Nawab vs State of U.P.

Shiv Shanker, J.—This criminal appeal has been preferred against the impugned judgment and order dated 25.3.1982, passed by Ist Additional Sessions Judge, Bulandshahr in Session Trial No. 138 of 1981, Nawab and Ors. v. State of U.P., convicting and sentencing the Appellant Nawab u/s 302, I.P.C. to imprisonment for life while two other co-accused Ram Charan and Nandan have been acquitted by giving the benefit of doubt.

Brief facts, arising out of this appeal, are that Rajendra Prasad Sharma son of Pati Ram, lodged first information report on 30.12.1980 at 9.15 p.m. wherein it has been alleged that there was litigation in between the informant and accused Ram Charan and others. Therefore, accused Ram Charan and others usually did talk in absurd manner against the informant and his family members. On 30.12.1980, the informant, his father Pati Ram and his sister Urmila were returning back to their village on cycle after selling cloth from Belon Penth through the northern patri of Anupshahr branch of the canal. Two other persons, namely Bahori Singh and Mohan Lal were also on their cycles alongwith them. All were talking among themselves. There was a packet of clothes on the carrier of the cycle of his father, while his sister Urmila was sitting on frame of the cycle driven by informant. His father was going ahead from him and he was coming with the above two persons from behind talking with each other. At about 6 p.m. accused Ram Charan, Nandan and Nawab met them at the patri of the canal situated in jungle of village Vijao. Nawab and Ram Charan were armed with country made pistols. They caught hold the father of the informant on the cycle due to which he fell down from the cycle. Thereafter, accused Nawab shot fire upon his father on head who died on the spot due to sustaining the firearm injuries. The informant and his companions had raised alarm whereupon accused Ram Charan opened fire from his country made pistol upon the informant at the exhortation of accused Nandan. Then the assailants ran away from there after leaving his cycle. Same time, several persons of village Vijao reached there after hearing the noise. The informant and his companion returned to the place of incident and saw that his father is lying dead and his cycle alongwith Bakucha of clothes (packet) was also lying near the dead body. After leaving many persons near the dead body, the informant Rajendra Prasad Sharma proceeded for lodging the police report after preparing the written report (Ext. Ka-1) and submitted the same at the out post Ramghat, Police Station Narora, district Bulandshahr. On the basis of the written report submitted by the informant, Chik F.I.R. (Ext. Ka-4) was prepared and the case u/s 302/307, I.P.C. was registered against the three accused persons namely Ram Charan, Nandan and Nawab (present Appellant). The investigation of the case was entrusted to S. I., Sri M. L. Vimal. Thereafter, the Investigating Officer visited to the place of incident and prepared the inquest report (Ext. Ka-9) from 9.50 to 11.30 p.m. He also prepared photo Nash (Ext. Ka-10), Challan Nash (Ex. Ka-1), letter/memo to C.M.O. (Ext. Ka-12) and letter/memo to R.I. (Ext. Ka-13). After sealing the dead-body of the deceased, the same was entrusted to Constable 869 Sri Pal Singh and Constable 761, Jai Prakash.

The dead-body of the deceased was produced alongwith other papers before Dr. H. U. K. Zuberi (P.W. 4) who prepared the post mortem report (Ext. Ka-3) of the dead body of deceased on 31.12.1980 at 3.30 p.m. The following ante-mortem injuries were found on the dead-body of the deceased:

Lacerated gun shot wound 3/4" x 1/2" x brain deep on left side temporal region 1/2" in front of left ear blackening present.

Lacerated gun shot wound 1" x 1/2" x brain deep on right side head 2" above and behind the right ear.

Abrasion 1/4" x 1/4" in front of left knee joint.

Abrasion 1/4" x 1/4" in inner side of left ankle joint.

The cause of death has been shown in the post-mortem report due to haemorrhage and shock as a result of firearm injuries.

