Ram Adhar and Deepak Singh vs State of U.P.

R.K. Rastogi, J.—This is an appeal against the judgment and order dated 28.3.2001 passed by Addl. Sessions Judge, Court No. 5, Azamgarh in S.T. No. 321/94, State v. Ram Adhar and Ors. S.T. No. 321/94 convicting the Appellant u/s 302, I.P.C. and sentencing him to life imprisonment and to a fine of Rs. 1,000 and also convicting him u/s 307, I.P.C. and sentencing him to five years R.I. and to a fine of Rs. 500.

The facts relevant for disposal of this appeal are that on 2.1.1994 at 2.30 p.m. the informant Munna son of Ramayan resident of village Chhotka Kurmiyan, P. S. Mahrajganj district Azamgarh lodged a F.I.R. at police station Mahrajganj with these allegations that on the aforesaid date at about 10 a.m. the accused Adhar, Kharbhan, Ram Janam alias Jan, Chandrabhan, Raj Kumar, Samujh, Tuphani and Narsingh in prosecution of their common object having guns, lathis and ballams in their hands reached the abadi of the informant and started to damage the well. Ramayan asked them not to do so but the accused abused Ramayan and fired at him who received fire arm injuries. The remaining accused caused injuries to Doodh Nath, Bhaggal and Smt. Chanauti from lathis and ballams. The condition of Ramayan was serious and so Munna and other villagers were taking Ramayan to police station but he died in the way. Then they left the dead body in the way and went to the police station and lodged the report.

On the basis of that report police registered a case under Sections 147, 148, 149, 307, 302, 323 and 504, I.P.C. as Case Crime No. 2/94 and investigated the same. The post mortem of the dead body of Ramayan was performed on 3.1.1994 at 2.15 p.m. He had a fire arm wound of entry 1 cm. ? 1 cm. ? cavity deep on abdomen. Blackening and tattooing was present around the wound in 3 cm. ''2'' cm. area and a metallic F.B. was recovered from back L.I. vertebra. He also had a lacerated wound 2 cm. ? 1 cm. ? muscle deep on right side anterior part of leg below knee joint. The cause of death, in the opinion of the Doctor, was haemorrhage and shock caused by ante mortem injury.

The injury of Smt. Chanauti Devi wife of Doodh Nath was medically examined on 2.1.94 at 6.20 p.m. by Dr. Arjun Kumar P.W. 14. She had a wound on her abdomen. Its size was 2.5 cm. ? 1.5 cm. The margins were clear cut oval shaped. There was no blackening of margins. There was no surrounding blackening or tattooing. The overlying dhoti was torn. There was no black substance over dhoti or skin. Part of omentum was coming out of wound. The injury was kept under observation and for ascertainment of its nature and cause X-ray of abdomen was advised. The patient was conscious and talking normally at the time of examination. Her pulse rate was 100 p.m. and B.P. was 110/70. The duration of injury was about within one day. She died in the District Hospital on 3.1.94 at 6.55 p.m. Then her post mortem was performed on 4.1.94 at 4 p.m. by Dr. R. S. Singh. In his opinion the above injury was a fire arm wound and a metallic pellet was also recovered from the wound. In his opinion the cause of death was haemorrhage and shock as a result of this ante mortem injury.

Mangla alias Bhaggal, who had also received injury in the above incident, was first taken to P.H.C. Maharaj Ganj but Dr. J. P. Dixit on seeing his condition referred him to the District Hospital, Azamgarh. He died in the way. Then his post mortem was performed on 3.1.94 at 3 p.m. He had fire arm wound of entry on his abdomen with corresponding exit wound. There was blackening around the entry wound. The death had taken place one day earlier at the time of post mortem, and cause of death, in the opinion of the Doctor, was haemorrhage and shock caused by ante mortem injury.

Doodh Nath had also received injury in the incident. He was medically examined on 2.1.94 at 6.45 p.m. and he had a fire arm wound of entry on left fore arm alongwith its corresponding exit wound. There was no blackening or tattooing around the entry wound nor on its margins or secondary area. Duration of injury was within one day in the opinion of the Doctor. The police after investigation submitted charge-sheet against all the accused persons.

