Ajodhya Singh and Others vs The State of Bihar

M.P. Varma, J.—This is appeal against the judgment of conviction passed by the Sessions Judge, Sasaram. The Appellants have been sentenced to suffer imprisonment for life u/s 302/149 of the Indian Penal Code (hereinafter referred to as ''the Code''). Further Appellant Sheomurat Singh has been convicted and sentenced to rigorous imprisonment for one year u/s 147 of the Code and the remaining six Appellants to suffer imprisonment for two years u/s 148 of the Code. Appellants Ayodhya Singh, Dasrath Singh, Baliram Singh and Jitendra Singh have been further sentenced to suffer rigorous imprisonment for one year u/s 27 of the Arms Act also.

The case against them arose on the statements of Lal Bahadur Singh, the victim of this episode. He was seriously injured in the occurrence and later, died in the hospital at Banaras. His fardbeyan (Ext. 1/1) was recorded by the police, on that basis n F.I.R. marked Ext. 1 was drawn. This fardbeyan has now been treated as dying declaration admissible u/s 32 of the Evidence Act. The narration of the story as given by him is as follows:

It was in the evening at about 4.30 P.M. on 16.8.79 when he was getting back to his village Bhakhar Band, he saw accused Ajodhya Singh and Dasrath Singh carrying guns, accused Baliram Singh and Jitendra Singh holding rifles and accused Mohan Singh and Ram Bachan Singh with Balam and accused Sheomurat Singh carrying a lathi. They all cried out to assault him. Accused Ajodhya fired a shot from his gun, but it did not hit him. Accused to Jitendra then fired another shot from rifle flu which struck him (Lal Bahadur Singh) on his right arm Accused Baliram Singh also opened fire which hit on his stomach. Being fatally injured he dropped down in a nearby field. He has further said that a few days prior to it, on 25.7.1979 his nephew was suddenly beaten by a dog belonging to accused Ajodhya Singh. He had remonstrated and chided Ajodhya Singh. But Ajodhya Singh instead of being apologistic had thrown the child in a water-reservoir resulting in instantaneous death of the child. Lal Bahadur had then asked Ajodhya Singh to kill his dog, Ajodhya Singh took it up as an affront and instead of killing his dog, he in conspiracy with his other companion, killed the informant Lal Bahadur Singh.

On hearing the cry of Lal Bahadur Singh, a, few persons had arrived and had witnessed occurrence. Lai Bahadur Singh was soon taken to Bhagwanpur police station. The Sub-Inspector Police (P.W. 8) has said that he found the condition of Lai Bahadur serious and took him to Bhagwanpur State Dispensary for immediate medical aid. The Sub-Inspector however, made station diary entry No. 272, of these facts, which has been marked as Ext. 4.

The doctor in the dispensary at Bhagwanpur give medical treatment but finding the condition critical advised to take Lai Bahadur Singh to Bhabhua hospital for proper and better treatment. The same Sub-Inspector P.W. 8 got back to Thana and made further entries of these facts in his station diary No. 274 (marked as Ext. 4/1) and then made arrengements to remove the victim to Bhabhua hospital by a Bus. P.W. 8 has then said that Lal Bahadur Singh was brought out of the State dispensary and after detaining him by the road side took down his statements (recorded as fardbeyan Ext. 1/1) and he was then taken to Bhabhua and admitted in the hospital.

It is here at Bhabhua that P.W. 8 thought of getting his dying declaration recorded by a Magistrate. He sent a requisition to S.D.O. Bhabhua for deputation, of Magistrate and one Kanhaiya ji Srivastava, an executive Magistrate came to the hospital and, recorded the Dying-Declaration of Lai Bahadur, Singh. This document has been marked as Ext. 9. P.W. 8 then took steps to examine three witnesses, who had accompanied Lai Bahadur Singh all through upto Bhabhua Hospital Here again the doctor at Bhabhua finding tie condition fast deteriorating advised to take Lal Bahadur Singh to Varanasi for still better; treatment. P.W. 8 then got back to Bhagwanpur police station and the members of the family took Lai Bahadur Singh to Varanasi, He was admitted in Kabir Chaura hospital,, but could not survive and met his death in the hospital at Varanasi.

Dr. V.B. Subramanyam conducted post-mortem examination over dead-body. The doctor could not be available for his evidence. The court succeeded in securing his attendance at a later stage after the close of the case for the parties and examined the doctor as a court witness. The attendance of the Executive Magistrate Kanhaiyaji, Srivastava could not be secured and the allege Dying Declaration recorded by him was brought on the record and proved in evidence by P.W. 11 an advocate''s clerk. This document has been marked as Ext. 9.

