Rajesh alias Pappu vs State of U.P.

G.S.N. Tripathi and P.K. Jain, JJ.—All these appeals arise out of the judgment and order dated 13.1.1982 passed by the IVth Additional Sessions Judge, Mainpuri in. State v. Rajesh alias Pappu and Ors. S. T. No. 342 of 1981 All the aforesaid Appellants have been held guilty on a charge u/s 302, read with Section 149, I.P.C. and they were sentenced to undergo life imprisonment.

All the four accused aforesaid also stood charged u/s 148, I.P.C. to 1-1/2 years R.I. Both the sentences were ordered to run concurrently.

As per report dated 21.5.1997 sent by the C.J.M., Mainpuri, the accused Ali Hasan is dead. Therefore, his appeal abates.

The prosecution case as contained in the F.I.R., Exhibit Ka 1 lodged by Sri Om Prakash, P.W. 1 at the P.S. Kotwali, Mainpuri on 3.3.1981 at about 4.35 p.m., in which the time of occurrence is said to be about 3 p.m. on 3.3.1981.

Sri Om Prakash Saxena, P.W. 1 in the F.I.R. has alleged that on 3.3.1981 Nam Koran Sanskar (Name giving Ceremony) of his nephew was slated. Several relations of the complainant, including his Bhanja (sister''s son) Deependra alias Lalu, son of Sri Devendra Sahai Saxena (deceased) had arrived there. On that very date, i.e., 3.3.1981 at about 10 a.m., the accused Rajesh alias Pappu took away Deependra on the pretext that he will be returning shortly. At that time, the complainant and the mother of the deceased Smt. Vimla Devi and other family members asked him not to go. But Rajesh said that they would be returning from Kapurpur shortly, which is about 2-3 kms. towards the west of village Deomai, where the complainant resides. But upto about 1 p.m., Deependra or the accused did not return. The complainant along with Gopal Chand Saxena. Suresh, P.W. 2 and others started for the search of Deependra. At about 2 p.m., near the rejected Bhatta of Ashrfi Mal, Ramesh Singh son of Sri Samant Singh (not produced) saw the complainant and other companions and stopped them and stated that about 4-5 boys had taken Deependra towards the Bhatta after assaulting him. Thus, the entire party led by the complainant, reached near the Bhatta. There, they saw the accused Rajesh Singh alias Pappu, Saleem alias Pappu, All Hasan, Shyambir Yadav and one more (Ahmad Sayeed) assaulting the victim Deependra with their knives. The accused were challenged. Thereafter they escaped. Ahmad Sayeed was overpowered and arrested on the spot. He was also brought to the police station along with the F.I.R.

On the basis of this written F.I.R., a case was registered in the G.D. and investigation started by Sri Chandra Pal Singh, P.W. 7. He interrogated Om Prakash, P.W. 1 and Suresh Chandra, P.W. 2 u/s 161, Code of Criminal Procedure, and thereafter, went to the spot. After inspecting it, he prepared the site-plan, Exhibit Ka 12.

P.W. 4, Sri Raj Kumar Gupta also conducted the spot inspection and did a part of investigation. He took the dead body of the deceased in his possession and held inquest thereon (Exhibit Ka 3), prepared other relevant documents. Exhibits Ka 4 to Ka 6 and got the dead body sealed. He also collected blood stained and simple earth from the spot and kept them in separate containers and prepared a memo for them and, thereafter he despatched the dead body through Constables Sri Ravindra Babu and Sri Vir Pal, for post-mortem examination.

P.W. 6, S.O. Sri Tilak Ram Verma submitted the charge sheet against the accused on 22.5.1981.

The post-mortem examination was done by Dr. A.N. Sakeel. He found the following injuries on the person of the deceased:

17 Tr. Stab wounds in front of chest, area 30 cm. x 17 cm. size ranging from 2.5 to 3 cm. x 1 cm. x cavity deep, tapering to Lt. other end lacerated. Clean cut margins.