It may also be mentioned that on the same date the accused Adhar alias Ram Adhar lodged a report against Ram Sakal and Doodh Nath giving a cross version of the case. This F.I.R. was registered at the police station Maharajganj on 2.1.94 at 4.55 p.m. It is stated in this F.I.R. that on the aforesaid date at 10 a.m. Ram Sakal and Doodh Nath, both sons of Harangi started to damage the hut of his pattidar Kharbhan. When he (Ram Adhar) prohibited them from doing so, Ram Sakal having a spear in his hands attacked him and caused injuries to him and Doodh Nath abused them and stated that they should be killed. This incident was witnessed by Kharbhan, Ramjatan etc. Ram Adhar stated that he had received serious injuries in the incident so he prayed that action should be taken in the matter.

On the basis of this report the police registered Cross Case Crime No. 2A/94 under Sections 324/504/506, I.P.C. against Ram Sakal and Doodh Nath. Investigation of the case was entrusted to Sri D. K. Sharma, S.I. but it is not clear as to what happened after investigation on the basis of this cross report. However, the injuries of Ram Adhar were medically examined on 2.1.94 at 7.20 p.m. in the District Hospital, Azamgarh by Dr. Arjun Kumar P.W. 14. He had following injuries on his body:

(1) Lacerated wound 4 cm. ? 0.5 cm. ? bone deep on parietal region of scalp.

(2) Incised wound 1.8 cm. ? 0.8 cm. ? bone deep on left side of chest.

(3) Incised wound 1.4 cm. ? 0.5 cm. ? muscle deep on the left side of chest.

(4) Contusion 4 cm. ? 3 cm. on left fore arm.

(5) Abrasion 7 cm. ? 0.3 cm. on left leg.

Injury No. 2 which was incised wound on left side of chest was kept under observation and X-ray was advised. The remaining injuries were simple. Injury Nos. 2, 3 and 5 were caused by sharp edged object and injuries Nos. 1 and 4 were caused by blunt object in the opinion of the Doctor and the duration of injuries was within one day.

It appears that no charge-sheet has been filed in this cross case on the basis of this cross F.I.R.

Learned Addl. Sessions Judge, on the basis of the charge-sheet filed against the accused persons in Crime No. 2/94, framed charges against all the accused persons under Sections 147,148, 302/149 and 307/149. All accused pleaded not guilty and claimed trial.

The prosecution produced Doodh Nath as P.W. 1. He stated on oath that on 2.1.94 at 10 a.m. all the accused came to his abadi and started to damage his well, then his brother Ramayan asked them not to do so and then they attacked Ramayan, and the accused Ram Adhar, who was armed with gun, fired from that gun in his hands and consequently Ram Adhar, Bhaggal alias Mangala and Smt. Chanauti received fire arm injuries on their stomach. He also received fire arm injury on the wrist of his left hand. Accused Raj Kumar was armed with ballam and Ors. were having lathis. These accused wielded lathi blows and consequently he received lathi injury upon his head. Ramayan received lathi injury on his leg. Bhaggal also received lathi injury on his leg. Raj Kumar gave ballam blow to him but he escaped the injury and ballam injury was received by accused Ram Adhar. He further stated that this incident was witnessed by Ram Nawal, Sarvajeet and Phagoo Harijan and then Phagoo, Ram Nawal and Ors. had taken them to the police station. Ramayan died in the way. The F.I.R. of the incident was lodged by Munna son of Ramayan. Then they were sent to the Primary Health Centre Maharajganj and from there to the District Hospital. Bhaggal and Chanauti had also died as a result of fire arm injuries received by them. He further stated that there was no dispute between the parties except that in respect of the well.

Munna was examined as P.W. 2. He had lodged F.I.R. of the incident. He has corroborated the statement of Doodh Nath P.W. 1 and has proved the F.I.R. as Ext. Ka-1.

Constable Govind Rao was examined as P.W. 3. He stated that he was present on the spot at the time of preparation of the inquest report of the dead body of Chanauti wife of Doodh Nath. He had signed the inquest report. He further stated that he carried the dead body of Chanauti for post mortem in the sealed condition.

