Rajasthan High Court - Jaipur
Babu Maulana And 6 Ors. vs State Of Rajasthan on 14 May, 1986
Equivalent citations: 1986(2)WLN175
JUDGMENT Gopal Krishna Sharma, J.
1. This appeal is preferred against the judgment dated 31st July, 1985, passed by the Addl. Sessions Judge No. 3, Jaipur, City, Jaipur, whereby, he convicted all the accused-appellants of offence under Section 302/142, IPC and sentenced each of them, to imprisonment for life. He also convicted appellants Lallu, Faiyaz, Ayyub and Bundu for offence under Section 148, IPC and sentenced each of them to 2 years' rigorous imprisonment. Accused-appellants Siraj, Kayyum and Babu Maulana were further convicted and sentenced under Section 147, IPC, to 2 years's rigorous imprisonment.
2. According to the prosecution, one Manzoor Ahmed lodged an oral report on 8th Nov., 83, at about 8.30 p.m. at Police Station Shastrinagar, Jaipur, alleging that he had his meat-shop outside the 'Chandpole-Gate', under the Mosque of Butchers, which was known as 'Razia Sultana Meat-House'. In front of his shop, there was a shop of fishes and eggs, belonging to Nazruddin, son of Allahbux. On the day of incident, he (complainant) and his cousion, Rafiq were working at their shop, and Nazruddin was also sitting at his shop. At about 8 p.m. Lallu, Faiyaz, Ayyub and Bundu armed with 'Sariyas' (iron-rods); Siraz and Babu Maulana armed with lathies; and Kayyum armed with a hockey-stick, all of a sudden, came to the shop of Nazruddin, Lallu accused told that that day, account was to be taken from Nazruddin. Then, Lallu first of all, inflicted a blow with 'Sariya' on the head of Nazruddin, on account of which, Nazruddin fell down from his shop on the path. Then all other accused persons gave beating to Nazruddin with lathies, 'Sariya' and hockey-stick. He (complainant) cried, "Bacbao; Bachao". Then Lala son of Jumma, Meerbux, Lal son of Nizamuddin and other people of the locality, who were quite large in number, collected there. All of them, according to the complainant, had seen the occurrence. They then rescued Nazruddin. All the accused persons, as alleged by the complainant, with the common object to kill Nazruddin, had come there and beat him. He (complainant) and Lalu took Nazruddin to police station in an auto rickshaw.
3. On this report, the police registered a case under Sections 147, 148 149, 307 & 323, IPC. The. SHO then sent Nazruddin to the SMS Hospital, Jaipur, along with Constable Harisingh and Mahendrasingh, and started investigation in this case.
4. SHO, Bhanwarlal Chouhan came to the spot the same night, and in presence of motbirs, Abrar Ahmed PW 17 and Mohd. Yameen PW 4, prepared site-plan, Ex. P. 1. From the spot, he also seized blood-stained earth as well as simple earth and sealed them. The SHO also recovered broken pieces of hockey-stick and one 'Sariya' (iron-rod) from there. He (SHO) thereafter, arrested the accused persons, and on their information and at their instance, recovered 'Sariya' and other articles.
5. Nazruddin died at the hospital the same night. The case was then converted into that under Section 302 IPC.
6. After completing investigation, the police submitted a challan against the accused-appellants, who were tried by the Addl. Sessions Judge No. 3, Jaipur City, Jaipur.
7. The learned Addl. Sessions Judge framed charges against all the accused persons under Sections 302, 147, 148 and 149, IPC. The accused persons pleaded not guilty and claimed trial.
8. The prosecution in order to prove its case against the accused person, examined in all 27 witnesses. The accused persons also examined 4 witnesses in their defence.
9. After concluding the trial, the learned Addl. Sessions Judge, found that the offences alleged against the accused-appellants were proved by the prosecution. He, therefore, found them guilty and sentenced each of them as mentioned.
10. It is not disputed by either party that Nazruddin died on account of injuries received by him. The prosecution evidence also shows that Nazruddin was given beating as a result of which, he received injuries on his head and also on the other parts of his body. He was admitted to hospital by the police.
11. Dr. B.M. Gupta PW 16 examined the injuries of Nazruddin. According to this doctor, Nazruddin had 18 injuries on his person. After the death of Nazruddin, post-mortem examination on his deadbody was conducted by Dr. B.R.L. Srivastava, who also in his report has mentioned that there were 18 external injuries on the body of Nazruddin. On examination, he found that there was a fracture each' of left side middle cranial fossa, and left lower part of the occipital bone. The fracture line extended from the left middle cranial fossa upto the left occipital bone lower part. Regarding brain, Dr. Srivastava has opined that there was laceration 3 cms x 1/2cm x 1/2 cm on the interior surface of the right temporal lobe; and left side of cerebellum. In his opinion, the cause of death was as a result of intracranial haemorrhage, due to injuries to brain-matter as mentioned in the post-mortem report.
12. Thus, from the record the injury report, the post mortem report; and the statement of the doctor, it is clear that the death of Nazruddin was homicidal in nature.
13. The learned Counsel for the accused-appellants argued that from the evidence on record, no offence under Section 302 IPC, read with Section 149 IPC and under Sections 148 and 147 IPC is made out against the accused-appellants in this case. His argument was that the learned Addl. Sessions Judge has committed an error in placing reliance on the testimony of the so-called eye witnesses, and that, he has failed to appreciate that the prosecution story about the origin of the fight, the manner in which the incident took place and the participation of the accused persons in the said incident, is wholly unreliable. According to him, there was hardly any occasion or motive for the accused-appellants to asault Nazruddin (deceased). Even if the story to the extent that PW 1 Meerbux had intervened to get the dispute compromised in between Lallu accused and Nazruddin (deceased), is believed, there was hardly any reason for the other accused persons to have assaulted Nazruddin, argued the learned Counsel, who further added that either the prosecution has suppressed the true story, or it has invented a story in order to implicate the accused persons in this case. It was also argued by him that the statements of the alleged eye witnesses under Section 161 Cr. PC have been recorded in this case after inordinate delay. The learned Addl. Sessions Judge, according to him, has erred in law in not appreciating that in such a serious case, prompt recording of statements of the eye-witnesses, was an essential aspect, failure of which in the present case has given opportunity to the eyewitnesses as well as the complainant party to exaggerate and colour their version. According to the learned Counsel, there has also arisen danger of false evidence in this case, who further argued that there are serious infirmities in the statements of the eye-witnesses in this case. So, he urged that no reliance should be placed on their testimony. It was also argued by him that the conduct of the eye-witnesses at the time and after the incident was highly unnatural which creates serious doubt about their persence at the spot at the time of alleged occurrence. He further added that all the witnesses are close relatives. Neither they took the injured, Nazruddin to hospital, nor they went to police station to make a report of the incident. This conduct of the eyewitnesses, according to the learned Counsel, makes it highly is doubtful and suspicious as to whether they at all were present at (he spot at the time of the incident. The learned Counsel further alleged that the investigation agency did not make a fair investigation in this case, and independent witnesses have not been examined by the prosecution, and that, only interested and related witnesses were examined. The learned trial-judge has committed error in not considering the aspect of non-examination of the independent eyewitnesses, argued the learned Counsel for the accused-appellants, who also added that the learned Addl. Sessions Judge has further erred in finding that the accused-appellants had formed an unlawful assembly. According to him, there was no common object of the accussed-appellants. Except Lallu accused, the other accused-appellants had no dispute with Nazru din (deceased) on that date, and so, they have been falsely implicated in this case.