On 30.12.1980, the Investigating Officer also took in possession the cycle alongwith Bukcha with 82 pairs of ladies dhoti and the same were given in the supurdagi of informant Rajendra Prasad Sharma and prepared its Fard (Ext. Ka-2). Same time, blood stained earth and simple earth were also taken and sealed in separate bundles. Shoes, one bullet, found at the place of incident were taken into custody. The same was sealed in separate bundles and prepared the fard (Ext. Ka-16). Blood stained clothes etc. were sent to the Chemical Examiner from where a report had been received. After completing the investigation, charge-sheet was filed against the three accused persons, named in the first information report.

After commitment of the case, accused Ram Charan was charged for the offence u/s 307, I.P.C. He was further charged for the offence u/s 302, I.P.C. read with Section 34, I.P.C. Accused Nandan was charged for the offence u/s 302 of the Indian Penal Code read with Section 34 of the Indian Penal Code. He was further charged for the offence punishable u/s 307 read with Section 109 of the Indian Penal Code. The third accused Nawab, who is present Appellant, was also charged for the offence punishable u/s 302, I.P.C. and u/s 307 of the Indian Penal Code read with Section 34 of the Indian Penal Code. All the accused persons pleaded not guilty and claimed to be tried.

All the three accused persons have stated in their statements recorded u/s 313, Cr. P.C. that they have been falsely implicated in the case due to village partibandi and denied the allegations made against them. They have further stated that the witnesses had given the evidence against them under the pressure of the first informant and police.

The prosecution in support of its case, has examined Rajendra Prasad Sharma (P.W. 1), Bahori Singh (P.W. 2), Mohan Lal (P.W. 3), Dr. H. U. K. Zuberi (P.W. 4), Ram Swaroop Sharma (P.W. 5), Chhotey Lal (P.W. 6), Jai Prakash (P.W. 7), H. L. Vimal S.I. (P.W. 8) and affidavit of Virendra Singh (P.W. 9).

No any oral and documentary evidence has been adduced on behalf of the accused persons in their defence.

After considering the whole evidence on record and submission of both the parties, the learned trial court has convicted the present Appellant-Nawab for charge levelled against him u/s 302, I.P.C. only and sentenced him as mentioned above. However other co-accused Ram Charan and Nandan have been acquitted by giving the benefit of doubt. Thereafter this criminal appeal has been preferred by Nawab accused challenging the judgment and order of conviction passed against him.

Heard Sri S. P. S. Raghav, senior advocate, learned Counsel for the Appellant and learned A.G.A. as well as perused the whole records.

Learned Counsel for the Appellant has contended that Pati Ram had been murdered by unknown persons after sun set at the alleged place of incident. Thereafter, the dead body was found by Sri Deokinandan son of Ram Swarup Brahmin, resident of Gangagarh. Out Post Ramghat, district Bulandshahr. The deceased was also the resident of the same village. Thereafter, Deokinandan rushed to the out post Ramghat and gave information regarding such dead body which was entered in the general diary and P.W. 8, S.I. H. L. Vimal, who was the Investigating Officer of this case, had proceeded and reached at the place where the dead-body was lying. Thereafter, he prepared the inquest report on 30.12.1980 from 9.15 p.m. to 9.50 p.m. The name of informant Deokinandan was mentioned. Therefore, this also shows that the first information report lodged by Rajendra Prasad Sharma (P.W. 1) was not in existence on 30.12.1980 upto 11.30 p.m. i.e., upto the preparation of the inquest report. Later on, the information was sent to P.W. 1 Rajendra Prasad Sharma, who is son of deceased regarding the murder of deceased. Then the first information report was lodged, ante-timed against the present Appellant Nawab alongwith two others.

