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PETITIONER: NAIN SINGH AND ANR.

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH

DATE OF JUDGMENT22/02/1991

BENCH: PANDIAN, S.R. (J) BENCH: PANDIAN, S.R. (J) FATHIMA BEEVI, M. (J)

CITATION:  1991 SCR  (1) 685        1991 SCC  (2) 432  JT 1991 (1)   596        1991 SCALE  (1)334

ACT:     Constitution  of India, 1950-Article  136-Special  Leave Petition -Criminal matters-Appeal arising from concurrent finding of fact-Scope of interference.

HEADNOTE:      On  23.12.1976  at about 1 p.m.  when  Bali  (deceased) along with PWs 1 and 5 was in his field, the four appellants each armed with a Lathi, along with Braham Singh armed  with a ’Ballam’, came there.  On the exhortation of Chandroo, all other  appellants and Braham Singh attacked Bali with  their respective  weapons and caused injuries to him.  While  PW-3 tried  to save her husband, she too was injured.  When  PW-1 along  with PWs 3 and 4 rushed to the scene  of  occurrence, the  assailants  took  to their  heels.   Injured  Bali  was removed  to the hospital.  He succumbed to his  injuries  on the same day at about 7.45 p.m.      It  seems that there was trained  relationship  between the appellants and the deceased for a considerable length of time  over  grazing of cattle, resulting in  damage  to  the standing  crops.   On account of this, there  was  simmering feeling  between  the parties.  Added to  that,  there  were certain  criminal prosecutions between the parties,  pending for over a  period of two years.      The  four  appellants along with  Braham  Singh  (since acquitted  by the Trial Court) took their trial.  The  Trial Court  found  the four appellants guilty of  offences  under section 302 read with section 34 and under section 323  read with   section  34  IPC  and  sentenced  them   to   undergo imprisonment   for   life  and  to  six   months’   rigorous imprisonment  respectively.  The 5th accused, Braham  Singh, was acquitted.      On appeal, the High Court held that the prosecution had not  made out a case punishable under section 302 read  with section 34 IPC but only under section 304, Part II, IPC read with  section 34 IPC.  The High Court sentenced each of them to undergo rigorous imprisonment for a period of five years. The conviction of all the appellants under section 323  read with  149  IPC was altered into one under section  323  read with  34  IPC  and  the sentence  of  six  months’  rigorous imprisonment was retained.                                                        686

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    Before  this  Court it was contended on behalf  of  the appellants  that since both the courts below had  overlooked the  glaring infirmities and ignored the  material  evidence supporting the defence theory as well as the manifest errors appearing in the evidence, this Court would be justified  in interfering with the concurrent findings of both the courts. According  to  the  learned  counsel,  the  prosecution  had shifted  the  scene  of  occurrence,  changed  the  time  of occurrence, unduly delayed the registration of the case  and put forth a false explanation for its tardiness both in  the matter of registration and investigation of the case.      Allowing  the appeals by setting aside the  convictions and the sentence imposed by the High Court, this Court,      HELD:  (1)  Under  Article  136,  Interference  by  the Supreme  Court will be called for even with the findings  of fact  given by the High Court, if the High Court  has  acted perversely or otherwise improperly. [690F]      The  State  of Madras v. A.  Vaidyanatha  Iyer,  [1958] S.C.R.  580;  Himachal  Pradesh Administration  v.  Shri  Om Prakash,  [1972] 1 S.C.C. 249; Balak Ram v. State  of  U.P., [1975]  3  S.C.C. 219; Arunachalam v.  P.S.R.  Sadhananthan, [1979]  3  S.C.R.  402; State of U.P. Hamit  Singh  &  Ors., [1990]  3  S.C.C. 55; State of U.P. v. Pheru Singh  &  Ors., [1989] Suppl. 1 S.C.C. 288, referred to.      (2) The evidence adduced by the prosecution falls short of the test of reliability and acceptability and as such  it is highly unsafe to act upon it. [697H]      (3) A thorough and scrupulous examination of the  facts and  the circumstances of the case leads to an  irresistible and   inescapable  conclusion  that  the   prosecution   has miserably  failed to establish the charges  leveled  against these   appellants   by  producing  cogent,   reliable   and trustworthy  evidence.  Both  the Courts  below  instead  of dealing  with  the intrinsic merits of the evidence  of  the witnesses,  have acted perversely by summarily disposing  of the  case,  pretermitting the manifest  errors  and  glaring infirmities appearing in the case. [698A-B]

