Gaya Prasad Verma and Others vs State of U.P.

S.C. Agarwal, J.—This criminal appeal has been filed against the judgment and order dated 20.12.2005 passed by Additional Sessions Judge/Special Judge, Court No. 7, Ballia in Sessions Trial No. 31 of 2000, whereby the Appellants Gaya Prasad Verma, Prayag Prasad Verma, and Shiv Kumar Verma were convicted for the offences under Sections 147, 148, 307/149 and 302/149, I.P.C. and each of the Appellants was sentenced to undergo R.I. for one year u/s 147, I.P.C, R.I. for two years u/s 148, I.P.C, R.I. for ten years and a fine of Rs. 2,000 with default clause u/s 307/149, I.P.C. and imprisonment for life with a fine of Rs. 5,000 with default clause u/s 302/149, I.P.C. All the substantive sentences were directed to be run concurrently.

The incident took place at midnight in the intervening night of 18.3.1999 and 19.3.1999 in village Rampur Hajia, police station Sikandarpur, district Ballia. The F.I.R. was lodged on 19.3.1999 at 2: 50 a.m. by the Appellant Gaya Prasad Verma against 8-10 unknown dacoits under Sections 395 and 397, I.P.C. Distance of police station from the place of occurrence is 10 kilometres.

As per the F.I.R., in the night in between 18/19.3.1999 at 12: 00 midnight, 8-10 miscreants armed with country made pistols, guns, lathis and dandas came to the sitting room of Gaya Prasad Verma, caught hold of Kailash, Prayag, Sanjay and Vinay and confined them in a room. Thereafter, the dacoits proceeded -towards the house of Lalji Verma (P.W. 1), who opened his door believing that someone from the village had come to take medicine. As soon as Lalji Verma came out of the house, he was beaten by the miscreants. On his cries, his son Sri Bhagwan (deceased) and other members of the family came out to rescue Lalji. The miscreants shot at Sri Bhagwan and assaulted other members of the family with lathis, dandas and firearms. In the meantime, after hearing the cries and the gunfire, villagers Kedar, Raja, Pareekha (D.W. 1), Kapur, Suresh Prasad, Raghunath (D.W. 2), Manoj, Anil and Pramod came there and started pelting stones. The miscreants fired at the villagers also causing injuries to Kedar. Raja, Pareekha and Kapur. Villagers set ablaze the heap of straw resulting in sufficient light and challenged the dacoits, who could not enter the house of Lalji Verma and escaped taking away motorcycle No. U.P. 60A 0371 belonging to Kailash.

While going to the police station to lodge F.I.R., Gaya Prasad Verma took the injured and witnesses to the police station with him from where they were sent for medical examination through Constable Shiv Kumar Pandey to Sikandarpur Hosiptal from where they were referred to District Hospital, Ballia. Sri Bhagwan died when he was being taken to Ballia. Injured Kedar also died after 5 -7 days.

On the basis of written report of Gaya Prasad Verma, case crime No. 54 of 1999 under Sections 395 and 397, I.P.C. was registered and Station Officer of Police Station Sikandarpur Sri G.P. Pandey (P.W. 8) commenced the investigation. On 19.3.1999, he recorded the statements of Gaya Prasad Verma, Kumari Lalsa and Smt. Geeta. He inspected the spot, recovered eight empty cartridges of 12 bore from the spot, prepared various memos and interrogated Suresh Prasad and Kapur Chand. On 20.3.1999, he interrogated Lalji Verma (P.W. 1) and Pramod and converted the case u/s 396, I.P.C. On 21.3.1999, the statements of Pareekha, Raja and Smt. Savita were recorded. During investigation, involvement of Appellants Gaya Prasad Verma, Prayag Prasad Verma and Shiv Kumar Verma came to light and charge-sheet u/s 302, I.P.C. was submitted against them.

