Vivek Agarwal, J.
1. Criminal Appeal No. 602/2005 originates from judgment dated 23.08.2005, whereby First Additional Sessions Judge, Datia, in Sessions Case No. 23/2004, has convicted the appellants Rajendra Singh, Munna Singh & Tej Pal Singh under the provisions of Section 302/34 of IPC with life imprisonment and fine of Rs. 1000/- each. They are also convicted under Section 325/34 of IPC with three years R.I. and fine of Rs.500/- and in default of payment of fine, further simple imprisonment of 6 and 3 months respectively. Both the sentences are directed to run concurrently. It has come on record that at the time of sentencing, Chhote Singh absconded, as a result separate judgment has been passed by the Court of First Additional Sessions Judge, Datia on 30.07.2015 and Chhote Singh has been convicted under Section 302/34 of IPC with life imprisonment and fine of Rs. 3,000/-. In default of payment of fine, 6 months simple imprisonment. He has also been convicted under Section 325/34 of IPC with three years RI and fine of Rs. 2,000/-. In default of payment of fine, 3 months simple imprisonment.
2. Since both the appeals originate out of the same session trial, though two separate judgments have been passed under peculiar facts and circumstances as have been noted above, both the appeals are being dealt herewith simultaneously.
3. It is submitted that as per the prosecution case, Janved Singh (PW-1) had lodged FIR (Exhibit P-1) to the effect that on 20.11.2003 his nephew Ramnaresh and son Balkishan (PW-3) had gone to their fields to take care of their standing crops but when they did not return back home on 21.11.2003 till 6:00 am, then complainant Janved Singh (PW-1) and his nephew Balwan Singh (PW-2) had gone to the field to look for them. On reaching their field, they found that his nephew Ramnaresh was dead and his body was lying in khaliyan with grievous injuries on head, neck and face which all were bleeding. His son Balkishan (PW-3) was lying in a injured condition close to a well with injuries on head and face with sharp cutting object. When complainant Janved Singh (PW-1) asked Balkishan (PW-3) as to what had happened then Balkishan (PW-3) had informed him that at about mid night, son of Raghuveer Singh, namely, Rajendra, Munna, Chhote and Tej Pal had caught hold of them and Chhote with an axe had hit Ramnaresh and him with an intention to kill them. They thought that both have died, therefore, they ran away. After some time when he gained his consciousness, he found that Ramnaresh had died then he ran for some time but had fallen down close to well and then requesting them to save his life, he had became unconscious. It is further mentioned that complainant after seeing his injured son Balkishan (PW-3) and dead body of Ramnaresh, shouted for help then Sarpanch of the village namely Rajendra Singh (PW-5), Advocate Prahlad Singh (PW-7) and children from his house, namely, Sunil and Ghanshyam (PW-8) had reached there. Thereafter, they had taken Balkishan (PW-3) to the Police Station in the tractor of Mahendra Singh. It was alleged that Rajendra Singh, Munna Singh, Chotte Singh and Tej Pal Singh used to pressurize them for "begar", but when they refused to follow their dictates, Ramnaresh has been murdered, whereas Balkishan (PW-3) has been injured with a view to harm him. FIR (Exhibit P-1) was lodged at Police Station Jigna under the provisions of Section 302, 307, 34 of IPC.
4. Learned counsel for the appellants in Criminal Appeal No.602/2005 submits that appellants are innocent and they have been falsely implicated. It is further submitted that Police has shown seizure of two axes but spot map (Exhibit P-3) is when carefully perused then it is apparent that in the spot map, one axe marked as 'F' was found lying parallel to the body of Ramnraresh which has been marked as 'A'. It is submitted that this axe is the one which belongs to the deceased/injured party as will be evident from evidence of Janved Singh (PW-1) who has admitted in Para 4 of his cross-examination that when Ramnaresh and Balkishan (PW-3) used to visit the field, they used to carry lathi and an axe along with them.
5. It is submitted that Janved Singh (PW-1) in his case diary statements (Exhibit D-1) has categorically mentioned that axe was used only by Chhote Singh and not by anybody else. It is also submitted that Janved Singh (PW-1) has changed his version from FIR and one given in Section 161 statements then the one which was given before the Court inasmuch as earlier he had implicated only one person, namely, Chhote Singh alleging that he had hit both Ramnaresh and Balkishan (PW-3) with an axe, whereas in the court he has implicated Tej Pal Singh also with an allegation of hitting the two with an axe. It is pointed out that no axe has been recovered from the possession of Tej Pal, and therefore, such statement of Janved Singh (PW-1) being contrary to earlier version should not have been believed by the trial Court. It is also submitted that no FSL report has been produced in regard to the axe which were recovered respectively from the scene of crime and the possession of Chhote Singh vide Exhibit P-6 and P-10 respectively.
