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PETITIONER: AWADHESH & ANR.

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT12/04/1988

BENCH: SINGH, K.N. (J) BENCH: SINGH, K.N. (J) KANIA, M.H.

CITATION:  1988 AIR 1158            1988 SCR  (3) 513  1988 SCC  (2) 557        JT 1988 (2)    72  1988 SCALE  (1)698  CITATOR INFO :  R          1989 SC2004  (30)

ACT:      Indian Penal  Code-Challenging conviction  by the  High Court under  section 302  read with section 34, Indian Penal Code, after acquittal by trial court.

HEADNOTE:      This appeal  was directed  against the  judgment of the Madhya Pradesh  High Court,  setting aside  the order of the trial court  acquitting the  appellants, and convicting them under section  302 read  with section 34 of the Indian Penal Code and sentencing each of them to undergo imprisonment for life.      The prosecution  case was  that on  4.1.1982 Ram Pratap Singh deceased  had gone  to Collectorate,  Panna  where  he noticed that Om Prakash and Raghvendra, who were inimical to him, were  shadowing him  in the  Collectorate. He requested Rajendra Singh PW 14, Chhotey Bhaiya. PW 5, and Mohd. Tohid, PW 16,  to accompany  him on his return journey as he sensed danger to  his life,  and sent Tohid to purchase bus tickets with a  direction that he should meet him at the octroi toll barrier on  the Ajaigarh Road from where he proposed to take the bus.  Thereafter, he alongwith Rajendra Singh, PW 14 and Chhotey Bhaiya.  PW 15,  proceeded to  Chungi Chowki (octroi Post) on  the Ajaigarh  Road. While  they were  waiting  for Tohid, Ram  Pratap Singh went for drinking water from a well nearby. When  he was  just in the process of drinking water, gun shots  were fired  towards him, causing injuries to him. Upon this,  he ran towards his associates and fell down near Rajendra Singh  and Chhotey  Bhaiya. The prosecution further alleged that  on hearing  the gun  shots, Rajendra Singh and Chhotey Bhaiya  saw the appellant Brajendra armed with a.315 rifle and  Awadesh armed  with a  12 bore  gun running away. Rajendra Singh  and Chhotey Bhaiya, armed with a rifle and a gun respectively, fired shots towards the assailants and the assailants also fired towards them.      On hearing  gun fire,  V.P.  Pathak,  Sub-lnspector  of Police, PW  20, rushed  to the  spot with  Constable  Lakhan Singh, PW  12. Rajendra  Singh, PW  14 gave  him information about the  incident,  which  was  recorded  by  him  (Dehati

