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Judgment
B.K. Sharma, J.—This is an appeal against the judgment dated 28.8.1995 and order of sentence dated 29.8.95 passed by Sri R.N. Verma, the then Additional Sessions Judge, Rampur in State v. Ahmad Jan and three Ors., S.T. No. 47 of 1992, u/s 302/34, I.P.C, police station Bilaspur, district Rampur, whereby he convicted all the four accused-Appellants, namely, Ahmad Jaan, Nabi Jaan, Ayub Khan and Shahin Khan, of the offence u/s 302/34, I.P.C. and sentenced each one of them to suffer rigorous imprisonment for life.
It is a double murder case. Mohd. Jaan Khan and Mohd. Rais Khan, were the two deceased in this case. The informant was Mohd. Akeel Khan (P.W. 1), son of Mohd. Jaan Khan deceased and brother of Mohd. Rayees Khan deceased.
Prior to the present occurrence, murder of Ali Jan, real brother of Ahmad Jan and Nabi Jan, present accused-Appellant Nos. 1 and 2 had taken place and therein the present informant Mohd. Akeel Khan (P.W. 1) and both the present deceased Mohd. Jaan Khan and Mohd. Rais Khan, were standing trial.
The prosecution story is that on 28.8.91, the date fixed in that murder case, the present informant Mohd. Akil Khan and both the present deceased Mohd. Jaan Khan and Mohd. Rais Khan, were going by a tempo, which was driven by Sri Prakash Singh driver at 8.45 a.m. for the check post in the village for the purpose of going to Courts of Rampur to appear on the date fixed in the aforesaid trial, that when the tempo reached at a distance of one km. towards the west of Bengali Colony towards Akeen Bilaspur, all the four accused-Appellants came out from the border of the road, that out of them Ahmad Jaan and Nabi Jaan were armed with fire-arm and Ayub Khan and Shahin Khan accused-Appellants were armed with petal, that they surrounded the tempo and exhorted, "MAAR LO SALON KO" and made fire, which struck both the present deceased and Ayub Khan and Shahin Khan accused-Appellants inflicted numerous injuries with petal on the bodies of the present deceased, that finding an opportunity the informant went away from the tempo and stood at a distance of 2 and 3 paces from there, that after committing the double murder, all the four accused-Appellants went away towards south in the sugarcane crop, that the occurrence was seen by Siraj Khan, Imran Khan, Shafiq Ahmad and Prakash driver but none of them helped the victims out of fear of the accused-Appellants. According to the prosecution, the F.I.R. of this occurrence was got scribed by the informant from Zameer Khan (P.W. 5) and the informant went to police station Bilaspur and lodged the F.I.R. of this occurrence there at 10.05 a.m. on the same day. on the basis of which chick report was prepared and a case was registered at the police station against all the four accused-Appellants.
The I.O. Surendra Singh. S.H.O., police station Bilaspur (P.W. 6) went to the spot accompanied by Sanjay Bhardwaj, S.S.I. (P.W. 3). The dead bodies of both the deceased were found lying inside the tempo in question at the spot. Inquest proceedings were taken by Sanjai Bharadwaj S.S.I, and the dead bodies were sent for postmortem. In spot inspection a purse and photo of Ahmad Jaan accused-Appellant was found lying at the spot.
After the investigation was completed, charge-sheet was submitted against all the four accused-Appellants and they were committed to the Court of Sessions for trial.
The postmortem on the dead body of Mohd. Jaan Khan deceased was performed by Dr. S.P. Singh (P.W. 7) on 29.8.91 at 12.30 p.m. The material observations were as follows:
Probable age: About 60 years.
Probable time since death: About one and half day
External Examination
Of as Condition of body regards muscularity and stoutness, emaciation rigor mortis and decomposition.
Average built body R.M. passed of from upper extremities and passing off from lower extremities. P.M. staining present on back and buttock. Abdomen slightly distended. Both eyes partly open.
