- (1.) D. K. Trivedi, J. The present criminal appeal is directed against judg ment and order dated 19-2-86 passed by the 2nd Addl. Sessions Judge, Unnao convicting the appellants under Section 302/149, 307/149 and 323/149 IPC and sentencing each of them to undergo life imprisonment, 5 years' R. I,, and one pear's R. I. respectively. The learned trial Judge further convicted accused Badri, Sita Nand, Raja Ram and Ram Lakhan under Section 147 I. P. C and sentencing each of them to undergo 2 years' R. I. The remaining accused-appellants namely, Bhola, Sheo Shanker and Naresh Singh were further con victed under Section 148 I. P. C. and each of them were sentenced to three years' R. I. All the sentences were directed to run concurrently.
(2.) THE brief facts of the prosecution case are that about 5 years before the present incident, one Shitla, the father of deceased Surendra Singh was murdered and in the said murder case, appellants Sheo Shanker, Bhola Shauker and their father accused Raja Ram aud others were prosecuted. THE said case ended in acquitial. It is further alleged that four months before this incident, Onkar, the brother of Sheo Shanker, appellant was killed and in the said murder case, complainant Arun Kumar Singh his uncle Virendra Singh and Jitendra were challaned. It is said that the said case is pending and on this count, the accused persons bore ill-will against the complainant. Accused Bhola Shanker, Sheo Shanker and Ram Lakhan alias Pandit are real brothers. Accused Sata Nand is nephew of Raja Ram vho is the father of Bhola Sh inker. Accused Badri and Naresh Singh are residents of village-Rampur and Bahadurpur respectively, whereas, the other accused-persons are residents of village-Khanjhari, P. S. Auras, District Unnao. Accord ing to the prosecution case on 26-3-84, in the morning deceased Surendra Singh armed with rifle had gone to his field alongwith his son Arun Kumar in connection with harvesting of the 'arhar' crop. It is said that at about 9 a. m. Surendra Singh alongwith Arun Kumar and two labourers namely, Kallu and Mulla was returing with the harvested crop loaded on the bullock-cart. As soon as, they reached in the Galiyara, accused-persons namly, Badri armed with lathi, Sata Nand armed with lathi, Raja Ram armed with lathi, Bhola Shanker armed with gun, Seo Shanker armed with gun, Ram Lakhan armed with hockey and Naresh Singh armed with country-made pistol came out from the Arhar-field situate just towards the north of the Galiyara. It is said that the accused-persons exhorted their companions to kill the deceased and on hearing the said exhortation, Surendra Singh (deceased) as well as Arun Kumar ran towards southern side. THEy were chased by the accused and finally Sheo Shanker, appellant fired his gun at Surendra Singh who fell down in the field of Sri Ram Teli. According to the prosecution case, the said fire hit the deceas ed on his skull. It is further said that, thereafter, the other accused-persons started beating him as well as the complainant, Arun Kumar by their respective weapons. It is said that the complainant finding an opportunity ran away raising an alarm, which attracted-several village persons who reached there and witnessed the occurrence. THE accused-pers. ms, thereafter, ran away and then the complainant found his father dead and his rifle was also lying there broken in pieces. THE complainant thereafter, prepared a report (Ext. Ka-1) and lodged the same at P. S. Auras on the same day at about 11. 15 a. m. THE distance of the police station from the place of the incident is about 5 miles, On the basis of the report Ext. K-l, chick report Ext. Ka-3 was prepared and a case was registered in the G. D. THE report was registered in the presencs of P. W. 6 Raghuraj Singh Sachan, Station Officer of the Police Station Auras and therefore, the investigation was entrusted to him. He immediately recorded the statement of complainant Arun Kumar at the police station itself and, thereafter, sent Arun Kumar to Auras Hospital for medical examination. THE Investigating Officer, thereafter, went to the place of the incident and prepared the inquest report as well as the other necessary papers for post mortem examin ation. He handed over the sealed dead body of deceased Surendra Singh to P. W. 4 Constable Shatrughan who brought the dead body to mortuary for post mortem examinantion. He also recovered the pieces of the rifle, as well as the blood stained and plain earth. He also found two empty -12 bore cartri dges at the spot, tie recorded the statements of the witnesses and prepared a site plan and after completing the investigation, submitted the charge sheet against the accused-persons. The autopsy on the dead body of deceased Surendra Singh was con ducted by P. W. 5 Dr. R. K. Sachan, the Medical Officer, Distt. Hospital Unnao on 27-3-4 and 3,50 