Dr. A. K. Jaiswal (P.W. 5), then posted as Medical Officer at C.H.C. Sikandarpur, District Ballia examined Raja on 19.3.1999 at 3: 20 a.m. and found the following injuries on his person:

(i) Firearm wound round in shape with narrow marginal abrasions, size 0.4 cm. x 0.4 cm. over postero-lateral area of right side of neck, 5 cm. below the right ear.

(ii) Firearm wound round in shape, size 0.4 cm. x 0.4 cm. over lateral surface of right upper arm 18 cm. distal to right shoulder.

(iii) Firearm wound round in shape, size 0.4 cm. x 0.4 cm. over post surface of right upper arm, 6 cm. proximal right elbow.

(iv) Abrasion, size 2 cm. x 0.2 cm. Over upper part of right scapular area of back.

(v) Firearm wound round in shape with narrow marginal abrasion, size 0.4 cm. x 0.4 cm. over right lateral chest wall, 5 cm. lateral to right nipple.

(vi) Firearm wound round in shape with narrow marginal abrasion, size 0.4 cm. x 0.4 cm. over right lateral chest wall, 11 cm. postero-lateral to right nipple.

(vii) Firearm wound round in shape, size 0.4 cm. x 0.4 cm., over right upper point of abdomen, 6 cm. above to umbilicus.

(viii) Firearm wound round in shape, size 0.4 cm. x 0.4 cm. over antero-lateral surface of right leg, 15 cm. distal to right knee.

In the opinion of the doctor, injury Nos. (i), (ii), (iii), (v), (vi), (vii) and (viii) were caused by firearm, x-ray was advised whereas injury No. (iv) was simple and caused by blunt object. Duration was fresh. Injury report is exhibit ka-6. As per the x-ray report, which is exhibit ka-32, no abnormality was detected, but seven radio opaque shadows of metallic density were seen on various parts of the body.

On 19.3.1999 at 3: 50 a.m. Dr. A. K. Jaiswal (P.W. 5) examined Kapur Chand and found the following injuries on his person:

(i) Firearm wound round in shape with narrow marginal abrasion, size 0.3 cm. x 0.3 cm. over right ant. surface of neck 4 cm. above the supra sternal notch.

(it) Firearm wound round in shape with narrow marginal abrasion, size 0.3 cm. x 0.3 cm. over lower part of ant. surface of right shoulder.

(iii) Firearm wound round in shape with narrow marginal abrasion, size 0.3 cm. x 0.3 cm. over right lateral chest wall, 7 cm. below the right nipple.

(iv) Firearm wound round in shape with narrow marginal abrasion, size 0.3 cm. x 0.3 cm. over right inguinane area of thigh.

(v) Firearm wound round in shape with narrow marginal abrasion, size 0.3 cm. x 0.3 cm. over ant. surface of right thigh 4.5 cm. distal to injury No. (iv).

(vi) Firearm wound round in shape with narrow marginal abrasion, size 0.3 cm. x 0.3 cm. over ant. surface of right thigh 11.5 cm. distal to injury No. (iv).

(vii) Firearm wound round in shape with narrow marginal abrasion, size 0.3 cm. x 0.3 cm. over ant. surface of right thigh 27 cm. proximal to right knee.

(viii) Firearm wound round in shape with narrow marginal abrasion, size 0.3 cm. x 0.3 cm. over antero-middle surface of right leg 12 cm. distal to right knee.

(ix) Firearm wound round in shape with narrow marginal abrasion, size 0.3 cm. x 0.3 cm. over antero-lateral surface of right leg 15 cm. proximal to right ankle.

(x) Firearm wound round in shape with narrow marginal abrasion, size 0.3 cm. x 0.3 cm. over dorsal surface of right ankle.

All the. injuries were caused by firearm. Duration was fresh. X-ray was advised. Injury report is exhibit ka-7. As per the x-ray report, which is exhibit ka-13, no abnormality was detected. Five radio opaque shadows of metallic density were found.

