Gulam Rasool vs State of U.P.

Pratyush Kumar, J.—The instant appeal, filed by the accused-appellants, is directed against the judgment and order dated 20.11.1998 passed by Sri Ashok Kumar, Special Judge/Additional Sessions Judge, Sultanpur in Sessions Trial No. 188 of 1988 [State v. Gulam Rasool and six others] under Sections 147 , 148 , 149 , 323 , 324 , 506 , 307 , 302 IPC, P.S. Jamo, District Sultanpur, whereby the appellant Mohd. Shami was convicted under Sections 148 , 323 /149 , 302 /149 IPC and sentenced to undergo rigorous imprisonment of two years, rigorous imprisonment of one year and imprisonment for life and to pay fine of Rs. 10,000/-, in default thereof to further undergo rigorous imprisonment of three years respectively. Other appellants were convicted under Sections 147 , 323 /149 , 302 /149 IPC and sentenced to undergo rigorous imprisonment of one year on first two counts and imprisonment for life and to pay fine of Rs. 10,000/-, in default thereof to further undergo rigorous imprisonment for three years respectively. All the sentences were directed to run concurrently.

In the present matter prosecution case may be summarized as under:

"On 22.04.1987 at 11.15 P.M. at police station Jamo one written report of Shamsul Nisha was handed over by Habib and Mohd. Ayub, wherein the first informant had stated that his brother Mohd. Taqui resident of village Pure Hasan, Mauja Harkaranpur, P.S. Jamo, had old enmity with co-villagers Gulam Rasool, Mohd. Gulam, Mohd. Idrish, Mohd. Shamim, Mohd. Anis, Mohd. Abbas and Mohd. Zilani. Those persons intended to murder her brother. On that day her brother had gone to Raebareli, when he was returning at about 5.30 P.M. and reached on bicycle on the public way adjacent to house of Mohd. Ishaque, those persons who were waiting to murder him, started to beat her brother. On alarm raised by her brother, she came running to save him, on that, they also started to beat her. On hearing hue and cry raised there, Mahboob Alam, Mohd. Salim, Mohd. Habib, Wahid Ahmad and other persons of the locality reached there and on warning of the villagers, the accused persons after extending threats ran away towards their houses. Due to injuries her brother became unconscious and fell down on the spot. Accused Salim was armed with ballam and rest were armed with lathis, her brother was in critical condition, she was taking him to nearby hospital at Jayas with the help of villagers, necessary action be taken on her report."

On this report, chik FIR was scribed, Case Crime No. 43 of 1987 under aforementioned sections was registered, requisite entries were made in the report of the general diary and investigation was entrusted to Sub Inspector Sri H.N. Kanojiya, who started investigation and reached the spot. Due to night he could not do anything and in the morning of 23.04.1987 he started the investigation. In the meantime, both the injured were medically examined at Primary Health Centre, Jayas by Dr. Taufiq Ahmad, he found the condition of Mohd. Taqui serious and referred him for better treatment to District Hospital, Raebareli nearer to Jayas. The first informant took the injured to District Hospital, Raebareli by a hired vehicle. The injured reached the District Hospital, Raebareli at about 12.00 to 12.30 AM and admitted into the hospital. After half an hour he succumbed to the injuries and died. Postmortem examination was conducted on his dead body after taking all necessary steps. When this information reached at P.S. Jamo at about 10.35 AM on 24.04.1987 section 302 IPC was added and investigation was taken over by Satish Chandra Tripathi, the Station Officer, Police Station Jamo. Investigating Officer after completion of the investigation submitted the charge-sheet against all the seven accused.

The case was committed to the Court of Session, the appellants were charged under Sections 302 /149 , 323 /149 IPC. Shamim was also charged under Section 148 IPC whereas other appellants were charged under Section 147 IPC. They pleaded not guilty and claimed to be tried.

In the documentary evidence, we would like to refer some material papers, they are written report (chik FIR) Ext. Ka-1, FIR Ext. Ka-2, copy of the nakal reports Ext. Ka-3 and Ka-4, Site Plan Ext. Ka-5, Recovery memos Ext. Ka-6 and Ka-7, injury reports Ext. Ka-8 and Ka-9, inquest report Ext. Ka-10 and postmortem Ext. Ka-18.

In the oral evidence, on behalf of the prosecution, nine witnesses were examined. After close of prosecution evidence, statements of the appellants were recorded under section 313 Cr.P.C. whereby they denied the correctness of the facts stated by the eye witnesses, about the steps taken by the police personnel and medical and scientific evidence, they pleaded ignorance.