Dr. R. S. Singh, Medical Officer, District Hospital, Azamgarh was examined as P.W. 4. He had performed post mortem of dead body Smt. Chanauti wife of Doodh Nath on 4.1.94 at 4 p.m. and has proved the post mortem report Ext. Ka-2.

Dr. J. P. Dixit, Medical Officer, P.H.C. Kodnaha, district Azamgarh was examined as P.W. 5. He stated that on 2.1.94 the police had brought the injured Chanauti, Bhaggal and Doodh Nath at the P.H.C. Maharajganj, and then on seeing their condition he had referred them to the District Hospital, Azamgarh after providing first aid to him. He has proved his endorsements on chitthi majroobi of aforesaid persons which are Exts. Ka-3 to Ka-5.

Ram Bahadur Singh, S.I. was examined as P.W. 6. He had prepared the documents regarding inquest and post mrotem of the dead body of Smt. Chanauti. Those documents are marked as Exts. Ka-6 to Ext. Ka-10.

Dr. Gulab Chandra Gupta, Dy. C.M.O. District Hospital, Azamgarh was examined as P.W. 7. He had performed the post mortem examination of the dead body of Ramayan on 3.1.94. He proved the post mortem report as Ext. Ka-11. He had also performed post mortem of the deceased Bhaggal and proved the post mortem report as Ext. Ka-12.

Mr. P. L. Rawat, S.I. was examined as P.W. 8. He had taken over the investigation on 9.1.94 and he had recorded the statement of witnesses during investigation as well as of the accused after taking permission of the Court.

Mr. Nand Kishore constable was examined as P.W. 9. He had taken the dead body of Bhaggal for post mortem in sealed condition.

Constable Surendra Pratap Singh was examined as P.W. 10. He had taken the dead body of Ramayan for post mortem in sealed condition.

Devendra Kumar Sharma S.I. of P. S. Raunapara, Azamgarh was examined as P.W. 11. He had investigated the case from 2.1.94 to 8.1.94 and from 20.1.94 to 31.1.94. During investigation he prepared the inquest report of the dead body of Ramayan, Ext. Ka-13 and prepared documents for post mortem of the dead body which are Exts. Ka-14 to Ka-18. He had also taken sample of plain and blood stained earth from the spot and sealed them separately and prepared its memo which is marked as Ext. Ka-19. He also prepared site plan of the incident which is marked as Ext. Ka-20. On 3.1.94 he prepared inquest report of the dead body of Bhaggal which is Ext. Ka-21 and he prepared other relevant documents for post mortem of the dead body which are Exts. Ka-22 to Ka-26. During cross-examination he stated that the condition of accused Ram Adhar was serious and so he had submitted a report that he (Ram Adhar) was not in a condition to be sent to the Court and so his remand should be granted in the hospital. He has proved that report as Ext. Kha-3. He has further stated that on this report the Magistrate had visited the hospital for grant of remand of Ram Adhar. He also proved the memo whereby the samples of plain earth and blood stained earth were sent for chemical examination (Ext. Ka-33).

Mr. Aparbal S.I. was examined as P.W. 12. He had received investigation of the case on 2.2.94. He after completing investigaton submitted charge-sheet against all the accused persons which is marked as Ext. Ka-27. The pellets which were recovered from dead bodies of Ramayan and Chanauti were produced by him before the Court and they were marked as material Exts. 1 and 2. Samples of blood stained as well as plain earth which were recovered from the spot were proved by him as material Exts. 3 and 4. Eight bundles of clothes which were taken from the dead bodies of the deceased persons were proved as Material Ext. 5.

Head constable Gargmuni Rai of P. S. Bhiti district Ambedkar Nagar was examined as P.W. 13. He had prepared the Chik report of the case on the basis of the F.I.R. He proved the same as Ext. Ka-28 and its entry in the G.D. has been proved as Ext. Ka-29. He has also proved the cross report lodged by Ram Adhar which was marked as Ext. Kha-1 and its entry in the G.D. is marked as Ext. Kha-2.