Two Tr. Stab wounds front of abd., 7 cm. above vimblicus, 3 cm. x 1 cm. x cavity deep and second in 6 cm. Rt. to Ist injury of abd. 3 x 1 cm. x cavity deep, tapering Lt., other and lacerated, clean-cut margins.

Five vertical stab wounds, outer aspect Lt. lip. area 11 x 6 cm. size range from 2.5 to 3 cm. x 1 cm. x muscle deep. Tapering downwards, other ends bruised, margins clean-cut.

Eight vertical stab wounds, back of chest from neck to Inf. angle of scapula, area 22 x 10 cm. size range from 2.5 to 3 cm. x 1 cm. x bone deep cutting of ribs underneath. Tapering upwards, other end lacerated, margins clean-cut.

5 Stab wound 3 cm. x 1 cm. x cavity deep back of abd. Lt. side 7 cm. Lt. from spine. Tapering upwards, other ends bruised, margins clean cut.

Two stab wounds Rt. side loin just above illiac crest, size 2.5 x 1 cm. x cavity deep, 3 cm. x 1 cm. bone deep upto crest. Tapering upwards. Other ends bruised, margins clear cut.

Tr. Stab wounds 3 cm. x 1 cm. x tissue deep Ant. lateral aspect Rt. thigh 16 cm. below Ant. subilliac spine. Tapering Lt., other end lacerated, margins clear cut.

Vertical stab wound 3 cm. x 1 cm. x muscle deep on outer aspect Rt. arm in middle. Tapering upwards, other end bruised, margins clean cut.

Tr. stab wound, 4 cm. above of Lt. Wrist, on back, 3 cm. x 1 cm. x bone deep. Tapering to it, other ends bruised, margins clean cut.

Two Tr. stab wounds on post-medical aspect Lt. arm in middle area 5 cm. x 4 cm. size 3 cm. x 1 cm. x tissue deep. Tapering inwards, other ends bruised, margins clean cut. lying 7 cm. apart.

In the opinion of the Doctor, the death was caused due to injuries aforesaid, resulting in bleeding and shock. These injuries were sufficient in the ordinary course to cause death. These injuries could have been caused by knife on 3.3.1981 at about 2 p.m., and under all circumstances, the death could have been instantaneous. He further opined that these injuries could have been caused at 12 a.m. every on that date, i.e., 3.3.1981.

In order to prove its case, the prosecution examined the following witnesses; P.W. 1 is Sri Om Prakash. He stated that in connection with his nephew'' Name giving ceremony, his relations, including the deceased were present. Then in their presence, the accused Rajesh took him on the pretext that he would be return in soon thereafter. But he did not return. He lodged the F.I.R., in which he narrated the version as contained therein, on oath.

P.W. 2 Sri Suresh Chandra is a resident of the same village to which the complainant belonged, i.e. Deomai. He has deposed that when the accused Rajesh took away the deceased, he was also present. At about 12 p.m. or a little thereafter, he went to village Kapurpur to enquire about the deceased. But no trace was available and he informed P.W. 1 at about 1 p.m. the result of his visit to Kapurpur. At about 1 p.m. or a little thereafter, he along with the complainant and Sri Gopal Chand Saxena (not examined) started for the search of the deceased. At about 2 p.m., they met a Thakur Sahib of village Alalpur, who told that they had seen 4-5 boys assaulting Deependra and taking him towards the Bhatta. Thereafter, all these persons went towards the Bhatta. From a distance of 30-40 paces, they saw that all the accused were assaulting Deependra with knives. However, Ahmad Sayeed had pressed down the deceased and remaining persons were assaulting him with knives. Thereafter, they were challenged. They ran away except Ahmad Sayeed, who was over-powered and brought to the police station along with the F.I.R.

Other evidence is formal in nature. P. W. 3. Dr. A.N. Sakeel has proved his post-mortem report as noted above.

