Thenai and Others vs State of U.P.

Pratyush Kumar, J.—1. The instant appeal filed by the accused-appellants is directed against the judgment and order dated 29.11.1982, passed by Sri K.C. Agrawal, the then IInd Additional Sessions Judge, Bahraich in ST No. 288 of 1980 (State Vs. Thenai and others), whereby they were convicted under sections 148, 302/149, 323/149 IPC and sentenced to undergo 1-1/2 years'' rigorous imprisonment, imprisonment for life and six months'' rigorous imprisonment, respectively. All the sentences were directed to run concurrently. During the pendency of the appeal, appellant Suleman had died, appeal filed by him stood abated.

The prosecution case in the instant appeal, may be summarised as under:

That on 19th May, 1980 at 7.15 A.M. Saleek Khan resident of Paharpurwa, P.S. Kaiserganj, District Bahraich handed a written report at P.S. Kaiserganj stating therein that his sister Rahmatul was married to Sabir Ali alias Baddoo brother of Thenai, who ousted his sister and brother-in-law from his house one month ago. His parents had kept them in their house, due to which Thenai started to bear enmity with them. For this reason on the previous night at about 2 A.M. Thenai, Suleman his father-in-law, Iliyas his brother-in-law and Atloo his uncle with four unknown persons armed with gun, country-made pistol, kanta, beroo and lathis came infront of the door of his house whereat his father Jeet Khan and brother Khaliq Khan were sleeping on separate cots. At that time he and his brother-in-law Sabir Ali were sleeping in ahata on eastern side of the house. His father raised an alarm. Whilst Thenai shot his father, he ran towards his father raising hue and cry, hearing that co-villagers Maqbool Khan, Daljeet Khan, Muneejar Khan, Mohammad Mohsin Khan and others reached there with lighted torches and his mother came out of the house. She was also beaten by the miscreants, who fired more shots on his father and departed from the scene of occurrence towards eastern side. Thenai, Atloo, Illiyas and Suleman were identified in the light of the torches and rest unknown by their faces. Thenai had gun, Iliyas had countrymade pistol, Atloo had Kanta, Suleman had beroo and others had lathi with them. His father was found dead on the cot.

At this chick FIR was scribed, Case Crime No. 112/80 under sections 147, 148, 149, 323 and 302 IPC was registered and requisite entry was made in the report of the general diary. Investigation was entrusted to Kailash Nath Pandey, Sub Inspector who investigated the crime and after his transfer charge sheet was submitted against the four named accused by sub-inspector Hem Narayan Singh. The case was committed to the Court of Session where against the appellants charges under sections 302/149, 323/149 and 148 IPC were framed who pleaded not guilty and claimed to be tried.

In support of the charges on behalf of the prosecution besides other papers written report Ext. Ka-1 postmortem report Ext Ka-2, injury report of Smt. Magrooba Ext. Ka-3, recovery memo Ext. Ka-4, Chick FIR Ext Ka-6, copy of report of general diary Ext Ka-7, inquest report Ext. Ka-8, site-plan Ext. Ka-14 were filed and in oral evidence nine witnesses were examined. Statements of the respondents were recorded under section 313 Cr.P.C. In defence Madan Mohan Mishra, DW-1 was examined, copy of FIR Ext. Kha-1 and copy of judgment dated 21.2.1981 Ext Kha-2 were filed.

The learned trial Judge after hearing the arguments convicted the present appellants and sentenced them as above. In his opinion motive stood proved, FIR was promptly lodged, eye witness account was fully trustworthy. He rejected the pleas of the defence about non production of case property, unfair investigation and absence of light saying either they were not substantiated from the record, were of no account.

Aggrieved with their conviction and sentences the appellants have filed the present appeal.

Heard Dr. L.P. Misra and Mohd. Naseer Ullah learned counsel for the appellants and Sri Umesh Verma, learned AGA for the State and perused the record.

Learned counsel for the appellants in support of the appeal has submitted lengthy arguments which took three days'' to conclude. Thereafter they have been replied by the learned AGA.

The gist of the appellant''s argument is as under:

(i) Motive alleged in the FIR is quite different than deposed by the prosecution witnesses during the trial,

(ii) Eye witnesses Saleek Khan and Mohasin Khan, P.W. 2 are planted witnesses. They could not have seen the occurrence for the following reasons:

(a) At the time of occurrence Saleek Khan was sleeping in his ahata lying on the eastern side of the house

(b) Mohsin Khan is resident of another village situated at a distance of more than one farlang.

(iii) Only three ante mortem injuries were found, out of these two were entry wounds. According to ocular version the deceased was shot thrice. Both the entry wounds could have been caused by single shot due to dispersal of the same.

(iv) Neither the deceased nor injured Magreeba sustained any injury cased by sharp edged weapon whereas two appellants were assigned sharp edged weapons i.e. kanta, beroo and use thereof by them.

(v) Case property, sample of blood stained earth, blood stained clothes were not produced during the trial. Absence of link evidence has resulted in prejudice to the appellants.

(vi) The defence case is that the deceased and the injured sustained injuries in the course of dacoity. None of dacoit was identified and due to enmity the appellants were falsely implicated.

