Ram Samujh And Another vs State Of U.P. on 13 April, 2022

[Cites 22, Cited by 1]

Allahabad High Court

Ram Samujh And Another vs State Of U.P. on 13 April, 2022

1. This appeal was presented on behalf of two appellants, namely, Ram Samujh and Rama Kant. The appeal of Rama Kant was abated vide order dated 21.08.2015, therefore, this appeal survives qua appellant no.1 Ram Samujh only.

2. This appeal is against the judgment and order dated 11.10.1983 passed by the third Additional Sessions Judge, Jaunpur in S.T. No.139 of 1981 connected with S.T. No.120 of 1981 whereby, the surviving appellant no.1 Ram Samujh, along with co-accused Rama Kant and Sher Bahadur Singh, has been convicted and sentenced under Sections 148, 302/149 and 307/149 IPC. Sher Bahadur Singh filed a separate Criminal Appeal No.2412 of 1983 which stood abated vide order dated 11.12.2015. This appeal has, therefore, been pressed only on behalf of the appellant no.1 Ram Samujh, who has been convicted and sentenced as above in S.T. No.139 of 1981.

3. We have heard Sri Sageer Ahmad, learned Senior Counsel, assisted by Sri Shashwat Shukla, for the surviving appellant no.1 (Ram Samujh); Ms. Sanyukta Singh, Brief Holder, and Sri J.K. Upadhyay, learned AGA, for the State; and have perused the record.

INTRODUCTORY FACTS

4. On a written report (Ex. Ka-1), dated 01.05.1981, submitted by Achhaibar (PW-1), scribed by Devi Prasad Maurya (not examined), Case Crime No.56 of 1981, at P.S. Meerganj, District Jaunpur was registered at 01.30 hrs on 01.05.1981 of which GD Entry No.4 (Ex. Ka-9) and Chik FIR (Ex. Ka-8) was prepared by Shyam Lal Tiwari (PW-7). The FIR alleges that the informant (PW-1) for getting his wheat threshed had been at the pumping set of Yadunath Yadav (not examined) where Saheb Lal (the deceased), Saheb Lal's relative Rai Sahab (not examined) and Hanuman Prasad (PW-2) were present. At about 12 midnight, eight men armed with country made pistol, gun and bomb arrived, tied PW-2 and fired at Saheb Lal (the deceased). Saheb Lal fell whereas Rai Sahab escaped towards the village. In the meantime, when a second shot was fired at Saheb Lal, the informant intervened and pleaded that if they have to rob/loot they may go to the village but they should not kill. Upon which, those men threatened the informant, as a result, the informant tried to escape. While he was escaping, those men hurled a bomb. On explosion of that bomb, the dried Arhar (lentil) crop kept there caught fire and started burning, which lit the spot. In the light of that fire, the informant could identify three men, namely, Rama Kant Dube (the appellant no.2); Ram Samujh Mishra (appellant no.1); and Sher Bahadur Singh (the appellant in the connected appeal), who had country made pistol, gun and bomb with them. It is alleged that as the area got sufficiently lit, the accused effected their escape towards south west. On their escape, large number of persons gathered at the spot. Saheb Lal died on the spot whereas the informant received injury. After making allegations noticed above and by stating that the body of the deceased has been left at the spot, the FIR was lodged.

5. PW-1 (the informant) was medically examined by PW-5 (Dr. R.S. Shukla) at 3.15 pm on 01.05.1981. The injury report (Ex. Ka-6) notices following injuries:-

(i) Multiple tiny abrasions on back in an area of 30 cm x 30 cm. Black in colour. Soft scab red in color present.

(ii) Lacerated wound 1 cm x 0.5 cm x skin deep on left buttock.

(iii) Traumatic swelling 22 cm x 6 cm on left leg with an abrasion 0.4 cm x 0.4 cm, 8 cm below knee joint.

(iv) Multiple Tiny abrasions in area 18 cm x 8 cm on back of right leg. Firm red scab present.

Injuries are simple. No.1 and 4 is caused by blast injury and no.2 and 3 by blunt object. Duration about half day.

It be noted that the Chitthi Majrubi (letter for examination of the injured, prepared at the police station) on which the medical examination of PW-1 was carried out by PW-5 has not been exhibited. The injury report (Ex. Ka-6) though reflects that it is a police case and the injured was brought by constable Shyam Narain Mishra (not examined) but the case crime number of the case is not mentioned.

6. As per the inquest report (Ex. Ka-10), inquest was completed by 7 am on 01.05.1981 by S.I. T.M. Tiwari (not examined) under supervision of the Investigating Officer (I.O.) Raj Nath Tripathi (PW-8). The inquest report records the name of Bhagelu, Jatashanker, Asha Ram, Devi Prasad and Nirhu as witnesses but none of them have been examined. It be noted that the inquest report does not bear the case crime number though it mentions the name of PW-1 as the person who gave information at the police station at 1.30 hrs. But there appears overwriting on the digit "1" of the time mentioned in the first column of the inquest report. It be also noted that as per the entry in the inquest report, police left to go to the spot at 5 am in the morning. Another feature noticeable is that the inquest report bears no details of the police papers available, or prepared, or annexed with the inquest report, which, in ordinary course, are to be forwarded with a request for autopsy. As per Challan Lash i.e. Form-13 (Ex. Ka-13), the cadaver reached the District Police Headquarters, 50 km away from the spot, at 14.35 hours of which GD Entry No.22 was made at 14.35 hours at the District Police Headquarters. As per endorsement of Dr. R.P. Rastogi (autopsy surgeon) (PW-6) in Ex. Ka-13, the papers in respect of autopsy were received at the concerned hospital at 4.25 p.m. on 01.05.1981, whereas the body was received in the mortuary, in a sealed cloth, at 4.55 pm and the autopsy commenced at 5 pm. Notably, there is overwriting over digit "4" of the time 4.25 p.m. Another important feature noticeable from the record is that there is nothing to show that the Chik FIR or the GD Entry of the FIR was forwarded to the Autopsy Surgeon or was seen or endorsed by the Autopsy Surgeon (PW-6). It be, however, noted that Challan Nash (Ex. Ka-11), Form No. 33 (Letter requesting the surgeon to conduct autopsy) (Ex. Ka-12), sample seal (Ex. Ka-14) bear case details but the letter of the Station Officer requesting for an autopsy (Ex. Ka-15) bears no such details.

7. Autopsy was conducted at 5 pm by Dr. R. P. Rastogi (PW-6). As per the opinion expressed in the Autopsy report (Ex. Ka--7), death could have occurred 3/4th of a day before. The features of the cadaver noticed during autopsy are below;

External examination: Body strong built wheatish complexion. Rigor mortis present upper and lower part of the body. Eyes and mouth closed with greenish discolouration (sic). Abdomen not distended.

Ante-mortem injuries:

(i) Gun shot wound of entry 3 ½ x 3 cm x abdomen cavity deep. Right side of abdomen 9 cm above umbilicus at 9 O'clock position and 16 cm below right nipple. Omentum protruded through wound. Blackening and scrorching and tattooing present around the wound.

(ii) Multiple gun shot wound of exit in an area of 15 cm x 12 cm x size 0.2 cm x 0.2 cm x muscle to abdomen cavity deep on lower part of left side of abdomen and left upper and outer of buttock into size 0.2 cm x 0.2 cm muscle to abdomen cavity deep. Margins everted under injury and left iliac bone fractured.

Internal examination:

Stomach ruptured near duodenal part. Semi digested food present. Small intestine having multiple through and through opening. Large intestine of descending colon lower part ruptured. Blood vessel (sic) greater omentum ruptured at many places.

Opinion:- Death due to shock and haemorrhage as a result of above injury.

8. The investigation of the case was conducted by PW-8 and two separate charge sheets were submitted. Ex. Ka-27 is the charge sheet submitted against Rama Kant and Sher Bahadur, whereas, Ex. Ka-28 is the charge sheet submitted against surviving appellant (Ram Samujh). After taking cognizance on the charge sheet, case was committed to the court of session. Two separate trials were instituted, namely, S.T. No.120 of 1981, which was against co-accused Rama Kant and Sher Bahadur, and S.T. No.139 of 1981, which was against the surviving appellant Ram Samujh. All the three accused were charged for offences punishable under Sections 148, 302 / 149 and 307/ 149 IPC. It be noted that in the memorandum of the charge there was an allegation with regard to formation of an unlawful assembly with five other unknown persons and of commission of murder of Saheb Lal and of making an attempt on the life of Achhaibar (PW-1) by hurling a bomb at him. The accused pleaded not guilty and claimed for a trial.

9. During the course of trial, eight prosecution witnesses were examined, namely, Achhaibar (PW-1- injured eye witness); Hanuman Prasad (PW-2- another eye witness); Kamla Shanker Upadhyay (PW-3- the constable who carried the body of the deceased to the mortuary for autopsy); Kailash Nath (PW-4- brother of the deceased Saheb Lal - who is not an eye witness but examined to prove the motive for the crime); Dr. R.S. Shukla (PW-5- the person who conducted medical examination of PW-1); Dr. R.P. Rastogi (PW-6- autopsy surgeon who conducted postmortem examination of the body of the deceased); Shyam Lal Tiwari (PW-7 - constable who made GD entry of the written report and prepared Chik FIR); and Rajnath Tripathi (PW-8 - the investigating officer who conducted the investigation of the case and submitted charge sheet).

10. After the prosecution evidence was led, the statement of the accused persons were recorded under section 313 CrPC. The trial court convicted and sentenced the appellants as noticed above against which, instant appeal has been filed.