JUDGMENT:      CRIMINAL APPELLATE JURISDICTION: Criminal Appeals  Nos. 251 & 307 of 1990.      From  the  Judgment and Order dated  11.8.1989  of  the Allahabad High Court in Crl. A. No. 1239 of 1978.                                                        687      S.C. Maheshwari, Y.C. Maheshwari, Miss Sandhya  Goswami and P.K. Chakraborty for the Appellants.      Prithvi  Raj, Prashant Chaudhary and  Dalveer  Bhandari for the Respondent.      The Judgment of the Court was delivered by      S.  RATNAVEL  PANDIAN, J. The  appellants  in  criminal appeal No. 251 of 1990 were accused Nos. 3 and 4 before  the trial  court, namely, the VIIth Additional  Sessions  Judge, Meerut, whereas the appellants in criminal appeal No. 307 of 1990 were accused Nos. 1 and 2 before the said court.  These four   appellants  along  with  one  Braham   Singh   (since acquitted) took their trial for offences under Sections  302 read with section 149 IPC and 323 read with section 149 IPC. Besides, these four appellants were also charged for offence under section 147 IPC whilst Braham Singh under section  148 IPC.   The  trial  court, on appreciation  of  the  evidence adduced  by the prosecution, found the 5th  accused,  Braham Singh,  not  guilty  of  any  charges  and  acquitted   him. However, these four appellants were found guilty of offences

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under section 302 read with section 34 IPC and under section 323  read  with  section 34 IPC  and  sentenced  to  undergo imprisonment   for   life  and  to  six   months’   rigorous imprisonment   respectively.   The  High  Court  on   appeal preferred  by all the appellants, for the reasons  mentioned in its judgment, held that the prosecution has not made  out a case punishable under section 302 read with section 34 IPC but  only under section 304, Part II, IPC read with  section 34  and  consequently  set  aside  the  conviction  and  the sentence imposed for the offence under section 302 read with section 34 IPC and instead convicted them under section  304 Part II, read with section 34 IPC and sentenced each of them to undergo rigorous imprisonment for a period of five years. The conviction of all the appellants under section 323  read with  149  IPC was altered into one under section  323  read with  34  IPC  and  the sentence  of  six  months’  rigorous imprisonment was retained.  The facts of the case which have given  rise  to  the  present appeals  as  unfolded  by  the evidence, can be briefly stated thus:      Appellants in criminal appeal No. 307/90 are  brothers. Similarly  appellants  in  criminal appeal  No.  251/90  and Braham  Singh (who was arrayed as accused No. 5  before  the trial court) are also brothers among themselves.      PWs  1 and 5 are the brother and wife  respectively  of one Bali                                                        688 (the  deceased  herein). PW-1 and the deceased  Bali  had  a common  ’Chak’.  The appellants belonged to a village  named Kaulbhandora, which is at a distance of about four  furlongs from  the  Chak,  situated just adjacent  to  the  road  and ’Rajbaha’.  The appellants used to take the ’Rajbaha’  Patri in  auction for grazing their cattle.  It seems  that  there was  strained  relationship between the appellants  and  the deceased  for a considerable length of time.   According  to the prosecution the cattle belonging to the appellants, when allowed  to enter the ’Patri’ (grazing field) used to  stray into  the  field of Bali and cause damage to  the   standing crops.   Although Bali made a protest, it did not yield  any result.   On  account of this, there was  simmering  feeling between  the  parties.  Added to that,  there  were  certain criminal prosecutions between the parties, pending for  over a period of two years.      On 23.12.1976 at about 1 p.m. when Bali along with PWs- 1 and 5 was in his field, these appellants each armed with a Lathi  along  with Braham Singh armed with a  ’Ballam’  came there.  On the exhortation of Chandroo, all other appellants and Braham Singh attacked Bali with their respective weapons and  caused injuries to him.  While PW-3 tried to  save  her husband,  she too was injured.  When PW-1 along with  PWs  3 and 4 rushed to the scene of occurrence, the assailants took to their heels.  Injured Bali was removed to the  Hastinapur hospital for treatment.  PW-6, the medical officer  attached to  the said hospital examined Bali and found on his  person as  many  as fifteen injuries of which injury No. 15  was  a stab  wound and most of the other injuries were  contusions. PW-6 prepared a medical report, Exhibit Ka-6 and on the same day he examined PW-5 and found on her person 2 contusions in respect  of which he prepared the injury report (Ex.  Ka-7). However,  Bali succumbed to his injuries on the same day  at about  7.45 p.m. PW-1 lodged a written report (Ex. Ka-1)  at about  8 p.m. before PW-2 a Head Constable attached  to  the Hastinapur  Police Station.  PW-2 prepared Exhibit  Ka-2  on the  basis of Ex. Ka-1 and made G.O. entry i.e.  Ex.  Ka.-3. PW-9,  the  then  sub-Inspector of Police  attached  to  the Police  Station took up the investigation and examined  PW-1