(vii) No independent witness was examined by the prosecution, for withholding them an adverse inference has to be drawn against the prosecution.

(viii) There is ante timing of FIR and investigation was not fairly conducted.

The learned trial Judge ignored the above pleas without assigning any cogent reason. The impugned judgment is full of factual errors and legal infirmities.

In support of his arguments the learned counsel has referred the following cases:

The delay in lodging the FIR report casts doubt on the prosecution version.

(i) Mathura Yadav alias Mathura Mahato and others Vs. State of Bihar; , 2002 (2) JIC 524 (SC) para 7

(ii) Jang Singh and others Vs. State of Rajasthan , 2001 (1) JIC 15 (SC), para 1

(iii) Krishna Murari alias Murli and others Vs. State of U.P. , 2001 (1) JIC 828 (All.) (LB.), para 25, 27

(iv) Shiv lal and another Vs. State of Chhatisgarh , AIR 2012 SC 280, para 10, 11

Relatives of deceased did not try to save the deceased which makes the presence of witnesses doubtful.

(i) Toran Singh Vs. State of M.P. , 2002 (2) JIC 102 SC, page 5(ii), (v), 7

(ii) Vdho and another Vs. State of U.P. 2001 (1) JIC 981 (All.), para 18

Source of light: when source of light is doubtful and the incident is of night then prosecution case becomes doubtful.

(i) State of U.P. Vs. Garibuddi alias Garibuddin and others , (2011) 14 SCC 145, para 3

(ii) Nallabothu Ramullu alias Seetharamaih and others Vs. State of Andhra Pradesh,

(iii) B. Nath Goswami Vs. Shiv Kumar Singh and others, , (2004) 9 SCC 186, para 8

(iv) Ishwar Chand alias Pappu Vs. State of U.P. , 2006 (1) JIC 307 (All.), para 18, 28

The testimony of interested witness should be scrutinized with great care and caution.

(i) Raju Balachandran and others Vs. State of Tamilnadu , (2012) 12 SCC 701

(ii) Mookkiah and another Vs. State, represented by Inspector of Police, Tamilnadu , (2013) 2 SCC 89

(iii) Hardeep Vs. State of Haryana and another , (2002) 7 SCC 11.

There should be firm finding based on good evidence and sound reason that participants were five or more in number.

(i) Divash Chandra Devnath alias Bivas D and others Vs. State of West Bengal

(ii) Khemkaran and others Vs. State of U.P. and another , (1974) 4 SCC 603.

(iii) Dharam Pal and others Vs. State of U.P. , (1975) 2 SCC 596

(iv) State of U.P. Vs. Kenthu and others 2014 (3) JIC 389 (All.)

(v) Nageshwar Vs. State of Chhatisgarh 2014 (2) JIC 721 (SC), para 10

Failure to make recovery of weapon of assault makes the prosecution story doubtful.

(i) Ganesh Dutt Vs. State of Uttarakhand 2014 (3) JIC 312 (SC)

(ii) Mahendra Singh and others Vs. State of U.P., , 2014 (1) JIC 909 (All.)

Lenient view may be taken in occurrence which is an old incident.

(i) Bangali and others Vs. State of U.P. , 2014 (2) JIC 15 (All.)

Eyewitnesses changing and improving their version, to suit it with medical evidence, is not reliable

(i) Badri Vs. State of Rajasthan , (1976) 1 SCC 442

(ii) Mahendra Singh Vs. State of Rajasthan , 1989 Supp (1) SCC 338, para 8

Motive is double edged weapon and is basis for false implication

(i) Balbir Vs. Vazir , (2014) 12 SCC 670, para 14

(ii) Kailash Gour Vs. State of Assam , (2012) 2 SCC 34, para 38.12

(iii) Majenderan Langeswaran Vs. State (NCT of Delhi) , (2013) 7 SCC 192, para 27.7

On behalf of the respondents these arguments have been repelled and we have been taken through testimony of Magreeba, P.W. 5 with the submission that though all the three eye witnesses have given truthful account even if presence of Saleek Khan, P.W. 1 and P.W. 2 may be doubted for a moment, the presence of Magreeba, P.W. 5 stands established, being an injured and she has given detailed account of the occurrence and she has no reason to falsely depose against the present appellants and spare the actual culprits.

In support of his replies the learned AGA has referred the following cases:-

(1) Mahmood and another vs. State of U.P. , 2008 CRI.L.J. 696 (SC).

(2) Ram Dular Rai and others Vs. State of Bihar , 2004 CRI.L.J. 635 (SC)

Both these cases have been referred on the point of applicability of section 149 IPC to strengthen the argument that presence of five or more persons are sufficient to make section 149 applicable provided membership of the unlawful assembly is established.

(3) Dr. Krishna Pal and another vs. State of U.P. , 1996 SCC (Cri) 249

(4) Ranbir and others vs. State of Punjab , 1973 SCC (Cri) 858

Both these cases have been referred on the point that late examination of any witness by the investigating officer is material only if it is indicative and suggestive of unfair practice by the investigating agency and further if the evidence of that witness is found convincing and reliable this ground in itself is not enough to discard such testimony.