PROSECUTION EVIDENCE

11. Before we proceed to notice the rival submissions, to have a clear understanding of the context in which those submissions have been made, it would be appropriate to notice the testimony of the prosecution witnesses. The testimony of the prosecution witnesses, shorn of unnecessary details, is as follows:-

12. PW-1- Achhaibar. He described the place of occurrence as being near to the pumping set of Yadhunath, located about two furlong (one furlong is equal to 220 yards) away from the village abadi, around which there were fields but no abadi. He states that Yadunath and Raghunath are brothers. Raghunath has two wives, namely, Batasi and Ramdei. Raghunath does not have a son but only one daughter, namely, Chanri. Chanri's son is Rai Saheb. Yadunath has six sons. Three are very young whereas, the other three, Kailash (PW-4), Jayantri and Saheb Lal (the deceased) were adults. In addition to those sons, Yadunath has a daughter named Manju. Manju's Jeth (husband's elder brother) is Hanuman Prasad (PW-2). PW-1 states that at the time of the incident, except for Saheb Lal nobody else of Yadhunath's family was there. Yadunath, Kailash (PW-4) and Jayantri resided in Bombay. The younger sons resided in the village. PW-1 stated that the pumping set of Yadunath runs on electricity and has a thresher attached to it. The thresher machine was used to thresh his (Yadunath's) own as well as crop of other villagers.

In respect of the incident, PW-1 stated that, that night he had taken his crop for threshing to Yadunath's pumping set. He had reached there by about 11 or quarter to 11 pm, as the electricity used to come late in the night. At that time, there was no electricity. There, Saheb Lal (the deceased), Rai Sahab (not examined), Hanuman Prasad (PW-2) and Saheb Lal's mother Ramdei were present. At that spot, three paces away, towards south east of the pumping set, Saheb Lal and Rai Sahab were sleeping in a cot, four paces away towards north of the pumping set, Hanuman Prasad was sleeping in a cot, Ramdei was sleeping near the room, towards west of the pumping set, in her own cot. PW-1 stated that he was sleeping two paces north of the cot of Rai Sahab and Saheb Lal. Then PW-1 clarified that while he was awake, he saw that from west and south, few men, 7-8 in number, with torches on, were coming. When those men came close, PW-1 asked them as to why they have switched on their torches. Those men replied by saying that they had gone to hear folk stories (Birha). By then, Saheb Lal and Rai Sahab woke up. As soon as Saheb Lal stood up, a gun shot was fired at him, as a result of which, he stumbled and fell on a wheat bushel. Thereafter, a second shot was fired. Then, 3-4 men went towards Hanuman Prasad (PW-2) and tied him to the cot. Rai Sahab, however, escaped. PW-1 stated that when the second shot was fired, he ran 50 paces towards north of the pumping set and when he reached near the field of Kedar a bomb was thrown which exploded near dry Arhar (lentil) crop that was set ablaze and splinters of that bomb, struck PW-1 on his leg and back. PW-1 stated that as the Arhar crop started burning, the area got lit, in that light, he could identify Sher Bahadur, Ram Samjuh and Ramakant, the accused put on trial, who ran away. The remaining he could not identify but if they were brought before him, he would be able to identify them. PW-1 stated that Sher Bahadur had a Katta, Ram Samujh had a gun whereas Ramakant was empty handed. PW-1 stated that as Saheb Lal had died, his body was lifted from the wheat bushel, kept on a cot and covered by a cloth. Thereafter, PW-1 got the report scribed and lodged. PW-1 stated that the I.O. had sent him for medical examination to Sadar Hospital, Jaunpur where he was medically examined and had to remain there for eight days.

In his cross-examination, PW-1 admitted that his grand father (Ruchi) had two brothers, namely, Dukhi and Mukkhu. Mukkhu's wife was Ramdei, who is now Raghunath's wife. PW-1 stated that when Ramdei married Raghunath, she was already pregnant with Chanri. He admitted that his brother Bhagelu also has a pumping set, which runs on electricity and where also, there is a thresher. He stated that near that pumping set, they have their holding and that pumping set is about one furlong away from Yadunath's pumping set. In paragraph 11 of his statement, PW-1 admitted that Ram Samujh (the surviving appellant) is a primary school teacher and has a licensed weapon. In paragraph 13 of his statement, when he was shown that in the FIR he had not mentioned that eight persons had arrived with torches in their hand, PW-1 stated that he made a mention of that in his report but if that was not written, he cannot tell the reason. When confronted with an omission in the FIR that those men, on being questioned, had stated that they were coming after hearing folk stories (Birha), PW-1 stated that he cannot tell the reason for that omission. In paragraph 13 of his statement PW-1 stated that till the time he could notice the accused, he thought that those men were dacoits. When he was confronted with his previous statement under Section 161 CrPC to the effect that Ramakant was carrying a bomb, PW-1 stated that he did not make any such statement but if that was written, he cannot give the reason. In paragraph 14 of his statement, on being confronted with an omission in his previous statement that the gunshot was fired from a gun, PW-1 stated that he had disclosed that the shot was fired from a gun but if that was not written, then he cannot given the reason. In paragraph 15 of his statement, he stated as follows:-

"15& pksV yxus ls eSa fxjk ugha FkkA [kM+k gh jgkA eSa Mj ds dkj.k Hkkxk FkkA pksV yxus ds ckn eSa ,d ijx vkxs c<+k vkSj [kM+k gks x;kA eSa vkSj ;nqukFk] lkgscyky ,d gh fcjknjh ds gSA va/ksjs dh otg ls ekjus okys dks eSa ugha igpku ik;k FkkA ;g dguk xyr gS fd jekdkar o jkeleq> ekSds ij ugha FksA ;g Hkh xyr gS fd eSa bu nksuksa dk uke ikVhZcanh] nq'euh vkSj e`rd ds fcjknjh dk gksus ds ukrs ys jgk g¡wA** In paragraph 20 of his statement, he stated as follows:-

"eSa i<+k fy[kk ugha gwA eSa viuk uke fy[k ysrk g¡wA tc xkao ds yksx ?kVukLFky ij vk x;s rc eSa iafiax lsV ij vk;kA nsohizlkn ls fjiksVZ fy[kus ds fy, eSaus dgk vkSj fdlh us ugha dgkA ?kVuk gksus ds 8&10 feuV ds ckn eSaus fjiksVZ fy[kus dks dgkA ;g xyr gS fd fnu gksus ij eSaus fjiksVZ fy[kk;k FkkA eq>s /;ku ugha fd eSaus fjiksVZ esa ;g 'kCn vkt chrh jkr dks fy[kk;k Fkk ;k ughaA ,slh ckr ugha gS fd fjiksVZ Fkkus ij nwljs fnu lqcg lykg e'kojs ds ckn fy[kh xbZA eSa vdsys Fkkus ij ugha x;k FkkA** In paragraphs 22 and 23 of his statement, on being confronted that his son Amarnath was an accused in a case under Section 392 IPC in which Jayantri Lal and Saheb Lal (the deceased) were also accused, and in which Ram Chandra Singh was a witness, PW-1 denied the suggestion that co-accused Sher Bahadur was falsely implicated to pressurise Ram Chandra Singh to not press the case against his son under Section 392 IPC. In paragraph 24 of his statement, he claimed ignorance that Lal Bahadur, relative of Devi Prasad Maurya, scribe of the instant FIR, was an accused with Jayantri in that dacoity case. He also denied the suggestion that there were several cases against Jayantri in which PW-1 was a surety for his bail. He also denied the suggestion that in another case of dacoity, Yadhunath, Jayantri Lal, Saheb Lal and Rai Sahab were accused at the instance of Shyam Lal. In paragraph 27 of his statement he admitted that Arhar crop was at some distance from the spot. In paragraph 28 of his statement, PW-1 stated that Saheb Lal (the deceased) stepped off his cot from the northern side whereas Rai Sahab stepped off the cot from the southern side. The shot was fired from north west. The person who fired shot at Saheb Lal was four paces away from the cot. He stated that the second shot was fired at Saheb Lal immediately when he fell and when the second shot was fired, it hit Saheb Lal on the left side of his abdomen. Immediately thereafter, PW-1 clarified that he did not notice where the first and second shot had hit Saheb Lal. Only when the area was lit, on return, after the accused had left, he noticed the injury. He denied the suggestion that Rai Saheb and Hanuman Prasad were not present at the spot.

13. PW-2 (Hanuman Prasad). He stated that his younger brother Rajendra Prasad is married to Yadunath's daughter Manju and, therefore, has relations with Yadunath and comes there often. In the night of the incident, he came from Mariyahu on a train, alighted at Jarauna Station where he met Rai Rahab and from there, he, along with Rai Sahab, came to village Bhatahar (the place of the incident). He stated that he and Rai Sahab, after having dinner, went to sleep at Yadunath's pumping set. There, he slept on a cot about a pace away, towards west of the water tank, whereas towards south, 7-8 paces away, Rai Sahab and Saheb Lal were sleeping on another cot. At the door of pumping set, Ramdei was sleeping. Ramdei is quite old and has poor eyesight. PW-1 had also arrived there for threshing. At that time, there was no electricity therefore, the thresher machine was not running. PW-2 stated that PW-1 was sleeping about two paces away, towards east, of the cot of Saheb Lal and Rai Sahab. At about 12 midnight, 7-8 men with country made pistol, gun and torches arrived. They started talking to PW-1. On this, PW-2 woke up and sat on the cot. As as he got up, 3 - 4 men came and tied him. He stated that when PW-1 objected to it, they threatened him. When Saheb Lal stood up, he was shot at, as a result whereof, Saheb Lal fell on the wheat bushel. Seeing all of this, Rai Sahab ran away. When Saheb Lal fell, another shot was fired at him. Then, PW-1 ran and was given a chase and a bomb was hurled at him, which fell on the Arhar crop, resulting in a fire lighting the area. PW-2 stated that there were 100-150 bushels of Arhar crop and in the light of that fire, PW-2 noticed Sher Bahadur Singh, Ram Samujh and Ramakant. PW-2 stated that Sher Bahadur had a country made pistol, Ram Samujh held a gun and Ramakant was empty handed. The remaining persons he could not recognise. He stated that Saheb Lal died on account of the injury received by him, whereas PW-1 received blast injuries. He stated he does not know whether the shot was fired from a gun or a country made pistol.

