Shamshad and Others vs State

Om Prakash-VII, J.—This criminal appeal has been preferred by the accused-appellants against the judgment and order dated 20.12.1982 passed by the IIIrd Additional District and Sessions Judge, Badaun in Session Trial No. 164 of 1982, State v. Shamshad alias Bhurey and others, convicting and sentencing the appellants for the offences punishable under Section 302 /34 , I.P.C. to undergo life imprisonment. At the outset, it is relevant to mention here that during pendency of this appeal, the appellant No. 1-Shamshad alias Bhure has died. Accordingly, vide order dated 26.3.2015 this Court has abated the appeal in respect of the appellant No. 1-Shamshad alias Bhurey.

Now, we are proceeding to consider the present appeal in respect of rest of the appellants, i.e., Sajjad alias Ghungru and Karrar alias Qayoom.

The facts of the case, as unfolded by the informant Mohd. Yusuf son of Aijaz Husain in the First Information Report (in short ''F.I.R.''), are that there was an old animosity between the informant Mohd. Yusuf and one Karrar and his brothers. On 29.10.1981 between 5 to 5.30 p.m. informant''s younger brother Mohd. Mustafa and nephew Irfan were returning back home from their fields and when they were passing through their khandhar, accused Karrar alias Qayoom son of Mohd. Hasan and his brothers Shamshad alias Bhurey and Sajjad alias Ghungroo of the informant''s village armed with tamanchas in their hands came out from the dilapidated kothri of the khandhar. They all began to make fire at Mohd. Mustafa, brother of the informant, out of which, one shot fired from their firearms by Shamshad alias Bhurey hit the wall. His brother fell-down in khandhar itself. On hue and cry, Raftar Husain son of Naushey Ali, Mukhtyar Husain son of Tahawwar Ali and Hashmat Ullah son of Salam Ulla and Mohd. Ajar (cousin of the informant) son of Mohd. Umar reached the spot, on the challenge, the accused fled from the spot. He further narrated that informant and others saw that his brother Mohd. Mustafa was lying dead. Due to fear, he could not go in the night to lodge the F.I.R. On the next morning, after leaving the family members and other villagers near the dead body, he proceeded to lodge the F.I.R.

On the basis of the written report (Ext. Ka-3) scribed by one Intezar Ahmad, chik First Information Report (Ext. Ka-1) was registered at Police Station concerned on 30.10.1981 at 8.04 a.m. mentioning all the details as had been described in Ext. Ka-.3. G.D. entry was also made at the same time, which is Ext. Ka-2.

Investigation was entrusted to Sub-Inspector Ramesh Chandra Pandey, Incharge of the concerned Police Station. After recording the statement of informant Mohd. Yusuf, he alongwith other police personnel proceeded to the place of incident on the same day and prepared the inquest report (Ext. Ka-4). The Investigating Officer also prepared photo lash (Ext. Ka-5), challan lash (Ext. Ka-7), sample seal (Ext. Ka-6), letter to R.I. (Ext. Ka-8) and letter to Medical Officer, Badaun (Ext. Ka-9) for post-mortem. The dead body was kept in sealed cover and was dispatched through constable Shiv Charan Lal and village chaukidar Gulzari alongwith the police papers for postmortem. Site plan (Ext. Ka-10) was also prepared. The Investigating Officer also took the sample of plain earth and bloodstained earth from the place of occurrence and also prepared the memo in this regard. He found 15 pellets on the spot and prepared memo Ex. Ka-12 in this respect.

Autopsy report (Ext. Ka-14) was prepared after conducting the post-mortem on 31.10.1981 at 1.30 p.m.

As per the post-mortem report, the deceased was about 40 years old. On external examination he found that the deceased was average built and the rigor mortis passed out from upper extremity and passing of from the lower extremities, patches of greenish discolouration over lower abdomen was present on the body and features were bloated and eyes were closed.

