M.P. Singh, J.
1. Ramesh appellant No. 1, has been awarded life imprisonment under Section 302, I.P.C. and one year's rigorous imprisonment under Section 323 of the IPC. Diwan Singh, appellant No. 2 and Darbe, appellant No. 3 have been convicted under Section 323 of the IPC and sentenced to one year's rigorous imprisonment. Bhag Singh and Sumer, the other co-accused parsons have been acquitted by the Additional Sessions Judge, Bayana (Bharatpur).
2. Gyan Singh (Gyani), brother of deceased Lala Ram lodged a F.I.R. on 14.2.1989 at about 2p.m. It was stated that on 13.2.1989 at about 8a.m. he alongwith his brother Lala Ram went to the well for irrigating their fields in which standing wheat crop was getting dried up. On the well, their engine as well as the engine of Darbe accused were installed. Darbe had been irrigating his fields for the last fifteen days. Lala Ram told Darbe to stop his engine and permit him to take water to his field. On this some trouble arose and exchange of not words took place. In the meantime Ramesh Sumer, Diwan, Bhag Singh, Darbe and Puran came there armed with 'lathis'. Darbe give a lathi blow on the elbow of Gyani and the second lathi blow was given on his back. All the accused-persons belaboured his brother Lala Ram with lathis, who received injuries on his head and hand. He became unconscious and fell down on the ground. The first lathi blow was given to him on his head by Ramesh.
3. On the hue and cry raised by Gyani a large number of villagers gathered on the spot. Bhogi Ram, Raghuveer, Devi Ram, Amarsingh and others tried to Intervene in the matter. Lala Ram who had become unconscious, had been taken to Bayana Hospital in the tractor of Vishal Singh (PW-1), the Sarpanch of village Panchayat Garhi Bajna. The doctor at Bayana Hospital seeing the. condition of Lala Ram referred the case to General Hospital, Bharatpur. He was taken there and was admitted. He died the same day i.e. on 13th February, 1989 at about 9 p.m. The dead-body was sent for post-mortem. After the post-mortem was done and cremation was over, the First Information Report was lodged on 14.2.1989 at about 2 p.m. at the police station Garhi Bajna.
4. Charge sheet was submitted in Court against five accused parsons only. The name of Puran was dropped. Appellants denied the charges. On behalf of the prosecution as many as sixteen witnesses were examined. Out of them PW-5 (Ameer Singh), PW-6 (Ram Swaroop), PW-7 (Gordhan), PW-13 (Bhogi Ram) and PW-14 (Devi Ram) have been declared hostile. Three witnesses were examined in defence. Statements of accused persons were also recorded under Section 313 of the Cr.P.C.
5. PW-2, Gyan Singh (Gyani) is an illiterate person. He is the brother of deceased Lala Ram. He stated that on 13.2.1989 at about 8 a.m. he alongwith his brother Lala Ram went to the well for supplying water to their fields. Darbe was taking water out of the well through his engine. They asked Darbe to stop his engine and permit them to start their engine for water. Darbe refused to do so. Some trouble arose on the spot. There were six accused persons, namely, Ramesh, Sumer, Diwan, Bhag Singh, Darbe and Puran Singh. They had kept their lathis hidden in their fields. Darbe gave a lathi blow on his right elbow. The second blow was given to him on the left shoulder by Sumer. But, Sumer has already been acquitted by the Sessions Judge. Then they began weilding lathis on Lala Ram Ramesh gave him lathi blow on the left side of his head. Thereafter, he received injuries on the thumb from the lathi of Diwan. When Lala Ram fell down on the spot accused persons taking him to be dead, ran away.
6. After receiving lathi injury Lala Ram became unconscious and fell down on the ground.. He was taken to Bayana Hospital at 11 a.m. in the tractor of Vishal Singh (PW-1), the Sarpanch of village Garhi Bajna. The doctor at Bayana Hospital, seeing his condition, referred the matter to Bharatpur Hospital. He reached there at about 4 p.m. and Lala Ram edied at 9 p.m. He was taken to Bharatpur Hospital alongwith Amar Singh Shyia, Raghuveer, Bhogi Ram, Gordhan, Ram Swaroop and few others.