14. On the other hand, the learned Public Prosecutor in reply to the arguments of the learned Counsel for the accused-appellants, contended that from the evidence of the prosecution, a case against the accused-appellants, has been clearly established beyond reasonable doubt. According to him, the learned trial court has not committed any error. The eye-witnesses who have been examined by a prosecution in this case, are trust worthy witnesses, and their testimony is reliable, who had seen the accused persons beating Nazruddin mercilessly, and so there is no infirmity or inconsistency in their statements. Regarding non-examination of the eye-witnesses immediately after the occurrence, it was argued that as there prevailed a tense situation on account of the occurrence, it could not be possible for the SHO Bhanwar Lal the Investigating Officer to record the statements of the witnesses then and there, who, on the next morning recorded their statements, and so, there has been no delay in recording the statements of the eye-witnesses under Section 161 Cr. PC. According to him, the learned Addl. Sessions Judge has rightly believed those witnesses.
15. We have given our thoughtful consideration to the lengthy arguments advanced on behalf of both sides. Mr. A.K. Bhandari, the learned Counsel for the complainant submitted his argument at length and supported the judgment of the learned trial court. The learned Public Prosecutor also argued at length and tried to convince us that the case has been established against the accused persons, and that they have been rightly convicted and sentenced by the learned trial court. As the entire argument of the learned Counsel for the accused-appellants was that the statements of the eye-witnesses are unreliable and inconsistent, we have gone through the entire record and read the statements of the witnesses very minutely, and also considered the documents filed by the prosecution also with the challan, and after giving intensive consideration and scrutinizing the evidence, we find that the Investigating Agency was not fair while investigating the present case. They did not examine the independent witnesses who had witnessed the occurrence. They have only examined the interested and related witnesses, and, therefore, their testimony is unreliable and untrustworthy. We would like to discuss the evidence of every witness in detail.
16. The first argument of the learned Counsel for the accused-appellants was that the report was lodged by Manzoor Ahmed and not by any relative of the deceased. According to the prosecution story, Meerbux PW 1, Naseer PW 6 and Sirazuddin PW 20 were present at the time of incident, and they had witnessed the beating. None of these persons had gone to police station along with Nazruddin to lodge a report there, nor any of these persons had gone to hospital along with Nazruddin. This was an unnatural conduct of these persons. They were relatives of the deceased. They had seen Nazruddin being beaten mercilessly at the hands of the accused persons, but none of these persons had tried to rescue him. The explanation that on account of fear, they did not intervene in the fight, is not at all believable. Meerbux PW 1, who is uncle of the deceased and who according to him tried to get the matter compromised in between Lallu and Nazruddin, even did not intervene in the fight. He did not even accompany Nazruddin to police station or to hospital. This shows that all these eye-witnesses were not present at the time of occurrence, but, they have been made out as eye-witnesses later on by the prosecution. The statement of PW 1 Meerbux itself shows that he was not present at the time of occurrence. He had tried to make out a case against the accused-appellants. According to the prosecution, Manzoor Ahmed along with two persons, both named Lalla had taken Nazruddin, in an auto-rickshaw, to police station. Manzoor Ahmed who also lodged the report in the police, has not been examined.
17. The learned Public Prosecutor gave explanation that Manzoor Ahmed had gone out of India, hence, he was not avilable for his statement. No doubt, any body can inform the police about occurrence of a cognizable offence and the police machinery may start investigation on the basis of that report. So, the FIR is not a substantive piece of evidence, but it is only ah information that some cognizable offence has been committed and on that basis the police would be liable to investigate the occurrence. But, the contents of the report should be proved by the informant. If the informant has not been examined as in the present case, it means that the contents of the report have not been proved. So, in the present case, whatever has been written in the report, Ex. P. 18 cannot be taken to be correct. The entire case would be judged on the statement of the witnesses produced in the court. The question that now arises is as to what is the basis of the FIR, Ex. P. 18. Whether Manzoor Ahmed, the informant was an eye-witness to the incident, or whether he was infomed by some body, there is no proof on the record. Manzoor Ahmed had only taken Nazruddin to police station. According to the report Nazruddin was taken to police station by Manzoor Ahmed and Lala. In. the report, it is mentioned that Lala, son of Jumma and Lala, son of Nizamuddin had come to the spot. One Lala was with Manzoor Ahmed when Nazruddin was taken to hospital in an auto rickshaw, in the report it is not mentioned that both the persons named Lala had accompanied Manzoor Ahmed. In their court statements, the prosecution witnesses have stated that Manzoor Ahmed and both the persons named Lala had taken Nazruddin to police station. The witnesses thus introduced an other Lala who had accompanied Manzoor Ahmed, when it is not shown in Ex. P. 18, who was that Lala who had accompanied Nazruddin to police station is not clear from the report. Out of these two Lala, the prosecution has examined only one Lala, who is the son of Nizruddin. The other Lala, son of Jumma has has not been examined by the prosecution. Lala son of Nizamuddin, PW 3, does not support the story of the prosecution. He has stated that Nazruddin was lying at his shop and a large crowd had assembled there. He has further stated that he himself, Manzoor Ahmed and Lala son of Jumma had taken Nazruddin to police station in an auto rickshow. Manzoor Ahmed does not say in Ex P. 18 that Lala son of Jumma had also accompanied him to police station. So, this is a material contradiction about the fact as to who had lodged the report at the police station & whether Lala son of Nizamuddin had accompanied Nazruddin to police station, because, the report Ex.P. 18 does not have any signature of this Lala, son of Nizamuddin.