P. W. 4 Sri Raj Kumar Gupta. S.I. had conducted the investigation upto the stage of sending the dead body to the police lines along with Constables Sri Ravindra Babu and Sri Vir Pal (P. W. 5).

P. W. 7. S.I. Sri Chandra Pal Singh had conducted a part of the investigation, during which he interrogated Sri Om Prakash. P.W. 1, Sri Suresh Chandra. P.W. 2 and after inspecting the spot, he prepared the site-plan. Exhibit Ka 12.

P.W. 6. S.I. Sri Tilak Ram Verma formally submitted the charge sheet.

P. W. 5, Constable Vir Pal Singh conducted the dead body for postmortem examination from the spot in duly sealed condition. He reached the mortuary at about 5 p.m. and kept the dead body in the Kotwali in the whole of night.

The accused in their statements u/s 313, Code of Criminal Procedure have generally denied the allegations made against them. They have not said anything in addition to that but that they were falsely implicated on account of enmity.

Ahmad Sayeed, accused has also made a similar statement.

All Hasan, accused has followed the same lines. Saleem, accused has made a similar statement.

The accused have led no evidence in their defence. After appraisal of the entire evidence and circumstances on the record, the learned trial court came to the conclusion that the prosecution case was proved to the hilt. He, accordingly convicted and sentenced them as noted above.

Feeling aggrieved, the accused persons have filed these appeals.

We have heard learned Counsel for the parties at stretch and gone through the record. We find that there is much force in these appeals and they deserve to be allowed.

One thing needs to be repeated that the Appellant of Criminal Appeal No. 260 of 1982, All Hasan is dead. Hence this appeal abates against him.

It appears that the entire base has been engineered by some independent people and documents have been fabricated, ante-timed and the version given by the prosecution, is not correct.

According to the prosecution, the incident took place at about 3 p.m. on 3.3.81. The report was lodged on the same date at 4.35 p.m. after negotiating a distance of 3 miles, and, thereafter, the investigation started. But the facts as they have come in the evidence, are quire different.

P.W. 1 Sri Om Prakash, the complainant has admitted in paragraph 25 of his statement that the policemen arrived at about 4.30 p.m. on the same day and remained there for 2-1/2 hours. It had become dark. Lantern was brought from Mainpuri. Firstly, the F.I.R. was lodged at 4.35 p.m. But according to the complainant, the police had come at about 4 p.m., i.e., before the F.I.R. was registered.

P.W. 2 Sri Suresh Chandra has stated that the I.O. interrogated him at the Bhatta itself at about 4.30 p.m. Had the F.I.R. been registered at 4.35 p.m. after negotiating a distance of 3 miles, the policemen could not be present at 4.30 p.m. He further says that Om Prakash had gone to bring Daroga (S.I.) from the police station. The dead body was despatched at about 7 p.m. from the spot. In paragraph 17, he says that the I.O. asked the complainant to give written report on the spot, then the complainant scribed the F.I.R. and delivered the same to the I.O. It means that the F.I.R. was not lodged at 4.35 p.m. as suggested by the prosecution. It also makes it clear that the F.I.R. is not the product of the virgin mind of the complainant rather, it is the output of the I.O., who got the F.I.R. scribed according to his choice, on the spot. Such a F.I.R. has no legal meaning and it has to be rejected lock, stock and barrel.

This is not the end of the matter. There are other reasons to say that the F.I.R. was not registered at the police station at 4.35 p.m. The total distance of the police station from the spot, is about 3 kms. According to the Panchayatnama, Exhibit Ka 3, the investigation started at 14.15 p.m. and not at 4.30 p.m. as narrated by P.W. 1 and P.W. 2. The dead body was despatched from the police station as per Challan Lash at 16.15 p.m. The dead body was received on 4.3.81 at 10 a.m.