It is further contended that Rajendra Prasad Sharma (P.W. 1) has not stated anywhere in his deposition that Deokinandan was also present with him at the time of incident till the preparation of the inquest report. This also shows that P.W. 1 Rajendra Prasad Sharma was not present at the time of incident. It is further contended that P.Ws. 2 and 3, namely Bahori and Mohan Lal respectively, are the chance witnesses. P.W. 2 Bahori had deposed that he had gone with P.W. 3 Mohan Lal to village Jargawan for purchasing cows for Pandit Ramji Lal while P.W. 3 Mohan Lal had stated that he had gone with P.W. 2 Bahori to the Penth of Belon where several cows were seen for purchasing by P.W. 2 Bahori but none was found suitable to be purchased by him. It is further contended that Bahori (P.W. 2) and Mohan Lal (P.W. 3) do not stay at the place of incident near the dead body of deceased nor they had gone with P.W. 1 Rajendra Prasad to lodge the first information report. Both P.W. 2 Bahori and P.W. 3 Mohan Lal had also not stated anything about Deokinandan. It has been admitted by these witnesses that deceased and P.W. 1 Rajendra Prasad was known to them prior to this incident as they used to go their village but, on the other hand, P.W. 1 Rajendra Prasad Sharma had denied the fact of acquaintance. P.W. 2 Bahori Lal and P.W. 3 Mohan Lal was employed as a Peon in Anoopshahr Court. Therefore, they put the pressure on the police of concerned police station where after the first information report was lodged at their behest. It has been suggested to P.W. 3 Mohan Lal Brahmin that ''mangni'' took place in between the daughter of deceased and son of P.W. 3 Mohan Lal. Therefore P. W. 3 Mohan Lal had become relation of P.W. 1 Rajendra Prasad Sharma and the deceased and P.W. 2 Bahori is the friend of P.W. 3 Mohan Lal, as admitted by P.W. 2 Bahori. Due to this reason, both the witnesses have given evidence against the present Appellant falsely. It is further contended that the statements of P.W. 2 Bahori Lal and P.W. 3 Mohan Lal had been recorded by the Investigating Officer after 15-16 days of the alleged incident. No explanation of such delay had been given. After registering the case, P.W. 1 Rajendra Prasad, who is the informant of this case and P.W. 2 Bahori Singh and P.W. 3 Mohan Lal, who are alleged to be the eye-witnesses of this case, had filed affidavits before the concerned Superintendent of Police, as admitted by the Investigating Officer, who is P.W. 8 S.I. H. L. Vimal. However, the said affidavits have not been produced by the prosecution. In this regard, P.W. 2 Bahori Singh has stated that P.W. 1 Rajendra Prasad Sharma and Appellant have said to him for filing the affidavit regarding the incident disclosing the real story. Subsequently, the said affidavit was filed and Rajendra Prasad Sharma (P.W. 1) has also filed the affidavit. This shows that the affidavits filed by Rajendra Prasad Sharma (P.W. 1), Bahori Singh (P.W. 2) and Mohan Lal (P.W. 3) before the concerned Superintendent of Police have been suppressed by the prosecution. Therefore, the adverse inference can be drawn regarding the same that the facts mentioned in the affidavits were not similar regarding the incident alleged in the first information report. It is further contended that three accused persons had been nominated in the first information report, including the present Appellant but on the same evidence, two accused persons, namely Ram Charan and Nandan were acquitted by the trial court. It is further contended that the Appellant has been implicated falsely in this case due to the previous enmity. Only pendency of case u/s 145, Cr P.C. In between co-accused Ram Charan and deceased Pati Ram, the Appellant could not murder the deceased, who is real nephew of co-accused Ram Charan. Therefore, it can be safely presumed that the Appellant has been falsely implicated in this case due to the enmity and this is a case of murder after sun set in the month of winter season and none saw the incident. Therefore, the trial court has committed error in convicting the Appellant.

