Chandra Maul and Others vs State of U.P.

This is an appeal preferred by Chandra Maul, Shashi Maul, Suresh and Ram Ashrey against their convictions u/s 302/34, I.P.C. vide S.T. No. 40 of 1973 and consequence sentence to imprisonment for life.

The facts giving rise to the prosecution version as available from the record are that on 11.3.1977 at 1 p.m. between village Kusumha and Kanhail, the present incident had taken place involving these Appellants and the deceased Fanendra. The Appellant Suresh was given the role of exhortation. Chandra Maul and Shashi Maul were armed with single barrel guns. After the first shot by Chandra Maul, Shashi Maul also fired upon him to prevent the deceased from escape. As a result of shots, the deceased fell down. Chandra Maul came close to deceased and again fired a shot. The witnesses from inside the arhar field raised an alarm. They claimed that Ram Ashrey was giving to accused Chandra Maul and Shashi Maul cartridges. After assaulting the deceased to death, they laughed full throat and declared "murder of their father is avenged". Thereafter, the assailants moved towards west. Witnesses after departure of the assailants came at the spot where the victim was lying. The deceased was also holding a lathi, which was pilfered by the pellets. The pellets were visible. The report of gunshot attracted many villagers to the spot along with the chaukidar. Leaving the chaukidar and the family members near dead body, informant left the place for police station to lodge a written report. It is marked Ext. Ka-1. It is alleged and this report was transcribed by P.W. 1 Virendra on the spot. It was taken down on his dictation by Brij Kishore P.W. 2. After registration of the case and preparation of check report, investigation was commenced. Site plan was prepared. All the relevant papers for the purpose of post-mortem examination including inquest memo were prepared. The statements of the witnesses were also recorded. Thereafter, charge-sheet was submitted in this case by P.W. 6 Abhai Singh Station Officer, Police Station Belipar. The distance of the police station from the spot was 8 miles.

The autopsy on the dead body of Fanendra deceased was conducted by Dr. Brahm Gopal Mathur P.W. 10. Post-mortem examination report indicates presence of lacerated punctured wound above left shoulder slightly backward 1-1/2" ? 1-1/4" tissue deep. Bone was fractured underneath the injury. Injury No. 2 was its exit wound, injury No. 3 is entry and No. 4 was its exit wound. It had four punctured wounds of the dimension 1-1/4" ? 1/4" in an area of 4-1/2" ? 4-1/2" outer to left nipple. Injury No. 5 had two punctured wounds with black margins. Injury No. 6 is exit wound of injury No. 5 which was entry of a single pellet of the dimention 1/2" ? 1/4" on left forearm with everted margin. One pellet came out on pressing the other wound. Injury No. 7 to 11 are lacerated wounds. Injury Nos. 7 has dimension 1-1/2" ? 1/2" ? muscle left side head posterior 3" from left ear. Injury No. 8 is a lacerated wound in the dimension of 1/4" ? 1/4" ? muscle, 1" behind left ear. Injury No. 9 is in the dimension of 1/2" ? 1/4" ? skin at the root of left ear lobe. Injury No. 11 is another lacerated wound in the dimension of 1/4" ? 1/5" ? skin on left temple region. Injury No. 10 is an abrasion of 2" ? 1" on left cheek in front of left ear, probably caused by a grazing pellet. All these injuries except injury No. 5 are on the left side of head, face and ear. Dr. Ram Gopal Mathur has stated that the death of deceased occurred in between 24 to 36 hours. He has further stated that injury Nos. 4 to 6 were result of firearm and rest of the injury can be caused as a result of fall on the ground or due to friction with hard blunt object. The death of the deceased could take place on 11.3.1977 at 1 p.m. Post-mortem examination report is Ext. Ka-17. In cross-examination he has stated that emptiness of the stomach and the loading of both the intestines could occur at least three hours after taking of the food. He has further stated that injury Nos. 1, 3 and 5 could be caused from a distance of about 4 ft. because these injuries had blackening. He also stated the assailants must have been standing at a higher level from the victim. He stated that injury Nos. 7, 8, 9 and 11 could be a result of some blunt object like lathi. He also stated that injury Nos. 1 and 5 were not on any vital part of the body.

