Navrang Singh vs State of U.P.

S.K. Phaujdar and N.S. Gupta, JJ.—The present appeal is directed against the judgment and order of the I Vth Additional Sessions Judge, Mainpuri, dated 18.9.1980 whereby the present Appellant was convicted u/s 302, I.P.C. and was sentenced to life imprisonment. On presentation of the appeal, the Appellant was directed to be released on bail by an order of this Court dated 24.9.1980.

The Appellant and three others, viz., Hiralal, Rajaram and Phateh Chandra, stood charge for an offence u/s 34, I.P.C. in S.T. No. 321 of 1979. While the other three were given benefit of doubt and were acquitted, the present Appellant was convicted and sentenced, as stated above.

The incident in question allegedly took place on 17.4.1979 at about 6.00 p.m., for which the F.I.R. in Case Crime No. 56 u/s 302, I.P.C. of P.S. Alau, District Mainpuri, was lodged at 12.15 in the night, i.e., about six hours after the alleged incident. The F.I.R. was lodged by Ram Prakash Singh wherein he had named all the four persons, who stood trial before the Sessions Court. In the F.I.R., Ram Prakash Singh stated that he and his brother Om Prakash were engaged in getting their field harvested. One Mindavei was collecting loose grains that had fallen on the ground. It was about 6.00 p.m. on 17.4.1979 when Rajaram, Hiralal, Phateh Chandra and Naurang came there. Naurang was allegedly holding a rifle, Rajaram and Hiralal were having guns, and Phateh Chandra had with him a Katta. Rajaram, Hiralal and Phateh Chandra were described as residents of village Ong, and Naurang Singh was stated to be a man of Salbahanpur. The complainant stated further that after their arrival, these persons had challenged Om Prakash and Naurang told him that Om Prakash was taking steps in the case of murder of Shivpal Singh and he would not be spared and would not be left alive for having taken steps against Naurang. At this, Ram Prakash and Om Prakash raised alarm but all these persons opened fire on Om Prakash. On their screams, Prithvi Raj and Shivpal, who were harvesting in a neighbouring field, reached and saw these persons opening fire on Om Prakash. On receipt of gun-shots, Om Prakash fell down and died. When Om Prakash fell down, the accused persons fled away towards south of the field. One Kaptan Singh had seen them running away. This Kaptan Singh was approaching the field of the complainant. It was the further case of the complainant that due to fear of interference, the dead body was removed from the field and was brought near the door of the house of the complainant and thereafter the report was lodged.

During investigation, police made inquest on the dead body, sent it for post-mortem examination and had seized blood-stained earth and standard earth from the place of occurrence. A bullet was also allegedly recovered from the place of occurrence and charge-sheet was submitted. At the trial, prosecution had examined nine witnesses. They were P.W. 1 Ram Prakash Singh, P.W. 2 Head Constable Mahavir Singh, P.W. 3 Dr. D. P. Mishra, P.W. 4 Prithvi Raj Singh, P.W. 5 Kaptan Singh, P.W. 6 Shivram Singh, P.W. 7 Roshan Singh, P.W. 8 R. K. Mishra and P.W. 9 Ahvaran Singh, whose affidavit was filed. A definite defence of alibi was taken by the present Appellant, Naurang Singh, and it was stated by him that he was already under arrest at Bhind (Madhya Pradesh) at the alleged time of occurrence. Two witnesses were also examined on behalf of the defence.

In the course of his submissions, the learned Counsel for the Appellant questioned the truth of the prosecution story for absence of explanation of a cut finger, which was observed by the Investigating Officer at the time of the inquest as also for discrepancies in the statements of the witnesses. It was further urged that when three persons, against whom similar evidence was given by the prosecution witnesses, were granted benefit of doubt, there was no reason for the trial court to have believed the prosecution version in respect of the present Appellant alone. It was further stated that the motive against the present Appellant was not at all proved and in any view of the matter, according to the prosecution version, there had been only one rifle shot, but the medical evidence indicated four shots from the same weapon and even if it was held that Naurang was having a rifle, the other three rifle injuries are not explained by the prosecution. The theory of causing injury from a close range was also disputed as only one of the injuries on the deceased had blackening and charring, while others were not of that description. The learned Counsel also submitted that there was no acceptable evidence on record that the death was caused due to a rifle shot or that the bullet, that was found, could have been shot from a 315 bore rifle.