Dr. Arjun Kumar was examined as P.W. 14. He had medically examined the injuries of Smt. Chanauti Devi and Doodh Nath. He has proved the injury reports as Exts. Ka-30 and Ka-31. He has further stated that on death of Smt. Chanauti on 3.1.94 he sent its information (Ex. Ka-32) to the S.O. Kotwali, Azamgarh. He has also proved the injury report of accused Ram Adhar who had been examined by him on 2.1.94 at 7.20 p.m. and that report has been moved by him as Ext. Kha-3.

The accused in their statements denied the entire prosecution version and stated that they have been falsely implicated in this case. The accused Ram Adhar further stated that there was no dispute in respect of the well and actually Doodh Nath etc., had come on the spot having lathis in their hands and they were damaging hut of Kharbhan. He further stated that he was caused injuries by ballam and lathi in the incident and he was seriously injured. Some persons brought him on a cot to the police station. A crowd had collected on the spot and he does not know as to what had happened and how had it happened. He further stated that his report was not written at the police station at that time in spite of the fact that he had reached there to lodge the report. The accused did not produce any defence.

Learned Addl. Sessions Judge, after perusal of the record, came to the conclusion that the case was not proved against Kharbhan, Ramjanam alias Jan, Chandrabhan, Rajkumar, Samujh, Tuphani and Narsingh because there were allegation against them of causing injuries to Doodh Nath, Bhaggal and Smt. Chanauti by lathis and ballam but a perusal of the post-mortem reports of Bhaggal and Smt. Chanauti and of the injury report of Doodh Nath revealed that they had fire arm injuries only and there was no other injury of lathi or ballam etc. on their persons. So the trial court found the prosecution case unreliable against the remaining accused persons and they were acquitted. The trial court, however, found that the case was sufficiently proved against Ram Adhar under Sections 302 and 307, I.P.C. because he had fired at Ramayan, Doodh Nath, Smt. Chanauti and Bhaggal from the gun in his hand, and as a result of fires done by him, Ramayan, Smt. Chanauti and Bhaggal had died, and Doodh Nath had been injured, and so he convicted Ram Adhar for the above offence and sentenced him to life imprisonment and to a fine of Rs. 1,000 u/s 302, I.P.C. It was further provided that in case of default in payment of fine he will have to undergo three months'' simple imprisonment. For the offence u/s 307, I.P.C. he sentenced Ram Adhar to five years R.I. and to a fine of Rs. 500 and in case of default in payment thereof it was provided that he will have to undergo one month''s simple imprisonment. He further provided that both the sentences will run concurrently. Aggrieved by the said judgment and order, the Appellant Ram Adhar has filed this appeal.

We have heard Mr. Kamal Krishna, learned Counsel for the Appellant and Mr. Pranay Krishna, learned A.G.A., for the State and have perused the record. Learned Counsel for the Appellant made the following submissions before us:

That there is no allegation in the F.I.R. that the accused Ram Adhar caused fire arm injuries to Doodh Nath, Bhaggal and Smt. Chanauti and the prosecution evidence produced just in contradiction to the F.I.R. case was totally unreliable and the learned trial court erred by relying upon it.

That the accused Ram Adhar had received injuries on vital parts of his body and those injuries were not explained by the prosecution, and so the prosecution evidence was liable to be discarded on this ground alone.

That the evidence on the point of firing by Ram Adhar on Doodh Nath, Bhaggal and Smt. Chanauti is self contradictory and does not inspire any confidence.

That the informant Munna was not present on the spot. He had not witnessed the incident and the trial court erred by relying upon his evidence holding him to be an eye-witness of the incident.

That though the incident had allegedly taken place in broad day light at 10 a.m. in the public place yet the prosecution failed to produce any independent witness of the incident.

That the allegation of the prosecution that the incident took place on account of dispute over the well is also false.

That the prosecution has not come with clean hands and has not put forward a true case and it is such a case where it is not possible to disengage the truth from falsehood to sift the grain from the chaff. The truth and falsehood are so inextricably mixed together that it is difficult to separate them. In support of this contention he cited before us two rulings of Hon''ble Apex Court in Lakshmi Singh and Others Vs. State of Bihar, and Nagarathinam and Ors. v. State represented by Inspector of Police (2006) 3 SCC 212: 2006 (2) ACR 1987 .