On examination of the dead body of the deceased, following ante-mortem injuries were found:

"(i) Gun shot wound of entry 3 c.m. x 1.5 c.m. on the right side of chest in front 6 c.m. above the right nipple situated at 12 O''clock position, margins lacerated and inverted, directing backwards and medially. On dissecting the wound, 3rd and 4th ribs of right lung was found fractured under thee injury, upper lobe of right lung was found lacerated under the injury and the pleural cavity contains about two pints of blood. Pericardium on posterior lateral aspect on right side was found lacerated. The descending part of the Aorta was found lacerated (part of the circumference). 29 small pellets were recovered from right lung, right pleural cavity and aorta and 1 piece of wad from the right pleural cavity wall recovered. There was no blackening, tattooing around the wound.

(ii) Multiple gun shot wounds of entry over an area of 7 c.m. x 4 c.m. on right iliac foss and adjoining the lateral part of inguinal region, 15 c.m. away from umbilicus; situated at 7 O''clock position, margins lacerated and inverted, direction backward. On dissecting the wound, the ilium bone of right side near right anterio superi iliac spine was found to show commuted fracture. 24 small pellets were recovered from the bond and adjoining tissue. No blackening, tattooing was found around the wound.

(iii) One abrasion 2.5 c.m. x 2 c.m. on posteromedial aspect of left fore arm 14 cm distal to lip of olecranon of ulna of left side."

According to the doctor, pleura lacerated under injury No. 1 and both chambers of heart were empty. Stomach contained about 6 grams of pasty material. Intestines contained gas and faecal matter. Bladder was half full.

In the opinion of the doctor, death was caused due to shock and haemorrhage as a result of ante-mortem injuries.

After completing the investigation, charge-sheet (Ext. Ka-13) against all the accused-appellants was filed. Concerned Magistrate took the cognizance. The case being exclusively triable by session court, was committed to the court of sessions.

Accused/appellants appeared and charge under Section 302 /34 , I.P.C. was framed in the trial court against them. All the accused have denied the charges framed against them and claimed their trial.

Trial proceeded, and on behalf of prosecution, five witnesses were examined, wherein P.W. 1 constable Rameshwar Dayal Sharma, has proved the chik F.I.R. (Ext. Ka-1). He also proved carbon copy of an entry in G.D. made by him at serial No. 13 (Ext. Ka-2), P.W. 2 Mohd. Yusuf, informant, P.W. 3 Irfan, who is an eye-witness, P.W. 4 Sub-Inspector Ramesh Chandra Pandey, who conducted the investigation. This witness has proved the inquest report (Ext. Ka-4), photo lash (Ext. Ka-5), sample seal (Ext. Ka-8) letter to Medical Officer, District Hospital, Badaun (Ext. Ka-9) Memo (Ext. Ka-11) prepared by him in respect of plain earth (Ext. 1) and bloodstained earth (Ext. 2) and another memo (Ext. Ka-12) in respect of 15 pellets (Ext. 3). He has also proved charge-sheet (Ext. Ka-13). P.W. 5 Dr. A.C. Sharma, who has conducted the post-mortem on the body of deceased Mohd. Mustafa and prepared the post-mortem report (Ext. Ka-14).

After closure of evidence, statement of accused appellants under Section 313 , Cr.P.C. was recorded.

No oral or documentary evidence was filed in their defence.

Accused persons in their statements under Section 313 , Cr.P.C. denied the allegations and stated that they have been falsely implicated due to village partybandi.

Having heard the learned counsel for the parties and going through the record, the trial court has found that the prosecution has fully succeeded in bringing home the charges against the accused-appellants beyond reasonable doubt and convicted and sentenced the accused-appellants, hence this appeal.

We have heard Shri Rahul Mishra, learned counsel for the appellants and Shri Rajeev Sharma, learned A.G.A. for the State at length, and perused the entire record carefully.

Castigating the impugned judgment and order, learned counsel for the appellants has made the following submissions before us:

(i) The incident took place in the evening of 29.10.1981 between 5.00 to 5.30 p.m. but the F.I.R. was lodged in the morning of 30.10.1981. Thus, there was delay in lodging the F.I.R. and the same was not properly explained.