On 19.3.1999 at 4: 20 a.m. Dr. A. K. Jaiswal (P.W. 5) examined Pareekha Rajbhar (D.W. 1) and found the following injuries on his person:

(i) Firearm wound round in shape with narrow marginal abrasion, size 0.3 cm. x 0.3 cm. over left chest 8 cm. above the left nipple.

(ii) Firearm wound round in shape with narrow marginal abrasion, size 0.3 cm. x 0.3 cm. over right chest 4 cm. below the right nipple.

(iii) Firearm wound round in shape with narrow marginal abrasion, size 0.3 cm. x 0.3 cm. over right upper arm on ant. surface 15 cm. distal to right shoulder.

(iv) Firearm wound round in shape with narrow marginal abrasion, size 0.3 cm. x 0.3 cm. over dorsal surface of right wrist.

(v) Firearm wound round in shape with narrow marginal abrasion, size 0.3 cm. x 0.3'' cm. over dorsal surface of middle finger of right hand.

(vi) Firearm wound round in shape with narrow marginal abrasion, size 0.3 cm. x 0.3 cm. over ant. surface of left thigh 16 cm. proximal to left knee.

(vii) Firearm wound round in shape with narrow marginal abrasion, size 0.3 cm. x 0.3 cm. over ant. surface of left thigh 6 cm. proximal to left knee.

All the injuries were caused by firearm and were fresh. X-ray was advised. Injury report is exhibit ka-5. As per x-ray report, which is exhibit ka-30, five radio opaque shadows of metallic density were seen.

All the three injured named above were referred to District Hospital, Ballia for further management.

Dr. C.I. Rajja (P.W. 7) of District Hospital, Ballia examined Kedar (later died) on 19.3.1999 at 5: 35 a.m. and found the following injuries on his person:

(i) Multiple lacerated wounds of size 0.5 cm. x 0.5 cm. on the face and scalp. Duration was fresh. X-ray was advised. Injury report is exhibit ka-9.

Dr. C.I. Rajja (P.W. 7) examined Lalji Verma (P.W. 1) on 19.3.1999 at 5: 50 a.m. and found the following injuries on his person:

(i) Four lacerated wounds each measuring 1 cm. x 0.5 cm. x skin deep on the upper part of right thigh.

(ii) Lacerated wound 3 cm. x 0.5 cm. on the left ear.

(iii) Complaint of pain on the upper part of right arm.

As per the injury report exhibit ka-10, injuries were kept under observation. Duration was fresh. X-ray was advised.

Dr. C.I. Rajja (P.W. 7) examined Smt. Poonam on 19.3.1999 at 6: 10 a.m. and found the following injuries on her person:

(1) Lacerated wound 8 cm. x 6 cm. bone deep on the left foot dorsum. Fragments of bone, muscle, legaments were visible.

As per injury report exhibit ka-11, injury was kept under observation. Duration was fresh. X-ray was advised.

Autopsy on the dead body of Sri Bhagwan was performed by Dr. Gyan Prakash (P.W. 4) on 19.3.1999 at 4: 00 p.m. As per the postmortem report exhibit ka-4, deceased was about 26 years of age. Death was caused about half day earlier. Following ante-mortem injury was found on the person of the deceased:

(i) Firearm wound of entry 3.5 cm. x 3 cm. x chest cavity deep on outer and upper left side of chest below left clavicle and first rib. Blackening, tattooing and scorching were present. Margins were inverted.

Fifteen small pellets were found inside right lung and one plastic wad was found in the chest. In the opinion of the doctor, the death was caused due to shock and haemorrhage as a result of ante-mortem injury.

Autopsy on the dead body of deceased Kedar was performed by Dr. G. Khan (P.W. 61 on 31.3.1999 at 5: 00 p.m. The deceased was about 60 years of age. The following ante-mortem injuries were found on the person of the deceased:

(i) Ante-mortem gunshot wound of entry on right side head.

(ii) Ante-mortem gunshot wound of entry at wait of skull.