Learned Counsel for the Appellant submitted in the last that in view of these facts there was no justification for conviction of the accused Appellant and as such he should be acquitted.

Learned A.G.A. submitted in reply as follows:

That it is a cross case in which it is admitted by both the parties that the incident took place on 2.1.94 at 10 a.m. Both the parties had given cross versions of the incident and the participation of accused Appellant in the incident is admitted.

That there is direct evidence of Doodh Nath P.W. 1 and Munna P.W. 2 to this effect that the accused Appellant had caused fire arm injuries to Ramayan, Doodh Nath, Bhaggal and Smt. Chanauti and that Ramayan, Bhaggal and Smt. Chanauti died of those fire arm injuries and so a clear cut case u/s 302, I.P.C. is made out against him.

That even if taking into consideration the injuries of Ram Adhar it is held that he fired in self-defence it is to be seen that there is no allegation to this effect that Bhaggal and Smt. Chanauti had in any way attacked him and so he certainly exceeded the right of private defence by causing fire arm injuries to Bhaggal and Smt. Chanauti resulting into their death and so he is liable to be convicted.

We have considered the above contentions of both the parities and have also gone through the evidence in that light to ascertain the merits of these contentions. First of all it is to be seen that though both the parties have given their cross versions of the incident yet a perusal of the cross F.I. Rs. reveals that only this fact is admitted that an incident had taken place on 2.1.94 at 10 a.m. and this fact is also admitted that Ram Adhar and Doodh Nath had participated in that incident, but participation of other persons in the incident is not admitted. It is also not admitted that the accused Ram Adhar had any fire arm with him and that he had fired from any fire arm. The genesis of the incident is also not admitted because according to the prosecution the incident took place due to a dispute over a well while according to the allegation of the accused this incident took place on account of a dispute over hut of Kharbhan. Hence, the prosecution had to prove that the fire arm injuries to Ramayan, Doodh Nath, Bhaggal and Smt. Chanauti were caused by Ram Adhar by producing reliable and cogent evidence because in the F.I.R. of Ram Adhar there is no admission to this effect that Ram Adhar fired from his gun. On the other hand his case in his F.I.R. Ext. Kha-1 is that Ram Sakal and Doodh Nath started to damage and destroy the hut of his pattidar Kharbhan, and when he asked them not to do so the accused Doodh Nath on exhortation of Ram Sakal caused injuries to him. He has stated in his statement u/s 313, Cr. P.C. that on receipt of these injuries he was taken to the police station by his companions and he does not know as to what had happened thereafter and how had it happened.

Taking the above facts into consideration it was for the prosecution to first prove by its evidence that actually Ram Adhar was armed with gun at the time of incident and that he had fired from his gun resulting into injuries to Ramayan, Doodh Nath, Bhaggal and Smt. Chanauti. Let us consider the evidence on this point.

First of all it is to be seen that in the F.I.R. of this case Ext. Ka-1 there is no allegation to this effect that Ram Adhar caused any fire arm injury to Smt. Chanauti, Bhaggal and Doodh Nath. A perusal of the F.I.R. Ext. Ka-1 reveals that there is allegation to this effect only that the Appellant Ram Adhar had fired at Ramayan resulting into fire arm injury to him, and that Ramayan, as a result of the injury, died when he was being taken to the police station. As regards Doodh Nath, Bhaggal and Smt. Chanauti, it has been stated in it that the remaining accused persons caused injuries to them from lathis and ballam. It is noteworthy that according to the post mortem reports of Bhaggal and Chanauti and the injury report of Doodh Nath no injury of lathi and ballam has been found on their persons and all these persons had received one fire arm injury each on their persons. It is not clear as to how these three persons received fire arm injuries when it has no where been alleged in the F.I.R. that Ram Adhar fired at these persons from the gun.