(ii) Motive to commit the offence has not been proved.

(iii) There are contradictory statements regarding the fact that whether the F.I.R. was prepared at the police station concerned or at the house of the informant itself.

(iv) There is conflict between medical evidence and ocular testimony.

(v) P.W. 2 Mohd. Yusuf is not an eye account witness, as nothing was mentioned in the F.I.R. about his presence at the time of occurrence.

(vi) P.W. 2 Mohd. Yusuf has admitted enmity between the parties. Thus, there is chance of false implication of the appellants in the present matter.

(vii) Place of incident is also not established from the prosecution evidence. There are major contradictions in the statements of ocular evidence and the Investigating Officer on this point.

(viii) Finding of one wad in the injury No. 1 of the deceased Mohd. Mustafa indicates that fire was made from the close range. Medical evidence in this regard is against the oral evidence.

(ix) The prosecution has made improvement during course of statement, which is fatal to the prosecution case.

(x) Prosecution case was not supported with the independent witnesses. All the witnesses examined as eye account witnesses are interested, inimical and relative witnesses. Hence, their testimony cannot be relied upon.

(xi) There are major contradictions in the statements of said eye account witnesses on the point of time and manner of incident.

(xii) Deceased Mohd. Mustafa was history-sheeter. He was done to death by some unknown person at some other place but his dead-body was kept on the said place of occurrence and on that basis inquest report was prepared.

(xiii) Referring to the contradictions and omissions occurred in the statements of eye account witnesses, it was submitted that P.W. 2 and P.W. 3 were not eye account witnesses and they were procured later on only to falsely implicate the appellants in the present matter and the whole prosecution story is improbable and unnatural.

In reply, the learned A.G.A. appearing for the State has submitted that the F.I.R. was prepared on the following day of the incident. Delay in lodging the F.I.R. has been properly explained in the F.I.R. itself. Eye account witnesses are the resident of same locality. Although P.W. 3 Irfan runs grocery shop in the village yet there was occasion to accompany the deceased on the date and time of occurrence and this fact has been properly explained in the statements of the witnesses. Medical evidence fully supports the prosecution case. There is no conflict between oral and medical evidence. Informant P.W. 2 Mohd. Yusuf was present on the spot. Non-mentioning of his name in the F.I.R. will not place him in the category of suspicious/unreliable witness. Contradictions, omissions, laches, improvements are of minor nature and do not go the root of the prosecution case and the same may be ignored. The finding of the trial court is based on the evidence available on record. Non-inspection of field, where the deceased Mohd. Mustafa and P.W. 3 were collecting gross, is also not material in the present case. The accused-appellants were hidden in the khandhar and when the deceased Mohd. Mustafa and his other fellow reached there, they attacked on them.

21, We have considered the submissions made by the learned counsel for the parties and have carefully gone through the entire record and evidence.

Before proceeding to discuss the submissions raised by the learned counsel for the parties, we may mention the findings of the trial court on material point in the impugned judgment and order, which are as under:

(i) Delay in lodging the F.I.R. has been properly explained by the witnesses.

(ii) P.W. 2 Mohd. Yusuf was present on the spot at the time of occurrence.

(iii) Contradictions in the statements of witnesses are of minor nature and are not fatal to the prosecution case.

(iv) Character of the deceased is not relevant in the present case.

(v) Testimony of P.W. 2 Mohd. Yusuf is corroborated by the testimony of P.W. 3 Irfan.

(vi) Other independent witnesses have reached the spot after commission of crime, therefore, non-production of those witnesses is not fatal to the prosecution case.

(vii) Omission and laches on the part of Investigating Officer in investigation are not of such nature which are fatal to the prosecution case and on this ground ocular testimony cannot be discarded.

(viii) Suggestion put by the appellants that the deceased was done to death at some other place is also not acceptable.