The death was caused about one and a half day before the postmortem examination. The death was caused by shock and haemorrhage due to ante-mortem injuries. Postmortem report is exhibit ka-8.

Charge under Sections 147, 148, 307/149 and 302/149, I.P.C. was framed by learned Sessions Judge on 3.4.2000 against the Appellants, who denied the charge and claimed to be tried.

The prosecution examined ten witnesses in this case. Lalji Verma (P.W. 1), Smt. Poonam Verma (P.W. 2) and Km. Lalsa Verma (P.W. 3) have been examined as witnesses of fact. Dr. Gyan Prakash (P.W. 4) had performed autopsy on the dead body of Sri Bhagwan and Dr. G. Khan (P.W. 6) had performed autopsy on the dead body of Kedar. Dr. A.K. Jaiswal (P.W. 5) was examined to prove injury reports of Pareekha Rajbhar (D.W. 1), Raja and Kapur Chand. Dr. C.I. Rajja (P.W. 7) was examined to prove the injury reports of Lalji Verma (P.W. 1). Smt. Poonam Verma (P.W. 2) and Kedar (deceased). J. P. Pandey (P.W. 8) is the Investigating Officer and constable Parmatma Singh (P.W. 9) is the constable clerk, who proved chick report exhibit ka-27 and copies of G.D. exhibits ka-28 and ka-29. Arun Kumar Singh (P.W. 10), x-ray technician in District Hospital, Ballia was examined to prove x-ray reports of Pareekha Rajbhar, Raja and Kapur Chand.

The. Appellants, in their statements u/s 313, Code of Criminal Procedure, denied the prosecution allegations, but admitted that Lalji Verma (P.W. 1) is a close relative and there was litigation between the parties. It was further stated that the incident was not caused by the Appellants, but by the dacoits and Appellant Gaya Prasad Verma had lodged the correct report at the police station soon after the incident.

Three witnesses namely Pareekha (D.W. 1), Raghunath (D.W. 2) and Hansraj Tiwari (D.W. 3) were examined in defence on behalf of the accused-Appellants. Pareekha (D.W. 1), an injured witness though examined on behalf of the defence, deposed that there was a dacoity at the house of Lalji. After hearing noise, he went towards the house of Lalji and received firearm injury. The Appellants Gaya Prasad, Prayag and Shiv Kumar were not amongst the dacoits. He further stated that Sri Bhagwan, Lalji, Poonam and Kedar also received injuries on account of firing by the dacoits. Kedar and Sri Bhagwan died. The incident was also witnessed by Kapur Chand and Raghunath.

Raghunath (D.W. 2) is also a witness of fact. He stated that about 5 years ago, he was sleeping at his house. He woke up hearing the sound of firing. He ran towards the house of Lalji Verma. On the way, Gaya Prasad Verma, Anil, Pramod and Dharmendra met him. Gaya Prasad asked him to throw stones at the dacoits. Gaya Prasad also asked to lit the straw heap. When the straw heap caught fire resulting in light, the dacoits ran away. He found the door of Lalji Verma (P.W. 1) bolted from outside. He unbolted the door and inmates of the house came out. Further, he also opened the door of gher of accused Shiv Kumar. Shiv Kumar also came out from inside. Thereafter he went to the sitting room of Gaya Prasad Verma. He opened the door and Prayag, Kailash, Ashutosh, Vinay and Sanjay came out. He further stated that Sri Bhagwan, Poonam, Kedar, Pareekha and Kapur Chand received injuries as a result of firing by the dacoits. Accused Gaya Prasad brought tractor-trolley of Lallan Tiwari and took all the injured to Sikandarpur hospital and lodged report at the police station. At the time of dacoity, the Appellants were not armed with any weapon. Dacoits also took away the motorcycle of Gaya Prasad.

Hansraj Tiwari (D.W. 3) is an advocate. He was examined to prove the affidavits of Smt. Poonam Verma and Lalji Verma dated 23.3.1999. which are exhibits kha-1 and kha-2.