(5) State of Madhya Pradesh vs. Dharkole alias Govind Singh and others , 2005 CRI.L.J. 108 (SC). Reliance has been placed on para 14 of the report wherein the Hon''ble Apex Court has held that non examination of some persons per se does not corrode vitality of prosecution version, particularly when the witnesses successfully faced the test of cross-examination.

(6) Umar Mohammad and others Vs. State of Rajasthan , 2008 CRI.L.J. 816 (SC). In this case in para Nos. 34 and 35 of the report the Hon''ble Apex Court has held that non recovery of weapon of offences cannot be a ground to acquit them when ocular version is found to be trustworthy.

(7) Balwan and others vs. State of Haryana , AIR 2014 SC 3644. In para 16 of the report the Hon''ble Apex Court while placing reliance of principle laid down in Manodutt vs. State of U.P. , 2012 (4) SCC 79 has quoted with approval the following observations:

"29. As per PW 5, Dr. Surya Bhan Singh, he had examined Salik Ram Yadav as well as Nankoo on 22.10.1977 itself and noticed as many as five injuries on Salik Ram and four injuries upon the person of Nankoo. He stated that the deceased was the son of Nankoo, while Salik Ram was his brother. These injuries were suffered by them from a blunt object.

Salik Ram was examined as PW 2 and his statement is cogent, coherent, reliable and fully supports the case of the prosecution. However, the other injured witness, Nankoo, was not examined. In our view non-examination of Nankoo, to which the accused raised the objection, would not materially affect the case of the prosecution. Normally, an injured witness would enjoy greater credibility because he is the sufferer himself and thus, there will be no occasion for such a person to state an incorrect version of the occurrence, or to involve anybody falsely and in the bargain protect the real culprit."

It is trite law that the evidence of injured witness, being a stamped witness, is accorded a special status in law. This is as a consequence of the fact that injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness would not want to let actual assailant go unpunished."

Before we propose to deal with the arguments submitted by the respective parties, we would like to recollect the manner in which appeal against conviction is required to be considered by this Court and scope of jurisdiction conferred on the Court by Sections 374 and 386 Cr.P.C. Further we would like to refresh the observation made by the Apex Court in the case of Ishvarbhai Fuljibhai Patni Vs. State of Gujarat [, 1995 Supreme Court Cases (Crl.) 222]. Para-4 of the judgment reads as under:

"4. Since, the High Court was dealing with the appeal in exercise of its appellate jurisdiction, against conviction and sentence of life imprisonment, it was required to consider and discuss the evidence and deal with the arguments raised at the bar. Let alone, any discussion of the evidence, we do not find that the High Court even cared to notice the evidence led in the case. None of the arguments of the learned counsel for the appellant have been noticed, much less considered and discussed. The judgment is cryptic and we are at loss to understand as to what prevailed with the High Court to uphold the conviction and sentence of the appellant. On a plain requirement of justice, the High Court while dealing with a first appeal against conviction and sentence is expected to, howsoever briefly depending upon the facts of the case, consider and discuss the evidence and deal with the submissions raised at the bar. If it fails to do so, it apparently fails in the discharge of one of its essential jurisdiction under its appellate powers. In view of the infirmities pointed out by us, the judgment under appeal cannot be sustained."

In the case of Lal Mandi, Appellant v. State of West Bengal, Respondent [, 1995 CRI.LJ. 2659 (Supreme Court), 2659], the Apex Court in para-5 of the report has given the caution to the High Court reminding its duty in the matter of hearing of appeal against conviction. It would be gainful to reproduce the observation made in para-5 of the report, extracted below:

"5. To say the least, the approach of the High Court is totally fallacious. In an appeal against conviction, the Appellate Court has the duty to itself appreciate the evidence on the record and if two views are possible on the appraisal of the evidence, the benefit of reasonable doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot legally interfere with" the order of conviction where the trial court has found the evidence as reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a different conclusion on reassessment of the evidence. The observation made in Tota Singh''s case, which was an appeal against acquittal, have been misunderstood and mechanically applied. Though, the powers of an appellate court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate. The presumption of innocence of accused which gets strengthened on his acquittal is not available on his conviction. An appellate court may give every reasonable weight to the conclusions arrived at by the trial court but it must be remembered that an appellate court is duty bound, in the same way as the trial court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial court, all the circumstances available on the record so as to arrive at an independent finding regarding guilt or innocence of the convict. An Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on the record and arrive at an independent finding based on the appraisal of such evidence."

In the present case before we proceed to re-examine and evaluate the prosecution evidence, we find it necessary to place on record details of prosecution witnesses and very briefly gist of testimonies.

It would be in the fitness of the things that at this juncture we also take into account defence version. The appellants in their statements recorded under section 313 Cr.P.C. had denied the correctness of the prosecution version, challenged the correctness of the facts stated by the witnesses, pleaded ignorance about the medical evidence and steps taken in the course of investigation by the investigating officers. According to them in the house of the deceased dacoity was committed wherein Jeet Khan was murdered and his wife was injured. Sons of Jeet Khan were not in the house. Police of Kaisarganj was annoyed with them. On their behest first informant lodged false FIR. In defence Madan Mohan DW-1 has been examined to show such special report had reached office of the District Magistrate, Bahraich on 20th May, 1980.