The prosecution in support of its case has examined P.W. 1 Virendra Kumar Shukla, P.W. 2 Brij Kishore, P.W. 3 Kaushal Kishore, P.W. 4 Rangi Shukla and P.W. 5 Rajman Pandey as ocular witnesses. Apart from these P.W. 6 Abhai Singh. Investigating Officer, P.W. 7 Jai Narain Singh, Head Moharrir, P.W. 8 Prabhu Ram constable, P.W. 9 Gajpat, P.W. 10 Dr. Brahm Gopal Mathur who conducted the autopsy and P.W. 11 Budhai Prasad, District Medical Officer, Gorakhpur, were examined as formal witnesses.

The defence case is of total denial. It has also examined D.W. 1 Hari Shanker Lal Lekhpal to establish that Rajaram Pandey (P.W. 5) has no field near the place of occurrence. He has stated that there is no field in the name of Fanendra and Virendra in the vicinity because their father is alive and entire property is in his name. He has filed khasra of 1384 fasli.

Following arguments have been advanced by learned Counsel for the Appellants. There is complete absence of any immediate motive for murder. On the contrary, there is motive for false implication of the Appellants by the prosecution witnesses. Secondly, witnesses are partisan, highly inimical and chance. Their evidence, therefore, is to be relied upon with a pinch of salt. There are serious contradiction in the testimony of witnesses, which renders their presence at the spot not free from doubt. Evidence of the eye-witnesses is in conflict with the medical evidence. F.I.R. in this case is also challenged by the defence as ante timed and ante dated, transcribed at the police station and not at the spot, in consultation with the Investigating Officer. It has also been submitted by learned Counsel for the Appellants that the evidence was not supported by any independent witness. He also emphasized that from the facts on the record the place of the occurrence appears to have been shifted. Admittedly the fields around the place of the occurrence belong to the Appellants so the shifting of place was introduced bearing in mind the above situation. Lastly it is submitted before us that the land in question was lying near village Kusumha. It was under attachment by an order of the S.D.M. in Section 145, Cr. P.C. proceedings. In such a situation, no question of sowing any crop or going for watching the same could arise. Thus, the incident had not taken place in the manner, place and time as alleged by the prosecution.