In the defence five witnesses, namely Mansoor Haq D.W.1, Dr. Taufiq Ahmad D.W.2, Hari Prasad Pal D.W.3, Nanhey Lal D.W.4 and Siddhanath Mishra D.W.5, were examined.

The learned trial judge after hearing the arguments of the parties, found the prosecution version worthy of reliance, convicted and sentenced the present appellants.

Feeling aggrieved the present appeal has been filed by the appellants.

During the pendency of the appeal, appellant No. 6 Mohd. Abbas son of Abdul Gaffoor had died. His appeal stood abated.

We have heard Sri Manish Bajpai, Advocate, holding brief of Sri Saurabh Srivastava, learned counsel appearing for the surviving appellants, Sri Umesh Verma, learned Additional Government Advocate for the State-respondent and Sri Sushil Kumar Singh, learned counsel appearing for the complainant and perused the records.

Learned counsel for the surviving appellants has submitted that the impugned judgment suffers from factual and legal errors. The findings recorded by the learned trial Judge are perverse and impugned judgment deserves to be set aside.

While elaborating his argument, first ground of attack is that FIR is ante timed, occurrence had taken place else where and after coming to know about the death of the deceased a false and fictitious FIR was lodged, the prosecution has failed to prove that at the stated date, time and place Mohd. Taqui was assaulted and as a result thereof he had died on the early morning of 23.04.1987. He has further argued that from place of occurrence on the east side there was a boundary wall due to which the witness Mahboob Alam P.W.2 had no opportunity to see the occurrence. Statement of Shamsul Nisha P.W.1 is full of material contradictions, both the witnesses are unworthy of reliance. The third witness Wahid Ahmad P.W.3 did not support the prosecution version. Medical evidence belies the ocular version of the occurrence. His last argument is that on the behest of Jamil Ahmad, pradhan, the whole case was fabricated, ante timed medical examination at Primary Health Centre, Jayas had been shown, thus, the prosecution evidence is full of loop holes and infirmities and deserves to be discarded.

On behalf of the State, these arguments have been extensively repelled and findings recorded by the learned trial Judge have been justified.

Before we propose to deal with the arguments submitted by the respective parties, we would like to recollect the manner in which appeal against conviction is required to be considered by this Court and scope of jurisdiction conferred on the Court by Sections 374 and 386 Cr.P.C. Further we would like to refresh the observation made by the Apex Court in the case of Ishvarbhai Fuljibhai Patni Vs. State of Gujarat, . Para-4 of the judgment reads as under:

"4. Since, the High Court was dealing with the appeal in exercise of its appellate jurisdiction, against conviction and sentence of life imprisonment, it was required to consider and discuss the evidence and deal with the arguments raised at the bar. Let alone, any discussion of the evidence, we do not find that the High Court even cared to notice the evidence led in the case. None of the arguments of the learned counsel for the appellant have been noticed, much less considered and discussed. The judgment is cryptic and we are at loss to understand as to what prevailed with the High Court to uphold the conviction and sentence of the appellant. On a plain requirement of justice, the High Court while dealing with a first appeal against conviction and sentence is expected to, howsoever briefly depending upon the facts of the case, consider and discuss the evidence and deal with the submissions raised at the bar. If it fails to do so, it apparently fails in the discharge of one of its essential jurisdiction under its appellate powers. In view of the infirmities pointed out by us, the judgment under appeal cannot be sustained."

In the case of Lal Mandi Vs. State of West Bengal, , the Apex Court in para-5 of the report has given the caution to the High Court reminding its duty in the matter of hearing of appeal against conviction. It would be gainful to reproduce the observation made in para-5 of the report, extracted below:

"5. To say the least, the approach of the High Court is totally fallacious. In an appeal against conviction, the Appellate Court has the duty to itself appreciate the evidence on the record and if two views are possible on the appraisal of the evidence, the benefit of reasonable doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot legally interfere with" the order of conviction where the trial court has found the evidence as reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a different conclusion on reassessment of the evidence. The observation made in Tota Singh''s case, which was an appeal against acquittal, have been misunderstood and mechanically applied. Though, the powers of an appellate court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate. The presumption of innocence of accused which gets strengthened on his acquittal is not available on his conviction. An appellate court may give every reasonable weight to the conclusions arrived at by the trial court but it must be remembered that an appellate court is duty bound, in the same way as the trial court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial court, all the circumstances available on the record so as to arrive at an independent finding regarding guilt or innocence of the convict. An Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on the record and arrive at an independent finding based on the appraisal of such evidence."