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and  others.  He held the inquest over the dead body of  the deceased  and  prepared Ex. Ka-11, PW-5 could not  make  any statement  as she was unconscious.  The PW-9  inspected  the spot and prepared a site plan Ex. Ka.-14 and seized  certain material  objects including a piece of wood and blood  stain earth.      PW-7,  yet another Medical Officer, conducted the  post mortem examination on the dead body of the deceased Bali  on 24.12.1976  and found a number of injuries, as noted in  his post mortem report                                                        689 Ex. Ka-8.  According to PW-7, the death was due to shock and haemorrhage  as  a result of the injuries sustained  by  the deceased.   PW-9, after completing the  investigation,  laid the  chargesheet against all the five accused.   Though  the appellants   admitted  the  earlier  criminal   prosecutions between  the parties, totally denied their  complicity  with the offence of murder.  Of the witnesses examined, PWs 4 and 5  corroborated the testimony of PW-1 but PW-3 was  declared hostile as this witness mentioned only the name of the first appellant and denied participation of rest of the appellants and  Braham  Singh  and  also the  presence  of  the  ocular witnesses  except  PW-5.  The trial  court,  however,  found accused Nos. 1 to 4 (all the appellants herein) alone guilty of   the   offence,   convicted  and   sentenced   them   as aforementioned and acquitted the 5th accused Braham Singh.      On  appeal,  the High Court accepted the  testimony  of PWs-1,  4  and 5 holding that they are giving  a  consistent version in regard to the participation of the appellants  in attacking  the deceased and agreed with the finding  of  the trial  court  that  these appellants  were  responsible  for inflicting the injuries on the deceased Bali and PW-5.   But coming  to  the  nature of the offence  perpetrated  on  the deceased, the High Court held the offence as one  punishable under section 304 Part II but not under section 302 IPC  and consequently  altered  the conviction and  the  sentence  as indicated above while retaining the conviction under section 323 against all the appellants for causing injuries to PW-5. Hence,  the present appeals are directed by  the  appellants who were accused Nos. 1 to 4 before the trial court.      Mr.  Maheshwari, Senior Counsel appearing on behalf  of the appellants in both the appeals, forcibly contended  that since  both  the courts below have  overlooked  the  glaring infirmities and ignored the material evidence supporting the defence  theory as well as the manifest errors appearing  in the  evidence, this Court would be justified in  interfering with  the concurrent findings of both the courts,  otherwise substantial  injustice  would be caused to  the  appellants. According  to  the  learned  counsel,  the  prosecution  has shifted  the  scene  of  occurrence,  changed  the  time  of occurrence, unduly delayed the registration of the case  and put forth a false explanation for its tardiness both in  the matter  of registration and investigation of the case;  that PW-9;  the investigating officer, has  deliberately  feigned ignorance of the receipt of Ex. Kha-1 in order to shield his indolence and failure in immediately and promptly taking  up the  investigation; that PW-1  and  4 in order to  ventilate their   grievance  which  they  were  bearing  against   the appellant’s party on account of the previous                                                        690 animosity  and simmering feelings that existed between  them and to settle their personal scores; that the credibility of these  two  witnesses  is impaired and  their  testimony  is successfully impeached.  The learned defence counsel further states  that a thorough and strict scrutiny of the  evidence

