Gaya Prasad alias Gaya vs The State of U.P.

Vinod Prasad, J.—Appellant Gaya Prasad @ Java has questioned the correctness of his convictions under Sections 449 and 302 IPC and sentences for life imprisonment each count recorded by Additional Session''s Judge Special Judge (DAA) Hamirpur in S.T. No. 27 of 1992 State v. Gaya Prasad @ Gaya under Sections 449/302 IPC. P.S. Sri Nagar, District Hamirpur through instant appeal.

The prosecution allegations against the appellant in brief are that Pirva (Deceased) father of Nand Kishore (Informant) was murdered in the intervening night of 31/1.11.1991 at about 1 2AM in his house by a that, informant got the FIR (Hxt. Ka 1 ) scribed through Banshi Dhar Pradhan and after covering a distance of 7 Kms lodged it at Police Station SriNagar District Hamirpur on 1.11.1991 at 9.05 AM as crime number 141 of 1991, u/s 460 IPC. Mead Constable Satya Pal Singh, PW 5 prepared chik FIR ( Ext. Ka 2 ) and made G.D. entry ( Ext. Ka 3 ). Nawab Singh S.O. Started the investigation along with Surendra Bahadur Singh SI, P.W 7. Both the officers proceeded to the spot and PW 7 prepared inquest report ( Ext. Ka 5), Photo Lash ( Ext. Ka 7), Form 33 (Ext. Ka 8 ) and Chalan Lash ( Ext. Ka Ka.9), under the directions of the 10 and then dispatched the body for post mortem through constables Santosh Kumar and V.C.Punwa. He also prepared recovery memo of blood stained and plain earth ( Ext. Ka.6). 10 also prepared site plan on 1.11.1991 and made inspection note. Concluding investigation 10 submitted a charge sheet against the appellant on 1.12.91 for offences under Sections 449/302 IPC. Chief Judicial Magistrate Hamirpur committed the case of the appellant accused to the court of Session''s on 25.1.1992 which was registered as S.T. 27 of 1992.

Autopsy on the dead body was conducted on 1.11.91 at 4 PM in Government hospital Mahoba by Dr. S.M. Kaskar, PW 6 and he found following ante-mortem injuries on the corpse:

L.W. on (Rt.) side of chest oblique 8cm below (Rt.) clavicle 2 x I x cavity deep Rib fractured 4th rib.

l.W. 1.5 X lc.m. X bone deep oblique on (Rt.) side of chest 4 cm. below Injury No. (1).

l.W. on (Rt.) side of chest 2 X 0.5 cm. X bone dee poblique,5c.m back injury no(1)

I.W. on (Rt.) side of chest 2 X 0.5 cm. X bone deep 7cm. below injury No. (1) 6th rib cut & fractured.

I.W. on (Rt.) side of Abd. 2X 0.5cm. oblique muscle 1 6c.m. below injury no.( 1).

I.W. on (Lt.) side of chest cavity deep 1 X 0.5cm. oblique 6 cm. below. Wound end of (Ltd) clavicle.

I.W. on (Lt.) side of chest 3 X 0.5 cm. X bone deep 1 cm. below injury No. (7).

I.W. on (L.T) side of chest 1 X 0.5 cm. X cavity deep 3 cm. lot to injury No. (7).

I.W. 2 X lc.m. X bone deep (oblique 2X1 cm.) 4 cm. lat. To injury No. (8).

l.W. 1 X 0.5 CM. X bone deep (Lt.) side chest oblique 5 cm. above and It. To injury No. (9).

I.W. on outer aspect of (Lt.) upper arm 2 X 1 cm., 1 5 cm. below shoulder up.

I.W. on Lat. aspect of (Lt.) upper arm 3 X 2cm. Below injury No. (11).

I.W. on Post, aspect of(Lt.) forearm 3 X lc.m. X muscle deep 17 cm. below elbow.

I.W. on back (Lt.) side 4X2 cm. muscle deep, 10 cm. from shoulder tip.