After outlining the findings recorded by the trial court in the impugned judgment and order, we are proceeding to deal with the submissions advanced by the learned counsel for the parties.

Firstly, we take-up the submission regarding delay in lodging the F.I.R.

Prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding truth of its version. In case, there is some delay in filing the F.I.R. the complainant must give explanation for the same. Undoubtedly, delay in lodging the F.I.R. does not make the complainant''s case improbable when such delay is properly explained. However, deliberate delay in lodging the complaint is always fatal. [Vide: Sahib Singh Vs. State of Haryana, ].

In cases where there is a delay in lodging a F.I.R., the court has to look for a plausible explanation for such delay. In absence of such an explanation, the delay may be fatal. In such a case, where an F.I.R. is lodged clearly with a view to spite the other party because of a private and personal grudge and to enmesh the other party in long and arduous criminal proceedings, the court may take a view that it amounts to an abuse of the process of law in the facts and circumstances of the case. (Vide: Chandrapal Singh and Others Vs. Maharaj Singh and Another, ; State of Haryana and others Vs. Ch. Bhajan Lal and others, ; G. Sagar Suri and Another Vs. State of U.P. and Others, and Gorige Pentaiah Vs. State of A.P. and Others, ).

In the present matter, offence is said to have been committed on 29.10.1981 between 5 to 5.30 p.m. The F.I.R. was lodged in the next morning, i.e., on 30.10.1981 at 8.04 a.m. Distance between the place of occurrence and the concerned Police Station is 9 kilometres. Informant is brother of the deceased Mohd. Mustafa. Thus, the F.I.R. was lodged after about 15 hours of the incident. In the F.I.R., the informant has explained that due to fear, he could not lodge the F.I.R. in the night itself. P.W. 2 Mohd. Yusuf, who is informant, has stated the same fact before the court. It was also stated that they were present at the place of occurrence whole night. Written report (Ext. Ka-3) was scribed by one Intezar Ahmad in the village where the incident occurred. Now the question arises as to whether there is some force in the plea raised by the learned counsel for the appellants that delay in lodging the F.I.R. was not properly explained and only to meet-out the delay in lodging the F.I.R., plea of fear was taken in the F.I.R. He has further submitted that in fact the incident had taken place in the night itself. None had seen the occurrence. When the informant received information in the morning, F.I.R. against the appellants due to enmity, as shown in the prosecution evidence, was lodged after consultation and deliberation.

If the arguments advanced by the learned counsel for the appellants are minutely considered in consonance with the statement of prosecution witnesses and the evidence available on record, it emerges that the offence is said to have been committed in the month of October between 5 to 5.30 p.m. and at that time there was no complete darkness. Place of incident is situated in the locality. The distance of concerned Police Station is only 9 kilometers from the place of incident. The prosecution has also not come with the plea that the accused-appellants had threatened them to desist from lodging the F.I.R. It also does not appear from the record that the informant had tried to proceed to the concerned police station for lodging the F.I.R. and accused-appellants prevented him from doing so. Written report was also not prepared in the evening or night itself. In the month of October, sun-sets at around 5.30 p.m. and there is twilight for about 30 minutes after sun sets. Thus, in our view, the conduct of the informant is unnatural and improbable that he did not proceed to lodge the F.I.R. immediately after the incident. In the facts and circumstances of the case and on re-appreciation of prosecution evidence, it can safely be held that reason explained by the prosecution for delay in lodging the F.I.R. is not plausible and the same is fatal. The finding recorded by the trial court in this regard is not in accordance with the evidence available on record, and the same requires interference. The trial court has also not correctly appreciated the prosecution evidence on this point. For the reasons mentioned above, the genuineness of F.I.R. becomes suspicious.

It may be mentioned here that only on this basis that F.I.R. was lodged belatedly and delay has not been satisfactorily explained, the entire prosecution story cannot be thrown out or disbelieved. Other circumstances and evidence has to be scrutinized cautiously and carefully in the matter.