Relying upon the prosecution version and the evidence adduced on behalf of the prosecution and disbelieving the defence theory, learned trial court convicted and sentenced the Appellants as aforesaid.

We have heard Sri Viresh Misra, learned senior advocate assisted by Sri Amit Misra, learned Counsel for the Appellants, Sri Virendra Kumar, learned Counsel for the complainant, Sri Ram Milan Dwivedi, learned A.G.A. for the State and perused the records.

Learned Counsel for the Appellants submitted that the conduct of the prosecution witnesses is contradictory and inconsistent with the prosecution case. The witnesses were present at the police station at the time of lodging of the F.I.R. by the Appellant Gaya Prasad Verma, but Lalji Verma (P.W. 1) neither lodged any F.I.R. nor made any protest against lodging of the F.I.R. by Gaya Prasad Verma. At the police station, at the time of lodging of the F.I.R., none of the witnesses made any allegation against the Appellants and it was the Appellant Gaya who had taken all the injured persons to the police station. After five days, on 23.3.1999, affidavits of Lalji Verma and Poonam Verma were prepared in connivance with the Investigating Officer and on that basis the Appellants were falsely implicated. It was further submitted that another deceased Kedar remained hospitalized for about a week, but his statement was deliberately not recorded by the Investigating Officer, as he would not have supported the case, as set up by Lalji Verma. It was further submitted that witnesses, in their statements, admitted that the Appellants Gaya Prasad, Prayag and Shiv Kumar had their faces covered by a dhata and it was not possible for the witnesses to recognize their faces. It was further submitted that motive is a double edged weapon and there was sufficient reason for Lalji and his family members to falsely implicate the Appellants though they are elosely related.

It was contended that none of the independent witnesses have been examined by the prosecution though they also suffered gunshot injuries. The family members of another deceased Kedar have also not been examined and deliberately withheld by the prosecution.. It was further contended that the witnesses are highly interested, partisan and inimical to the accused and their testimony should be scrutinized with great care and caution. The prosecution witnesses do not come in the category of wholly reliable witnesses and their testimony without independent corroboration should not have been accepted by the trial court. It was contended that Pareekha Rajbhar (D.W.1), an injured witness and Raghunath (D.W. 2) are also eyewitnesses of the incident and have denied the involvement of the Appellants in the crime. There cannot be two standards for judging the credibility of witnesses produced on behalf of the prosecution and the witnesses examined on behalf of the defence. Though all the witnesses were present at the police station at the time of lodging of the F.I.R., their statements were not recorded by the Investigating Officer then and there, but recorded later in an arbitrary manner.

Learned A.G.A. and learned Counsel for the complainant have vehemently supported the trial court judgment and submitted that the Appellants had enmity with the family of Lalji Verma and they have been rightly convicted by the trial court. The Appellants though involved in the incident, lodged a false report at the police station to mislead the police. Gaya Prasad took advantage of the serious condition of the injured persons and the deceased Sri Bhagwan. Lalji Verma, on being discharged from the hospital, brought correct facts to the knowledge of the Investigating Officer.

Since the prosecution case is entirely different from the version of the F.I.R., let us have a glance at the statements of the eye-witnesses examined by the prosecution.

It is an admitted fact that one Daulat had three sons namely Ganga Deni, Ram Dayal and Lochan. Ganga Deni was issue less and had no wife. Lalji Verma (P.W. 1) was the son of Gorakh Verma and Smt. Ram Kaliya. After the death of Gorakh Verma, Smt. Ram Kaliya married Ganga Deni. Lalji Verma, the child also went with her to the house of Ganga Deni when he was one year old. Ram Dayal had only a daughter and he had given his share in the property to the Appellants. On the other hand, Ganga Deni had bequeathed his property in favour of Lalji Verma. This led to a litigation between Lalji Verma on one side and the Appellants on the other. Appellants Gaya Prasad and Prayag are the sons of Lochan and Shiv Kumar is the son of Prayag.