It would be convenient for us that before entering into the merits of the case, we must have a glance on the medical evidence adduced by the prosecution and the evidence of the defence to impeach its veracity.

Dr. Taufiq Ahmad, P.W.6 had medically examined the injured on 22.04.1987 at Primary Health Centre, Jayas, he has stated that on that date at 7.30 P.M. he medically examined Shamsul Nisha P.W.1 and found three injuries on her person. He proved injury report of Shamsul Nisha P.W.1 Ext. Ka-7, therein following injuries have been recorded.

"(i). Lacerated wound 3.00 c x 0.5 cm muscle deep on the left side of face below left eye. Fresh blood clot and swelling were present. Margins irregular swollen.

(ii). Lacerated wound 1.00 cm x 0.5 cm muscle deep over nasal bridge. Margins, underlying swollen. Fresh blood clot present.

(iii). Contusion 3.00 cm x 1.00 cm, vertical in shape over outer part of left shoulder joint. Margins irregular swollen red in colour."

All the injuries were simple in nature and caused by blunt object. Duration was fresh.

He has further stated that at 7.45 P.M. he had medically examined to Mohd. Taqui and found twenty injuries on his person.

Since we would be recording ante mortem injuries found during autopsy of deceased Mohd. Taqui, it would be needless for us to reproduce them twice. Suffice is to say that for injury Nos. 1 to 8 x-ray was advised. Except injury No. 6 opinion was given that they were caused by blunt object. Injury No. 6 was caused by sharp edged pointed weapon like ballam. Injuries were fresh. The injured was unconscious. His general condition was poor. He proved the injury report of Mohd. Taqui Ext. Ka-8. This witness was cross-examined on behalf of the defence on the nature of weapons used, about the differences in duration of injuries of two injured and he was suggested that time of medical examination, police of P.S. Jamo was present and the doctor medically examined the injured at 8.30 P.M. and on account of the pressure of the police, he ante timed the medical reports. This suggestion was denied and he also denied the suggestion that injury No. 6 was lacerated wound and on the pressure of the police he wrote that as a stab wound.

Dr. U.C. Gaur, P.W.9, conducted the postmortem examination of dead body of Mohd. Taqui on 23.04.1987 at 4.00 P.M. at mortuary Raebareli. He has stated that according to enclosure-8, which is request for postmortem examination of the deceased, the deceased died at District Hospital, Raebareli on 23.04.1987 at 1.00 A.M. Built of the deceased was average, rigor mortis was present in upper and lower limbs. During external examination, the doctor found eighteen ante mortem injuries on the person of the deceased. During internal examination, the doctor found rib Nos. 8, 9 and 10 on the right side fractured, on the left side rib Nos. 8 and 9 were fractured. Pleura was torn. Both lungs were ruptured. Except back side of the head Haematoma was present. In his opinion death had occurred due to shock and haemorrhage as a result of ante mortem injuries. He proved the postmortem report Ext. Ka-18 and opined that ante mortem injuries were sufficient to cause death in the ordinary course of nature. During cross-examination he has admitted the possibility that soon after receiving head injuries due to shock the digestive process of the deceased could have been slowed. He has also admitted that in the stomach he found liquid, which might be liquor. He has also admitted that in the stomach he found some undigested food particles. He has also admitted that weight of semi undigested material was not mentioned by him. In the postmortem he has recorded the ante mortem injuries, they are as under:

"(i). Stitched wound 5.00 cm in length on left side back of head 5.00 cm about Ext. occipital preference.

(ii). Stitched wound 5.00 in length mid-line of head 3.00 cm above external occipital preference.

(iii). Stitched wound 5.00 cm in length 15.00 cm away the (paper torn).

(iv). Stitched wound 3.00 cm in length 2.00 cm proximal to (paper torn).

(v). Stitched wound 4.00 cm in length on rt. side heel 7.00 cm above.

(vi). Stitched wound 5.00 cm in length on rt. side mark of heel 7.00 cm.

(vii).Stitched wound 3.00 cm in length on rt. side (sic) of heel 21 cm.

(viii). Abrasion 3.00 cm x 2.00 cm on right side forehead 3.00 cm above (paper torn).

(ix). Abrasion 5.00 cm x 1.5 cm on left forearm 6.00 cm (paper torn).