18. In the report, Ex. P. 18, there is no mention about the dispute regarding money, nor is there any mention that one day prior to the occurrence, some dispute had taken place and that talks of compromise were going on. Manzoor Ahmed is relative of the deceased, and as argued by the learned Counsel for the accused-appellants, he should have knowledge about this compromise, and this fact he should have mentioned in the report, Ex. P. 18. Any way, it was not necessary that Manzoor Ahmed must have had knowlege about the compromise. He had only informed the police about the occurrence of some cognizable offence, and to this extent only, it is relevant. But, the question is as to whether the report, Ex. P. 18 was lodged by Manzoor Ahmed immediately at the police station. According to this, report, Manzoor Ahmed reached the police station at 8-30 p.m. and then he lodged this report.
19. Meerbux PW 1 is a star-witness in this case, who is uncle of the deceased. He, in his examination-in-chief, has stated that Nazruddin was taken to police station by Manzoor Ahmed and both Lalas. He (Meebux) did not accompany them. But, in his cross-examination, this witness has said that the police had come to the spot after the lodging of the report, and thereafter, he went to police station at about 8-30 p.m. and at that time. Manzoor Ahmed was lodging the report. It means that the report was not lodged at 8.30 p.m. when Manzoor Ahmed had taken Nazruddin to police station. According to the witnesses, Nazruddin was immediately sent to hospital along with two police constables. It is not on the record as to whether Manzoor Ahmed had accompanied Nazruddin to hospital or not. It is also not on the record that Manzoor Ahmed remained at the police station when Nazruddin was sent to SMS Hospital with the constables. But it is clear from the report, Ex. P. 18 that it was written at 8.30 p.m. SHO Bhanwar Lal Chowhan, PW 25 has stated in his cross-examination that he had reached the spot at 8 p m., which means that after recording the report, Ex. P. 18 at 8.30 PM and after sending Nazruddin to hospital, he came to the spot. At the spot, he met Meerbux, PW 1. After that, Meerbux went to police station, and at 8.30 PM, he found that Manzoor Ahmed was lodging the report. How was it possible ? The SHO had already reached the spot at 8 p m. The report was lodged at 8.30 PM Then, what was the necessity for Manzoor Ahmed to lodge the report at the police station? Manzoor Ahmed has not been examined. Had he been examined as a witness, he certainaly, could have thrown light on the fact as to when he lodged the report and whether he remained at the police station or accompanied Mazruddin to SMS Hospital there after. This above that Meerbux PW 1 is made out witness. He was at the spot when the SHO arrived there. Meerbux had witnessed the occurrence. He is the uncle of the deceased, but, very strange that he was not examined by the SHO that very night at the spot Under Section 161 Cr. PC. His statement was recorded on the next day at the police station. In his cross-examination, this witness has said that he was interrogated by the police at the spot the very night, and that the police had asked him as to what he had seen about the occurrence, but, in reply, he did not tell the police any thing and on the next morning, he narrated the entire story. This is a strange explanation. When Meerbux PW 1 was present at the time of the occurrence, he witnessed the incident, he was present when the SHO Bhanwarlal Chowban reached the spot at 8 p.m. that very night, but, he was not examined under Section 161 Cr. PC that night. The argument of the learned Public Prosecutor that on account of tense situation, the SHO could not examine the witnesses at the spot on that very night, is no argument. There is nothing on the record to show or prove that the situation was so tense and the mob was so unruly and uncontrollable that it was not possible for the Investigating Officer to examine the eye-witnesses that very night immediately, who were present at the spot when he arrived there. Simply an explanation by the police that on account of tense situation, they could not examine the eye-witnesses that very night, is not sufficient. It is not case of the poliee that on account of such tense situation, they could not investigate the case on that very night. The SHO inspected the site and prepared the site plan and note, Ex. P. 1. He recovered broken pieces of hockey-stick and one 'Sariya'. He also seized blood-stained and simple earth from the spot, and during this investigation, he did not feel any tense situation ? Was the tense situation only for recording statements of-witnesses ? This shows that the SHO did not fairly investigate the matter. He intentionally did not examine the eye-witnesses at the spot that very night when they were present there, because, they wanted to make out a case against the accused-appellants falsely. On the next morning, all the eye-witnesses who were relatives of the deceased, were examined by the SHO, and in their statements, they tried to justify their presence. This shows that these eyewitnesses were not at all present at the time of the incident, otherwise, they would have been examined by the SHO that very night. They were created on the next morning as eye-witnesses, and hence, they were examined under Section 161 Cr. PC. Therefore, their presence at the spot, is highly doubtful. We feel no hesitation to say that these witnesses have been made out in this case, falsely. The statement of Meerbux PW 1 shows that at 8.30 p.m., when he went to police station, he found that Manzoor Ahmed was lodging the report. It means that Meerbux PW 1 is a liar and an unreliable witness. Because he was uncle of the deceased, he wanted to implicate the accused persons in this case falsely. He has deposed in a way as if he was an eyewitness to the actual occurrence. The law is very clear on this point that the statements of eye-witnesses should be recorded immediately without any delay. In Ganesh Bhavan Patel and Anr. v. State of Maharashtra , their Lordships of the Supreme Court, held as under:
Delay of a few hours, simpliciter, in recording the statements of eye-witnesses may not, by 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. Thus, under the facts and circumstances of the case delay in recording the statements of the material witnesses cast a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story.
20. Ismail, according to the prosecution, was another eye-witness to the incident. His statement was recorded by the police under Section 161 Cr. PC after 10-12 days of the incident. During that period, he was at Jaipur, but still, he was not examined immediately. Similarly, Babu Khandela who is also according to the prosecution another eye-witness in this case, was also examined under Section 161 Cr.PC on 20th Nov., '83 when the incident took place on 8th Nov., '83. Noor Mohd. PW 2, who is also alleged by the prosecution to have been present at the time of occurrence, was examined on the next morning of the incident. He was also present in the night when the SHO arrived at the spot. But, he too was not examined by the SHO. In the same way, Quatabuddin PW 14 was also examined after 10-12 days of the incident.
21. Thus, it is clear that the investigation in this case, was not done fairly as the witnesses should have been examined under Section 161 Cr. PC by the Investigating Officer that very night. The law enunciated by the Supreme Court in Ganesh Bhawan's case (supra) lays down that a delay of a few hours in recording statements of eye-witnesses, may not amount to serious infirmity in a prosecution case. In the present case, the eye-witnesses were examined very late. When they were available to the SHO, he should have examined them immediately that very night. A prudent investigator would certainly record the statements of witnesses immediately, so that the correct picture would come before him. But, the Investigating Officer in the present case, intentionally, did not examine the eye-witnesses the very night of the incident, which shows that he wanted to create some evidence in this case. In our view, it seems that neither the alleged eye-witnesses, were present at the time of the occurrence, nor they were present at the spot, when the Investigating Officer arrived there, and on the next morning, they were created as eye-witnesses by the investigator or these witnesses though were present, did not want to give the correct picture to the investigator in the night, and after giving thinking to this matter, they gave their statements on the next morning, to the SHO. All these create doubt in the prosecution story.