I.W. on back 4X2 cm., 10 cm. below Injury No. (14)

On internal examination he found that forth and sixth ribs of right side and forth and eighth ribs of left side of the deceased were fractured Chest was filled with blood and both the lungs were lacerated. Peritoneum was cut and semi digested food was present in the stomach and his bladder was empty. In the estimation of the doctor the cause of death of the deceased was shock and haemorrhage because of sustained injuries.

During the trial the appellant was charged with offences under Sections 449 and 302 IPC by Session''s Judge Hamirpur on 9.4.92 and the prosecution to bring home the guilt of the appellant examined Nand Kishore ( Informant) as P.W 1, Ganshi ( Wife Of deceased and sister of appellant) PW 2, Ganesh Kumari ( Daughter of deceased ) PW 3, Mangal Din PW 4, Head Const. Satya Pal Singh PW 5, Dr. S.M. Kaskar PW 6, and SI Surcndra Bahadur Singh ( investigating Officer) as PW 7.

Nand Kishore, informant, P.W 1, deposed in the court that f the appellant who is his maternal uncle (Mama) had committed the murder of the his deceased father regarding which he had lodged the FIR at the police station against a thief and he had not named the appellant as his mother or sister who had seen the incident had not disclosed the name of the appellant as the assailant. He has further deposed that he had not seen the appellant committing murder.

Smt. Ganshi P.W 2, wife of the deceased testified before the court that accused appellant is her real brother who had committed murder of her husband by Rapi four years ago. Appellant had come to her house a day before and had asked for five thousand rupees loan from the deceased which was refused by him because the earlier loan was not repaid by the appellant which had annoyed the appellant and he had gone back. In the night of the incident at about 12 AM her daughter woke her up for attending the call of nature and while they were entering into the house after her daughter has eased out appellant pushed her from behind on which she accosted him as to why he is entering into the house like a thief on which the deceased woke up but was assaulted with Rapi by the appellant who after the murder escaped. This incident was witnessed by her daughter also.

On being cross examined by the court she stated that informant is her son who had gone to the police station to lodge the report but as she had fainted because of shock of murder after the incident therefore she did not disclose the name of the appellant to him. She further deposed that her parental relatives were alive and they are fanners. Deceased was her third husband as she had left her first husband of village Khandeha and her second husband of village Dharauna had expired. She further stated that her first husband was annoyed with the deceased and so were her parents and brothers. She had got a Pucca House. The deceased was employed in PWD and had four bighas of fanning and he used to lend the money as well. She further testified that the deceased and her daughter were lying on the same cot with dari spread on it and deceased had covered himself with blanket and the corpse of the : deceased was lying like that till the arrival of the investigating officer. She was lying near by on floor and the informant was sleeping in the next room. She also evidenced that a lantern was lighting at the time of the incident which was pointed out to the investigating officer when he was conducting the spot inspection at her pointing out. However she changed her version subsequently and stated that the appellant accused had entered into her house as soon as she opened the door for taking her daughter out for easing and contradicted her previous statement stated a day prior. She also deposed that her clan people were harbouring animosity with her husband as he was rich. She at this stage was declared hostile and was cross examined by APP where upon she had stated that she had told the investigating officer that the accused had threatened her to keep silence and not to raise alarm otherwise she and her whole family will also be annihilated. She also deposed that she was sacred after seeing blood and the cloths of the accused (Dhoti and Kurta) were also stained with blood. On being questioned regarding the contradictory statements given by her she again stated that her previous statement on the earlier day that she had fainted before the incident and therefore could not witness the murder was true and what ever she had stated on the subsequent day was false.

Ganesh Kumari PW 3 testified the same facts as was stated by PW 2 and on being questioned by the court stated that her mother had shouted on which her brother (informant) had woke up and she had not heard what her mother had told the informant about the incident in the veranda as she was inside the room. She also stated that she had not informed the name of appellant to her brother (Informant) as he was informed of the name by her mother PW 2. She how ever stated that the incident occurred when she had eased her self and when the incident had taken place her mother had shrieked and had fainted and she had left her mother and had reached to the deceased. She denied the defence suggestion that she had not witnessed the incident and had testified because she was tutored.