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Nalishi Ex. P. 12 at 3.10 P.M.) V.P. Pathak, 514 sent the  Dehati Nalishi  to Kotwali  Panna  through  Lakhan Singh,  Constable,   for  recording  the  first  information report. Pathak,  sub-inspector then  prepared the  panchnama and spot map Ex P. 17 on the same day.      A  charge-sheet  was  submitted  against  five  accused persons, including  the two appellants Brajendra and Awadesh for trial  for offences  under section 312 read with section 34 and  section 307 read with section 34 of the Indian Penal Code. The  Trial Court  disbelieved the testimony of the two eye-witnesses, Rajendra  Singh, PW 14 and Chhotey Bhaiya, PW IS, and  referring to  a number  of circumstances which made the prosecution  story doubtful,  acquitted the  accused. On appeal by  the State  Government, the  High Court  disagreed with the  reasons recorded  by the  Trial Court, and placing reliance  on  the  testimony  of  the  eye-witnesses,  i.e.. Rajendra Singh and Chhotey Bhaiya, allowed the State appeal, set aside the acquittal of the appellants and convicted them under section  302 read  with section 34 of the Indian Penal Code and  awarded a sentence of life imprisonment to each of them. The  appellants appealed  to this  court  against  the decision of the High Court.      Allowing the appeal, the Court, ^      HELD: The  High Court  on an  appraisal of the evidence came to  the conclusion  that the prosecution had proved its case beyond all reasonable doubt. It referred to a number of decisions of  this Court  in considering  the scope  of  its jurisdiction in  interfering  with  an  order  of  acquittal passed  by   the  trial   court,  but   while  applying  the principles, it  failed to  appreciate that the view taken by the  trial   court  was   reasonable  and  plausible.  While considering an  appeal against  acquittal,  the  High  Court must, in  appreciating the evidence, keep in mind that if on appraisal of  evidence and  considering  relevant  attending circumstances it  is found  that two views are possible, one held by  the trial court for acquitting the accused, and the other, for  convicting the accused, in such a situation, the rule of  prudence should guide the High Court not to disturb the order  of acquittal  made by the trial court. Unless the conclusions of  the trial  court drawn  on the  evidence  on record  are   found  to   be   unreasonable,   perverse   of unsustainable, the  High Court should not interfere with the order of  acquittal. The  High Court  in this  case made  an attempt to  explain away the infirmities in the testimony of the eye-witnesses  in setting  aside the order of acquittal. The High  Court disregarded the rule of judicial prudence in converting  the   order  of  acquittal  to  conviction,  and committed error  in interfering with the order of acquittal. [519G-H; 520A-B] 515      The first  information report,  Ex. P.  12, showed that the occurrence  took place  at 14.15  hours while the report was lodged  at 15.10  hours. The  evidence on record and the attending circumstances indicated that the first information report was  not lodged at 15.10 hours; instead it was lodged at about  17.00 hours.  The testimony  of Rajendra Singh, PW 14, regarding  the lodging  of the  first information report was contradictory.  The statement of V.P. Pathak, PW 20, the investigating officer,  clearly  indicated  that  the  first information report  was written after 17.00 hours and it was not recorded  at the  time it purported to have been lodged. There were  material  contradictions  in  the  testimony  of Rajendra Singh  PW 14  and the  investigating officer. Since

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the  Sub-Inspector,   the  District   Magistrate   and   the Superintendent of Police had reached the place of occurrence within a  few minutes  of the incident, the delay in lodging the first information report was highly suspicious. Why this delay when  all officers  and the eye-witnesses were present at the spot, and the police station was at a distance of two furlongs? The  obvious reason  appeared to be that the names of the  assailants were  not known, as most likely, the eye- witnesses had  not seen  the assailants  and they  were  not present at  the scene  of the occurrence. In all likelihood, they arrived  at the scene after the incident, and since the names of  the assailants  were not  known,  the  F.l.R.  was lodged  with  delay  after  deliberation.  This  view  finds support  from  the  testimony  of  Tohid  PW  16  and  other circumstances. There  were material  contradictions  in  the statements of  the three  witnesses Rajendra  Singh  PW  14, Chhotey Bhaiya,  PW 15  and Tohid, PW 16, and in view of the same and,  further in  view of the discrepancy regarding the delay in the lodging of the first information report, it was apparent that  till the first information report was lodged, nobody knew  who  the  assailants  were  and  that  was  why Rajendra  Singh   could  not   disclose  the  names  of  the assailants  to   Tohid  on  his  arrival  at  the  scene  of occurrence after he had been sent to bring the- bus tickets. [520H; 521A-C. E; 522H; 523A]      The prosecution  relied upon  the recovery  of the  two empty  cartridges   to  connect   the  appellants  with  the commission  of  the  crime.  The  recovery  of  these  empty cartridges  was   not  made   on  4.1.1982;  instead,  these cartridges were  recovered on  5.1.82, although the spot map of the scene of occurrence was prepared on 4.1.82 itself. It was interesting to note that the spot where these cartridges were recovered  was shown in the spot map prepared on 4.1.82 although the  recovery was  made on S.1.82. The witnesses in whose presence  the recovery  of the cartridges was made had not supported the prosecution. Moreover, it was the admitted case of  the prosecution  that there was an exchange of fire from both sides-by the assailants and by Rajendra Singh and 516 Chhotey Bhaiya-but no other cartridges were recovered by the Investigating officer.  The investigating  officer  did  not take  into   possession  the   licensed  rifle  and  gun  of Raghavendra Singh  and Awadesh,  nor was  any effort made to secure the  evidence of  the ballistic  expert to prove that the empty  cartridges had  been fired  from  the  respective weapons.  These   circumstances  indicated  that  the  empty cartridges were  not recovered;  instead, the  investigating officer  had   planted  those   cartridges  to  support  the prosecution case. [523B-E]      On the  evidence on  record, it  was apparent  that the Chungi Chowki  (octroi  toll  barrier)  was  manned  by  the employees of  the Municipal  Board, who  were present at the spot, and  in addition  to them, there was Home Guard office adjacent to  the toll  barrier and  there  were  residential houses near  the barrier  and the  place of occurrence was a busy public  place. It  came into evidence that large number of persons  had gathered  at the scene of occurrence, but no employee of  the toll  barrier or  Home Guard  once or local resident came  forward to  support the prosecution case. The District Magistrate,  the superintendent of Police and other officers had  also reached  the spot  within minutes  of the incident, but  none of  them  entered  the  witness  box  to support the  prosecution case. The prosecution produced Udai Singh PW  17 and  Kali Charan  PW 19,  who were residents of Uttar Pradesh  and close  relatives of  the deceased.  Their

