1. This appeal arises out of the judgment and order dated 26-2-1981 passed by Shri M.G. Godbole, the then Sessions Judge, Jalaun at Oral in Sessions Trial No. 153 of 1980 whereby the above named appellants have been convicted and sentenced to imprisonment for life under Section 302 read with Section 34 I.P.C.
2. Prosecution story, in brief, is that in the evening hours of 11-8-1980, Chhadami, P.W. 1, father of deceased, was sitting on the chabutra of his house. His cousin Hari Singh, P.W. 2, Gopal, P.W.3 and Ram Swaroop were also present there. They all were talking with each other. At about 7.30 p.m. Jalim Singh, Chhadami's son went out of the house to purchase Biri, shortly thereafter Chhadami and other witnesses heard cries of Jalim Singh coming from the side of Khandhar (dilapidated house) of Khannaji, which was situated in the east of the house of the complainant at a far distance. Chhadami and the above named witnesses rushed towards that side and saw that all the three appellants armed with knives were assaulting Jalim Singh on the road near the Khandhar of Khannaji. On being challenged, the assailants fled away with their respective weapons. Jalim Singh, who was then bleeding, was immediately carried to Hospital Kalpi. Dr. L.r. Qureshi, P.W. 7 the medical officer posted in civil hospital Kalpi, examined Jalim Singh at 8.05 p.m. and found that injured was in a gasping condition. Before any medical aid could be given Jalim Singh expired at 8.15 p.m. The information of his death was sent to police through memo Ex. Ka 5. The motive behind the murder is said to be that 8-10 days before the present occurrence Jalim Singh had objected to the accused persons gambling at the temple near his house and had driven them away. Accused persons then threatened Jalim Singh with dire consequences.
3. The written report Ex. Ka 1, which Chhadami got scribed by Rajendra Singh Yadava, was lodged at police station Kalpi on the same night at 21.05. Head Constable Ram Asrey P.W. 5 prepared chik F.I.R. and registered the case in the general diary. Station Officer, P.W. 8 Shri Dhruv Lal Yadava was present at the time of registration of case. He took up investigation and recorded the statements of first informant and Hari Singh. He then proceeded to the hospital alongwith S.I. Sohan Lal who held inquest under his order and prepared inquest report and other papers. Inquest proceedings were concluded at 11 p.m. and dead body under seal alongwith necessary papers was sent to mortuary. The investigating officer in the morning proceeded for the place of occurrence which was situated at a distance of about 2 km. only from the police station. On reaching the spot, he collected samples of blood stained and plain earth through memo Ex. Ka 7 and prepared site plan, Ex. Ka 8. During investigation he also recorded the statements of Hari Singh, Gopal and others and interrogated accused persons on 2-9-1980. On completion of investigation, charge sheet Ex. Ka 13 was submitted against all the three nominated accused persons.
4. Dr. R.K. Khattar P.W. 4 conducted post mortem examination on the dead body of Jalim Singh on 13-8-1980 and found following ante mortem injuries:
1. Incised wound 1 1/2' x 1/2' x abdominal cavity deep on the left side front of abdomen, 4 1/2' below left nipple.
2. Incised wound of 7' x 3 1/2' x chest cavity deep, 3' below the left axilla.
3. Penetrating wound 1/2' x 1/4' x 1 1/ 2' on right side of face, 1 1/2' in front of right ear.
4. Incised wound 2' x 1/2' x bone deep on the top of right side skull.
The internal examination disclosed fracture of right parietal bone under injury No. 4. Membranes were also congested and lacerated under the injury. Brain matter was congested and smeared with blood. 4th and 5th ribs were also found fractured under injury No. 2. Pleura was lacerated below fractured ribs. About four ounce of free and clotted blood was present in left pleura cavity. Left lung was found lacerated below fractured ribs. The peritoneum was cut below injury No. 1. Stomach was also incised and had contained two ounces blood with fluid. Spleen was also cut under injury No. 1. in the opinion of the doctor death had occurred due to shock and hemorrhage as a result of ante mortem injuries. Dr. Khattar in his deposition before the trial Court further opined that the ante mortem injuries were sufficient in ordinary course of nature to cause death. Post mortem report is Ex. Ka 2.