It has been stated by Doodh Nath P.W. 1, and Munna P.W. 2 who had lodged this F.I.R. that all these three persons named Bhaggal, Doodh Nath and Chanauti had received fire arm injury from fires done by Ram Adhar but the question is that if these persons had received injuries from the shot of fire arm, why this fact was not mentioned in the F.I.R. This discrepancy between the F.I.R. version and the injury reports of Doodh Nath, Bhaggal and Smt. Chanauti goes to show that either the prosecution has not come with clean hands and has not given true version of the incident and has concealed some facts or Munna son of Ramayan (deceased) was not present on the spot when the incident took place, and so he could not see as to who had caused fire arm injuries to Doodh Nath, Bhaggal and Smt. Chanauti, and that is why he could not give correct description as to who had caused fire arm injuries to them. The allegation of the accused is that Munna was not present on spot at the time of the incident and in support of this contention learned Counsel for the Appellant argued that absence of any injury on the person of Munna and absence of blood stains on his clothes fortifies the conclusion that Munna was not present on the spot and he did not see the incident, and as such his testimony is false. He further pointed out that according to the statement of Munna he had tried to rescue his father Ramayan when he had fallen on the ground on receiving fire arm injury and at that time his clothes got blood stained but no such blood stained clothes were produced before the Investigating Officer.

It was also pointed out that according to the statement of Doodh Nath P.W. 1 he received fire arm injury when he was rescuing his brother Ramayan after he had fallen on the ground on receiving fire arm injury. Munna P.W. 2 has stated that he was also trying to rescue his father Ramayan alongwith Doodh Nath but Doodh Nath had not received any fire arm injury at that time. Statements of both these witnesses are self contradictory on this point.

It is also to be seen that according to the statement of Doodh Nath P.W. 1 when he and his companions Ramayan, Chanauti, Bhaggal and Munna were trying to return back to their houses, all the accused collected around them and Ram Adhar fired at them from his gun. It was further stated by him that he and his above companions were almost in one line beside each other. It was further stated by him that Bhaggal was closest to Ram Adhar at that time and thereafter Smt. Chanauti and then Ramayan and thereafter he himself were there and Ram Adhar was doing firing standing at one place. He has further stated that he was at a distance of 3-4 paces only from Ram Adhar and the first fire hit Ramayan, the second fire hit Doodh Nath on the hand, the third fire hit Bhaggal and the last fire hit Smt. Chanauti.

Now it is to be seen that it is clear from the above discussion that all these firings were done from a close range. According to Dudh Nath P.W. 1 all these fires were done within a minute only. Munna P.W. 2 has also stated that all these firings were done within 2-3 minutes. However, the noteworthy aspect of the case is that there was blackening and tattooing around the fire arm injuries received by Bhaggal and Ramayan, but there was no blackening, charring or tattooing around the injuries received by Doodh Nath and Smt. Chanauti. When all these fire arm injuries were caused from the same distance by the same fire arm, it is strange that there was blackening and tattooing around the injuries received by Ramayan and Bhaggal but no blackening, charring or tattooing was found around the injuries of Doodh Nath and Smt. Chanauti.

Learned Counsel for the Appellant contended that these facts go to show that the injuries have not been caused in the manner as alleged by the prosecution and the prosecution has concealed the true facts and has not come with the true story.

There is one more aspect of the case. According to Dr. Arjun Kumar P.W. 14 who had medically examined Smt. Chanauti on 2.1.94 at 6.20 p.m. had found that the margins of oval shaped injury on stomach were clean cut and the dhoti overlying the wound also did not have any black substance and the dhoti was torn at that place. In case Smt. Chanauti had received fire arm injury on her stomach, margins of the injury could not be clean cut but they must have been inverted Dr. Arjun Kumar could not ascertain the cause of injury and so he advised X-ray of the abdomen. However, on her death the post mortem examination was conducted by Dr. R. S. Singh (P.W. 4). He has described in the postmortem report that a pellet was found inside the above wound of Smt. Chanauti, and he has concluded it to be a fire arm wound further stating that its margins were inverted. It is not clear as to whether the version of Dr. Arjun Kumar, who has stated that margins were clean cut, is correct, or the version of Dr. R. S. Singh who has stated that margins were inverted is correct. This fact again causes serious doubts regarding genuineness of the prosecution case.