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presence at  the scene  of occurrence as highly doubtful and their testimony  was not free from doubt as they were highly interested persons.  The trial court rightly discarded their testimony as  their statements  had  been  recorded  by  the police after  two months  of the  occurrence. without  there being an explanation for the delay. [523F-H; 524A-B]      The injuries mentioned in the testimony of Dr. Jain who had carried out the post mortem examination of the dead body of Ram  Pratap Singh,  could not be caused in the manner and from the  place where  the assailants  were  alleged  to  be present  at   the  time   of  firing,   and  the  same  were inconsistent with the testimony of the eye-witnesses and the site plan.  The trial  court had  discussed this question at length and  the Court  agreed with the findings of the trial Court. In  the opinion  of the doctor, the person who caused injuries to  the deceased  was at  a higher  level than  the deceased; this was wholly inconsistent with the testimony of the eye-witnesses.  Though medical  expert’s opinion  is not always final  and binding, in this case, it corroborated the other circumstances  which indicated  that the eye-witnesses had not seen the actual occurrence. [524B; 525E-H] 517      The prosecution had failed to prove its case beyond all reasonable doubt  and the  High  Court  committed  error  in interfering with the trial court’s order of acquittal. Order of the  High Court  and the  appellant’s conviction were set aside and  order of  the trial  court was  restored and  the appellants were acquitted. [526A-B]      G.B. Patel & Anr. v. State of Maharashtra, [1979] 2 SCR 94 and Sheo Swarup v. King.Emperor, A.l.R. 1934 PC 227.

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 537 of 1986.      From the  Judgment and  order  dated  3.9.1986  of  the Madhya Pradesh  High Court  in Criminal  Appeal No.  936  of 1983.      Rajinder Singh,  Ranjit Kumar,  N. Jain,  and Wasim  A. Qadri for the Appellants.      Uma Datta and T.C. Sharma for the Respondents.      The Judgment of the Court was delivered by      SINGH, J.  This appeal is directed against the judgment of the  Madhya Pradesh  High Court  dated  3.9.1986  setting aside the  trial court’s  order  acquitting  the  appellants herein and  convicting them  for offence  under Section  302 read with Section 34 of the Indian Panel Code and sentencing each of them to undergo imprisonment for life.      The prosecution  case in  brief is that on 4.1.1982 Ram Pratap Singh  deceased  resident  of  village  Kharoni  P.S. Ajaigarh, District  Panna had  gone to Collectorate Panna to file reply  to a  show-cause notice  issued to  him for  the cancellation of  his  gun  licence.  While  he  was  at  the Collectorate he  noticed Om  Prakash and Raghvendra who were inimical to  him, were shadowing him in the Collectorate. He requested Rajendra  Singh PW  14, Chottey  Bhaiya PW 15, and Mohd. Tohid  PW 16 to accompany him on his return journey as he sensed  danger to his life. Ram Pratap Singh the deceased sent Tohid to purchase tickets for Bus with a direction that he should  meet him  at  the  octroi  Toll  barrier  on  the Ajaigarh Road  from where  he  proposed  to  take  the  Bus, thereafter the  deceased along  with Rajendra  Singh, PW 14, and Chhotey Bhaiya PW 15 proceeded on foot to Chungi Chowki, (octroi Post)  situate at  about two  furlongs away from the