22. Meerbux PW 1 is a star-witness in this case. He has stated that there was a dispute regarding some money in between Lallu and deceased Nazruddin. On 7th November, 1983, the both had a fight on the money matter, and he along with other persons decided to get the matter compromised in between them on the next day. He has stated that on 8th November, 1983, he along with Ismail, Abdul, Babu Khandela and Iqram-u-ddin were sitting at the shop of Babu Khandela. Nazruddin was also sitting at his shop. They talked to get the matter compromised in between Lallu and Nazruddin on that day. Lallu was not present there. Some time after Lallu came for the back side of the mosque. Iqramuddin told that Lallu had come and that he would bring him there. Lallu asked Iqram-u-ddin first to accompany to their house, and then they both went away. After about 10 minutes, they came back through the lane and went to the shop of Nazruddin. Lallu inflicted blow with iron-rod on the head of Nazruddin, and thereafter, all the accused persons gave him beating. Thus, according to this witness, the genesis of the incident was some money-matter. Nazruddin was to recover some amount of Rs. 4,500/- from Lallu, and on this money dealing there grew some quarrel. But, it is not on the record that on the day of incident, Lallu and Nazruddin had quarrelled with each other on the money-matter. Whatever Meerbux PW 1 and other witnesses have stated, it whows that the genesis of the dispute was some money-dealing. But, there is no proof on the record that Lallu owed some money towards Nazruddin. So, in the court statements the prosecution has tried to show the genesis of the dispute. The witnesses did not say anything about the money dispute in their police statements. Their contention was that there was some dispute in between Lallu and Nazruddin deceased for which they were trying to get the matter compromised. What was that dispute, was not known. It is also in the statements that Lallu had instigated some 'Goondas' (miscreants) for giving beating to Nazruddin. 'There upon, Nazruddin had asked Lallu as to why he had sent those Goondas'. So, the dispute in between them was in connection with some beating matter. This is not the case of the eye-witnesses that the dispute was with regard to some money-dealing. They were silent in the police statements but, in their court-statements, the genesis was changed, and all the eye witnesses stated that there was a dispute regarding money, and that, they wanted to get the matter compromised. This shows that the correct genesis has not been proved. The Investigating Officer did not investigate the matter correctly. All the witnesses were created falsely and the story of money-dealing was concocted.
23. PW 1 Meerbux has further stated that they were sitting at the shop of Babu Khandela. Iqramuddin went to call Lallu. Nazruddin was also sitting at that time at the shop. But, he then went to his own shop. Why did Nazruddin go away. When the witnesses had collected there to got the matter compromised and Iqramuddin had gone to call Lallu, there was not necessity for Nazruddin for leaving the shop, who should have rather waited there. Then, Meerbux had stated that Lallu came from the left side to the mosque. He has contradicted his own statement Ex. D. 1 given in the police. In his court statement, he had stated the Iqramuddin and Ismail were also present, but in his police statement, this witness did not name them that they were also present. It was also not stated by Meerbux PW 1 in his police statement that Lallu had come from the back of the mosque. He has also stated that he returned from the police in the night around 12-1 O'clock, and then, he went to hospital. This is also a false statement, because, according to the prosecution, information had come at about 11 O'clock that Nazruddin had died. Then, where was the necessity of going to hospital. If he had gone to hospital after hearing the news of death of Nazruddin, then, why was he at the police station up to 1 O'clock? He should have gone to hospital immediately with Nazruddin. He has stated that as soon as Lallu inflicted sariya-blow on the head of Nazruddin, the latter fell down from the Patta on which he was sitting. Only one blow was given on the head. That blow was a serious blow and so, blood must have fallen from the need on the Patta when it is already in the statements of the witnesses that Nazruddin was bleeding from hish ead. But, that Patta was not seized by the police. Then, just after the shop of Nazruddin, there was a cover on a Nullah (drain) and Nazruddin fell down on the stone-cover of that Nullah. So, blood must have been found on those stanes also. But, there is nothing on the record about this fact. Blood was found on the road which was about 6-7 feet away from the shop of Nazruddin. How did Nazruddin fall on the road at a distance of 6-7 feet away from his shop? The witnesses have stated that as soon as the Sariya hit on the head of Nazruddin, he fell down from the Patta, which means, he fell down on the stones covering the Nullah. One witness, namely, Noor Mohd. PW 2. has stated even to this extent that as soon as Lallu hit the iron-rod on the head of Nazruddin, the latter got up and fell down out side his shop. This witness wants to prove that after blow, Nazruddin got up and then fell down on the road, because, blood was found on the road by the Investigating Officer. No other witness has stated like that of Noor Mohd., PW 2. So, Noor Mohd. is also another liar in this case, who gives a false statement. Actually, when Lallu hit with the iron-rod on the head of Nazruddin, the latter fell down in his shop, or just near the Patta on which he was sitting. So, there must have been blood on the Patta or the stones covering the Nullah. But, according to the Investigation Officer and site-plan Ex. P. 1, no blood was found either inside the shop, just near the shop or on the stones covering the Nullah, but, it was found on the road. How could Nazruddin fall down on the road which was at a distance of about 6-7 feet from his shop? This fact has not been explained by the prosecution, which further shows that the investigation in this case, was not fair. Where Nazruddin was hit and then beaten, there is difference in the statements and the site-plan. The evidence is that as soon as Nazruddin fell down, he was mercilessly beaten by the accused-appellants with lathis, hockey-stricks and sarias, Nazruddin had 18 injuries on his person. It means that he was mercilessly beaten and the beating took place just by the side of the shop of Nazruddin, on the stones of the Nullah. So, there must have been blood on the stones. There could be no question of collecting blood-stained earth from the road as has been shown in the site-plan, Ex. P. 1 and in the statements of the witnesses. Thus, it is not clear as to where the incident had taken place. The prosecution has falsely tried to establish the fact that Nazruddin was beaten while he was sitting in his shop. All the eye-witnesses have stated like this, which shows that they were not eye-witnesses to the actual incident, but they have been concocted. Meerbux PW 1 who is a star-witness in this case and whose statement we have scrutinized very minutely above, in detail, in our considered opinion, is a liar and a concocted witness. He is completely unreliable and untrustworthy witness. He being uncle of the deceased, has been produced as an eye-witness in this case. He was not present at the scene of occurrence, otherwise, his statement under Section 161 Cr. PC would have been recorded by the police that very night. The facts which he has stated, and we have discussed above, show that no reliance should be placed on his testimony he being wholly an untrustworthy witness.