P.W. 5 Constable Sri Vir Pal Singh states in para 2 of his cross-examination that he started along with the dead body from the spot at 5 p.m. For whole of the night, the dead body was kept at the Kotwali. According to Challan Lash, Exhibit Ka 5, the dead body reached at Mainpuri Kotwali at 18.15. p.m. If it was so, it could not have started from the police station at 16.35 p.m. whereas the total distance to be covered, was only 2 kms. as noted in Exhibit Ka 5 itself. Why the dead body was brought to the police station Kotwali, is not clear. Police Station and Police lines are situate at the same place. Then why was the dead body produced before the R. I. on the following day, is not clear. There was no necessity to bring the dead body to the police station Kotwali. This mystery has not been resolved. The only conclusion that follows is that the dead body was not received at the Kotwali or at the R.I.''s office on 3.3.81. Rather, it was received at a much later time. That is why it was produced before the R.I. on 4.3.81. Such a F.I.R. becomes a suspicious document and no reliance can be placed upon it.

Once the F.I.R. is disbelieved, the entire case becomes suspicious and becomes liable to be rejected. There is something more.

In the post-mortem report. Dr. Sakeel found 1/2 pound of semi-digested food. It means that the digestion would not occur within about 2 or 3 hours from the time of taking food. If it is not understood that the deceased before leaving at about 9 or 10 a.m. along with the accused Rajesh, might have taken something, because there was no evidence that he took anything in between nor the post-mortem suggests so, the death should have occurred upto about 12 a.m. (noon). It could not be stretched beyond that upto 3 p.m. Therefore, the time of the murder is not proved to have been committed between 2 and 3 p.m. Dr. Sakeel states, in the end of his cross-examination, that the injuries would have been received before 12 a.m. on 3.3.81. This statement of Dr. Sakeel finds support from the condition of stomach contains Intestines were empty. It means that even 6 hours prior to death, the deceased did not take any food. This takes us about to fix the time of murder at about 4 a.m. on 3.3.81 when the murder could have been committed.

Another important thing in this case is that there were several eye witnesses of the locality who were readily available to the prosecution. But none of them has been produced except P.W. 1 and P.W. 2, whose evidence shall be analysed in the following paragraphs, which shows that they are not telling the truth.

There is absolutely no allegation of enmity between the deceased and the accused. There is no motive at all brought on the record, of course, a case resulted in conviction. But it has to be seen as to whether a normal human being can behave in such a manner, i.e., to murder a boy of 15 years without any rhyme or reason. That is also quite a major factor, which has also escaped the notice of the learned trial court.

According to the F.I.R., several relations of the complainant were present, including the mother of the deceased, when the accused Rajesh took the victim along with him. Not only this, the complainant and the mother of the deceased and several other persons of the house asked the accused Rajesh not to take the deceased with him. The deceased did not say anything. But the accused assured that they would be returning shortly thereafter from village Kapurpura, which is at a distance of 2-3 kms. from the village. They waited upto 1 p.m. and, thereafter, they became anxious when the deceased did not return. Thereafter, the search started. It is not said that Suresh had been despatched towards Kapurpura earlier. The accused Rajesh has not proved to be a die-hard, hardcore criminal. If he wanted really to murder this boy, he would not have taken him between several persons like this, including the relations and family members of the complainant. Because that would create several witnesses against him in case any wrong happened. He would have chosen some time when the deceased might have been found at an isolated place and the possibility of evidence coming against him might be virtually nil. This way, the time chosen by the accused, does not appear to be a conduct of a normal and prudent man. In this background, the statement of Sri Suresh Chandra, P.W. 2, is very material. He is obliged to the complainant.

In para 29, he admits that in the murder of his uncle, Sri Om Prakash, P.W. 1 was an eye witness. The case resulted in acquittal. Therefore, in order to repay the debt of the complainant, Sri Suresh Chandra, who is proved to be a partisan witness, has appeared in the court. Although he has tried to conceal several things of importance, but at times, he has spoken the truth also. He says in para 4 that the deceased was a Goonda type of boy. He used to commit robbery, theft and house-tresspass despite the fact that the witness and several other persons, asked him not to do so. Even his mother asked him to desist from such criminal activities. But the deceased continued his activities. This admission regarding the character and activities of the deceased, indicates that he might have been murdered by several other persons, who may be aggrieved by his criminal conduct. In para 5, he admits that about 2 years prior to this incident, he had seen the accused Rajesh and none else. No identification parade was held. Therefore, the evidence of Sri Suresh Chandra. P.W. 2 against this accused cannot be read.