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furnished   by  PWs-1,  3  and  4  shows  that  the   entire prosecution story in concocted, fanciful and incredible and, as such, it deserves to be rejected with scorn and that both the  courts  below  have  completely  pretermitted  all  the pitfalls  in the prosecution and have summarily disposed  of the  case  without subjecting the evidence under  the  usual test of scrutiny.      Before we analyse the above contentions with  reference to  the evidence adduced by the prosecution and see  whether the  prosecution  case suffers from any illegality  and  the conclusion  of  the courts below from perversity,  we  shall deal  with  the scope of interference of this  Court  in  an appeal arising from concurrent findings of fact.  This Court in The State of Madras v. A. Vaidyantha Iyer, [1958] SCR 580 at  588 while interpreting the scope of Article 136  of  the Constitution has ruled as follows:          "In  Art. 136 the use of the words  "Supreme  Court          may in its direction grant special leave to  appeal          from any judgment, decree, determination,  sentence          or  order in any cause or matter passed or made  by          any  court or tribunal in the territory  of  India"          shows  that in criminal matters no distinction  can          be  made  as  a matter of  construction  between  a          judgment of conviction or acquittal. Having  made  the  above rule, it has  been  said  that  the interference  by the Supreme Court will be called  for  even with  the findings of fact given by the High Court,  if  the High  Court  has acted perversely or  otherwise  improperly. Jaganmohan  Reddy,  J.  agreeing  with  the  view  taken  in Vaidyanatha  Iyer’s  case has observed in  Himachal  Pradesh Administration v. Shri Om Prakash, [1972] 1 SCC 249 thus:          "In  appeals  against acquittal  by  special  leave          under  Article 136, this Court has undoubted  power          to   interfere  with  the  findings  of  fact,   no          distinction   being  made  between   judgments   of          acquittal  and  conviction, though in the  case  of          acquittals  it will not ordinarily  interfere  with          the appreciation of evidence or on findings of fact          unless the High Court "acts perversely or otherwise          improperly".                                                        691      Again in Balak Ram v. State of U.P., ([1975] 3 SCC  219 at page 227) this Court held as follows:          "The powers of the Supreme Court under Article  136          are  wide but in criminal appeals this  Court  does          not interfere with the concurrent findings of  fact          save in exceptional circumstances."      In Arunachalam v. P.S.R. Sadhananthan. [1979] 3 SCR 482 at page 487 this Court while reinstating the principles laid down  in  Vaidyanatha Iyer & Om Prakash, cases,  has  stated thus:          "The power is plenary in the  sense that there  are          no  words  in Article 136  itself  qualifying  that          power.   But the very nature of the power  has  led          the  Court to set limits to itself within which  to          exercise such power. It is now the well established          practice of this Court to permit the invocation  of          the   power   under  Article  136  only   in   very          exceptional  circumstances, as when a  question  of          law  of  general  public  importance  arise  or   a          decision  shocks the conscience of the Court.   But          within  the  restrictions imposed by  itself,  this          Court  has  the undoubted power to  interfere  even          with findings of fact making no distinction between          judgment  of acquittal and conviction, if the  High

