S. K. SHARMA, J. - (1.) THE appellants, eight in number, were accused on the file of learned Additional Sessions Judge, No. 2, Deeg (Bharatpur) bearing Sessions Case No. 260/2002. Learned Judge vide judgment dated February 24, 2003 convicted and sentenced the appellants as under:- U/s. 302/149 IPC: Each to suffer Imprisonment for life and fine of Rs. 500/-, in default to further suffer one Month Rigorous Imprisonment. U/s. 332/149 IPC: Each to suffer Rigorous Imprisonment for two years. U/s. 147 IPC: Each to suffer Rigorous Imprisonment for six months. U/s. 341 IPC: Each to suffer Simple Imprisonment for one month. Substantial sentences were directed to run concurrently.
(2.) IT is the prosecution case that on July 1, 2001 around 8. 40 AM or in the course of investigation of Criminal Case No. 113/2001 registered under Section 147, 148, 149, 307, 302, 323 and 341 IPC, Damodar Singh, ASI of Police Station Sikri and Constables Girwar Singh and Sampat Singh were carrying the dead body of deceased Idris in private jeep No. HR-51/ B6244. As many as sixteen relatives of Idris including those who sustained injuries in the incident also boarded in the jeep. Their names were Mumrej, Kallu, Iqbal, Iliyas, Rahish, Juhru, Sahji, Marium, Rukiya, Issan, Sharif, Deena, Ibbar, Nasru, Subadi and Azad. Hamid was the driver of the jeep. When the jeep was passing near the canal Tutuwali, Bannu a person belonging to opposite group was seen coming on motor cycle. Kallu and Iqbal jumped down form the jeep, got the motor cycle halted and pushed Bannu down. Thereafter Kalu, Iqbal, Subadi, Ibbar,rahish, Sharif, Azad and Nasru caught hold of Bannu and Kalu,azad and Ibbar inflicted injuries on his head with stones and killed Bannu on the spot. Damodar Singh, Girwar Singh and Sampat Singh made unsuccessful attempt to intervene and sustained injuries. Constable Sampat Singh was left with the dead body of Bannu and Damodar Singh proceeded with Kalu, Iqbal, Subuddi, Mumrej, Iliyas, Nasru, Juhru and Azad to Police Station Nagar and they were handed over to Police. Damodar Singh lodged written report at 10. 15 AM and a case under Section 147, 149, 302, 341, 336, 332, 353 and 323 IPC was registered and investigation commenced. On completion of investigation charge sheet was filed. In due course the case came up for trial before the learned Additional Sessions Judge. No. 2 Deeg. Charges under Sections 147, 341, 332/149, 302 and 302/149 IPC were framed against the appellants, who denied the charges and claimed trial. The prosecution in support of its case examined as may as 14 witnesses and got exhibited the documents. In the explanation under Sec. 313 Cr. P. C. , the appellants claimed innocence. The appellant Subadi stated that on July 1, 2001, Damodar, ASI asked him to take the dead body of Idrish for post mortem in private jeep of Hameed. He thereafter proceeded with the dead body in the said jeep Damodar ASI and others constables were not in the jeep and they proceeded in a Maruti car. When the jeep reached near canal `tutuwali', they found that people gathered and dead body of Bannu was lying. IT was revealed by the crowed that Bannu Khan died in a an accident. Damodar, ASI, Girwar Singh and Sampat Singh reached there in Maruti car after some time. A false case was registered by Damodar, ASI against them in order to save his service. Taiyab Hussain (DW. 1) was examined in defence by the appellants. Learned trial Judge on hearing the final submissions convicted and sentenced the appellants as indicated herein above. We have heard the submissions advanced before us and perused the record. Medical Board comprising of Dr. Daulat Ram Patel (PW. 5) and Dr. Gopal Prasad Sharma (PW. 6), performed autopsy on the dead body of Bannu Khan and as per post mortem report (Ex. P-11) found following antemortem injuries:- (i) Lacerated wound 4 x 2 x Bone deep occipital region. (ii) Lacerated wound 2 x 1 x Bone deep occipital region. (iii) Lacerated wound 3 x 1 x Bone deep occipital region. (iv) Lacerated wound 5 x 2 x Bone deep parietal region. (v) Lacerated wound 6 x 1 x Bone deep left parietal region. (iv) Lacerated wound 5 x 1 x Bone deep right parietal region. Cause of death was ante mortem head injuries. Having scanned impugned judgment of learned trial judge, we find that conviction of appellants in primarily based on the testimony of Damodar Singh, ASI (PW. 10), Constable Girwar Singh (PW. 3) and Constable Sampat Singh (PW. 13 ). Damodar Singh in his deposition corroborated the facts incorporated in the FIR and stated that the appellants were the persons who took law in their hands and killed Bannu. In the cross examination Damodar Singh deposed that he did not hire the jeep, it got hired by the parties. He admitted that he did not enter the details of incident in the Rojnamcha of Police Station Nagar. He however handed over Subadi and others in the custody of Police Station Nagar. Damodar Singh further stated that while he was going in the jeep he was unarmed. He admitted to have drawn the Inquest report (Ex. P-2) and memo of dead body (Ex. D-3) in his own hand writing under the supervision of Mehtab Singh, Investigating Officer. He however denied this suggestion that in order to save himself, he falsely implicated the appellants. Constables Girwar Singh and Sampat Singh supported the version narrated by Damodar Singh. Sampat Singh in his cross examination however admitted that Damodar Singh, ASI was armed with revolver at the time of incident. Hamid Khan (PW. 8) deposed that his jeep No. HR-51/b6244 was hired by Subadi. In addition to the dead body there were seven-eight persons including three-four women sitting in the jeep. He was driving the jeep and no police person was with them in the jeep. Hamid Khan was declared hostile. Mehtab Singh, Investigating Officer (PW. 14) in