To appreciate the arguments of the learned Counsel, the evidence of the prosecution is to be looked into. The post-mortem report of the dead body of Om Prakash indicates that the examination was done on 18.4.1979 at 5.30 p.m. and the probable time of death was one day. It was a well-built body and rigor mortis had passed off from the upper limbs, but was present on the lower limbs. There was one gun-shot entry wound 1.5 cm. 1.5 cm. cavity deep on the right jaw. The Morgins were lacerated and averted and blackening, scorching and tattooing were present around the wound. There was a corresponding exit wound measuring 7cm. ? 4 cm. and the mandible bone was found fractured. There was a further gun-shot wound of entry 1.5 cm. 1.5 cm. cavity deep on the left side of chest, 11 cm. below the left nipple and a corresponding exit wound on the right side of chest below the right Axilla. The third entry wound was there from a gunshot measuring 1.5 cm. 1.5 cm. bone deep on the medial side of the upper arm and a corresponding exit wound near the middle of the elbow. The fourth gun-shot entry wound measuring 1.5 cm. 1.5 cm. muscle deep was found on the left side of the chest with corresponding exit wound on the left side of that. In addition to these gun-shot wounds, the Doctor had found several abrasions on the chest and abdomen. The death was due to shock and haemorrhage caused by the injuries.

To recapitulate the prosecution story, it may be stated that the complainant and his brother were engaged in getting their crops harvested (Katwa Rahe The). P.W. 1, stated in Court that he and his brother were engaged in cutting the crops themselves. P.W. 1 also spoke of old enmity between Naurang and Om Prakash. It was stated that one Shivpal Singh was murdered about 1-1/2 years prior to the date of deposition and Om Prakash was taking the necessary steps in the case on behalf of the inmates of Shivpal''s house. Naurang was an accused in that murder case and Om Prakash had accompanied the wife of Sheopal to the police station to lodge the report. Om Prakash had also allegedly gone to the High Court to swear an affidavit in a bid to oppose the prayer of bail made by Naurang Singh there. When P.W. 1 and P.W. 2 were engaged in harvesting, Mina Devi, sister-in-law of Om Prakash was engaged in collecting the loose grains (Sheeta Bin Rahi Thi). It was 6.00 p.m., sun had not set and visibility was quite clear. The south-western portion of the concerned land was being harvested at the relevant time. The accused Naurang and others came from behind and it was Naurang who had asked Om Prakash as to why he was taking steps on behalf of the prosecution in the case of murder of Shivpal. He threatened Om Prakash with dire consequences. According to P.W. 1, all the four persons were standing towards north of the concerned field with arms, as they were holding as per the F.I.R. The complainant and his brother raised an alarm and Shivpal and Prithvi Raj came there and by that time Naurang Singh opened fire from his rifle and others also fired from their weapons. After firing, they went out of the field and went away towards south. Kaptan Singh and Vishwanath Singh reached after their departure. Other villagers had also assembled. The complainant broke down with tears. When it was dark the people suggested that the dead body should be removed to the village. A Charpai was brought and the deceased was taken to the village and was kept near his door. Thereafter the complainant went to the police station to lodge the report. When he took the report to the Thana, he was accompanied by Sone Singh, Sampati Ram, Girish Singh and the Chaukidar with their arms. All had gone on foot to the Thana. The police station was 11 kms. away from the village and these persons started from the village at about 9.30 p.m. The report was made over to the Dewanji and then the chick report was prepared. The complainant came back to the village to reach there at 2.30 a.m. and within 15 minutes or so the Police Officer had also reached. The dead body was seen at the door of the house but there was no light and hence nothing was written during night. Nobody was brought before him during night. Light was not sufficient for investigation and only after dawn investigation was started. The cross-examination of this witness indicates that he was separate from Om Prakash for 10-12 years and was living separately. Their present residences were at a distance of 70-80 steps. The witness further admitted that Om Prakash had 15 Bighas of land inherited from his father and he had also purchased 15 Bighas of other land. He was confronted with his statement before police that they were not cutting the crops themselves but were getting the same done by others. He further admitted that amongst the neighbours, only Prithvi Raj and Shivpal were engaged in harvesting their own land. It was further stated by him that the Investigating Officer had seen the bundles of harvested crops at the spot. When the Daroga had seen the fields, the sickle or shoes of the deceased were not there. Regarding the incident itself, this witness stated that the first saw the accused persons when they were 5 or 6 steps away from him towards north. Om Prakash was also standing towards north of this witness at a distance of 8 to 10 steps. The accused persons were 5 or 6 steps away from Om Prakash, but the shooting was done, according to this witness, from a distance of 2 to 3 steps on Om Prakash. The first fire was made by Naurang Singh closely followed by other three from their fire-arms, and in all there were 4 or 5 fires. It was argued by the learned Counsel that there were four persons and all had opened fire and in all four or five fires were shot. Not more than two, therefore, could be attributed to Naurang as at least one each was to be attributed to the other assailants. The learned Counsel argued that the absence of injuries from other arms has been accepted by the trial court and as such, there was no explanation for the ambiguity between the medical evidence and ocular evidence.