During cross-examination, he stated that he knows the sons of Sher Bahadur but he does not know any person in the family of Ram Samujh and, similarly, he does not know the family of Ramakant. He stated that Yadunath's threshing/ flour machine and the pumping machine are in the same room, which is 10-12 feet wide and long. Towards east of that room, there is a water tank and towards south there is a Khalihan. South west of that room, there is an electricity pole and at a short distance from that pole, Saheb Lal and Rai Sahab were sleeping. In paragraph 10 of his statement, he stated that he had noticed weapons in the hand of the accused even before the area was lit by fire. At this stage, he was confronted with his statement under Section 161 CrPC wherein he had stated that he could recognise the accused in the light of the burning crop and that he had seen Ramakant with a bomb. In response thereto, in paragraph 11 of his statement, he stated that he does not know as to how that was written. He was also confronted with his previous statement under Section 161 CrPC where he had stated that he was sleeping. In response thereto, he stated that he was about to sleep and had just covered his face with a quilt.

He denied the suggestion that at the spot neither he was present nor he witnessed any of the accused and that what he has stated is on account of being a relative of the victim's family. In paragraph 16 of his cross examination, at the instance of Sher Bahadur, he stated that prior to the date of the incident he had never met Rai Sahab and that he never expected that he would meet Rai Sahab. To test him whether he knew about the village Bhatahar, questions were put to which he gave evasive answer in paragraph 17. From which it appeared that he did not know much about the village. On further cross-examination, in paragraph 20, he stated that except for the informant, the witnesses and the accused of this case, he knew one more person of that village who is a Block Pramukh but he does not remember his name.

In his cross-examination on 24.02.1982, he stated that Ramdei was not sleeping near him but if that has been written in his statement under Section 161 CrPC, then he cannot tell the reason. In paragraph 25 of his statement he stated that he had reached Yadunath's pumping set by 6-7 pm or may be 8-9.30 pm but by the time he reached there, it was dark and nothing was visible. Then, he stated that if it was totally dark, how could he have reached there. He stated that while they were lying there and talking to each other and were on the verge of sleep, PW-1 arrived there, but he had no talk with PW-1. PW-1 had arrived by about 11 pm. He stated that to cover themselves in the morning, they had quilts but they had not covered themselves with quilts at that time. He clarified his earlier statement that he had covered his face with quilt by stating that that statement is incorrect. The correct fact is that the quilt was kept below his head. In paragraph 28 of his statement, he stated that when he woke up and sat on his cot, initially, he thought that dacoits have come. He noticed them first, when they came to tie him. PW-2 stated that they tied him with a rope, which was lying near the well of Yadunath. On a specific question as to how much time it took them to tie him, PW-2 stated that it must have taken them 2-3 minutes and during that period gunshot was fired and when Ram Achhaibar (PW-1) ran, he was chased and a bomb was hurled at him. He further clarified that the statement which he made on the other day that 3-4 men had tied him is not correct but, in fact, the correct statement is that 3-4 men were tying him. At this stage, PW-2 was confronted with his statement under Section 161 CrPC where he had stated that some people had tied him with a cot to which he responded that he does not know the reason for recording the statement in that manner. He stated throughout the incident, 2-3 persons were standing next to him. In paragraph 31 of his statement, he stated that when the accused gave a chase to PW-1, he got opportunity to untie and get off the cot as the accused were giving a chase to Ram Achhaibar (PW-1). He stated that all the accused had given a chase to Ram Achhaibar. In paragraph 31, he stated that the accused chased Ram Achhaibar upto a distance of 50-60 paces. In paragraph 33, he stated that by the time Daroga Ji had arrived, most of the Arhar crop had burnt though some were burning. In paragraph 35 he stated that Rai Sahab was first to run away, thereafter, Ram Achhaibar (PW-1) ran. PW-2 stated that when he was being tied he heard gunshots. He stated that though he heard two gun shots but he did not notice the firing of gunshot and the causing of injury by the gunshot. He stated that when Rai Sahab was escaping, the miscreants were flashing torch light on him and in that light, he saw Rai Sahab running away. When the accused escaped, he noticed that Saheb Lal was dead. He stated that Saheb Lal was wearing an underwear and a vest. He denied the suggestion that he was not present at the place and time of occurrence and is telling lies because of being a relative of victim's family.

14. PW-3 Kamla Shanker Upadhyay. He was the constable who carried the body of the deceased for autopsy. He stated that he received a sealed body for autopsy. He delivered the body in a sealed condition along with papers to the autopsy surgeon.

In his cross-examination, though he stated that the body was delivered to him at 8 am in the morning but he could not remember as to when he left the police station. However, he delivered the body at the mortuary at 4.55 p.m. He stated that he carried the body in a jeep. He also stated that in ordinary course it would take only two hours to cover that distance in a jeep. He denied the suggestion that he started his journey at 3 pm.

15. PW-4 Kailash Nath. He is the brother of Saheb Lal (the deceased). He stated that the date on which Saheb Lal was killed, he was not there in the village but was at Bombay. He stated that Sukhdeyi was widow of one Yadav. Prior to the incident, Sukhdeyi had executed a sale deed in favour of Ramakant Dubey (accused). But, alleging that that sale deed was executed by an imposter, Sukhdeyi had instituted a suit for cancellation of the sale deed, which was decreed ex-parte on 09.04.1981. The certified copy of the plaint of that suit was marked as Ex. Ka-2 and the decree passed therein was marked as Ex. Ka-3. PW-4 stated that Sukhdeyi had also instituted proceedings before the Settlement Officer of Consolidation in that regard and to prosecute those proceedings, she had appointed Saheb Lal (the deceased) as her attorney. The power of attorney was exhibited as Ex. Ka-4. PW-4 stated that his family and family of Sher Bahadur were in litigation which was pending as a revision, copy of which was marked as Ex. Ka-5. In paragraph 4 of his statement, PW-4 stated that Ram Samujh's brother, Ramdeo Mishra, is a teacher in an institution whose manager is Jokhan Singh i.e. father of Sher Bahadur Singh. In that institution, there is a Primary Pathshala in which Ram Samujh (surviving appellant) is a teacher and because of that relationship, Sher Bahadur Singh and Ram Samujh have close association with each other. He stated that Saheb Lal stays at home and looks after agricultural operations as well as pending cases.

In his cross-examination, he stated that he had been staying in Bombay since he was aged 8 years and that he visits the village once in a year and stays there for a month or two. He stated that six days after his brother's murder, he visited the village. He also stated that when Ramakant obtained a sale deed of the land of Sukhdeyi, he was not present in the village and he was also not in the village when Sukhdeyi instituted the suit. Only 8-9 days after the murder, he came to know about the sale deed and the suit. He stated that Sukhdeyi is alive and has two daughters, who are married. In paragraph 7 of his statement, he clarified that the proceedings in connection with which Sukhdeyi executed power of attorney in favour Saheb Lal were still pending and after the death of Saheb Lal those proceedings were being looked after by her son-in-law, namely, Ram Bali and Ram Kishore. He stated that the suit instituted by Sukhdeyi was decreed ex-parte when Ramakant was in jail. He also stated that Sukhdeyi was in possession of that property. On being questioned whether PW-4 had enquired as to whether Ramakant had put in appearance in those proceedings, he feigned ignorance. He also denied the suggestion that the power of attorney was created after the death of Saheb Lal to add colour to the case.

In paragraph 14 of his statement, he stated that Ramdei's first husband was Mukkhu. He stated that he is not aware that Achhaibar (PW-1) is grand son of Mukkhu. He, however, admitted that Achhaibar (PW-1) is of the same Khandan. He denied the suggestion that because they had grabbed the property of Ramdeyi, there were many enemies of Saheb Lal. He also denied the suggestion that Saheb Lal was accused in multiple criminal cases. He claimed ignorance that Ram Samujh is a teacher in an institution which is not in the village.

16. PW-5 Dr. R.S. Shukla. - The doctor who medically examined PW-1 for his injuries. He proved injury report (Ex. Ka-6). He stated that he examined PW-1 at 3.15 pm on 01.05.1981. He proved the injuries mentioned in the injury report of which details have already been given above. He stated that all the injuries were simple. Injuries 1 and 4 could be from a blast, whereas injuries 2 and 3 could be from hard object. He stated that the injuries were about half a day old and could have been sustained round about midnight of 30.04.1981.

In his cross-examination, he stated that the injuries 2 and 3 could not have been caused on account of a fall but they could be from a lathi or a hard object. He also stated that it is possible that if someone is clothed and bomb particles hit the body, then injury of the nature described as injury no.2 could be caused.

17. PW-6 Dr. R.P. Rastogi, the autopsy surgeon. He proved the autopsy report, which was marked Ex. Ka-7. He stated that he recovered 20 metallic pellets from the body. He accepted the possibility of death having occurred around midnight of 30.04.1981.

In his cross-examination, he stated that he received police papers at 4.25 pm and he conducted the postmortem at 5 pm. He stated that in all the papers that he received, he had put his signature. He stated that at the time when he received the police papers, there was no copy of the FIR with it. He stated that he never received any copy of the FIR. In paragraph 8 of his cross examination, he stated that the injury no.1 is an entry wound, the margin of which is injury no.2 and the same would be possible if someone standing on the right side, near the head, fires a gunshot at the victim while the victim is lying on a cot. In paragraph 9 he categorically stated that both injuries found on the body of the deceased was from a single shot.

18. PW-7 Shyam Lal Tiwari, the constable who prepared Chik FIR and the GD entry of the report. He proved making of the Chik FIR (Ex. Ka-8) and the GD entry (Ex. Ka-9) of the report at its purported time and date.