7. Gyan Singh further stated that Amar Singh (PW-3), Raghuveer (PW-4), Bhogi Ram (PW-13) and Devi Ram (PW-14) have seen the occurrence. Amar Singh (PW-3) was staying at home. Hearing the noise, he reached the place of occurrence. On the date of the incident, before Lala Ram died in Bharatpur Hospital, the police reached there but no inquiry was made. When Lala Ram was being taken to Bayana Hospital, they had to pass through police station Garhi Bajna and while bringing the dead body from Bharatpur they had again to pass through that police station. The F.I.R. was lodged after the funeral was over.
8. When he went to lodge the F.I.R., he was accompanied by Amar Singh, Raghuveer, Bhogi Ram and Devi Ram. The report was written by the S.H.O. on his dictation. Though, this fact has been contradicted by Mahendrapal Singh (PW-12), the S.H.O. himself, who stated that a written report was handed over to him. Not only this, Amar Singh (PW-3) has stated that F.I.R. was written by Virendra Singh son of the Sarpanch. Thus, there is material contradiction between these witnesses regarding foundation of the prosecution structure. The statement of Gyani (PW-2) has been contradicted by Amar Singh (PW-3) that he alone had gone with Gyani to the police station for lodging the report. Had he gone there alongwith Gyani then in normal course the police should have recorded his statement under Section 161 of the Cr.P.C. Thus, on the point of number of persons accompanying Gyani, there is a material contradiction between Gyan and Amar Singh (PW-3), Raghuveer (PW-4) stated that he did not accompany them to the police station for lodging the F.I.R. It is also contrary to the statement of Gyani (PW-2)
9. On the quantity of water in the well, Gyani has stated that there was not enough water in the well, PW-12, Mahendrapal Singh has made a different statement saying that there was sufficient water in the well and both the engines could run simultaneously.
10. Admittedly, the incident took place on 13th February, 1989 and the F.I.R. was lodged at about 2 p.m. on 14th February. There was a delay of about thirty hours. Gyani (PW-2) while taking the injured to Bayana Hospital and while bringing his dead-body from Bharatpur Hospital, had to pass through the police station Garthi Bajna. A serious question arises as to why the report was not lodged soon after the incident Possibly to some extent the prosecution may be right in saying that they were in hurry to reach the hospital so the F.I.R could not be lodged while taking the injured to the hospital but in any case the incident could have been reported in the police by somebody. But there is no justification for not lodging the F.I.R. while coming back from Bharatpur Hospital alongwith the dead-body. They could have very well waited for half an hour in front of the police station and lodge the report. Whenever a murder take place, the normal conduct is to inform the police immediately without any delay. The explanation, given by the prosecution that they were in great hurry for cremation so the F.I.R. was lodged after it was over, is wholly unacceptable.
11. Police had recorded the statements of Amar Singh (PW-3) and Raghuveer (PW-4) on 15.2.1989 under Section 161 of the Cr.P.C. They are all close relations of the deceased. If their presence was natural then why their statements were not recorded on 14.2.1989 when the Investigating Officer admittedly visited the village on the date. For what the Investigating Agency had been waiting Murari Lal (PW-15) who had conducted the inquest proceedings, had sent the communication (Ex.D/5), according to which, the statement made by Amar Singh (PW-3) under Section 161 Cr.P.C., is the essential part of the inquest report. Even this proceeding under Section 174 Cr.P.C. does not mention the name of Ramesh as an accused person nor it is mentioned in the statement of Amar Singh.
12. PW-3 Amar Singh son of Shri Preetam Singh was the real nephew of deceased Lala Ram. He stated that on the date of the occurrence at about 8 a.m. he was going to ease himself. He heard the exchange of words between Lala Ram and accused persons. This is in contradiction with the statement of PW-2 who stated that Amar Singh was at home at the time of occurrence. According to hint, soon after the trouble arose, Ramesh gave lathi blow on the head of Lala Ram. The second blow was given to him by Diwan on his right hand. His statement is contradictory to the statement of PW-2 Gyani, according to whom he was the first to receive lathi blows and thereafter Lala Ram was injured. His statement under Section 161 of the Cr.P.C. was recorded on 14th February, 1989.