(x). Abrasion with (sic) c.00 cm x 2.00 cm on tip of right side.

(xi). Contusion 8.00 cm x 2.00 cm on back side of (sic) 12.00 cm above (paper torn).

(xii). Abrasion 3.00 cm x 1.5 cm on outer part of right elbow.

(xiii). Contusion 3.00 cm x 1.5 cm on back of right head (paper torn).

(xiv). Multiple abraded contusion in an area of 32.00 cm (paper torn) on both side back 6.00 cm below (sic) of neck (paper torn) and 3.00 cm x 1.5 cm.

(xv). Abrasion 0.5 cm x 0.5 cm on left leg 2.400 cm (paper torn).

(xvi). Abrasion 1.00 cm x 0.5 cm rt. leg part (paper torn).

(xvii). Abrasion 0.5 cm x 0.5 cm input of (paper torn).

(xviii). Contusion 2.00 cm x 1.00 cm on left arm."

We find statement of Dr. U.C. Gaur conspicuously silent on several points, such as he did not express any opinion about the time of death. He has merely referred an enclosure No. 8 to indicate the time of death. Secondly, during examination-in-chief he kept silent about the contents of the stomach and state of large intestine. Thirdly, he has not given his opinion about the nature of weapons probably used for causing these injuries. However, in the postmortem report, we find his opinion about probable time since death as about one day i.e. nine hours more than the time stated by the prosecution. The presence of rigor mortis on upper and lower limbs, postmortem staining discoloration greenish in colour were present rather indicative of the reasons for this witness not to opine about the time since death himself. His testimony reveals that this witness during cross-examination used the phrase ''semi undigested food particles''. In the postmortem report, he used the phrase ''semi digested particles''. He found the bladder empty. In the large intestine he found faecal matter present.

From statement of Shamsul Nisha P.W.1 it has come out that from the village of the deceased, deceased used to go Jayas on bicycle and from Jayas he used to go by bus to reach Raebareli. This shows that deceased had to spent some time in journey from Raebareli to his village. We propose to examine the defence version that the medical examination at Jayas were manufactured by the police of police station Jamo and it was ante timed. The allegation of the defence is also that deceased was murdered else where and he was found dead, to implicate the appellants evidence was created. The reservations shown by Dr. U.C. Gaur P.W.9 may not be sufficient to disprove the veracity of the prosecution version, however, we think that on their basis we are justified in minutely scrutinizing the other medical evidence in the form of injury reports of Smt. Shamsul Nisha P.W.1 and Mohd. Taqui (deceased) Ext. Ka-7 and Ka-8 and statement of Dr. Taufiq Ahmad P.W.6.

At this juncture, we have to take into consideration the evidence of the defence. Mansoor Haq D.W.1 is the ward-boy at Primary Health Centre, Jayas by whose hand Dr. Taufiq Ahmad had sent information about the medical examination of the deceased and Shamsul Nisha P.W.1 as they had neither lodged the FIR nor they were brought by the police with chitthi mazrubi. According to this witness Primary Health Centre, Jayas, is at a distance of one furlong from P.S. Jamo. He has stated that on 22.08.1987 (22.04.1987 ?) he took a memo to police station and after getting it received he gave it back to Dr. Taufiq Ahmad. He has also stated that original memo is not available in the Primary Health Centre, Jayas and filed a certificate to that effect Ext. Kha-1. Ext. Kha-1 has been issued by the pharmacist, that the original memo is not available on the record. Ext. Kha-2 is the photostat copy of the original memo, which reveals that Dr. Taufiq Ahmad had sent the information about the medical examination of both the inured to police station Jayas. On this memo time of the receiving has been shown to be 7.35 P.M. Siddhanath Mishra D.W.5 was the constable clerk, who received that memo. According to his evidence memo was received at 21.35 hours i.e. 9.35 P.M.

Hari Prasad Pal D.W.3 is the Head Moharrir, who made the entry of the receiving of memo in report No. 47 at 21.35 hours, though he has stated that information was received earlier by Sri Siddhanath Mishra, by whom entry was to be made in the GD but he discovered that entry was not made, so he entered at 9.35 P.M. Mostly the defence witnesses are the Government officials and they appear to be reluctant to support the defence version.

However, two facts persuade us to believe that the memo was received not at 7.35 P.M. but at 21.35 hours i.e. 9.35 P.M. First fact is that in the police station time is always shown as per railway times from zero hours to 23.00 hour. Had it really been received at 7.35 P.M. it would have been marked at 19.35 P.M, therefore, it appears that some one not conversant with the working of the police office had subsequently entered time as 7.35 P.M. at photostat copy of the memo.