In his cross-examination, he was confronted with the carbon copy of the Chik prepared of Case Crime No.63 of 1980, under Sections 395/397 IPC. He admitted that that case was registered by Sher Bahadur Singh against Jayantri. This paper was marked Ex. Kha-1. He was also confronted with carbon copy of the Chik prepared in connection with Case Crime No.136 of 1980, under Section 392 IPC, in which the informant was Shyam Lal Maurya and the accused were Jayantri, Saheb Lal, etc. This Chik copy was exhibited as Ex. Kha -2. In paragraph 5, he denied the suggestion that the report of this case was written at the police station in the presence of the I.O. and him. He also denied the suggestion that the deceased was brought on a cot to the police station and that cot was given to Kailash Nath after few days. In paragraph 6, he denied the suggestion that the first information report was lodged on 02.05.1981 after obtaining the autopsy report. He also denied the suggestion that the general diary of the police station was kept vacant to fill up details of this case. He admitted that except for making the Chik report and the GD entry of the written report, he has not prepared any other paper of this case.

19. PW-8 Rajnath Tripathi - Investigating Officer. He stated that after registration of the case, he took over investigation. At 4 am, he arrived at the spot. On account of darkness, he could not hold inquest proceedings till sun rise. He enquired from the witnesses, namely, Rai Sahab, Hanuman Prasad and Ramdei, who were present at the spot. At sun rise, he inspected the body and the spot and the inquest proceedings, under his direction, were conducted by S.I. T.M. Tiwari. He proved the signature of T.M. Tiwari on the inquest report (Ex. Ka-10) and photo-nash (Ex. Ka-11). He stated that the body was sealed on the spot and was sent for autopsy by handing it over to constable Premnath and constable Kamla Shanker Upadhyay (PW-3) along with documents which were exhibited as Ex. Ka-12, Ka-13 and 14. He stated that he prepared site plan (Ex Ka-16) on the basis of spot inspection. He stated that he lifted a portion of the bloodstained wheat bushel where the deceased Saheb Lal allegedly fell after being hit by gun shot. He proved the recovery memo which was marked Ex. Ka-17. That part of wheat bushel was also produced, which was marked material Ex.-1. He also proved recovery of ash of burnt Arhar which was marked as Ex. Ka-18 and the burnt ash was produced which was marked material Ex.-2. He proved recovery of particles of bomb and one empty cartridge K.F. Special (12 bore) of which the seizure memo was exhibited as Ex. Ka-19. The articles seized were produced and were marked as material Ex.-3 and 4. He proved recovery of the bed spread over which the body was laid. Seizure memo of which was exhibited as Ex. Ka-20. The bed spread was produced as material Ex. 5. He stated that after recording the statement of the inquest witnesses, he made efforts to arrest the accused and he arrested Ramakant Dubey near Janghai. PW-8 stated that on 02.05.1982, he received the medical examination paper of Ram Achhaibar as also the clothes, etc worn by the deceased at the time when he was killed including the pellets recovered from his body. The clothes and pellets were produced as material Ex. 6 and 7, respectively. He stated that he conducted search operations of the house of accused Sher Bahadur and Ram Samujh but nothing incriminating could be recovered. He proved the search memos of the two houses which were marked Ex. Ka.-21 and Ka.-22, respectively. He stated that, thereafter, he was transferred from the police station concerned and the investigation of that case was taken over by Gyan Prakash Mishra, thereafter, by Ram Chandra Yadav and, thereafter, by Ram Nagina Singh (each one of them not examined). He also stated that during investigation accused Sher Bahadur Singh had surrendered in court, whereas proceedings under Sections 82/83 CrPC had to be drawn against the accused Ram Samujh and coercive steps were also taken to secure his arrest. He proved the various steps taken by Ram Chandra Yadav to arrest Ram Samujh, which were marked as Ex. Ka.-23 to Ka-26. He also proved submission of charge sheet against Ramakant and Sher Bahadur by investigating officer Gyan Prakash Mishra by identifying his signature, which was exhibited as Ex. Ka-27. He also proved the submission of charge sheet in abscondence against Ram Samujh by I.O. Ram Chandra Yadav, which was exhibited as Ex. Ka-28.

In his cross-examination, he stated that at the time of lodging the report two other men had also come with the injured (i.e. informant) but he was not aware as to how many others were standing outside. He denied the suggestion that when the report was submitted the night had passed and it was dawn. On being confronted with the statement in the report "vkt chrh jkr", he stated that when he received the report, the night had not passed. He stated he is aware that term "chrh jkr" refers to the night that had passed. Suggestion was put to him that the contents of the FIR suggested that it was scribed at the police station and, therefore, there could have been a correction in the words used in the FIR. To this suggestion, PW-8 responded by saying that he has no right to change the contents of a written report. He stated that when he left the police station, it was dark. He had left the police station with panchayatnama register, forms concerning it and case diary and no other paper. He stated that from the police station the distance of Bankat Gaon is a kilometer and a half and from Bankat, Bhatahar is about another kilometer. In respect of Asha Ram, the witness to the inquest, being a resident of Bankat or Bhatahar, he could not tell as to of which village he was a resident. He also denied the suggestion that Asha Ram had been visiting the police station regularly. He denied the suggestion that Asha Ram had arrived at the spot with the police. He stated that when he arrived at the spot, lantern was lit but he did not notice any other source of light. He stated that whatever he had written there, was in the light of lantern or dibbi (kerosene lamp). He stated that the burnt ash was found 30 yards away, towards north, of the pumping set. He stated that he could not ascertain the quantity of ash. He did not notice any wood piece. He stated that there must be around 10-15 bushels of un-burnt Arhar but he did not mention that in any of his papers. He stated that the owner of that Arhar, namely, Kedar, had met him but he had not disclosed about the loss which he had suffered, therefore, there was no specific inquiry in that regard. He admitted that in such matters where crop is burnt, then Section 435 IPC can be put as a charge. He stated that since he was investigating a murder case, he did not investigate into that aspect. He stated that when he arrived at the spot, he found the body on a cot and not on the ground. He stated that there was no blood on the cot and therefore the cot was not seized. He stated that he also did not notice whether the cot was big enough to accommodate two men. He denied the suggestion that because the cot was not big enough to accommodate two men, he deliberately did not seize the same. He denied the suggestion that the cot had been taken to the police and was brought back later. He stated that except for submitting the charge sheet, the entire exercise of that case was conducted by him.

PW-8 described the pumping station by stating that there were two rooms there, both had common exit.

In respect of site plan, PW-8 stated that if one had slept at ''B' spot, he would not be able to see 'T' spot though he may be able to see 'A' spot. He stated that at spot 'B' he was not shown any rope with which Hanuman Prasad was tied. He stated that no such rope was taken by him into custody, though, during investigation, he was told that Hanuman Prasad was tied on a cot but that may not have been mentioned in the case diary. He stated that about 150 yards towards south there is Harijan abadi as well as abadi of Lohar community but he did not enquire from them in respect of the incident. In paragraph 31, he stated that during investigation he could not find report of any incident that might have occurred in last six months between accused Sher Bahadur and the deceased or his family, generating ill-will between them. In paragraph 32 of his statement, he stated that he is not aware as to when the first parcha of the case was received in the office of Superintendent of Police. He stated that in the first parcha of the case, there is no date mentioned below the signature of the Circle Officer. Then, he stated that in the first parcha the receiving at the S.P. office is dated 2.6.81 and the second parcha also recites 2.6.81. Third and fourth parcha also recite date of receiving at S.P. office as 2.6.81, whereas, the fifth parcha recites the date 16.6.81. He denied the suggestion that he filled parcha nos.1, 2, 3 and 4 on 01.06.1981 and produced it in the S.P. office on 02.06.1981. He stated that on 02.05.1981, he received the postmortem report and then he came to know that there were two gun shot injuries. He denied the suggestion that after getting the result of post mortem, the report was got prepared at the police station. He stated that he does not know as to how the body was taken from the village. He stated that in the site plan which he prepared he did not show the wheat bushel that was brought by Achhaibar for threshing at the spot. He also stated that Achhaibar (PW-1) did not disclose to him that in the village electricity comes in the night and that eight men with torches had arrived and that Ramakant was empty handed and that the gun shot was fired from a gun. In respect of the statement made by Hanuman Prasad, during investigation, he admitted that during investigation Hanuman Prasad had stated that there was no electricity and that he had fallen asleep. He stated that Hanuman Prasad had not stated that he was on the verge of sleeping and had only covered his face with quilt. PW-8 also stated that Hanuman Prasad stated that Ramdei was sleeping in front of the pumping set. He stated that Hanuman Prasad had also stated that few men had come and had tied him. In paragraph 38 of his statement, PW-8 stated that Sher Bahadur Singh is a man of status, having tractor and holdings. He denied the suggestion that the GD was kept vacant at the police station and the accused were implicated falsely.

20. The incriminating circumstances appearing in the prosecution evidence were put to the accused-appellant. They denied the incriminating circumstances and claimed that they have been falsely implicated out of enmity. It was also stated that the informant and the prosecution witnesses of fact were close associates of each other and were telling lies. What is important to notice here is that an important circumstance relating to adoption of coercive processes to apprehend the surviving accused-appellant because of his alleged abscondence, as it appeared in the testimony of PW-8, was not put to the surviving appellant Ram Samujh while recording his statement under section 313 CrPC.

TRIAL COURT FINDINGS

21. The trial court found the occurrence duly proved by ocular account as well as material collected during investigation; and that PW-1, who was an injured witness and with whom the accused persons had no proven enmity, appeared wholly reliable. Accordingly, it convicted the accused appellants.

SUBMISSIONS ON BEHALF OF THE SURVIVING APPELLANT

22. The learned counsel for the appellant submitted that the deceased was a criminal and there were criminal cases of serious offences registered against him as is clear from Ex. Kha-1 and Ex. Kha-2. The motive for the crime set out against the accused is that Sukhdevi had instituted a suit to cancel sale deed against Rama Kant (non-surviving appellant) and to pursue the suit, the deceased Saheb Lal was given a power of attorney. It is submitted that this motive by itself is flimsy because how can a civil proceeding terminate by killing of an attorney. Sher Bahadur (non-surviving accused) was implicated because he had lodged a case against Jayantri (brother of the deceased), Saheb Lal (deceased) and others under section 395/ 397 IPC; whereas, Ram Samujh (surviving appellant) was implicated because he was a teacher in an institution of which, Sher Bahadur's father, Jokhan Singh was a manager. Thus, there was a strong reason to settle a score by utilising a night incident, where none could be noticed, to implicate persons with whom the victim party had enmity whereas, there was no strong reason for the accused, who were of different families, to join hand with each other as to form an unlawful assembly and participate in the crime.

