Jai Ram Singh and Others vs State of U.P.

Surendra Vikram Singh Rathore, J.—1. Criminal Appeal No. 1205 of 2005 has been preferred by Jai Ram Singh, Kaptan Singh both son of Devi Lal and Dhirendra Singh son of Jai Ram Singh. Criminal Appeal No. 1216 of 2005 has been preferred by Veeru Yadav, Kurindra, both sons of Ghurai Yadav and Ram Naresh, Ram Sewak, both sons of Deshraj Yadav.

Since both these appeals arise out of the same judgment, hence both these are being disposed of together.

Heard Mr. Mridul Rakesh, Senior Advocate assisted by Mr. Manish Bajpai, Mr. S.A. Osmani, learned counsel for the appellants, Ms. Ruhi Siddiqui, learned A.G.A. for the State and perused the lower court record.

Under challenge in the instant appeal is the judgment and order dated 20.7.2005 passed by learned Additional Sessions Judge, Court No. 4, Hardoi in Sessions Trial No. 5 of 2003, and Sessions Trial No. 281 of 2003 arising out of Case Crime No. 306 of 2002, Police Station Bilgram, District Hardoi whereby the appellants were convicted and sentenced as under:--

"(i) 148 I.P.C. two years rigorous imprisonment.

(ii) 302/149 I.P.C. imprisonment for life and fine of Rs. 10,000/- each with default stipulation of one year additional rigorous imprisonment."

Both the sentences were directed to run concurrently. However, Kaptan Singh and Jai Ram Singh, appellants in Criminal Appeal No. 1205 of 2005 were acquitted of the charge under Section404 I.P.C.

In brief the facts of the instant case may be summed up as under:--

"Complainant Hari Nath son of Ram Bharose R/o Kankrakheda, Police Station Bilgram District Hardoi lodged an F.I.R. at police station Bilgram at 6:15 p.m. alleging therein that on 24.8.2002 in the after noon his brother Raju and Panna Lal had gone to Bilgram for shopping. When these persons were selecting shoes and slippers for them in the shoe shop of one Munna alias Iliyas situated near Nagar Palika Parishad Office then because of the old enmity, appellants Kaptan Singh armed with DBBL gun, Jai Ram Singh armed with country-made rifle, Dhirendra Singh son of Jai Ram Singh armed with licensee rifle, Veeru armed with country made pistol, Kurindra armed with country-made pistol of 315 bore, Ram Naresh armed with country-made gun, Ram Sewak armed with country-made pistol of 315 bore reached there and challenging his brother, all the accused-appellants opened fire from their respective weapons due to which Raju sustained injuries and died on the spot. Panna Lal also sustained gun shot injury. Hearing the noise of fire Rama Kant son of Ram Autar, Chandra Sen son of Mishri Lal, and Ram Kumar son of Bahadur, who were residents of village of the complainant, who had come to Bilgram for the purpose of shopping also reached there and have witnessed this incident. When the persons of the vicinity assembled there then the accused persons hurling their arms in the air went away in the southern direction. Because of this incident, a terror was created in the market and the shopkeepers after closing their shops or leaving the same open ran away from there. This incident is alleged to have taken place at 5:00 p.m. The complainant Hari Nath got the F.I.R. of this case scribed by Dharmendra Kumar son of Makrand of his village and lodged the same at the police station and case under Sections 147, 148, 149, 302 and 307 I.P.C. was registered. Panna Lal, who was in injured condition, while he was being taken to the hospital, he also succumbed to the injuries."

After registration of the case, investigation proceeded, place of occurrence was inspected and its site plan was prepared. The inquest proceedings were conducted on the body of Raju and from the place of occurrence, bloodstained and plain earth were taken into custody. Three empty cartridges of 315 bore and two empty cartridges.12 bore and one bullet of 315 bore were recovered and its memo was prepared. Inquest of Panna Lal was conducted on the information of Ward Boy of District Hospital, Hardoi, which was received at Police Station Kotwali Hardoi on 24.8.2004 at 5:45 p.m.

After completing the necessary formalities, the dead bodies were sent for postmortem. The postmortem on the body of Panna Lal was conducted on 25.8.2002 at 3:30 p.m. The duration of death was reported to be about one day. As per the postmortem report, following ante mortem injuries were found on his body:--

"(i) Firearm wound of entry 1.5 cm x 1 cm x through and through present over right back 3 cm lateral to midline at the level of T9. Margins were inverted and lacerated unburnt powder was present around the wound.

(ii) Firearm wound of exit 2.5 cm x 2 cm x communicating with injury No. (i) present on the lower and right part of sternum. Margins are everted and lacerated. Direction of injury No. (i) and (ii) was from backward to forward and upwards.