p. m. The doctor found the following ante-mortem injuries on the dead body of deceased Surendra Singh : (1) Lacerated wound 22 c. m. X 8 c. rn. X brain cavity deep on the left side of head horizontal places o c. m. away above left ear. On opening left frontal, left partietal, left parietal and left temporal bones were fractured in multiple pieces, few of them were missing. Major portion of brain had come out from the injury. (2) Lacerated wound 8 c. m. X 3 c. m. X brain cavity deep behind left ear. On opening underneath bone temporal fractured in multiple places. (3) Lacerated wound 6 c. m. x 4 c. m. X ear torn through and through in many pieces. (4)Tattooing 5 c. m. x5 c. m. on the right side of chin around tattooing the blackening is present. (5) Multiple abraded contusion in an area of 18 c. m. X 8 c. m. X skin deep on the right fore-arm, 4 c. m. above and away from the wrist joint. (6) Lacerated wound 2. 5 c. m. X I c. ra. x muscle deep on the front palmer aspect of right middle finger. (7) Lacerated wound 2. 5. c. m. X 1 c. m. X bone deep on the back of right elbow joint, 2 c. m. away and above back of right elbow joint. On opening underlying humerus bone fractured. (8) Contusion 2. 5 c. m. X 2 c. m. on the left shoulder. (9) Contusion 2. 5 c. m. X 2 c. ra. on the top of right shoulder. According to the doctor, all the injuries except injury no. 4, were caused by blunt weapon. Injury no. 4 was caused by projectile of fire-arm. The stomach was empty and small intestine contains gases and digested mate rials. The large intestine was found full of faecal matters and gases. According to the doctor, the death was caused due to shock and haemorrhage. The post mortem report ii Ext. Ka-2.
(3.) COMPLAINANT Arun Kumar Singh was medically examined on 27-3-84 at 9 a m. at P. H. C. , Auras by P. W. 7 Dr. Jagdish Chandra, who found the following injuries on the person of injured Arun Kumar Singh ; (1) Contusion 6 c. m. X 2 c. m. on front and middle part of right fore-arm. (2) Abrasion 1 c. m. X 1 c. m. on the root of (dorsal side) the index finger of left hand. (3) Abrasion 2 c. m. X 1/2 c. m. on the back of left wrist joint. (4) Contusion 4 c. m. X 2 c. m. on the left said of back, scapular region. (5) Abrasion 1 c. m. x 1 c. m. on front of left knee joint. 6 According to the doctor all the injuries were simple and were caused by some blunt object. The injury report is Ext. Ka-20. 7. The prosecution in support of its case, examined eight witnesses' out of them, P. W. 1 Arun Kumar Singh, P. W. 2 Hari Ram and P. W. 3 Kalloo are the witnesses of facts. P. W. 4 Shatrughan Lai, Constable brought the dead body of deceased Surendra Singh to mortuary for post mortem examination, P. W. 5 R. K. Sachan, Radiologist, conducted the autopsy on the dead body of deceased Surendra Singh and prepared the post-mortem report Ext. Ka-2, P. W. 6 S. I. Jairam Singh, Station Officer conducted the investigation in this case and after completing the same submitted tte charge sheet against the accused- persons. P. W. 7 Dr. Jagdish Chandra, medically examined Arun Kumar Singh on 27-3-84 at 9 am. at P. H. C. Auras and prepared the injury report Ext. Ka-20. P. W. 1 Constable Santosh Kumar was examined as court witness to prove the F. I R. as well as the other entries in the G. D. 8. On the other hand, the accused-persons denied the prosecution case and stated that they have been falsely implicated in this case due to enmity. The accused-persons also examined one witness Mool Chandra, as D W. 1 who is Lekhpal of villages 1 ampur and Bahadurpur. He has stated that P. W. 2 Hari Ram has no field in village Rampur Khaajari. 9. The learned trial Judge after considering the evidence on the record came to the conclusion that the prosecution has successfuly proved the guilt of the accused beyond reasonable doubt and, therefore, he convicted and sentenced the accused-appellants as mentioned above, The appellants aggrieved by the aforesaid judgment and order, preferred the instant appeal, in this Court. 10. We have heard the learned counsel for the appellants as well as the learned Addl. Government Advocate and persued the records. 