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        Courts  in  arriving at those findings,  has  acted          "perversely or otherwise improperly".      See also State of U.P. v. Hamik Singh & Ors., [1990]  3 SCC 55 and State of U.P. v. Pheru Singh & ORs., [1989] Supp. 1 SCC 288 to which one of us (S. Ratnavel Pandian, J.) was a party.      Bearing  the  above proposition of law,  we  shall  now examine the evidence and see whether the concurrent findings of fact call for an interference.      With regard to the place of occurrence, learned counsel drew  our attention to the first information report  and  to the  evidence of the witnesses including that of  PW-9,  and pointed  out that the prosecution had changed the  scene  of occurrence.   In the first information report  under  column ’place  of occurrence’, it is mentioned as ’Jungle  Village, Ganeshpur’.  PW-1 in his cross-examination has admitted that the ’Chak’ in which the murder took place is situated in the jungle of village Bhandora and not in the jungle of  village Ganeshpur.  A suggestion, though denied, has also been  made by the defence to PW-1 that                                                          692 they have changed the place of occurrence from Ganeshpur  to Bhandora.  PW-2 who was then the Head Constable attached  to Hastinapur Police Station, states that on submission of  Ex. Ka-1 by PW-1 he prepared a chik report Ex. Ka-2 and that  he mentioned  the  place  of occurrence as  jungle  of  village Ganeshpur only on the basis of the written report.      It  is  the evidence of PW-9 that  he  reached  village Bhandora and did spot inspection thereby admitting that  the place of occurrence was village Bhandora and not  Ganeshpur. a  scrutiny  of Ex. KA-1 shows that PW-1 did  not  give  the specific place of occurrence in that earliest document.   It appears  from  the evidence of PWs 1 and 9 as  well  as  the entry  under  column No. 2 of the First  Information  Report that the prosecution was probing in darkness even in respect of  the  place  of  occurrence.  Even in  Ex.  Ka-3  a  memo prepared by PW-9 for seizure of the blood-stained earth, the place  of occurrence is not mentioned.  Hence, we hold  that the  submission  made on behalf of the defence even  at  the threshold that the place of occurrence is changed or at  any rate  not specifically fixed, cannot be said to  be  without force.      We  shall then scrutinise the evidence with  regard  to the  time of occurrence.  According to the prosecution,  the occurrence  took  place  at  about 1.00  p.m. on 23.12.1976. Immediately,  after the occurrence, the injured Bali &  PW-5 were brought to the hospital which is at a distance of three miles from the scene of occurrence.  Ex. Kha-1 was  prepared by  the Medical Officer i.e. PW-6 on examing Bali. Ex.  Ka-7 is a report prepared by medical officer PW-6 relating to the injuries found on PW-5.  This document Ex. Ka-7 reveals that PW-5 was examined at about 3.30 p.m.  Therefore, the injured Bali  could have been examined by PW-6 earlier to 3.30  p.m. It  may  be mentioned here what PW-1 has  stated  that  they reached  the  hospital  approx, between 2 and  3  p.m.   The medical  officer has opined that the injuries found  on  the injured  could  have been caused within six hours.   When  a specific question had been addressed to this medical officer (PW-6) as to whether the injuries could have been caused  at about 5/6 a.m. he would say: "It could have been caused at 8’O   clock".   We  are  not  rejecting  the  case  of   the prosecution on this admission of the medical officer stating that  the  probable time of the causation  of  the  injuries could  be 8 a.m.  But the question would be, even  admitting that the occurrence took place at about 1 p.m., whether  the