P.W. 8 connected further investigation, but he made over charge of the case in his transfer to another Sub-Inspector of Police, (P.W. 12), who finally submitted charge-sheet against the aforesaid accused, who were thus, put on trial.

In the sessions court during trial, 12 (twelve) witnesses were examined to substantiate the charges, out of whom P.W. 2 and 3 are said, to be the eye-witnesses P.W. 6 and 10 were also to be eye-witnesses of the incident, but the trial court did not rely on their evidence, as they were declared hostile by the prosecution. P.W. 4 is the first doctor, who had examined the deceased Lal Bahadur Singh at Bhabhua State Dispensary. P.W. 9 is also a doctor of Kabir Chaura Hospital Varanasi, which had assisted Dr. V.B. Subramanyem in conducting the autopsy over the dead-body of, the deceased. Lal Bahadur Singh and this witness had earlier proved the post-mortem report marked Ext. 8. As pointed out above, the doctor Mr. Subramanyam was also examined as a court witness on the same point. P. Ws. 1, 5 and 7 are most formal witnesses and their evidence needs no discussion. P. W. 8 is the first Investigating Officer and P. W. 12 is the second one, who conducted the part of the investigation and had submitted charge-sheet.

Thus, apart from the alleged statements said to have been given by the deceased Lal Bahadur Singh, at two different stages, the evidence of the eye-witnesses, P.Ws. 2 and 3 appear to be worth consideration to find out how far the prosecution succeeded in bringing home the charges against the Appellants. It, however, could not be denied that Lal Bahadur Singh died of the gun shot injuries. The Dy. Superintendent of hospital Dr. B.D. Singh P.W. 4 had examined him on 16-8-1979 at Bhabhua Government hospital and had found the following injuries on his body:

(i) One lacerated wound 2� � 2" � 1" on the front of the right forearm with fracture of the right forearm bones, both right radious and ulna were broken into pieces.

(ii) One punctured wound on the left side of the front of abdomen �" � �" in diamater. This formed the wound of entrance.

(iii) Wound of Exit on the right side of front of abdomen 3" from the ambilicus with coils of intestine protruding out through the wound. The wound was lacerated 3" � 1".

The doctor has said that though the injuries were simple in nature, but might have been caused by fire arms. The injury-report submitted by him is Ext. 2. He had advised to take Lal Bahadur Singh, to Varanasi for better medical facilities but he could not survive. The post-mortem report shows that the deceased had suffered following ante-mortem injuries:

(a) Firearm entry hole left lower abdomen 3 cm. to midline and 104 c.m. above left heel, horizontally placed 1� c.m. � 1 c.m. abraded collar present on the left margin. The rights less abutse and deeper found entered the abdominal cavity.

(b) Firearm exit hole 5 c.m. � 2� right flank 17 c.m. to the midline and 140 c. m. above right back, large gut protruding through and through the wound which is parforated at many places and stitches found.

(c) Protruding large gut through the wound in regular with two liters of blood and clots in the abdominal cavity.

(d) Firearm entry hole 5 c.m. � 3 c.m. over-the back and inter aspect of right forey arm 14 c. m. above the wrist.

(e) Firearm exit wound 8.5 cm. � 6 c.m. right forearm front 9 c.m. abote the wrist.

Dr. Subramanyam stated that the abdominal injuries were the cause of death of Lal Bahadur Singh. From the evidence noted above, there is no hesitation in holding that Lal Bahadur died of the gun shot injuries but the fact remains to find out if these accused were the assailants and the occurrence took place in the manner, as alleged by the prosecution.

In appeal before us, the counsel has submitted that the nature of the injuries suffered by the victim, prima facie indicates that he must have been unconscious all through. He could not have made any statement. In other words, the Fardbeyan Ext. 1/1 said to contain the statements of deceased Lai Bahadur Singh has been seriously challenged and at the same time it has also been argued that the alleged eye witnesses have been brought in court in aid of the prosecution just to seek corroboration of the alleged dying declaration.