his cross examination stated that Inquest report, memos related to dead body of Bannu and site plan were drawn by Damodar Singh, ASI in his presence. Dr. Girish Kumar Goyal (PW. 7) examined the injuries sustained by Damodar Singh, Girwar Singh and Sampat Singh and stated that the injuries could be self inflicted. Salient features of the case noticed by us may be summed up thus:- (i) As per FIR (Ex. P-16) Damodar Singh, ASI (PW. 10), Girwar Singh Constable (PW. 13), Sampat Singh Constable (PW. 13), Hamid Khan Driver (PW. 8) and sixteen relatives of deceased Idris were in the jeep. In addition of these persons dead body of Idris was also lying. (ii) Informant Damodar Singh, ASI, who was the star witness of the prosecution, assisted Mehtab Singh, Investigating Officer, in the investigation of the case and drew memos of site plan, inquest report of dead body in his own hand writing. (iii) Hamid Khan Driver categorically stated that Subadi hired his jeep in consideration of rent of Rs. 300/- to take deed body of Idris to Hospital Nagar for autopsy. As many as seven- eight mean and women were in the jeep with the dead body and no police person was with them. (iv) Damodar Singh, ASI did not enter the details of incident in the Rojnamcha of police station Nagar. Although the appellants were given in the custody of Police Station Nagar around 10 AM, they were shown arrested in the evening. (v) Appellant Subadi in his explanation under section 313 Cr. P. C. Stated that Damodar Singh, ASI, Girwar Singh and Sampat Singh were not sitting in the jeep and they reached at the spot in Maruti car after some time. (vi) As per testimony of Sampat Singh, Constable, Damodar Singh, ASI was armed with pistol, whereas Damodar Singh deposed that he was unarmed. (vii) Injuries sustained by Damodar Singh, ASI, Girwar Singh and Sampat Singh were examined by Dr. Girish Kumar Goyal (PW. 7) at Sikri at 9. 45 PM. Whereas post mortem on the dead body was performed by medical officers at Hospital Nagar. No explanation was given by Damodar Singh, Girwar Singh and Sampat Singh as to why they did not get their injuries examined at Hospital Nagar just after the incident, why the examination of their injuries took twelve hours.
(3.) THE Evidence Act does not purport to lay down any rule as to the weight to be attached to the evidence when admitted, nor is any such rule possible for proper appreciation of evidence. For weighing evidence and drawing inferences from it, there can be no canon. Each case presents its own peculiarities and common sense shrewdness must be brought to bear upon the facts elicited in every case. THE probabilities of a case are a material test in judging of the credibility of a witness. By probability is meant the likelihood of anything to be true, deduced from its conformity to our knowledge, observation and experience. When a supposed fact is so repugnant to the laws of nature that no amount of evidence could induce us to believe it, such supposed fact is said to be impossible or physically impossible. THEre are two things which must never be lost sight of when weighing testimony of any kind: (i) the consistency of the different parts of narration; (ii) the possibility or probability, the impossibility or improbability, of the the matters related-which afford a sort of corroborative or counter evidence of those matters. THE onus of proving everything essential to the establishment of the charge against the accused, lies on the prosecutor. Inspite of the presumption of truth attached to oral evidence under oath if the court is not satisfied, the evidence inspite of oath is of no avail. Bearing these principles in mind when we weigh the testimony of Damodar Singh, ASI (PW. 10), Girwar Singh (PW. 3) and Sampat Singh (PW. 13) from the point of view of trustworthiness, we find the statements of these witnesses highly unreliable. It is difficult to believe that nineteen persons including driver Hamid Khan with dead body of Idris could sit in the jeep. There is no reason in the facts and circumstances of the case to disbelieve the testimony of Hamid Khan Driver (PW. 8) who stated that no police person was sitting in the jeep. As per the evidence of Sampat Singh, Constable, Damodar Singh, ASI was armed with pistol. Had he been present at the time of incident, he could have controlled the situation by opening fire in the air. Conduct of Damodar Singh, ASI in not entering the details of incident in the Rojnamcha of Police Station Nagar, in not getting his injuries examined in the Primary Health Centre Nagar just after the incident and in assisting Mehtab Singh, SHO in the investigation by drawing memos of site plan, inquest report etc. is highly dubious. It is highly unlikely that there police persons had traveled in the jeep with a dead body and eighteen other persons. We find the presence of Damodar Singh, ASI, Girwar Singh and Sampat Singh at the time of incident highly unnatural. Learned trial Judge did not appreciate the evidence of these witnesses in right perspective. The prosecution,in our considered opinion failed to establish the guilt of the appellants beyond reasonable doubt. For the reasons afore mentioned, we allow the instant appeal and set aside the impugned judgment of conviction and order of sentence dated February 24, 2003 passed by learned Additional Sessions Judge No. 2, Deeg. While setting aside conviction and sentence of the appellants Subadi, Mumrej, Nasru, Kalu, Azad, Juhru, Illiyas and Iqbal we acquit them of the charges under sections 302/149, 332/149, 147 and 341 IPC. The appellant Juhru is on bail, he need not to surrender. His bail bonds stand discharged. Accused appellants Subadi, Mumrej, Nasru, Kalu, Azad, Illiyas and Iqbal are in custody. They shall be set at liberty forthwith if not required to be detained in any other case. . ;