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Collectorate on  the  Ajaigarh  Road.  While  the  deceased, Rajendra Singh and 518 Chhotey Bhaiya  were waiting  for Tohid near the octroi Post one bus  arrived, but  the deceased  told Rajendra Singh and Chhotey  Bhaiya  not  to  travel  by  that  bus  as  he  had apprehension that  Raghvendra  and  his  associates  may  be inside the  bus. While  they were  waiting  for  Tohid,  the deceased went  for drinking water from a well which was near the road  at the  octroi Post.  After drawing the water from the well  while the  deceased was in the process of drinking water at  that precise  moment gun  shots were fired towards him from  the Northern  side from the Bari boundary, causing injuries to  him in  his  chest  and  hand.  On  receipt  of injuries the deceased ran towards his associates and fell on a  takhat  near  Rajendra  Singh  and  Chhotey  Bhaiya.  The prosecution further  alleged that Rajendra Singh and Chhotey Bhaiya on  hearing the  gun shot saw the appellant Brajendra armed with  a .315  rifle and  Awadhesh armed with a 12 bore gun running  away along  with an  other person named Kailash who was  also armed with a gun. Rajendra Singh PW 14 who was armed with  a. 275 rifle and Chhotey Bhaiya was armed with a 12  bore   gun  fired  shots  towards  the  assailants.  The assailants also  fired towards  them, but  they escaped.  On hearing the  gun shot  fire V.P.  Pathak,  Sub-Inspector  of Police PW  20 accompanied  by Constable  Lakhan Singh  PW 12 rushed  to   the  spot.   Rajendra  Singh  PW  14  gave  him information about the incident which was recorded by Pathak, (Dehati Nalishi  Ex. P.  12 at  3.10 p.m.). V.P. Pathak, the Sub-Inspector sent  the Dehati  Nalishi to  Kot  vali  Panna through Lakhan  Singh, Constable,  for recording  the  first information report.  After holding inquest, Pathak, the Sub- Inspector prepared  Panchnama and sent requisition for post- mortem examination of the dead body and he also prepared the spot map  Ex. P.  17 on  the same  day. After  completion of investigation a  charge sheet  was  submitted  against  five accused persons  including the  two appellants Brajendra and Awadhesh for  trial for offences under Section 302 read with Section 34 IPC and under Section 307 read with Section 34 of the Indian  Panel Code. Kailash one of the accused was shown absconding. Before  the trial court Rajendra Singh PW 14 and Chhotey Bhaiya  PW 15 supported the prosecution case as eye- witnesses, they  claimed to have witnessed the assault, they further  claimed   that  they  had  recognised  the  accused persons.  The   learned  Sessions   Judge  disbelieved   the testimony of  these two  eye-witnesses,  be  referred  to  a number of  circumstances which  made the  prosecution  story doubtful, therefore,  he acquitted the accused. On appeal by the State  Government the  High  Court  disagreed  with  the reasons recorded  by the trial court and placing reliance on the testimony of the eye-witnesses, i.e., Rajendra Singh and Chhotey Bhaiya,  it allowed the State’s appeal and set aside the acquittal  of the  appellants and  convicted them  under Section 302 519 read with  Section 34  of the  Indian Penal Code and awarded sentence of imprisonment for life to each of them.      The trial court held that the prosecution had failed to prove its  case beyond  all reasonable doubt and no reliance could be placed on the testimony of the Rajender Singh PW 14 and Chhotey  Bhaiya PW  15. The  trial court  referred to  a number of circumstances creating doubt on the credibility of the prosecution story but the High Court differed from those findings and  on  appraisal  of  evidence  it  came  to  the conclusion that  the prosecution  had proved its case beyond