P.W. 1 further stated that Om Prakash received the gun-shots in a standing posture and no shot hit him after he had fallen down. It is already in the evidence that the dead body of Om Prakash was carried to his house. P.W. 1 stated that blood drops fell on the way from the field to the house but he also accepted that these drops of blood were not found by the I. O. during investigation. He also denied knowledge if the dead body was kept on a Charpai or on the floor. It was suggested to him that Om Prakash was killed by unknown miscreants, who had chopped off his finger to loot his ring. He also accepted that during spot inspection the Investigating Officer recovered a bullet. There was no other fire-arm or ammunition/material found there like shots, wads or blank cartridge. He accepted that even after the despatch of the dead body, the I.O. had not examined Mina Devi or the eye-witnesses. These witnesses were not examined at the time of making Panchayatnama. He could not say if the weapons of the assailants were reloaded at the spot, but he was sure that the Hansiya (sickle) of Om Prakash had no blood mark.

P.W. 4 Prithvi Raj Singh claimed to be an eye-witness and according to him at about 6.00 p.m. on the date of occurrence he and his brother Sheopal were engaged in harvesting wheat crops in their own field. The land of Om Prakash lay towards north of their land and it was being harvested, at the relevant time, by Om Prakash and his brother Ram Prakash, while Minadevi was collecting the loose grains that had fallen on the ground. He heard some hue and cry from the land of Om Prakash and he and Shivpal rushed towards that place. The witness claimed to have seen Naurang Singh with a rifle, Hiralal and Rajaram with guns and Phateh Chandra with a Tamancha. He further claimed that all these persons opened fire from their weapons on Om Prakash. This witness was about 40 steps towards south from the place of occurrence when fire was made. When fire was resorted to he stopped moving towards the place of occurrence. Om Prakash fell down and the accused persons ran away towards south-west. Kaptan Singh reached the spot within 4-5 minutes. Om Prakash had died by the time the witnesses reached near him. His dead body was taken to his house on a Charpai and was kept near his door. There was bright sun light at the time of the occurrence. After getting the dead body at the door of Om Prakash, the witness went back to his house and thereafter on the request of the wife of Om Prakash, he went to inform Vishwapal Singh at village Deopura, whose wife was a sister of the wife of Om Prakash. He left for Deopura in the morning and came back with Vishwapal and others at about 12.00 noon and by that time the dead body had been removed by the police. He was confronted with his statement before the police wherein he had allegedly stated that at about 6.00 p.m. on the day of occurrence, Om Prakash and Ram Prakash were getting their wheat harvested. He did not state before the police that Mina Devi was engaged in collecting the loose grains. A very significant statement was made by him when he admitted that no finger of Om Prakash was severed from his body. A finger was, however, fully cut although it was feebly attached with the skin. According to him, shooting was done from a distance of five steps. He could not say on which part of his body Om Prakash received the gun-shot injuries. Om Prakash was having a sickle in his hand then. The witness, however, could not recollect if the sickle was in his hand when the dead body of Om Prakash was removed to his house. His sickle was in his house on the day of the deposition of the witness. He did not notice if Mina Devi had brought any cloth or basket for collecting the loose grains, but these grains had no doubt reached their house. Nobody in the place of occurrence suggested that a quick report should be made at the Thana or somebody should go on a Tractor. He was, no doubt, examined late during investigation, but he did not state to police that he was away from the village to call Vishwapal. His cross-examination indicates that he was arrested by the police in a case u/s 307, I.P.C. He had further stated that Hiralal (accused) had lodged a case of dacoity against him in which Dwarka, father of Rajaram, was a witness. He contradicts P.W. 1 when he says that no blood had oozed from the injuries of Om Prakash when the dead body was taken from the field to his house. He even could not say if the sheet spread over the cot (charpai) had any blood mark. He explained that the dead body was brought to the house so that it may not be removed from the field by some miscreants.