11. The main contention of the appellamvcounsel is that the learnsd court below committed an error in holding that the prosecution has success fully proved the guilt of the appellants beyond reasonable doubts. Th appellants' counsel pointed out that in the instant case all the three eye witnesses are inimical and partisan witnesses. Apart from the fact, that they are inimical and partisan-witnesses, their presence on the spot at the time of the incident is also not free from doubt. It is alleged by the prosecu tion that the deceased and the complainant were chased upto a distance of 1 4 furlongs but even then, the deceased Surendra Singh did not try to use his rifle. There is nothing on the record to support the story of cutting of the Arhar crop and further the time of the incident is also not proved beyond reasonable doubt. He further contended that the facts and circum stances of the case as well as medical evidence, belie the prosecution case that the incident took place at about 9 a. m. According to him, the probability is that the incident took place in the early hours of the morning when the deceased had gone to ease. He further pointed out several infirmities and improbabilities in the statements of the eye-witnesses, and contended that in view of these infirmities, the testimony of these witnesses cannot be relied upon. He also contended that there is a conflict between the medical and oral evidence and, therefore, the oral evidence is not believable. The learned counsel for the appellants further challenged the injuries of complainant Arun Kumar 'singh and contended that the injuries of Arun Kumar Singh are superficial and appear to be fabricated later on for the purpose of this case. 12. On the other hand, the learned Addl. Government Advocate vehmently contended that the learned Sessions Judge has committed no illega lity in convicting the appellants in this case, because there is an over-whelming evidence of the three eye-witnesses. He also pointed out that out of these three eye- witnesses, one witness namely, P. W. 1 Arun Kumar Singh had also received the injuries and therefore, his presence on the spot cannot be doubted. 13. In the instant case, it is not disputed that there is a long standing enmity between the accused- persons on one side and the complainant, on the other side. The enmity is a double edged weapon and, therefore, the accused had a motive to comtnit the murder and on the other hand the complainant had also sufficient motive to falsely implicate the accused-persons. It is also not disputed that all the three eye-witnesses examined in this case are partisan and inimical and no independent witness came forward to support the prose cution case. It is also not disputed that P. W. 1 Arun Kumar Singh was an accused in Onkar's murder case and he was assigned a specific role firing, but even then no one caused any serious jury to him. It is also not disputed that the deceased (Surendra Singh) who was armed with rifle did not try to use it even though, he was chased upto a distance of 2j furlongs. There is no explanation on the record to show as to how the rifle of deceased Surendra Singh was found broken in pieces. It is also the case of the prosecution that three of the appellants were armed with fire-arms and the also fired their fire arm but no injury was caused to deceased except injury No. 4 to the com plainant. 14. In the instant case, the prosecution examined three eye-witnesses in support of its case. P. W. 1 Arun Kumar Singh is the complainant and son of decease ! Surendra Singh. It is the case of the prosecution that Onkar, the brother of Shiv Shanker appellant was killed and, therefore, in order to take revenge, the accused-persons committed this murder. It is not disputed that P. W. 1 Arun Kumar Singh was one of the accused in Onkar's murder case and he was assigned the role of firing. It is also alleged that Surendra Singh (deceased) was not accused in Onkar's murder case. According to the prosecution case, Arun Kumar Singh accompanied the deceased upto the field and, thereafter, returned with the deceased at the time of the incident. It is also alleged that both of them were chased by the accused- persons and the accused-persons assaulted the deceased in the field of Ram Singh Teli. P. W. 1 Arun Kumar Singh was also there and was assaulted by the accused-persons. It is not disputed that at the time of the assault on the deceased, he was very close to the deceased (Surendra Singh ). In these circumstances, it is strange that the accused-persons instead of killing P. W. I Arun Kumar Singh, killed Surendra Singh who was not accused in Onkar's murder case and secondly, it is also not probable that the accused-persons will cause only simple and superficial injuries on the non-vital part of the body of Arun Kumar Singh who had taken active role in the murder of Onkar, the brother of Sheo Shanker, accused. The injuries found on the body of P. W. 1 Arun Kumar Singh all are on non-vital part and are simple injuries. From the perusal of the injuries it appears that the accused did not assault him but very simple blows were given to him. In these circumstances, in our opinion, the presence of Arun Kumar Singh is doubtful at the time of the incident. Apart from this, P. W. 1 Arun Kumar Singh has no reason to accompany Surendra Singh to the said field. He himself stated that he had gone there without any reason. Again, he was medically examined by P. W. 7 Dr. Jagdish on the next day, the explanation given by P. W. 1 Arun Kumar Singh that on the 26-3-84, he was