It is alleged by informant P.W. 1 Virendra Kumar Shukla that he was accompanied by other eye-witness. The deceased, according to him had gone to watch his crop and after doing so he was coming back. His brother Fanendra and Sukhdev Harwa had gone to the field near Kusumha to harvest their masoor crop. He also accompanied his brother. They had left the house at 8 a.m. after taking their breakfast. They harvested the crop which was lying there along with the maze crop till 12 noon. Sukhdev went back with harvested masoor. They were also returning to their house shortly thereafter. On the way, they also inspected their crop standing in another field. Brij Kishore, Indra Dev and Rajman Pandey were also present in their fields. They were accompanied by Indra Dev. Brij Kishore and Rajman Pandey on their way back because it was time for them to take their meals. No witness had stated that these witnesses had harvested any crop. Fanendra was also holding a lathi in his hand. As soon as they reached near the field of Ram Rasiley at about 1 p.m. from the adjacent field Chandra Maul, Shashi Maul, Ram Ashrey and Suresh Appellants emerged out from their gojai field. They came to the west of this gojai field. On the exhortation of Suresh, Chandra Maul opened fire upon the deceased. That shot hit his brother on the chest. He tried to run in the north. The witnesses in the meantime hid themselves behind standing arhar crop in the vicinity. Chandra Maul fired a second shot upon the deceased from the front. This is an improvement which clearly indicates that the prosecution has tried to make its evidence compatible with the medical evidence. It has also been stressed before us that the deceased had sustained some pellet injuries on the left side head and some on left side of the chest. Injuries on the back and front of the chest are all on left side. After receiving shot fired by Shashi Maul, the victim fell down and died. Three more shots were fired by Shashi Maul upon the deceased, according to this witness. A pellet struck the lathi held by the deceased. Lathi was broken into five pieces. This witness started crying. Thereafter, he went to his house and returned to the spot with a sheet of paper and a fountain pen. He got his report scribed by Brij Kishore and proceeded for the police station on a cycle. He reached there at about 3 or 3.15 p.m. The report was given to head moharrir. He had admitted that Indra Dev witness and his deceased brother were married in Madhya Pradesh in Rewa. He failed to give the name of the village and kasba. He also denied that Indra Dev and his deceased brother were married in one and the same village. He also denied that Indra Dev is married to the daughter of Ayodhya Pandey. He was unable to give out the number of his field in Mauja Kusumha. He had denied that all the fields in village Kusumha including his own fields were attached in a proceedings u/s 145, Cr. P.C. He had also denied existence of any litigation between members of his village and people of village Chhithari about the aforesaid attached land. He further denied that people of village Chhithari had any field in Mauja Kusumha. He denied knowing any Keshav Singh. He also denied that Keshav Singh had moved an application against the deceased that he along with others had tried to harvest the attached crop. He also pleaded ignorance with regard to Ram Narain Shukla having moved similar application anywhere. He had denied that his brother was appointed Supurdgar of the crop belonging to his village men. He showed inability to give out the number and chauhaddi (boundary) of those other fields which he claimed to have visited after sending the harvested crop by Sukhdev. He has further admitted that Vijai of his village had lodged a report against his brother Surendra and his uncle Dalai. All the Appellants had threatened them five days ago. He and Mohan had obtained their bail two days before the incident from the Court. Vijai was inimical to Fanendra. He admitted that Rajman was prosecuted some 12 years ago on a report lodged by Beni Madho, father of Appellant Chandra Maul. He denied the suggestion that Hausala Prasad is son of aforesaid Vijai. He had denied that his brother Fanendra was arrested in a case of robbery on his report. He also denied that no case for harvesting the crop of Hausala Prasad is pending against him. He admitted that he was an accused along with Fanendra in a theft case. He had deliberately denied any enmity with other people though it is proved from the above discussion of his evidence. He had also denied the suggestion that in 1976, Fanendra, Indradev and Brij Kishore were nominated as witnesses in the case of loot of a truck. He further denied any knowledge about Indradev and Fanendra standing witnesses in an assault case on Dularey of his village. He admitted that place of incident is about 3-4 furlongs from his masoor field. He admitted that in between the place of incident and his masoor field arhar crops were standing in many fields. He stated just 8-10 steps from the place of the occurrence they sighted Brij Kishore, Indradev and Rajman coming from the side of their fields. In his examination-in-chief as well as in the F.I.R. and 161, Cr. P.C. statement this witness had alleged that they were going back together. He has further stated in para 11 that immediately on emerging from gojai field first shot was fired upon Fanendra and at that time Fanendra was in the middle of the road. He further stated that the fire hit Fanendra on the chest just below left scapula. The distance between the deceased and Chandra Maul was 7-8 steps at the time of first shot and when the deceased tried to run towards north Shashi Maul fired upon him from front. The third fire was made immediately afterwards from a close range on the deceased''s back. When this fire was made Fanendra fell on his abdomen. Even this statement is made with a view to remove the medical disharmony because there are pellet injuries just above and towards back of the left shoulder.