5. Before the trial Court prosecution in support of its case produced eight witnesses.
6. P.W. 1 Chhadami is the father of deceased and first informant. He claimed to be an eye witness and stated that he was sitting at his chabutra talking with Hari Singh, Gopal and Ram Sewak. At about 7.30 p.m. his son Jalim Singh came out of the house. He asked him where he was going thereupon Jalim Singh told that he was going to the market to purchase Biris. He followed him and after covering a distance of 10 paces he sat down to urinate. He heard cries of his son whereupon he rushed towards that side. Hari Singh, Gopal and Ram Sewak followed him. He saw that near the Khandhar of Khannaji the three appellants were assaulting his son with knife. The assailants were challenged by him and other witnesses whereupon they took to their heels. Jalim Singh on receiving injuries fell down on the ground. He was taken to the Hospital on a cart where he died. He proved the F.I.R. as Ex. Kal.
7. P.W. 2 Hari Singh is undisputedly cousin of first informant Chhadami. According to him he was also sitting at the Chabutra of Chaddami and when he heard cries of Jalim Singh he rushed towards that side and saw the three accused persons inflicting knife blows on Jalim Singh. Electric light was emnating from two electric poles which were placed there, one in the east and other in the west of the place of occurrence. He also stated of the motive.
8. P.W. 3 Gopal also claimed himself to be an eye witness. He admitted that Ram Babu was brother of accused Shyam Babu who has been murdered and in that murder case he is an accused. Thus this witness was highly inimical to accused Shyam Babu. He also stated of motive. He further stated that he was present at the time when the investigating officer made spot inspection and he had shown to him the place from where he had witnessed the incident.
9. P.W. 4, Dr. R.K. Khattar had conducted autopsy on the dead body of deceased Jalim Singh. He had proved the post mortem report Ex. Ka 2. in cross examination he admitted that looking to the nature and seat of injury No. 2 there was a greater possibility that the same was caused by a sharp heavy cutting weapon rather than from a knife. He further admitted that knife having a blade of about 8 fingers long and about 1-1/2 fingers wide does not come within the description of a heavy cutting weapon.
10. P.W. 5 Head Constable Ram Asrey proved the chik F.I.R. and the general diary entry whereby the case was registered at the police station at 9.30 p.m. on 11-8-1980.
11. P.W. 6 is constable Jageshwar Prasad who had carried the dead body of Jalim Singh to mortuary.
12. P.W. 7, Dr. L.R. Qureshi was the medical officer in Civil Hospital, Kalpi. He stated that at 8.05 p.m. Jalim Singh injured had been brought to Civil Hospital, he was in gasping condition and he died at 8.15 p.m. Information of his death was sent to police through memo Ex. Ka 5.
13. P.W. 8, S.I. Dhruv Lal Yadav is the investigating officer. He has stated the facts which we have already narrated above while giving an account of prosecution story. in cross examination this witness admitted that in the site plan he had not shown the places where electric poles were placed. He has further admitted that he has also not shown the Chabutra where the witnesses were said to be sitting and chatting with each other because the house of first informant was situated quite far from the place of occurrence. He further admitted that no money was recovered from the dead body of Jalim Singh. He also admitted that Gopal in his statement under Section 161, Cr.P.C. did not tell him that he had seen the incident in electric light.
14. Defence case was of total denial. Accused persons produced no witness in defence.
15. The trial Court on evaluation of evidence found the appellants guilty and convicted and sentenced them as aforesaid.
16. We have heard Shri A.D. Giri, Sr. Advocate for the appellants and the learned A.G.A. for the State.
17. Factum of homicidal death of Jalim Singh has neither been disputed nor assailed before us by the learned counsel for the appellants. This fact is also otherwise fully established from the post mortem report and the statement of Dr. R.K. Khattar, P.W. 4 who had conducted the post mortem examination on the dead body of Jalim Singh.