sent to the P. H. C. but as the doctors were not available in the hospital, therefore, his injuries could not be examined on 26-3-84. On the other hanu P. W. 7 Dr. Jagdish in his cross-examination admits that there are two doctors in the P. H. C. and both of them live in the hospital compound and therefore the explanation given by P. W. 1 Arun Kumar Singh is not correct. Again, if the doctors were not available in the Hospital and he waited there then the CTpmpounder must have made some entry in the Chitthi Majroobi or he would have given some medical first aid to the injured. In any case, it is the duty of the prosecution to explain this delay and in the absence of any such explanation from the doctor, it is not possible to believe the state ment of P. W. 1 Arun Kumar Singh that his injuries could not be examined due to absence of the doctor. This delay of examination the injuries of P. W. 1 Arun Kumar Singh coupled with the facts that Arun Kumar Singh had only simple and superficial injuries throws doubt about the genuineness of these injuries and possibility of the fact that these injuries were fabricated later on cannot be excluded. It may be pointed out here that P. W. 2 Hari Ram in his statement under Action 161, Cr. P. C. did not say that P. W. 1 Arun Kumar Singh had also received injuries. This fact, further throws doubt about the presence of P. W. 1 Arun Kumar Singh at the time of the incident. Another important feature is that in the F. I. R, he stated that Sheo Shanker fired his gun causing injuries on the head of deceased Surendra Singh and the deceased fell down receiving this head injury. P. W. 5 Dr. R. K. Sachan who conducted the autopsy en the dead body of deceased Surendra Singh did not find any injury on the head of Surendra Singh and there was only one fire-arm injury on the chin of the deceased P. W, 1 Arun Kumar Singh further stated before the Sessions Judge that Sheo Shanker, accused fired his gun causing injuries on the temple of the deceased There is no explanation as to how the rifle of the deceased was found broken on the spot. The learned Sessions Judge has given explanation that the same was broken in maipit when the deceased tried to save himself from the blows but the same did not find support from the oral testimony because no one has stated that the Deceased tried to save himself with the help of his rifle. P. W. 6 Raghuraj Singh who conducted the investigation and prepared the site plan Ext. Ka-12 with the help of the complainant Arun Kumar Singh, showed the place of firing by letter ' (' and the distance of the place 'f' and place 'e' where the deceased (Surendra Singh) fell down is 20 steps. This shows that Sheo Shanker, appel lant fired his gun from a distance of 20 steps and if the same is accepted, then also the prosecution case becomes doubtful because the injury No. 4 cannot be said to be caused from a distance of 20 steps. According to the prosecu tion case, the injury no. 4 was caused from the close range. However, looking into the nature of the case, it is not possible to believe that the fire arm which was fired from a close range will cause only tattooing and blackening and nothing else. There is neither any penetration nor any other injury. P. W. 1 Arun Kumar Singh further admits that he did not know the name of the person from whose field, the accused-persons came out and challenged them. He admits that he as well as the deceased raised an alarm while they were running away but no one came at that time which is not probable because according to the prosecution case, they were chased upto 2 furlongs. This means, that no other person has witnessed the chas ing of the deceased and the complainant by the accused- persons ; but the same is not believable. P. W. 1 Arun Kumar Singh further stated he had gone to the field alongwith the deceased in connection with harvesting of the Arhar crop. It is also alleged by him that this field belongs to them, but he did not even know the number of the said field nor being able to disclose the boundary as well as the names of the other witnesses who had their fields adjoining to this field. He further stated that the distance of the Galiyaraj and the field from where the accused came out was about 50 steps. If the ] distance was 50 steps, then, it is not possible to belive that the deceased Surendra Singh who had magazine fitted rifle with him had no opportunity to use his rifle. However, P. W. 6 S I. Raghuraj showed this distance in the site plan Ext. Ka-10 as 12 steps only. In his cross- examination he tried to conceal his friendship with P. W. 2 Hari Ram. In his cross-examination, he stated that he did not know the name of the father or brother of Hari Ram or as to whether his father was alive or not. However, in the last. he admits that he has friendship with Hari Ram and used to go to his house. If he has friendship and used to go to his house, then it is not possible that he did not know about the family of Hari Ram. It appears in order to show him an independent witness, he tried to conceal all these facts. 