Lalji Verma (P.W. 1) stated that he won the case against Appellants and land of Ganga Deni came to his share. This led to enmity between the parties and Gaya Prasad used to threaten that he would not permit his progeny to continue. Deceased Sri Bhagwan was the only son of Lalji Verma besides five daughters. His daughter Poonam (P.W. 2) was a widow and lived with him. On the fateful night, he was lying in the verandha of his sitting room. His daughters Lalsa (P.W. 3) and Geeta lay on the roof. Poonam was also in the verandha. His son Sri Bhagwan was sleeping inside. On 18.3.1999 at midnight, eight miscreants armed with country made pistols and lathis came to his door flashing torches. He opened the door and as soon as he came out, Prayag started beating him with a lathi. Shiv Kumar fired at him and Poonam. In the meantime, Sri Bhagwan also came out of the house and Gaya Prasad fired at Sri Bhagwan. On alarm, co-villagers Raja, Kedar (another deceased), Pareekha (D.W. 1), Kapur Chand, Raghunath (D.W. 2), Suresh, Anil, Pramod etc. reached there and saw the incident. Someone lit the heap of straw. Villagers challenged the dacoits. Shiv Kumar and Gaya Prasad fired at the villagers resulting in injuries to Raja, Kedar, Kapur Chand and Pareekha. All the injured persons were taken to Sikandarpur Hospital on the tractor-trolley of Lallan Tiwari from where they were referred to Government Hospital, Ballia. On way to Ballia, Sri Bhagwan died. Injured were admitted at Government Hospital, Ballia. Kedar died after 5 -7 days. He recognized the Appellants in the light of lantern and wheat straw fire. Gaya Prasad and Shiv Kumar were armed with country made pistols and the remaining miscreants were armed with lathis and torches. Gaya Prasad had a motorcycle. On the date of the incident, at about 4: 00 p.m., one person came to the house of Gaya and took away the motorcycle alongwith Gaya with him. That person was also involved in the incident. Due to disturbed mental condition, he did not lodge F.I.R. and accused Gaya Prasad, taking advantage of the situation, lodged false F.I.R. at the police station.

Smt. Poonam (P.W. 2) and Km. Lalsa (P.W. 3) are the daughters of Lalji Verma (P.W. 1) and have corroborated his testimony.

Enmity between the parties is an admitted fact. Lalji Verma (P.W. 1) admitted in cross-examination that earlier he filed a criminal case against Gaya, which resulted in acquittal. There was civil litigation also between the parties. Other two witnesses are the daughters of Lalji Verma (P.W. 1). No Independent witness has been examined by the prosecution. Only interested and partisan witnesses have been examined. Enmity is a double edged weapon. On one hand the Appellants had a motive to commit the incident and cause the death of son of Laljl Verma (P.W. 1), on other hand Lalji and his daughters had equal motive to falsely implicate the Appellants. In these circumstances, the testimony of eye-witnesses is to be scrutinized very carefully.

We find sufficient force in the submission of learned Counsel for the Appellants that despite there being many independent witnesses, they have not been examined by the prosecution. Admittedly, besides the family members of Lalji (P.W. 1), Pareekha, Raju, Kapur Chand and Kedar received gunshot injuries. Kedar died, but surprisingly he was not even interrogated by the Investigating Officer though Kedar remained in hospital for about a week. No explanation for non-examination of Pareekha, Raja and Kapur Chand has been furnished by the prosecution. On the other hand, Pareekha has been examined as a defence witness and he supported the version of the F.I.R. Raghunath (D.W. 2) is also an eyewitness, who was withheld by the prosecution and examined by defence. Both the defence witnesses Pareekha and Raghunath supported the F.I.R. version and denied involvement of Appellants in the crime. As per the F.I.R., the incident was witnessed by Raja, Pareekha, Kapur Chand, Suresh Prasad, Raghunath, Manoj, Anil and Pramod. Lalji Verma (P.W. 1) also admitted this fact in cross-examination. After the incident, he was lifted by Raja, Pareekha and Kapur Chand. Sri Bhagwan was lifted by Manoj, Suresh, Anil, Raghunath, Pramod and Poonam. No explanation has been furnished by the prosecution to show why Raja, Pareekha, Kapur Chand, Manoj, Suresh, Anil, Raghunath and Pramod, who were eye-witnesses of the incident, were not examined in evidence. In the absence of independent corroboration, the testimony of interested and inimical witnesses has to be scrutinized with great care and caution.