24. According to the prosecution another eye-witness to the incident, is Ismail, PW 13. We have perused his statement also. He does not support the prosecution story. He, in his examination-in-chief, has stated that Babu Khandela and Iqramuddin had come to him and told that a compromise would be got done in between Lallu and Nazruddin On the second day, i.e., on the day of incident, he himself, Babu Khandela and Iqramuddin sat at the shop of Babu Khandela. Lallu came there and went to his house. Iqramuddin told that he was going to bring Lallu. They then remained at the shop. After some time, he (Ismail) heard some hue and cry, and when he went to the shop of Nazruddin, he found that Nazruddin was lying on the road in injured condition. Thus, he has completely denied the prosecution story. He has been declared hostile. His statement under Section 161 Cr. PC was recorded after 10-12 days of the occurrence, by the Investigator. So, this alleged eye-witness is of no help to the prosecution.
25. PW 20 Babu Khendela is another alleged eye witness in this case It is in the evidence that at the shop of Babu Khandela, a meeting had taken place for getting the dispute compromised in between Lallu and Nazruddin (deceased). According to the prosecution Babu Khandela was also present at the spot when the occurrence took place. So he has also been cited as an eye-witness. But, this witness does not support the prosecution story at all. He does not say that he was eye-witness to the occurrence. The dispute which as alleged by the other prosecution witness, had taken place one day prior to the incident, has not been corroborated by this witness, Babu Khandela, PW 20. He has stated that when the dispute took place one day before, he was not present. This witness has also been declared hostile. This witness is related to both the parties, as has been admitted by him. He has also stated that at 10 p.m., he was at the spot, where the police was also standing. He was not interrogated by the police at that time. He has further stated that he did not see Meerbux PW 1 on that day. Thus, this witness who is related to the deceased, has not supported the prosecution story. On the other hand, he has thrown away, the entire prosecution story.
26. PW 2, Noor Mohammed is also another eye-witness according to the prosecution. He has stated that he was sitting outside the shop of his brother. At that shop, has nephew, Chhuttan was working. Chhuttan has been examined by the prosecution as PW 7. Noor Mohd. PW 2 has stated that while he was silting at the shop of his brother, Iqramuddin came to him, who told him that there was some dispute in between Lallu and Nazruddin, and that matter was going to be compromised. Iqramuddin asked him to sit at the shop and he went to the house of Lallu. After about 15 minutes, all the accused persons came there, Lallu then inflicted a blow with a iron-rod on the head of Nazruddin. Nazruddin got up after the blow and then fell down outside his shop Thus, he has given a different story as it has not been stated by Meerbux PW 1 and the other prosecution witnesses. According to the prosecution, the witnesses were at the shop of Babu Khandela where Nazruddin was also sitting, and they were waiting for Lallu. That, Lallu came from the back-side of the mosque. Iqramuddin had gone to bring Lallu. This fact has not been stated by Noor Mohd. PW 2. According to him, Iqramuddin came to him and asked him to stay at the shop, and then, he went to the house of Lallu. Actually, according to the other prosecution witness, Lallu came from the back of the mosque and then Iqramuddin and Lallu together went to the house of Lallu. This shows that Noor Mohd. is also another made out witness. He has contradicted the other eye-witness. He was also not examined by the police the very night of the incident. He was at the sppt for half an hour while the police was there. He did not speak to the police that he had seen the incident, nor the police asked/inquired from him about the incident. He did not go to police station along with Nazruddin.
27. Babu Khandela PW 20 has then stated that on the day of incident, the shops nearby were closed. Usually around 6. 30-7 p.m., the shops used to be closed. But Noor Mohd. PW 22 has stated that near by there were 15-20 shops, out of which, 10-12 were open, and when Nazruddin fell down on the road, the shop-keepers were at their shops and had seen the incident. It means that the shops were open. It is not disputed that the place of occurrence was such a place where there were a number of shops, and they were open. The shop keepers were present there and were witnessing the occurrence. Immediately, at 8 p.m., the Investigator reached the spot. But, very strange, that the investigator did not examine any independent witness. The shop-keepers were there. They could have given the true picture of the occurrence had they been examined at the spot by the Investigator.So, we place no reliance on the statement of Noor Mohd. PW 2. He is also liar and concocted witness on behalf of the prosecution in this case.
28. Lala son of Nizamuddin has also been examined by the prosecucution and been cited as PW 3, but he has not stated that he was an eyewitness to the incident. As per his version, he was coming from his house when he saw Narzuddin lying at his shop, and there was a crowd. It means that witness had not seen the actual occurrence. He had not gone to police station with Nazruddin. He says that Nazruddin was lying at his shop, while according to the prosecution, he was lying on the road. This creates doubt in the prosecution story. He has also stated that till he reached near Nazruddin, no body caring for him. This is a most unnatural statement. A large crowd had collected there. Some of the relatives of Nazruddin were present there. But, no body would take care of him (Nazruddin); Lala who was not related to Nazruddin, would take him to police station while his relatives would keep standing there simply watching the incident, cannot, be believed. It cannot be believed that the relatives of Narzuddin would not intervene in the incident, would not try to save him; and would not try to catch the accused persons. This appears to be a most unnatural conduct of this witness. Any way, Lala PW 3 does not help the prosecution at all.
29. PW 4 Mohd. Yameen has been examined to prove the site plan. Ex. P. 1 and the recovery memo, Ex. P.3. This witness has stated that in the night, at about 1/1-2 O' clock the site plan was prepared. In our view, this is not correct. According to the Investigator, PW 25, he reached the spot immediately after the incident at about 9 PM and there he prepared the site-plan, Ex. P. 1 This shows that Mohd. Yameen PW 4 is also another made out witness, and he was asked to sign the site-plan Ex. P. 1 and the recovery-memo Ex P.2 and 3. This again creates doubt in the correctness of these documents.