In para 6, he admits that he was not an invitee in the Name-Giving Ceremony. On the date of occurrence, he did not go to visit his fields although regularly he used to visit his fields during the day time. Therefore, the presence of Sri Suresh Chandra, an uninvited person at the time when the accused Rajesh took away the deceased, does not appear to be natural. In village, no uninvited person goes to take food or feast on any occasion because village people are very proud about it and at times, their ego comes in their way of attending social functions uninvited.

He contradicts P.W. 1 in para 7 and says that on the date of occurrence, no relation of the complainant (his brother-in-law) had reached there. Whereas, the complainant says that several relations of his, had been present on that date. This again shows that he was not present on the spot when the deceased was taken away, allegedly by the accused.

He further says that he had been sent to village Kapurpura to search for the victim. In para 10, he says that he went there by cycle and enquired from only one man as to whether Lalu and Rajesh had come. Thereafter, on his denial, he came back. He does not know the name of that person from whom he had made the enquiry, as alleged. Such a flimsly type of search and effort to trace out the deceased, indicates that he is not telling the truth. In para 11 he says that he took about 15-20 minutes in going to Kapurpura and returning to the village of occurrence. He says that people waited for the return of the deceased upto about 11 or 12 a.m. This according to Sri Suresh, the information that the deceased was not available or seen in Kapurpura along with the accused, shows that the same was received to the P.W. 1, by 12.15 p.m. In that contingency, the search for the deceased should have been started much earlier. But according to the prosecution, it started at about 2 p.m. That shows the unnaturalness of the prosecution case.

When the search party started, they came across one Thakur Sahib (name, parentage, address, etc., not disclosed), who told this search party that he had seen the deceased being taken towards the Bhatta. That Thakur Sahib would have been a very important witness because he had seen the accused as well as the deceased alive at that time. The deceased had been injured and the accused were taking him towards the Bhatta. No explanation has been given as to why such an important witness, has not been produced.

Another thing which strikes us most is that everything has taken place in this case by chance. It was by chance that the accused Rajesh came to take away the deceased from the house of the complainant where a social function was going on. It was a chance that P.W. 2 Sri Suresh Chandra arrived at the house of the complainant uninvited and saw the accused Rajesh taking away the deceased along with him. It was by chance that Sri Suresh Chandra was going to village Kapurpura to search for the accused and it was by chance that the deceased was murdered in presence of P.W. 1 and P.W. 2 otherwise the accused, who had taken the deceased at about 9-10 a.m., would not have waited upto 2-3 p.m. for murdering the deceased. As observed earlier, the murder took place near about 12 a.m. or in between 5 a.m. and 12 a.m. vide post-mortem report content of the stomach and intestines. So, even if we give some margin, we cannot come to the time of 2 or 3 p.m., when the murder took place. If the accused had a plan to murder the victim, they would not have waited upto 2 or 3 p.m. on that date. There was enough time to do their Job and finish the entire story. But they did not do that. Hence this casualness of the prosecution story, makes the entire case doubtful that the accused would not have murdered the deceased earlier and perhaps, they were waiting for P. Ws. 1 and 2 to come and see the occurrence.

In para 15, he says that the I.O. interrogated him at about 4.30 p.m. It means to believe a case that the I.O. did not arrive there earlier than 17.10 p.m. was not correct vide the noting in the Panchayatnama, Column I. Nay, the F.I.R. was registered at 16.35 p.m. on that date. 3 kms. journey had to be made. So the witness would not have seen the I.O. nor he would have been interrogated at 4.30 a.m. Rather, it appears that after getting an information about the death of the deceased, Sri Om Prakash had gone to bring the S.O. The dead body was lying there. Sri Suresh Chandra was also there and he remained there till 7 p.m. when the dead body was despatched from the spot, whereas, the dead body was entrusted to P.W. 5 Constable Sri Vir Pal Singh at about 5 p.m., which is wrong.