18. Learned counsel for the appellants, however, vehemently submitted that the circumstances appearing in the case indicate that Jalim Singh was in all probability attacked in darkness by unknown persons, may be with a view to rob him and the said incident was not witnessed by any person. It was further submitted that the appellants were named by the first informant due to animosity and or under suspicion that they could be the assailants. On the other hand, learned A.G.A. submitted before the Court that the incident was witnessed by three witnesses who were produced before the trial Court and their evidence substantially tallies with the medical evidence and all the three appellants were named in the F.I.R. which was lodged with all promptness. Thus according to his submission case against the appellants has been proved beyond any reasonable doubt.
19. Before we launch discussion on the eye witness account, we first take up the motive part. As per the F.I.R. about 8-10 days before the present occurrence all the three appellants were gambling at the temple situated near his house. Jalim Singh objected to it and drove them away. The appellants had threatened him of dire consequences. On account of this motive, the appellants are alleged to have committed the murder of Jalim Singh.
20. P.W. 1 Chhadami, father of deceased, in his statement before the trial Court did not state even a single word regarding this alleged motive. P.W. 2 Hari Singh in his examination in chief stated that at about 8 -10 days before the incident in question accused persons were gambling near the temple to which Jalim Singh protested and on this accused persons had extended threat. in cross examination this witness admitted that he had not seen with his own eyes accused persons gambling but he was told of this by the deceased himself about 2 - 3 days before the occurrence in question. His evidence was thus of hearsay in nature. P.W.3 Gopal has stated that about 8-9 days before the present occurrence all the three appellants were playing cards in a 'Marihya'. Jalim Singh had asked them not to gamble whereupon the appellants had extended threat to Jalim Singh. in cross examination he stated that when he had seen the appellants gambling, it was noon time and he was coming back from temple. He had no talks with Jaltm Singh nor he had advised him to report the matter. As already pointed out above, this witness is highly inimical to accused Shyam Babu in as much as he himself is an accused in the murder of Shyam's brother Ram Babu. We, therefore, find that there is hardly any reliable evidence to establish the alleged motive. However, the evidence of alleged eye witnesses cannot be discarded over board simply for the reason that the prosecution has not succeeded in establishing any motive or that the motive as suggested was inadequate and in-sufficient, It is well established principle that if the murderous assault by accused is established by clear and clinching evidence of the eye witnesses, it is not necessary to investigate the motive behind such commission of offence (see Kuriakose and Anr. v. State of Kerala J.T. 1994(1) SC 268 and S.G. Mohtey v. State of Maharashtra A.I.R. 1973 SC 335)
21. As the prosecution has not been able to establish any cogent motive and the witnesses examined from the prosecution side are all interested and were residents of distant places and their presence at the scene of occurrence was by chance, their evidence has to be scrutinized with all care and caution.