(iii) Contusion 3 cm x 2.5 cm on left scapula From the chest cavity, one litre clotted fluid blood was found."

In the opinion of the doctor, the cause of death was shock and haemorrhage as a result of ante mortem injuries.

The postmortem on the body of Raju was conducted on 25.8.2002 at 2:30 p.m. The duration of death was about one day and following ante mortem injuries were reported by the doctor on his body:--

"(i) Firearm wound of entry 2.5 cm x 2 cm x through and through present on front and right side of neck, 2 cm lateral to the adams apple. Margins were inverted and lacerated.

(ii) Firearm wound of exit 10 cm x 3.5 cm communicating with injury No. (i) present on right side neck involving right ear underneath mandible was fractured. Margins were everted and lacerated. Direction of injury No. (i) and (ii) was from front to back and upwards.

(iii) Gutter shaped firearm wound 7 cm x 1.5 cm x bone deep on chin extending from mid of chin to left cheek. Direction right to left loss of tissues present.

(iv) Gutter shaped firearm wound 8 cm x 1.5 cm bone deep present on right side back of skull in occipital region margins were inverted and lacerated. Direction forward and outward.

(v) Firearm wound of entry 1.5 cm x 1 cm present on right side back of chest near the inferior angle of right scapula, unburnt powder present. Margins were inverted and lacerated. Direction backward to forward.

(vi) Contusion 10 cm x 8 cm on the left middle of front of thigh underneath femur bone fractured.

(vii) Contusion 2 cm x 1 cm on the left inferior of leg in the middle part.

(viii) Lacerated wound 3 cm x 1 cm on the right great toe.

(ix) Lacerated wound 3 cm x 0.5 cm on the right heel. 13 small metallic pellets were recovered from the right lung chest cavity and from brain matter. Chest cavity contained 1.5 litres clotted fluid blood. In the opinion of the doctor, the death occurred due to shock and haemorrhage as a result of ante mortem injuries."

After concluding the investigation, charge sheet was filed. However, by that time appellants in Criminal Appeal No. 1205 of 2005 were neither arrested nor they had surrendered.

The case of the defence was of their false implication because of enmity and it was also pleaded that two sets of appellants in the two appeals were having very strong inter se enmity, which was due to several murder cases. So such parties having so strong enmity would not have joined their hands for the commission of the instant offence. It has also been pleaded that the appellants have been falsely implicated and the witnesses were procured.

In order to prove its case, prosecution has examined PW-1 complainant Hari Nath, PW-2 Rama Kant another eyewitness, PW-3 Ram Kumar, third eyewitness of this incident. PW-4 S.I. Krishan Sagar, who had conducted inquest proceedings on the body of Panna Lal after receiving the information from the District Hospital, Hardoi. PW-5 Dr. V.V. Tripathi, who has conducted postmortem on the body of two deceased persons. PW-6 Constable Doctor Nayab Hussain, who has prepared the chik report and G.D. of this case. PW-7 S.S.I. Shiv Kumar Sharma, who has performed inquest on the body of deceased Raju and had investigated this case and filed charge sheet. PW-8 A.C.O. Lok Nath Verma, who has conducted the further investigation of this case since 4.11.2002 under the order of I.G. Police. In his investigation, he found the case against the three appellants in Criminal Appeal No. 1205 of 2005 to be false and submitted final report in their favour.

No oral evidence in defence was adduced on behalf of the appellants. However, four documents were filed to show the enmity and motive for false implication.

After appreciating the evidence available on record, the trial court has convicted the appellants as above, hence these criminal appeals.

Submission of learned counsel for the appellants was that even according to the version of the F.I.R., the complainant PW-1 was not an eyewitness even during investigation he has not claimed himself to be a witness of this incident nor the Investigating Officer, in the site plan, has shown the place where from he has witnessed this incident. It was only during trial that he claimed himself to be an eyewitness so his evidence comes within the purview of improvement and the trial court has committed error in relying upon the same. Regarding other two eyewitnesses, it has been argued that these two eyewitnesses were residents of the village of the complainant, which was situated at a distance of more than three kilometers from the place of occurrence. The best witness of this incident was the shopkeeper of the shoe store but he has been withheld by the prosecution, which gives rise to an adverse inference against the prosecution. It has also been argued that not even a single mark of any firing was found on the shop while all the seven accused persons are alleged to have fired on the deceased persons, who were sitting in the shop, which creates doubt regarding the correctness of the prosecution story of firing by seven persons. Apart from it, one of the deceased (Raju) has also received some lacerated wounds and contusion, even his femur bone was found fractured and no explanation as to how he sustained such injuries came during investigation but the trial court has not considered these shortcomings of the case of the prosecution in correct perspective, which has rendered its judgment unsustainable under law.