The Investigating Officer visited the spot at about 6 p.m. He recorded the statement of the informant and other witnesses. He had not shown the place to the Investigating Officer from where the fires were made upon his brother. He feigned ignorance whether in the murder of Beni Madho Ram Asrey was a pairokar. In the case of Bankey and Beni Madho, Indradev along with Fanendra was also an accused. He had admitted that he never dictated any F.I.R. before this F.I.R. He admitted that till he prepared his report none of his family members came there. It took him 10-15 minutes in preparing it. He admitted that all the witnesses were present at the time of preparation of the F.I.R. It took him only half-hour in going to his house and in preparing the F.I.R. The police station is 8-9 miles from the spot. He reached there in an hour and a half. Police station falls on the Pakka Road. He failed to give the time of his return to the spot from the police station. Panchnama though was prepared in his presence yet he was unable to tell when it was prepared. He further stated that inquest memo was prepared on the day of occurrence itself. He could not tell whether it was prepared in day light or in gas light. According to him when the dead body was dispatched it had become dark. The dead body was sent on an ekka (horse cart). None from his family had gone with the dead body. He further denied arrival of the wife of deceased at the spot at any point of time before dispatch of the dead body to mortuary.

From the above discussion of his testimony, it appears to us that he was not present at the spot at the relevant time. Had he been there so many laches as discussed above would not have crept in his testimony. As a matter of fact, to every important fact he replied deliberately in the negative or was evasive. His evidence very clearly shows that he and his witnesses are highly inimical to the accused Appellants. Indradev and Rajman Pandey were in a number of cases either accused with deceased or witnesses along with him. In the murder of the father of Appellants, Vijai and Fanendra along with Indradev were accused. His evidence is in direct contrast with the medical evidence. His evidence regarding manner of assault is not corroborated by other eye-witnesses. There is conflict regarding seat of injury from first shot. He could tell about the seat of injury of second shot fired by Shashi Maul from the front of the deceased. He could not give time of inquest. Whether it was prepared during day or night. Neither he nor any other member of his family accompanied the dead body. All the three gunshot injuries had blackening. According to him, two shots were fired from a distance of 7-8 steps. Only one fire was claimed by him from close range. This clearly belies manner of assault as alleged by this witness. These facts and circumstances considered in its proper perspective make it difficult for us to accept his presence at the spot when this murder came to be committed.