Ext. Kha-2 is the certified copy of the judgment passed in ST. No. 34 of 1980, Case Crime No. 185/1979 wherein the appellant Thenai was an accused. The judgment dated 21.2.1981 was delivered, disposing of the case property also. When it was received in the police station, case property of the Case Crime No. 112 of 1980 relating to the present matter was inadvertently destroyed.

The arguments submitted on behalf of the appellants and replies thereof, for the sake of convenience, have been classified by us in following five heads:

(a) Motive;

(b) lodging of FIR and probity of investigation;

(c) medical evidence;

(d) trustworthiness of eye witness account; and

(e) absence of link evidence and its effect

Motive

Though on behalf of the appellants it has been argued that in the FIR motive was alleged that Thenai was annoyed with the deceased because he ousted his younger brother Sabir Ali alias Baddoo and his wife from his house and the deceased gave shelter to them. During the trial before the trial court the motive was changed and the witnesses had stated that Sabir alias Baddoo and Thenai along with one other co-accused were confined in jail in connection with the murder of Benchu Khan.

The deceased did pairvi of Sabir alias Baddoo and obtained his bail from the High Court whereas he did not get bail for Thenai, who after his release on parole was annoyed with the deceased why he did not get him released on bail and murdered him. This point need not detain us because motive has no significance in the case of direct evidence vide Gopi Ram Vs. State of U.P. 2006 (55) ACC 673 (SC).

Medical Evidence

The least controversy is about medical evidence, which consists of statement of Dr. N.N. Agarwal P.W. 3 and postmortem report Ext Ka-2 and further, statement of Dr. L.V. Prasad P.W. 4 and injury report of Smt. Magreeba Ext. Ka-3.

First we deal with the statement of Dr. N.N. Agarwal along with postmortem report Ext. Ka-2. Dr. N.N. Agarwal PW 3, as senior physician of District Hospital, Bahraich performed autopsy on the dead body of Jeet Khan at 11 A.M. on 20th May, 1980. He has no enmity with the appellants and no affinity with the police or first informant. For these reasons we can safely treat him to be an impartial witness. In the statement on oath he reiterated the findings recorded in the postmortem report and expressed the opinion contained therein. He confirmed this fact during cross examination that all the necessary papers were received by him at 9.30 A.M. He was only cross-examined on the point whether injury Nos. 1 and 2 could be inflicted by a single shot. Though he explained that he was not a ballistic expert, however, expressed his opinion that these injuries might possibly be caused by more than one shot. To clarify we would reproduce the antemortem injuries as recorded in the postmortem report Ext. Ka-2 read as under:

Gun shot lacerated wounds 27 c.m. x 22 c.m. x skull cavity deep on the right upper part of face and skull extending from right eye and forehead in front to occipital region of skull on back. Margins of skin on anterior side of wound inverted wound of entry. Whole margins on back of skull everted exit side. Right eye missing. Bones of face vault and skull bones broken into multiple pieces. Brain absent. Skin around the wound on anterior side blackend and scorched. One cork taken out.

Gun shot wounds of entry 7 c.m. x 5 c.m. x chest and abdominal cavity deep on right side chest 8 c.m. below and near to nipple at 5 o'' clock position. Margins inverted. Wound directing backwards and inwards. Multiple G.S. wound of entry each measuring 0.3 c.m. x 0.3 c.m. x skin to chest cavity deep around the wound in an area of 9 c.m. x 8 c.m. intestines from the wounds coming out. No scorching or blackening on skin seen. Two cork pieces recovered.

Gun shot wound of exit 2.5 c.m. x 2 c.m. x chest cavity deep on left side back of chest 3 c.m. away from D8 spine. Margins everted. No scorching blackening or tattooing of skin seen.

Thus there is no serious challenge to his deposition. His deposition is duly corroborated by the findings recorded in the postmortem report Ext Ka-2. We hold him to be a reliable witness and accept the facts established as stated by him and noticed above and take note of his opinion about cause and time of death.

Dr. L.V. Prasad, P.W. 4 as Medical Officer, Incharge PHC Jarwal at 5.45 p.m. on 19th May, 1980 medically examined Smt. Magreeba and found five simple injuries on her person mentioned by us hereinbefore. He has proved injury report Ext Ka-3 and opined these injuries were caused by blunt object like lathi and they were half day''s old. His cross-examination was confined on two points; duration and cause of injuries: possibility of variation of two hours on either side and accepted the suggestion that these injuries could have been inflicted on that day at 8 A.M., about the other he opined that injury No. 5 might have been caused by fall, injury No. 2 by friction, injury No. 4 on account of fall, where stones were lying. To appreciate, the injuries recorded in injury report Ext. Ka-3 require to be placed on record, they are as under:

Lacerated wound 1/2" x 1/4" x skin deep situated on medial border of left forearm 3 1/2" above wrist joint.

Abrasion 1/2 x 1/4" situated 1/2" above the wound No. 1.

Contusion 4 1/2" x 1" situated (sic.) posteriorly on right shoulder joint.

Multiple contusions in an area of 6 1/2" x 6" over mid and back more marked on right side.

Contusion 1/2 x 1/4" situated at the base of left index finger on palmar aspect.