Antcmortem injuries:
(1) Incised wound 6 cm. x 2 cm. x brain cavity deep on Rt. side head just above Rt. ear.
(2) Incised wound 2 cm. x 1/2 cm. x bone deep over outer angle of Rt. eye brow.
(3) Incised wound 7 cm. x 1 cm. x bone deep over Rt. mandible region. Under both the in mandible cut.
(4) Incised wound 1 cm. x 1/2 cm. x bone deep over Rt. side of nose.
(5) Incised wound 1 cm. x 1/2 cm. x muscle deep over Lt. nostril.
(6) Incised wound 6 cm. x 2 cm. x bone deep over Lt. side of head 4 cm. about Lt. ear.
(7) Incised wound 3 cm. x 1/2 cm. x muscle deep over Rt. side neck and its middle.
(8) Incised wound 4 cm. x 2 cm. x muscle deep over top of Rt. shoulder.
(9) Incised wound 2 cm. x 1/2 cm. x muscle deep over front and inner aspect of Rt. forearm and its middle.
(10) Incised wound 3 cm. x 1/2 cm. x bone deep over back of Rt. wrist joint.
(11) Incised wound 2 cm. x 1/2 cm. x 10 cm. muscle deep over outer aspect of Rt. side of chest and its middle 10 cm. back Rt. axilla.
(12) Incised wound 1 cm. x 1/2 cm. x muscle deep over Rt. side of hip in its middle.
Kha-lnternal Examination (Head and Neck: Inj. noted) Scalp, skull: Inj. noted, bone (vertex) Rt. temporal and parietal bone cut under Inj. No. (1).
Membranes: Cut under Inj. No. (1) Brain: Lacerated under Inj. No. 1, clotted blood present over surface of brain.
Thorax
Right lung Congested Left lung
Abdomen
Small intestine and its contents: gasses and faecal matter.
Large intestine and its contents: gasses and faecal matter.
Pancreas: Congested.
Spleen with wt.: Congested. 120 gm.
Kidneys with wt.: Congested. 125 gm. both.
Bladder: Empty.
In the opinion of the doctor the cause of death was due to coma as a result of A.M. Inj. of head.
Postmortem on the dead body of Mohd. Rais Khan deceased was performed by the same doctor on the same day at 1.30 p.m. The material observations were as follows:
Probable age: about 35 years.
Probable time since death: About one and half day.
External Examination Condition of body as regards muscularity and stoutness, emaciation rigor mortis and decomposition.
Average built body R.M. passed off from upper Ext. passing off from lower Ext. P.M. staining present over back and buttock. Abdomen slightly distended. Both eyes partially closed.
Antemortem injuries
(1) Two incised wounds in an area of 10 cm. x 6 cm. one and Lt. side of face 4 cm. below from the outer angle of Lt. eye, underneath mandible bone cut. Each wound measuring 8 cm. x 1.5 cm. x bone deep.
(2) Incised wound 4 cm, x 1 cm. x muscle deep over Lt. side of face just below angle of Lt. eye.
(3) nIncised wound 6 cm. x 2 cm. x bone deep over Lt. side of chin, underneath Inj. bone is cut.
(4) Incised wound 10 cm. x 2 cm. x fractured bone deep over front of neck just below thyroid cartilage underneath the In. trachea and larynx cut.
(5) Incised wound 4 cm. x 2 cm. x muscle deep over top of left shoulder.
(6) Firearm wound of entry 3 cm. x 3 cm. x chest cavity deep over Rt. side of chest 8 cm. above Rt. Nipple. Margins lacerated, inverted, blackening, scorching present.
(7) Firearm wound of entry 3 cm. x 3 cm. x chest cavity deep towards Rt. side of chest 4 cm. below Rt. Nipple. Margins lacerated, inverted, blackening, scorching present.
Internal Examination Head and neck: Inj. noted.
Membranes: Pale-Thorax Walls, ribs and cartilages: Inj. noted.