As far as Lalji Verma (P.W.1) is concerned, his version came to light for the first time on 23.3.1999 when he submitted affidavits wherein involvement of Appellants was disclosed. His affidavit is exhibit kha-2. In cross-examination, he stated that none of the miscreant was armed with a gun whereas in the affidavit exhibit kha-2, Appellants and other accused were said to be armed with guns also. He could not see who fired at Kedar. He admitted that he was taken to hospital on the tractor-trolley of Lallan Tlwari. He, however, denied that he was taken to police station by the Appellants. He further admitted that he remained at the police station for about 10 minutes, but he did not make any complaint to the police about involvement of the Appellants. Appellant Gaya Prasad was also present at the police station and lodged F.I.R., but no protest was made by Lalji Verma (P.W. 1) against lodging of F.I.R. by Gaya Prasad, which creates doubt about the subsequent story developed by P.W. 1 through his affidavit involving the Appellants in the crime. Undoubtedly, F.I.R. was lodged by accused Gaya Prasad. All the injured were taken to the police station on tractor-trolley of Lallan Tiwari. At the police station, neither P.W. 1 lodged any F.I.R nor made any protest against lodging of F.I.R. at the instance of Appellant Gaya Prasad. For the first time, after 5 days, on 23.3.1999 this witness came out with a story that Appellants were also involved in the incident. He admitted in cross-examination that he was interrogated by the Investigating Officer after 6 days in the hospital and Daroga took him to Court for preparing affidavits. This admission clearly indicates that affidavit exhibit kha-2 was got prepared by Laljl Verma (P.W. 1) at the instance of Investigating Officer.

Lalji Verma (P.W. 1) admitted in cross-examination that out of .8-10 miscreants, 3 had their faces covered. He further admitted that the miscreants with covered faces were Prayag, Gaya and Shiv Kumar, the Appellants. If the Appellants had their faces covered with a dhata, there was no occasion for P.W. 1 to recognize their faces. This makes the entire statement of Lalji Verma (P.W. 1) doubtful.

Poonam Verma (P.W. 2) also admitted in cross-examination that Gaya, Prayag and Shiv Kumar had covered their faces. She, however, developed a new explanation that she caught hold of Shiv Kumar and Gaya by both hands and gamchha fell down and when their faces came in front of her, she caught the cloth and their faces were uncovered. This explanation is simply an afterthought to explain how she could recognize the faces of Appellants, who had covered their faces with a cloth. This explanation was not mentioned in her affidavit exhibit kha-1 and was furnished in Court for the first time and can hardly be believed.

As per the statements of Lalji Verma (P.W. 1) and Poonam Verma (P.W. 2), the Appellants had their faces covered with a cloth. Had it been so, it was not possible for the witnesses to recognize their faces.

We find sufficient force in the submission of learned Counsel for the Appellants that the names of Appellants were mentioned in the affidavits exhibit kha-1 and kha-2 only on the basis of suspicion and none saw the Appellants committing the crime.