For the reasons mentioned by us in reference of testimony of Dr. N.N. Agarwal we also hold the testimony of this witness to be reliable and facts stated by him as correct and notice his opinion about duration and cause of injuries.

Eye witness accounts

Now we proceed to most crucial area i.e. appreciation of eye witness accounts. While keeping in mind the respective arguments of both the parties, we come to this conclusion that both the sides do not dispute presence of Smt. Magreeba on the spot at the relevant time. To make our task easier, first we proceed to reexamine and re-assess probative force of her testimony. Of course her presence on the spot is natural and probable. The testimony of this witness has been impeached on the ground that the witness sustained injuries in the darkness of the night and she did not have any opportunity to identify the assailants and on account of insistence of her son Saleek Khan and son-in-law Mohd Mohsin she is supporting the story narrated in the FIR.

She is an injured witness and she had no enmity with the appellants except had borne by her family members. However, we cannot accept this argument that she would falsely implicate the appellants and spare the real culprits, who caused death of her husband. The learned AGA has taken us through her testimony and submitted that her testimony remains unchallenged. She was even not cross examined on any material point. In support of this argument the learned AGA has referred para 13 and 14 of the case of State of U.P. Vs. Nahar Singh , 1998 Cri. L.J. 2006 (SC). We cannot accept this argument of the learned AGA that her testimony is unchallenged. It is not true that she was not cross examined about the occurrence. She has been cross-examined and also given extensive suggestions regarding defence version, absence of other eye witnesses, motive etc. Leaving aside technicalities, we think that her testimony can only be discarded if we come to the conclusion that she had no opportunity to identify the assailants. This point requires to be deliberated on two angles:-

(i) At what stage of the occurrence she received the injuries;

(ii) When the deceased was murdered, was there light enough that this witness could have identified the assailants.

According to this witness she woke up on hearing alarm raised by her husband and sound coming from the outside. According to her, her husband along with her younger son was sleeping outside the front door of the courtyard. Door was closed and the witness was sleeping in the courtyard. In the examination-in-chief she has stated that when she came out of the main door Thenai and Iliyas shot her husband twice. Thenai had gun and Iliyas had country-made pistol. When she raised hue and cry, Atloo and Suleman had beaten her using kanta and beroo as lathi and sustaining injuries she fell down. At that time witnesses with lighted torches were present. In that light she had seen the occurrence. During cross-examination she has admitted that she had heard one fire and voice of Jeet Khan while she was still in the courtyard. Saleek Khan P.W. 1 in the FIR claimed that all the three shots were fired on his father in his presence and his mother came out of the house at the hue and cry. In the statement before the court he claimed that when he reached the spot and turned on his torch immediately Thenai fired first shot from his gun on his father. Thereafter his mother tried to save his father, then Suleman and Atloo had beaten her. Thereafter Iliyas fired from his countrymade pistol on his father followed by a shot from Thenai.

According to Mohsin Khan P.W. 2 when he reached the spot he saw Iliyas shot his country-made pistol on Jeet Khan, Thenai also fired by his gun on Jeet Khan. Jeet Khan was struck by both shots. From the house of Jeet Khan, Magreeba and her daughter Rahmatul came out and Suleman and Atloo had beaten Magreeba. Thus according to Magreeba P.W. 5 and Mohsin Khan P.W. 2 and Smt. Magreeba was beaten after all the three shots were fired on her husband. Whereas according to Saleek Khan specially in his statement on oath after first shot Magreeba came out of the house tried to save her husband, she was beaten thereafter Iliyas and Thenai had fired on Jeet Khan.

Question arises which version is correct. Whether Magreeba P.W. 5 and Mohsin P.W. 2 should be believed or Saleek Khan P.W. 1 should be believed. Prima facie on this point statements of Magreeba P.W. 5 and Mohsin Khan P.W. 2 appear to be nearer the truth but when we examine these two different versions on the touch stone of probability and also believe the motive assigned to the appellants for murdering Jeet Khan, we find that after murdering Jeet Khan it appears improbable that in the presence of witnesses with lighted torches the appellants with their four unknown fellow miscreants, anxious to conceal their identities, would have chosen to stayed any further on the scene of occurrence only to strike blows to a helpless woman. On this yardstick injuries to Magreeba P.W. 5 were purposeless and caused and against mental state of miscreants. Even the prosecution version suggests that when Magreeba P.W. 5 tried to save her husband she was beaten to prevent her in her efforts. This makes the version of Saleek Khan P.W. 1 about the stage of occurrence when Smt. Magreeba P.W. 5 was beaten, more probable and logical. Be it as may, we conclude that it was the duty of the prosecution to clearly establish at what stage Magreeba P.W. 5 was beaten, the statement of Smt. Magreeba P.W. 5 on this point appears to be improbable. The averments of the prosecution on this point goes against it and we hold that prosecution has failed to establish at what stage of the occurrence Smt. Magreeba P.W. 5 received the injuries.