On the other hand, learned A.G.A. has urged that P.W. 1 Rajendra Prasad was also returning on the cycle with his sister Urmila from the Penth of Belon accompanying with his father who had gone there for the purpose of selling the clothes and in his presence, the incident of committing the murder of his father was took place by the Appellant alongwith two others.P.Ws. 1 to 3, namely, Rajendra Prasad, Bahori Singh and Mohan Lal, who are also the eye-witnesses of this incident and he lodged the report against the Appellant promptly without any delay in the same night. The role of Appellant has been assigned to cause firearm injuries on the body of deceased. It is also corroborated with the post-mortem report of the deceased. Motive is also established that he had been murdered by the Appellant due to the previous enmity like dacoity case, case under Sections 107/116, 145, Cr. P.C. Nothing has come in the testimonies of P.Ws. 1 to 3 in their cross-examination to disbelieve their evidence. Therefore, their presence cannot be doubted at the time of incident. It is further contended that Deokinandan son of Ram Swarup was accompanied by the P.W. 1 at the time of preparing the report and the eye-witnesses could not be made the witnesses of the inquest. Therefore, they were not made the witnesses of inquest and other persons have been made the witness of inquest. This incident had taken place before the sun set. Therefore, the Appellant was identified by all three witnesses in committing the murder of the deceased. Therefore, the trial court has not committed any error or illegality in convicting the Appellant regarding committing the murder of deceased.

The first point is that whether the first information report was lodged promptly or ante-timed. According to the statement of Rajendra Prasad Sharma (P.W. 1), this incident took place on 30.12.1980 at about 6 p.m. The written report (Ext. Ka-1) was submitted by him at the concerned out post Ramghat within the police station Anoopshahr, district Bulandshahr on 30.12.1980 at 9 p.m. Wherein three accused persons, namely, Ram Charan, Nandan and Nawab (present Appellant) had been nominated by him for committing the murder of his father. The distance from the place of occurrence to the concerned reporting out post Ramghat was about five kilometers. Therefore it has been lodged within three hours and 15 minutes after the incident. No sufficient explanation has been given in the written report (Ext. Ka-1) regarding such delay.

The inquest report (Ext. Ka-9) reveals that the name of the first informant has not been mentioned in the inquest report in the column as to who give the first information regarding the death of deceased Pati Ram. But name of Deoki Nandan has been mentioned in such column as fact informant inquest report, who gave the information regarding the dead body of deceased, who is also the resident of the same village of Rajendra Prasad Sharma (P.W. 1). No sufficient explanation has been given on behalf of the prosecution in not mentioning the name of Rajendra Prasad Sharma (P.W. 1) in the relevant column of the inquest report. Not only that, his name has not come anywhere in the whole inquest report. On the other hand, the names of Deoki Nandan and Debi Singh had also been mentioned in it as the witnesses of inquest. Rajendra Prasad Sharma (P.W. 1) has not stated in his testimony anywhere regarding Deoki Nandan.

G. D. number has not been mentioned at page 2 of the inquest. It also reveals that Section 307 and some other things had been added in inquest later on after preparing the inquest report by separate ink, like Section 302 by one ink and Section 307 and others had been written by another ink when the written report (Ext. Ka-1) had already come in existence before preparing the inquest report, in such circumstances, the name of Rajendra Prasad Sharma (P.W. 1), should have been mentioned in the column of inquest report in place of Deokinandan as first informant.