P.W. 5 Kaptan Singh is not an eye-witness in the true sense of the term but he narrates what he had allegedly seen immediately after the incident. According to him, he was going to village Ong on the date of occurrence. When he was only 30 steps south of the land of Prithviraj, he heard the sound of 4 or 5 gun-shots. He found further that Naurang Singh with a rifle, Hiralal and Rajaram with guns and Phateh Chandra with a Katta were running away towards south-west. They were coming from a northern direction. This witness went to the spot and found Om Prakash dead. Ram Prakash, Mina Devi, Prithviraj and Shivpal were there. He was told by Ram Prakash that the accused persons had killed Om Prakash and fled away and he too informed them that he had seen them running away. By that time Vishwanath Singh also reached there, the dead body of Om Prakash was removed to the village. He then left for his house. The Investigating Officer met him four days after the incident and recorded his statement. Although he claimed here that he was moving to village Ong, but before police another statement was made and he had claimed that he was moving, at the relevant time, to village Mangla Pharras. He did not tell the police officer that he was going to Ong to collect labourers. He did not state to police that he had heard the sound of gun-fire. He had admitted in cross-examination that what he had seen was narrated to Ram Prakash and then to the Investigating Officer and to none in the meantime. He did not state to police that Ram Prakash had told him about the incident. He did not indicate to the police officer as to wherefrom he had seen the accused persons running away. He could not say if Naurang Singh was holding a 315 bore rifle but his Section 161, Cr. P.C. statement records such a statement. It was argued by the learned Counsel that it was the intelligence of the Investigating Officer to introduce the story of 315 bore rifle through the witness to fit in with the story of recovery of a bullet.