Now the second point when the occurrence took place was there sufficient light for Magreeba P.W. 5 to identify the assailants. According to her version when last two shots were fired on her husband witnesses with lighted torches were present and she was beaten in the presence of witnesses. Out of those, two witnesses were examined; Saleek Khan P.W. 1 and Mohd. Mohsin P.W. 2. If her version regarding presence of witnesses is truthful, there is no doubt that there was sufficient light for her to see the occurrence.

On behalf of the appellants specific challenge, to the presence of these witnesses, has been made before this Court. At this juncture, we find it expedient to refer the topography of the place of occurrence so that statements of witnesses and ground of challenge may be considered conveniently. According to the site plan deceased along with his younger son was sleeping in front of main door of his house which provides egress and ingress to the house through court-yard. This door lies on the northern side. On the west-southern side of the courtyard there is a tarbaha. The courtyard appears to be a biggish one. On the eastern side of the courtyard in the site plan two rooms have been shown. One room on the northern side is a smaller one belonging to Sabir Ali. Room lying on the southern side is bigger having an opening providing egress and ingress to the courtyard on western side. On the eastern side of these two rooms there is an ahata which according to Saleek Khan P.W. 1 is in a shape of Khandahar. Though neither the investigating officer has given measurements of these nor he deposed the distances between place of occurrence and where first informant and his brother-in-law were sleeping. However, in the site plan distance between the two has been shown to be eight steps. Where witnesses were present and seen the occurrence has been shown to be eight steps. This place lies to the north western side to the place of occurrence.

According to Saleek Khan, P.W. 1 he woke up from the sleep after hearing alarm raised by his father while alighting torch and raising hue and cry he ran towards the cot of his father Daljeet Khan, Muneejar Khan and Mohammad Mohsin Khan also reached there. His brother-in-law Baddu also accompanied him. His mother and sister also came out of the main door. All the male persons had lighted torches in their hands. Now according to this witness, after the torches were turned on, Thenai fired his gun on his father. When his mother tried to save him she was beaten by Suleman and Atloo, who used Beroo and kanta as lathi for the purpose. Thereafter Aliyas and Thenai fired one shot each on his father. Thus, according to this witness, all the three fires were shot in the presence of all the witnesses including Smt. Magreeba. In the cross examination this witness says when he reached near the cot of his father (8-10 steps less) he lighted the torch then Thenai fired his first shot. He claims that at that point he was in the direction of south west from the cot whereas in the site plan his presence has been shown by the investigating officer on the western side leaning towards north. A person who woke up from the sleep at 2 A.M. on the alarm raised by his father would he go near his father by taking a circuitous route he was on the eastern side of his father when he was sleeping. He could have directly run to the western side and reached his father earlier. It is surprising how he crossed the place where the cot of his father was and reached where other witnesses were standing. It is also surprising that he had covered distance of atleast 16 steps to reach there when his father was lying in mortal danger in between these two places, that too surrounded by eight armed persons. We do not think that after raising alarm by the deceased and before this witness could have reached the place from where he saw the occurrence all the eight assailants would have remained standing and waiting. Either they would have run away or murdered Jeet Khan and disappeared in the darkness of the night. We do not think either this witness was present on the spot at the relevant time or he was nearby. His unnatural account impels us to disbelieve the version given by him.

Mohsin Khan, P.W. 2 is resident of another village, though distance from the scene of occurrence from his house is only one furlong. Neighbors could have reached earlier and this witness might have reached later but we cannot believe that real brother of the deceased living at the distances of 50 steps and this witness reached the scene of occurrence simultaneously and that too before Jeet Khan could have been murdered and Smt. Magreeba could have been beaten. Though this witness admits that on the way he heard one shot but we (if Saleek Khan P.W. 1 is to be believed) do not think two assailants armed with fire arms would have waited while Iliyas and Suleman dissuaded Smt. Magreeba from interfering with the killing of her husband. They could have easily finished their task and left the scene of occurrence promptly. We do not think this witness was in a position to see the occurrence as claimed by him. It is the case of the defence that Saleek Khan P.W. 1 was not sleeping in the house. He was suggested that neither he nor his brother was present in the house. Of course this witness denied the suggestion but he admitted night was dark but asserted there was light from the torches. Correctness of his statement can be judged from this fact that during cross examination he says that after assailants made good their escape, he lighted a chirag (a very small lamp) and saw the dead body of his father.

Testimonies of both these witnesses do not inspire our confidence and we find these two witnesses were not present on the spot. They had not seen the occurrence. Though according to the prosecution version Maqbool Khan, Daljeet Khan and Muneejar Khan with other persons were also present with their lighted torches at the time of occurrence. However, none of them has been examined by the prosecution. Testimonies of these two witnesses do not establish that at the time of occurrence torches were on and in their light occurrence could be seen by Smt. Magreeba. Burden of proving that at the time of occurrence there was light sufficient for Smt. Magreeba to identify the assailants was on the prosecution, which it could not discharge. Therefore, we have no option but to hold that Smt. Magreeba had no opportunity to see the occurrence due to darkness of the night and absence of light. Therefore, she could not have identified the assailants. For this reason we do not think that it would be prudent for us to treat the testimony of Smt. Magreeba as trustworthy.