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prosecution convincingly and satisfactorily established  the guilt  of  the  appellants by leading  cogent  and  reliable evidence.                                                        693      The  next important point for determination is  whether the case has been promptly registered and the  investigation proceeded without causing undue delay thereby giving no room enabling  the  prosecution party to deliberately  concoct  a case against these four appellants.  It transpires from  the evidence of PW-6 that he sent the information under Ex. Kha- 1 to the Police Station through his peon intimating the fact of Bali having been bought to the hospital with a number  of bleeding  injuries in a very serious condition and  also  of PW-5  having been admitted in the hospital for treatment  of the injuries sustained by her and the said document Ex. Kha- 1  was  sent  by  4.30 p.m. on  23.12.1976  itself  and  the hospital’s  peon  had  brought the  Receipt  evidencing  the handing  over of the intimation to the police.  It  is  only thereafter that PW-1 prepared Ex. ka-1 and handed it over to PW-2  at  about 8 p.m. on 23.12.1976.   According  to  PW-2, after registration of the case, a death memo was received at the  Police Station at about 8.15 p.m. saying that Bali  had expired in the hospital at about 7.40 p.m.      According  to PW-1, the distance between  the  hospital and the police station is about 1 or 2 furlongs and that the police   station   is  not  situated  near   the   hospital. Nonetheless  PW-1 would admit when confronted  further  that the  distance  between  the gates of the  hospital  and  the police station would be about 50 steps.  Be that as it  may, the  fact  ramains  that both the hospital  and  the  police station   are  situated  within  a  very   short   distance. Admittedly, neither PW-1 nor any of PWs-3 and 4 went to  the police  station to inform about the occurrence  though  they reached  the hospital even by 2 p.m.  The  only  explanation given  by  PW-1  is that he was  busy  enquiring  about  the condition  of  his  brother.  This explanation  of  PW-1  is totally  unacceptable  because after both  injured  persons, namely,  Bali & PW-5 were brought to the hospital they  were examined  only  by  the medical officer,  PW-6.   There  was nothing preventing either PW-1 or any of the other witnesses in going to the police station and informing the police,  if really they were eye witnesses to the occurrence and were in the hospital from 2 p.m. onwards, leaving apart PW-5 who was undergoing   treatment   in  the  hospital.    The   delayed preparation of Ex. Ka-1 by PW-1 at the hospital after  seven hours of the occurrence and that too after the death of  his brother,  leads  to an indelible impression  that  PW-1  and other  interested  persons  who  were  enimically   disposed towards  the appellants should have prepared Ex. Ka-1  after due   deliberation   and   consultation.     The    abortive explanation  for  not going to the police  station  for  six hours after reaching the hospital is unworthy of credence.                                                        694      The   next   and   even  more   important   point   for consideration  is  the  much  delayed  investigation.    The conduct of PW-9 in not taking an immediate action even after Ex. Kha-1 was handed over at the police station by 4.30 p.m. or  at  any  rate  after  receipt  of  Ka-1  and  the  death intimation  creates   a  suspicion in the  veracity  of  the prosecution  case.  Though PW-2 admits that he received  the death intimation by about 8.15 p.m., PW-9, the investigating officer, has feigned total ignorance about Ex. Kha-1 stating thus:          "Before  this F.I.R. no intimation was received  at          the police station about this occurrence that  Bali

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        was  injured and admitted in the hospital  and  his          condition  was  critical.  It  is  wrong  that  any          information  was  received at  the  Police  Station          before this F.I.R. which I am concealing.  I do not          know  whether Ex. Kha-1 was received in the  police          station or not.  During the investigation Ex. Kha-1          never came to my knowledge.  This paper came to  my          knowledge  during  the investigation and I  made  a          copy  of  this in the case Diary.  I  do  not  know          whether  this  Letter was recorded in  the  General          Diary  or not.  No copy of G.D. is recoorded in  my          case  diary in connection with Ex. Kha-1.  No  such          note is there in my  case diary that I had seen any          G.D.  which  is related to Ex Kha-1.   I  have  not          recorded any statement of the H.M. relating to  Ex.          Kha-1."      We shall examine whether PW-9 took up the investigation at  least  after registration of the  case  without  causing further  delay.  PW-2 states that the investigating  officer took up the investigation at about 8 p.m. on 23.12.1976  and went  to  the hospital and returned to  the  police  station only  on the next day i.e. 24.12.1976 at 9.50 p.m. PW-9  has lodged in his presence by PW-1 and that he immediately  took up the investigation during the course of which he  examined PW-1  and  then come to the hospital where he  examined  the medical  officer Dr. B.D. Goel (PW-6) and saw the dead  body lying in the male ward.  He continues to state that as  PW-5 was  in an unconscious condition, he could not  examine  her and  as  the light went off, he could not prepare  even  the Panchnama.   This piece of evidence of PW-9 that he took  up the  investigation even at 8 p.m. is not  only  contradicted but  also  falsified by the testimony of PW-1  according  to whom  after lodging the report he immediately came  back  to the  hospital and remained there till next morning and  that the Sub-Inspector (PW-9) came to the hospital for the  first time in the morning of 24.12.1976 and only thereafter he was                                                        695 examined.   PW-4 also states that the investigating  officer came  to the hospital only in the next morning.   PW-6,  the medical officer, does not speak of the Sub-Inspector  having came  to  the hospital on the night of  occurrence  and  has stated that he did not remember of the Sub-Inspector or  any constable  reaching the hospital after receipt of the  death intimation or any one examining him on that date.  The  said pieces  of evidence, namely, the total unawareness  of  PW-9 about the existence of Ex. Kha-1 as well as the entry in the general   diary   made   thereon   and   the   diametrically contradictory  evidence of PW-9 on the one hand and that  of PWs-1,4 and 6 on the other, clearly indicate that either PW- 9   did not have any knowledge about the incident  till  the next   morning  or  even  if  he  had  such  knowledge,   he deliberately  delayed  the investigation;  and  his  present version is nothing but a deliberate perjury and as such  his evidence has to be thrown overboard as unworthy of credence.      In  the cross-examination, it is admitted by PW-9  that he did not write the names of the appellants/accused in  the Panchnama  and  that  he did not try to know  the  kinds  of weapons that had been used by the assailants.  On the  basis of  this  admission a suggestion had been addressed  to  him that  the  FIR relating to this incident, was  prepared  and lodged  only  after  preparation of  the  Panchnama  thereby indicating that the FIR was anti-dated.      We  shall  now  scan the evidence of  PWs-1,  3  and  4 examine  whether their evidence could be accepted and  acted upon.   Admittedly, there was deep rooted animosity  between