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all reasonable doubt. The High Court referred to a number of decisions of  this court  in considering  the scope  of  its jurisdiction in  interfering  with  an  order  of  acquittal passed by  the trial court but while applying the principles it failed  to appreciate  that the  view taken  by the trial court was  reasonable and plausible. Even the High Court has not held  that the  view taken  by the trial court was not a possible view.  The High  Court reappraised the evidence and took a  different view  and it  explained the infirmities of the prosecution  pointed out by the Sessions Judge. In G. B. Patel &  Anr. v.  State of Maharashtra, [1979] 2 SCR 94 this Court quoted with approval the principles laid down by Privy Council in  Sheo Swarup  v. King  Emperor, AIR  1934 PC  227 wherein it  was held  that although  the power  of the  High Court to reassess the evidence and reach its own conclusion, are as  extensive as  in an  appeal  against  the  order  of conviction, yet,  as a  rule of  prudence,  the  High  Court should  always  give  proper  weight  and  consideration  to matters e.g.  (i) the  views of  the trial  judge as  to the credibility  of  the  witnesses;  (ii)  the  presumption  of innocence in  favour of the accused, a presumption certainly not weakened  by the  fact that he has been acquitted at the trial; (iii)  the right of the accused to the benefit of any doubt, and  (iv) the  slowness  of  an  appellate  court  in disturbing a  finding of  fact arrived at by a Judge who had the advantage of seeing the witnesses. Sarkaria, J. speaking for the court observed "where two reasonable conclusions can be drawn  on the  evidence on record, the High Court should, as a  matter of  judicial caution,  refrain from interfering with the  order of acquittal recorded by the court below. In other words,  if the  main grounds  on which the court below based its  order acquitting  the accused, are reasonable and plausible, and  cannot be entirely and effectively dislodged or  demolished,  the  High  Court  should  not  disturb  the acquittal." While  considering an  appeal against  acquittal the High  Court  must  keep  in  mind  these  principles  in appreciating the  evidence of  witnesses. If on appraisal of the  evidence   and  on   considering   relevant   attending circumstances it  is found  that two views are possible, one as held  by the  trial court for acquitting the accused, and the other for 520 convicting the  accused in  such a  situation  the  rule  of prudence should  guide the  High Court  not to  disturb  the order of  acquittal made  by the  trial  court.  Unless  the conclusions of  the trial  court drawn  on the  evidence  on record  are   found  to   be   unreasonable,   perverse   or unsustainable, the  High Court should not interfere with the order of  acquittal. The  High Court has in the instant case made an  attempt to  explain away  the  infirmities  in  the testimony of  eye-witnesses in  setting aside  the order  of acquittal. The High Court has in our opinion disregarded the rule  of  judicial  prudence  in  converting  the  order  of acquittal to conviction .      The trial  court held that the cumulative effect of the following circumstances  made the prosecution case doubtful, these are;  (i) first information report was not recorded or lodged at  the time  it purports  to have  been lodged, (ii) Rajendra Singh  PW 14 and Chhotey Bhaiya PW 15, the two eye- witnesses did  not give  the names  of assailants  to Tohid, (iii) recovery  of two  cartridges on  5th January. 1982 one day after  the  occurrence,  (iv)  nature  and  position  of injuries on  the body  of the  deceased were  not consistent with the  testimony of  eye-witnesses having  regard to  the local site  (v) empty  cartridges of  .315 rifle  which were