In addition to the alleged ocular version of the incident, as given by P. Ws. 1, 4 and 5, there was evidence of recovery of certain articles also. P.W. 6 Shivram Singh is one such witness who has proved the recovery. In his presence, blood-stained earth and standard earth were recovered and sealed in two boxes by the I.O. He also stated that a bullet was recovered by the I.O. in his presence from the spot. He identified the samples of earth but there was no identification by him of the bullet that was allegedly recovered in his presence, although he had proved the seizure list therefore P.W. 7 Roshan Singh is the A.S.I., who had reached the spot after the case was registered. According to him, he arrived at the spot at about 3.15 a.m. and found the dead body of Om Prakash on a Charpai kept at the door of his house. The panchayatnama was not prepared then and there, as there was no proper light. Inquest was held after day break. Mina Devi was there but was not in a position to make a statement as she was weeping and crying. He sent the Chaukidar for Prithviraj and Shivpal but could not meet them. He sent the dead body for post-mortem examination through his constables and visited the spot on identification by Ram Prakash and prepared a sketch map. He found the crops harvested on the western portion and found some bundles of harvested crops kept there. He found blood on the north-western portion of the land and he collected blood-stained earth and standard earth from the spot. In the blood-stained earth there were traces of harvested wheat crops also. Near the blood marks, he found a bullet which was marked as material Ext. 7. He opined on the basis of his experience for more than 20 years in police that this bullet in Ext. 7 was an ammunition for a 315 bore rifle. He was also cross-examined on the point of alibi of Naurang Singh and he admitted that Kusumra is on the main road, 9 kms. from the spot. Etawah was 47 kms. from Kusumra and Bhind was 35 kms. away from Etawah, all connected by a good road. He opined that one could reach Bhind from the spot within one hour and 15 minutes on a motor-cycle. He did not note in the sketch map nor in his inspection note that he had seen any bundle of harvested crop on the land of Om Prakash. In the inquest report this A.S.I. had indicated presence of a severed finger of the deceased. His evidence discloses further that he saw a cut finger of Om Prakash near his dead body which was separate from the main body and was found near his head. He did not ask any witness any question regarding this cut finger nor did he ask the Doctor any question about it. This cut finger was shown at Sl. No. 9 of the injuries in the inquest report. This finger was sealed along with the dead body and sent for post-mortem examination, but no separate note was made that it was so sent. His attention was drawn to Ext. Ka-10 (the Panchayatnama) in which a note was made to the effect "Naurang Aadi Charnafar Dwara Goli Markar Hatya Karna". It was suggested that impression of the ink was different for the words "Naurang Aadi" and for the other words. It was argued by the learned Counsel that till the time of recording the inquest it was not sure as to who were the assailants.

P.W. 8 R. K. Mishra had taken charge of investigation of this case from A.S.I. Roshan Singh and he started investigation on 19.4.1979. He visited Nangapharas with Roshan Singh on that very date and examined Prithviraj Singh, Shivpal Singh, Mina Devi and Vishwanath Singh. On 20.4.1979 he recorded the statement of Kaptan Singh. He was informed of the surrender of the accused persons in Court and thereafter he recorded their statements and submitted charge-sheet. He too came forward to say that he had a fair knowledge on use of rifles and gun and he himself had a licence of a 315 bore rifle for five years. He looked to the bullet in Ext. 7 and opined that it was a bullet used in a 315 bore rifle. He claimed that witness Prithviraj, Kaptan and Shivpal have stated to him about 315 bore rifle held by Naurang. He had received the post-mortem report but could not be sure if there was any injury on the finger of the deceased. He had read the inquest report but made no enquiries regarding the cut finger. He did not think it necessary to get an opinion of the Ballistic Expert regarding the bullet as he had sufficient knowledge about it. 315 bore rifle was a high velocity weapon. He could not give the diameter of a bullet used in a 315 bore rifle. Naurang Singh was not required in any dacoity case nor was a bad character, according to police records. Through him the previous statements of the witnesses were proved. Prithviraj Singh did not claim before him that Dinesh had accompanied Om Prakash and Ram Prakash in harvesting in the morning or that Mina Devi was there in the field collecting loose grains. Witness Kaptan Singh did not tell him that he was going to Ong to get labourers. He had seen the crime records in the Special Crime Register but could not remember if there were reports against Om Prakash in such records. He did not record the statement of Roshan Singh. He did not ask him as to why the eye-witnesses were not examined by him. He did not examine Dinesh as his name was not stated before him. Prithviraj Singh has stated to this witness that at 6.00 p.m. Om Prakash and Ram Prakash were getting their wheat harvested (Genhu Katwa Rahe The). Witness Kaptan Singh did not tell him that he had heard the sound of gun-fire or that Ram Prakash had told him about the incident.

P.W. 2 Mahavir Singh simply spoke of the recording of the F.I.R. He admitted that the chick report was sent to the Sadar on 19.4.1979 and could not give any explanation why it was not sent on 18th itself.