Now we take-up the submission regarding presence of the P.W. 2 Mohd. Yusuf and P.W. 3 Man on the spot at the time of occurrence.

As in the instant case the most pivotal role is that of the ocular account of the two witnesses, therefore, in our view, we would like to discuss it by making careful reappraisal of the same as all the three accused belong to one and the same family, so, an innocent one may not fall on account of misreading or non-reading of material evidence. The prosecution case mainly rings upon the alleged ocular account witnesses, namely informant Mohd. Yusuf P.W. 2 and Irfan P.W. 3. We would like to reappraise their testimony first of all to draw conclusion as to whether their presence on the spot at the time of occurrence has been established by the prosecution and whether their testimony is worthy of credence, believable and whether their conduct is natural and in accordance with the ordinary human conduct or otherwise.

In the F.I.R., P.W. 2 Mohd. Yusuf has not claimed himself as eye account witness. Only in the last portion of the written report, it was mentioned that ''ham sab ne Jakar dekha to Mohd. Mustafa mera bhai mora para tha.'' When this witness was examined, he claimed himself as an eye account witness. He has stated that when he alongwith P.W. 3 Irfan and the deceased were returning from the field through the khandhar, the accused-appellants came out from the dilapidated room of the khandhar and opened fire upon them. Fire made by accused Shamshad did not hit them but it hit the wall. Fire made by accused-appellants hit the deceased Mohd. Mustafa. P.W. 2 Mohd. Yusuf managed to hide behind a wall to save himself. It is to be mentioned here that the said khandhar was of the informant P.W. 2 himself. The Investigating Officer has recovered pellets from the place of occurrence. Dead-body of the deceased Mohd. Mustafa was lying in a ditch dug for constructing the foundation in khandhar. Learned counsel for the appellants has submitted that the conduct of prosecution witnesses themselves had put them in the category of suspicious/unreliable witnesses, as they have stated that when the accused opened fire upon them, they rushed towards the said dilapidated room (the place from where the accused-appellants were making fire) to save themselves.

If this fact is minutely compared with the site plan (Ext. Ka-10), it emerges that P.W. 2 Mohd. Yusuf and P.W. 3 Irfan had moved/rushed towards the said dilapidated room wherefrom the accused persons were opening fire upon them. It is also to be noted here that P.W. 2 Mohd. Yusuf claimed himself as an eye account witness but he did not receive any injury in the said incident. Not only this, he has not claimed himself as eye account witness in the F.I.R. This fact also creates doubt about the presence of P.W. 2 on the spot at the time of occurrence. Had he been an eye account witness, he would have definitely claimed himself to be one in the F.I.R. itself. Presence of P.W. 3 Irfan on the spot is also doubtful. It is an admitted fact that he was a witness in an another criminal case of the accused-appellants and had refused to file affidavit in their favour. Had he been present on the spot, certainly injuries would have been caused to him by the accused-appellants for not filing the affidavit in their favour. Thus, in our opinion, the conduct of these witnesses appears to be unnatural and improbable and it can safely be said they were not present on the spot at the time of occurrence and their testimony is not worthy of credence and inspire no confidence.

So far the submission regarding motive is concerned, although we are oblivious of the fact that motive relegates into the back ground in a case of direct ocular testimony and is not of much significance, but where the motive is false and cooked up, then it assumes importance to test the veracity or other wise of the prosecution witnesses. From the evidence, we find that only this much was mentioned in the F.I.R. that there was an old enmity between the parties. In their statements P.W. 2 and P.W. 3 have stated that just 10-12 days before the present incident, when the informant Mohd. Yusuf and deceased Mohd. Mustafa were sitting at the grocery shop of P.W. 3 Irfan, accused-appellant Karrar came there at about 4.30 p.m. and asked him to file an affidavit in support of the accused persons in another criminal case lodged against them to the effect that he (Irfan) had not seen the incident. Informant and the P.W. 3 did not agree to the same, therefore, the present incident took place.