P.W. 2 is Brij Kishore. From the statement of P.W. 1 as disclosed in the examination-in-chief these witnesses were also watching their own crops. When the deceased and the informant were coming back, these witnesses also accompanied them. When we see his examination-in-chief, we find that he had stated that they met the deceased a few steps from the place of occurrence. Brij Kishore has earlier stated that he was coming back after watching his field towards his village. In the way Fanendra, Indradev, Virendra and Rajman met him. Thus, the statement of this witness does not synchronise with the statement of P.W. 1. This witness has corroborated P.W. 1 in all material particulars with regard to place of occurrence, and time and manner of assault. We have already discussed testimony of P.W. 1. Which appears incompatible with the medical evidence. Statement of this witness is quite contrary to the P.W. 1. He admitted that in the truck robbery case, he was a witness. That incident had occurred little before this incident of murder but he pleaded ignorance whether in that case Fanendra and Indradev were also witnesses. P.W. 1 had admitted this fact. He has further denied that Fanendra was a witness with him in a complaint case lodged by Sant Kumar against Jai Prakash. This witness has very clearly admitted that Hausala Prasad constable is son of Vijai, contrary to P.W. 1 he, had denied that Fanendra was a witness in some other cases also with him. He had admitted that litigation was contested regarding the land lying in village Kusumha. It was contested between the people of Chhithari and men of his village. When he was asked whether entire land of Kusumha region was under attachment he made an evasive reply but admitted that in the above proceeding his field was attached. He pleaded ignorance to the fact whether attachment of the fields took place before or after this murder. He stated that in the north of Ram Rasiley''s field after 4-5 furlongs entire land was under attachment. He denied that he and Fanendra were ever Supurdgar for his village. Thus, what was denied by P.W. 1 Virendra is admitted to this witness. According to him, Virendra had brought the paper, card board and pen. He had transcribed the report by putting cardboard underneath the plain sheet. He stated that Ram Pisyavan and Ram Sagar, family members of Virendra had also reached the place of occurrence soon after the incident. Virendra had denied this fact completely. Investigating Officer had prepared inquest memo after the site map and their statements. With the dead body he, Virendra and his family members went to police station Belipar. According to him, dead body was first taken to Belipar police station on a cot. From there, it was taken on a bullock cart. The sub-Inspector and the constables also returned to police station along with the body. He, Virendra and few of his family had gone to Gorakhpur along with the dead body from the police station. Indradev was also with them. This part of his evidence is contradictory to the statement of Virendra P.W. 1 who denied to have accompanied the dead body. There is discrepancy in his testimony and the testimony of Rajman with regard to the position of assailants vis-a-vis the deceased. He had admitted that the first two shots were fired from 7-8 steps. According to him, Fanendra had fallen partly in the gojai field of Chandra Maul and party on the road. He was unable to tell the seats of injury still he tried to say that the second fire struck the deceased a little below his skull. He further stated that at the time of third fire Fanendra was lying facewards on the ground. In order to make his presence plausible and acceptable he stated that he had to watch 4-5 fields of his. Last field he visited before starting for his house, was at a distance of 50-60 paces from the field of Ram Rasiley in south west. At that time in that field Arhar crop was standing. When Fanendra and Virendra met him in the way he was not watching any field as stated by Virendra P.W. 1. He met them at about 12.30 p.m. Place where he met them was close to the field of Ram Rasiley. In his statement to the Investigating Officer, he had stated that when Fanendra and Virendra met him, he was watching his field. He had denied the suggestion that the report of the case was transcribed at the police station by him. He denied any affinity with Fanendra or his family members. Statement of P.W. 1 that this witness was an accused along with Fanendra in the murder of the father of two Appellants and also witness along with deceased in several cases proves their intimate relationship. It clearly shows that this witness is trying to conceal his affinity from the Court. Therefore, it can, safely be gathered that he is an inimical and partisan witness. He has tried to support the prosecution case fully, although his presence at the spot is rendered highly doubtful. He had very candidly admitted that dead body was taken to the police station and from there it was sent to Gorakhpur on an ekka (horse cart). He also introduced watching of 5-6 more fields in addition to the one from where he started his return. We are unable to reconcile ourselves on this part of his statement. If the dead body was sealed and inquest memo was prepared what was the necessity to send it on a cot to the police station. No conclusion other than the one that it was taken there to prepare the report. It further goes to suggest that the witnesses could not see and identify the assailants. Indradev was an accused in the murder of father of the two Appellants. If he would have been there amongst the witnesses, these two persons would not have spared him. This is why the prosecution has not dared to produce him before the Court. He has contradicted P.W. 1 even on manner of assault. According to him, Chandra Maul fired first shot. In our opinion this witness was not present and he is deposing because of his proximity with the deceased and P.W. 1.

Rangi Shukla (P.W. 4) has turned hostile. He had denied any knowledge about this murder. He was cross-examined by the prosecution. He had also denied making any statement to the investigating officer. Therefore, his testimony is of no help to either side.