13. In this statement under Section 161 Cr.P.C. (Ex.D/2) it has come that the accused persons had assaulted Lala Ram with lathi and pharsa but when the medical examination revealed that there was no pharsa injury, he has changed the version. He further stated that for lodging the F.LR. only he accompanied Gyani. This is contrary to what has been stated by Gyani (PW-2) himself, who stated that he went to police station to lodge the F.I.R. alongwith Amar Singh, Raghuvir, Bhogi Ram and Devi Ram. On 13.2.1989, he was supplying water to the fields. His uncles Lala Ram and Gyani were sitting at the well. It is also contrary to what has been stated in the First Information Report and in the statement of Gyani (PW-2).
14. His statement under Section 161 Cr.P.C. was that at about 8 a.m. the accused persons came there armed with lathis and pharsa and started abusing them. They were asked by Lala Ram not to do so. On this, they started assaulting Lala Ram and Gyani. He saw the occurrence as he was standing very near. On receiving injuries, Lala Ram fell down. Then noise was raised resulting in collection of the witnesses on the spot. Whereas, his statement before the Court is entirely different and according to him he was going to ease in the morning at about 8 a.m. He heard exchange of words between his two uncles on the one hand and the accused persons on the other. There after they started assaulting Lala Ram, who fell down and on the noise being raised the witnesses arrived there.
15. Equally important point in the statement made by Amar Singh (PW-3) on 13th february, 1989 under Section 161 Cr.P.C. (Ex.D/2) was the complete absence of the name of accused Ramesh though he specifically named Darbe, Diwan, Sumer, Bhag Singh and Puran as assailants. Even Gyani (PW-2) named all these persons in the first information report. The name of Ramesh was subsequently introduced with some ulterior motive. This witness as well as Gyani (PW-2) stated that Lala Ram was taken to Hospital in unconscious state but Vishal Singh (PW 1), Sarpanch, who has nothing to do in the matter, has stated that Lala Ram was in full senses when he was taken to Bayana Hospital. Lala Ram was taken to the Hospital in his tractor. There is again contradiction in the statement of PW-2 Gyani, PW-3 Amar Singh and PW-1 Vishal Singh about the condition of deceased when he was taken to the hospital. Another striking feature is that Gyani as well as Amar Singh both have named Puran as one of the assailants but his name has been dropped. But how and why There is no explanation on the part of the prosecution. Out of five co-accused persons, Bhag Singh and Sumer have been acquitted. There appears to be no justification to uphold the conviction against the present appellants relying on the same evidence. There is no cogent explanation on record to believe a part of the story to convict the appellants and to disbelieve the other part for acquitting Bhag Singh and Sumer. PW-2, Gyani, the main witness, has been disbelieved by the trial Court while considering the case of Sumer and Bag Singh. It has not given any satisfactory reason to believe a part of the statement of PW-2 Gyani when he has assigned a specific role to Sumer for causing injury. It amounts to disbelieving his statement as well as the F.I.R. lodged by him. The statement of Gyani (PW-2) is contrary to the statement of Amar Singh (PW-3) and is also in variance with the first information report. It shows that Gyani (PW-2) and Amar Singh (PW-2) did not come forward with true story. If Puran was falsely implicated, there is reason to believe that the entire prosecution story is devoid of truth as it is full of contradictions. Though sometimes court can uphold conviction relying on a part of prosecution evidence if it appeared to be natural and consistant. It depends upon the fact of each case.
16. On the point of time, the first version of the incident is contained in the statement of Amar Singh (PW-3) recorded on 13th February, 1989. It is very significant for the reason that it had mentioned the use of pharsa and lathis but there was no pharsa injury. The name of prime accused Ramesh was also missing. Subsequently, in order to bring conviction at home,he improved his statement.