If the statements of P.W. 2 Mohd. Yusuf and P.W. 3 Irfan are closely scrutinized, it would be clear that criminal cases were going-on between both the parties. In the cross-examination, P.W. 2 had admitted that he had not lodged any complaint regarding the threat given by the accused-appellant. Thus, there is no documentary evidence on record to substantiate the motive. Learned A.G.A. appearing for the State submitted that the prosecution story cannot be disbelieved on the ground that there were several criminal litigations pending between the parties and the informant side had not filed a complaint regarding the threat given by the appellant. As stated above, it may be mentioned here that although motive is an essential ingredient to constitute the crime but where there are eye account witnesses, motive loses its significance. It may also be mentioned here that motive may be a reason for false implication. The effect of motive attributed in the present matter has to be seen in the light of other evidence.

As per prosecution case, it is admitted that P.W. 3 Irfan, who was threatened by the accused-appellant Karrar to file an affidavit in their support, was present on the spot but the accused-appellants had not caused any harm or injury to him. If P.W. 3 Irfan was present on the spot and accused persons had committed the present offence due to motive attributed to them, why had they not caused injury to P.W. 3 Irfan. This creates doubt on the motive attributed to the appellants as also about the presence of P.W. 3 Irfan on the spot.

The Investigating Officer had not inspected the field wherefrom the witnesses and the deceased were returning. Although this fact is not material to discard the evidence of eye account witnesses, yet non-mentioning of the name of the P.W. 2 as eye account witness in the F.I.R. and later on in the statement before the court claiming himself to be an eye-witness indicates that concocted story has been developed. Learned A.G.A. has submitted that in fact P.W. 2 Mohd. Yusuf was an eye account witness but due to mistake this fact had not been mentioned in the written report, however, in the later portion of the written report he has shown himself as an eye account witness. If this submission is treated true, then also the presence of P.W. 2 on the spot is to be scrutinized on the basis of statements made before the court and other evidences.

The prosecution witnesses have also made improvement during the course of examination that accused while leaving the place of occurrence had fired shots in the air. This fact has been omitted in the F.I.R. It is also relevant to note that the offence by fire arm is said to have taken place between 5.00 p.m. to 5.30 p.m. in the vicinity of the village, firing is said to have been made, it appears unnatural and improbable that none of the villagers heard the sound of firing.

So far as the submission that the eye account witnesses are interested and inimical is concerned, the admitted position of law is that enmity is a double edged weapon which can be a motive for the crime as also the ground for false implication of the accused persons. In case of inimical witnesses, the courts are required to scrutinise their testimony with anxious care to find out whether their testimony inspires confidence notwithstanding the existence of enmity. Where enmity is proved to be the motive for the commission of the crime, the accused cannot urge that despite proof of the motive of the crime, the witnesses who are inimical should not be relied upon. Testimony of eye-witnesses, which is otherwise convincing and consistent, cannot be discarded simply on the ground that the deceased was related to the eyewitnesses or previously there had been some disputes between the accused and the deceased or the witnesses. The existence of animosity between the accused and the witnesses may, in some cases, give rise to the possibility of the witnesses exaggerating the role of some of the accused or trying to rope in more persons as accused persons for the commission of the crime. Such a possibility is required to be ascertained on the facts of each case.

In the present case, enmity between the parties is admitted. P.W. 2 Mohd. Yusuf is the brother and P.W. 3 Irfan is the nephew of the deceased. Presence of P.W. 2 Mohd. Yusuf and P.W. 3 Irfan on the spot is doubtful. On close scrutiny of their testimony with anxious care, we are of the view, that testimony of these witnesses is neither consistent nor convincing and also does not inspire confidence to be acceptable. Hence, it can safely be said that these witnesses are inimical and had tried to falsely rope the accused-appellants in commission of the present crime on account of animosity. Due to this reason, the F.I.R. was lodged after consultation belatedly in the next morning.