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the  prosecution party and the appellants over a  period  of some  years  and they have developed bad blood.  It  is  the evidence of PW-1 that there were a number of criminal  cases against deceased Bali along with one Birbal Kishore and  Omi who  were  persons of notorious character in  that  village. Besides,  there  were  some more  cases  and  counter  cases between the parties.  A suggestion has been addressed to PW- 1 that his brother Bali was having close connection with one Ramanand  who was a known decoit belonging to their  village but PW-1 has denied the relationship of Bali with  Ramanand. PW-4  admits that there was a dispute between Bali  and  the appellants in which Bali had beaten them and in that case he was  a co-accused along with PW-1 and deceased  Bali.   PW-3 who  has been treated as a hostile witness since he did  not implicate all the appellants by their names except  Chandroo has  admitted that there was a case against Bali and  Birbal Kishore  in which he was a witness on the side of  Bali  and that  there was a double murder case in which he (PW-3)  was an accused and convicted.  In that murder case one Roop                                                        696 Ram,  cousin  of  appellant Chndroo was  a  witness  on  the prosecution  side.   Thus it comes out of  the  evidence  of these  witnesses that all was not well between  the  parties and each one was having grudge against the other.      As  pointed  out  by Mr.  Maheshwari,  learned  counsel appearing for the appellants, the conduct of PW-1 belies his presence at the sence of occurrence as he did not  intervene when  his brother (deceased) and sister-in-law  (PW-5)  were attacked  by  the  appellants and another and  if  PW-1  had really been at the scene, he having been a co-accused  along with  his  brother  in previous case, would  not  have  been standing as a mute spectator without taking any part in  the occurrence  in  which  case  he  would  also  have  received injuries.   In Ex. Ka-1 he has mentioned PWs-3 and 4 as  eye witnesses  who  were  enemically  disposed  of  towards  the appellants  and who were interested in the  prosecution.  As seen  from the evidence of these three witnesses,  they  all belong  to  one group either having been co-accused  in  one case or other along with Bali or taking up the cause of Bali when  the latter was involved in other criminal  cases.   In fact, one sentence in Ex. Ka-1 would indicate that PWs-1,  3 and  4 were not at the scene at the time of  occurrence  but came to the spot  later on.  The relevant version in Ex. Ka- 1  reads:   "On alarm, I and my uncle Chotte  Lal  and  Shiv Charan  of the village reached the spot and saved them"   Of course, he at the next breath would claim to have  witnessed the  occurrence.   We  have also noted  that  the  place  of occurrence is not satisfactory  fixed; and that the evidence of PW-1 giving the reasons for the presence of his  deceased brother  with  PW-5 in the field, is also falsified  by  the evidence  of PW-9.  According to PW-1, his deceased  brother and PW-5 were harvesting sugarcane in the field at the  time of  occurrence.   But PW-9 has deposed that at the  time  of spot  inspection he did not find any Bugi,  Dokra,  Phawara, Dranti or harvested sugarcane.  This contradictory  evidence when  taken  along  with  our finding  with  regard  to  the fixation  of the scene of occurrence goes to show that  PW-1 could  not have been present at the scene of occurrence  and only after a deliberation he has posed himself as one of the eye-witnesses  and  projected  PWs  3 and  4  as  other  eye witnesses along with him.  PW-4 during the course of  cross- examination  has  admitted that except himself, PWs 1  &  5, none  reached  the  scene and people came to  the  scene  of occurrence later on.  After reaching the hospital along with injured,  PW  4  states that all of  them  remained  in  the