Rajman Pandey P.W. 5 is the last eye-witness for the prosecution. This witness admitted that the place of occurrence is not visible from village Kanail due to presence of bandh. He claimed that his village falls in police station Belipar. He claimed that he had set out from his field for his village at 12.30 noon. In the way, Virendra and Fanendra met him and little thereafter, Indradev also met them thereafter Brij Kishore met them. When they reached near the field of Ram Rasiley at 1 p.m., all the four Appellants emerged out from their gojai field. Two of the Appellants Chandra Maul and Shashi Maul were armed with single barrel guns. On the exhortation of Suresh, Chandra Maul fired upon Fanendra. The second shot was fired on him from front by Shashi Maul when the victim tried to run away. He fell on his abdomen. Thereafter, Chandra Maul fired the third shot. He had stated a new fact that no assailant after firing third shot came close to the deceased. He admitted that uncle of Chandra Maul, Kripa Narain, had prosecuted him in a riot case. He stated that no case for theft in 1962 was launched by Beni Madho, father of the two Appellants upon him. He pleaded ignorance about any such case being lodged upon Dalai, uncle of Fanendra. But it was admitted to P.W. 1. He further denied his prosecution at the instance of Beni Madho in 1963. He denied that Kripa Narain had prosecuted him for any theft case. He further denied that no litigation for any land was contested between him and Beni Madho. He admitted that 20-25 years ago a case u/s 107, Cr. P.C. was contested between him and Beni Madho. He admitted that none else bearing his name lives in his village. He denied that any of his land was attached before the incident u/s 115, Cr. P.C. He further denied that he was prosecuted u/s 307, I.P.C. for assaulting Beni Madho. He stated that his field is 2-3 furlongs away from the field of Ram Rasiley. He had gone to watch this field. He could not give number of that field. He stated that his field was recorded in the revenue record. He had given the number of adjoining fields. He stated that he had not seen any other person watching his field in the vicinity. He admitted that field of Fanendra is about 100 yards from his field. When he had came out of his field for his village Fanendra and Virendra met him 50 steps away Brij Kishore also met them. At another 10-15 steps Indradev came across them. According to him the place where Brij Kishore met them is at a distance of one furlongs from the field of Rangi Lal. Other part of his testimony is contrary to P.W. 2. Brij Kishore, P.W. 2 has stated that the place where they all met was little over 10-15 paces from the place of occurrence. On both sides of the road Ram Rasiley''s field existed. Thereafter gojai field of Chandra Maul was there. According to him when Chandra Maul first fired Fanendra was at a distance of 40-42 paces from the gojai field. Fanendra at that time was on the road. The road was 2-3 hand''s wide. First fire hit Fanendra on the left axillary fold on the chest. When Fanendra ran towards south, second shot was fired on him from the front by Shashi. According to him, third shot was fired from a distance of 2 steps. It struck him on his back. Barrel of the gun of Chandra Maul was at a distance of about 1-1-1/2 hand from Fanendra. He claimed that he remained there only for half an hour and thereafter, he returned to his house. Brij Kishore and Virendra remained at the spot. He claimed that the report of the incident was transcribed in his presence. He returned again to the spot on the call of Sub-Inspector. When he came the dead body was not there. No petromax was burning there. Only torch light was there. He claimed that his statement was recorded by the Investigating Officer and thereafter, he went back. From this part of his testimony, one fact is very clear that neither the dead body was sealed at the spot nor any person remained there. This situation is clearly available to us from the statement of P.W. 1 who stated that the body was taken to police station and he and P.W. 1 accompanied it. The police persons had also followed them. His evidence further suggests that Virendra had never gone back to his home as alleged by him, to bring the paper and pen. No doubt this witness stated that by the time he left the place of occurrence F.I.R. was prepared. But we find ourselves unable to accept this part of his evidence. He is not a reliable witness. He was friendly with the deceased. His evidence on manner of assault is in conflict with medical evidence. According to him, when first shot was fired, deceased was 40-50 paces away.

The investigation has been conducted in a most typical manner. According to the Sub-Inspector, on the date of incident he was on V.I.P. duty at village Bans Gaon. On the same day, he had received a copy of the check F.I.R. and G.D. through constable Goraknath Singh at Kasiharpal. He reached the village of occurrence at quarter to 5 p.m. Although this statement is in conflict with P.W. 1, he did not give any report for sending blood stained earth and simple earth along with the clothes belonging to the dead for chemical examination. He had admitted that he had not visited those fields from where Virendra and other witnesses claimed their return. According to him, on north side of the place of occurrence, arhar fields were visible upto miles. He conducted the inspection of the spot at quarter to 7 p.m. By that time, the inquest memo was prepared but he had not mentioned the name of any accused person therein. Crime number and Section on the top was there. He stated that he did not remember when first parcha of case diary dated 11.3.1977 was closed by him. The time of closing of this parcha was not noted in the case diary. According to him, first parcha was received at police station on 12.3.1977 and he himself dispatched it. Then he stated that as far as his memory goes it was sent by him through Sub-Inspector Gorakhnath Singh to the police station. On this parcha under the signature of C.C. 28.4. is noted. He had admitted that he recorded statement of the witnesses after 8 p.m. Thus there is serious conflict between statement of this witness and the eye-witnesses regarding the time of recording of their statements. According to this witness, immediately on the arrival at the scene of occurrence, their statements were recorded by him but this is not borne out from statement of P.W. 1 and P.W. 2, P.W. 3 had admitted that at 7.30 p.m. the Investigating Officer called him and recorded his statement. This is simply an improvement in his evidence to reconcile this anomaly created by above said two witnesses.