We have already referred to delayed arrival of the dead body in the police lines on the following day. All these if connected, lead us to believe that the prosecution story is full of bursts and furies signifying nothing. In the present case, nothing else stated by Sri Suresh Chandra is correct, which does not help the prosecution in any manner whatsoever. It simply shows that he saw nothing. Whatever he has deposed, is false and nothing more than that, but he has badly exposed the prosecution case. In para 17, he says that the F.I.R. was scribed after the arrival of the I.O.

Thus, we reject the statement of P.W. Sri Suresh Chandra lock, stock and barrel with a finding that he was not present at the time of occurrence and he saw nothing with his own eyes.

Now we are left with the solitary statement of Sri Om Prakash, P.W. 1, complainant. It appears that he also banked upon the philosophy of chance only and nothing more. He says that Rajesh took away the victim at about 9 a.m. from his house. Thereafter, the search party met Ramesh Thakur of village Alalpur (not produced). He voluntarily asked the complainant as to where he was going. Then he told him that his nephew, who had left his village at 9 a.m., had not returned. Thereafter, he volunteered the information that his Bhanja was being taken away by 4-5 persons after severally assaulting him and only after 40 paces thereafter, had been hardly covered when the accused were assaulting the victim, who died on the spot. In the normal course, this witness would not have been present near the place of occurrence nor Ramesh Thakur volunteered to give any information nor it is not proved that Ramesh Thakur knew the deceased and the accused from before. This conclusion very much appears to be irresistible from the statement of this witness. In para 6, he says that on that date, the Nam-Karan Sanskar Programme continued upto the evening. Had this occurrence of murder taken place in the knowledge of the complainant, under no circumstance the programme would have been extended upto the evening i.e. till 6.40 p.m. In paragraph 9, he says that he fed in the feast about 10-20 persons and that would have been done only after the Nam-Karan-Sanskar was completed by the evening time, le., 6 or 7 p.m. As observed earlier by us, had it been a fact that the murder of the deceased was detected at about 2.30 p.m., the question of extending the programme upto 6 or 7 p.m. did not arise. Similarly, giving a feast was absolutely beyond question after the knowledge of the murder. But since the complainant admits that the programme was extended till evening, it leads us to the only conclusion that by that time. i.e., evening, the murder of the deceased was not detected at all. He does not say in the F.I.R. that he had deputed Sri Suresh Chandra to visit to village Kapurpura and only after his return from there he started the search. Rather, he ignores him totally and says that for the first time, Sri Suresh Chandra accompanied him towards the place of occurrence for searching the deceased. He has made an improvement on this point in paragraph 10 of the cross-examination. He admits (para 10) that on the date of the statement, i.e., 26.11.81 that he is telling this fact for the first time that I and Sri Suresh Chandra P.W. 1 went to Kapurpura to trace out the deceased and he returned at 2.30 p.m. He did not tell this thing to the I.O. also.

The question of going to Mainpuri for search did not arise, firstly because from Mainpuri, which is at a distance of 4-5 kms. only, the deceased had come along with his mother to join this function. He does not say that there was any special importance for the deceased to join the Nam-Koran Sanskar. So the question of searching him did not arise as the function started at about 12 p.m.