Pleura: Rt. pleura lacerated under Inj. Nos. 6 and 7, Lt. pleura-pale.
Larynx, trachea: Larynx trachea cut under Inj. No. 4 and bronchi.
Right lung: Badly lacerated.
Left lung: Pale.
Addl. Remarks: One liter fluid and clotted blood and in Rt. chest cavity, 11 pellets recovered from Rt. lung, 3 pieces of wadding cork recovered from Rt. Chest cavity.
Abdomen Stomach and its contents: Empty.
Small intestine and its contents: Gasses and faucal matter.
Large intestine and its contents: Gasses and faucal matter.
In the opinion of the doctor cause of death was due to shock and hemorrhage as a result of A.M. injuries.
At the trial, the ocular testimony was given by Mohd. Akeel Khan (P.W. 1), son of Mohd. Jan Khan present deceased and brother of Mohd. Rais Khan present deceased. Siraj Khan (P.W. 2) S/o Sardar Khan, and son-in-law of Mohd. Jaan Khan present deceased. Another eye-witness of the occurrence, Shafique Ahmad (P.W. 4) did not support the prosecution case and was declared hostile by the prosecution. Rest of the evidence was of formal nature.
The learned Sessions Judge believed the prosecution case and convicted and sentenced the accused-Appellants as aforesaid.
Heard learned Counsel for the parties and gone through the record of this case. It was a double murder case whoever might have been the assailants. Two types of weapons were used, namely, firearm and sharp-edged heavy cutting weapon. The ante mortem injuries of both the deceased persons were sufficient to cause their death.
It is also established from the evidence on record that the occurrence took place on the date of occurrence at the time and place as claimed by the prosecution and that both the present deceased were done to death by firearm by sharp edged heavy cutting weapons, inside the tempo belonging to Prakash Singh driver on the Rasta. The dead bodies were found inside the very tempo. One was inside the back portion of the tempo and another was having on the seat of the driver when the I.O. Surendra Singh P.W. 6, the then S.H.O.P.S. Bilaspur, reached at the spot accompanied by Sanjai Bhardwaj S.S.I, of the police Station. Inquest reports and connected papers were prepared by Sanjai Bhardwaj S.S.I, in the presence of the I.O. He found blood stains and empty cartridges and 2 bullets at the spot. There were blood stains inside the tempo also. He also found articles belonging to the deceased persons at the spot. The defense also does not dispute the site of the occurrence and that both the deceased were done to death inside the tempo.
Before we proceed to discuss the testimony of the eyewitnesses, we may point out that in assessing the value of the evidence of the eye-witnesses, there are two principal considerations (1) Whether in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situation as would make it possible for them to witness the facts deposed to by them, (2) Whether there is anything inherently improbable or unreliable in their evidence. In respect of both the considerations, circumstances either elicited from those witnesses themselves or established by other evidence tending to improbability of their presence or to discredit the veracity of their statements will have a bearing upon the value which a Court may attach to their evidence.
The claim of the learned Counsel for the accused-Appellant is that none of the two eye-witnesses Mohd. Akeel Khan P.W. 1 and Siraj Khan P.W. 2 were at all present at or near the scene of occurrence when the double murders took place. It is true that prior to the present occurrence, the murder of Ali Jaan, the real brother of Ahmad Jaan and Nabi Jaan present accused-Appellants had taken place and the present informant Mohd. Akeel Khan and both the present deceased were facing trial for that murder and that in that murder 28.8.91 was the date fixed in the Courts at Rampur, so that in the ordinary course, all the 3 were quite likely to go on that date from their residence to Rampur to attend their trial. It seems that both the present deceased were going together towards Rampur on the date of occurrence some times prior to the opening of the Courts by the Tempo in which their murder was committed.