23. It is submitted that as the identity of the miscreants could not be fixed, due to darkness, by guess-work, may be suspicion or ill-motive, three accused, out of eight suspects, were named by lodging an ante-timed FIR. To demonstrate that the FIR was ante-timed, following circumstances were highlighted:-

(i) The written report lodged at 1.30 am, in respect of an incident that allegedly occurred at about midnight, opens with the words "vkt chrh jkr" which suggests that it was lodged after dawn. Being a written report, it is expected for the scribe to be careful for the choice of words used therefore, when a phrase like "vkt chrh jkr" is used it means that the report is scribed after dawn and not on or about midnight.

(ii) From the statement of PW-8 it is clear that when he left the police station to go to the spot he did not carry with him copy of Chik Report and GD Entry of its registration. Further, the inquest report though mentions the name of the person from whom information with regard to death of the deceased was received but it does not bear the case details, which means that by the time the inquest report was prepared, the FIR had not come into existence. This is corroborated by the circumstance that neither the FIR copy nor GD Entry copy are entered in the inquest report as documents accompanying inquest report to conduct autopsy.

(iii) From the challan lash (Ex. Ka-13) it appears the body reached the police headquarters, 50 kilometer away from the spot, at 14.35 hours, when, as per the statement of PW-3, the body was handed over to him at 8 am. Importantly, PW-3 stated that the distance which he covered should have been covered in two hours. According to PW-3, the body was taken in a jeep. If he had taken the body at 8 am in the morning, the body would have reached district police head quarters by 10 am or so but here it took them six hours 35 minutes. That apart, as per entry in Ex. Ka-13, the police papers were received by autopsy surgeon at 4.25 pm whereas body was received at 4.55 pm and, most interestingly, according to the doctor (PW-6) he did not receive copy of the FIR. All of this would suggest that the FIR was not lodged by then. It is therefore clearly proved that the FIR is ante-timed.

(iv) Another circumstance which is clinching on this issue is that the CD parcha nos.1, 2, 3 and 4 were all received in the office of Superintendent of Police on 02.06.1981 which is suggestive of the fact that there was no prompt reporting of the case to the supervising authority inasmuch as the police papers were being prepared at leisure. The very fact that the investigating officer was changed thrice would also suggest that the investigation was being carried out with ulterior motive and, therefore, not only the FIR was ante-timed but evidence was fabricated.

24. In respect of reliability of the ocular account of PW-1, it was submitted that PW-1 might have received injuries but all his injuries are on his back and leg while he was running. Admittedly, he neither recognised the person who fired at the deceased nor noticed the surviving appellant hurling a bomb at him. When the bomb was thrown and the gunshots were fired there was total darkness. What is important is that through Ramdei (second wife of Raghunath, who is brother of Yadunath i.e. father of the deceased Saheb Lal) PW-1 is related to the deceased. PW-1 admitted that he belongs to the same Khandaan. Thus, he is a partisan witness and interested in the prosecution of the accused for the reasons noticed above. Further, he improves upon the FIR to introduce torch flashes at the scene of occurrence when, otherwise, the FIR is silent in that regard. Not only that he also improves upon the FIR by specifying that the fire arm injury received by the deceased was from a shot fired from a gun and not from a country made pistol. Further, the ocular account is in respect of two gun shots fired upon the deceased whereas the autopsy report suggests that it is a case of single gun shot. Moreover, according to the doctor, the gun shot injury suggested that the shot was fired at the deceased whilst the deceased was lying and the shot was fired by a person who would have been standing on the right side of the head of the deceased. The ocular account does not match with this medical evidence. Moreover, according to ocular evidence two shots were fired. First, when the deceased stood up from the cot and was in a standing position and when, after the first shot, the injured (the deceased Saheb Lal) fell on the wheat bushel, the second shot was fired which struck him on right side abdomen. This account being at variance with autopsy report clearly suggests that nothing was witnessed except that unknown assailants came and fired and threw bomb for whatever reason it might be.

25. In respect of reliability of PW-2, it is submitted that he is also a partisan witness being elder brother of the son in law of the victim's family and, importantly, is a chance witness who arrived that very day. Further, his statement that he was tied on a cot is not corroborated by seizure of any chord and who tied him is not disclosed by him. Importantly, from the site plan, it appears, he was lying on a cot at the other side of the pumping set room and from there he could not have noticed the assailants. Otherwise also, he speaks of two gun shots fired at the deceased which is in conflict with medical evidence.

26. That the I.O. made no effort to connect the empty 12 bore cartridge recovered from the spot with the licensed gun of the surviving appellant Ram Samujh; and the best evidence, namely, Rai Sahab, who was sleeping with the deceased in the same cot, has been withheld.

27. Lastly, it was submitted that all the accused have been prosecuted with the aid of Section 149 IPC. Though, it is alleged that there were eight persons but neither their identity has been confirmed nor it has been established beyond reasonable doubt that they shared a common object and constituted an unlawful assembly. It is submitted that as per the prosecution testimony those eight persons did not immediately launch an attack. Rather, as per ocular account, they entered into some kind of talks and, thereafter, fired a shot at the deceased. Who fired the shot is not disclosed and there is no statement that there was an exhortation to finish off the victim or to fire shots for any particular purpose. Under the circumstances, till the first shot was fired, there was no unlawful assembly. Otherwise also, according to the prosecution evidence those eight men were returning from a program (Birha - recital of folk stories). Under these circumstances even if those persons were allegedly carrying guns that, by itself, would not be sufficient to assume that they formed an unlawful assembly as the weapon could be for their own protection in the night. Further, after the shot was fired, it is not the case that all eight were moving together. Rather, the evidence is in respect of 3-4 persons tying PW-2 and of giving a chase to PW-1. Consequently, there was hardly any evidence to indicate that 5 or more persons formed an unlawful assembly with a common object. Hence, in any view of the matter, conviction with the aid of Section 149 IPC is not at all justified. It has thus been prayed that the judgment and order of the trial court which fails to take into consideration all these relevant aspects be set aside and the accused-appellant Ram Samujh (the only surviving appellant) be acquitted.

SUBMISSIONS ON BEHALF OF THE STATE

28. Per Contra, on behalf of the State it was argued that though there might be enmity between the parties but that by itself is not a ground to doubt the prosecution case more so, because the prosecution case is based on direct evidence. It has been submitted that it is proved on record that there were eight men, who were armed, and they had arrived together and had opened fire at the pumping station of Yadunath, at about midnight, killing one and injuring another by hurling a bomb. Therefore, it can easily be inferred that they were part of an unlawful assembly. Moreover, when they arrive as a group, variously armed with deadly weapons, the members of that unlawful assembly could be imputed knowledge that any such offence as has been committed was likely to occur in prosecution of that object. It was submitted that PW-4 has also proved the motive for the crime and even assuming that the prosecution evidence is not specific in respect of who inflicted gun shot injury but as it is specific that the three accused, who have been put on trial, were part of that unlawful assembly comprising of eight men, the conviction of the accused appellant with the aid of section 149 IPC is justified. In respect of the FIR being ante-timed, learned AGA pointed out that non mention of case crime number in inquest report is not a clinching circumstance to assume that the FIR was ante-timed because there is no column in the form to mention those details. Moreover, the inquest report did disclose the name of the informant and the time at which the information was given. Hence, on that ground, the first information report cannot be said to be ante-timed. Further, a misstatement in the FIR with respect to "vkt chrh jkr" may be on account of change of date, post midnight, when the report was lodged therefore, it has no bearing on the issue. In respect of the delay in taking the body for autopsy, the learned AGA pointed out that the said delay by itself is not indicative that the FIR was not in existence because there may be various reasons for the delay. In respect of not forwarding copy of FIR and GD Entry thereof, the learned AGA submitted that it is a matter of practice but not a requirement of law to forward copy of the FIR to the autopsy surgeon therefore, on this ground it cannot be assumed that the FIR was ante-timed. He, therefore, submits that this is a case where prompt report was lodged.

29. In respect of the ocular account being in conflict with medical evidence, the learned AGA submitted that the witnesses though spoke about two gun shots but whether the two shots hit or only one shot hit the deceased was not possible to notice in the darkness of night therefore, the prosecution story cannot be discarded merely on that ground. Hence, there is no such discrepancy between the ocular account and the medical evidence as to render the ocular account completely unacceptable.

30. In respect of the source of light, learned AGA submitted that that the source of light were torches and the fire light generated on burning of Arhar crop which is confirmed by recovery of ash from the spot. It has thus been submitted that as the prosecution story flows from an injured witness whose presence cannot be doubted, there is a ring of truth about it and is fully supported by medical evidence as well as material collected during investigation therefore, the conviction recorded by the trial court calls for no interference.

ANALYSIS

31. Having noticed the rival submissions and the entire prosecution evidence, before proceeding further, it would be apposite to observe that the instant case is a case where the occurrence is of midnight. Admittedly, there was no electric power supply when the incident occurred and it is not the prosecution case that there were lanterns lit or there existed any other source of light except the flash of torches brought by those eight men (i.e. the accused) and the light of fire, which came, later, after the gunshots were fired and bombs were hurled, due to burning of Arhar crop. In this background, out of those eight men, naming only three, who, though, have enmity with the informant side for different reasons but are not of the same family or group as to associate with each other, particularly, in that darkness of night, being men of stature with property and one of them (i.e. the surviving appellant) a teacher, leaves us to ponder whether it is a case where the informant party has exploited the situation of an occurrence to outwit its opponents. No doubt, motives do not have much significance where the prosecution case is based on ocular account but where the circumstances are such that due to darkness of night it might be difficult to identify a person whereas, strangely, the witnesses identify only those with whom they have enmity, by itself, is a reason for us to be circumspect while evaluating the prosecution testimony.