Learned A.G.A. has submitted that the trial court has considered all the grounds raised before this Court and by a well reasoned judgment, which is supported by several pronouncement of Hon''ble the Apex Court, has convicted the appellants. Hence no interference is required in the instant appeal by this Court.

Perusal of the impugned judgment shows that the trial court has held the evidence of PW-1 Hari Nath and PW-2 Ram Kant to be wholly reliable and he has found its corroboration from the evidence of PW-3 Ram Kumar, who was declared hostile. He has also rejected the ground of inter se enmity between two sets of accused persons. The trial court has also concluded that PW-1 complainant Hari Nath was present at the scene of occurrence and has witnessed the incident. The involvement of all the accused persons and firing by all the seven accused persons has also been relied upon on the ground that it is quite possible that some of the fires might not have hit the deceased persons.

In view of the rival submission, the prosecution evidence has to be re-evaluated. Before proceeding further, we would like to mention that in the instant case, during investigation, a fact also emerged that appellant Kaptan Singh and Jai Ram Singh had taken away the licensed gun of Shiv Raj Singh, which Shiv Raj Singh had handed over to him as he was going to attend the call of nature before the incident.

In this case, after investigation, the initial Investigating Officer, had filed charge sheet against all the named accused persons. By that time, the appellants of Criminal Appeal No. 1205 of 2005 were absconding. They had moved applications before the Human Rights Commission and to other authorities and on the basis of the same further investigation, with the prior permission of the Court, was conducted by PW-8 Lok Nath Verma, who has conducted further investigation with regard to appellant Jai Ram Singh, Kaptan Singh and Dhirendra Singh. After investigation, he concluded that their implication in this offence was false and filed final report in their favour. Since the charge sheet by the Initial Investigating Officer had already been filed, therefore, the Court proceeded with the trial as the cognizance in the matter had already been taken. Learned trial court has observed that during further investigation it was not within the scope of Investigating Officer to file final report with regard to the accused persons against whom charge sheet had already been filed and cognizance had been taken. We do not consider it necessary to delve on this legal point in this appeal, hence we leave this question open. During trial, PW-8 Lok Nath Verma, the subsequent Investigating Officer was not examined, therefore, Criminal Misc. Case No. 2844 of 2004 was filed before Hon''ble High Court by appellant Kaptan Singh and vide order dated 17.12.2004, the trial court was directed that the first Investigating Officer Lok Nath Verma shall be examined as a witness and thereafter the trial court shall proceed to hear arguments. It appears from this order that appellant Kaptan Singh had represented before the High Court that PW-8 Lok Nath Verma was the first Investigating Officer. Thereafter PW-8 Lok Nath Verma was examined as PW-8 and cross examination was done on behalf of the appellants. Thereafter an application was moved on behalf of the complainant to permit him to cross examine this witness, which was rejected. The said order was challenged by complainant Hari Nath by filing a Criminal Misc. Case No. 1187 of 2005 and vide order dated 3.6.2005, Hon''ble High Court set aside the said order and directed that Lok Nath Verma shall be treated as a court witness so that the prosecution shall have a right to cross examine him. Thereafter Lok Nath Verma was re-examined as CW-1 and his cross examination was done on behalf of the prosecution.

Perusal of the impugned judgment shows that the trial court was swayed away by the fact that in the instant offence committed in a very highhanded manner in broad day light, that too in a market, so the trial has discarded all the arguments raised on behalf of the appellants. Law is settled on the point that mere gravity or seriousness of the offence is no ground to hold that the case of the prosecution stands proved. Burden to prove its case beyond reasonable doubt always lies on the prosecution rather it becomes more onerous when offence is very grave because graver is the offence, the stricter is the proof required. On this point, reference may be made to the pronouncement of Hon''ble the Apex Court in the case of Dilavar Hussain and others v. State of Gujarat and another reported in , (1991) 1 SCC 253, we prefer to reproduce paragraph No. 3 of the aforesaid judgment, which reads as under:--

"3. All this generated a little emotion during submissions. But sentiments or emotions, howsoever strong, are neither relevant nor have any place in a court of law. Acquittal or conviction depends on proof or otherwise of the criminological chain which invariably comprises of why, where, when, how and who. Each knot of the chain has to be proved, beyond shadow of doubt to bring home the guilt. Any crack or loosening in it weakens the prosecution. Each link, must be so consistent that the only conclusion which must follow is that the accused is guilty. Although guilty should not escape (sic). But on reliable evidence, truthful witnesses and honest and fair investigation. No free man should be amerced by framing or to assuage feelings as it is fatal to human dignity and destructive of social, ethical and legal norm. Heinousness of crime or cruelty in its execution however abhorrent and hateful cannot reflect in deciding the guilt."