The learned A.G.A. claims that because the informant was himself also an accused in the same murder case along with both the present deceased, in the ordinary course, they all would be going from their house to Rampur to attend his trial in that murder case and that in the ordinary course, all the three of them would be going together for Rampur for this purpose. It has also been pointed out that it was he, who lodged the F.I.R. of this case and claimed that this circumstance goes to corroborate the prosecution case about his presence at the spot. The contention of the learned Counsel for the accused-Appellants on the other hand is that it occurs very often that some one or the other of the accused persons at a trial remain absent on the dates fixed in the trial and seeking exemption of their attendance from the Court on one ground or the other and so there could be no presumption that every accused in a murder trial must be going to the Courts on every date fixed in the trial. It is argued that very often while some of the accused go to the Courts for instructing their counsel at the trial and others seek exemption of their attendance, unless it is a case in which the accused were not known to the eye-witnesses from before and identification proceedings have been held by the prosecution so that the trial cannot proceed if even one of the accused is absent on a date. The present is not a case of identification as per prosecution. So obviously there cannot be a conclusive presumption in such a case that this accused (present informant) must be going and going together with the remaining accused persons of the case (the present deceased persons) to the Courts prior to the time of opening of the Courts for attending their trial. Whether they were so going will have to be determined in this case on its own facts and circumstances. All that can be said is that in such a case, all the accused persons were quite likely to go together to the Courts on every date but any one or more of them could abstain on any particular date for one reason or the other. The learned Counsel for the accused-Appellant has placed before me almost conclusive material from the record which rules out the presence of the informant in the tempo carrying the two deceased on the road. One circumstance is that he was not an injured in the occurrence. The injuries on the body of an eye-witness are the hall mark of his presence at the spot. In this case, if the accused-Appellants had a motive to commit the murder of the two present deceased, they had an equally strong motive to commit murder of the present informant who was a co-accused in the same murder case. So in the ordinary course, if the motive for committing the murder of the two present deceased was that claimed by the prosecution, then the assailants whether they were belonging to the complainant side in that murder case (Ali Jaan murder case) or had come at their instance, they would not spare the present informant either. It is true that in every occurrence, the culprits do not always succeed in carrying out their design in its entirety but in the present case, the position is quite clear that if this informant was accompanying the two present deceased in the tempo as claimed by him, he had no means to escape from the tempo and must have been done to death inside the tempo itself. He claimed in his testimony that Mohd. Rais Khan (present deceased) was sitting by the side of the driver and he and Mohd. Jaan Khan (present deceased) were sitting on the back seat. He has testified that the assailants who were in the sugarcane field adjoining the road surrounded the tempo and exhorted, "MAARO SALEY KO" and started making fire and then two of the assailants inflicted injuries on the body of the deceased by Patal. In his cross-examination, he stated that all the 4 assailants stood surrounding the tempo from all sides, that one gunner stood in front of the tempo and another gunner stood behind the tempo and the assailants carrying Patel stood on both the sides of the tempo. That being so, it was next to impossible for the informant or for any other person to have succeeded in coming out from the tempo when the deceased who was sitting by the side of the driver and the other deceased who was sitting in the back portion of the tempo could not come out from the tempo and met their end inside the tempo itself.
Another point brought to our notice is that if it be taken that inspire of all the odds, the informant succeeded in coming out of the tempo, he must have been assaulted by the assailants and it was impossible for him to escape injuries altogether. Then whether or not he received injuries in or on coming out from the tempo, he would run away from the spot as fast as he could, and it cannot be believed for a moment that though he would manage to come out from the tempo, he would go for just 2-3 paces and stand there to see the murder taking place and further that yet he would not be assaulted by any one of the assailants and would be allowed to stand there. But this is what the informant claims at the trial. He testified, "MAIN MAUKA PAKAR 2-3 KADAM HAT KAR KHARA HO GAYA." In his cross-examination, be made a similar statement, "MAIN FIRING JAB HUYA TAB BHAGA. MAIN TEMPO SE 2-3 KADAM PAHAR SIDE KO KHARA HO GAYA. ITNI DER MULJIMAN FIRING KARTEY RAHEY VA TABAL SEY MARTEY RAHEY, MAIN WAHIN KHARA RAHA." It was stated by him in his cross-examination that one of the assailant Ayyub Khan was standing on the northern side of the tempo but he did not make any assault on him "PAHAR SIDE KO MULJIM AYYUB KHAN KHARA THA. AYYUB KHAN BANDUK WALEY NEY MERE UPER KOYEE HAMLA NAHIN KIYA." He was specifically asked as to why he was not assaulted by the accused persons though he also was co-accused with both the present deceased in the Ali Jaan murder case, but he could not give any explanation for this omission on the part of the accused-Appellants.