15. In view of these infirmities and improbabilities in our opinion, the presence of this witness at the time of the incident is highly doubtful and, therefore, no reliance can be placed on his testimony. 16. Another witness is P. W. 2 Hari Ram. P. W. 2 Hari Ram is also not independent witness because P. W. 2 Hari Ram admits that he used to visit his house and has friendship with Arun Kumar. According to P. W. 2 Hari Ram, he had gone to village Rampur to see his field and thereafter, he was going from village- Rampur to village Seemau to see his relation who was ill. It is alleged that in the way he witnessed the incident. In the cross-examination, he admits that he had jotbahi and had also paid a sum of Ps. 7. 50 as land revenue in respect of the field which lies in village Rampur. It is strange that he did not know the area and boundary of the said field. He further admits that his name is recorded on this field from the last about 2 years. On behalf of the defence this fact was challenged and one witness Mool Chandra, Lekphal of the village was examined as D. W. 1. D. W. 1 Mool Chandra in his statement clearly stated that Hari Ram had no field in village Rampur. The relevant portion of the statement of D, W. 1 Mool Chandra runs as below : Hindi 17. Apart from this, P. W. 2 Hari Ram tried to conceal his relation with the complainant. He admits that Jai Jai Ram is the son of his uncle but shows his ignorance as to whether Jai Jai Ram was a witness in Shitla Singh's murder case. However, the defence filed a copy of the charge sheet E*t. K. ha-3 to show that Jai Jai Ram was one of the witnesses in Shitla Singh's murder case. He further stated that his statement was recorded by 1he Investigating Officer, on the third day of the incident. From the perusal of the said statement, it appears that he is a chance witness and further in view of the statement of D. W. 1 Mool Chandra, it is not possible to believe thaf this witness had any field in village Rampur, therefore his contention that he had gone to see his field not acceptable. It may be pointed out here that there is nothing oc the record to show any enmity or reason against D. W. 1 Mool Chandra and, therefore, it is not possible for us to discard his testimony. 18. The last witness is P. W. 3 Kalloo who is admittedly labourer of the deceased. He further stated that he had gone to the field of the deceased for harvesting the Arhar crop but there is nothing on the record to show as to why this witness was returning with the deceased when the harvesting of the crop in the said field was going on. According to the prosecution case, this witness had gone there to cut the crop. It is also their case that they harvested the crop up to 9 a. m. and the harvested crop was loaded on the bullock-cart. It is also the case of the prosecution that harvesting of the crop was not finished and the same was going on at the time of the incident. If the harvesting of the crop was going on, then the case of the prosecution that P W. 3 Kalloo and Mulla accompanied the deceased is not believable, specially when the cart was driven by another person Bhullor. According to the prosecution, they were engaged in harvesting the crop, therefore, in our opinion thoy would not accompany the deceased because the harvesting was going on the same was not finished. This witness also did not even know the boundary of the field in which he had harvested the crop just before the incident. In these circumstances it cannot be said that this witness is a reliable or truthfull witness, 19. The learned counsel for the appellants further attacked the time of the incident. According to the prosecution case, the incident took place at about 9 a. ra. but this time of incident did not find support from the medical evidence, P. W. 5 Dr. R. K. Sachan who conducted the autopsy on the dead body of deceased Surendra Singh found the stomach of the deceased empty. The doctor further found the small intestine full of gases and digested materials and the large intestine of the deceased was also found full of faecal matters and gases. This itself shows that the deceased had not taken anything within 6-7 hours of his death. P. W. 5 Dr. R. K. Sachan also stated that Surendra Singh (deceased) must have taken his food before 6-7 hours, it is general practice of the village persons to go for ease in early hours of the morning and, therefore, after taking something, they used to go to the field. In the instant case, the contents of the large intestine celery show that the deceased had not eased himself by the time of the incident, otherwise the large intestine will not contain the faecal