(underlined by us)

In the instant case, the genuineness of the F.I.R. has been challenged on the ground that according to the version of F.I.R., the complainant himself was not a witness and he has made an improvement only during trial and has given evidence as an eyewitness. Virtually he was not present on the scene of occurrence and the trial court has not appreciated his evidence in correct perspective. The incident of this case has taken place on 24.8.2002 at 5:00 p.m. and F.I.R. has been lodged on the same day after one hour and fifteen minutes of the incident at Police Station Bilgram, which was situated only at a distance of two furlongs from the place of occurrence. So, apparently, the F.I.R. has been lodged with promptness. But this promptness has to be considered in the light of other circumstances particularly keeping in view whether the complainant was present on the scene of occurrence at the time of the incident. Perusal of the F.I.R. shows that in the entire F.I.R., the complainant has, at no place, claimed that he himself has seen the incident. Apart from it, some very important and peculiar facts of this incident were not mentioned in the F.I.R. It was not mentioned in the F.I.R. that Panna Lal (deceased) after sustaining injuries came out of the shop and ran and he fell down in a different shop. The fact of taking away the gun which was lying near Raju by Kaptan Singh and Jai Ram Singh has also not been mentioned in the F.I.R. Apart from it, in the site plan, which was prepared on the pointing out of the complainant himself, the place where from he himself witnessed the incident was not shown. PW-1 complainant Hari Nath in his cross-examination has admitted that site plan was prepared on his pointing out. In the site plan G-1 G-2 and G-3, three points have been shown where from the witnesses have seen the incident. G-1 and G-2 are the points where from Rama Kant and Ram Kumar have seen the incident and G-3 is the point where from Chandra Sen has seen the incident. But nowhere in the site plan where from the complainant himself has seen the incident was shown. Even in the statement recorded under Section 161 Cr.P.C., the complainant has not claimed to be an eyewitness of this incident. This fact has been put to the witness during cross-examination and has also been proved by the Investigating Officer. The complainant and all the witnesses are resident of village Kakrakheda. According to the evidence of PW-1 Hari Nath, the said village is situated at a distance of three kilometers from the town Bilgram and according to the evidence of PW-2 Rama Kant, this distance is four kilometers. Admittedly it is more than three kilometers. The complainant neither in his F.I.R. nor in his statement under Section 161 Cr.P.C., has stated that he had also come to Bilgram on the fateful day. For the first time, this version has come during trial wherein he has stated that in the after noon, he saw that Raju and Panna Lal were going to Bilgram and he also came behind them. Admittedly the complainant is the real brother of deceased Raju and deceased Panna Lal is his cousin by virtue of village relationship. But he made no effort to go along with them but he only chased them. What was the reason of such conduct of the complainant has not been explained. Apart from it, the distance of three kilometers must have been covered by these persons in half an hour time. Even in the examination in chief, the complainant had not disclosed any purpose for which he had gone to Bilgram. What he did after reaching Bilgram, has nowhere been explained. What he was doing in front of the shop where the incident is alleged to have taken place, has also not been disclosed by him. There is yet another important aspect in this case which proves that the complainant was not present on the scene of occurrence. It is an admitted case of the prosecution that Panna Lal (deceased) in an injured condition ran away from the shop and after covering a distance of about 72 paces, he fell down in some other shop. But this fact that Panna Lal (deceased) came out of the shop and ran away was not mentioned in the F.I.R. Apart from it, the complainant has expressed his ignorance as to who had taken Panna Lal (deceased) to District Hospital, Hardoi. In the F.I.R., it was mentioned that police had taken Panna Lal to Bilgram hospital. But perusal of the documentary evidence shows that Pannal Lal was immediately taken to District Hospital, Hardoi. We can take judicial notice of the fact that distance of Hardoi from the town of Bilgram is more than 30 kilometers. Panna Lal was taken in an injured condition to District Hospital, Hardoi where he was declared dead. Thereafter a memo of death was sent by ward-boy Inayat Ullah of District Hospital Hardoi to Kotwali, Hardoi, which was received at Kotwali Hardoi at 17:45 hours i.e. only after 45 minutes of the incident. During this period arrangement of transport was made and distance of 30 kilometers was also covered. It is really strange that the complainant, who claims himself to be the cousin of injured Panna Lal took absolutely no interest as to where he fell down, who had taken him for his treatment. This fact leads to the only conclusion that after the incident, PW-1 complainant Hari Nth was called from the village and by the time he reached the there. Panna Lal was not present there due to which he is not in a position to say as to who had taken Panna Lal to Hospital for treatment and to which hospital, he was taken. This conclusion stands fortified by the fact that according to case of prosecution Shiv Raj Singh had handed over his gun to Raju because he was going to attend the call of nature, was also not mentioned, in this F.I.R. It was also not mentioned that the said gun was taken away by appellant Kaptan Singh and Jai Ram Singh. Though appellants Kaptan Singh and Jai Ram Singh have been acquitted for the charge under Section 404 I.P.C. but for the purpose of judging the credibility of this witness it assumes importance. If the complainant was present at the scene of occurrence then he must have seen Shiv Raj Singh handing over his gun to his brother Raju. This conclusion also stands substantiated by the fact that the complainant was not aware as to when gun of Shiv Raj Singh came into possession of Raju. This aspect also strengthens our conclusion that the complainant was not present at the place of occurrence. Once it is concluded that complainant was not present at the scene of occurrence then genuineness of the F.I.R. is shaken to a great extent. Because even PW-2 Rama Kant has denied that he has narrated the prosecution story to the complainant Hari Nath. So who told about the incident to the complainant and how he became aware of the entire incident, names of the appellants, and their weapons becomes a mystery. The prosecution has utterly failed to prove that any other person had disclosed this incident to the complainant. Law is settled on the point that even then if the version of F.I.R. is under doubt even then entire case of the prosecution cannot be discarded on this score alone but definitely a duty is cast upon the court to scrutinize the prosecution evidence with extra care and caution.