It may also be added here that Sanjai Bhardwaj S.S.I., P.W. 3 who prepared the inquest reports in respect of both the deceased on the spot testified in his cross-examination that inside the tempo, there were two seats upon the last wheel and one or two benches in the width. He stated that one bench was of the driver, another was behind the driver and there was a third bench also and all the 3 benches were in width and further that there was an exit door by the side of the driver seat in the tempo and that there was no door at all at the back portion of the tempo. Obviously, there will be no occasion for the informant to come out from the back side of the tempo. There could be no question of the informant being able to come out from the back of the tempo. The informant claimed that there was a door in the back portion of the tempo for the entry of passengers. He further stated in his cross-examination, "DRIVER BHI SAHMA HUYA BAITHA RAHA." That being so, it will be difficult for the informant to come out from the front portion of the tempo either. The fact that both the deceased were done to death inside the tempo itself showed that the present accused persons did not give any opportunity of coming out from the tempo and so if the informant was also inside the tempo, he could not have come out and in any case the conduct of himself as claimed by the informant cannot be believed. Consequently, the inference is plain that the informant was neither coming with the deceased in the tempo in which the deceased persons met their end by the assailants nor was he present any where near the scene of occurrence when the occurrence took place.
Now there remains the testimony of Siraj Khan P.W. 2. He is not a resident of the immediate vicinity of the spot where the occurrence took place so that his presence at the spot may be taken to be natural in the ordinary course as the presence of an inmate of a house is natural at a murder in the night inside the house. It may be said that on a road only by standers or passengers of vehicles or the passengers in the tempo in which the double murder took place would be natural witnesses. But then in such a case, it is to be scrutinized with great care whether the presence of such a witness at the spot can be safely believed. Any body could easily claim that he was there in the tempo or standing on the roadside waiting for a vehicle. So the claim of such a witness about his presence has to be accepted only after close scrutiny. If the witness Siraj Khan, P.W. 2 were a perfect stranger to the deceased persons and the informant having no axe to grind against the accused-Appellants, the Court might have readily accepted his testimony about this broad day light occurrence but here the position is different. As noted earlier, Mohd. Jaan present deceased was the father of Mohd. Rais Khan deceased and of Mohd. Akeel Khan informant and it has come in the course of cross-examination of the informant that the sisters of the informant were married to Siraj Khan, P.W. 2 and Irman Khan (not examined at the trial). In other words, Siraj Khan, P.W. 2 was the son-in-law of Mohd. Jaan Khan present deceased and brother-in-law of Mohd. Rais Khan present deceased and the informant. It has come in the testimony of the informant in para 5 of his statement that Siraj Khan P.W. 2 and Irman Khan witness (not examined at the trial) were resident of P.S. Kichcha, district Nainital.
A related witness is not necessarily an unreliable witness and it has often been said that a related witness will be interested only in the implication of the real culprits. However, this position will arise only if he was an eye-witness of the occurrence. If he was not an eyewitness of the occurrence, then the position would become different. So about him (P.W. 2) also, it is to be first determined in the light of the surrounding circumstances whether his presence at the spot is believable. As noted earlier, he is resident of P.S. Kichcha, district Nainital and not a resident of village Badanpur where the informant did not live nor he was resident of the vicinity where the tempo was going. The informant did not claim that Siraj Khan or Irman Khan were accompanying him and the present deceased for the pairavi of AH Jaan murder case against them in the Rampur Courts on the date. Siraj Khan P.W. 2 also did not make any such claim.