The second fact is that report No. 47 of the G.D. of Jayas is an official document, without any cogent reason we cannot disbelieve the entry made therein. The entry shows that memo was filed and soon thereafter it was entered in the GD. The explanation offered by Hari Prasad Pal D.W.3 stands contradicted by the statement of Siddhanath Mishra D.W.5, who categorically said that memo was received by him on that day at 21.35 hours. The disappearance of the original tilts the scale in favour of the defence version and preponderance of probability is that memo was received at 9.35 PM at police station Jayas, therefore, chances are that the alleged time of medical examination might have been manipulated. Unfortunately, original injury report of Mohd. Taqui is in such a torn condition that the time of medical examination cannot be read. In the paper book the compiler has written this time as 7.45 PM after date of the medical examination, thus, same practice was followed to indicate the time. The remarkable thing is that during medical examination of both the injured, Jamil Ahmad, pradhan of the village was present, during statement of both the eye witnesses, who supported the prosecution version, Jamil pradhan was found present. It is the assertion of the defence that due to enmity Jamil Pradhan has taken advantage of unfortunate incident and falsely implicated the appellants.

To summarize, statement of Dr. U.C. Gaur P.W.9 is not revealing about the time of death, weapons used for causing injuries and contents of stomach. Statement of Dr. Taufiq Ahmad P.W.6, comes under cloud due to late receiving of memo at police station Jayas, though we believe them to this extent that Shamsul Nisha P.W.1 and deceased Mohd. Taqui received injuries on 22.04.1987, injuries of Shamsul Nisha P.W.1 were simple in nature, caused by blunt object and injuries of deceased-Mohd. Taqui resulted in his death, which we hold it to be homicidal death. In our opinion the prosecution has failed to prove time of death of deceased Mohd. Taqui beyond all reasonable doubt by medical evidence.

Now we have to see whether ocular testimony is worthy of reliance and with the help of ocular testimony we can fix time of occurrence and time of death of the deceased accurately.

On behalf of the surviving appellants, learned counsel for the appellants has impeached the veracity of the statement of Shamsul Nisha P.W.1 on various grounds. Though Shamsul Nisha P.W.1 is an injured witness, even ignoring the statement of Dr. Taufiq Ahmad P.W.6 that time of injuries of both the injured persons may have been difference of two hours, we proceed to treat her as an injured witness even over looking the fact that those injuries are simple and could be manufactured.

According to learned counsel for the surviving appellants in the statement of Shamsul Nisha P.W.1 there are material contradictions in the form of omissions. His second ground is that Shamsul Nisha P.W.1 could not have seen the occurrence from where she claimed to have seen and heard. First we take first point i.e. omissions amounting to contradictions occurring in her statement.

Sri Satish Chandra Tripathi, the then Station House Officer, P.S. Jamo P.W.7 had examined Shamsul Nisha P.W.1 on 24.04.1987, he has proved the following omissions in the statement of Shamsul Nisha P.W.1.

"i). Shamsul Nisha P.W.1 did not tell him that she was going to the house of Satya Narayan to take Soop.

ii). She ran (to save the injured) on raising alarm, Idrish, Amin and Mohd. Gulam had beaten her.

iii). Mohd. Shamim had stabbed spear (in the body of Mohd. Taqui).

iv). She took the injured to Jayas hospital by tractor trolly after laying kathari on that.

v). Her brother on the day of occurrence left the village at 5.00 AM for Jayas."

These are the omissions made by this witness from the narration given by her in the FIR and in her statement under Section 161 Cr.P.C. During the cross-examination she was asked about the omissions, she simply showed her inability to explain why these facts were not mentioned by the scribe and Investigating Officer in the FIR and in the statement but she had reiterated that she told these facts to the scribe and Investigating Officer both.

The question arises whether these omissions are material and fall within the category of contradictions and they hit the very root of the substratum of the prosecution version. Omissions amounts to contradiction. There is no controversy on this point. When we consider these omissions in the light of the site plan, we find that first omission is very material, if this witness was really in the house she could not have seen the place of occurrence, however, on her way to house of Satya Narayan not only she can show her presence on the public way but also from that place on that way place of occurrence becomes visible, therefore, we consider the first omission to be material. By whom she was beaten, her earlier statement was vague, now she has specifically mentioned three persons i.e. also a material contradiction, so as the case with the use of ballam by Shamim rest omissions do not directly relate to the occurrence, therefore, it cannot be treated to be material contradictions when from her statement we take out the omissions and substitute the earlier statements then we find the testimony of this witness looses its evidentiary value because then she could not have claimed to see the occurrence nor she could give description of the occurrence.