It is also noteworthy in this regard that according to the post mortem report of Ramayan the fired bullet was recovered from his stomach. The fire arm injuries of Bhaggal and Doodh Nath are through and through and hence the bullets which passed through their wounds should have fallen on the ground and should have been recovered, but no bullet, which passed through the hand of Doodh Nath and stomach of Bhaggal, has been recovered on the spot. It is strange to note that no bullet was recovered from the stomach of Smt. Chanauti (though there was no exit wound) but only a small pellet was recovered from her stomach. If fires had been done from the same gun to all these persons a bullet should have been recovered from the wound of Smt. Chanauti (as recovered from stomach of Ramayan) and not a mere pellet.

The aforesaid discrepancy in the nature of fire arm injuries again casts serious doubt regarding genuineness of the prosecution version.

The position in this way is that the aforesaid evidence led by the prosecution to this effect that Ram Adhar had caused fire arm injuries to Doodh Nath, Bhaggal and Smt. Chanauti is just in contradiction to their own F.I.R. in which there is no allegation to this effect that fire arm injuries were caused to them and the evidence on this point is also self contradictory. According to the statements of Dudh Nath and Munna (P. Ws. 1 and 2), Ram Adhar had caused fire arm injuries to the aforesaid persons but since this fact was not mentioned in the F.I.R. (which gives a totally different version) the prosecution should have offered explanation on this point as to how this fact was omitted/wrongly stated in the F.I.R. but it did not do so. Under these circumstances, the prosecution evidence which is self contradictory on the point and which has utterly failed to prove its allegation on the above point leads to a conclusion that the prosecution has not come with clean hands and has not put forward a true case and the story has been so much fabricated that it is not possible to separate truth from falsehood.

Now I come to the point of injury of accused Ram Adhar:

It has been alleged by Doodh Nath P.W. 1 and Munna P.W. 2 that the accused Ram Adhar had received the injuries from the stroke of ballam in the hands of co-accused Rajkumar who had pointed it towards Doodh Nath P.W. 1 but since Doodh Nath changed his position that blow instead of hitting Doodh Nath had hit Ram Adhar accused and so Ram Adhar received injury. This allegation again does not inspire any confidence.

First of all it is to be seen that this allegation regarding injury of Ram Adhar does not find place in the F.I.R.

Munna P.W. 2 has stated that he had dictated this fact regarding injury of Ram Adhar to the scribe of the F.I.R. but he could not offer any explanation as to why this allegation does not find place in the F.I.R. when it was dictated by him. Hence, this explanation given by him regarding injury of Ram Adhar in his statement in the witness box appears to be an afterthought. Moreover, the allegation that Raj Kumar hit his own uncle Ram Adhar from ballam again does not inspire any confidence.

The last but not the least point is that there is no ballam injury on the person of Ram Adhar. His injury No. 1 is bone deep lacerated wound on his head and it could not be caused from the ballam which is a piercing weapon. Injuries No. 2 and 3 of Ram Adhar are bone deep and muscle deep incised wounds on his chest and they also could not be caused from ballam. Injuries No. 4 and 5 are contusion and abrasion respectively on his forearm and leg and they also could not come from a ballam. As such the allegation from the side of the prosecution that Ram Adhar received injuries from ballam blow of Rajkumar is again found to be false. Moreover, even according to the above version of the prosecution, Ram Adhar could receive only single injury from the above one blow of ballam but a perusal of the injury report reveals that he had received five injuries out of whom first three injuries were on his vital parts, and injury No. 2 was bone deep incised wound on chest which was kept under observation and x-ray was advised.

It is also to be seen that injuries No. 1 to 3 Ram Adhar are not superficial, they are on vital parts of the body and there is no allegation to this effect that they were self inflicted.

Mr. Devendra Kumar Sharma, S.I. P.W. 11, has stated in his cross-examination that the condition of Ram Adhar was so serious that after getting him admitted in the hospital, it was not considered advisable to take him to the Court for grant of judicial remand, and so he had submitted an application paper No. 16-Ka before the Magistrate that Ram Adhar was not in a condition to be produced in the Court and so his remand should be granted in the hospital and then the Magistrate had visited the hospital for granting remand of Ram Adhar.