17. PW-4 Raghuvir is a resident of Agra (UP). He is married to the daughter of Preetam, who is another brother of Lala Ram (deceased). According to him, while he was going to ease himself in the morning on that date, accused Darbe, Diwan, Ramesh, Bhag Singh, Puran and Sumer were supplying water to their fields from the well, Lala Ram and Gyani came to the well and there was some exchange of abuses. Where as Amar Singh (PW-3) has stated that Gyani and Lala Ram were supplying water and the accused persons arrived at the scene and stalled abusing. Raghuvir (PW-4) stated that the first lathi blow was given to Gyani by Darbe and the second blow was given by Sumer. Whereas, Gyani has stated that he received injuries from the hand of Darbe first and the second blow was given by Sumer. This again shows material contradiction.
18. He further stated that Ramesh gave lathi blow to Lala Ram on the left side of the head and thereafter Diwan gave lathi blow causing injury on his thumb. When Lala Ram Fell down, all the accused persons ran away. On hearing the noise, he was first to reach the place Of occurrence followed by Amar Singh, Bhogi Ram and Gordhan. Bhogi Ram and others reached there after one or two minutes. At that time, accused Darbe was taking water from the well. He further stated that in case both the engines started working, no water would have been left in the well. This is again contrary to the statement of Mahendrapal Slngh (PW-12). He had accompanied Lala Ram to Bayana Hospital and General Hospital, at Bharatpur. Lal Ram was brought from Bayana Hospital to General Hospital, Bharatpur in a jeep. He did not know the name of the owner of the said jeep, whereas Gyani (PW-2) has stated that he was taken in the tractor of Vishal Singh. The presence of this Witness at the place of occurrence become extremely doubtful. He dose not appeal' to have seen the occurrence.
19. The prosecution has tiled to prove its case through highly interested witnesses. Gyani (PW-2) is the real brother of deceased Lala Ram, Amar Singh (PW-3) is his nephew, Raghuvir (PW-4) who married to his brother's daughter and belongs to Agra. All these witnesses are so closely related to the deceased that in the absence of any independent witness, it is not safe to uphold the conviction relying on their statements. Gordhan (PW- 7). Bhogi Ram (PW-13) and Devi Ram (PW-14) are also said to be the eye witnesses of the incident but they have not supported the prosecution story and have been declared hostile. Though they have been subjected to critical cross-examination but nothing material could be elicited from them.
20. PW-4 Raghuvir is a resident of another village and his presence at the time of incident is highly improbable.
21. Surprisingly, in this case Vishal Singh (PW-1) was not told about the incident by anybody, though the injured was taken in his tractor to the hospital. It was very natural what he should have been the first person to have been given the details of the occurrence either by Gyani or somebody else accompanying him. Apart from this, the natural conduct of Vishal Singh would have been to make enquiries as to how the occurrence had taken place, But complete silence on this point makes the prosecution case again doubtful.
22. Coming to the motive for committing the murder of Lala Ram, we find that the prosecution story is based on the ground that Lala Ram wanted to operate his engine to take water to his field as the crop was getting dried up. It was objected by the accused persons. This resulted in the unfortunate incident. Mahendrapal Singh (PW-12) has stated in the court that there was enough water in the well for both the engines to run simultaneously. On the spot, the crop of Lala Ram was not getting dried up for want of water. The statement of this witness Is fatal to the prosecution story on the point of motive.
23. The motive of murder is only to be considered in order to judge the probabilities. In order to highlight the probability of commission of offence motive sometimes becomes relevant. It is only a circumstance of corroboration. It is not always necessary to prove motive to establish the guilt in order to sustain conviction. It is only a reason which prompts the intention.
24. Lala Ram died in the hospital at Bharatpur at about 9 p.m. This information was given by Dr. Bhopal Singh Choudhary to S.H.O. Kotwali, Bharatpur. Thereafter, proceedings under Section 174 were initiated in which it was revealed that Lala Ram was found to be dead as a result of the head injuries. In that connection the statement of Amar Singh was recorded from which it was revealed that Lala Ram and Gyani were assaulted by Darbe, Diwan, Bhag Singh. Sumer and Puran, all residents of same village Todapura by lathi and pharsa. The post-mortem of the dead-body was conducted at 9.45 a.m. on 14.2. 89. No pharsa injury was found.