Though apparently F.I.R. of this case has been lodged promptly but keeping in view the fact that Panna Lal after travelling more than 30 kilometers reached Hardoi where he was examined by the doctor and was declared dead and thereafter information of his death was sent to Police, which was received at the police station Kotwali Hardoi only within forty-five minutes of the occurrence at the police station. But the complainant, who according to his evidence, was present only at a distance of two furlongs from police station Bilgram took one hour and fifteen minutes to reach the police station. It is nowhere the case of the complainant that he became busy in looking after Panna Lal and in making arrangements to send him to hospital. On the contrary, he has expressed his ignorance as to who had taken Panna Lal to the hospital and to which hospital. The delay in F.I.R. has to be considered keeping in view the other facts and circumstances of each case. So, had the complainant been present at the scene of occurrence then he must have given the information at the police station much earlier because he was only at a distance of two furlong. Learned trial court has ignored all these submissions and such important omissions in the F.I.R. on the ground that these are not important and in that mental state, the complainant might have forgotten to mention all these facts in the F.I.R. Perusal of the F.I.R. shows that a detailed narration of the post incident events that shops were closed by the shopkeepers, some shopkeepers ran away leaving their shops, some closed their shops. There was terror in the town. The last paragraph was only regarding the reaction of the public after the incident. The language used in the narration of post incident reaction is the language of the police in such type of offences and it gives rise to the inference that F.I.R. came into existence in consultation with the police. So we hold that complainant was not present at the scene of occurrence and he was called subsequently by the police and thereafter this F.I.R. came into existence in consultation with the police.