In this way it has became clear that the accused Ram Adhar had also received serious injuries in this incident. There is no explanation from the side of the prosecution as to how he had received these injuries, and non-explanation of his injuries is fatal to the prosecution case.

Now, we come to some other shortcomings in the prosecution version.

It is to be seen that the name of any witness has not been mentioned in the F.I.R. Munna P.W. 2 was cross-examined on this point and he has stated that he had got this F.I.R. scribed by Suryabhan and he had dictated the names of witnesses to Suryabhan and Suryabhan had also written the names of witness in that F.I.R. and the Head Moharrir, who had copied that F.I.R. in the Chik register, had omitted names of witness in the Chik report. Then, the report Ext. Ka-1 was shown to him and it was pointed out that it does not contain the name of any witness. He admitted his signature on that report but could not furnish any explanation as to why it did not contain names of the witnesses.

As regards genesis of the incident, the allegation of the prosecution is that the dispute started as the accused were trying to damage the well of the informant. However, it is to be seen that it has come in the evidence of Doodh Nath (P.W. 1) that no dispute had ever taken place in regard to this well prior to the date of the incident. Now, it is not clear as to when there was no dispute on the well prior to this incident, how and why did the accused come to demolish this well on the date of the incident. On the other hand failure of the prosecution to prove the above allegation lends support to the allegation of accused Ram Adhar in his F.I.R. Ext. Kha-1 that Doodh Nath and Ram Sakal had come to demolish the hut of his pattidar Kharbhan.

It was submitted by the prosecution that in this case three persons have been done to death by the fires done by Ram Adhar and so he must be convicted. We do not agree with this contention. Until and unless the guilt of the accused is proved he cannot be punished under any penal provision. In the present case wide variation between the F.I.R. version and the statements of witnesses before the Court and non-explanation of the serious injuries of injured accused Ram Adhar by the prosecution go to show that the prosecution has not come with clean hands and has not given a true version of the incident and it is a case where it is not possible to disengage the truth from falsehood, to sift the grain from the chaff. The truth and falsehood are so inextricably mixed together that it is difficult to separate them. These observations were made by Hon''ble Apex Court in the case of Lakshmi Singh (supra). In the aforesaid case also two persons had been murdered and the trial court had punished seven persons for that murder. The prosecution case suffered from the defects pointed out above and the injuries of the accused Dashrath Singh were not explained. Even then the trial court convicted the accused persons and on appeal the conviction order was confirmed by the High Court. The Hon''ble Apex Court holding that the High Court was in error by not considering the serious infirmities in the prosecution case including non-explanation of injuries of the accused, allowed the appeal and acquitted the accused person. Similarly in the case of Nagarathinam (supra) also the prosecution had failed to explain the injuries of accused persons, and had also failed to prove that that the accused had exceeded the right of self-defence and so the Hon''ble Apex Court allowed the appeal and acquitted the accused persons.

The position, in view of the discussions made above, is that taking into consideration the major discrepancies in the prosecution case as well as non-explanation of injuries of the accused Ram Adhar, we are of the view that it is such a case where it is not possible to disengage the truth from falsehood to sift the grain from the chaff because the truth and falsehood are so inextricably mixed together that it is difficult to separate them. The prosecution has miserably failed to explain the injuries of accused Ram Adhar, as such he could not be convicted and the learned trial court fell in error by convicting him under Sections 302 and 307, I.P.C. The appeal, therefore, deserves to be allowed and the conviction of the Appellant under Sections 302 and 307, I.P.C. and the sentences of imprisonment and fine imposed upon him deserve to be set aside.

The appeal is allowed. The judgment and order dated 28.3.2001, passed by Addl. Sessions Judge, Court No. 5, Azamgarh in S.T. No. 321/94, State v. Ram Adhar and Ors., S.T. No. 321/94convicting the Appellant u/s 302, I.P.C. and sentencing him to life imprisonment and to a fine of Rs. 1,000 and also convicting him u/s 307, I.P.C. and sentencing him to five years R.I. and to a fine of Rs. 500 are set aside. The accused Appellant is in jail. He shall be set at liberty forthwith if not wanted in any other case.

Let a copy of this judgment be certified to the trial court for information and compliance.