It is the case of the prosecution that Lal Bahadur Singh was soon taken to police station Bhagwanpur. The evidence is that his brother P.W. 2 and also P.W. 3 accompanied Lal Bahadur Singh. They were all along with him upto Varanasi. The Officer incharge P.W. 8 met them at the police station and advised to take Lai Bahadur Singh immediately to Bhagwanpur State Dispensary. P.W. 8 has said that he accompanied Lal Bahadur Singh to the dispensary, where he was examined by a doctor Sri Sachidanand Pd. This doctor gave first aid and asked to take Lai Bahadur Singh to Bhabhua Govt. hospital. P.W. 8 speaks that he recorded the station diary entry. It is not clear to me nor the prosecution could give any explanation, why the statements of Lal Bahadur Singh (if he was at all able to speak) was not recorded. Not only that, why the statement of any one of those witnesses (two of them have figured in court as eye-witnesses accompanying Lal Bahadur Singh were also not recorded, (sic) was arranged and from Bhagwanpur, Lal Bahadur Singh was taken to Bhabhual. P.W. 8. states that he made another station diary entry'' of this fact in (Ext. 4/1). P.W. 8 then prepared an injury-report also to be submitted to the doctor at Bhabhua hospital. The injury-report'' is exhibit 2/1. But I am not getting explanationl why the other details were not mentioned or'' atleast the names of the persons causing such'' assault and injury to Lai Bahadur Singh. Both the station diary entries fall short of these facts.'' There is no mention about the incident in the manner as alleged, much to speak about the'' names of any of the accused.

If the doctor Sachidanand Prasad at Bhagwanpur hospital declared the condition of the victim as critical and if he was at all able to'' speak, the doctor attending on him, could have very well recorded his statement and at least it should have been done by the police accompanying him there in the hospital. We are not; getting correct picture. Dr. Sachidanand Prasad; has not been examined to tell the condition of; the patient nor any paper of the hospital has; been brought in court for our assessment of the situation. We are told that on the advice of the doctor, Lal Bahadur Singh was taken to Bhabhua by his men P.W. 8 also accompanied him to Bhabhua. Here it has been introduced that when Lai Bahadur Singh was taken out of the hospital on way to Bhabhua, the police officer P.W. 8 recorded his statement on a road-side. Why this rush-hush business after taking Lal Bahadur away from the hospital; when the doctor was available in the hospital.

The learned Counsel for the Appellants rightly submitted that these is something obscure or it has been obliquely done to create evidence. The doctor an independent fellow could not have been a party to the preparation of a surreptitious and fabricated document (Fardbeyan Ext. 1/1) said to contain the statements of Lal Bahadur Singh and therefore, P.W. 8 did it by a road-side. It has been argued that Lal Bahadur Singh was not in sense and he could not have made any statement as he was in, shock and coma. Here again, our attention has been drawn to the aforesaid two station diaries-entries, written by the police officer P.W.8. These two documents do not contain the statement of any of the witnesses nor even of Lal Bahadur Singh or his brother or his men who later appeared in court as eye witnesses to the incident.

Apart from it, there are other patent infirmities noticed in the statement (fardbeyan Ext. 1/1) i.e. the dying declaration, making it unworthy of Credence.

It has been the consistant view of the different courts of the country that a dying declaration, if found true, may form the basis for conviction of an accused even if there be no other corroborative evidence. If doubt creeps in it would be wholly unsafe to act on it. In the case before us, the deceased Lai Bahadur Singh said to have made the statements at two successive stages. The first one, as discussed above i.e. the fardbeyan of the deceased (marked Ext. 1/1) was recorded by P.W. 8 on the same day of occurrence i. e. 16.8.79 when Lal Bahadur Singh was taken out of Bhagwanpur State Dispensary for being taken to Bhabhua hospital for better treatment. I have already said that prosecution could not give any explanation why P.W. 8 did not record the statement of the dying man when he was taken to the police station or in the State Dispensary. P.W. 8 has come forward with an explanation that he in order to save the life of the victim Lal Bahadur Singh made arrangement to take him to Bhabhua hospital. It was quite good. But before doing all these, he recorded two station diary antries (Ext. 4) and Ext, 4/1. No explanation has been given why the statement of P.W. 2 the brother of Lal Bahadur Singh and also P.W. 3 another eye witness, who had accompanied Lai Bahadur Singh was not recorded. The two witnesses could have given out then and there a short synopsis of the incident or atleast could have given the names of the accursed, who assaulted Lal Bahadur, Singh, The circumstance tells upon the credibility of these, eye witnesses also.