Head Constable Ram Swaroop Sharma (P.W. 5), who prepared the Chik F.I.R. (Ext. Ka-4) on the basis of written report (Ext. Ka-1) has admitted in his cross-examination that he used to write the crime number and section upon the written report and make his signature. This shows that he always did write crime number, section and under his signature upon the written report. Thereafter, the Chik F.I.R. would have been prepared on the basis of the written report. He has admitted further that he also wrote the crime number and section upon the report of Rajendra Prasad Sharma (P.W. 1) and made his signature but there is no such endorsement upon the written report Ext. Ka-1 regarding the crime number, section and signature of this witness. He has further admitted that he does not know that the second F.I.R. was lodged after changing the first information report. He was the Head Moharrir and he could easily explain that no any other F.I.R. was submitted regarding this incident except written report (Ext. Ka-1), which was submitted by Rajendra Prasad Sharma (P.W. 1). He has further admitted in his cross-examination that no F.I.R. was lodged prior to this incident regarding the cognizable offence on 30.12.1980 similarly, on 31.12.1980. Therefore, the evidence of Head Moharrir Ram Swaroop (P.W. 5) reveals that only one F.I.R. of the present case was registered and no any F.I.R. regarding a cognizable offence was registered on 30.12.1980 or 31.12.1980. In such circumstances there was sufficient opportunity to register the F.I.R. as ante-timed and the suggestion given to Ram Swaroop (P.W. 5) on behalf of the accused-Appellant has force that the G. D. was stopped and in the night the information was given to Rajendra Prasad Sharma (P.W. 1) regarding the murder of his father whose village was situated at a distance of about 2-2-1/2 kms. from out post Ramghat. He reached there later on after preparing the inquest report in the night, and his F.I.R. (Ext. Ka-1) was lodged by suppressing the report given by Deokinandan upon which inquest report was prepared. Therefore, this possibility cannot be ruled out that the F.I.R. (Ext. Ka-1) was lodged against the present Appellant also as ante-timed after suppressing the information of Deokinandan, above.

The second point is that whether the prosecution witnesses were present at the time of committing the murder of deceased and saw the whole incident in their presence. Rajendra Prasad Sharma (P.W. 1), who is the first informant and the son of the deceased, as well as the eye-witness of this occurrence, has stated that his father Pati Ram deceased, had gone on the day of incident from his house at the Penth of Belon for selling the clothes on his cycle accompanying with his son and his daughter Urmila. After selling the same, they were returning on their cycles and reached at the alleged place of occurrence and saw that three persons were standing there and the deceased was fallen down by them by catching the neck and the present Appellant shot fire upon him. He had also made firing at Rajendra Prasad Sharma (P.W. 1), which was not hit and he returned back after leaving his cycle alongwith two witnesses. Thereafter, he came back to the place of incident and found his father as dead. This incident was also witnessed by Bahori Singh (P.W. 2) and Mohan Lal (P.W. 3) who were also accompanying with Rajendra Prasad Sharma (P.W. 1) upon their cycles.

Rajendra Prasad Sharma (P.W. 1), who is the son of deceased, has admitted in his cross-examination that he was the regular student of B.A. Class in Dharm Samaj Degree College, Aligarh. He was studying by staying at the house of his maternal uncle in Aligarh. The distance of Aligarh was about 40-45 kms. from his village. So it is suspicious that he had gone with his father to sell the clothes in the Penth as B.A. student in Aligarh. He has also stated that Urmila was also taken on the cycle at Belon Penth. Km. Urmila has been shown aged about 8-9 years when Rajendra Prasad Sharma (P.W. 1) was already going with his father at the said Penth. In such circumstance, there was no need to take Km. Urmila with him at the said Penth. Nothing has also come in the evidence of this witness whether. Urmila was taken to the police station from the place of occurrence when he had gone to lodge the F.I.R. As the name of Urmila has not been mentioned alongwith Rajendra Prasad Sharma (P.W. 1) in the concerned case Kayami G. D. This shows that she was not taken from the place of occurrence by him to the concerned out post Ramghat. It is also not believable that she was left in the jungle near the dead body of deceased. He did not know the names of the persons assembled there after the incident. There is no evidence of this witness where Km. Urmila was left. This shows that Urmila was not taken by him from his village to the said Penth and Urmila was not returning from there and reached the said place of incident. This possibility cannot be ruled out that her name was also introduced to become an eye-witness of this incident keeping in mind that if the eye-witnesses had become hostile and did not support the prosecution story then he and his sister will support the prosecution case.