P.W. 3 was Dr. D. P. Mishra, who had held the post-mortem examination on the dead body of Om Prakash. The description of the injuries have already been given. He had opined in paragraph 11 of his deposition that the entry wounds of gun-shots in injury Nos. 1, 3, 5 and 7 could have been caused either by rifle or by a Tamancha if they were of the same calibere. He further opined that the injuries were possible from a 315 bore fire-arm. The bullet that was allegedly recovered from the spot was shown to him. The diameter of the same was 0.7 cm. The Doctor opined that the gun-shot wounds on the deceased were caused by a single weapon and from ammunitions of a single variety. The Doctor further opined that barring injury No. 1 all the other injuries must have been caused from a distance of more than 3 feet. According to his opinion if an injury is caused from a high velocity fire-arm, the edges of the entry wound would be lacerated. He further opined that a 315 bore rifle bullet would have a diameter of 0.315" (inch). He could not say if a 315 bore rifle was a high velocity weapon or not. It was not put to this witness if the bullet that was shown to him could have caused the injuries of the dimension of 1.5 cm. ? 1.5 cm.

From the above evidence, we are to see if at all the prosecution story of causing injury on the deceased by Naurang Singh by a 315 bore bullet is proved beyond doubt. We are to see if at all the story is depicted by the alleged eye-witnesses is consistent and acceptable. We are further to see if the bullet found at the spot could have caused the injuries found on the deceased and we are also to assess if on the basis of the prosecution version, the same benefit of doubt, as was given to three co-accused persons, should have been given to Naurang Singh also.

The bullet, that was recovered, had a diameter of .7 cm., as has come in paragraph 13 of the deposition of P.W. 3. P.W. 3 has further stated, and that is the real truth as well, that a 315 bore rifle would have a bullet of .315" (inches) which tallies with the dimension in centimetre that has been found for the bullet allegedly recovered at the spot. But on the question of recovery of the bullet from the spot, the evidence on record is not convincing. P.W. 6 no doubt spoke of seizure of a bullet in his presence and preparation of a seizure list, but the prosecution did not take the pains to put the bullet before this witness to get it identified, although the blood-stained earth and standard earth, that were seized from the spot, were placed before this witness. There is nothing in the evidence of P.W. 7 Roshan Singh that it was seized in presence of P.W. 6 as well. There is a story put forward by the prosecution that all the injuries were caused by a single weapon as all the dimensions of the entry wounds tally. The evidence discloses that firing was done not more than twice by Naurang Singh while others had also opened fire. The presence of several injuries of the same dimension, therefore, suggests that there had been another fire-arm of the same bore, but the evidence is otherwise and the other co-accused persons have already been released on benefit of doubt.

There is yet another aspect. Firing was done from a close distance of 2-3 steps and when the weapon was a rifle, the distance of the muzzle of the rifle would be more near the deceased than 2-3 steps. Only one of the injuries, however, suggests a close range fire while the three other injuries are not having such marks of blackening or tattooing. It was a bullet of .7 cm. but the consistent measurement of all the entry wounds was 1.5 cm. ? 1.5 cm. Normally when it is a close range fire, the dimension of the entry wound should be equal to the dimension of the ammunition. In the instant case, although the bullet was only .7 cm. in diameter, the entry wounds were all having a diameter almost double that size. Expert opinion, as indicated in Modi and Taylor, suggests that entry wounds rather may be of a smaller dimension than the missile, but there is no reason why the entry wound could have been bigger than that of the bullet. Moreover, the dimensions of gun-shot injuries vary for different parts of the body depending upon whether it was bony part or a muscular one. We are having the same dimension in the instant case for injuries on the mandible, on the chest, and on the arm. The prosecution, however, remains content with the theory that it was Naurang Singh alone who had fired all these shots from a rifle from a particular distance only.

We may also look to another aspect of the prosecution story which is not at all explained. The two Investigating Officers took up the responsibility of giving expert opinion on ballistics. The bullet recovered was never sent to any Ballistic Expert to know from what kind of rilfe or other weapon it was fired. The Investigating Officer thought it to be a shot from a 315 bore rifle and he recorded statements of the witnesses in that line u/s 161, Cr. P.C. but the witnesses resiled from their previous statements to say that they had not mentioned the calibre of the weapon held by Naurang Singh.