22. Even as per prosecution case incident had occurred in darkness at about 7.30 p.m. It has been admitted by P.W. 1 Chhadami that the night of incident was a dark night. No source of light was mentioned in the F.I.R. P.W. 1 Chhadami, however, claimed that he had told that scribe of the F.I.R. that he had seen the incident in the light coming from the electric poles. He could give no plausible explanation as to why this fact was not mentioned in his report. Scribe of the report was not produced. Significantly he did not disclose this fact even to the investigating officer when his statement was recorded under Section 161, Cr.P.C. According to this witness one electric pole was placed at a distance of 50 paces in the west of the place of occurrence in front, of the house of Lallu whereas the other electric pole was installed at a distance of about 20 paces in the east of the place of occurrence. Similarly both P.W. 2, Hari Singh and P.W. 3, Gopal have also stated of the same source of light but they also did not disclose this fact to the investigating officer when they were interrogated during investigation and could give no explanation as to why that was not mentioned by the investigating officer in their statements recorded during investigation. It is also significant to note that no such electric poles have also been shown by the investigating officer in the site plan Ex. Ka 6. P.W. 8 Shri D.L. Yadava in his statement before the trial Court stated that inadvertently he omitted to show that electric poles in the site plan though a mention of the same was made in the case diary in his inspection note. No copy of that inspection note was furnished to the accused persons though copy of site plan was supplied. Thus accused persons had no opportunity to go through the contents of the inspection note. in any view of the matter it is not borne out from the inspection note as to at what distances the electric poles were placed. According to the investigating officer one electric poles was situated, in the east of the place of occurrence at a distance of about 15-26 paces while the other was in the west at a distance of 53 - 54 paces. Undisputedly, the investigating officer had inspected the scene of occurrence on the next day during day time. Thus he was not in a position to state if electric poles were throwing light in the preceding night. As per the site plan the witnesses rushed towards the scene of occurrence from western side. The eastern electric pole as per the statement of the investigating officer was placed at a distance of 25 paces while according to P.W. 1 it was in front of the house of Lallu. House of Lallu has also not been shown in the site plan, though house of Naraln and Hari Ram have been shown. It is, therefore, highly doubtful if eastern electric pole was placed at a distance of 25 - 26 paces, had it been so there is no reason why the same would not have been shown in the site plan. Therefore, even assuming that there were electric poles on the road running from west to east, it is highly doubtful that sufficient light was available near about the place where the incident had occurred.
23. It was next submitted by learned counsel for the appellants that as per the case set out in the F.I.R. all the three witnesses, namely, P.W. 1 Chhadami, P.W. 2 Hari Singh, P.W. 3 Gopal were sitting on the Chabutra in front of Chhadami's house and deceased Jalim Singh had left the house to the market for purchasing Biris in their presence at about 7.30 p.m. and shortly thereafter they heard cries of Jalim Singh coming from the side of Khandhar of Khannaji. They then rushed towards that side and saw the incident. Chhadami's house was too far from the place of occurrence and looking to the number of injuries sustained by the deceased, which were four in number and were caused by as many as three persons the incident must have been over within no time hence it was highly doubtful that the witnesses could reach in time during the course of incident and were able to identify the assailants. It is evident from the site plan and the evidence on record that the incident occurred at an isolated place. It occurred on the road going from Adam Sarai to Bara Bazar at the south western corner of Khandhar of Khannaji. This place was certainly not visible from the Chhadami's Chabutra where the witnesses were alleged to be sitting and talking. Chhadami's Chabutra has also not been shown in the site plan. The investigating officer in his statement before the Court has categorically stated that Chabutra was not shown in the site plan as it was situated very far from the scene of occurrence. in his inspection note also he has not given the distance. From the defence side it was suggested to the witnesses that the Chabutra was situated at a distance of about one furlong from the plae of occurrence though as per P.W. 1 Chhadami it was situated at a distance of about 80 paces. Faced with the difficulty that the Chabutra was at a long distance from the place of occurrence, P.W. 1 Chhadami developed the case for the first time in the trial Court that when his son Jalim Singh had gone to the market to have Biris he followed him and after covering a distance of about 10 paces he sat down to urinate by the side of road and there he heard shrieks of his son Jalim Singh 'Dada dauro marey daltey hain'. This fact was neither mentioned by him in the F.I.R. nor in his statement recorded under Section 161, Cr.P.C. He admitted that he has stated this fact for the first time before the trial Court. P.W. 2 Hari Singh, however, has not corroborated P.W. 1 on this point and according to his statement Chhadami P.W. 1 was on the Chabutra when cries of Jalim Singh were heard. He has further admitted that when they were talking it was raining. On the other hand, P.W. 1 Chhadami purposely denied that at that time it was raining, obviously for the reason that if it was raining it would have been further difficult or rather impossible to hear the cries of Jalim Singh from a long distance. We thus find that it is difficult to accept that the witnesses had reached the place of occurrence and had seen the assailants of Jalim Singh.
