- (1.) ONKARESHWAR Bhatt, J. Ram Lal alias Maiku alias Makku, Dhakan, Dwarika and Tauley have referred this appeal against the judgment and order dated 24-11-1980 passed by the then III Addl. Sessions Judge, Pilibhit in Sessions Trial No. 29 of 1980 whereby they have been convicted under Section 302/34 IPC and sentenced to imprisonment for life.
(2.) SARI G. S. Joshi, learned Counsel representing the appellant No. 3 Dwarika, and the learned AGA Sri M. C. Joshi have been heard. Sri P. N. Lal and Pandit Mohan Chandra representing the other appellants remained absent. Record of the case has also been carefully perused. In this case the appellants are alleged to have committed the murder of Komil, brother of Jhamman Lal PW 1, informant, on 12-7- 1979 after 9 p. m. infront of the house of Kundan Lal DW 1 by means of spear, knives and lathi. First Information Report of the occurrence was lodged on 12/13-7-1979 at 0. 10 hours. The informant and the deceased lived in village Maholia Police Station Bilsanda District Pilibhit. Appellant Dhakan and Dwarika are cousins of appellant Ram Lal while Tauley appellant is his brother-in- law. This relationship is admitted to the defence. Appellant Ram Lal, Dhakan and Dwarika also resided in village Maholia while appellant Tauley resided in village Pasiapur Police Station Banda District Shajahanpur. According to the prosecution, deceased Komil had illicit relations with Nanhi Devi, wife of appellant Ram Lal. Ram Lal left village Mahulia to live with appellant Tauley at village Pasiapur about six months prior to the occurrence giving a threat that on his return he would commit the murder of deceased Komil. The prosecution has examined Jhamman Lal PW 1, Bulaki Ram PW 2, Banwari Lal PW 3, Om Prakash PW 4 and Dori Lal PW 5 as witnesses of fact. Besides them, three formal witnesses have also been examined. Naresh Chandra Tyagi PW 7 is the Investigating Officer of the case. PW 8 Dr. Chandra Bhan Singh is the doctor who conducted the post-mortem examination on the dead body of deceased on 13- 7-1979 at 1 p. m. The doctor found six incised wounds, one constusion, and three abrasions on the dead body of the deceased. Internal damage was also found which is mentioned in the post-mortem examination report.
(3.) ALL the witnesses of fact, according to Jhamman Lal informant, are his collaterals. Banwari Lal PW 3 and PW 5 Dori Lal did not support the prosecution case and have been declared hostile. PW 4 Om Prakash did not name the appellants and has stated that he saw four persons running away whom he could not identify. Bulaki Ram PW 2 has stated that Ram Lal appellant was armed with spear while appellant Tauley and Dhakan were armed with knives and appellant Dwarika who is alleged to be armed with lathi was holding the legs of the deceased and assault on the deceased was being mounted by knife and spear. The appellants are alleged to have run away in the southern direction. The house of the informant is about 50 pace away from the well as shown in the site plan. The assault on the deceased was made towards south of the well at a distance of about fifteen paces. According to Jhamman Lal, he was first to reach the scene of occurrence when he heard the cries of the deceased. The informant claims to be carrying a torch with him. The other witnesses are alleged to have come at the scene of crime after the informant. The torch alleged to be carried by the informant was not shown by him to the Investigating Officer. The informant has stated that when he stood near the well he saw the assailants running away after leaving the dead body of the deceased. In no uncertain words he stated that he did not see the appellants assaulting the deceased but saw them running away from the dead body of the deceased. If the informant Jhamman Lal was the first person to reach the scene of occurrence and saw the assailants running away from that place, the claim of Bulaki Ram PW 2 that he saw the actual assault by spear and knife on the deceased is not worthy of any credence and reliance. The appellant Dwarika who is alleged to be armed with lathi did not assault the deceased even according to the statement of Bulaki Ram PW 2. Bulaki Ram stated that Dwarika held the legs of the deceased. The injuries on the person of deceased are six incised wounds. However, one of them was also found punctured. When Jhamman Lal had not seen the actual assault even, when he reached first, the narration of actual incident by Bulaki Ram PW 2 appears wholly unreliable and he cannot be termed to be wholly reliable witness. Since Jhamman Lal did not show his torch to the Investigating Officer, the source of light is also rendered doubtful. No implicit reliance can be placed on the testimony of the so-called eye-witnesses examined by the prosecution. Participation of all the four appellants in the murder of the deceased is wholly doubtful. The finding of their conviction cannot be sustained on the evidence on record and they are entitled to be given the benefit of doubt and are entitled to be acquitted. The appeal is allowed. The order of conviction and sentence of the appellants is set aside. The appellants are on bail. They need not surrender. Their bail bonds are cancelled and sureties discharged.;