6. It is also submitted that as per Rajendra Singh (PW-5), who according to Janved Singh (PW-1) had reached at the scene of crime immediately when Janved Singh (PW-1) had shouted for help, has categorically mentioned in Para 6 of his cross-examination that when he had seen Balkishan (PW-3) for the first time, he was unconscious and was not in a position to speak. It is submitted that Rajendra Singh (PW-5) has categorically mentioned that Janved Singh (PW-1) was saying that Balkishan (PW-3) is not in position to speak and is not able to say anything. It is also pointed out that Dr. Hemant Gautam (PW-10), who had conducted MLC of Balkishan (PW-3), has categorically mentioned in Para 4 of his cross-examination that when injured was brought to him, he was unconscious and was not in a position to speak. It is further submitted that in the Naksha Panchayatnama (Exhibit P-5), it is mentioned that as per the opinion of the panch, death was caused by a sharp cutting object by unknown person and to know the exact reason of the death, it was necessary to get the postmortem done. It is submitted that the word 'Agyat' has been changed to 'Aropi' and in this regard, evidence of Rajendra Singh (PW-5) is material inasmuch as in Para 1 of his examination-in-chief, he has categorically deposed that Janved Singh (PW-1) had informed him that some unknown persons had killed Balkishan (PW-3) and Ramnaresh then they had gone close to Ramnaresh and found him to be dead whereas Balkishan (PW-3) was injured and was alive though unconscious.
7. Relying on such deposition of Rajendra Singh (PW-5), it is submitted that there is over writing on Naksha Panchayatnama (Exhibit P-5) and word 'Agyat' has been changed to 'Aropi' and when I.O. of the case PW-14, namely, Shri Ravindra Mishra was asked about the timing on panchayatnama lash, he admitted that he had omitted to mention time on the panchayatnama lash but denied suggestion that earlier word 'Agyat' was written changed to 'Aropi'. He on his own said that while writing in sun-light ink pen leaves ink, but it is submitted that in Exhibit P-5 the mark is not one left by the ink but it is the clear case of over-witting. It is also submitted that Ghanshyam (PW-8) has been directly introduced in the Court and he is a child witness. It is pointed out that Ghanshyam (PW-8) has given his testimony which is contradictory to that of Janved Singh (PW-1). It is submitted that Ghanshyam (PW-8) is not a natural witness but a planted one. It is pointed out that he has categorically mentioned that he had gone to field along with his father, whereas his father Janved Singh (PW-1) had deposed that he had visited the field along with his nephew Balwan Singh (PW-2) and when he shouted under desperation after seeing the dead body, then Sunil and Ghanshyam (PW-8) had reached there. Pointing out such contradictions, it is submitted that Ghanshyam (PW-8) is not an eye witness and his testimony cannot be relied.
8. It is pointed out that there are contradictions as to the source of light, and therefore, with regard to the identification of the accused, it is submit that in spot map (Exhibit P-3) no source of electric light has been shown. Balkishan (PW-3) in Para 3 admits that there was no source of light. Ravindra Mishra (PW-14), I.O. admits that there was no source of light. It is pointed out that in Exhibit D-3, Balkishan (PW-3) has clearly mentioned from A to A part that in the brightness of electric light, he had seen Chhote Singh and Tejpal Singh armed with axe, whereas Munna and Rajendra were bare handed. In his court statements, he has mentioned in Para 3 of his cross-examination that there is no arrangement of electric current at his 'khaliyan' and at the time of incident, night was moon lit and moon had appeared. It is pointed out that there is contradiction in case diary statement and court statement which will amount to improvisation and such improvisation is not permissible in law. It is also submitted that there is an admission of Balkishan (PW-3) as regard to old enmity with the accused. In Para 6, Balkishan (PW-3) has admitted about such old enmity with his father's elder brother Jagram. He admitted that he remained in a hospital at Indore for about one month. It is pointed out that this witness PW-3 had given his case diary statement (Exhibit D3) on 30.01.2004 i.e. after more than two months of the incident and no explanation has been given by the I.O. for such delayed recording of case diary statement Exhibit D-3.
9. It is also submitted that as per Exhibit D-1 to D-5, time of appearance of the moon was about 3:00 am and this fact has not been disputed. Therefore, in absence of there being any electric light and incident taking place at about mid night, allegation that Balikshan had seen the accused in the moon light does not stand proved. It is also submitted that Police has not seized any 'rajai', though Balkishan (PW-3) has categorically mentioned that he and deceased Ramnaresh were covering themselves with the same 'rajai'. If that is the case of the prosecution, then such 'rajai' would have been exhibited and it could have been used to corroborate injuries on the body of the deceased as well as injured PW-3 with marks of an axe on such Rajai. It is submitted that it is a case of gross negligence on the part of investigating officer inasmuch as Janved Singh (PW-1) has categorically deposed that he had taken rajai along with him at Police Station when he had gone to police station to report the matter along with Balkishan (PW-3).