It has again come in evidence that the condition of Lal Bahadur Singh was deteriorating fast and the doctor at Bhabhua advised to get the dying declaration recorded. Evidence is that later a Magistrate named Kahhaiyaji Srivastava was summoned and he recorded the statement of the dying man. This statement, described as dying declaration could not be legally proved in evidence. The Magistrate Kahhaiyaji Srivastava was not examined. It is a serious lapse. The trial court has only lamented over the conduct of the Magistrate in not appearing in court, on some pretext or the other. P.W. 11, an advocate''s clerk has been examined to prove the writings of the said Magistrate. The document described as dying declaration has been marked as Ext. 1. The trial court rightly did not attach importance to it. I find from the judgment impugned that a show cause notice'' was served on the Magistrate asking him as to why he should not be prosecuted for disobedience of the court''s order. It is not known what action has been taken against the Magistrate thereafter. But this does not bring any improvement in the case of the prosecution.

It has been argued that P. W. 2 also admitted in court (paragraph 12 of the deposition) that his brother Lal Bahadur Singh after getting injuries had become uncouscious and remained in coma till his end when he was taken from Bhabhua hospital to Varanasi this evidence is accepted, then there is an end of the matter regarding any dying declaration. The trial court has adjudged this evidence taking into consideration that P.W. 2 has been denied the suggestion made to him in cross-examination that Lal Bahadur Singh had remained unconscious all through till his end came at Varanasi. The trial court took the view that from the aforesaid denial it can atleast be gathered the deceased might have gained consciousness at some stage and that his statement was recorded. The findings of the trial courts based on certain assumption not supported by reliable evidence. The approach of the trial, court is not correct. In view of the non-examination of the first doctor of Bhagwanpur hospital and the positive statement of the doctor C.W. (1) that on receiving such injuries the victim would remain in the state of shock. C.W. 1 said that the patient might gain consciousness and might have again lapsed into coma and in that situation, it is not expected that he could have possibly made a long co-herent statement giving minutest details of the incident and naming all the accused and assigning overt acts to each one of them and also narrating some motive for the occurrence. I therefore, donot feel inclined to rely on the fardbeyan (Ext. 1/1), and quite likely; it may not be his statement. Even assuming, if it is so, that be could give some statements during the short interregnum when he might have regained consciousness, the possibility of whispering into his ears by his brother P.W. 2 and other witnesses accompanying him all through, cannot be ruled out. It would be unsafe to accept such doubtful evidence.

The prosecution has examined two eye witnesses. They are P.Ws. 2 and i both related to the deceased While discussing the evidence of these two witnesses, the trial court itself has held in paragraph 19 of the judgment as follows:

It is true that there is some discrepancy in the evidence of P.Ws. 2 and 3 and the dying declaration (Ext. 1/1) in respect of as to the actually exorted to assault and on the point whether any other accused except Jitendra Singh and Balram Singh had fired a shot from their fire arm.

Apart from above, we have seen that on the basis of fardbeyan (Ext. 1/1) the F.I.R. was drawn up P. W. 8 then registered a case on getting back to police station. A perusal of the F.I.R. shows that the same was despatched from the police station on 19.8.1979. It was drawn up on 16.8.1978. No explanation has been offered why it was so delayed in despatch from police station. Question again arises whether it was really sent to court on 19.8.89 or some time after. It was received in court; on 20th of August 79. The learned Counsel for the Appellants, has submitted that this delay must be viewed with suspicion and that the suspicion gets deeper in view of the circumstances discussed above as to whether the deceased Lai Bahadur Singh had really made any statement. This, long delay of the F.I.R. in reaching court has exposed the prosecution case to various criticism, and a right criticism that the F.I.R. is an afterthought, inasmuch as it could not be. accurately said that it is the'' statement of a dying man.

At another stage in paragraph 21 the trial court, while further discussing the credibility of the aforesaid two eye witnesses, observed as follows:

The attention of P.W. 2 has been drawn to para 19 of his cross-examination) to the effect that whereas he had stated before the police that accused Rambachan and Mohan had given the exortion that accused Dasrath had fired a shot, which hit none, and that the injured Lal Bahadur Singh had told him about the manner of occurrence. The I.O. P.W. 8 has however, contradicted this witness regarding this statement in paragraph 30 of his deposition stated that this witness had not stated the facts to him.