matters and gases. It may be pointed out here that the deceased was killed at the outskirt of the village and, therefore, the learned counsel for the appellants contended that the possibility of the fact that he was killed when he had gone to ease himself, cannot be ruled cut. It may be pointed out here that there is nothing on the record to corroborate the prosecution story about cutting of the Arhar crop and taking it to the village on the bullock-cart. It is not disputed that the Investigating Officer had neither found any cart loaded with Arhar crop in the Galiyara nor he had inspected the Arhar crop alleged to be stored in the Khalihan. The investigating Officer also did not inspect the field in which it is said that the Arhar crop was standing and was harvested on the date of the incident. It is not possible to believe that the deceased had not eased himself upto 9 a. m. , specially when it is not disputed that he was supervising the harvesting of the Arhar crop in the fied. In fact the above mentioned facts lend support to the defence version that the incident took place in early hours of the morning and not at 9 a. m. as alleged by the prosecution. 20. The next question raised by the learned counsel for the appellants is that the manner of assault on the deceased as alleged by the prosecution witnesses do not support the story set up by the prosecution. According to prosecution case the shot fired by Sheo Shanker hit the deceased on his skull. There is no fire-arm injury on the skull. There is one fire-arm injury on the chin of the deceased. Again this injury is only tattooing and blackening and nothing else. There is no penetration or any other wound except the aforesaid injury and there is nothing on the record to show as to where the pellets had gone. The Additional Government Advocate in order to explain this injury contended that it is the prosecution case that the deceased was chased by Sheo Shanker, appellant who also fired his gun in running position, therefore, it appears that the gun-powder caused this tattooing and blackening but the pellets missed the object. It is not possible to believe that all the pellets missed the object and only the gun- powder caused these injuries. It may be pointed out here that if the shot was fired from a close range, then the shot enters in masses and it will also produce an entrance hole. Again if there is no exit wound then the pellets must have been recovered from the dead body. As pointed out above, the injury No. 4 is nothing except tattooing and blackening, therefore, in these circumstances it is not possible for us to believe the prosecution case that Sheo Shanker fired his gun at the deceased from a close range. Another important feature is that the prosecution before the trial Judge tried to explain this discrepancy by recalling the doctor and examining him further on the ground that the injury No. I which is on the head was the result of the fire-arm. However, the doctor overruled this possibility and clearly stated that the injury No. 1 could not be caused by the fire-arm. The court in the last also cross-examined the doctor but the doctor consistently stated that the injury No. 1 could not be caused by the fire-arm. In these circum stances, the medical evidence also belies the prosecution case and at least a doubt arose about the genuineness of the prosecution case. 21. Another important feature which makes the prosecution case doubt ful is the investigation and the circumstances in which the F. I. R. was lodged. According to the prosecution, the F. I. R. was lodged at 11 15 a. m. at P. S. Auras and, thereafter, the case etc. was registered at the P. S. it is said that after registration of the case, the investigation was entrusted to P. W. 6, S I. Raghuraj who recorded the statement of P. W. 1 Arun Kumar Singh at the police station and thereafter proceeded to the place of the incident alongwith constables including P. W. 4 Constable Shatrughan. P. W. 6, S. 1. Raghuraj Sineh has not mentioned the time about start of the investigation but he stated that he proceeded to the place of the incident at about 12 or 12. 30 noon. He further stated that he prepared the inquest and, thereafter, handed over the dead body of deceased Surendra Singh to P. W. 4 Constable Shatrugnan at about 2. 30 p. m. The defence suggestion is that in fact Surendra Singh, deceased was killed in the early hours of day and on coming to know of this incident, P. W. I Arun Kumar Singh rushed to P. S, Auras reaching there at about 9'a m and informed the police about the case. On behalf of the defence, it is further alleged that, thereafter, the Investigating Officer alongwith the police force reached the village and with the consultation of the police, the FIR was prepared and, thereafter, the same was lodged at P. S. Auras. No doubt, P. W. 6 S. I. Raghuraj denied this suggestion but P. W. 4 Shatrughan in his cross- examination admits that about 9 a. m. Arun Kumar Singh came to the police station and half an hour thereafter, the Darogaji and other constable including P. W. 4 Shatrughan went to the village of the incident. He further admits that he returned alongwith the sealed dead body of Surendra Singh (deceased) and reached P. S. Auras at 3.