Now we proceed to consider the evidence of PW-2 Rama Kant, who claims to have witnessed this incident from the place, which is shown in the site plan as G-1. According to the evidence of the witnesses, this point (G-1) is situated at a distance of about 25 paces in the southern direction from the shop where the incident is alleged to have taken place. According to the evidence of the complainant, both deceased Raju and Panna Lal at the time of the incident were inside the shop. In between the point G-1 and place of incident, there are three other shops. One is Chandni Dawakhana of Dr. Raman Kumar thereafter the shop of Nazim Brass Band and thereafter the ready made garments shop of Prem Chandra. Only thereafter the shop of Munna alias Iliyas exists where the incident has taken place. So from point G-1 and G-2, it was humanly impossible to witness as to what was occurred inside the shop. But inspite of this fact, this witness (PW-2 Rama Kant) has stated that Kaptan Singh took the licensed gun of Shiv Raj Singh, which was lying by the side of Raju. It was only a tutored statement, which was given by this witness. How he came to know that it was the gun of Shiv Raj Singh, which was picked up from the shop, has not been explained by this witness. Apart from it, he was standing towards south of the said shop and the road on which the shop is situated also runs in the north south direction. According to the admitted case of the prosecution, the appellants came from the northern direction and after committing the offence, they ran away towards southern direction. Perusal of the site plan shows that the appellants ran away from the same place where these witnesses were standing but PW-2 Rama Kant has nowhere stated that appellants crossed them and he had seen two guns in the hands of appellant Kaptan Singh. According to the case of the prosecution, appellant Kaptan Singh was armed with DBBL gun and he had also picked up the gun of Shiv Raj Singh, which was lying near Raju deceased. So he must be having two guns in his hand but this important fact was neither disclosed by him during investigation nor during trial. This witness is also resident of Kakrakheda. According to his evidence, the distance of his village from the place of occurrence was four kilometers. He states during trial that at about 2:00 - 2:30 p.m., he left his village for Bilgram. This distance must have been covered by him within half an hour. So he must have reached the town Bilgram positively by 3:00 - 3:30 p.m. He has stated that he had come to purchase some spice (chilly and coriander). So from 3:00 - 5:00 p.m., he was moving without any purpose in Bilgram. The prosecution made absolutely no effort to explain as to where he remained or what he did during this period. He has fairly admitted in his cross-examination that by the time of the incident, he had not purchased the spices for which he had come to Bilgram. After the incident, he remained present at the place of occurrence for few hours and had not disclosed this incident to Hari Nath. He has stated that he had seen Hari Nath in front of he shop along with 4 - 5 other persons. But as we have concluded earlier that Hari Nath was not present at the scene of occurrence so this part of the statement of this witness also becomes unreliable. This witness, has also failed to explain as to when and where Panna Lal was taken. He has stated that police had taken Panna Lal. This witness has stated that Kaptan Singh and Veeru had fired after entering into the shop and had also given blows of butt to Raju. As we have already discussed that the place wherefrom he claims to have seen the incident, it was not possible to observe as to what occurred inside the shop but inspite of that he claims to have witnessed those incident also which occurred inside the shop. This witness has stated that police had come at the place of occurrence at 6:30 p.m. It has also come in evidence that it was the police who had taken Panna Lal for treatment. Several persons of the village of the complainant were present but no one had taken care to take Panna Lal to Hospital. Such conduct create serious doubt about their presence in Bilgram. He has stated that Munna alias Iliyas also remained inside shop and he ran away after close of firing and he came back after 2-3 minutes when the accused persons made good their escape. This witness has also stated in his cross-examination that Panna Lal was also given the blow of Butt by Veeru while he was running but it is nowhere the case of the prosecution. Thus, the evidence of this witness, for the reasons stated above is not found reliable. We do not agree with the contrary conclusion of the learned trial court.

Now we come to the evidence of PW-3 Ram Kumar. PW-3 Ram Kumar has supported the case only to the extent that all the accused persons armed with their respective weapon, had come at the shop of Munna alias Iliyas and started firing, thereafter he ran away. Since he has not stated that he had seen the fires which hit the deceased persons, so he was declared hostile.

Now we will consider whether this witness was present at the scene of occurrence or not. Like other witnesses, this witness was also resident of Kakrakheda. He has also stated that all the appellants were firing towards the shop of Munna alias Illiyas and were standing on the western side of the road in front of the shop. In his examination in chief, he has not furnished any reason as to why he had come to Bilgram. In cross-examination, he has stated that he had come for some purchase from the market and by the time he was going to the market firing started. He has stated that he could not make any purchase and went back to his village. He has stated that Panna Lal died on 24.8.2009 and this fact came to his notice in village. He had not seen any person taking the gun lying near Raju but heard about it in the village. He has stated that he had not seen any of the accused entering into the shop and nor he had seen accused persons running away after firing. This witness has given contradictory statement under Section 161 Cr.P.C., which were put to this witness and the same have been proved by the Investigating Officer.

The prosecution evidence in the instant case is full of coincidences. The two deceased were resident of Kakrakheda. All the witnesses were also residents of Kakrakheda. Even the scribe of the F.I.R. viz. Dharmendra was also resident of Kakrakheda. Absolutely no effort was made by the complainant or by the Investigating agency to make any person of the market a witness. The initial Investigating Officer has not even recorded the statement of Munna alias Iliyas, shopkeeper during the course of the investigation. It was only due to the efforts of the three appellants of Criminal Appeal No. 1205 of 2005 that during further investigation, PW-8/CW-1 Lok Nath Verma has recorded his statement but in spite of that, he has not been examined by the prosecution. On this point, learned A.G.A. has submitted that since he had not supported the case of the prosecution during investigation, therefore there was no occasion for the prosecution to examine him. But Munna alias Iliyas, shopkeeper, according to the prosecution case, was present inside the shop and remained in the shop during incident and only after firing stopped, he ran away. In spite of that, he was not examined. He was the best witness on the point as to what happened inside his shop. The width of the shop was eight feet and its depth was ten feet. According to the case of the prosecution, seven accused persons were standing in front of the shop and were firing. So it must be absolutely impossible for any other person to see as to what happened inside the shop because presence of seven persons in front of shop would have obstructed the view, but this aspect of the case was not properly considered by the trial court.