Mangal Din, PW 4 stated before the court that on the night of the incident he had met one person wearing Dhoti and Kurta which had red spots on it. He had asked as to who was it but no reply was made. New day morning he came to know that the deceased had been murdered. He also evidenced that the fateful night was dark and he was not having any torch etc. and therefore could not recognize as to who that person was. He also denied that he was interrogated by the Investigating officer. He was also declared hostile and was cross examined by the prosecution and he had denied the suggestion that he had changed the sides and therefore was testifying falsely.

HC Satya Pal Singh PW 5 proved chik FIR and GD entry as Ext. Ka2 and Ka3.

Dr. S.M. Kaskar PW 6 proved his post mortem examination report as Ext, Ka -4 dated 1.11.199land the injuries of the deceased. Nothing material was extracted from him in his cross examination by the defence.

SI Surendra Bahadur Singh PW 7 deposed in the court that he had conducted the inquest under the directions of the investigating officer SO Nawab Singh and had prepared inquest report and other allied papers which he had proved as Ext.Ka-5 to Ka -9. He also evidenced that during the performance of inquest he had asked the name of the assailant from the informant who had disclosed that his father was done to death by a thief or a miscreant. He also stated the word "Bhadaya" in local dialect means "thief". He also deposed that the body of the deceased was lying on the Kutcha floor and there were no blanket on the body of the deceased. He also evidenced that LO Nawab Singh did not meet him after words and lie had not returned to P.S. along with.

Accused appellant in his defence u/s 313 Cr. P.C. pleaded false implication because of animosity but he led no defence evidence for the same.

On the above evidence led in the trial, Additional Session''s Judge Special Judge (D.A.A) Hamirpur believed the prosecution version and convicted the appellant for culpable homicide amounting to murder and sentenced him u/s 302 IPC with imprisonment for life which conviction and sentence is under challenge in this appeal.

We have heard Sri M.F. Ansari, learned Counsel for the appellant in support of this appeal and Sri Danish Iqbal Faridi, learned brief holder on behalf of state respondent and have gone through the entire record of the appeal including evidences.

It is submitted by learned Counsel for the appellant that in this case prosecution has failed to prove the charge against the appellant and the evidence led in the trial is self contradictory and can not be relied upon. He further submitted that in the FIR appellant is not named even though he is the real maternal uncle of the informant and real brother of PW 2.He also contended that the investigating officer was not examined in the trial which has caused prejudice to the appellant and the charge sheet and site plan prepared by the IO remained unproved and unexihibitted therefore also conviction of the appellant can not be sustained. He also submitted that the evidence of PW 2 and PW 3, the two eyewitnesses, are so surreal that they can not be believed. He also submitted that absence of blood on the cot on which the deceased was alleged to have been sleeping as well as on the Dari indicates that the witnesses of fact are playing on their imagination and they had not witnesses the incident and that is why PW 2, the wife of the deceased was declared hostile by the prosecution itself. He submitted that non disclosure of the complicity of the appellant till the inquest was over demolishes the prosecution case. Concludingly, he contended that this appeal of the appellant deserves to be allowed and his conviction and sentence deserves to be set aside and he deserves to be acquitted.

Learned state counsel on the other hand contended that the two eye witnesses of the incident are the real sister and real nephew of the appellant and there was no reason for them to falsely implicate the appellant and since the appellant had a strong motive therefore his conviction is proper. He also submitted that the contradictions in the evidence of witnesses are of minor nature and they do not distract the prosecution version even slightly. He also submitted that on material aspects of the case the prosecution evidence is intact and therefore impugned Judgment is justified. Summing up his argument he submitted that the appeal of the appellants lacks merit and deserves to be dismissed.

