K. Jayachandra Reddy, J. - (1.) These two appeals are filed against the judgment of High Court of Delhi in Criminal Appeal No. 324/76 in which State of U. P. was the appellant. The said appeal was filed against the judgment of acquittal passed by the 1st Additional Sessions Judge, Delhi in Sessions Case No. 2/74. It may be mentioned here that though the occurrence took place in the State of U.P., the case was transferred to the Court of Additional Sessions Judge, Delhi by the Supreme Court in view of the special circumstances. In the said case six accused were tried for offences punishable under Ss. 120-B and 302 read with S. 34, I.P.C. The trial Court acquitted all of them. In an appeal filed by the State against the said acquittal, the High Court convicted accused Girja Shankar Misra and Nathu Singh under S. 120-B read with S. 302, I.P.C. and sentenced each of them to undergo imprisonment for life. Nathu Singh was further convicted under S. 302 1. P.C. and sentenced to imprisonment for life. One Girdhari, accused died during the pendency of the appeal. The acquittal of the remaining accused was confirmed. Accuse Girja Shankar Misra has filed Criminal Appeal No. 272/ 84 and accused Nathu Singh has filed Criminal Appeal No. 340/184 in this Court under S. 2(a) of the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act. Since these are regular appeals, the learned counsel for the appellants and the learned counsel for the State have taken us through the entire voluminous record and advanced elaborate arguments.
(2.) Briefly stated, the prosecution case is as follows: Shri Raj Narain Mishra, the deceased in the case, was married to Smt. Sushila, P.W. 54 and was residing at Orai District Jalaun. P.W. 54 gave birth to five children. She was a double M. A. and an active social and political worker. The deceased, though by profession an advocate, was a politician. In 1962 he contested the general elections to the Legislative Assembly, Uttar Pradesh and got elected. In 1967 however he lost the election. Girja Shankar Misra, one of the appellants, was a Police Officer posted as a Station Officer, Sikendra within the Rajpur Constituency from where the deceased contested the election. During the elections P.W. 54 came into contact with Girja Shankar Misra and she developed illicit relations with him. The deceased came to know about this and deprecated the same but acted prudently making possible endeavours to bring an end to the affair. He got Girja Shankar Misra transferred to a distant and difficult station. Therefore, Girja Shankar Misra bore a grudge and he conspired to get Raj Narain Mishra killed. The trial court as well as the High Court have elaborately referred to the illicit relations between Girja Shankar Misra and P. W. 54 and have also referred to various letters exchanged between them and it has been ultimately held that Girja Shankar Misra had sufficient motive. The further case of the prosecution is that Girja Shankar Misra enlisted the services of the other accused and conspired to get Raj Narain Mishra killed. On 12-2-73 the deceased and his wife P.W. 54 had gone to Kanpur and returned from there on the evening of 13-2-73. The deceased got down at Sankat Mochan Devi Sthan where some Yagava was being performed. P.W. 54 reached home at about 5.15 p.m. and got ready to go to Sankat Mochan with the children. P.W. 1, Ram Chander who was known to the family, came to meet the deceased and he was told by P.W. 54 that the deceased would be coming after some time and that he should wait. So saying she left in a jeep. P.W. 9 Ram Devi, widowed sister of the deceased and his son Vivek, P. W. 7 stayed back to the house. After some time the deceased also returned home. P.W. I and the deceased were talking. While so they saw four persons, two armed with rifles and two armed with guns coming out of the gate of Girja Shankar Misra, whose house was nearby and entering the house of Raj Narain Mishra. They fired at the deceased who cried "run" and so crying he ran inside the house followed by P.W. 1. The deceased after passing the gallary tried to bolt the door but was unable to do so because of the stoppers. The assailants ran after Raj Narain Mishra and one of the assailants (later identified as Nathu Singh, appellant in Criminal Appeal No.340/84) fired at Raj Narain Mishra at close quarters and the bullet hit him on the chest. Another assailant later identified as Girdhari, who died during the pendency of the appeal, also fired his gun from a close range at the deceased. P.W. 9 rushed to the room at the back of the kitchen and from the door of that room, she saw the assailants. P.W. 7 was reading a magazine in the verandah. Seeing the assailants he ran inside the inner courtyard and from there he saw the assailants. According-to the prosecution, P. Ws. 1, 7 and 9 witnessed the occurrence. The assailants after shooting at the deceased came out and ran into the street. P.W. I met P.W. 2, Devi Deen Yadav going on a bicycle and informed him as to what has happened. P. W. 2 went to Kotwali Police Station, met P.W. 12, Jagdish Singh, the Station Officer and gave him the information. P.W. 12 rushed to the place of occurrence. Meanwhile, P.W. 6, Davinder Singh, an advocate who lived closely, hearing the sound of gun-shot, picked up his gun and ran outside. He was told by some children that the assailants were running away. Then he ran to the house of one Baba Gandharv Singh and took a rifle from him to be more effective. Just then a bus also came and driver also got down. P.W. 6 along with the driver ran after the assailants but it is alleged that the assailants fired at these people who were chasing them. There was also return of fire. The assailants, however, succeeded in escaping. P. W. 55, Deputy Superintendent of Police on receipt of the report of occurrence rushed to Orai and reached the place of occurrence at about 7.50 p.m. He recorded the statement of P.W. I and also seized some empty cartridges. He held the inquest over the dead body and sent the same for post-mortem. It was not known as to who the assailants were since they were strangers to P. Ws. 1, 7 and 9, the eye-witnesses. On 16-2-73 investigation was taken up by P. W. 56 and he examined other witnesses. On 18-2-73, he arrested Bimla Devi wife of Girja Shankar Misra and on 19-2-73 Girja Shankar Misra surrendered himself. Nathu Singh, Girdhari and Batte Singh, accused were arrested on 19-2-73 and a rifle along with live bullets was seized from Nathu Singh accused. Balbir Singh accused was arrested on 7-5-93. The investigating officer made an application for arranging an identification parade on 15-3-73 but it was postponed several times and ultimately it was held on 4-6-73. In the said identification parade, P.Ws. I and 7 identified Nathu Singh and Girdhari accused and P. W. 9 identified only Nathu Singh. P. W. 56 sent the cartridges and bullets to the Expert who gave his report. The prosecution examined as many as 56 witnesses. To prove the conspiracy the prosecution relied on the evidence of P. Ws. 13, 14, 15, 16, 32 and 42. The prosecution also relied to some extent on the evidence of the investigating officers.
(3.) The trial court in an elaborate judgment has discussed the evidence of all the witnesses regarding the conspiracy and held that the same is not proved. Regarding the actual occurrence, the trial court pointed out several infirmities in the evidence of P. Ws. 1, 7 and 9 and was not prepared to rely on the test identification parade proceedings held by P. W. 45, Sub-Divisional Magistrate for various reasons. The trial Court also held that the medical evidence does not support the version given by the eye-witnesses. It also held that the evidence of Ballistic Expert would go to show that the weapons seized could not have been used in the occurrence. For these and other reasons the trial court gave the benefit of doubt to the accused.;