It is an admitted case of the prosecution that all the seven accused persons, opened fire. It has also come in the evidence that Kaptan Singh and Veeru repeated the fire. So there were nine or more fires. Firing continued to 2 - 3 minutes. But keeping in view the injuries sustained by the deceased persons, the number of fires does not tally because the deceased Panna Lal has received only one gunshot wound of entry and the other deceased Raju has received two firearm wounds of entry and two gutter shaped wound. According to the evidence of doctor, the gutter shaped wound could also have been caused by the firearm. The trial court has not given any importance to this aspect of the matter on the ground that some of the fires might have missed. The reasoning of the trial court would have been absolutely correct provided the incident would have taken place in an open area but the incident of the instant case, had taken place in the shop. So the fire, if any, has not hit the deceased then the said fire must hit the shop or any other goods kept in the said shop. But not even a single firearm mark was found in the said shop or on the shoe boxes or on the wall. So the reasoning of the trial court that some of the fires might not have hit the deceased was not correct in the peculiar facts and circumstances of this case. This fact assumes great importance because it adversely affect the case of the prosecution regarding number of accused persons who took part in the incident.

The prosecution has come with a definite case that some of the accused persons had repeated the fires so the number of accused persons, keeping in view the injuries sustained by the deceased persons and keeping in view the fact that not even a single fire mark was found at any place in the shop, we are of the view that the number of the actual assailants has been enhanced by the prosecution. The assailants were much less then seven as stated by the witnesses.

It was also argued that there was very strong inter se enmity between the two sets of the appellants. Jai Ram Singh, Kaptan Singh and Dhirendra on one side and remaining four appellants namely, Veeru, Kurindra, Ram Naresh and Ram Sewak on the other side.

We would like to give a brief narration of the inter-se enmity between two sets of appellants, which reads as under:--

"(i) On 2.9.1994 one Malkhan Singh, who was real brother of appellant Kaptan Singh, was murdered and in that murder case, Raju, Chandra Sen Kedar and Ram Prakash were accused persons. Ram Prakash one of the accused of murder of Malkhan Singh, who happens to be the real brother of Ram Naresh and Ram Sewak, who are appellants before us in Criminal Appeal No. 1216 of 2005.

(ii) On 3.5.1994 one Ramadhar was murdered, who was real brother of Ram Naresh and Ram Sewak, who are appellants in Criminal Appeal No. 1216 of 2005 in which Narendra Singh son of Kaptan Singh appellant, Shyam Singh and Rajendra were made accused.

(iii) One Kusuma Devi wife of Ram Naresh lodged an F.I.R. On 31.10.2003 under Section 302, 149, 147, 149, 504 and 506 I.P.C. against Dara, Hari Nath, Chandra Sen, Kedar, Anil for murder of her son Sanjay. During investigation of the said case, Investigating Officer exonerated all the above-named accused persons and submitted charge sheet against Ajab Singh son of Jai Ram Singh, Rakesh, Anil Kumar, Ram Saran and Ajmer. This Ajab Singh happens to be the son of appellant Jai Ram Singh. Smt. Kusuma Devi complainant of that case was wife of Ram Naresh, who is appellant in Criminal Appeal No. 1215 of 2005.

(iv) On 16.2.1995 Kaptan Singh lodged an F.I.R. under Sections 147, 306, 504 and 506 I.P.C. against Ram Prakash, Ram Sewak, Chandra Sen, Kedar, Raj Lal. Ram Prakash accused in that case is an appellant in Criminal Appeal No. 1216 of 2005 and Chandra Sen was a named witness in the instant case, however, he has not been examined by the prosecution. In the instant case, all these facts have come in the cross-examination of the witnesses. So the enmity between the two sets of accused persons was so strong that it appears to be highly improbable that they would have joined together in the commission of the instant offence. The trial court in its judgment has observed that the accused persons inspite of inter se enmity may join hands against their common enemy. According to the F.I.R. one Chandra Sen of Village Kakrakheda had also seen the incident. According to site plan, he was present in front of shop where the incident has taken place but it is really surprising that said witness Chandra Sen has been withheld. The place where the complainant was standing was neither shown in the site plan nor the complainant in his F.I.R., or in statement recorded under Section 161 Cr.P.C. has claimed to be the eyewitness of this incident. So withholding of Chandra Sen gives rise to an adverse inference against the prosecution case because definitely he was in a much better position to witness this incident in comparison to other two witnesses. Apart from it, none of the witnesses, who have been examined by the trial court in their statement under Section 161 Cr.P.C., has stated that gun of Shiv Raj Singh was picked up by the appellants. It was simply not possible for PW-2 Rama Kant to state that the gun, if any, picked up by appellant Kaptan Singh was licensed gun of Shiv Raj Singh. It is nowhere statement of this witness that Shiv Raj Singh handed over the said gun to Raju before him."