-Op. m. It is not dispute,: that the notice station Auras lies infront of the road. This witness, reasons best known to the prosecution, is neither declared hostile nor cross- examined by the prose cution and therefore, we find no ground for discarding his testimony. The learned trill Judge while explaining this infirmity observed that P. W. 4 Shatruahan Lal, Constable appears to be sided with the defence bat there is nothing on the record to suggest that P. W. 4 Constable thatnighiu Lal has taken side with the defence. 22 Another important feature is that there is a great delay in reaching the dead body of deceased Surendra Singh to District Hospital for post-mortem. According to the investigating Officer, he handed over the dead body of Surendra Singh to P. W. 4 Constable Shatrughan Lal at about 2. 30 It is not deputed that the dead body was brought by P. W. 4 Shatrughan Lal Constable on a tractor. The distance of the district mortuary is aoout 46 Kms from the police station P. W. 4 Constable Shatrughan Lal staled that he started from the village immediately thereafter and reached P. S. Auras at about 3 30 p m. and proceeded to district hospital straightaway. However, theentryin the police line, Rae Bareli Ext. Ka-6 shows that the dead body reached there on March 27, 1984 at 11. 50 a. m. This unexplained delay also makes the F I. R, as well as the peosecution case doubtful. If the proseution case alleged by the prosecution witnesses is correct, then the dead body m Share the district hospital on March 26, 1984 itself. The mvosti Sation conducted by P. W. 6 S. I. Raghuraj is also not fee from doubt. He conducted the investigation but did not mention the time etc. while conducting the Investigating Officer has wrongly shown the place of firing of the gun by Sheo Shanker, appellant. The Investigating Officer further stated that P. W. 1 Arun Kumar Singh reached the village at about 6 or 6. 30 p. m. and then, he prepared the site plant whereas P. W. I Arun Kumar Singh stated that he reached the place of the incident at about 3. 30 p. m. and he found the dead body of deceased Sutendra Singh in a sealed condition. The Investigating Officer did not care to see the field of the deceased where it was alleged that harvest ing of the Arhar crop was going on at the time of the incident. He also did not care to see or take into his custody the cart or the Arhar crop which was alleged to be harvested on the said date. Apart from the testimony of P. W. 1 Arun Kumar Singh and P. W. 3 Kalloo, there is nothing on the record to show that any such crop was cut on the said date and further the incident took place when the same was being brought to Khalihan. As pointed out above, the story of cutting of Arhar crop is also not probable because according to the prosecution case, cutting of the Arhar crop was going on even at the time of the incident by other two labourers, and, therefore, if the same is believed, then there is no explanation as to why P. W 3 Kalloo and Mulloo were returning with the deceased. P. W. 3 Kalloo and Mulloo had gone to the field and admittedly engaged for the purpose of cutting of the Arhar crop and, therefore, the story of their returning with the deceased when the harvesting of the crop was going on is not believable. 23. In view of these infirmities and improbabilities in our opinion, the learned Sessions Judge committed an error in holding that the prosecution has successfully proved the guilt of the appellants beyond reasonable doubt. In our opinion, the prosecution has miserably failed ;to prove the guilt of the appel lants, and therefore, the appellants are entitled to get benefit of doubt. 24. In the result, the present criminal appeal No. 157 of 1986 is hereby allowed The conviction and sentence awarded by the trial Judge to the appel lants are hereby, set aside. All the appellants are on bail. They need not surrender. Their bail bonds are hereby, cancelled and sureties thereof stand discharged. Appeal allowed. Added further ; The above noted appeal has been allowed in toto but it appears that in the operative portion it is not mentioned that appellants Nos. 1, 2 and 6 who are in Jail be released forthwith unless wanted in any other case As the appeal has been allowed, therefore, it will impliealy be presumed that the appellants who are in Jail be released forthwith. However, we order that appellants Nos. 1, 2 and 6 be released from Jail forthwith unless wanted in any other case. .;