So far as the presence of this witness is concerned he has admitted in his cross-examination that he was proceeding alongwith his father from the village at about 9 or 9.30 a.m. and reached in the said Penth at 11 a.m. He was also having the accounts regarding the such sales. Clothes of Rs. 500 were sold in the said Penth. It was entered in the copy of the account but the same was not shown to the Sub-Inspector after the incident. He has further stated that he does not know the name of the owner of the said Penth. He did not disclose the name of any person who was selling the goods in the Penth near the shop of the deceased. He has further admitted in his cross-examination that he had proceeded from the said Penth with his father on a separate cycle and reached at the place of occurrence at about 6 p.m. Therefore, he reached at the place of occurrence from the Penth in one and half hours. However, he did not reach to his village within that period. On the other hand, he reached Belon Penth with the same period. This also shows that the returning of this witness with the deceased has become suspicious.

It is worthwhile to mention here that P.W. 1 Rajendra Prasad Sharma was coming with his father on his separate cycle. Meaning thereby that his father was going on his cycle about 40 paces ahead from him. This witness has admitted in his cross-examination that on both side of the canal, high densely bushes of 4-4, 3-3 yards, (4-4, 3-3, gaj unchey ghane jhund sarkande) were standing. This incident had occurred at about 6 p.m. At the end of December, it was a time of sun set at 6 p.m. Therefore, the assailants could not be identified by this witness from a distance of forty steps in the darkness.

It is also worthwhile to mention here that the testimony of this witness has been partly disbelieved by the trial court by acquitting the two co-accused persons Ram Charan and Nandan. Similarly, the story of firing upon this witness had also been disbelieved by the trial court. Therefore, the Appellant Nawab had only been convicted for the charge u/s 302, I.P.C. No cogent reason has been given by the trial court in believing the same evidence against the present Appellant when he was present at the time of incident and saw the murder of his father. Therefore, he could lodge the first information report immediately at the reporting out post Ramghat against the Appellant and inquest report could be prepared upon his information. The inquest report (Ext. Ka-9) reveals that it was prepared at the information of Deokinandan, as mentioned earlier. P.W. 8 S.I. H. L. Vimal, who was the Investigating Officer, has also admitted in his cross-examination that it was prepared at the information of Deokinandan above. Later on, he has tried to develop the case in his cross-examination that Deokinandan was also present with Rajendra Prasad Sharma but it was not mentioned in the case diary that Deokinandan was also accompanied with Rajendra Prasad Sharma (P.W. 1). On the other hand, Rajendra Prasad Sharma (P.W. 1) has not stated that he was present with Deokinandan at the time of giving the information of murder and at the time of preparing the inquest report. Therefore, the non-mentioning the name of this witness in the inquest report regarding giving the such information of the incident and mentioning the name of other person Deokinandan create suspicion regarding the presence of this witness at the time of the murder of deceased. It is not out of place to mention here that the said Deokinandan was not made the eye-witness of the alleged incident.

So far as the testimonies of P.W. 2 Bahori Singh and P.W. 3 Mohan Lal are concerned, they are the chance witnesses of this incident. Both were residing at Anoopshahr. P.W. 2 Bahori Singh has admitted in his cross-examination that he had retired from service as Peon of Anoopshahr Tahsil at the time of incident and P.W. 3 Mohan Lal is also a Peon of the said Tahsil, Anoopshahr. The relations between both the witnesses were cordial, being in service of the same cadre in the Tahsil Anoopshahr. Both were also living at Anoopshahr. P.W. 2 Bahori Singh has stated that he alongwith Mohan Lal (P.W. 3) was going to village Jargawan, for purchasing cow from the house of Pt. Ramji Lal. On the other hand, P.W. 3 Mohan Lal has stated that he alongwith P.W. 2 Bahori Singh was going to village Jargawan and reached at the Penth of Belon and seen several cows there but none was suited to them. Thereafter, it was agreed to go to village Jargawan for purchasing the cows. The statement of P.W. 2 Bahori Singh reveals that he was going to purchase cow from the house of Pt. Ramji Lal, resident of village Jargawan. In his whole evidence, nothing has come in his cross-examination that some cows were seen for the purpose of purchase in the said Penth of Belon. Both the statements are contradictory regarding it. P.W. 2 Bahori Singh has also admitted that there were three paths to go village Jargawan. One path is 13-14 kms ; another is 14-15 kms. and the third is 12-13 kms. However, both the witnesses have not chosen to go to village Jargawan by following the shortest path but had followed the longest path. This conduct of both the witnesses is highly improbable.