So far as the submission that medical evidence does not support the ocular evidence is concerned, it is to be seen as what was the standing position of the accused persons and the witnesses at the time of firing. In the medical evidence, Dr. A.C. Sharma P.W. 5 has stated that the stomach should have been empty after 6-7 hours of taking the food. There was no dispersal of the pellets in injury No. 1. There may be variation in time of 4-6 hours of either side of death of the deceased. This fact is not disputed by the accused that injuries found on the body of the deceased are fire-arm injuries but the manner in which the injuries are said to have been caused were disputed. As we have noted above, the medical evidence does not tally with the manner and style of causing injuries and the standing position of the assailants. Therefore, we are also of the view that P.W. 2 and P.W. 3 both were not present on the spot at the time of incident. Thus, there is conflict between oral and medical evidence.

The Investigating Officer is said to have taken the blood stained earth and plain earth from the place of occurrence but the same was not sent to the Forensic Science Laboratory for chemical examination. Similarly, pellets are said to have recovered from the place of occurrence, but the same were also not sent to the Forensic Science Laboratory for examination. On a similar footing matter, the Apex Court in Kailash Gour and Others Vs. State of Assam, , has held that:

".....................That an accused is presumed to be innocent till he is proved guilty beyond a reasonable doubt is a principle that cannot be sacrificed on the alter of inefficiency, inadequacy or inept handling of the investigation by the police. The benefit arising from any such faulty investigation ought to go to the accused and not to the prosecution......."

So far as the submission of the learned counsel for the appellants regarding false implication of the accused-appellants due to enmity is concerned, the prosecution itself has admitted that several criminal cases were going on between both the parties. Enmity is double edged weapon. It may be a cause for false implication as also cause to commit the offence. Now the question before us is as to whether on the basis of enmity, there was a chance of false implication of the accused-appellants in the present case.

If the entire facts and circumstances of the case and the evidence available on record are considered and appreciated cumulatively, it is clear that the F.I.R. was lodged belatedly and no plausible explanation was given by the prosecution, which creates doubt about the truthfulness of prosecution story. Similarly, the presence of witnesses on the spot at the time of incident is also doubtful. There is conflict between medical evidence and oral evidence. The omissions and laches on the part of Investigating Officer in the present matter vitally affects the prosecution case.

Thus, we are of the view that the enmity admitted by the prosecution witnesses themselves was sufficient to falsely implicate the accused-appellants in the present case. The finding of the trial court on the point in lodging the F.I.R., medical evidence, presence of eye account witnesses on the spot and defective investigation in the present matter are not correct and the same are. illegal and perverse. The trial court has not rightly appreciated the evidence available on record and reached to a wrong conclusion holding the accused-appellants to be guilty for committing the murder of the deceased Mohd. Mustafa. The pleas taken by the accused-appellants appear more probable in the matter.

Thus, taking into account the entire facts and circumstances of the case and considering the evidence available on record, we are of the view that the prosecution has not been able to establish the guilt of the accused appellants. Hence, the court is inclined to grant benefit of doubt to the accused-appellants on the ground of rule of caution.

In view of the above discussions, we are of the opinion that the prosecution has failed to establish the guilt of the accused-appellants under Section 302 /34 , I.P.C. beyond reasonable doubt and to the satisfaction of the judicial conscience of the court. So, the impugned judgment and order of conviction and sentence dated 20.12.1982, which has been sought to be assailed, call for and deserves, interference. The criminal appeal is liable to be allowed and the same is accordingly allowed.

The judgment and order of conviction and sentence dated 20.12.1982 passed by the trial court is hereby set aside. The accused-appellants, namely, Sajjad alias Ghungru and Karrar alias Qayoom are found not guilty for the offence punishable under Section 302 /34 , I.P.C. They are acquitted of all the charges framed against them. They are on bail. They need not surrender. Their bail bonds are cancelled and sureties are discharged. Let a copy of this judgment alongwith lower court record be sent to the Sessions Judge, Badaun for compliance.