When inquest was being done on the dead body of Om Prakash, the I.O. clearly found his ring finger of the left hand missing. He found the ring finger by the side of the dead body and he sent it along with the dead body for post-mortem examination. The fact that a finger was found cut by him was noted in the inquest report and a copy thereof was sent to the Doctor. The Doctor is absolutely silent on this point and the prosecution has not cared to ask the Doctor about any missing finger in the dead body. To balance this anomaly, P.W. 4 Prithviraj Singh had come up with a story that the finger was not fully severed from the palm. It was attached thinly with the skin. Even that injury was not seen by the Doctor and the statement of Prithviraj Singh and the statement of the I.O. making the inquest are irreconcilable. At the time of argument, the learned State counsel submitted that Om Prakash was holding a sickle and on receipt of the gun-shots, he had fallen down and it was quite possible that the finger might have come in contact with the sharp edge of the sickle and was severed from the palm. This theory was never put up at any earlier stage and is negatived by the fact that the sickle of Om Prakash was found at the spot by the witnesses and it had no blood mark. If it was a cut finger of Om Prakash, the absence of indication of the same in the post-mortem report awaits an explanation from the prosecution, which has not been given. If it was the finger of any assailant, then also the four assailants would escape the allegation as there is nothing on record to show that any of them had one''s finger missing.

It is true that Naurang Singh had taken a positive defence of alibi stating that he was away to Bhind at the relevant time. In cross-examination, in his statement u/s 313, Cr. P.C. and in the statement of the defence witness on this point, three different hours have been mentioned when he was arrested. Moreover, Bhind was a place negotiable within 1-1/4 hours from the place of occurrence by a motor-cycle. The plea of alibi, in our view, was rightly rejected by the Court below, but failure of the plea of alibi may not, by itself, add any new dimension to the prosecution story as it was the duty of the prosecution, irrespective of the defence plea, to prove its case. Failure of the defence may not strengthen the prosecution case, if it was otherwise shaky. The initial story, as made out in the F.I.R., was that Om Prakash and Ram Prakash were getting their land harvested suggesting that there were other people, presumably labourers. The extent of land that they were having (about 30 Bighas) further suggests that help of labourers was normally taken for cultivation and harvesting. The presence of witnesses, other than the complainant, was, therefore, probable and admittedly Mina Devi was there. These witnesses, however, have not been examined, rather only such witnesses have been brought, viz., Prithviraj Singh and Shivpal Singh, who had admitted enmity with Naurang Singh. No bundle of harvested crops was seized by the I.O. to corroborate the theory that Om Prakash and Ram Prakash or Prithviraj and Shivpal had gone to the spot for harvesting crops. These witnesses, viz., Prithviraj, Shivpal and Kaptan Singh, were not examined on the date of occurrence or on the next date. The I.O., Roshan Singh, did not examine them. They were examined by the next I.O., R. K. Mishra. Kaptan Singh was examined on 20.4.1979 and Prithviraj and Shivpal were examined on 19.4.1979.

The learned trial court had given benefit of doubt of three co-accused of Naurang Singh on the ground that there was no material to infer that they had used their weapons against Om Prakash. We have indicated in the earlier paragraphs of this judgment the discrepancies and intrinsic infirmities in the prosecution story regarding the nature of wounds, regarding non-explanation of the injury on the finger of the deceased, regarding non-examination of independent witnesses whose presence was suggested from the F.I.R., and we are of the view that when despite definite allegations of opening fire, the other three co-accused could be given a benefit of doubt, there was no reason not to concede the same benefit to the Appellant Naurang Singh as well. We are of the view that Naurang Singh is also entitled to benefit of doubt.

The appeal is, thus, allowed. The Appellant, Naurang Singh, is given the benefit of doubt, as discussed above, and is found not guilty and acquitted of the charge levelled against him. He is discharged from his bail bond. If he is in custody in this case under any order of this Court, he must be released forthwith, unless required to be detained in any other case.