It is worthwhile to mention here that P.W. 1 Rajendra Prasad has firstly stated that he did not know both the witnesses but P.Ws. 2 and 3, namely, Bahori Singh and Mohan Lal had stated that they used to go to his village and they knew Pati Ram deceased, father of P.W. 1 Rajendra Prasad Sharma. P.W. 3 Mohan Lal is a Brahmin by caste. The deceased Pati Ram was also a Brahmin. The negotiation for the marriage of the daughter of deceased Pati Ram with the son of P.W. 3 Mohan Lal was going on as per suggestion given to him. Therefore, P.Ws. 2 and 3 could not be independent witnesses.

It is also important to note here that this incident had occurred within the local limits of Police Station Anoopshahr and P.Ws. 2 and 3, Bahori Singh and Mohan Singh respectively, were residing at Tahsil Anoopshahr. Both were employees of Tahsil Anoopshahr. In such circumstances, it is liable to be believed that the police officials did know very well these two witnesses prior to the incident and they had become the witness also on the wishes of the concerned police of the police station.

It is also worthwhile to mention here that P. Ws. 1, 2 and 3 have also stated that they have filed their affidavits before the Superintendent of Police regarding the alleged incident. Such affidavits have been suppressed by the prosecution. P.W. 8 S.I. H. L. Vimal, who is the Investigating Officer of the case, has stated in his cross-examination that no any affidavit had been received by him.P. Ws. 1, 2 and 3 had specifically stated that affidavits were submitted by them before the Superintendent of Police regarding the incident. In such circumstances, it is not believable that it was not received by the Investigating Officer. This only infers that the facts mentioned in their affidavits did not support the prosecution story. Therefore, the same were suppressed by the Investigating Officer.

It is also worthwhile to mention here that both the witnesses are chance witnesses and their presence, at the scene of occurrence is highly doubtful. In such circumstances, their evidence is not liable to be believed. Therefore, the testimonies of P. Ws. 1, 2 and 3, namely, Rajendra Prasad Sharma, Bahori Singh and Mohan Lal respectively, do not inspire any confidence regarding the incident as their presence is highly doubtful at the time of incident. The trial court has committed error in believing their testimony in part while part of the same had been discarded by acquitting the two co-accused persons Ram Charan and Nandan for the charge u/s 302/307, I.P.C. and also acquitting the present Appellant Nawab for the charge u/s 307, I.P.C. In such circumstances, the Appellant could not be convicted on the same set of evidence for the charge u/s 302, I.P.C.

So far as the motive is concerned, there is no dispute on behalf of P.W. 1 Rajendra Prasad Sharma and Appellant, in his statement recorded u/s 313, Cr. P.C., that some litigation had been going on in between accused party and deceased. One case u/s 145, Cr. P.C. was pending at the time of alleged incident. Therefore, there was no immediate motive for committing the murder of the deceased. Motive of this case is that the deceased was murdered due to enmity. Enmity is double edged weapon which cuts both ways. The incident of murder could be occurred due to enmity or the person could be implicated falsely due to enmity. In the present case, this possibility cannot be ruled out that the Appellant has been falsely implicated due to the enmity. It is highly suspicious that the Appellant had committed the murder of deceased by causing firearm injuries. However, the trial court has wrongly and against the evidence on record, recorded the finding that the Appellant had committed the murder of the deceased. This finding is not sustainable in the eye of law and benefit of doubt be extended to the accused-Appellant. In such circumstances, this appeal is liable to be allowed.

In the result, the appeal succeeds and is allowed. The conviction and sentence awarded to the Appellant Nawab u/s 302, I.P.C., are set aside and he is hereby acquitted. He is on bail. His bail bond is cancelled and sureties are discharged.