In paragraph 12, he says that he had associated 3-4 persons while going for searching because he apprehended some danger. What type of danger it was or attack, has not been disclosed. On what premise he apprehended danger, is also not clear. In the same line, in paragraph 12, he says that even after apprehending danger, nobody of his party did take, lathi, gun or any other weapon with them. So the question of going towards Mainpuri did not arise and, in the normal course, they would not have gone towards that direction (towards east). So, it was also a chance that it occurred to them to go towards Mainpuri, which is nearly a mile away from the place of occurrence. In that connection, Ramesh Thakur met him and how he was present on the spot and why was he waiting for the complainant and others, etc., have not been disclosed. In paragraph 14, he admits the fact that when he reached the spot, Lalu (deceased) had died, regarding which an improvement made by him in the evidence that he did not see that Rajesh accused had come on a motorcycle. He did not specify as to which one of the accused was pressing the deceased and who had killed him. No reason for the same has been assigned. In para 19, he admits that in a case u/s 302, I.P.C., he was an eye witness in which the uncle of P.W. 2 Suresh, had been killed. His evidence was disbelivered by the learned lower court. It means that he belongs to the camp of Sri Suresh Chandra P.W. 2. Both were indebted to each other and under an obligation to each other. That is why only these two witnesses of fact, have been examined by the prosecution. He further admits and supports the statement of P.W. 2, Sri Suresh Chandra. In para 25, when he says that the police had arrived at the place of occurrence at about 4.30 p.m. and remained there for 2-1/2 hours upto the time when the darkness set in. That makes his version of lodging the report at the police station at 4.30 p.m. becomes totally unacceptable and a dirty piece of evidence. In para 26, he says that the dead body was brought at Kotwali, Mainpuri at about 6 or 6.30 p.m., whereas, according to P.W. 5, Constable Sri Vir Pal Singh, he started with the dead body at 5 p.m. and kept the same in the Kotwali for the whole night. It means that he must have reached the police station at about 5.30 or so and covered the distance of 1 mile only. There was no reason as to why the dead body was not brought to the police lines direct and kept at police station unnecessarily. To top it all, he says that he was not interrogated by the I.O. at all. This way, the entire prosecution story based on the statement of P.W. 1 and P. W. 2, becomes a bundle of falsehood and no reliance can be placed upon it.

I.O. P.W. 7 Sri Chandra Pal Singh in para 5 says that the dead body was taken by the constable at 6.30 p.m.? Whereas, Constable Vir Pal Singh says that he started along with the dead body at about 5 p.m. He says that he had interrogated the complainant at the Bhatta, whereas, he denies that he was ever interrogated by the I.O.

The arrest of All Hasan at the spot has become the Magna Carta for the learned trial court. He says that he was not arrested on the spot rather, he was brought from his house. Thus unnecessary importance should not have been given to this fact.

Accused Rajesh was a licensee and owner of a fair price shop.

Despite the fact that the prosecution case is that the deceased had died on the spot, the learned lower court has observed at page 16 as follows:

The police help was to be sought first so that if the life was not extinct in Deependra, he could be given medical help also, though Deependra had died on the spot. The learned Counsel for the defence has drawn my attention to certain minor contradictions which, in my opinion, do not affect the merits of the prosecution case adversely.

While dealing with the attack that the independent witnesses have not been produced by the prosecution, the learned trial court found it to be acceptable by observing that this argument of the defence, is untenable because it was not necessary for the accused to produce each and every witness of same fact. He ignored the attack that only partisan witnesses have been produced, while independent witnesses like Ramesh Thakur and several other persons have been withheld, or not examined for unexplained reasons, who could have thrown more light on the prosecution version. This way, he had not only misunderstood the law but also misapplied it.

Taking the totality of the circumstances on the record, we have come to an irresistible conclusion that the prosecution story that Deependra alias Lalu deceased was either taken by the accused Rajesh from the complainant''s house or the accused committed his murder, is fabricated. Hence it has to be rejected.

In the result, the appeals are allowed. The judgment and order dated 13.1.82, passed by the learned IVth Additional Sessions Judge, Mainpuri in S.T. No. 342 of 1981 of that District, is set aside. The accused are already on bail. They need not surrender.

Accused All Hasan is dead. Therefore, his appeal abates as observed earlier being numbered as Cr. Appeal No. 260 of 82.