U.S. Tripathi, J.@mdashAggrieved with the judgment and order dated 24.7.1981 in Sessions Trial No. 706 of 1980, passed by IInd Additional Sessions Judge, Shahjahanpur by which Appellants Deoli alias Ram Vir and Mahendra were convicted u/s 302 read with Section 34, I.P.C. and sentenced to imprisonment for life, have preferred this appeal.
2. The prosecution story briefly stated was that Pooran Lal, deceased was retired from Military services. Subedar (since acquitted by the trial court) father of Appellant Deoli was inimical with Pooran Lal deceased as he wanted to take manual work from the deceased which he refused and several criminal cases initiated by Subedar Singh had also taken place against Pooran Lal deceased. Appellant Mahendra was of the party of Subedar Singh. Two days before the occurrence of this case on Sunday a son was born in the family of Pooran Lal. A day before the occurrence of this case on Monday, Pooran Lal deceased along with his son Sukh Lal (P.W. 1) had gone to Shahjahanpur to call his daughter Smt. Ganga Devi (P.W. 2). In the afternoon of 30.10.1979 Pooran Lal and his son Sukh Lal (P.W. 1) were coming to their house along with Smt. Ganga Devi (P.W. 2). They came up to Kant by bus and thereafter were proceeding to their village on foot. At about 3.00 p.m. when the deceased reached on the way to village Umrao near canal and grove of Bhuja Yadav, Sukh Lal (P.W. 1) and Ganga Devi (P.W. 2) were two steps behind him. Appellants Deoli and Mahendra along with Subedar (since acquitted) and Rajendra, (absconding) emerged out from the bushes and surrounded the deceased. Rajendra Singh was having knife and others were having lathis. Subedar and Mahendra made the deceased fall down and Deoli pressed his neck with angochha and Rajendra inflicted knife blows on him. Sukh Lal (P.W. 1) and Ganga Devi (P.W. 2) raised alarm. Jagat Sahai (P.W. 3), brother of Sukh Lal (P.W. 1), who was grazing cattle in the grove of Brahma also came. They challenged the Appellants and other accused and then they ran away. The above witnesses came to the deceased and found him dead.
3. Sukh Lal (P.W. 1) came to bus stand Kant, where he prepared report Ext. Ka-1 and lodged the same at police station Kant at 4.30 p.m. On the basis of the above report a case was registered u/s 302, I.P.C. against Subedar Singh, Deoli, Mahendra and Rajendra Singh.
4. Investigation of the case was taken up by Sub-Inspector Siddu Singh (P.W. 5) and after interrogating Sukh Lal (P.W. 1) at the police station he came to the spot, where he conducted inquest of the dead body and sent it for post-mortem. He also collected blood stained and simple earth from the spot. The Investigating Officer recovered one cycle of the deceased from the spot an angochha was lying around the neck of the deceased, which was taken into possession by the Investigating Officer.
5. Autopsy on the dead body of Pooran Lal deceased was conducted on 31.10.1979 by Dr. C. P. Srivastava (P.W. 4), who found following ante-mortem injuries on his person:
(1) Stab wound 2-1/2 cm. ? 3/4 cm. ? muscle deep on the left side of neck below angle of lower jaw.
(2) Stab wound 2-1/2 cm. ? 1 cm. ? 1 cm. ? trachea cut on the front Rt. side of neck.
(3) Stab wound 1-1/2 cm. ? 1/2 cm. ? bone deep on Rt. cheek.
(4) Stab wound 1 cm. ? 1/4 cm. ? skin deep on Lt. upper eye lid.
(5) Incised wound 4 transverse 2-1/2 cm. ? 1/4 cm. ? skin, 3 cm. ? 1/4 cm. ? skin, 3-1/2 cm. ? 1/2 cm. ? skin, 2-1/2 cm. ? 1/4 cm. ? skin on the Rt. side back of neck.
(6) Incised wound 1 cm. ? 1/4 cm. ? skin below left ear.
Internal examination showed that trachea was cut below, larynx, carotid artery was cut on the Rt. side. Oesophagus was partly cut on right side. Cause of death was shock and haemorrhage as a result of ante-mortem injuries.
6. The Investigating Officer interrogated other witnesses and on completion of investigation submitted charge-sheet against the Appellants and Subedar Singh. Rajendra Singh was absconding.