32. In addition to above, we would be dealing with a case where the witnesses are of the same family which had been in litigation with the accused side except the surviving appellant Ram Samujh. Therefore, it is a case where we have to deal with testimony of an interested witness/partisan witness. In that context, before we proceed to weigh the testimony of the prosecution witnesses, it would be apposite to notice few decisions as to how an interested witness testimony is to be evaluated. It is well settled that where the prosecution story finds support from interested or highly inimical witnesses, a degree of caution is required. In Hari Obula Reddy v. State of A.P., (1981) 3 SCC 675, a three-judge Bench of the Supreme Court, with regard to the nature of caution required while assessing the testimony of an interested witness, in paragraph 13 of the judgment, observed as follows:

".............. it is well settled that interested evidence is not necessarily unreliable evidence. Even partisanship by itself is not a valid ground for discrediting or rejecting sworn testimony. Nor can it be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon. Although in the matter of appreciation of evidence, no hard and fast rule can be laid down, yet, in most cases, in evaluating the evidence of an interested or even a partisan witness, it is useful as a first step to focus attention on the question, whether the presence of the witness at the scene of the crime at the material time was probable. If so, whether the substratum of the story narrated by the witness, being consistent with the other evidence on record, the natural course of human events, the surrounding circumstances and inherent probabilities of the case, is such which will carry conviction with a prudent person. If the answer to these questions be in the affirmative, and the evidence of the witness appears to the court to be almost flawless, and free from suspicion, it may accept it, without seeking corroboration from any other source. Since perfection in this imperfect world is seldom to be found, and the evidence of a witness, more so of an interested witness, is generally fringed with embellishment and exaggerations, however true in the main, the court may look for some assurance, the nature and extent of which will vary according to the circumstances of the particular case, from independent evidence, circumstantial or direct, before finding the accused guilty on the basis of his interested testimony. We may again emphasise that these are only broad guidelines which may often be useful in assessing interested testimony, and are not iron-cased rules uniformly applicable in all situations."

Emphasis Supplied

33. In Jalpat Rai v. State of Haryana, (2011) 14 SCC 208, after reiterating the general principles as noticed above, in paragraph 42 of the judgment, the Supreme Court cautioned the courts of the stark reality that where there is rivalry, hostility and enmity there is a tendency to over implicate and distort the true version against the person(s) with whom there is rivalry, hostility and enmity. In that context, it was observed as follows:

"42.......................... But it is a reality of life, albeit unfortunate and sad, that human failing tends to exaggerate, over implicate and distort the true version against the person(s) with whom there is rivalry, hostility and enmity. Cases are not unknown where an entire family is roped in due to enmity and simmering feelings although one or only few members of that family may be involved in the crime.

Prior to that, in paragraph 41 of the judgment, in respect of the mode to be adopted by the court while assessing the worth of an interested witness' testimony, the Supreme Court observed:

"41................To find out the intrinsic worth of these witnesses, it is appropriate to test their trustworthiness and credibility in light of the collateral and surrounding circumstances as well as the probabilities and in conjunction with all other facts brought out on record."

34. In Lakshman Prasad V. State of Bihar, 1981 (Supp) SCC 22, in paragraph 3, the Supreme Court had observed that mere congruity and consistency are not the sole test of truth. It was also observed there that sometimes even falsehood is given an adroit appearance of truth, so that truth disappears and falsehood comes on the surface.

35. The law is thus clear that though testimony of an interested witness can alone form the basis of conviction but before its acceptance the court must satisfy itself whether it is free from suspicion, embellishment and exaggeration and whether the substratum of the story narrated by the witness is consistent with the other evidence on record, the natural course of human events, the surrounding circumstances and inherent probabilities of the case and is such, which will carry conviction with a prudent person.

36. Having noticed the law in respect of the caution to be exercised while assessing an interested witness' testimony, we shall now notice few decisions with regard to the relevance of motive. In Alagupandi v. State of T.N., (2012) 10 SCC 451 (see para 29) it was observed that though existence of a motive for committing a crime is not an absolute requirement of law but is a relevant factor which is to be taken into consideration by the courts for assistance in analysing the prosecution evidence and determining the guilt of the accused. In Badam Singh v. State of M.P., (2003) 12 SCC 792, the apex court, upon finding that the prosecution evidence was suspect and the deceased was a history sheeter and, therefore, could have had multiple enemies, whereas the prosecution had failed to prove motive against the accused put on trial, while giving benefit of doubt to the accused, in para 20 of the judgment, as reported, observed: "....Even though the existence of motive loses significance when there is reliable ocular testimony, in a case where the ocular testimony appears to be suspect the existence or absence of motive acquires some significance regarding the probability of the prosecution case." Thus, what is clear is that although absence of strong motive may not be fatal to the prosecution case based on ocular evidence but where there is an occasion to suspect the prosecution testimony, motive acquires importance to test the probability of the prosecution case.

37. In the instant case, the motive for the crime is set out in the testimony of PW-4 who is not an eyewitness of the incident. According to him there is a land dispute between Sukhdeyi and Ramakant (non-surviving appellant). Sukhdeyi had executed a power of attorney in favour of Saheb Lal (the deceased) to prosecute her case in respect of cancellation of a sale deed set up by Ramakant as also to contest proceedings before the Settlement Officer of Consolidation in respect of grant of permission for such sale. Thus the motive set out against Ramakant is a civil dispute. As against Sher Bahadur there is a twin motive, one which is set out by the prosecution in the testimony of PW-4 and the other which has been suggested by the defence as a reason for his false implication. The motive set up by the prosecution against Sher Bahadur is a pending civil dispute between Yadunath (father of the deceased) and Satyendra Pratap (son of Sher Bahadur Singh) of which details have come in Ex. Ka-5. Whereas, according to the defence, the reason for false implication of Sher Bahadur is that he had lodged a case against Saheb Lal (the deceased) and Jayantri (brother of Saheb Lal), under sections 395/ 397 IPC, which was demonstrated on record through Ex. Kha-1 proved by PW-7. In so far as Ram Samujh (the surviving appellant) is concerned, the motive as against him is flimsy, which is, that Ram Samujh is a teacher in an institution whose manager, namely, Jokhan Singh, is the father of Sher Bahadur Singh. What is notable here is that though some motive has been attributed against all the accused but there is no indication as to why those three would join hand to launch an attack on Saheb Lal. This does affect the probability of the prosecution case and puts us on guard to carefully scrutinise the prosecution evidence to rule out the possibility of the informant party taking advantage of the situation to settle its score against three differently placed persons at one go. At this stage, we may notice that though there is no direct motive set out against the surviving appellant Ram Samujh for committing the crime but, it has come in the evidence (vide paragraph 11 of PW-1's statement) that Ram Samujh held a licensed gun, therefore, the presence of licensed firearm with him might have been a reason for his implication, either because of strong suspicion or to make him ineffective. But, what is important is that this firearm has not been forensically connected with the crime even though an empty cartridge is stated to have been recovered.

38. At this stage, we may notice that, though, the trial court considered Achhaibar (PW-1) as an independent witness but, on a close scrutiny of the prosecution evidence, it transpires that he is related to Ramdei (i.e. second wife of Raghunath i.e. uncle of Saheb Lal) and, therefore, falls in the same Khandaan to which the victim party belongs. In so far as PW-2 Hanuman Prasad is concerned, he is deceased's sister's Jeth (elder brother in law) therefore, he too, cannot be considered an independent witness. Moreover, PW-2 appears to be a chance witness who belongs to another place and had allegedly arrived that very day by train in the night. He states that he met Rai Sahab, whom he had never met before, at the station and had come with him to the place of occurrence. As we have noticed the background facts, the eyewitnesses do fall in the category of partisan witnesses and, therefore, their testimony would have to be put to stringent tests before acceptance to record conviction.

39. No doubt, PW-1 is a person injured in the incident therefore, his presence at some stage of the incident cannot be doubted. But whether he had been present at the place of occurrence from the very beginning or arrived later or whether the incident occurred in the manner alleged are all issues which will have to be examined to ascertain whether the prosecution has been able to bring home the charge against the accused appellant beyond reasonable doubt. Notably, this is a case which occurred at midnight and at a place where, admittedly, there was no electricity at the time of occurrence and no source of light except the flash of torches, allegedly brought by the accused, and the light generated by fire, post the firing of gunshots and hurling of bomb. Therefore, merely, because PW-1 is a person injured in the incident, his testimony is not to be accepted as gospel truth and would have to be evaluated and assessed in the context of the surrounding facts and circumstances of the case borne out from the evidence brought on record.

40. To appropriately, evaluate the testimony of PW-1, we propose to divide his testimony into multiple parts, which are as follows: (i) PW-1 arrived at the spot at 11 pm or so, with his wheat bushel, for threshing at the pump station of Yadunath (deceased's father); (ii) as there was no electricity, he kept lying in wait for electricity to come; (iii) at that spot, there were Saheb Lal (the deceased) and Rai Sahab on one cot, Hanuma Prasad (PW-2) at some distance, on the other side of the pumping set room, on another cot, Ramdei near the door of the pumping set room in a separate cot and there, PW-1 lay not on a cot but on a Gath (a bushel); (iv) at about midnight, he saw 7 to 8 men flashing their torches and coming towards the spot from west and south; (v) when those men came close, PW-1 asked them as to why they were flashing their torches to which they responded by saying that they were coming after hearing folk stories (Birha); (vi) at this point, Saheb Lal and Rai Saheb stood up from their cot; (vii) as soon as Saheb Lal got up, he was shot from a gun, as a result, Saheb Lal fell on a Gath (bushel), immediately thereafter, another shot was fired from the gun; (viii) thereafter, 3-4 men went towards Hanuman Prasad (PW-2) and tied him to the cot; (ix) in the meantime, as soon as the first shot was fired, Rai Sahab effected his escape; (x) that when the second shot was fired, PW-1 also effected his escape towards north of the pumping set; (xi) that after running 50 paces, when he reached Kedar's field, a bomb was hurled, which exploded near Arhar bushel, resulting in a fire and some splinters also injured him; (xii) that the fire lit the spot and in that light he spotted and identified the three named accused including the surviving appellant and noticed that Sher Bahadur held a Katta (country made pistol), Ram Samujh held a gun whereas, Rama Kant was empty handed; (xiii) thereafter, the accused escaped towards south west and Saheb Lal died on spot and his blood got splattered on the bushel.