25. In the opinion of the Doctor, Shri Lala Ram died of skull and brain damage as a result of blunt force impact caused by injury No. 1 and this injury was sufficient to cause death in ordinary course of nature.
26. There is good reason to accept the contention of Shri Dhankar that this F.I.R. was lodged after due deliberation and consultation to get accused Ramesh convicted though his name did not appear in Ex.D/2 which is the statement of Amar Singh (PW-3) made on 14.2.89 and is the earliest version of the incident where he has mentioned the use of pharsa and lathis and also has not mentioned the name of Ramesh as an accused. If Ramesh was the main accused then his name could not have been omitted by Amar Singh and the statement of Vishal Singh in whose tractor he was taken to Hospital. It creates suspicion in the mind of the Court. Ramesh has falsely been implicated in the case. F.I.R. was lodged after the inquest report was prepared.
27. The statement of PW-3, which he made at the time of inquest report, that the accused persons were armed with lathis and pharsa does not get any support from the medical evidence as there is no phrasa injury on the persons of deceased Lala Ram and injured Gyani. Out of four injuries suffered by both, three are simple in nature. On the point of assault, there is a serious contradiction in as much as Gyani (PW-2) and Raghuvir (PW-4) have stated that first Gyani was assaulted and only thereafter deceased Lala Ram was attacked. Amar Singh (PW-3) has stated otherwise. The injury report established that no pharsa was used and the prosecution case becomes doubtful.
28. In the case reported in : 1975CriLJ1734 , Balaka Singh and Ors. v. The State of Punjab, while considering a murder case, the High Court had maintained the conviction of five accused persons but acquitted four because of the omission of their names in the body of the inquest report and delay in sending the copy of the F.I.R. to Ilaqa Magistrate remain unexplained. The F.I.R. was found to be written after the inquest report was prepared by A.S.I. All the prosecution witnesses made similar statements regarding all the nine accused persons including four accused who have been acquitted by the High Court. The Supreme Court while allowing the Special Leave Petition and acquitting the remaining five accused persons held that:
the prosecution case against the convicted accused and the acquitted accused was so inextricably mixed up that it was not possible to sever one from the other. Having regard to the partisan and interested prosecution evidence, it was not possible to reject the prosecution case with respect to the five convicted accused. If the case against the four accused failed, then the entire prosecution would have to be discarded and it would not be possible for Supreme Court to make out a new case to convict the appellants as had been done by the High Court. And that the prosecution case against the five appellants had also not been proved beyond reasonable doubt and the manner in which the F.I.R. and the inquest report had been made threw considerable doubt on the complicity of the five appellants in the crime.
Another equally important point considered in that case was that names of four out of nine accused persons were missing in the body of the inquest report and the omission was not explained, and it threw doubt on the complicity of four accused persons. F.I.R. was found to have been written after the inquest report was prepared by the A.S.I. F.I.R. was held to have lost its authenticity.
29. The sound principle of appreciation of evidence is that inconsistencies in the statements of witnesses go to the root of the matter. It is always justified to give benefit of doubt to the accused in the matter of substantial inconsistencies in the prosecution evidence. Suspicion, however, strong it may be, cannot take the place of proof. If a murder has taken place, naturally somebody has committed the offence. It is for the prosecution to establish and the court to find who has done it.
30. Before an order of conviction is passed, the Court has to examine and record a finding whether the act which has caused the death was done with the intention either of causing death or causing such bodily injuries which were sufficient in the ordinary course of nature to cause death. But the trial court has not considered this aspect.