The informant claimed in his testimony that when they (the present deceased persons and he himself) boarded the tempo, Siraj Khan P.W. 2 and Irman Khan were coming sitting in the tempo from before. Siraj Khan P.W. 2 testified that he and Irman Khan were coming by tempo from Tanda to Bilaspur and on coming to the bridge, the informant and both the present deceased boarded the tempo. Siraj Khan P.W. 2 claimed in his testimony that on the date of occurrence, he was going from village Daran to Bilaspur for making sundry purchases of Mircha, Piyqj, Dhania, etc. He admitted that he did not tell the I.O. that they were going to Bilaspur for making sundry purchases. The witness stated in cross-examination that both the deceased had by chance boarded the tempo and that there was no prior agreement with the two deceased that they would join at that time. This shows that he was not going by that tempo to join the two deceased and the informant for doing their pairvi in Ali Jaan murder case. The witness admitted that he did not tell the investigating officer that he was going to Bilaspur for making sundry purchases. In the ordinary course, the I.O. was expected to ask him and it was his duty to tell the I.O. as to for what purpose and in what connection, he was going by that tempo as claimed by him. So the explanation given by the witness for his presence in the tempo as claimed by him was coming for the first time in the testimony of this witness at the trial which was almost 5 years after the date of occurrence and consequently, it is difficult to place any implicit reliance on this claim of the witness. He is a chance witness and chance witnesses are proverbially false though not necessarily so. One important circumstance which belies the presence of this witness at the scene of the occurrence is that he had not received any injury whatsoever in the occurrence though he has testified to the entire occurrence from beginning to the end including the running away of the assailants and the scribing to the F.I.R. got done by the informant. It may be that he was not alleged to have any enmity with the assailants but when two persons were done to death inside the tempo as claimed by the prosecution, then if this witness was present inside the very tempo at the time when the murders were being committed, there were every likelihood of his accidentally receiving same firearm or other injury in the course of the occurrence. In his examination-in-chief, he has not stated that he got down from the tempo on seeing the assailants or during the course of the occurrence. In his cross-examination, he stated that Mohd. Jaan deceased was shot at by the assailants by entering -inside the tempo and that he. Akeel (informant) and Irman got down from Tempo and while Akeel (informant) ran and went to the police station, he and Irman both kept standing there at the spot near the tempo. In other words, this witness does not claim to have run away from the tempo on seeing the assailants assaulting his father-in-law and his wife''s brother. He did not say precisely as to at what point of time they got down from the tempo. He, however, claimed that all the three of them (he himself, Irman and Akeel informant) jumped down from the tempo from its back side. He further stated that at that time, the assailants were assaulting both the deceased with Patal. This statement of this witness is to be read in conjunction with the testimony of Sanjai Bhardwaj S.S.I., P.W. 3 who prepared the inquest reports about the two present deceased that there was no exit in the tempo in its back side. In view of this testimony of Sanjai Bhardwaj S.S.I., P.W. 3, the claim of this witness to be present in the tempo at the time of occurrence gets improbabilised. Here it may be mentioned that the informant Mohd. Akeel Khan P.W. 1 testified that Siraj Khan, P.W. 2 and Irman got down from the tempo after the assailants had run away after committing the murder of both the deceased. However, it is difficult to believe that neither the informant nor this witness would receive any injury in the occurrence if they were inside the tempo along with the present deceased persons.
There are various discrepancies in the evidence given by the informant and this witness. The prosecution story as given in the first information report and as given in the testimony of the informant are also discrepant interse.
In the F.I.R., apart from names of the informant, Siraj Khan P.W. 2, Shafiq Ahmad P.W. 4, Irman Khan (not examined at the trial) alleged to be going in the tempo, there was also a mention that the occurrence was seen by the tempo driver and by the persons sitting in the tempo.
