Chandra Prakash, J. - (1.) THIS is an appeal against the order, dated May 19, 1973, of Shri M. C. Agarwal, Sessions Judge, Fatehpur, convicting the appellant Ganga Ram, Moti Ram and Murli under section 304/34 I. P. C. and sentencing each of then to five years' R. I. Murli appellant is the real uncle of Ganga Ram appellant and the appellants are residents of village Mukandipur, police station. Chandpur, district Fatehpur, Daya Shanker (deceased) was the resident of village Buranda, police station, Chandpur aforesaid. The deceased was the real brother of Rama Shanker (P. W. 3), who is the complainant in this case.
(2.) ALI the three appellants tried under section 302/34, I. P. C. for committing the murder of one Daya Shanker. The prosecution story in brief was as follows. Daya Shanker (deceased) had taken a field of Gore Lal (P. W. 1) for a period of one year for the consideration of Rs. 150.00 on rent. Daya Shanker has shown wheat crop in it. It is said that on the night of January 31, 1969 at about 10 O'clock Daya Shanker (deceased) along with his brother Rama Shanker (P. W. 3) went to the aforesaid field for irrigating it. Ganga Ram appellant stopped the water going into the filed of Daya Shanker. Daya Shanker with his lantern in his hand went towards the field of Ganga Ram. He found the three appellants working there. He also found chat the appellants had put obstruction in the water channel of Daya Shanker. Daya Shanker (deceased) protested and wanted to remove the obstruction. On this the appellants delivered lathi blows on Daya Shanker (deceased). The incident is said to have been by Gore Lal (P. W. 1), Rama Shanker (P. W. 2) and Rama Shanker (P. W. 3). The first information report (Ex-Ka-l) of the incident was lodged by Rama Shanker (P. W. 3) at police station, Chandpur at 3.05 a.m. on February l, 1969. The police station was at a distance of three miles from the scene on incident. The report was entered in the Register of Non-cognizable Offences. It appears that next morning Daya Shanker died. The case was converted into one under section 304 I.P.C. and was investigated. Dr. Ishwar Sahai, conducted the post-mortem examination of the body of Daya Shanker on February 2, 1969 at 2.30 p.m. He found the following atne-mortem injuries : 1. Lacerated would 1"X1" bone deep on middle part of the hand with a contusion 3"X1" around it. 2. Contusion 2"X1" on the left temporal region. 3. Contusion 2-l/2"Xl" on the right forehead just above the eyc brow with right eye black. 4. Contusion 3"X2" over the right temple and adjacent part of the face and head. 5. Contusion 7"X4" verticle on the right side face. 6. Contusion 4"X1" on the left side chest 8" below the axillary lines. 7. Contusion 3"X2" .on the left acapular region in the middle. 8. Contusion 5 "X3" on the right shoulder joint and adjacent part of the arm. 9. Contusion 4"X2" over the right temporal region. On internal examination Dr. Ishwar Sahai found a big haematima over the scalp. There was depressed communited fracture of the lower temporal bone. There was communited fissured fracture of the right temporal bone. There was fissured fracture of the middle cranial fossae. The death of Daya Shanker, in the opinion of Dr. Ishwar Sahai, was due to shock and haemorrhage following the above injuries. After investigation all the appellants were challenged under section 302/34 I. P. C. The appellants pleaded not guilty. They denied to have assaulted Daya Shanker (deceased) altogether. Their defence was that Daya Shanker (deceased) was killed by strangers at an odd hour of the night and nobody saw the assault and the appellants were impleaded on account of enmity. The prosecution examined six witnesses in support of its story. The appellants examined two witnesses in defence. One witness was examined by the Court below under section 540 Cr. P. C. After considering the entire evidence on record the Court below found no case against the appellants under section 302/34 I.P.C. The appellants were, however, found guilty under section 304/34 j. P. C. as sentenced as noted above. The appellants have now come before me in appeal. It is contended on behalf of the appellants that their conviction under section 304/34 I. P. C. is not warranted by the testimony on record. After hearing the learned counsel appearing on behalf of the State and also after going through the record I have come to the conclusion that the conviction of the appellants cannot be allowed to stand. The prosecution story was narrated by Rama Shanker (P. W. 3), who also proved the first information report (Ex. Ka-1) and his testimony was corroborated by Gore Lal (P. W. 1) and Rama Shanker (P. W. 2).
(3.) THE complainant Rama Shanker (P. W. 3) has been disbelieved by the Court below and after the rejection of his testimony the corroborative value of the first information report also falls to the ground. The Court below, however, accepted the testimony of Gore Lal (P. W. 1) and Rama Shanker (P. W. 2), but in this the Court below does not appear to be right. It is not disputed that the night in which the incident took place 'was moon-lit night. But even in moon-lit night known persons can be recognised from a short distance and not from a place far away. The prosecution was aware of the insufficiency of light and, therefore, a lantern was introduced in the hands of Daya Shanker (deceased). No reference was made to any lantern in the first information report (Ex.-Ka-l). The light of the lantern was introduced for the first time on February 3, 1969 when Ram Sagar Yadav (P.W. 6) took Investigation from Devendra Nath Chaturvedi (P. W. 5) Rama Shanker (P. W. 3) does not make a reference of any lantern light in his statement. I am of the opinion that there was no lantern light with Daya Shanker and this is an after-thought and subsequent development in order to enable the eye-witnesses to recognise the assailants.;