The case of State of Madhya Pradesh vs. Dharkole alias Govind Singh and others (supra) has been referred by learned AGA to strengthen his argument that non examination of other witnesses is not fatal for the prosecution, though there is no dispute on the legal position as explained by the Hon''ble Apex Court, however, the Hon''ble Apex Court has indicated a rider that it is so only where the witnesses successfully faced the test of cross examination. In this case testimonies of all the witnesses were demolished in material particulars, therefore, the case referred by the learned AGA is of no help to the State respondent.

It is our duty to individually reexamine the testimonies of Saleek Khan P.W. 1 and Mohd. Mohsin P.W. 2. Though we have found that they were not present on the spot and they are planted witnesses. However, we have minutely examined their testimonies and we find that in the statement of Saleek Khan P.W. 1 in addition to the infirmities noticed above, there are material contradictions. To wit, he had told the investigating officer that when his father raised alarm and Thenai fired from his gun on his father, he raised hue and cry while running. In the court his version had changed and he claims that all the shots were fired in his presence. According to this witness the named accused did not hide their faces but unknown accused were concealing their faces with the help of clothes for that reason he could not identify them. Earlier his stand was that all were barefaced and he had seen the faces of unnamed accused and could identify them. These two are material contradictions touching the occurrence. These contradictions also fortify our conclusion that this witness had not seen the occurrence. His eye witness account is not trustworthy.

Mohsin Khan P.W. 2 says that he had identified four named accused as also four unknown accused. They were bare faced. They had not concealed their faces with clothes. He could not tell the sequence in which the assailants were standing as described by Saleek Khan P.W. 1. Being resident of another village this witness could not have reached the place of occurrence in time. We don''t think his testimony can be relied upon.

Thus, ocular evidence adduced by the prosecution is not reliable and trustworthy. The reasons assigned by the learned trial Judge for placing reliance on them are not substantiated from the record. The learned trial Judge relied upon the testimony of Smt. Magreeba on account of her being injured witness. He did not take into account absence of light and darkness of night. He also placed reliance on the testimony of Saleek Khan P.W. 1 and Mohsin Khan, P.W. 2. According to him presence of Saleek Khan is natural and probable. He also believed Mohsin Khan P.W. 2 for the reason he lived at the distance of 800 paces and he could have reached the spot in time. We don''t think these reasons are sound enough to uphold the findings recorded by the learned trial Judge. We are constrained to differ from his findings and hold that eye witness account is not trustworthy and his findings are erroneous in this regard.

Intrinsically examined the eye witnesses have been found by us to be unreliable, more so evidence of Dr. N.N. Agarwal, P.W. 3 and postmortem report Ext Ka-2 are also at the variance with the ocular version of the occurrence. According to all the three witnesses deceased was shot three times. The manner in which he was shot there remains no doubt that according to prosecution witnesses all the three shots hit the deceased but there are only two entry wounds. The witnesses are emphatic in their assertion and medical evidence is clear enough to contradict that. Though it is true that when there is contradiction between ocular version and medical evidence, if the ocular version is trustworthy and contradiction admits possibility of it being compatible, with little flexibility, ocular version should be relied upon vide Khambam Raja Reddy Vs. Public Prosecutor, High Court of A.P. , (2007) 1 SCC (CRI) 431 and State of Punjab Vs. Rajendra Singh (2010) 2 SCC (CRI) 704.

However, if the findings emerging from medical evidence are incompatible with the ocular version, the contradiction assumes importance even to make the Court to discard the ocular version of the occurrence. In this case even a flexible view is not adequate enough to resolve this contradiction as compatible with ocular version, therefore, ocular version has to be discarded by us.

Anti timing of FIR

The next ground of attack is anti timing of FIR and unfair investigation. This plea was rejected by the learned trial Judge and FIR was held to be promptly lodged. In the light of observations made by the Hon''ble Supreme Court in the case of Meharaj Singh Vs. State of U.P. , 1995 Crl.L.J. 457 (SC) we find the argument advanced by the learned counsel for the appellants well substantiated. The relevant observation of the Hon''ble Supreme Court in Meharaj Singh''s case (supra) is quoted below:-

"(12) FIR in criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eye witnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an after though. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR, was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in dispatching or receipt of the copy of the FIR by the local Magistrate. Prosecution has led no evidence at all in this behalf. The second eternal check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174 Cr.P.C. Is aimed at serving a statutory function to lend credence to the statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in embryo and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante timed to gave it the colour of a promptly lodged FIR. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value and authenticity and it appears to us that the same has been ante timed and had not been recorded till the inquest proceedings were over at the spot by PW 8"

We have tested the plea on the above yardstick and perused the documents i.e. police papers, we find that of course the dispatch of the special report in the present matter is prompt. But the learned trial Judge has incorrectly discarded interpolations and insertions finding place in the inquest report Ext. Ka-8, letter to RI (Form No. 13) Ext Ka-9, diagram of dead body Ext Ka-10. In the last paper between words ''Dhara'' and ''IPC'' five sections 147, 148, 149, 302, 323 have been inserted by a different ball pen, paucity of space for that was met by making last two sections as denominators. In Ext Ka-9 we find in column No. 2 overwriting on the figure ''23.30''. On the front side under the column dispatch of dead body to the mortuary at head quarter, time ''10.30'' and in the second column time ''7.15'' are subsequent insertions as gathered from use of different ball pen by the writer. Inquest report Ext. Ka-8 is more revealing. In the first column time of occurrence and time of lodging of FIR have been inserted by a different ball pen as also the time of dispatch of dead body. On the second page even case crime number and sections have been written by different ball pen and clearly subsequently inserted. There remains no doubt that when the inquest was held the first information report was not lodged.

