goes to the root of the case of the prosecution and even if there is some unexplained delay, court has to take into consideration whether it can be termed as abnormal.
In the instant case, it may be seen that prosecution has not offered any explanation for delay in lodging of FIR. As per prosecution version, accused-appellants have caught deceased Raj Bahadur and have assaulted him with pharsa, spear and lathi and dragged him towards river and that the accused-appellants also tried to catch and assault PW-3 Ghanshyam and PW-4 Shiv Sagar. In such circumstances, the natural conduct was that they must have reported the matter to police without any undue delay so that Raj Bahadur may have been saved from clutches of alleged miscreants but there is nothing to show that after incident complainant tried to lodge first information report without any delay. It is correct that alleged incident have been shown of 11:30 p.m. but it was a summer season and these witnesses have not shown any such reason that why they did not report matter to police without any delay. As per natural conduct at least they must have reported the matter to police in the early morning on 14.05.1989 but the FIR was lodged at 02.45 PM. Here it would be relevant to mention that in his cross-examination, PW-3 Ghanshyam stated that dead body of deceased was found at 07.00 AM, but he has not clarified that why he waited till 02.45 PM for lodging first information report. PW 3 has not stated that how much time was consumed in going to police station or that whether they have gone there by any vehicle or own feet. In such facts and circumstances, it cannot be said that delay in lodging the FIR has been explained by the prosecution. However, as stated earlier, mere delay in lodging the FIR can not be a ground to out rightly reject the testimony of PW-3 and PW-4 but it would certainly put the Court on its guard that the testimony of PW-3 and PW-4 has to be scrutinized with great care and caution.
19. It was next argued by the learned counsel for the appellants that presence of the alleged eye-witnesses PW-3 Ghanshyam and PW-4 Shiv Sagar, at the spot, is highly doubtful. In this regard it may be seen that as per PW-3 Ghanshyam, when they reached at the dera of Badri Yadav, all the accused persons ran towards them with intention to assault them and they caught Raj Bahadur but PW-3 Ghanshyam, his brother Shiv Sagar and mother escaped by running away, while as per PW-4 Shiv Sagar after hearing cries of Badri Yadav that some miscreants were taking away his goats, when they went towards his dera and reached near land of one Baghaniya, the miscreants, lying concealed in barren land, came out and tried to apprehend them. Thus, there is contradiction in the version of PW-3 Ghanshyam and PW-4 Shiv Sagar on this point. PW 3 does not talk about any such cry of Badri Yadav that miscreants were taking away his goats or that alleged miscreants have confronted them near field of one Baghanyia. Further, as per PW-3 and PW-4, accused persons have chased them and caught Raj Bahadur, while PW-3 and PW-4 and their mother saved their lives by running away to their 'dera' but in these facts and circumstances, it does not appear probable that PW-3 and PW-4 would have witnessed that after apprehending Raj Bahadur, accused-appellants have assaulted him with pharsa, spear and lathi and dragged him towards river. It were night hours and if these witnesses have ran away from there to save their lives, it does not appear probable that they saw that accused-appellants started assaulting deceased with pharsa, spear and lathi and took him toward river. Further, in first information report, PW 3 Ghanshyam has not stated anything about presence of his mother while in his statement, he stated that his mother has also accompanied them at the time of incident. In his cross-examination, PW 3 Ghanshyam has stated that his village is situated at a distance of one and a half furlong from his 'dera' but after incident, he did not try to seek any help from his villagers while as per him, deceased was in captivity of accused persons. In his cross-examination, PW-4 has stated that dead body of deceased was found at distance of 20 lathi from their 'dera' and thus dead body of deceased was found quite near to their 'dera'' but these witnesses have not clarified that how dead body reached there. It would be pertinent to mention that the deceased has sustained only lacerated wounds and contusions at his body and such injuries were not possible by the weapons like spear and pharsa. One aspect which can not be lost sight of is that as per prosecution case the said witnesses have heard cries from 'dera' of Badri Yadav and in his cross-examination, PW 4 stated that they heard cries of Badri Yadav that some miscreants were taking a way his goats but said Badri Yadav has not been examined as witness. All these facts affect prosecution case adversely. It is well settled in law that minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the Court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. In the case in hand, considering specific facts and circumstances of case, the above stated contradictions and inconsistencies can not be dubbed as minor , rather same make dent on the authenticity of prosecution version.
20. It was next argued that oral evidence is not consistent with medical evidence. In this regard it may be mentioned that it is trite law that oral evidence has to get primacy as medical evidence is basically opinionative. It is only when the medical evidence especially rules out the injury as claimed to have been inflicted as per the oral testimony, then only in a given case, the Court has to draw the adverse inference. It is well settled by a series of decisions of the Apex Court that while appreciating variance between medical evidence and ocular evidence, oral evidence of eyewitnesses has to get primacy as medical evidence is basically opinionative. But when the court finds inconsistency in the evidence given by the eyewitnesses which is totally inconsistent to that given by the medical experts, then evidence is appreciated in a different perspective by the courts. In Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC 484, the Hon'ble Supreme Court observed as under:
"Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye-witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence."
A similar view has been taken in Mani Ram & Ors. v. State of U.P., 1994 Supp (2) SCC 289; Khambam Raja Reddy & Anr. v. Public Prosecutor, High Court of A.P., (2006) 11 SCC 239; and State of U.P. v. Dinesh, (2009) 11 SCC 566 and in State of U.P. v. Hari Chand, (2009) 13 SCC 542.