P.W. 7 head moharrir Jai Narain Singh also contradicts the statement of Sub-Inspector with regard the receipt of the first parcha. According to him, Sub-Inspector Gorakhnath Singh had brought only pieces of lathi, Ext-5, and a bundle containing blood stained cartridge, blood stained earth and simple earth. He did not state about submission of any parcha by the above Sub-Inspector including inquest memo as alleged by P.W. 6. These articles were received at 9 p.m. After report of this case on 11.3.1977 on report of any cognizable offence was registered at the police station. It is admitted to this witness. Return entry is at report No. 12 in the G.D. It was made by station officer P.W. 6 in his hand at 4 p.m. on 12.3.1977. From the statement of this witness it transpires that the G.D. was left open till return of the Sub-Inspector from the spot and all the entries were made after preparation of the F.I.R.

P.W. 3 constable Kaushal Kishore has escorted the dead body to mortuary. According to him, dead body was handed over to him and Girau chaukidar in sealed condition on 11.3.1977 at 6 p.m. He reached police lines Gorakhpur at about 8.15 a.m. in the morning on 12.3.1977. On the same day, the dead body was produced before the doctor for post-mortem. Post-mortem was conducted at about 2.40 p.m. He admitted that earlier he was posted in connection with the attachment of the land of this village. The attachment was effected 2-3 months before the incident. 253 acres of land was attached. He pleaded ignorance whether Fanendra was Supurdgar on behalf of his gram panchayat or not. He also feigned ignorance about the expanse of the land from the place of occurrence that was attached u/s 145, Cr. P.C. He admitted that in the truck loot Indradev and Brij Kishore were witnesses. Thus, from his statement it is apparent that the dead body had taken about 14 hours in reaching mortuary. According to him, distance between the headquarter and the place of occurrence is only 14 kms. The time when the death could have occurred as noted in this memo is 12.30 p.m. The time of its sending to headquarter is noted as 6.35 p.m. This is highly improbable that to cover a distance of 14 kms. even on ekka the constable concerned P.W. 3, would take 14 hours. This is an important fact in the face of the evidence that the dead body was taken on a cot first to the police station and thereafter from there to Gorakhpur. The distance of police station from the spot being 8 miles which means nearly 14.5. kms. The dead body in any event cannot be sent at 6.30 p.m. to Gorakhpur.

From the above discussion, we find that most of the property as stated by P.W. 3 was under attachment. There was no reason for the witnesses to go to see their fields or harvest crop. Once the property was under attachment for the last 2-3 months and in the Supurdgi of an individual, no individual can go there. Police guards were also in posting there.