30. Nair PW6 has also been examined as an eye-witness. He has stated that at the shop,Babu Khandela, Nazruddin, Meerbux Bala, Iqramuddin, Ismail and Badruddin were talking about getting a dispute compromised. He was also present there. They were talking that Lallu be called from his house and the matter be compromised in between him and Nazruddin. According to this witness, Noor Mohd. was sitting outside the shop and Iqramuddin went to Noor Mohd. and asked him to stay at the shop and that the matter would be compromised. Iqramuddin then went to the house of Lallu. While after taking tea this witness was going to his house, he saw that Lallu inflicted blow on the head of Nazruddin, who then fell down on the road, and then, all the accused persons started beating him. Thus, this witness has given a new story. Whatever has been stated by this witness in his statement, has not been stated by the other prosecution eye-witnesses. In his cross-examination, this witness has said that he did not know as to what was the dispute in between Lallu and Nazruddin (deceased). He did not know on what matter, compromise was to be arrived in between them. But, he was to be made an eye-witness in this case, and so, he was cited as such examined. He is related to both the parties. In his cross-examination, he became nervous he was not feeling well, and so he did not try to take Nazruddin to hospital. He did not got to police station also, to inform about the incident. He has then stated that he did not know whether the police had come to the spot the very night. On next morning, his statement was recorded by the police at the spot. He also did not know whether the site plan was prepared that very night or not. This witness has contradicted his own statement given in the police, which is Ex. D.2.
31. From a reading of the statement of Nasir PW 6 we find that he is also an unreliable witness and no reliance can be placed on his testimony.
32. Chhuttan PW 7 has also been examined on behalf of the prosecution, but, we find that he is of no help to the prosecution. From his statement, it reveals that he is also another made out witness. He was working at his shop, and his uncle, Noor was sitting outside the shop. When Noor cried, he looked outside the shop and saw the 5-7 persons were running with weapons in their hands, and when he went towards the road, he found that Nazruddin was lying on the road in a pool of blood. He has named only three persons who were running. From the statement of this witness, it seems that with great difficulty, he has been able to name those persons who were running. Then, he has stated that Manzoor Ahmed, Lala and 2-3 other persons brought a three-wheeler and took away Nazruddin to Shastri Nagar Police Station. His statement was also recorded by the police. But therein, he did not name to persons who had taken Nazruddin to police station in the three-wheeler. He was also confronted with his earlier police statement, Ex. D. 3 and he admitted that he did not state certain facts in his police statement which he deposed in the court. In the court, he stated that Bundu was also one of those persons who were running after beating, but, in his police statement, he did not state like this, This shows that he is also another made out witness in this case, and no reliance can be placed on his statement.
33. Iqramuddin PW 8 is also another star-witness in this case. According to the other prosecution witnesses, Iqramuddin was the person who had gone to the house of Lallu, to call him for getting the dispute compromised. In his court statement, he has given the same stereo-type story of dispute of one day before the incident, and then that of the incident. He has stated that at the shop of Babu Khandela, he himself, Babu Nazruddin and Ismail were sitting and they were telling Nazruddin not to fight. Thereafter they saw that Lallu was standing near the Burz He went to him and talked to him. Lallu asked him to go home where they would talk. He then went with Lallu. After some time, Babu Maulana came to the house of Lallu and talked to him. He (Iqramuddin) told Babu Maulana also not to fight. Then, all the accused persons came there, they left the house of Lallu but he remained there. He has further stated that when he came to the spot, he found that Nazruddin had already been taken to hospital. It means that this witness was not an eyewitness to the actual incident. Whatever statement he has given, has not been corroborated by the other prosecution witnesses, rather his statement is a contradictory statement. From where Lallu came to the spot, whether Iqramuddin went to call Lallu from the shop of Babu Khendela, whether Iqramuddin while going to the house of Lallu, told Noor Mohammed PW 2 to stay at the shop, are all such facts which are not corroborated by the other prosecution witnesses. He has also stated that when he came to the spot, he was informed that Nazruddin had already been taken to hospital. But, he did not see Babu Khandela or Ismail at the spot. He has also stated that he was informed at the coiner of the lane that Nazruddin had been given beating, and then he saw the accused persons running. All these statements show that he is also another made out witness and no reliance can be placed on his statement.
34. The prosecution has also examined Fazlu PW 12, a boy of 10 years, and Qutabuddin PW 14 another boy of 10-11 years. They were examined in such a way as if they were eye-witnesses to the incident. According to these witnesses, they were sitting inside the shop of Nazruddin (deceased) when the occurrence took place. But, from the statements of the other prosecution witnesses, it is not borne out that these two boys were also sitting at the shop of Nazruddin. Fazlu is the nephew of the deceased, and this was the reason that he was made out as an eye-witness. He has stated that when the police came to the spot, he and Quatabuddin were at the shop, where there was no other person except Meerbux PW 1. Fazlu has stated that while Nazruddin was being beaten, then, he and Qutabuddin had started weeping and they had embraced Nazruddin. So, their clothes were also yet in blood. The police did not seize their blood-stained clothes. This witness was examined by the police after 5-6 days of the occurrence.
35. Qutabuddin PW 14 has stated that Lallu, had inflicted one blow with a Sariya on the head of Nazruddin, while Babu Maulana had inflicted another blow on the leg of Nazruddin fell down from his shop. Then, Binduka inflicted another sariya blow on the head of Nazruddin. Thereafter, all the other accused person started inflicting blows to Nazruddin. In his cross-examination, this witness has said that when the police came to the spot, he was not interrogated by the police. He did not tell the police about this fact. His statement was recorded by the police after 10-12 days of the occurrence. He has stated that his grandfather Meerbux PW 1 had taken him to police station. During this period, he remained at Jaipur. In his police statement, Ex. D. 4, he did not state that Lallu had inflicted blow by Iron-rod. Similarly, there is no mention that Babu Maulana also had inflicted blows on the leg of Nazruddin and so also Bundu. So, this witness is also another made out witness. It is clear that Meerbux PW 1, uncle of the deceased, in order to prepare a false case against the accused persons, has created these two child witnesses. He had taken both the boys to police station for getting their statements recorded. It shows that Meerbux PW 1 is the person who has created the entire evidence, a false story, and the false witnesses, so that, the accused persons might be entangled in this case. The learned trial court has placed no reliance on the statements of Fazlu PW 12 and Qutabuddin PW 14. We also do not place any reliance on the statements of these two witnesses, and we hold that they were not at all present at the spot, and were prepared and concocted by the police later on.