24. It was further argued by Shri Giri that presence of eye witnesses is further rendered doubtful on account of vital discrepancies occurring between medical evidence and their ocular testimony. Learned counsel for the appellants pointed out that it has come in the statement of P.W. 1 Chhadami that the knives which the accused persons were holding had blades having a length of about 8 fingers and width of 1-1 /2 finger and blows were inflicted in a piercing manner. Learned counsel for the appellants submitted that the ante mortem injuries found on the body of deceased could not have been caused by such kind of knives when they were used in a piercing manner and he invited the attention of the Court to the opinion expressed by Dr. R.K. Khattar, P.W. 4 who had conducted the post mortem examination. in his cross examination Dr. Khattar has stated that looking to the length and width of injury No. 2 and also to the fact that there was a fracture of ribs, use of sharp heavy cutting weapon was more probable than a knife. Same opinion was expressed in relation to injury No. 1. He further admitted that a knife having a blade of the size which is 8 fingers long and 1-1/2 fingers broad is not covered by the description of a sharp heavy cutting weapon. We have also perused the ante mortem injuries and the internal damage caused by those injuries and we are in agreement with the opinion of Dr. Khattar that the possibility of injuries No. 1 and 2 having been caused by a sharp heavy cutting weapon was more than by a knife whose blade is 8 finger in length and 1 1/2 finger in width. If the knives of the description as stated by P.W. 1 were used in making assault on the deceased Jalim Singh in a piercing manner there was hardly any possibility of the kind of injuries being found on the deceased as were in fact found during post mortem examination. This medical conflict also renders the presence of alleged eye witnesses doubtful. P.W. 2 Hari Singh has further admitted in his statement that the Investigating Officer had neither recorded his statement nor interrogated him and whatever he has stated in the Court he has stated for the first time. P.W. 3 Gopal has stated that he could not recollect as to what talks were going on in between him. Chhadami and others when they were sitting on the Chabutra of Chhadami's house. All these infirmities and weaknesses further make their evidence highly susceptible.
25. Place of occurrence has also not been established beyond doubt. Admittedly the samples of plain and blood stained earth were not sent for chemical examination and the reason given by the investigating officer for this lapse is that the same could not be sent inadvertently. The fact remains that there is no report of chemical examiner as to whether the samples of earth contained, any human blood. Non sending of sample of blood-stained earth to chemical examiner though may not be fatal in every case but in the present case this lapse on the part of the investigating officer is not appreciable and cannot be ignored all together particularly when the eye witness account given by the interested and inimical witnesses is also not above board. We may further point out that in his statement before the Court P.W. 8, Shri D.L. Yadav, investigating officer stated that he took samples of plain and blood stained earth from the place of occurrence and prepared memo Ex. Ka 7 in the presence of witnesses. It is noteworthy that in Ex. Ka 7 it is not mentioned as to from which place the samples were collected, even this much is not mentioned that samples were taken from the place of occurrence. in the site plan Ex. Ka 6 also the place from where samples were taken or blood was found has not been shown. According to P.W. 1 Chhadami, his son Jalim Singh after receiving injuries fell down in the centre of pucca road which was of Gumma bricks. The road was about 6-7 feet wide. Had samples of blood been collected from this place then the investigating officer would have collected pieces of blood stained bricks and not of earth because as per the statement of witnesses blood had fallen on the pucca brick road and not on mud/earth. Therefore, even the place of occurrence has not been fixed beyond doubt.
26. For the reasons assigned above we find ourselves unable to uphold and sustain the conviction of the appellants as recorded by the learned Sessions Judge. Accordingly we set aside their conviction and sentence and acquit them of the offences charged for giving them the benefit of doubt.
27. Appeal is, therefore, allowed. Judgment and order dated 26-2-1981 of the learned Sessions Judge are set aside. Appellants are acquitted of the offences charged for. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties discharged.