We have cogitated over the arguments raised by the rival factions. There are two determining factors in this appeal and they are as to whether the appellant was present at the date and time of the incident at the spot and whether he is the malefactor of the murder of the deceased Pirwa? Secondly, whether PW 2 and PW 3, the two eye witnesses on the incident, can be safely relied upon and can it be said that they are wholly reliable witnesses and therefore implicit reliance can be placed on their testimony to convict the appellant? Coalscencing the two factors the determinative residue is whether the prosecution has been able to establish the charge and bring home the guilt of the accused to the hilt?

A critical appreciation of evidences and facts brought forth that the appellant is the real brother of PW 2 SMT. Ganshi and maternal uncle of the informant Nand Kishore PW 1 and Ganesh Kumari PW 3. However he is not named in the FIR as the assailant who had murdered the deceased, instead FIR mentions that a thief ( bhadaya) had committed the crime. The record further reveals that till the inquest was completed upto 12 PM on 1.1 1.1991 the name of the appellant was not disclosed by any of the two eye witnesses to any one including the informant and not even to the two police officials, IO Nawab Singh SO and SI Surendra Bahadur Singh PW 7, who were present on the spot. It is recalled here that the incident was alleged to have occurred at 12 A.M. in night of 31/1.11.1991 twelve hours before. Surendra Bahadur Singh SI PW 7 clearly deposed that at the time of performing the inquest he had asked the informant regarding the assistant to which his reply was that the murder was committed by a Thief (Bhudaya). This evidence of PW 7 clearly indicates that till inquest was over no body knew as to who was the assailant. The investigating officer present on the spot was not examined by the prosecution in the trial.

Further when we look to the evidences of prosecution witnesses it transpires that PW 1 is not an eye witness of the incident. PW 2 Smt. Ganshi and PW 3 Ganeshi who claimed themselves to be witnesses of the incident did not disclose the name of the appellant to the informant or the two police officials or to any body till the inquest was over. This bizarre conduct of PW 2 and PW 3 makes their testimony suspect. PW 1 Smt. Ganshi, who is wife of the deceased gave an explanation for this lapse that she had fainted after seeing the incident of murder when she was questioned by the court but subsequently resiled from her said statement and testified that no sooner she had opened the door to take out PW 3 to attend the call of nature she was pushed by the appellant and she had fainted that very moment and therefore did not see as to who committed the murder. This statement was again resiled by her, as we will point out later on in this judgment, and atleast at two places in her deposition she had stated that her earlier deposition before the court was not true. She was declared hostile by the prosecution and when cross examined by-the APP she admitted that she had informed the IO that the appellant had threatened and warned her not raise alarm other wise she and her whole family will by annihilated and after seeing the blood she had become scared and sat quietly in a corner. How ever no such statement was given by this witness in court and on the contrary she totally denied witnessing the murder. This embellishment had been done by her to over come the non mentioning of the name of the appellant in the FIR and during inquest. Her explanation for not informing the name of the appellant to the informant is thus, unworthy of credence. Attour, how long she had fainted and when she regained consciousness and why no attempt was made by PW 1 and PW 3 to bring her back to senses all are the facts which are shrouded in mystery and indicates that infact PW 2 never fainted and her deposition that she had fainted and therefore could not tell the name of the appellant to the informant is a false statement of fact. Our this view is also cemented because PW 3 contradicted her on this aspect of the allegation and deposed that at the time of incident PW 2 had shacked out and after the incident she had talked with informant PW 1 in varandah and had disclosed the name of the appellant to him and because of aforesaid reason PW 3 had not disclosed the name of the appellant to PW 1 before he proceeded to lodge the FIR. These two contradictory statement by the two eye witnesses does not inspire any confidence at all it and make these witnesses unworthy of credence. The evidences of theses two witnesses also establish that the appellant was not the murderer because had he been the culprit his name would not have be missing from the FIR as he was very well known to them being a close relative and his name would have been disclosed to the two police officers at the time of inquest As has been stated above till the inquest was over the name of the appellant was not disclosed to the 10 or to SJ Surendra Bahadur Singh PW 7. Had the appellant been the assailant there was no difficulty in mentioning his name to those police officials at the earliest. Thus non disclosure of the name of the appellant to the police officials at the earliest opportunity makes the complicity of the appellant in the crime doubtful especially in view of above contradictory nature of eye witnesses account and this fact demolishes the prosecution version to a substantial extent. There is no other cogent and reliable evidence led by the prosecution to prove the said allegation. Learned AGA had argued that there was no reason for false implication of the appellant by the two eye witnesses and therefore the testimony of two eye witnesses can not be discarded. The said submission of the learned AGA does not impress us firstly because there was cause for false implication as the loan money was not paid by the appellant and secondly it is not for us to speculate the cause of false implication of accused once the '' witnesses are not reliable. Non disclosure of name of the appellant makes eye witness account suspect. In this respect we are fortified by following judgements of the Apex court: Hallu and Others Vs. State of Madhya Pradesh, Jagdip Singh and Another Vs. State of Haryana, State of U.P. and Another Vs. Jaggo alias Jagdish and Others, and Mullagiri Vajram and others Vs. State of Andhra Pradesh, Mullagiri Vrajram v. State of Andhra Pradesh. In the case of Hallu v. State of M.P. (Supra) the Apex Court, in similar circumstances has held as follows:

But a part from the legality of the finding recorded by the High Court Vishal Das''s Report almost wholly destroyes the prosecution case. The case of the prosecution is that the incident in question happened on the afternoon of the 9th whereas Vishal Das stated in his Report that the incident had taken place on the night of the 10th, meaning thereby in the early hours of the 10th. Vishal Das also stated expressly in his Report that he did not know as to who had assaulted Jagdeo and Padum. The High Court failed to give these circumstances their due weight and observed on the contrary that the fact that the names of the assailants IUVV not mentioned by Vishal Das was not very material as the assaults was committed by a large group of 17 of 18 persons. The inference arising from he, fact that the names of the accused are not mentioned in a First Information Report must vary from case to case but the High court wholly ignored that even the Kotwar of the village had not come to know the names of the assailants though 20 hours had elapsed after the incident had taken place and further that according to him the incident had taken place at night. It is obvious that if he incident had taken place at night the whole superstructure of the prosecution case must fall. The eye-witnesses Mussmat) Dev Kunwar and Mussmat Mahatrin claim to have seen the inciden on the supposition that it happened on the afternoon of the 9th

In the ease of Jagdip Singh v. State of Haryana (Supra) it has been held by the Apex Court ns follows:

Though we have no doubt that Uma Paul and Surjit Kaur tad seen the appellant, Jagdip Singh, firing a pistol shot at Gurbachan Singh and that Gurbachan''s death was caused as a result of hat shot, we are unable to agree that the offences under Sections 302 and 201, Penal Code, are proved against Bachni beyond a reasonable doubt. Uma Paul and Surjit Kaur have stated in their evidence that Bachni was standing behind Jagdip Singh, when the latter fired the pistol shot at Gurbachan Singh. Significantly, the First Information Report does not refer to the presence of Bachni lat the time when Jagdip Singh fired the pistol shot. The Report doss not also mention that Bachni brought a Gandasi or that she sprinkled kerosene on the dead body of her husband. These tpbviously were embellishments which were later introduced by the two witnesses. The claim of Uma Paul and Surjit Knur is that immediately after Jagdip Singh fired the pistol shot they ran away but they went and stood at a distance of about 20 yards from where they saw the fund stage of the episode. It seems to us impossible to believe that the two witnesses could have continued to stand there to be able to see what later happened under the Neem tree. They must have run away on the heels of the shooting outrage and that explains how they met P.S.I. Darshon Singh almost immediately after the incident. If Bachni had accompanied Jagdip Sinyji when Gurbachan Singh was shot at or if she had brought a Gandasi and sprinkled kerosene on the dead body of Gurbachan Singh, it is hardly likely that Surjit Kaur would have skipped reference to these facts in the statement which she made almost immediately after the incident. The Sessions Court and the High Court have ignored the countervailing significance of these circumstances " Further in the case of State of Orrissa v. Brahmmananad (Supra) it has been observed by the Apex Court:

The entire prosecution case against the respondent rests on oral evidence of Chanchala (P. W. 6) who claimed to be an eye witness to the murder of Hrudananda, one of the six persons alleged to have been killed by the respondent. The learned Additional Sessions Judge believed her evidence, but the High Court found it difficult to accept her testimony. The High Court has given cogent reasons for rejecting her evidence and we find ourselves completely in agreement with those reasons. We have carefully gone through the evidence of this witness, but we do not think we can place any reliance on it for the purpose of founding the conviction of the respondent. The evidence suffers from serious infirmities which have been discussed in detail by the High Court. It is not necessary to reiterate them, but it will be sufficient if we refer only to one infirmity which, in our opinion, is of the most serious character. Though according to this witness, she saw the, murderous assault on Hrudananda by the respondent and she also saw the respondent coming out of the adjoining house of Nityananda where the rest of the murders were committed, she did not mention the name of the respondent as the assailant for a day Wand a half. The murders were committed in the night of 13th June, 1969, and yet she did not come out with the name of the respondent until the morning of 15th June, 1969. It is not possible to accept the explanation sought to be given on behalf of the prosecution that she did not disclose the name of the respondent as the assailant earlier than 15th June, 1969, on account of fear of the respondent. There could be no question of any fear from the respondent because in the first place, the respondent was not known to be a gangster or a confirmed criminal about whom people would be afraid, secondly, the police had already arrived at the scene and they were stationed in the Club House which was just opposite to the house of the witness and thirdly, A.S.I. Madan Das was her nephew and he had come to the village in connection with the case and has also visited her house on 14th June, 1969. It is indeed difficult to believe that this witness should not have disclosed the name of the respondent to the police or even to A. Section 1, Madan Das and should have waited till the morning of 15th June, 1969, for giving out the name of the respondent. This is a very serious infirmity which destroys the credibility of the evidence of this witness. The High Court has also given various other reasons for rejecting her testimony and most of these reasons are, in our opinion, valid and cogent. If the evidence of this witness is rejected as untrustworthy, nothing survives of the prosecution case.

In the case of Mullagiri Vajram v. State of Andhra Pradesh (Supra) it has been held by the Supreme Court as under:

Learned Counsel for the accused persons submitted that even if the statement of P.W. 2 is taken to be correct, no offence is made out so far as accused (4-3) is concerned. Learned Counsel in this regard submitted that P. W. 2 in the cross examination has admitted that he did not state the name of A-3 in his statement recorded u/s 164, Cr. P.C. It was also submitted that though P.W. 2 stated that he had given the name of A-3 in his statement recorded at the inquest but the name of A-3 does not find mention in exhibit D-7, the statement of P.W. 2 recorded at the inquest. We see force in the aforesaid contention. A perusal of the. statement of P.W. 2 shows that He did not make a mention of the name ofA-3 in his statement recorded u/s 164, Cr. P.C. and also in his statement exhibit D-7 recorded at the inquest. In view of these circumstances the accused A-3 is also entitled to the benefit of doubt.