PW-1 complainant Hari Nath in his cross-examination has stated that Panna Lal was sitting with the gun in front of said shoes shop. While the gun, as per case of prosecution, was handed over to Raju. Even the complainant, who was coming behind the two deceased persons has not stated that in his presence Shiv Raj Singh came and handed over the gun to him because he had to go to attend the call of nature. Submission of learned counsel for the appellants has substance that this story of taking away the gun of Shiv Raj Singh was developed during investigation, simply to plant the recovery of the said gun from the possession of Kaptan Singh on his arrest. But the prosecution failed in its evil designs because Kaptan Singh could not be arrested during investigation and charge sheet was filed against him. Such a possibility in the facts of the instant case, keeping in view the fact that allegation of taking away the gun was not alleged by any witness at the initial stage of the prosecution. Apart from it, even Shiv Raj Singh, who according to the case of the prosecution, had handed over his licensed gun to Raju has also not been examined, which also gives rise to an adverse inference against the prosecution case not only on the point of taking away of the said gun but also on the point of the reliability of the witnesses because on this point the witnesses are giving evidence of a fact which could not have been seen by them.

As discussed earlier, PW-2 Rama Kant had absolutely no occasion to see the fact of picking up of gun from the place where he was standing. Apart from it, he has also not stated that he had seen two guns in the hands of Kaptan Singh while they were making good their escape. The trial court on all these points has considered the prosecution evidence and was of the view that all these points do not adversely affect the case of the prosecution. But when we consider the cumulative effect of all these circumstances then the conclusion is irresistible that PW-1 Hari Nath was not present at the place of occurrence and this conclusion brings the origin of F.I.R. under great suspicion. In this background, it was the duty of the prosecution to examine the scribe of the F.I.R., who again was the resident of village Kakrakheda because his evidence would have thrown light as to on whose dictation, the F.I.R. was scribed. The presence of PW-2 Rama Kant and PW-3 Ram Kumar at the scene of occurrence becomes doubtful and their evidence does not appear to be wholly reliable. The absence of any firing makes inside the shop also creates doubt regarding the manner of assault by seven accused persons.

In the F.I.R., and during investigation, it was not stated by any of the witness that the deceased persons were given blows of butt of gun and country-made pistol by Kaptan Singh and Veeru. This fact, for the first time, was stated by witnesses during trial. So it was an improvement of the prosecution case simply to cover the medical discrepancy because in the postmortem report, deceased Raju had sustained two contusions and two lacerated wounds and contusion on left thigh was given with such a force that it caused fracture of the femur bone. In the F.I.R. and also during investigation, the prosecution could not explain as to how, these injuries were found on the body of Raju. Likewise deceased Panna Lal had also received one contusion on his left scapula. PW-2 Rama Kant has stated that Veeru had given blow of butt to Panna Lal while he was running away from the place of occurrence after sustaining firearm injuries but it is nowhere the case of the prosecution. Even if, for the sake of argument, it is assumed that Panna Lal ran away from there and he was chased by appellant Veeru and given a blow of butt then this fact must have been noticed by the complainant also and in such circumstances, this fact ought to have been mentioned in the F.I.R. But in the F.I.R. even the fact that Panna Lal ran away from the place of occurrence was not mentioned. So all these circumstances, taken together creates doubt regarding the correctness of the prosecution story and the evidence of the prosecution witnesses cannot be termed to be wholly reliable.

As we have discussed earlier that keeping in view the firearm injuries sustained by two deceased persons, number of the assailants was less than seven as claimed by the prosecution. But there is no material on record to conclude as to who were those persons, who were involved in this incident. So this ground also persuades us to extend the benefit of doubt to all the appellants.

In view of the discussion made above, both the aforesaid criminal appeals deserve to be allowed and are hereby allowed. The judgment and order dated 20.7.2005 passed by learned Additional Sessions Judge, Court No. 4, Hardoi in Sessions Trial No. 5 of 2003, and Sessions Trial No. 281 of 2003 is hereby set aside. The appellants are acquitted of the charges levelled against them. The appellants are on bail. They need not surrender. Their bail bonds are cancelled and sureties discharged.

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