Thus, position of law is that unless the oral evidence is totally irreconcilable with the medical evidence, it has primacy over the medical evidence. Reverting to the facts of instant case, it would be pertinent to mention that the case of prosecution is that when after hearing cries of Badri Yadav, PW-3, PW-4, their mother and deceased reached there, accused-appellant Nathu having gun, Suleman Khan having lathi, Harchhatiya having pharsa and Kamta having spear, exhorted to apprehend and kill them and they started chasing them and succeeded in catching of deceased Raj Bahadur. However PW 2, PW 3 and their mother saved themselves by running to their 'dera'. These witnesses have also alleged that accused-appellants assaulted deceased with pharsa, spear and lathi and dragged him towards river. The post-mortem report of deceased shows that he has not sustained any incised or punctured wounds. It appears that deceased has not sustained any such injuries, which might have been caused by weapons like pharsa, and spear. PW-1 Dr. K.C. Gupta has stated that the injuries sustained by deceased were not caused by spear or by any incised weapon while in his cross-examination, PW-3 Ghanshyam has specifically stated that Kamta has given spear blow at the deceased while Harchhatiya has given 3-4 blows with pharsa at the deceased. Similarly PW-4 Shiv Sagar has stated that deceased was attacked by the accused persons with lathi, spear and 'farsa''. Thus, it is apparent that medical evidence is not consistent with oral evidence of PW-3 Ghanshyam and PW-4 Shiv Sagar. In fact the oral evidence is totally irreconcilable with the medical evidence. In the facts and circumstances of the case, this inconsistency raises a doubt whether these witnesses have actually witnessed the incident.
21. So far as question of motive of the alleged incident is concerned, in the FIR, the complainant / PW-3 Ghanshyam stated that he was having enmity with Yadavs and Muslims of his village while in his statement PW-3 stated that he was not having any enmity with any one and that there was only some enmity with accused appellant Kamta on account of cattle trespass. Further, PW-3 Ghanshyam stated that Raj Bahadur has given beatings to father of Suleman Khan and Natthua but no such version was mentioned in the FIR or in his previous statement nor PW 4 has stated anything in this regard. PW-3 further stated that 2-3 months prior to incident, an incident of beating with lathi took place between Harchhatiya and him but this fact was also stated first time before the court. Though PW-3 Ghanshyam has candidly accepted that he is facing cases of dacoity, theft and kidnapping of a girl but his version regarding motive of incident in question appears quite vague. He has also admitted that about 2-3 months of the incident, accused-appellant Harchatiya has lodged a report against him, in which Nathu and Suleman were witness.
Considering the entire facts it appears that prosecution could not prove motive on the part of the accused persons to commit murder of deceased Raj Bahadur. Though, in a case based on direct testimony, proof of motive looses its significance, but in the instant case considering the delay in FIR, infirmities in statements of alleged eye witnesses, contradiction between oral and medical evidence, the fact that motive was alleged but could not be proved, also becomes a relevant factor.
22. In the instant case, no doubt PW-3 Ghanshyam and PW-4 Shiv Sagar have claimed themselves as eye-witnesses of the alleged incident, however, as discussed above, their testimony suffers from serious inconsistencies and contradictions and there was undue delay in lodging the first information report. Further, the evidence of these witnesses is not consistent with medical evidence. In view of all these facts, it appears that prosecution has not come up with true genesis of incident and has concealed true facts. Considering entire facts and evidence, the possibility that the alleged witnesses did not saw the incident and the first information report was lodged after recovery of dead body of deceased, can not be ruled out. Here it would be pertinent to quote that in case of Pankaj Vs. State of Rajasthan (2016) 16 SCC 192, the Hon'ble Apex Court held:
''It is a well-settled principle of law that when the genesis and the manner of the incident is doubtful, the accused cannot be convicted. Inasmuch as the prosecution has failed to establish the circumstances in which the appellant was alleged to have fired at the deceased, the entire story deserves to be rejected. When the evidence produced by the prosecution has neither quality nor credibility, it would be unsafe to rest conviction upon such evidence. After having considered the matter thoughtfully, we find that the evidence on record in the case is not sufficient to bring home the guilt of the appellant. In such circumstances, the appellant is entitled to the benefit of doubt''.
As observed earlier, in the instant case also it appears that prosecution has concealed true genesis of the incident and failed to establish the circumstances in which the appellants have alleged to have caused injuries to the deceased. The facts that there was undue delay in lodging the first information report, infirmities emerging in statements of alleged eye witnesses, inconsistency of oral evidence with medical evidence and vague version regarding motive, inevitably raises a doubt as to whether it were the accused-appellants, who had caused the death of the deceased. One of the golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. [Vide Kali Ram Vs. State of Himachal Pradesh, (1973) 2 SCC 808; State of Rajasthan Vs. Raja Ram, (2003) 8 SCC 180; Chandrappa & Ors. Vs. State of Karnataka, (2007) 4 SCC 415; Upendra Pradhan Vs. State of Orissa, (2015) 11 SCC 124 and Golbar Hussain & Ors. Vs. State of Assam and Anr., (2015) 11 SCC 242]. In the instant matter, considering evidence on record and analysis made herein above, we are of the considered opinion that prosecution has concealed genesis of incident and has not come up with true facts and the presence of alleged eye witnesses at the scene of offence appears to be doubtful and consequently all the accused-appellants are entitled for benefit of doubt.
23. The impugned judgment and order of conviction and sentence is set aside and all the accused-appellants namely, Natthu, Suleman Khan, Harchhatiya and Kamta are acquitted of charge under Section 302/34 of IPC. Accused-appellants are on bail, thus, no further order is required in their respect.
24. Appeal is accordingly allowed.
Date : 30.09.2019
A. Tripathi
(Raj Beer Singh, J) (Pritinker Diwaker, J)