7. Appellants and Subedar Singh were charged with the offence punishable u/s 302 read with Section 34, I.P.C. They pleaded not guilty and contended that they were falsely implicated on account of enmity, as well as on the instigation of Babu Ram and Ram Sharan with whom Sukh Lal was working. Subedar Singh further contended that he had heard that Pooran Lal deceased had gone to purchase she buffalo, but he could not purchase the same and while he was returning along with his son he was murdered.
8. The prosecution in support of its case examined Sukh Lal (P.W. 1), Ganga Devi (P.W. 2) and Jagat Sahai (P.W. 3) as witnesses of fact, besides Dr. C. P. Srivastava (P.W. 4) and Siddhoo Singh Investigating Officer (P.W. 5) as formal witnesses.
9. The learned Sessions Judge on considering the evidence of the prosecution held that the role assigned to Subedar Singh was that he was armed with lathi and he caught hold the feet of the deceased when he was fallen on the ground. He was old man of about 70 years and his role has also not been described in the F.I.R. and during investigation. He had also sent an application to the District Magistrate complaining the police force of P. S. Kant and, therefore, the participation of Subedar was highly doubtful. He further held that Appellant Deoli was assigned role of tying angochha and pressing neck of the deceased. The inquest report disclosed that the angochha was tied around the neck of deceased and there were swelling all around the neck, therefore, the participation of Appellant Deoli was proved to the hilt. He further held that the role assigned to Appellant Mahendra was that he also caught hold the deceased and made him immobile by pressing him on the ground. He was named in the F.I.R. and ocular witnesses also stated his role during investigation, therefore, his participation was also proved. With these findings the learned Sessions Judge acquitted Subedar Singh, but convicted and sentenced Appellants Deoli and Mahendra as mentioned above.
10. We have heard Sri P. N. Misra, learned Counsel for the Appellants and learned A.G.A. for the Respondent and have gone through the evidence on record.
11. Learned Counsel for the Appellants contended that presence of eye-witnesses Sukh Lal (P.W. 1), Ganga Devi (P.W. 2) and Jagat Sahai (P.W. 3) is doubtful as the Appellants and accused were having lathis and only co-accused Rajendra was having knife, but no attempt was made by the above witnesses to save the deceased, who was none else but their father. That medical report shows that only knife injuries were caused on the deceased and no other injury and, therefore, the role assigned to Appellants Deoli and Mahendra was not in conformity with the medical evidence and that on the same evidence one of the co-accused Subedar Singh was acquitted.
12. Sukh Lal (P.W. 1) stated that on the afternoon of the date of occurrence he was returning back from the matrimonial home of his sister Ganga Devi (P.W. 2) to his village and after getting down of the bus at Kant he along with the deceased and Ganga Devi (P.W. 2) was proceeding to his village on foot. When the deceased reached at the place of occurrence he and Ganga Devi (P.W. 2) were about 50 paces behind him. In the meantime, the Appellants along with Subedar Singh and Rajendra Singh emerged out and surrounded deceased. Rajendra Singh was having knife and others were having lathis. They made the deceased fall down. Deoli tied the neck of the deceased with an angochha and pressed the same. Rajendra Singh inflicted knife blows. He and his sister Ganga Devi (P.W. 2) raised alarm. Hearing their alarm his brother Jagat Sahai (P.W. 3) also came and on their challenge the Appellants and other accused ran away. Smt. Ganga Devi (P.W. 2) also stated the same fact and she further stated that Appellants Subedar Singh and Rajendra made her father fall down. Subedar caught hold the legs of the deceased and Deoli pressed his neck with an angochha. Mahendra sat on the chest of the deceased and caught hold his hands and then Rajendra Singh inflicted knife blows on him. Jagat Sahai (P.W. 3) stated that he was grazing cattle in the grove of Brahma and hearing alarm of his brother Sukh Lal deceased, and Ganga Devi came to the spot and saw that Subedar and Mahendra had pressed his father Pooran Lal and Rajendra was inflicting knife blows on him and Deoli had pressed the neck of the deceased with angochha.