31. In the instant case, the learned trial judge has proceeded on conjectures having lost sight of normal human conduct. The sequence of events and the assault as stated by prosecution witnesses do not inspire confidence inasmuch as whenever there is an assault,, nobody can say with mathematical precision as to whose lathi hit first and on which part of the body of the injured. Apart from this, the court has not taken into consideration the Ex.D/2, the statement of Amor Singh, which is earliest in point of time. Statements of these witnesses are highly artificial and do not fit in the human probabilities. The eye witnesses account of the incident does not reveal the truth and the genesis of the incident is shrouded in mystery. The prosecution has miserably failed to prove its case beyond reasonable doubt.
32. In the case reported in : AIR1954SC15 , Zwinglee Ariel v. State of Madhya Pradesh, the Supreme Court observed as under--
If the prosecution evidence as a whole is unreliable and cannot be accepted as correct for specific reason the silence of the accused can be of no avail to the prosecution, for such conduct of silence can never be permitted to become a substituted for proof by the prosecution. The substantive prosecution evidence being rejected as unworthy of credit, the alleged conduct must be referable to some innocent reason, Different persons react in different ways in similar circumstances and in the absence of satisfactory evidence the court ought not to treat the case as positively proved beyond reasonable doubt only by reason of the failure of the accused to put up his defence immediately when he was confronted.
In the case reported in : 1977CriLJ261 , Prem Singh v. State of Punjab, the Supreme Court while allowing the appeal of the accused, has observed:
Now, if the evidence of these two witnesses was disbelieved by both the lower courts in regard to participation by the four other accused in the incident, it is difficult to see how it could be appellant is concerned.
33. Thus, in the instant case the appellant has been convicted only on the statements of the two eye witnesses which do not reveal the truth though on the basis of the same statement other co-accused have already been acquitted. Applying the same ratio in the instant case, we are of the view that the conviction of the appellants cannot be upheld.
34. In the case reported in : 1957CriLJ1014 , Sorwon Singh v. State of Punjab, the Court observed:
It is no doubt a matter of regret that a foul cold-blooded and cruel murder should go unpunished. There may also be an element of truth in the prosecution story against the accused. Considered as a whole, the prosecution story may be true; but between' may be true' and 'must be true' there is inevitably a long distance to travel and the whole of this distance must be covered by the prosecution by legal, reliable and unimpeachable evidence before an accused can be convicted.
35. In the case reported on : 1976CriLJ1736 , Laxmi Singh v. State of Bihar, it was held that if the ocular evidence is totally inconsistent to the medical evidence, the evidence of eye witnesses cannot be believed. True, the Supreme Court, in the cases reported in : AIR1965SC277 (Ugar Ahir v. State of Bihar) : 1974CriLJ145 (Bhagwan Taraptil v. State of Maharashtra) and : 1985CriLJ493 (State of UP v. M.K Antony), has held that it is the duty of the court to separate grain from the chaff and rely on the prosecution witnesses on the portion which is corroborated by the medical evidence or other evidence. But in the instant case, after examining the entire evidence, it is not possible to separate the grain from the chaff. The prosecution story does not find support from the eye witnesses or from the medical evidence. The Investigating agency had also not been fair from the very beginning
36. The law is well settled that if the eye witnesses are closely related and are interested persons and independent witnesses are not examined, then it is not safe to base conviction on the statements of these witnesses. Lala Ram was injured after receiving the lathi injuries but no blood was found at the place of the incident. It again creates serious doubt in the mind of the court about the mariner in which the incident took place.
37. The logical conclusion which can be drawn in this case is that there is no doubt, Lala Ram had died in Bharatpur Hospital as a result of injuries received by him. But the doubt remains whether the accused appellants had inflicted the injuiy as alleged by the prosecution. The prosecution has failed to establish beyond reasonable doubt that Ramesh appellant had committed the murder or the act which has caused death, was done by him with the intention either of causing death or causing any such bodily injury which was sufficient in the ordinary course of nature to cause death.
38. For the reasons given above and after giving our thoughtful consideration to the evidence in the case, we find ourselves in disagreement to the learned trial Court. We set aside the order of conviction and the sentence passed against them. The appeal is allowed, he appellants are acquitted of all the charges levelled against them.
39. Appellants are in jail. They shall be released forthwith.