In the end, we will also like to deal with submission regarding medical inconsistency also. In the F.I.R. three shots were claimed to have been fired upon the victim. The same version has been adhered to in the Court also. When we test the injuries in the light of the argument and the medical evidence, we find that injury No. 1 is a punctured wound in an area of 1-1/2" ? 1-1/4". Its examination shows presence of four wounds with black margins which means the barrel must have been close to the body. The second injury is exit of injury No. 1 and is on the right side chest. Third injury is an entry wound. It had four such entry wounds in an area of 4-1/2" ? 1". 4-1/2" outer to left nipple. It is probable that three pellets entered slightly backward and on the front of left side of chest. The third injury contains two punctures on the right forearm with black margins. Injury No. 6 is its exit wound. There were four lacerated wounds and one abrasion also. Thus, all these injuries were on the left side of the body except injury No. 5. Injury Nos. 7 to 11 indicate that they can be caused from the firearm from a considerable distance because these injuries had no blackening. All other entry wounds had blackening. It may be a case of single shot and in any event we do not find it case of more than two shots. Apart from this the condition of the stomach and intestine also give an indication that the incident might have taken place at some different hour than the one alleged by the prosecution. In our opinion a definite conflict between prosecution case and the medical evidence is proved. It appears that the assailants were standing on the left of the victim at the time of opening of first fire and the deceased might be sitting or crouching to harvest the crop. These injuries clearly suggest that no one fired upon the deceased from front and a firing third time after his fall was attributed to accused persons only to explain 2-3 pellet injuries on left side back. All these injuries are genuinely possible if some one fired upon him from his left. Medical evidence clearly remained unreconciled and the conflict is such that it renders presence of eye-witnesses at the spot during incident not only highly doubtful but also most improbable.

In the circumstances discussed above, the initial part of their case that these witnesses had gone to their fields to watch it or harvest does not appear true. It was employed as a ploy to create eye-witnesses. Enmity between the deceased and the witnesses on the one hand and the accused on the other is apparent and proved. Witnesses from their evidence are belonging to the party of the deceased. They, in the circumstances, are partisan and inimical. Much reliance in the circumstances, cannot be placed on their evidence to uphold the conviction of the Appellants especially when their versions with regard to manner of the assault are inter se in conflict. It is also not supported by the medical evidence. The testimony of the prosecution witnesses on this point is apparently inching towards reconciling this conflict. Serious improvements were introduced. Presence of blackening in all likelihood from a distance of 7-8 steps even in the case of user of regular gun is far removed from truth. The case as set out in the F.I.R. on this point was improved upon materially to synchronize it with the medical evidence. There is also serious doubt with regard to presence of these witnesses at their fields and their meeting on the road. According to P.W. 1 meeting these witnesses at a place was far removed from his field. According to P.W. 2 and P.W. 5, they met in the way near the field of Ram Rasiley which is close to place of occurrence. Thus, these witnesses appear amenable to prosecutor''s whims and dictates. They had all joined together to support the prosecution against the Appellants on account of enmity and partybandi. In the face of the fact that the land including fields of Virendra, Brij Kishore and Raj Man Pandey were all under attachment, these witnesses had used as a ploy their going to watch their crops. This is also surprising that P.W. 1 states that after taking their breakfast, they had gone to see their harvested masoor crop. After harvesting for a while, they sent back that part with Sukhdev and stopped harvesting any further at 12 p.m. If they had really gone to harvest masoor crops, it does not stand to our reason that they will abandon harvesting by 12 O''clock. As a matter of fact, the land and the crops were custodia legis and no one could harvest the same. In all probability Fanendra was fired upon when he was trying to stealthily harvest masoor crop from the attached land.

In the circumstances, the probability that they had gone to commit theft of masoor crop from the attached field cannot be eliminated. It is also admitted that police constables were posted to keep vigil over those attached fields and their crop. The probability cannot be eliminated that in their attempt to steal masoor crop, Fanendra had sustained injuries at the hands of the police guards or some other persons in the early hours of the morning. The empty stomach and loaded intestine also lends assurance to this conclusion.

Appeal of Ram Ashrey abates as he is reported to be dead. So far as other Appellants Chandra Maul, Shashi Maul, and Suresh are concerned, their appeal is allowed. Their convictions and sentences passed by IV Addl. Sessions Judge, Gorakhpur in S.T. No. 40 of 1978 are set aside. They are acquitted of the offences charged for. Since they are on bail, they need not surrender. Their bail bonds are cancelled and sureties discharged.