The informant stated in the examination-in-chief that the occurrence was seen by Siraj Khan P.W. 2, Irman Khan (not examined), Shafiq Ahmad P.W. 4 and Prakash driver (nor examined) and then he added that out of fear of the accused persons, the other persons sitting in that tempo did not help them. In his cross-examination, he stated that there was no other passenger in the tempo besides them (i.e., himself, the two present deceased. Siraj (P.W. 2) and Irman Khan (not examined). When pointed out to his earlier statement that other persons did not help them, he replied that he meant driver, Siraj P.W. 2, Irman and Shafiq P.W. 4. In his cross-examination, he stated about the presence of Siraj P.W. 2, and Irman (not examined) at the time when he and the present deceased boarded the tempo and testified that Shafiq P.W. 4 boarded the tempo after him from the Bengali Colony. He further stated that apart from these persons, no other passengers had boarded the tempo after it till the place of murder. He was confronted with his statement u/s 161, Code of Criminal Procedure given to the I.O. that the occurrence was seen by him, tempo driver Prakash Singh, the passengers sitting in the tempo and Siraj P.W. 2, Irman Khan and Shafiq Ahmad P.W. 4. He affirmed that this statement given by him to the I.O. was correct. He was confronted with his earlier statement before the Court that nobody had boarded the tempo besides him, Siraj P.W. 2 and Irman and Shafiq. He admitted having said so. He explained that from the statement given by him before the I.O. about the persons sitting in the tempo he meant Siraj P.W. 2, Irman and Shafiq P.W. 4. He denied the suggestion that he was concealing the names of other persons sitting in the tempo which he had claimed before the I.O. It is obvious that earlier a wide scope was kept in the F.I.R. and in the statement u/s 161, Code of Criminal Procedure before the Investigating Officer for introducing others as witnesses of the occurrence but later on it was dropped. Siraj P.W. 2 in his testimony did not mention the presence of any passengers in the tempo besides the above named persons. He was confronted with the statement u/s 161, Code of Criminal Procedure given by him before the I.O., "DAR KE KARAN HAM GAWAHAN WA TEMPO MEN BAITHEY ANYA BYAKTI MRITKON KE KOYEE MADAD NAHIN KAR SAKE." He admitted having given this statement to the I.O. and did not say that it was a wrong statement. This also meant that at the stage of investigation scope was kept open for introducing other eye-witnesses in this case.
As noted earlier Siraj, P.W. 2, claimed that they had jumped from the tempo when the assailants were assaulting the deceased persons with Patel This when read with his earlier statement, "HAM DONO TEMPO SE EK GAJ DOOR KHARE HO GAYE THE", shows that his statement was that during the course of occurrence he and Irman had got down from the tempo but did not run away out of fear and kept standing there. It is true that they were not having enmity with the accused persons but he has named all the 4 accused-Appellants in his testimony which amounted to saying that he knew the accused -Appellants from before and if they knew the accused-Appellants from before, one could expect that the accused-Appellants too would know that he was son-in-law of Mohd. Jaan Khan deceased and so if the accused-Appellants were the assailants, they could not leave untouched this witness standing there in the vicinity and watching the occurrence. He states that he did not say anything to the assailants but only saved his own life. But every body who wants to save his life from the armed-assailants would never keep on standing near the tempo while this is what has been claimed by this witness. It is difficult to believe what Siraj Khan P.W. 2, has claimed in his testimony.
Here it may be mentioned that Siraj Khan P.W. 2, stated in his cross-examination that he knew the accused persons from before but when he pointed to Shahin Khan accused-Appellant, he gave the name of this accused-Appellant as Shamim which indicated that he did not know this accused at least by name from before. He has not been asked about the other accused-Appellants. Whether he knew the accused-appellants from before or not, it is so very obvious from the above discussion that he was not present in the tempo or even in its vicinity at the time of occurrence.