And with regard to the evidence of P.W. 3, it has been discussed as follows:

The attention of P.W. 3 Muni Ji Singh has also been drawn in para 15 of his crossly examination where in he has said that he had stated to the police that he had heard alarm and saw the accused Ajodhya Singh exhorting the assault that the shot fired by Jitendra Singh had hit the deceased on the right arm and the shot fired by Balam Singh had hit him on the stomach that Lal Bahadur Singh told him that Jitendra''s shot had hit him on the arm and Balram''s shot had hit him on the stomach, that Lal Bahadur. Singh was then taken under the Mahua tree and that it had rained after the occurrence. The I.O. (P.W. 8) has however, denied in para 31 of his evidence that this witness had not stated to him that the shot fired by Jitendra hit injured on the aim and the shot fired by Balram had hit him on the stomach.

The material contradiction in the statements these two witnesses made at the earlier stage tinder Section 162 of the Code of Criminal Procedure before the police is very significant and naturally, it would not be safe to rely on such statements to. uphold the conviction of the Appellants on a capital charge. It could not be used for any other purpose except to contradict the witness. The trial court however, has found out its own reasons in appreciating the same and in accepting the statements of the two eye witnesses, which in my opinion is not a correct approach. The reason given by the trial Judge is that he had perused the case diary in this regard and he was convinced that the contradiction was not in the nature to discredit the witness I can understand that a court is within its competence to read a police diary as an aid and that can be done to satisfy its conscience in appreciating the legal evidence available on the record but not beyond. It cannot be used as evidence against the interest of accused for upholding a conviction on any charge. This error apparent committed by the court below and fact remains that the twp witnesses P.Ws. 2 and 3 have not only contra dieted each other on material points but both further stand contradicted from their statements.

P.W. 8 has given the location of the houses of the parties. The house of the Appellant is south of the house of the deceased Lai Bahadur Singh. The Sahan of Appellant is there. P.W. 3 has said that the accused persons were at their Sahan. Even P.W. 1 states that the accused were at their Sahan. It has been said that Appellant Ajodhya gave order, but he himself resorted to firing. In that circumstance, it would be wrong to fasten all other accused who were at their Sahan land with the constructive liability u/s 149 I.P.C. read with Section 302 of the Code when it was a sudden and abrupt act of accused Ajodhya Singh. The charge u/s 302/149 therefore, fails. P. W. 3 has said that accused Ajodhya was shouting on getting over on his ''Nadand Charan'', whereas P.W. 2 stated that accused Dasrath had also opened fire. But this is not the case in the Dying declaration. It is also to be noted that witnesses have said that firing was from a rifle. But only some pelletes were found in the body of the deceased. This falsifies the case of firing by a rifle. Earlier case is that Ajodhya had fired in the air and nobody was hit. Animosity has been pleased with P.W. 3. He has admitted that his father was an accused in a case brought by deceased Lal Bahadur Singh and on further probe in cross-examination, P.W. 2 admitted that he did not see Ajodhya Singh firing any gun, nor did he see accused Sheomurat, Rambachan or Mohan Singh attempting to assault on deceased Lal Bahadur Singh. In these circumstances, it would be quite unsafe to place reliance on these two witnesses and to hold them guilty of the charge u/s 302 read with Section 149 of the Code.

Counsel for the Appellant has next submitted that not only the prosecution could not successfully establish the place of occurrence but has also failed to prove the manner of occurrence. It has been contended that from the statement of witnesses it is clear that copious blood had fallen down, but the investigating officer P.W. 8 did not find even a drop of blood at the place of occurrence. In order to explain the absence of blood. Counsel for the Respondent has drawn our attention to the statement of P.W.3 who has said there was a rain after the incident. Even P.W.8 the I.O. has also said that he found water in the field and near the place of occurrence and possibility of bood being washed out due to rain could not be ruled out. But some facts are otherwise. The I.O. has prepared sketch map marked Ext. 5. According to i this and also from the statement to P.W. 3 it has been noticed that the deceased had received gun shot injuries near the house of accused Ajodhya Singh, but the whole incident of Mar-pit took place in the field of another accused Rambachan Singh and this place has been marked in the map as ''Ka''. The place is about 130 yards away from the ''Nad and Charan''. The Recurrence took place late at 8 P.M. in the night on 16.8.79. The I.O. visited the place on the following morning and found the field ploughed and the earth was made plain and this means that there was no such incident in the field. There has been no evidence even remotely to suggest that the ploughing or the levelling of the earth in the field was done late in the night after the incident to erase or remove the sign of blood. In absence of any such evidence, doubt remains that there was any occurrence in the field of Rambachan Singh.