13. None of the above eye-witnesses had sustained any injury and there is nothing in their evidence to show that they tried to save the deceased. Sukh Lal (P.W. 1) offered an explanation that when he reached near the field of Bhuja Yadav he lighted a Bidi. In the meantime, his father went few steps ahead. Smt. Ganga Devi also stated that when her brother Sukh Lal was lighting a Bidi, she also stopped and her father went some steps ahead. But their above explanation does not appear convincing as admittedly one leg of the deceased was defective and he was an old man of about 60 years. He was also proceeding on foot and he could not move faster than the above witnesses. Any how it is clear from the evidence on record that except Rajendra Singh, no other accused was having any deadly weapon and even then no attempt was made by any of the eye-witnesses to save the deceased. As held by the Apex Court in the case of Sucha Singh v. State of Punjab, 2003 (3) SC 1017: AIR 2003 SCW 3984, the failure of eye-witnesses not coming forward to rescue the victim is not a ground to discard their testimony and it would depend on many factors. If the witnesses were unarmed but the assailants were armed with deadly weapons, in such a case instinct of self preservation can be the dominant instinct. That being the position, their inaction in not coming to rescue of the deceased cannot be a ground for discarding their evidence. But in the instant case, except Rajendra Singh, other assailants were not armed with any deadly weapon, but they were having lathis and facts and circumstances of this case suggest that in case the deceased was attacked in the manner alleged by the prosecution. The eye-witnesses would have attempted to rescue the victim and their non-action makes the evidence improbable.
14. In the F.I.R. it was not mentioned that the Appellants Mahendra, Deoli and Subedar were having lathis. The role assigned to Appellant Mahendra in the F.I.R. was that he and Subedar had made the deceased fall down and pressed him on the ground. In their evidence the above ocular witnesses stated that the Appellant Mahendra was sitting on the chest of the deceased and had caught hold his hands. But there were no injury or scratch on the chest of the deceased. The deceased was old man of about 60 years and Mahendra was young boy and in case he was sitting on the chest of the deceased and was pressing his chest, some sort of internal injury must have been caused below the chest. Moreover, in causing knife injury on the deceased, it was not necessary to make him fall down. In case the deceased was made fall down with his face upwards, the knife injuries could not be caused on the back of the neck of the deceased. But the medical evidence shows that there were knife injuries on the front back right and left of his neck. This shows that the role of Appellant Mahendra in making the deceased fall down and sitting on his chest in order to facilitate co-accused Rajendra Singh to cause knife injures on him is highly improbable and the number of accused appears to have been exaggerated.
15. The role assigned to Appellant Deoli was that he tied angochha around the neck of the deceased and pressed his neck. Dr. C. P. Srivastava (P.W. 4), who conducted autopsy on the dead body of deceased had not found any ligature mark on the neck of the deceased. The trial court had taken note of the observation of the Investigating Officer in the inquest report and observed that the inquest report was prepared by Investigating Officer within two hours of the occurrence and it shows that an angochha was found tied around the neck of the deceased. It is also recited in the inquest report that there was swelling all around neck of the deceased and that a round mark arising from the tying of the neck by angochha was visible all around the neck of the deceased and it shows that angochha after tying on the neck of the deceased was pressed probably to strangulate him and therefore participation of Deoli accused was proved to the hilt. But if such marks were on the dead body it must have been noticed by Dr. C. P. Srivastava. It has not been clarified from the doctor that those marks would disappear shortly. The medical evidence further shows that trachea and oesophagus of deceased were cut. The swelling on the neck could also be possible by oedema or inflammation blocking the air passages or due to injury around the neck. Therefore, the medical evidence ruled out pressing of neck by tying angochha around it. In this way the role assigned to Appellant Deoli also appears improbable.
16. The main assailant Rajendra Singh is absconding and his trial has yet not taken place.
17. In view of our above discussions and observations we find that complicity of Appellants Mahendra and Deoli is highly doubtful and the possibility that their participation was exaggerated to increase the number of accused due to enmity with Subedar Singh cannot be easily ruled out.
18. In these circumstances Appellant Deoli and Mahendra are entitled to benefit of doubt and acquittal.
19. The appeal thus succeeds.
20. The appeal is accordingly allowed. Conviction and sentence of Appellants Deoli alias Ramvir and Mahendra u/s 302/34, I.P.C. are set aside and they are acquitted of the said offence. They are on bail. Their bail bonds are cancelled and sureties are discharged. They need not surrender.