41. On a cumulative view of all the above parts of PW-1's testimony, the ocular account rendered by PW-1 is in respect of two stages of the incident. First stage is where there was no light. The second stage is where there was light on account of crop burning. Notably, PW-1 does not say that he could recognise or identify any of the offenders before the area was lit by fire on account of crop burning. No doubt, there is mention of flashes of torch light by the accused but it is not his deposition that he could recognise anyone in those flashes of torch light. Another important aspect is that he does not say that he recognised any one on the basis of his voice. Rather, he stated that when the incident occurred, his initial impression was that dacoits have come. Meaning thereby, that initially he could recognise none. Therefore, what we have to test is whether PW-1 could and did recognise the appellants in the light of fire or the prosecution story is contrived as a figment of imagination, based on strong suspicion, or guess-work, or ill motives.

42. Ordinarily, where there is a prompt reporting of an incident, the possibility of the prosecution story being contrived is remote as there is not much time to deliberate and do guess-work. On record, the FIR is prompt. Therefore, the charge of the defence is that the FIR is ante-timed and has been lodged much after dawn and, probably, after autopsy. We therefore proceed to test whether the FIR is ante-timed. In this regard, at the outset, we may observe that this a case more than forty years old when digital records were a dream. With scientific advancement and records being in digital format it is difficult to canvass that the FIR is ante-timed. But in those old days where there were no digital records, ante-timing and back dating was possible. Consequently, we proceed to test the submissions bearing in mind the year to which this case relates to.

43. To test whether a first information report is ante-timed or not, there are no cut and dried formulae. As a first step in this regard, the court has to check whether the police papers prepared after registration of the first information report are not inconsistent with its existence. Ordinarily, where an inquest is conducted after the murder has been reported, the inquest report bears the case details. In this case, the inquest was, purportedly, carried out by 7 am on 01.05.1981 whereas the first information report was, purportedly, lodged at 01.30 hours of 01.05.1981 yet, it bears no case details. But what is important is that the inquest report recites the name of PW-1 as the person on whose information the inquest commenced. It also mentions the time at which the information was given at the police station, which matches with the time at which the FIR was purportedly lodged. But this recital is not conclusive of the existence of the FIR. The defence would say that the FIR was not in existence rather, a page / slot in the General Diary was reserved for filling the details later. Whereas, the prosecution would say that once receipt of information at 1.30 hrs is noted, and the name of informant appears in the inquest report, it means that the information was received at the police station. Both arguments are based on possibilities. As to what is probable, we would have to probe further on the issue.

44. In this context, we shall examine another submission of the defence counsel. According to the defence counsel, neither the FIR nor the GD Entry of the report accompanied the inquest report or the papers forwarded to the autopsy surgeon for autopsy. Rather, the autopsy surgeon (PW-6) made a categorical statement that he did not receive copy of the FIR with the police papers. The learned AGA submitted that there is no requirement of law to forward the copy of the FIR therefore this is not a conclusive circumstance to indicate that the FIR was not in existence by then. In this regard, we may observe that the Code of Criminal Procedure is silent as to what papers need be forwarded by the I.O. along with his request for autopsy. However, U.P. Police Regulations, which is a compilation of instructions, issued by way of guidelines, vide paragraph 139 provides for the procedure to be observed when a body is sent for post-mortem examination. As per the procedure two forms are necessarily to be filled. One is Form No.13, which is commonly referred to as challan lash and the other is Form 33, which is a request letter addressed to the Civil Surgeon to conduct autopsy of the cadaver. Sub regulation (6) of Regulation 139 states that the investigating officer shall prepare in duplicate a descriptive roll of the body (i.e. commonly referred to as photo nash), containing particulars of identification and injuries that may be distinctly apparent. Paragraph 139 (7) of the UP Police Regulations mandate that Form No.13 must be filled with utmost care. In this Form No.13, the name of the police constable to whom the body is handed over and the time of such handing over has to be meticulously entered. It is also provided in sub regulation (7) of Regulation 139 that the I.O. shall also send information with regard to the cause of death as far as the investigating officer has been able to ascertain. Usually to comply with this requirement it is almost customary to forward the inquest report and sometimes they forward copy of Chik FIR or copy of GD Entry of the FIR, or both. In the instant case, the inquest report bears the signature of the autopsy surgeon suggesting that it was forwarded. But neither the inquest report nor the challan lash - Form 13 reflects the case crime number though it mentions the time of receipt of information/ report. Form 13 discloses that the body was handed over to the constable at 7 am and was received at the police head quarters, which was at a distance of 50 km from the spot, at 14.35 hrs. What is interesting is that the autopsy doctor received the papers at 4.25 pm whereas the body was received at 4.55 pm. Notably, in Form No.33 (Ex. Ka-12) there is an endorsement, marking to the doctor, to conduct autopsy. This endorsement is made at 4.15 pm. However, in our view, nothing much turns on these entries and the papers discussed above, as nothing is shown to us that there exists a statutory requirement to forward the Chik FIR or the GD Entry of the FIR along with the request for autopsy. But what is important here is that the inquest and autopsy related papers do not conclusively indicate that the FIR was in existence at the time of inquest as also at the time when requisition was sent for autopsy. What is also important is that there was delay in the body reaching the district police headquarters for autopsy.

45. At this stage, we may notice another submission of the defence counsel, which is that PW-1 was examined for his injuries by PW-5 at 3.15 pm on 01.05.1981. The injury report (Ex. Ka-6) does not disclose the case details and the Chitthi Majrubi has been suppressed. It was argued that if PW-1 was the informant and had arrived at the police station at 01.30 hrs in an injured condition, what was the reason not to send him for medical examination promptly and to wait till 3.15 pm. It is submitted that this clearly suggests that that night he had not been to the police station to lodge the report. In our view, this does raise a doubt as to whether the report was lodged in the night at 1.30 hrs. However, what clinches the issue for us is an interesting recital in the written report with regard to the time of the incident. The first information report recites "Aaj Beeti Raat", which means the night that had passed. If the night had not passed and it was just about midnight when the report was lodged, what was the occasion to mention what has been quoted above. This, therefore, creates a strong suspicion with regard to the first information report being lodged early morning or may be after the inquest was done. And when we consider this circumstance in conjunction with other circumstances, such as the inquest report not bearing the case details and the statement of the I.O. (PW-8) that after registration of the case he left the police station with no other paper except the panchayatnama register, forms concerning it and the case diary, the suspicion gets fortified, which gets amplified when we notice that the body sent on a Jeep reaches the destination, just 50 km away, in 6 hours 35 minutes. Noticeably, PW-3, the person who carried the body to the mortuary for autopsy, states that he was handed over the body at 8 am and that, in ordinary course, the distance of 50 km could be covered in two hours. But he gives no reason for the delay. All of this raises a strong suspicion that the police papers were under preparation and, therefore, the movement of the body was kept on hold. Be that as it may, once there arises a strong suspicion of the FIR not being registered at the time when it is purported to have been lodged, the benefit of prompt reporting would not accrue to the prosecution. Under these circumstances, the prosecution evidence would have to be evaluated and assessed independently after carefully testing it on all material particulars.

46. Bearing that in mind, we now proceed to assess and evaluate the worth of the ocular account rendered by PW-1 and PW-2. The ocular account is in respect of three overt acts of the accused comprising a group of seven to eight persons. First is with regard to a member of that group firing at the deceased; second is with regard to 3 to 4 members of that group tying PW-2 to cot; and the third is in respect of a member of that group throwing a bomb. All the above three overt acts were done in total darkness as it is not the prosecution case that either of the two eyewitnesses recognised any of the named accused before the Arhar crop caught fire. As per the ocular account, the three named accused could be recognised only when the Arhar crop caught fire. Notably, Arhar crop is not a petroleum product that it would burn instantaneously. It is thus probable that for a large scale burning of the crop to occur, some time must have elapsed inviting attention of fellow villagers who had their Abadi in the vicinity. In such circumstances, the possibility of the accused staying there at the spot and not effecting their escape when the job was done does not appeal to logic unless their intention was to loot or rob, which is not the prosecution case. Notably, the Arhar crop damaged was of Kedar who does not figure in the picture. Further, what is important is that, during cross examination, PW-1 admitted that his brother Bagelu was having a pumping set with a thresher attached to it, near which, PW-1 had his holding, which was just a furlong away. In that context, what was the occasion for PW-1 to come to the spot for threshing. Therefore, the question that arises for consideration is whether PW-1 arrived when the incident was on the go or he was there from the start. At this stage, what is important to note is that PW-1 did not have his cot laid at the spot, rather, according to him, he was lying on a bushel. Bearing in mind that PW-1's brother had a thresher, near which PW-1 had his holding, there appears very little logic for PW-1 to arrive at the spot with his bushel for threshing. Notably, presence of PW-1's bushel at the spot has not been confirmed by the I.O. In these circumstances, the presence of PW-1 since the start of the incident appears doubtful and there is a possibility of him arriving at the spot when there was commotion due to gunshots and it is equally possible that when he may have arrived some miscreant may have thrown a bomb near him. But what we have discussed above, is a mere possibility, which is not sufficient to discard PW-1's testimony because we would have to test the same on the scale of probabilities.