The second doubt crept in against her testimony is that in the middle of the abadi at that distance the witness whether could have heard the noise created by the occurrence. In view of first finding recorded by us, this point does not remain very material and it also depends upon the hearing power of each individual, therefore, we refrain ourselves to express any opinion about this ground. After reading her statement as a whole we find that her statement does not inspire our confidence.

Veracity of statement of Mahboob Alam P.W.2 has been impeached on the ground that he being relative of the deceased, existence of boundary wall from the place where this witness claims to have seen the occurrence. In the site plan the Investigating Officer had shown the place of occurrence near the house of Ishaque and this witness has been shown near the pond. Between these two places in the site plan boundary wall has been shown, part of which has been shown to be constructed by the rammed earth. This witness has admitted that at the time of his statement on oath there exists a boundary wall, six feet in height, but according to him at the time of the occurrence there was no boundary wall. His statement stands contradicted with the location of the boundary wall as shown by the Investigating Officer in the site plan. For this reason we also conclude that this witness had no opportunity to see the occurrence and we do not think his testimony is worthy of reliance.

Third eye witness is of no help to the prosecution. Wahid Ahmad P.W.3 has stated that he had seen the accused persons belabouring Mohd. Taqui at that time Shamsul Nisha P.W.1 also reached there but he did not see that anyone had beaten her. During cross-examination he has admitted the existence of boundary wall in question at the time of occurrence. He has further stated that time of occurrence it was dark and when the witness reached at the spot the accused had already run away. Noticeable fact is that real sister of this witness was married to the deceased. He is also a close relative of the deceased. He was resident of nearby place. According to him the incident had occurred when it was dark and assailants could not be identified.

First two eye witnesses have been found by us not worthy of reliance. The third eye witness does not support the case of the prosecution, medical evidence is full of doubt, the prosecution story in itself is highly improbable and unnatural as pointed out by the learned counsel for the appellants. Had the appellants on account of old enmity wanted to murder Mohd. Taqui and they were in the knowledge when he would be coming back, they would not have waited for him to reach within the abadi, where their murderous assault might have been prevented by the witnesses. They could have ambushed him before he reached the abadi of village and could have conveniently murdered him. This inherent improbability is also a fact, which was not considered by the learned trial Judge.

Though learned Additional Government Advocate has defended the impugned judgment on the basis of statement of injured witness Shamsul Nisha P.W.1 but we find that the learned trial Judge has also erred in placing reliance on her testimony on account of her being an injured witness. Presence of Jamil Ahmad, pradhan, at everywhere lends support to the argument of the learned counsel for the appellants that on his behest medical examinations not only were ante timed but non existent injuries were shown on the body of Shamsul Nisha P.W.1 i.e. why she had not to undergo any further treatment.

We agree to this argument that this possibility cannot be ruled out and no implicit reliance can be placed on the testimony of Shamsul Nisha P.W.1 and findings recorded by the learned trial Judge on its strength are erroneous and illegal.

We do not find the prosecution has been successful to prove charges against the surviving appellants beyond all reasonable doubts. The appeal has substance. The conviction and sentence of the appellants awarded by the trial court deserves to be set aside and the criminal appeal deserves to be allowed.

Accordingly, the criminal appeal is allowed. The impugned judgment and order dated 20.11.1998 passed by Special Judge/Additional Sessions Judge, Sultanpur in Sessions Trial No. 188 of 1988 [State v. Gulam Rasool and six others] under Sections 147 , 148 , 149 , 323 , 324 , 506 , 307 , 302 IPC, P.S. Jamo, District Sultanpur is set aside. The conviction and sentence of the surviving appellants awarded by the trial court are set aside. The appellants are acquitted from the charges levelled against them. The appellants were on bail during the pendency of the criminal appeal but on 22.07.2015 the appeal was listed before the court and on account of the non appearance of the counsel for the appellants bail of the surviving appellants was cancelled. Pursuant to the order dated 22.07.2015 the surviving appellants have been arrested and since then they are in jail. The appellants are in jail. They be released forthwith, in case, they are not wanted in any other case.

Office is directed to certify this order to the court concerned forthwith for compliance and to send back the lower court record.