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alleged to  have been fixed by Brijesh and 12 bore cartridge was alleged  to have  been fired  by Awadesh accused causing injuries to  the deceased,  but the  same were  not sent  to ballistic expert  for his  opinion nor  he was  examined  to support   the   prosecution   case,   (vi)   unnatural   and inconsistent testimony of eye-witnesses Rajendra Singh PW 14 and Chhotey  Bhaiya PW  15, (vii)  a large number of persons were available at the scene of occurrence at the octroi Toll barrier but  no independent  witness, either employee of the Toll barrier  or of  Home Guard  or  any  other  person  was examined to  support the prosecution. The High Court made an attempt to  explain the  circumstances in  holding that some times the  memory of  the witnesses fail and a broad view of the evidence  given by  the eye-witnesses  clearly indicated that the prosecution had proved its case. We have been taken through the  entire evidence  and we  have also  closely and carefully considered the judgment of the trial court and the High Court.  We are of opinion that the High Court committed error in interfering with the order of acquittal .      The first  information report  Ex. P. 12 shows that the occurrence took  place on  14.15 hours  while the report was lodged at  15.10 hours  that is  to say within 55 minutes of the occurrence.  The evidence  on record  and the  attending circumstances indicate that the first information report was not lodged at 15.10 hours instead it was lodged at about 521 17.00 hours.  Rajendra Singh,  PW 14 stated before the trial court that  from the  place of occurrence he had accompanied the police  to Panna  Kotwali where he lodged the report and signed the Ex. P. 12. In cross-examination he stated that he had gone  to the Kotwali for lodging report in a police van. He further  stated that  the report  had been written by the Police clerk  on his  dictation, and that the police arrived at the  scene of occurrence after an hour of his lodging the first information  report. At an earlier stage he had stated that the  police had  arrived at  the place of occurrence at about 3.30 p.m. and thereafter he had accompanied the police to Kotwali  for lodging  the report. His testimony regarding lodging of  the first  information report  is contradictory. V.P.  Pathak,   PW   20   Sub-Inspector   of   police,   the investigating officer,  stated that it was wrong to say that the first  information report Ex. P. 12 was made by Rajendra Singh at  Kotwali. According  to  him  he  was  on  duty  at Collectorate and there he got the news at about 2.30 or 3.00 p.m. that  gun shots  were fired  at  Toll  barrier  on  the Ajaigarh Road,  he reached there with few minutes along with Lakhan Singh,  Constable. On reaching the spot he wrote Marg intimation drew  up panchnama  of the dead body and sent the dead body  for post-mortem  examination  and  thereafter  he recorded Dehati  Nalishi Ex.  P. 12.  He asserted that first information  report  had  been  recorded  at  the  place  of occurrence.  He  further  stated  that  Dehati  Nalishi  was recorded by him after the dead body of the deceased had been sent by  him for  post-mortem examination which according to the document  (Ex. P. 8) was sent at 5.00 p.m. His statement clearly indicates  that the  first  information  report  was written after  17.00 hours  and it  was not  recorded at the time it  purports to  have been  lodged. There  are material contradictions in the testimony of Rajendra Singh PW. 14 and the investigating  officer.  Since  the  Sub-Inspector,  the District Magistrate  and the  Superintendent of  Police  had reached the  place of  occurrence within  few minutes of the incident, the  delay in lodging the first information report is highly  suspicious. Why this delay when all officers were present, and  eye-witnesses were present at the spot and the

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police station  was at  a  distance  of  two  furlongs.  The obvious  reason   appears  to  be  that  the  names  of  the assailants were  not known  as most  likely the  alleged two eye-witnesses had  not seen the assailants and they were not present at the scene of occurrence, at the time the shooting took place,  in all likelihood, they like, others arrived at the scene  after the incident. Since names of the assailants were not  known the  F.I.R.  was  lodged  with  delay  after deliberation.      This view  finds support  from testimony of Tohid PW 16 and other  circumstances. According  to the  prosecution the deceased Ram 522 Pratap Singh  had sent Tohid to purchase bus tickets and had directed him  to meet  him at  the Chungi  Naka on  Ajaigarh Road.  He   had  further  told  Tohid  PW  16  that  he  was apprehending danger from the accused persons so he would get into bus  at the  Toll barrier. After giving instructions to Tohid he proceeded to Chungi Chowki (Octroi Post) along with Rajendra Singh  and Chhotey  Bhaiya. The prosecution further alleged that  after the  occurrence took  place  Ram  Pratap Singh’s dead  body was  lying  near  Takhat  at  the  Octroi barrier when  Thiod arrived  at the  scene. He  met Rajendra Singh PW 14 and Chhotey Bhaiya PW 15 who were waiting. Tohid PW 16  testified that  when  he  reached  the  toll  barrier neither Rajendra  Singh nor  Chhotey  Bhaiya  disclosed  the names of  the  assailants.  Chhotey  Bhaiya  PW  15  in  his testimony stated  that when  Tohid arrived  at the  scene of occurrence he  did not  enquire from  him or  from  Rajendra Singh as  to who  had killed  Ram Pratap  Singh. At  a later stage in  cross examination  he said  that Tohid  had  asked Rajendra Singh  PW 14  who had  killed Ram  Pratap Singh but Rajendra Singh  told him  that he would tell him later while going  to   the  police   station  for   lodging  the  first information report.  According to  Rajendra Singh PW 14 when Tohid reached  the spot  he directed  him to  proceed to the Collectorate and  give information  to the  police about the murder  having   taken  place.   Tohid  proceeded   to   the Collectorate and  from there  he contacted  the  Kotwali  on telephone and gave information about the murder having taken place near the Toll barrier. Rajendra Singh PW 14 has stated that neither  Tohid asked  nor he  told him the names of the assailants. This conduct is highly improbable and unnatural. Admittedly Tohid,  Rajendra, Chhotey Bhaiya and the deceased were friends  of each  other and  Tohid had been sent by the deceased to bring bus tickets and he had also told him about apprehensions to  his life  and according  to  the  Rajendra Singh PW  14 and  Chhotey Bhaiya PW 15 when Tohid arrived at the scene  he  did  not  enquire  about  the  names  of  the assailants, although  dead body of the deceased was lying at the spot.  This is  highly unnatural.  When Tohid was cross- examined on  this question he tried to explain that while he was proceeding  to the  police station  along with  Rajendra Sing PW  14 to lodge the first information report the latter had told  him the  names of  the assailants. We have noticed earlier  that   according  to  investigating  officer  first information report  was recorded  at the scene of occurrence and not at the police station. This indicates that Tohid and Rajendra Singh’s  story regarding  their going  together  to Kotwali is  highly  suspicious.  In  view  of  the  material contradiction in  the statement  of three witnesses Rajendra Singh PW  14, Chhotey  Bhiaya PW  15 and  Tohid  PW  16  and further in  view of  the discrepancy  regarding the delay in lodging the first information report, 523