The statements of witnesses are alse contradictory on material points. According to Lalji Verma (P.W. 1), the Appellants were armed with country made pistols and lathis and none of the miscreant was armed with a gun, whereas according to Poonam Verma (P.W. 2), Shiv Kumar was armed with a gun. According to Km. Lalsa (P.W. 3), Shiv Kumar was armed with a country made pistol. She also admitted in her statement that some of the miscreants were trying to hide their faces, which corroborates the admission made by Lalji Verma (P.W. 1) that Appellants had their faces covered and it was not possible for the witnesses to recognize them. She further stated that Prayag and Shiv Kumar caught hold of Sri Bhagwan and Gaya fired at him. She did not disclose the names of Shiv Kumar and Prayag to the Investigating Officer in her statement u/s 161, Code of Criminal Procedure The Investigating Officer has admitted that Km. Lalsa did not disclose the name of any other accused except Gaya.

Besides Sri Bhagwan, Kedar also received gunshot injuries and died later on. No attempt was made by the Investigating Officer to interrogate him or his family members. The family members of Kedar have also not been examined and deliberately withheld by the prosecution.

After careful consideration of the testimony of Lalji, Poonam and Km. Lalsa, we have come to the conclusion that they cannot be treated as wholly reliable witnesses. All the injured were taken to the police station soon after the incident, but none of them lodged F.I.R. involving the Appellants. The F.I.R. was lodged by Appellant Gaya, which clearly indicates that he was present at the police station when injured were taken to the police station, but at that time Lalji Verma did not make any attempt to lodge F.I.R. or to protest against lodging of F.I.R by Appellant Gaya. This conduct is highly unnatural. It appears that after 4 or 5 days, Lalji suspected involvement of Appellants and submitted affidavits in consultation with the Investigating Officer. In these circumstances, no absolute reliance can be placed on the testimonies of only interested and inimical witnesses. Non-examination of independent witnesses speaks volumes against the prosecution case. The defence has examined independent witnesses Pareekha and Raghunath as D.W. 1 and D.W. 2, who have clearly ruled out involvement of Appellants in the crime. Both these witnesses have been thoroughly cross-examined, but nothing could be elicited in the cross-examination, which could create doubt about their testimony. We agree with the submission of Sri Viresh Misra, learned Counsel for the Appellants that there cannot be two standards for judging the credibility of witnesses produced on behalf of the prosecution and the witnesses examined on behalf of the defence. Pareekha is an injured witness. Even Lalji Verma (P.W. 1) admitted the presence of Pareekha and Raghunath at the time of incident and their testimonies cannot be lightly brushed aside.

The incident took place at midnight. Independent witnesses were present at the time of incident, but withheld by the prosecution. As admitted by P.W. 1 and P.W. 2, the faces of Appellants were covered and there was hardly any occasion for the witnesses to recognize the Appellants. The statements of witnesses of fact examined by the prosecution are contradictory and conduct of P.W. 1 and P.W. 2 in not lodging any F.I.R. at the police station and not protesting against the lodging of F.I.R. by accused Gaya is highly unnatural. The affidavits implicating the Appellants were prepared after 5 days after due/deliberations and active connivance of the Investigating Officer. On one hand there was motive on the part of the Appellants to commit the crime and on the other hand the witnesses, who are highly inimical to the Appellants, had an equal motive to falsely implicate them. Undoubtedly, prosecution has to stand on its own legs when two versions of an incident are probable, the version, favouring the defence, has to be preferred for the reason that the F.I.R. lodged by accused Gaya was prompt and on the other hand the version handed out by P.W. 1 and P.W. 2 came to light after 5 days by means of affidavits.

In view of what has been stated above, we hold that the prosecution has not been able to establish its case by means of reliable evidence and the Appellants are entitled to the benefit of doubt. The judgment of conviction recorded by learned Sessions Judge has no legs to stand. The judgment and order dated 20.12.2005 passed by Additional Sessions Judge/Special Judge. Court No. 7, Ballia in Sessions Trial No. 31 of 2000 is set-aside.

The appeal is allowed.

The Appellants are in jail. They shall be set at liberty forthwith unless wanted in some other case.

Let a copy of this judgment alongwith the trial court record be sent to the Court concerned for compliance.