Ram Adhar 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. 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 Mahrajgar.j 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 Doodhnath, 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 1cm. x 1 cm. x cavity deep on abdomen. Blackening and tatooing was present around the wound in 3 cm. x 2 cm. area and a metallic F.B. was recovered from back L.I. vertebra. He also had a lacerated wound 2 cm. x 1 cm. x 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. x. 1.5 cm. The margins were clear cut oval shaped. There was no blackening of margins. There was no surrounding blackening or tatooing. The overlying dhoti was torn. There was no black substance over dhoti or skin. Part of omentun 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 postmortem 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.

Doodhnath 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 along with its corresponding exit wound. There was no blackening or tatooing 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 Mahrajganj 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, Ramj atari etc. Ramadhar 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 Doodhnath. 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) Lcerated wound 4 cm. X 0.5 cm. X bone deep on parietal region of scalp.

(2) Incised wound 1. 8 cm. X 0.8 cm. X bone deep on left side of chest.

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

(4) Contusion 4 cm. X 3 cm. On left fore arm.

(5) Abrasion 7 cm. X 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 No. 2, 3 and 5 were caused by sharp edged object and injuries No. 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 Doodhnath 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 others 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 others 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 Mahrajganj 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 Doodhnath 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 Doodhnath 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 Doodnath at the P.H.C. Mahrajganj, 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 mortem 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 investigation 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 Chikreport of the case on the basis of the F.I.R. He proved the same as Ext. 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 Doodhnath. He hajj proved the injury reports as Exts. Ka-30 and Ka-31. He has fuirther 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 Ramadhar further stated that there was no dispute in respect of the well and actually Doodhnath 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 & Smt. Chanauti and of the injury report of Doodhnath 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 Ramadhar under Sections 302 and 307 I.P.C. because he had fired at Ramayan, Doodhnath, 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 Doodhnath had been injured, and so he convicted Ramadhar for the above offence and sentenced him to life imprisonment and to a fine of Rs. 1000/- 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 Ramadhar 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 Ramadhar 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 Ramadhar caused fire arm injuries to Doodnuth, 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 Ramadhar 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 Ramadhar on Doodhnath, 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 cliaff. 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 in Nagarathinam and Ors. v. State represented by Inspector of Police (2006) 3 SCC 212.

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 thee is direct evidence of Duodnath P.W. 1 and Munna P.W. 2 to this effect that the accused appellant had caused fire arm injuries to Ramayan, Doodhnath, Bhaggal and Smt. Chanauti and that Rayaman, 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 Ramadhar 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 & Smt. Chanauti resulting into their death and so he is liable to be convicted.

We have considered the above contentions of both the parties 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 Ramadhar and Doodhnath had participated in that incident, but participation of other persons in the incident is not admitted. It is also not admitted that the accused Ramadhar 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, Doodnath, Bhaggal and Smt. Chanauti were caused by Ramadhar by producing reliable and cogent evidence because in the F.I.R. of Ramadhar there is no admission to this effect that Ramadhar fired from his gun. On the other hand his case in his F.I.R. Ext. Kha-1 is that Ram Sakal and Doodhnath started to damage and destroy the hut of his Pattidar Kharbhan, and when he asked them not to do so the accused Doodhnath 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 Ramadhar was armed with gun at the time of incident and that he had fired from his gun resulting into injuries to Ramayan, Doodhnath, 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 Ramadhar caused any fire arm injury to Smt. Chanauti, Bhaggal and Doodhnath. A perusal of the F.I.R. Ext ka-1 reveals that there is allegation to this effect only that the appellant Ramadhar 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 Doodhnath, 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 Doodhnath 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 Ramadhar fired at these persons from the gun.

It has been stated by Doodhnath P.W. 1, and Munna P.W. 2 who had lodged this F.I.R. that all these three persons named Bhaggal, Doodhnath and Chanauti had received fire arm injury from fires done by Ramadhar 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 Doodhnath, 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 Ramay an (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 Doodhnath, 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 put 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 I.O.

It was also pointed out that according to the statement of Doodhnath 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 tying to rescue his father Ramayan along with Doodhnath but Doodhnath had not received any fire arm injury at that time. Statements of both theese witnesses are self contradictory on this point.

It is also to be seen that according to the statement of Doodhnath P.W. 1 when he and his companions Ramayan, Chanauti, Bhaggal and Munna were tying to return back to their houses, all the accused collected around them and Ramadhar 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 Ramadhar at that time and thereafter Smt. Chanauti and then Ramayan and thereafter he himself were there and Ramadhar was doing firing standing at one place. He has further stated that he was at a distance of 3-4 paces only from Ramadhar and the first fire hit Ramayan, the second fire hit Doodhnath on the hand, the third tire 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 Dudhmath 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 tatooing around the fire arm injuries received by Bhaggal and Ramayan, but there was no blackening, charring or tatooing around the injuries received by Doodhnath 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 tatooing around the injuries received by Ramayan and Bhaggal but no blackening, charring or tatooing was found around the injuries of Doodhnath 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 over lying 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 Doodhnath are through and through and hence the bullet s 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 Doodhnath 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 recoverd 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 Ramadhar had caused fire arm injuries to Doodhnth, 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.W. 1 & 2), Ramadhar 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 Ramadhar:

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

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

Munna P.W. 2 has stated that he had dictated this fact regarding injury of Ramadhar 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 Ramadhar in his statement in the witness box appears to be an after thought. Moreover, the allegation that Raj Kumar hit his own uncle Ramadhar 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 Ramadhar. 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 Ramadhar are bone deep & 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 Ramadhar received injuries from Ballam blow of Rajkumr is again found to be false. Moreover, even according to the above version of the prosecution, Ramadhar 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 Ramadhar 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 Ramadhar 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. 16ka before the Magistrate that Ramadhar 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 Ramadhar.

In this way it has become clear that the accused Ramadhar 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 Doodhnath (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 Ramadhar in his F.I.R. Ext. Kha-1 that Doodhnath 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 Ramadhar and so he must be convicted. We do not agree with this contention. Until and unless the guilt of the accused is proved he can not 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 Ramadhar 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 Ramadhar, we are of the view that it is such a case where it is not possible 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 Ramadhar, 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 u/s 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. 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/- 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.