Now coming to the second limb of argument as to whether the two eye witnesses are reliable or not and can it be said that they are wholly reliable witnesses and implicit reliance can be placed on their testimony lo convict the. appellant we find that they are untruthful and non reliable witnesses. Their evidence is self contradictory in nature from the very genesis of the incident. According to P W 2 she in the mid night opened the door to take out PW 3 for attending the call of nature and when she returned back then the appellant pushed her from behind. This fact was turned upside down and PW 2 stated in court that when she opened the door to take PW 3 out she was pushed that very moment and therefore she could not go out at all. This change in statement of this witness is obviously for the reason that she had not seen the murder being committed by any body. Further PW 3 contradicted her and deposed that she had gone out side and came back after attending the call of nature then the accused pushed the informant. Even PW 2 at different places has contradicted her own statement on this aspect and at least on two occasions she deposed that her earlier statement in court was not correct. When these eye witnesses are not sure when they were pushed how they can be relied upon. Another surreal aspect is that according to PW 2, during investigation, she saw the incident and was threatened by the accused not to raise alarm but in her examination in chief she stated that she fainted after the murder was committed but again she deposed that she fainted before the incident occurred and she did not see who committed the murder. These contradictory statement of her deposition makes her testimony untruthful. If she had witnessed the occurrence why she did not comforted her husband as she had stated during investigation and if she fainted before witnessing the incident or their after why she was not brought back to senses by PW 1 and PW 3 who were present on the spot and how long she remained unconscious are all the fact which makes her unreliable witness. Her deposition that she had fainted is contradicted by the testimony of PW 3 who stated in no uncertain words that after the incident she had told the name of the, appellant to PW 1 before he had gone to lodge the FIR. This to us I seems to be last nail in the coffin of her false, Self contradictory and embellished deposition. She was also declared hostile and was cross examined by the APP. All these factors leads us to dub her as an unreliable and untruthful witness and therefore we discard her testimony for the said reason.

Coming to PW 2 she is also a faithful liar. She did not disclose to any body that the appellant had committed murder at any point of time. She stated that her mother had seen the incident which is in direct contradiction with the deposition of her mother. She further stated that the deceased was lying on the cot when the incident occurred but the site plan shows that the body of the deceased was lying on the ground and no cot was there in that room. She contradicted her mother by deposing that incident occurred when she was entering in her house after attending the call of nature. No place had been shown in site plan from where she had seen the incident though she stated that she had shown the said place to the IO She was in the company of her mother who as discussed above is untruthful witness. Albeit she stated that she was present on the spot but when PW 7 was conducting the inquest she and her mother were not to be found. From her evidence coupled with the evidence of PW 2 we are of the opinion that neither she nor her mother were at the spot at the time of the incident and therefore we discard her evidence also.

There are other important bizarre aspects of the case. It is a night incident but no source of light was found on the spot by the 10 nor the same is in the site plan. Lantern is alleged to have been hanging at the time of incident but the same was not taken in possession nor it''s recovery memo was prepared by the IO The prosecution was allowed sufficient time and Dasti Summons were given but it failed to produce the investigating officer as a witness during the trial which had caused serious prejudiced to the accused as they could not contradict the witnesses from their earlier statements nor they could ask the IO regarding light, cot, Dari, Rajai etc. which were alleged to have been present on the spot according to PW 2 and PW 3 but which were not found on the spot by the IO nor taken the custody. It is recalled here that according to the prosecution the incident occurred when the deceased was sleeping on the cot with Dari on it and he had covered himself with Rajai and it was in that posture, while sleeping that he was murdered. All theses missing facts goes to the root of the prosecution case and demolishes it''s already tattered fabric.

Concludingly, we are of the firm view that the two eye witnesses of the prosecution are wholly unreliable and untruthful witnesses and no reliance can be placed on their testimony to convict the appellant and therefore prosecution has miserably failed to prove the guilt of the appellant for which he was charged and the appeal must succeed.

This appeal is allowed. Conviction of the appellant recorded by the trial court vide it''s impugned judgment and order dated 7.4.97 for offences under Sections 449 and 302 IPC and sentences for life imprisonment each for both the counts, recorded by, Additional Session''s Judge / Special Judge (DAA) Hamirpur in S.T. No. 27 of 1992 State v. Gaya Prasad @ Gaya under Sections 449/302 IPC, PS. Sri Nagar, District Hamirpur is set aside and the appellant is acquitted of the said charges. Appellant is in jail. He is directed to be released forthwith unless he is wanted in any other case.