36. Another important witness is Sirazuddin PW 21. He has also narrated in his court-statement, the story of money-dealing. But in his police-statement, Ex. D. 5, he did not state what he stated in his court statement. Thus, he contradicts his own statement given in the police, Ex. D. 5. It is not necessary to repeat the entire portion of his statement, Ex. D. 5, which he has denied to have stated before the police. Suffice it to say that after reading court statement as well as the police statement, Ex. D. 5, we find that he is as another unreliable and untrustworthy witness. In his court statement, he has stated that Nazruddin had come to the shop of Babu Khandela. Iqramuddin and Ismail told him there, not to fight. Nazruddin at this told that he would do as he would say, and if he is found at fault he be pardoned. Iqramuddin asked him to sit at his shop. Nazruddin went to his shop and started playing cassettes. There two children were also sitting. Iqramuddin then went to Lallu and they both then went to the house. He then went to perform 'Namaz'. When he returned after performing 'Namaz', he found that Lallu inflicted a blow on the head of Nazruddin who fell down on the ground. Then, all the accused persons started beating him. He then cried, "Mat Maaro; Mat Maaro". Noor Mohd. was sitting at the shop of his brother. The accused persons did not pay any heed at their request. Babu Maulana told that if any body would come ahead, he would also face the same consequences like that of Nazruddin. This entire statement was not narrated by this witness in his police statement, Ex, D. 5. He was confronted in his cross-examination as regards his police statement, to which he replied that he had narrated everything before the police as he deposed in the court, but, he did not know as to why the police did not write them. The SHO, Bhanwarlal Chowhan, PW 25 has proved the statement of this witness, which is Ex. D. 5, and has stated that whatever was stated by Sirazuddin, was written in Ex. D. 5, and that, nothing had been added to or substracted from this statement. This shows that whatever Sirazuddin had stated in the court, had not stated before the police. So, this is a clear improvement in his court statement. If this witness was present at the time of occurrence, there was no question of his giving contradictory statement. We cannot believe that the police would not record his statement properly or duly. If the statement of this witness is believed that he had deposed all the facts in his police statement, but, they were not written by the police, means that the police has not investigated this case properly and fairly, and it was a mischief of the Investigator that he did not write the statement of this witness honestly. If the statement of the SHO is believed that he had recorded the statement of this witness honestly and fairly, then, Sirazuddin becomes a most unreliable witness, and it becomes clear that he improved his statement in court, and so, no reliance can be placed on the statement of such a witness. Therefore, this witness also appears to be a most unreliable and untrustworthy witness, and it would be unsafe to place reliance on the testimony of such a liar witness.
37. We have perused the judgment of trial court. The learned trial court has disbelieved the recovery-story, and we see no reason to disagree on this aspect.
38. We find that the Investigator in this case, has examined only interested and related witnesses during the Investigation. Bhanwarlal Chowhan, PW 25, the Investigator has not examined any independent witness, nor has he given any explanation for this as to why independent witnesses were not examined. The explanation that on the night of incident, when he arrived at the spot, there was tense situation, and when there is no proof to this effect, this is an insufficient explantion. If the situation was so tense, it could not be possible for him to have seized the articles from the spot and prepared the site-plan and note Ex. P. 1. He remained at the spot, the whole night. Had there been tense situation the whole night, the eye witnesses who were present at the spot, could have been examined immediately, and he should not have postponed their examination till next morning or for some days. So, the non-examination of the eye-witnesses immediately after the incident, is certainly fatal to the prosecution story in this case, which creates doubt in the whole prosecution story and shows that either the eye-witnesses were not present at the spot at the time of the alleged occurrence, and they have been made out subsequently, or they have not stated that true and the correct story, and after giving thinking on the matter, after some days, they have concocted a new story, and have given their statements in the police. So, the Investigation was not fair in this case, which creates doubt in the prosecution story. Another explanation given by the SHO that he had tried to contact the eyewitnesses, but they were not available, and so, he could not record their statements immediately, is a false explanation. The witnes es have said that after the incident, they were at Jaipur. They have not stated that they were tried to be searched out by the police, and they did not attend them. So, the explanation that they were not available to the police, appears to be a false explanation. The only inference that can be drawn is that the investigation was not at all fair in this case. The SHO has stated that the recorded statements of some of the witnesses who were present at the spot, that very night. This is also incorrect statement. He did not examine any witness that very night though they were present at the spot, when he arrived there. When he prepared the site-plan, the witnesses were present there. So, he should have examined them also. But, not only he has given a false explanation, but also he has given a false statement. As we has discussed above, the genesis of the dispute was also changed. There is no proof on the record as to on what matter, there was a dispute in between Lallu and Nazruddin. The witnesses have stated that there was some dispute in between them. One witness has stated that Nazruddin had asked Lallu as to why he had engaged Goondas after him. This fact has not been corroborated by the other witnesses. What was the dispute has not been brought on the record. In the court statement, the genesis was shown as some dispute regarding money-matter, but, this fact was not disclosed during police statement. So, this genesis was created when the witnesses were examined in the court. All this shows that absolutely, there was no reason for any dispute. It is correct that Nazruddin was beaten up and he died on account of the injuries received by him, but, what was the cause of the fight or dispute should have been proved by the prosecution. The prosecution should have proved the basis on which, the accused persons had collected there and inflicted injuries to Nazruddin. But, we find that the prosecution has utterly failed to establish the genesis in this case. We feel no hesitation in saying that they have created a false story and thus tried to establish a cause of dispute. But, they have failed to do so. The accused-appellants have been found guilty of forming an unlawful essembly. They have been convicted with the aid of Section 149, IPC of offence under Section 302, IPC. They have also been found guilty under Sections 147 & 148, IPC. In this regard, we have perused the entire record of the case. There is no evidence to prove that the accused persons had any pre-plan or pre-concert to give beating to Nazruddin. What was their common object, has not been established at all. Except with Lallu, there was no dispute in between Nazruddin and the other accused persons. If the story of money-dealing as set out by the prosecution is believed, then, the dispute was in between Nazruddin and Lallu accused, and there was no dispute between Nazruddin and the other accused persons. Why the other accused persons collected at the house of Lallu, is not proved at all. There is difference in the statements also. Iqramuddin has stated that the other accused persons were seen prior to the incident, with Lallu, and they conspired to murder Nazruddin or give him such beating as would cause his death. Only Iqramuddin has stated that while he was at the house of Lallu, the other accused persons came there. He too does not say that all these accused persons conspired at the house of Lallu either to murder Nazruddin or to give him such beating as would cause his death.Thus, absolutely, there is no evidence to prove that the accused persons had any pre-plan or pre-concert in their minds, & that in furtherance of their common object, they arrived at the shop of Nazruddin and beat Nazruddin mercilessly. Therefore, no case of forming any unlawful assembly is proved against the accused appellants. All the other accused-appellants except Lallu accused, have been falsely implicated in this case by the prosecution. We have already discussed above that all the eye-witnesses are made out witnesses who are unreliable and untrust-worthy ones. So, we do not agree with the finding of the lower court that the accused persons had formed an unlawful assembly and that they had any common object. So, when common object has not been established, there can be no question of acting in furtherance of that common object. The trial court has failed to appreciate this aspect of the case, and it has erred in convicting the accused persons under Sections 147 & 148, IPC. Their conviction with the aid of Section 149, therefore, is also bad.