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it is  apparent that  till the  first information report was lodged nobody  knew who  the assailants were and that is why Rajendra  Singh   could  not   disclose  the  names  of  the assailants  to   Tohid  on  his  arrival  at  the  scene  of occurrence.      The prosecution  relied upon  the recovery  of the  two empty cartridges  one of them .315 rifle and the other of 12 bore gun.  By recovery  of these  cartridges the prosecution tried to  connect the  appellants with the commission of the crime as  Raghvendra Singh  was alleged  to have  fired from .315 rifle  and Awadhesh  with 12  bore gun. The recovery of these empty  cartridges were  not made  on 4.1.1982  instead these cartridges  were recovered  on 5.1.1982, although spot map of  the scene  of occurrence  was prepared  on  4.1.1982 itself. It  is interesting to note that the spot where these cartridges were recovered was shown in the spot map prepared on 4.1.1982  although recovery  was made  on  5.1.1982.  The witnesses in  whose presence recovery of the cartridges were made have not supported the prosecution. Moreover, it is the admitted case  of the prosecution that there was exchange of fire from  both sides,  by the  assailants  as  well  as  by Rajendra Singh  and Chhotey  Bhaiya, but no other cartridges were   recovered   by   the   investigating   officer.   The investigating officer  did  not  take  into  possession  the licenced rifle of Raghvendra Singh appellant and the 12 bore gun of  Awadhesh nor  any effort  was  made  to  secure  the evidence  of  ballistic  expert  to  prove  that  the  empty cartridges had been fired from the respective weapons. These circumstances  indicate   that  empty  cartridges  were  not recovered  instead   investigating  officer   planted  these cartridges to support the prosecution case.      On the  evidence on  record it  is  apparent  that  the Chungi Chowki  (Octroi  Toll  Barrier)  was  manned  by  the employees of  the Municipal  Board and  they were present at the spot and in addition to them there was Home Guard Office quite adjacent  to the  Toll Barrier  and there  were  other residential  houses  near  the  Barrier  and  the  place  of occurrence was a busy public place. It has further come into evidence that  large number  of persons  had gathered at the scene of  occurrence but  surprisingly enough no employee of Toll Barrier,  Home Guard  or local resident came forward to support  the  prosecution  case.  The  District  Magistrate, Superintendent of Police and other officers had also reached the spot within few minutes of the incident but none of them entered the witness box to support the prosecution case. The prosecution produced  Udai Singh PW 17 and Kali Charan PW 19 who deposed  that they  had seen the appellants running away with weapons  and that  they  had  recognised  them.  It  is interesting to note that Udai Singh and 524 Kali Charan  are residents  of Uttar  Pradesh and  they  are close relatives of the deceased, their presence at the scene of occurrence was highly doubtful and their testimony is not free from  doubt, as they are highly interested persons. The Trial Court  rightly  discarded  their  testimony  as  their statement had  been recorded  by the police after two months of the  occurrence without  there being  any explanation for the delay.      In his  testimony Dr.  Jain, who  carried out  the post mortem examination  of the  dead body of deceased Ram Pratap Singh, stated that he found following gun shot wounds:           "Gunshot wound No. 1:           (a) Wound of entrance: One circular wound 5 mm. in           diameter present  two and  a half  inch below  the           left  exilla  and  half  inch  posterior  to  left