47. When we test the ocular account on the scale of probabilities, the ocular account does not inspire our confidence as to the genesis of the incident, inasmuch as, if eight men had come armed with an object to finish off Saheb Lal why would they enter into a dialogue with PW-1 and tell him that they were returning after hearing folk stories (Birha). Rather, they would, if they held torches enabling them to spot and identify, straight away launch an attack on their target and effect escape. What assumes importance here is that the accused had allegedly entered into a dialogue with PW-1. If it were so, and the named accused had been there, who belong to the same village, they would have been identified by their voice, gait or other distinguishable features and their participation in either firing of gunshots, or tying PW-2 to the cot, or hurling bomb(s), would have been specifically disclosed. But, interestingly, they could be recognised only when the crop started burning. And, most interestingly, when they were recognised, they did nothing. As we have observed earlier that Arhar crop is not a petroleum product as to have a low flash point, there would be some time taken to have a full fledged fire out of it. Therefore, the prosecution story does not inspire our confidence not only as to the genesis of the incident but also leaves a lingering doubt that the incident occurred in some other manner than what has been alleged. Notably, Saheb Lal was himself an accused in two cases and one of them was at the instance of one Shyam Lal Maurya. Thus, the possibility of him having other enemies cannot be ruled out. Another important feature of the case is that neither PW-1 nor PW-2 disclose that they heard accused exhorting each other or making any such utterances from which they could be recognised, or their intention, or object, could be gathered. They were also not able to tell as to who fired the shot at the deceased and who tied PW-2. Yet another feature noticeable in the prosecution testimony is that although 7 to 8 men are stated to have arrived, but participation by five or more persons, at any stage of the occurrence, is not borne out from the prosecution evidence. Noticeably, one man fired two shots, 3-4 persons tied PW-2 and, thereafter, they chased PW-1 and hurled bomb. Thus, it is not clear whether amongst those 7 to 8 men only 3 to 4 were miscreants or the entire bunch of 7 to 8 men were moving as a group comprising an unlawful assembly. At this stage, we may observe that to fasten liability with the aid of section 149 IPC there should be clear evidence of constitution of an unlawful assembly comprising of five or more members. In absence whereof, conviction with the aid of section 149 IPC would not be lawful. No doubt, it is not necessary that all five, or more members, be identified as there could be unidentified persons also as part of that assembly, but where it is not clear that five or more persons were acting as a group and participating with an unlawful common object, assuming the existence of an unlawful assembly merely on the basis of count and conduct of few (less than 5 persons), when some of them might be innocent, it would be extremely unsafe to record conviction of two or three persons with the aid of section 149 IPC on their mere armed presence with no specific overt act ascribed to them. It be noted that in the instant case, there is no evidence that all the 7 to 8 persons were exhorting each other or acting in concert or belonged to a same group or family. Rather, the evidence is that they were returning from a village program (Birha). In such circumstances, few of them carrying weapon for their protection, particularly at night, by itself might not be an incriminating circumstance to assume that all of them held a common unlawful object so as to constitute an unlawful assembly. We are conscious of the law that an inference as to whether a group of persons constitute an unlawful assembly or not can be gauged from the conduct of that group as a whole, but each case turns on its own facts. In the instant case, the incident occurred in the darkness of night. There is no clear and cogent evidence that five or more persons participated at any given stage of the occurrence. Reference in the ocular account is specific to participation by 3 to 4 persons though there is reference of 7 to 8 persons coming with torches. Thus, in our view, the evidence with regard to existence of an unlawful assembly is nebulous and vague.

48. In the case of Ramchandran and others Vs. State of Kerala: (2011) 9 SCC 257, the Apex Court, in respect of determination as to whether an unlawful assembly existed or not, observed as follows:-

"The crucial question for determination in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects specified by Section 141. While determining this question, it becomes relevant to consider whether the assembly consisted of some persons which were merely passive witnesses and had joined the assembly as a matter of idle curiosity without intending to entertain the common object of the assembly."

The Court also observed in paragraph 27 of the judgment that where general allegations are made against a large number of persons the court must carefully scrutinise the evidence and hesitate to convict large number of persons if the evidence available on record is vague.

49. In the case of Kuldip Yadav and others Vs. State of Bihar: (2011) 5 SCC 324 the Court had observed that before convicting accused with the aid of Section 149 IPC, the Court must give clear finding regarding nature of common object and that the object was unlawful. In the absence of such finding as also any overt act on the part of the accused persons, mere fact that they were armed would not be sufficient to prove common object. Section 149 creates a specific offence and deals with punishment of that offence. It was observed that whenever the court convicts any person or persons of an offence with the aid of Section 149, a clear finding regarding the common object of the assembly must be given and the evidence discussed must show not only the nature of the common object but also that the object was unlawful.

50. In the instant case, though the prosecution case is to the effect that there were seven to eight persons who had arrived at about midnight with weapons but there is no clear cut evidence that they had arrived with a view to finish off the deceased or as an unlawful assembly having one, or more, of the objects specified in Section 141 IPC. No doubt, an inference can be drawn with regard to existence of an unlawful assembly from the conduct of its members. But, here, what is important is that till the gunshot was fired at Saheb Lal there is nothing to indicate that those seven or eight persons shared a common object. Rather, those seven or eight persons were returning after attending a Birha program. It is not the prosecution evidence that there was no Birha program in the village. Thus, how and why an attack was launched at Saheb Lal required some explanation, which is completely lacking. There is no indication in the prosecution evidence that there were hot words exchanged or utterances made. The prosecution evidence in this regard is completely silent and vague. Notably, when the shot was fired the accused were not recognisable either by their face or by their voice therefore, in that darkness, how could it be gathered that those 7 to 8 men, as a group, were targeting Saheb Lal. Thus, it appears to be a case where the incident occurred in some manner other than what has been alleged by the prosecution and the informant party, who were inimical towards the accused, took advantage of the incident to implicate those with whom they had enmity.

51. To satisfy ourselves further, whether the witnesses could even recognise and identify in that darkness, we propose to test the ocular account with reference to the site plan (Ex. Ka-16) prepared by the I.O. on the basis of the spot inspection. The index of site plan depicts various points by letters, which are as follows: "A" is the spot where the cot of Saheb Lal (the deceased), on which he had slept with Rai Sahab, was located; "B" is the spot where the cot of Hanuman Prasad (PW-2), on which he had slept, was located; "D" is the spot from where blood etc. was lifted and near which the informant had slept; "E" is the spot where one empty cartridge was found; "F" is the spot where the burnt ash of Arhar crop was found; "M" is the spot inside the room where there was an electric motor; and "T" is the spot where thresher machine run with that motor was located.

52. What is noticeable in the site plan is that from point "B" where PW-2 is stated to have been lying, point "A" might not be easily visible as in between there is a built structure i.e. the room of the floor mill /the pumping set. The empty cartridge is found at point "E" and not at point "A" (i.e. the spot where deceased had his cot laid). Point "D" from where the blood has been recovered is next to point "A" and might not be noticeable from point "B" due to darkness as also because of the two rooms in between. The point "F" where the burnt ash of Arhar crop has been found is towards north of points "B" and "E" and is far far away from from points "A" and "D". If we take the site location into account, if at point "B" PW-2 had been tied, it would have been extremely difficult for him to witness the gunshots fired at the deceased at point "A", particularly, in complete darkness, and, similarly, if the Arhar crop was set on fire, the light of that crop may not be sufficient to visualise as to what was happening at point "B". Notably, in the testimony of the I.O. (PW-8), if somebody had slept at point "B", he will not be able to visualise place "T" though, he may be able to see place "A" but this appears to be on guess work because, place "A" and place "T" are adjoining each other and the view might get blocked by the rooms. Most importantly, in paragraph 25 of PW-8's statement, the burnt ash was discovered 30 yards towards north of the pumping set rooms. Interestingly, PW-1 ran 50 yards and then he stopped. From that distance, it appears improbable, if not impossible, for PW-1 to spot the perpetrators of the crime. Notably, the injuries which PW-1 suffered were on his back that is suggestive of him being in a running state when the bomb was hurled. Therefore, he could not even noticed as to who hurled the bomb. In that scenario with his back towards the accused probability of PW-1 recognising the named accused is low. Importantly, the site plan does not disclose as to where the named accused were, when they were spotted by PW-1. Even the location of PW-1 from where he spotted the named accused is not disclosed. What is interesting is that the eye witnesses have not stated that the accused were near the burning Arhar crop or were near the deceased when they were identified.

53. In view of the discussion above, we are of the considered view that the prosecution has not been able to prove its case against the surviving appellant beyond reasonable doubt. The possibility of an attack by dacoits or miscreants in the night on the victim party being taken as an opportunity to implicate those with whom the informant party had enmity appears probable. This probability is lent credence by a circumstance that out of seven or eight persons, the witnesses could identify only three with whom they had enmity and who, interestingly, do not come from one family as to associate with each other to participate in the crime. Further, there appears no commonality of interest in these three identified accused except that they have enmity with the informant party for different reasons. Once that is the position and there is a high probability of the FIR being ante-timed, as discussed above, we have no hesitation to extend the benefit of doubt to the accused appellant.

54. At this stage we may observe that in the prosecution evidence it has come that the surviving appellant held a licensed gun but no effort was there to seize it and connect it with the empty cartridge found on the spot. Further, the evidence brought on record suggests that the investigating officer of the case was changed several times. What was the reason for change of the investigating officers is not known but it does reflect upon the fairness of the investigating officer.

55. For all the reasons above, the appeal is allowed. The judgment and order of the trial court convicting and sentencing the surviving appellant Ram Samujh is set aside. The appellant is acquitted of the charge for which he has been tried and convicted. The appellant Ram Samujh was earlier on bail but his bail bonds were cancelled by order dated 10.03.2022 and non bailable warrants were issued against him. If he has not yet been taken into custody, he is not to be taken in custody, subject to compliance of the provisions of Section 437-A CrPC. But, if he has been taken into custody, he shall be released forthwith, subject to compliance of the provisions of Section 437-A CrPC to the satisfaction of the trial court.

56. Let a copy of this order be forwarded to the court below along with the record for information and compliance.

Order Date :-13.4.2022 AKShukla/-

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