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hospital  near the dead body and that he went to the  police station in the morning of the next day at about 7.00 a.m. As we have pointed out earlier, PW 3 has not implicated all the appellants except Chandroo by name and as such, he has  been treated                                                        697 as a hostile witness.  PW 3 is none other than the uncle  of PW  1 and the deceased, therefore, in view of  the  inherent infirmities  adversely affecting the testimony of these  eye witnesses, it would not be safe to convict the appellants on the  scanty evidence.  The author of the  earliest  document Ex.  Ka-1,  namely,  PW-1  seems to  be  a  man  of  dubious character  and  his  evidence is  completely  tarnished.   A thorough  scrutiny of the evidence shows that the  testimony of the eye witness is ambulatory and vacillating and compels this Court not to place any safe reliance.      Lastly, we are left with the evidence of PW-2 who is an injured  witness.   The  presence of PW-2 at  the  scene  is fortified   by  the  injuries found on  her  person.   After scanning  her  evidence  very carefully, we  are  unable  to safely accept her evidence since it is not only tainted with highly  interestedness but also a coloured version,  falling in  line  with  that  of PW 1.   She  states  that  she  was unconscious  for 2 days and that it was she who told  PWs  1 and  4  as to who were the assailants.  Immediately  in  the next breath, PW 5 comes forward to say that on the next  day she  told  all the facts to the  investigating  officer  and again  became unconscious after coming to know the death  of her husband.  To a Court question, she gives a prevaricating answer that she was conscious for some time and then  became unconscious.  Though at one time, she testifies that she was beaten with sticks, she suddenly changes her evidence giving a  contradictory version that she did not know  whether  she was  beaten or not.  Though all the witnesses in  a  parrot- like manner deposed that these 4 appellant along with Braham Singh  armed  with  ballam  attacked  the  deceased,   their evidence  when  subjected  to  strict  examination   becomes unworthy  of  credence.  The Trial Court on  entertaining  a grave  doubt about the participation of Braham Singh with  a ballam, acquitted him despite the fact that PW 6 has noted a stab wound on the inner side of left thigh measuring 2 x 1 x 1.5  cms which injury in the opinion of the medical  officer could  have  been  caused  by  a  sharp  edged  weapon  like ’ballam!.  The acquittal of Braham Singh was not  challenged by the prosecution before the High Court, and therefore,  we are  not called upon to discuss on this aspect of the  case. However,  it is clear that the trial Court was not  inclined to  accept a part of the evidence of these 3 witnesses  i.e. PWs 1, 4 & 5 relating to the participation of Braham Singh.      In our considered opinion, the evidence, adduced by the prosecution,  falls  short of the test  of  reliability  and acceptability  and as such it is highly unsafe to  act  upon it.                                                        698      A thorough and scrupulous examination of the facts  and the  circumstances of the case leads to an irresistible  and inescapable  conclusion that the prosecution  has  miserably failed  to  establish  the charges  levelled  against  these appellants  by  producing cogent, reliable  and  trustworthy evidence.  Both the Courts below instead of dealing with the intrinsic  merits  of the evidence of  the  witnesses,  have acted  perversely  by  summarily  disposing  of  the   case, pretermitting  the manifest errors and  glaring  infirmities appearing in the case.      For  all  the  aforementioned  reasons,  we  allow  the

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appeals  by setting side the convictions and  the  sentence, imposed  by the High Court and acquit the  appellants.   The bail bonds, executed by the appellants, are discharged. R.S.S.                                  Appeals allowed.                                                        699