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         exillary lime.                In the  way the  bullet  had  perforated  the           following organs of the body-The bullet had passed           through the  lateral side  of left 5th-ribe. There           was a  fracture of  lateral side of left 5th ribe.           After that  the bullet  passed through  the  lower           third of  left pleura and entered in the left lung           and perforated  through the lung parindiama. There           was through  and through (complete) perforation of           lower third  of left  pleura and  lung. After exit           from the lung, it crossed through the past side of           right ventricle  of heart. Posterior side of right           ventricle of heart was completely lacerated. After           exit from the posterior side of right ventricle of           heart the  bullet passed  through the upper border           of liver  and the  whole upper border of liver was           completely lacerated.           (b) Wound  of Exit: One circular wound in diameter           present over  posterior and right side of chest at           the level  of 7th  dorsel spine  three and  a half           inch right  lateral in  the vertibral  column. The           margins of  the  wound  were  slightly  lacerated.           There was  fracture of 9th and 10th. ribe of right           posterior side. The direction of passage of bullet           of gun shot in wound No. 1 was antere-posteriorly.           Gunshot wound No:2:           (a) Wound  of  entrance-4  mm.  diameter  circular           wound present  over left 6th. intercostal space 2"           lateral to left sterval 525           border.  After   passing   from   the   left   6th           intercostal space  the bullet perforated the upper           part of  stomach. After  escaping from medial side           of stomach  it came  out from side of chest at the           level of 7th dorsal spine from the 8th intercostal           space of right posterior side.           (b) Wound  of exit-one  circular wound  5  mm.  in           diameter present  at the level of 7th dorsal spine           2 and  half inch  right lateral  to spinal column.           The direction  of bullet of gunshot in wound No. 2           was entre  posteriorly. Thororic cavity was hugely           filled with dark coloured blood.           Gunshot Wound No. 3:           (a) Wound  of  entrance-3  mm.  diameter  circular           would present  1" above  postre-lateral aspect  of           right wrist.  The bullet  had passed  through  the           right radius  have and  the wound of exit was over           antro-lateral aspect  1"  above  the  right  wrist           joint.  Wound  of  exit  was  circular  5  mm.  in           diameter."      These injuries  could not  be caused  in the manner and from the  place where  assailants were alleged to be present at the  time of  firing the  gun shots,  and  the  same  are inconsistent with the testimony of the eye witnesses and the site plan.  We do  not think  it necessary  to discuss it in detail as  the trial  court has  discussed this  question at length and  we agree  with those  findings. According to the testimony of Rajendra Singh and Chhotey Bhaiya PWs, when the deceased got  gun shot injuries, he was at a higher level at the well  whereas the  assailants fired the shots from Bari, which was  at lower  level by one foot from the road and the well was higher than the road by two or two and a half foot. In this  view if shots were fired from Bari, at the deceased who was drinking water in a sitting posture, the injuries in all likelihood would have been from lower part to upper part

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but Dr.  Jain deposed  that direction of the injuries caused by bullet  was from  upper part to lower part and the bullet was ante-posteriorly.  In the  opinion of  the  doctor,  the person who  caused injuries  to the  deceased was  at higher level than  the deceased,  this is  wholly inconsistent with the  testimony  of  eyewitnesses.  Though  medical  expert’s opinion is  not always final and binding, but in the instant case it corroborates other circumstances which indicate that the eye-witnesses had not seen the actual occurrence. 526      In view of the aforesaid facts and circumstances we are satisfied that  the prosecution has failed to prove its case beyond all  reasonable doubt,  and the  High Court committed error  in  interfering  with  the  trial  court’s  order  of acquittal. We  accordingly allow  the appeal  set aside  the order of  the High  Court and the appellants’ conviction and restore  the  order  of  the  trial  court  and  acquit  the appellants. The  appellants are  in jail,  they shall be set forth to liberty forthwith. S.L.                                         Appeal allowed. 527