This is not our conjuncture, the statement of first investigating officer, Kailash Nath Pandey, P.W. 6 leads us to the same conclusion. He says in cross-examination he reached at the spot at 9 A.M. and stayed there 16-20 minutes. Is it possible to hold inquest proceedings in such a short time? We don''t think so. During cross-examination regarding subsequent insertion noticed above he was thoroughly cross-examined and we find that his replies are incorrect. Thus there remains no doubt that till the inquest proceedings or rather till 10-30 no first information report was lodged. Therefore, it has to be ante timed. Unfortunately, in this case scribe of the chick FIR has not been examined by the prosecution, therefore, we have to observe the facts and draw the inferences ourselves in this regard. We are in no doubt that on our inferences are well substantiated and could not be explained by the first investigating officer during cross-examination. We don''t agree with the reasons given by the learned trial Judge to ignore these interpolations and insertions on the ground of receiving of the special report.

Prima facie ante-timing of FIR, not mentioning the measurements in the site plan are indication of this fact that the investigation was not fair. Non-sending of samples of blood stained and simple earth, blood stained for chemical examination are also indicative of the unfairness of the investigation. Therefore, we conclude investigation was not fairly conducted.

Absence of link evidence

The last argument advanced on behalf of the appellants is the absence of link evidence in the form of non production of case property i.e. samples of blood stained earth, cloths of the deceased before the trial court. On behalf of the prosecution explanation for that has been given in the form of statements of Raksh Ram Tiwari PW 8 and Lalla Singh PW 9 to the effect that the case property was inadvertently destroyed on the belief that the case was disposed of. According to Lalla Singh PW 9 Thenai was accused in two cases. One case was case crime No. 185/79 under section 302 IPC of P.S. Kaisarganj decided on 22nd February, 1981. The other case was 112/80 wherein the case property was deposited at P.S. Kaisarganj. According to this witness order for destruction of property was received on 22nd March, 1981 after the Station Officer got the order corrected and directed him to destroy the property, the case property was destroyed. According to him in the register at page 54 case crime No. 185/79 under section 302 State Vs. Thenai and others was entered, in reference to deposit of other case property, which was transmitted to Sadar Mal Khana on 29th August, 1979. When he received the order dated 21.2.1981 he did not see this entry and thought case property of case crime No. 112/80 was to be destroyed. He obtained correction of the crime number and got the case property destroyed. We do not think the explanation offered by this witness can be accepted at its face value. There are two Malkhanas; one at police station and other is at sadar where the court is situated. After the case property has been exhibited, the case property produced before the Court does not go back to malkahan of police station. It become the case property in the custody of the Court and resultantly deposited in the Sadar Malkhana. A case which has been disposed of inheres that the trial has concluded, therefore, there was no occasion for this witness to presume that he was required to destroy the case property of a decided case. That task would be performed by the Sadar Malkhana. He was entrusted with the case property of a case pending trial which could not be destroyed by him. The excuse advanced on behalf of the prosecution appears to be a lame excuse and further it appears that there were other reasons for destruction.

What ever may be the reasons the hard fact is that plea of the defence was that place of occurrence had been changed, only sample of blood stained earth when compared with sample of simple earth could have established the place of occurrence. In its absence there remains no physical evidence to establish or negate this plea. The learned trial Judge could not comprehend the significance of this comparison. He merely ignored non production of the case property on the ground that occurrence is admitted. It is immaterial whether it took place inside the house or outside the house. He did not take into consideration the fact that change of place of occurrence was an evidence to fortify the plea of defence that Jeet Khan was murdered inside the house when dacoity was being committed. The lapse of the prosecution agency resulted in prejudice to the appellants because they were left with no physical evidence to prove their version. On this count we think that appellants are entitled to be acquitted after extending them benefit of doubt.

In the last we conclude that the learned trial Judge has committed errors in fact and in law. His findings are based on non reading of relevant evidence and misreading of the admissible evidence. His findings for these reasons deserve to set aside. The prosecution has failed to prove its case beyond reasonable doubt. Since ocular version has been disbelieved, case law cited by the learned AGA is of no help to the state-respondent because the principles laid down in these cases do not remain applicable in the present case.

Therefore, arguments of the learned counsel for the appellants are sustained. Criminal Appeal No. 945 of 1982 is allowed. Impugned judgment and order dated 29.11.1982 are set aside. Appellants Thenai, Atloo and Iliyas are acquitted from the charges framed against them. Appellants are on bail, they need not surrender. Their personal bonds and surety bonds are cancelled. Sureties are discharged provided within 30 days from the date of the judgment and order the appellants file their personal bonds and two surety bonds in the like amount before the Sessions Judge, Bahraich in pursuance of provisions contained under Section 437A Cr.P.C.

Office is directed to certify this order to the court concerned forthwith and send back the lower court record.