39. In Empror v. Khwaja Nazir Ahmed AIR 1945 PC 18, it has been observed as under with regard to admissiblity of FIR:
In the case of congnizable offences, receipt and recording of a First Information Report is not a condition precedent to the setting in motion of a criminal investigation. No doubt in the great majority of cases criminal prosecutions are undertaken as a result of information received and recorded in this way, but, there is no reasons why the police, if in possession through their own knowledge or by means of credible though informal intelligence which genuinely leads them to the belief that a cognizable offence, has been committed should not of their own motion undertake an investigation into the truth of the matters alleged. Section 157 when directing that a police officer, who has reason to suspect from information or otherwise that an offence which he is empowered to investigate under Section 156, has been committed, shall proceed to investigate the facts and circumstances supports this view.
In Khwaja Nasir's case further held as under:
The object of the provisions as to an information report commonly called a First Information Report is to obtain early information of alleged criminal activity to record the circumstances before there is time for them to be forgotten or embellished, and the report can be put in evidence when the informant is examined if it is desired to do so.
40. In Damodarprasad Chandrikaprasad and Ors. v. State of Maharashtra, while dealing with Section 157 of the Evidence Act with regard to admissibility of an FIR, it has been observed as under:
The First Information Report is not substantive evidence. It can be used for one of the limited purposes of corroborating or contradicting the makers thereof. Another purpose for which the First Information Report can be used is to show the implication of the accused, to be not an after thought or that the information is a piece of res gestae. In certain cases, the First Information Report can be used under Section 32(1) of the Evidence Act or under Section 8 of the Evidence Act as to informer's conduct. The High Court was wrong in holding that the First Information Report would be admissible under Section 157 of the Evidence Act. When the maker of the First Information Report was examined in court the report was not tendered by the prosecution in accordance with the provisions of the Evidence Act. The appellants were denied the opportunity of cross-ekamination on the First Information report. The first information report was therefore, wrongly relied upon in evidence for the purpose suggested by the High Court.
41. In Hasib v. The State of Bihar , it was observed as under:
The object of First Information Report form the point of view of the informant is to set the criminal law in motion. From the point of view of the investigation authorities it is to obtain information about the alleged criminal activity so as to be able to take suitable steps for tracing and bringing to book the guilty party. The report does not constitute substantive evidence though it is important as conveying the earlier information about the occurrence. It can be used only as a previous statement for the purpose contemplated under Section 157 or Section 145 of the Evidence Act. That is for corroborating or contradicting its maker and not of other witnesses.
In view of the above principles, the report, Ex. P. 18, which was lodged by Manzoor Ahmed, cannot be read in evidence, because, Manzoor Ahmed has not been examined as a witness in this case. Whatever might be the reason for his non-examination, but, this is a fact that he has not been examined, nor has the report been proved by him. The accused persons were not provided an opportunity of cross-examining Manzoor Ahmed. Therefore, no reliance can be placed on the report in this case. The entire case is to be judged from the evidence on record, and we have discussed above the entire evidence and we find that the prosecution witnessess are most unreliable ones.
42. There is one thing very particular in the doctor's statement. Dr. BM Gupta, PW 16 examined Nazruddin when he was taken to hospital. He stated that there were 18 injuries on his person. In his statement, the doctor has stated that all those injuries were sufficient to cause death. This is a very strange statement. When Dr. Gupta examined Nazruddin, the latter was alive. How could the doctor say that all the injuries sustained by Nazruddin, were sufficient to cause his death ? There was no occasion for this witness to have stated like this.
43. Another doctor in this case, was Dr. BRL Srivastava, who conducted post-mortem examination on the dead body of Nazruddin. He has proved the post mortem report. In his statement, he has stated about the cause of death. But, in his cross-examination, he has said that injuries Nos. 16, 17 & 18 could be dangerous to life. He has also said that internal injury to brain could cause the death. Thus, the statement of this doctor, was not a definite one. He has not stated that injuries Nos. 16, 17 & 18 were sufficient in the ordinary course of nature of cause death. He was the proper person who could give the opinion whether the injuries were sufficient in the ordinary course of nature to cause death. His statement that the injuries could be dangerous to life and that death could be caused by the brain injury, does not establish the fact that those injuries were sufficient in the ordinary course of nature to cause death. This is also a lacuna in this case. The prosecution should have proved that injuries Nos. 16, 17 and 18 were sufficient to cause death. All these three injuries were on the head of Nazruddin. According to the prosecution witnesses, only one blow was caused on the head of Nazruddin, by Lallu. The doctor has not stated that all the three injuries, Nos. 16, 17 and 18 could be caused by one blow. So, those three injuries were result of three blows. Then, who gave three blows on the head of Nazruddin, has not been established. Lallu gave only one blow, but which of injuries Nos. 16, 17 and 18 was the result of that blow given by Lallu ? Of which injury, Lallu can be said to be the author, has not been established. It was the duty of the prosecution to have proved this fact. How three injuries were inflicted on the head of Nazruddin and who were their author, was to be proved by the prosecution, which has failed to do so. So, even from the doctor's statement, it is not clear whether injuries Nos. 16, 17 and 18 were sufficient in the ordinary course of nature to cause death. So, the statement of Dr. B.M. Gupta to this effect is of no value. The other doctor who could have given his opinion, was Dr. B.R.L. Srivastava PW 19. But he has not given any definite opinion. Therefore, this aspect also creates suspicion in the prosecution case.
44. In view of our above discussion, we find that it is unfortunate that Nazruddin died on account of some injuries, who was beaten mercilessly, but, unless the prosecution proves its case beyond reasonable doubt, the accused-appellants cannot be convicted of this offence. After scrutinizing the entire evidence on the record, we find that the entire prosecution story has been eoncocted, and all the eye-witnesses in this case have been made out, on whose statement no reliance can be placed. The learned trial court, therefore, has failed to appreciate the evidence on record on its right perspective, and it has erred in finding the accused persons guilty as mentioned by him. We feel no hesitation in saying that the investigation in this case has not been conducted fairly. Therefore, we do not agree with the conclusion arrived at by the learned trial court, and do not find the accused appellants guilty of the charges under Sections 302/149, 147, and 148 IPC. Their convictions as held by the learned Additional Sessions Judge, cannot be maintained.
45. In the result, the appeal is accepted. All the accused-appellants are not found guilty of offences as held by the learned Additional Sessions Judge. They all, are therefore, acquitted of these offences. They are in jail. They be released forthwith, if not required in any other case.