Barin Ghosh, C.J. -
(1.) KASHIPUR Police Station received an information over phone from Head Constable Yaad Ram Singh at 11.35 A.M., on 8th September, 2006 that a firing has taken place at the cremation ground adjacent to Kashipur town. Officers of the Police Station immediately rushed to the place of occurrence, where they found that a person is lying dead having had _ received certain injuries. The officers connected with the said Police Station immediately started taking steps, as were required to be taken in respect of the incident in question, by conducting inquest, taking in custody the dead body, sending the same for post -mortem and seizing three vehicles parked nearby, etc. At 12.10 P.M. of 8th September, 5006, Kashipur Police Station received a complaint in writing from Pankaj Maheshwari (P.W.1) holding out that he alongwith his cousin, Umesh Maheshwari (victim) and Vijay Kumar (P.W.2) and other persons were present at Village Kunda for participating in cremation ceremony of Jassa Pahalwan. Kashmir Singh (A1) arid Sukhwant Singh (A2) were already present at the cremation site armed with revolvers. Al and A2 used their revolvers indiscriminately which killed Umesh Maheshwari. It was stated in the First Information Report that A1 and A2 threatened to kill P.W. 1 and the victim. It was stated that the incident took place before P.W. 1, P.W.2 and Gurmukh Singh (D.W.4) and all of them are eyewitnesses. The said written complaint was treated as F.I.R. and investigation in pursuance therewith commenced. On 14th September, 2006, Al and A2 were arrested when a revolver was recovered from A1 and a country made pistol was recovered from A2. The revolver and the country made pistol were sent for examination. FSL Agra reported that the revolver was not functional, whereas the country made pistol was found functional. In the meantime, post -mortem of the deceased was completed, when it was reported that there were five entry wounds caused by gun shot, two of them by bullets and the remaining by pallets. FSL Agra did not report that the revolver seized from Al was used for firing any of the bullets, which were embedded in the body of the victim. After completion of the investigation, a charge -sheet was filed, on the basis whereof, charges were framed for offences punishable under Section 302 of the Indian Penal Code and Section 25 of the Arms Act. The charge having been denied, trial commenced and after conclusion of the trial, by the judgment under these three appeals, Al and A2 have been convicted for offence punishable under Section 302 of I.P.C. and also for offences punishable under Section 25 of the Arms Act. They have, accordingly, been sentenced. Being aggrieved thereby, the present appeals have been preferred. Criminal Appeal No. 322 of 2008 is by Al against his conviction under Section 25 of the Arms Act, whereas Criminal Appeal No. 330 of 2008 is by A2 against his conviction under Section 25 of the Arms Act. Al and A2 have preferred a joint appeal registered as Criminal Appeal No. 323 of 2008 for their conviction under Section 302 of I.P.C. In support of Criminal Appeal Nos. 322 of 2008 and 330 of 2008, practically no submission has been made by or on behalf of the appellants, probably because they have already undergone imprisonment for the period awarded by the court below, while convicting them under Section 25 of the Arms Act. We, accordingly, dismiss these two appeals.
(2.) CRIMINAL Appeal No. 323 of 2008 has been pressed. Learned counsel submitted that the motive, ascribed by the prosecution for the offence of murder, is involvement of the victim with the murder of the brother of Al and A2, namely, Bhagwant Singh. The learned counsel submitted that the assailants of Bhagwant Singh have been punished by awarding them life sentence and in the proceedings pertaining to murder of Bhagwant Singh, victim had no connection. Learned counsel submitted that the prosecution has not been able to bring on record anything to suggest that the victim was, at all, remotely connected with the murder of Bhagwant Singh. It was submitted that in those circumstances, the conclusion would be that the prosecution has miserably failed to bring home alleged motive of the crime in question. Learned counsel further submitted that in the First Information Report, it was indicated that P.W.1, P.W.2 and D.W.4 were eyewitnesses, inasmuch as, they accompanied the dead body of Jassa Pahalwan to the cremation ground, where, allegedly, A1 and A2 were already present and they fired upon the victim. The learned -counsel drew our attention to paras 8 and 12 of the evidence of P.W.1, where it has been stated that P.W. 1 did not know Jassa Pahalwan, and that, he did not talk to any family member of Jassa Pahalwan. Learned counsel submitted that though P.W.2 held out that he knew Jassa Pahalwan, but having regard to the nature of evidence brought on record by the prosecution, it is doubtful whether P.W.2 was, in fact, present when the incident took place. Learned counsel submitted that P.W.2 was present at the time of incident has been corroborated only by P.W.1. Learned counsel submitted that though the death had taken place by reason of gun shot injuries, but the fact that those gun shots were fired by Al and A2 have been witnessed only by P.W.1 and P.W.2. It was submitted that there is no just reason for P.W.1 to attend cremation of a person totally unknown to him and P.W.1 has not deposed that in order to give company to P.W.2, he had attended the cremation. Learned counsel drew our attention to the evidence of D.W.4, who was cited as one of the eyewitnesses to the incident by P.W.1 in the First Information Report, where D.W.4 has categorically stated that he and P.W.1 were present in their medical shop at Kashipur on 8th September, 2006 and at 12.00 noon they came to learn about the death of the victim, whereafter they went to the place of occurrence.. Learned counsel submitted that the evidence of D.W.4 Has been corroborated by the evidence of Jagtar Singh (D.W.1) and Kundan Singh (D.W.2), whose presence at the place and time of the incident can not be doubted, inasmuch as, it was their vehicles, which were seized by the police and which were later on returned to them on their applications. D.W.1 and D.W.2, in no uncertain terms, held out that neither D.W. 4, nor P.W. 1 and P.W.2 were present at the place of occurrence. In view of the deposition of D.W.I, D.W.2 and D.W.4, to believe the evidence of P.W.2 without any corroboration would be a fatal mistake and that appears to have happened before the court below. P.W.2 though held out that Jassa Pahalwan was his friend, but this assertion is without any corroboration. Even if Jassa Pahalwan was a friend of P.W.2 in view of evidence tendered by D.W.I, D.W.2 and D.W.4, presence of P.W.2 at the place of incident, without any corroboration, is suspect. The prosecution tried to corroborate the evidence of P.W.2 to the effect that he was present at the place and time of occurrence by the evidence of P.W.1. As aforesaid P.w.4 categorically held out P.W.1 was not present at the place and time of occurrence. As aforesaid, P.W.1 had no occasion to be present there, inasmuch as, he neither knew Jassa Pahalwan, nor anyone in his family. P.W.1 did not depose that in order to give company to P.W.2, he had gone to the place of incident.
(3.) IN the circumstances, the court below was obliged to give benefit of doubt to the appellants. That having not been done, the judgment and order under appeal is preferable and we, accordingly, upon interfering with the same, set the same aside and allow the appeal. The appellants are in Jail. They shall be released forthwith.;