There is another snag in the story. P.W.3 has said that Lal Bahadur Singh was lifted up by the accused and taken to some distance under a Kahua tree All the accused ran away leaving Lal Bahadur under the tree. There was no protest by the members of the prosecution party at any stage and it is not understood why the accused would carry Lai Bahadur to some distance under a tree and leave him there. It is not the case that the accused left Lai Bahadur under the tree out of fear or any protest by any member of the prosecution party. But no blood was found even under the Kahua tree. In the dying declaration Lai Bahadur himself did not speak a word that after assault, he was picked up and taken up to Kahua tree and leaving him there the accused ran away. P.W. 2, another eye witness, who is the brother of the deceased is also silent about it. We get this in the evidence of only P.W.3 which does not inspire confidence, ft shows that the occurrence took place in some different manner and the witnesses are not clean in their statements.

There is another important factor. P.W. 8 the Investigating officer got back to Bhagwanpur P.S. from the dispensary. He found accused Ajodhya Singh present at the police station. Ajodhya Singh lodged information giving counter version of the case. The police recorded his statement and registered Bhagwanpur P.S. case No. 6(8) 79 under Sections 324, 149, 148 and 147/27 of the Code in which the deceased Lal Bahadur Singh was named as one of the accused. So this is another circumstance to indicate that material facts have been suppressed. This counter version gives an inkling that the incident happened in a different manner, and not in the manner as, alleged by the prosecution.

The motive for the occurrence is another circumstance, which too needs consideration. The prosecution alleges some motive on the part of the accused persons to commit the murder of Lalbahadur Singh. We got this in the statement of Lal Bahadur (Dying declaration Ext. 1/0- It has been said that about 20-25 days prior to this occurrence a dog belonging to accused Ajodhya Singh had beaten the nephew of Lai Bahadur Singh and thereafter another accused Sheomurat had thrown the child in a water reservoir resulting in his death. Lai Bahadur Singh had chided accused Ajodhya Singh for it and had asked to kill his dog He instead of killing his dog after twenty days took further revenge and killed Lai Bahadur Singh. But I feel that he could not reasonably have any motive to kill Lai Bahadur Singh after twenty five days. The motive alleged does not inspire confidence. The child was beaten by the dog. Why the accused Sheomurat would throw, away the child in the ditch full of water. It is not believable that any me would throw an innocent child in a ditch. Even assuming such incident of dog-bite took place, Lai-Bahadur Singh would not have been a mute spectator and we aid not have taken things lying down. Members of the prosecution party must have reacted sharply then and there Lal Bahadur would not have sat tight after making only a mild protest or simple remoustrace. It must have caused havoc and upheaval in the village. But no one even registered a case before police about killing of the child. It is an utter surprise that twenty or twenty five days after the accused persons would again resort to some tactics to kill Lai Bahadur Singh without any rhyme or reason or any quarrel over earlier incident of killing the child. Trial court has disposed of this aspect of the case by stating in paragraph 22 of the judgment impugned that motive is not an important element and the case of the prosecution would not fail in absence of any positive proof of motive. True it is absence of any motive would not necessarily lead to failure of every prosecution story. Motive is a mental phenomenon and at times it may not be easy to prove what was the motive behind. Motive has to be inferred from the attending circumstances. But once a motive is introduced in a case, it is the duty of the prosecution to satisfy the conscience of the; court that such motive did exist impelling'' accused persons to embark on such ghastly crime. No witness has been examined in this case either on the point of the child being bitten by the dog or of being thrown in the water by accused Ajodhya. We get its glimpses in the statement of Lai Bahadur Singh, in Ext. 1/1. I have already said that the relatives of the child would not have remained idle for so long a period, if the child was done to death : in that manner. A short and cryptic evidence was led to show that there was some panchayati in the village with no tangible result. I feel that the motive alleged in the the case totally (sic) to be not only out of context but a got up story prepared for the purpose of lending some truth in the prosecution case. But the prosecution has failed in its attempt making the prosecution story all the more weak and quite unworthy of credence.

Thus, on examination of the pros and cons of the case, I donot find any clarity in the story narrated by the prosecution. It is quite obscure full of doubts. It appears that the occurrence look place in a different manner and in a different situation and the prosecution hit not come to court with clean hands. The statement of the witnesses and the dying declaration are not worth relying to uphold an order of, conviction. The accused persons, therefore, deserves to be acquitted.

In the result, the appeal succeeds, the orders of conviction and sentences passed against these Appellants on all the charges are set aside. Let accused Baliram who is in jail be released forth with if not wanted in any oilier case and others will be discharged from their bail bonds.

Krishna Ballabh Singh, J.

I agree.