It is not disputed that the tempo in question was being driven by Prakash driver at the time of occurrence but the prosecution has not examined Prakash driver at the trial nor has the learned Sessions Judge has taken the trouble of calling him to the witness box as a Court witness u/s 311, Code of Criminal Procedure The failure of the prosecution to examine the driver is itself a circumstance which casts a shadow of doubt on the ocular testimony given by two witnesses. If there were un-concerned passengers inside the tempo, they would have been asked or allowed by the assailants to escape from the tempo before they, i.e., the assailants committed the double murder or there were no such passengers in the tempo. The driver could throw light about the manner in which the occurrence took place and also indicate whether the informant or Siraj Khan P.W. 2 was present at the spot or not. Here it may be mentioned that according to Mohd. Akeel Khan, informant the driver did not try to drive the tempo and that the driver kept on sitting in the tempo being terrified. On the contrary Siraj P.W. 2, claimed that when Rais deceased received firearm injury. Shafeeque P.W. 4 and driver Prakash Singh got down from the tempo and ran.
So far as the 3rd witness of the occurrence Shafeeq Ahmad P.W. 4, is concerned, he turned hostile and his evidence has no utility to the prosecution.
The claim of the informant is that he got the F.I.R. scribed at the spot itself but the F.I.R. itself stated "MAUKEY PER LASON AUR TEMPO KO CHHOR KAR AAYA HUN." He was also confronted with it. He first stated that he did not get this sentence scribed in the F.I.R. Then he admitted on oath having got it scribed in the F.I.R. He, however, kept on denying the scribing of the F.I.R. at the police station and also denied that it was scribed at noon at the police station in consultation with the I.O. Jamil Ahmad P.W. 5 who was scribe of the F.I.R. stated that he has scribed the F.I.R. at the police station Bilaspur at 12 noon at the dictation of the S.O. He has been declared hostile by the prosecution and cross-examined but nothing material has come out therein. The testimony of the scribe is corroborated by the aforesaid contents of the F.I.R.
From the side of the prosecution, evidence has come that at the time of preparation of Panchayatnama at the scene of occurrence S.S.I. Sanjai Bhardwaj, P.W. 3, found a purse along with cash which contained a photograph of Ahmad Jaan accused-Appellant. No effort has been made from the side of the prosecution to get the photograph and the purse identified. On the finding of these articles Sunil I.O., P.W. 6 has also given his evidence. In his cross-examination, the defense suggestion given is that when the police had gone in search of Ahmad Jaan accused-Appellant, the police has brought his photograph from his house and planted it in this case. This assertion has been made by this accused-Appellant in his statement u/s 313, Code of Criminal Procedure also. The explanation given by this accused-Appellant is quite plausible and cannot be discarded in the background of the totality of the circumstances of this case.
The sum total of the above discussion is that the presence of the informant Mohd. Aquil Khan P.W. 1 and Sanjay P.W. 2 who have given ocular evidence, inside the tempo or even near it at the time of occurrence, is extremely doubtful and their testimony is wholly unworthy of credence and further that there is also no circumstantial evidence on record that may bring home guilt to the accused-Appellant or any one of them at the trial. It is unfortunate that a broad daylight double murder goes unavenged. It may even be that all or any of the accused-Appellants were themselves the assailants, but the distance between "may be" and "must be" has not been bridged by the prosecution in this case by any reliable evidence direct or circumstantial and so the benefit of doubt has to go to all the accused-Appellants.
Consequently, the appeal is allowed. The conviction and sentence of the accused-Appellants awarded by the learned Sessions Judge is set aside and all of them are given the benefit of doubt and acquitted of the offence u/s 302/34, I.P.C. They are on bail from this Court. They need not surrender to it. Their bail bonds are cancelled and sureties discharged.
Let a copy of this judgment be sent to the Sessions Judge, Rampur for information and compliance. The compliance report shall be submitted to this Court within a month from today.