10. Learned counsel for the appellants submits that K.P. Singh (PW-4) has not supported the prosecution case and has not been declared hostile. Similarly, Rajendra Singh (PW-5) has clearly deposed that Janved Singh (PW-1) had informed him that Balkishan (PW-3) and Ramnaresh have been killed by unknown persons and this witness has though been declared hostile but has not revealed anything contrary to his statement in the examination in chief. Ramsingh (PW-6) , Prahlad Singh (PW-7) are hostile. It is pointed out that learned trial Court while writing first judgment on 23.08.2005 in Para 28 of its judgment has mentioned that K.P. Singh (PW-4) turned hostile, but this is contrary to the facts on record and this reflects that First Additional Sessions Judge, Datia, namely, Shri J.S. Verma failed to apply his mind correctly to the facts and circumstances of the case and was governed by some other considerations other than the material which is available on record.
11. It is also submitted that there are several contradictions as to the use of weapon because the first version of prosecution is that Chhote Singh had hit both the injured with an axe and later on Ghanshyam (PW-8) in his case diary statement Exhibit D-5 has admitted that after hearing call of his father, he and Sunil had ran towards the field whereas in the court statement he has deposed that he had gone to field along with his father. It is also pointed out that in para 2 of his cross examination, he has admitted that he had not informed the Police that accused persons had resorted to beating and if such thing is mentioned in his case diary statement Exhibit D-5, then he cannot give reason for such statement. It is also submitted that in Para 3, this witness has admitted that fields of Dhan Singh Gadariya, Dabbu and Mahesh are adjoining to their field and on adjoining field also people stay during night. It is also admitted that adjoining to their field there is a forest and Ramesh and Balkishan (PW-3) were keeping lathi and axe for the purpose of safety. Reading such statement, it is pointed out that it was in fact docoits who were infesting the neighboring forest who had killed Ramnaresh and injured Balkishan (PW-3) and this fact is corroborated from lash panchnama wherein earlier word 'Agyat' was mentioned but later on FIR etc were antidated and anti-timed so to falsely implicate the present appellants.
12. Reading MLC report (Exhibit P-15) which reveals that there was one incised wound ad-measuring 10 cm x 4 cm x 3 cm bone deep over the right mandibular region of face and injury No.2, 3 and 6 were lacerated wounds, while injuries No.4 & 5 were contusions, accordingly doctor had given his opinion that injury No.1 was caused by hard and sharp cutting object within 24 hours of duration whereas injury No. 2, 4, 5 & 6 are caused by hard and blunt object and injury No.3 was also caused by hard and blunt object was simple in nature but learned trial Court in Para 32 of its judgment has given a perverse finding that accused had hit deceased Ramnaresh with an axe and bat of the axe when such bat had come out of the casted iron side of the axe, whereas it is pointed out that from the recovery memo Exhibit P-6 and P-10, it is apparent that handle of the axes and iron part of the axe were recovered in one piece, and therefore, such finding of the trial Court is perverse and not based on the material available on record.
13. To sum up, it is submitted that in the FIR name of the assailant is Chote Singh. There is no mention that how Balkishan (PW-3) saw/identified the assailants specially when there is contradiction as to source of light. It is also submitted that Janved Singh (PW-1) in his case diary statement Exhibit D-1 has categorically deposed that it was Chhote Singh who had hit the deceased and the injured Balkishan and in his court statement, in para 2 admitted that his case diary statements were recorded by the Police as they were given, therefore, role of Tej Pal becomes doubtful. It is also submitted that Balwan Singh (PW-2) has also improvised his statement from one which was given by him in the case diary vide Exhibit D-2.
14. Learned counsel for the appellants has placed reliance on the judgment of Supreme Court in case of Kalyan and others Vs. State of U.P., (2001) 9 SCC 632, wherein it has been held that when finding variance between FIR and deposition made in Court, and conflict between statements of eye witnesses and medical evidence finding major improvements in deposition of eye witnesses, acquittal of accused recorded by the trial Court by giving them benefit of doubt then setting aside of such acquittal by the High Court in absence of compelling reasons was held to be not proper.
15. Reliance has also been placed on the judgment of Supreme Court in case of Shingara Singh Vs. State of Haryana and Another, (2004) AIR SC 124, wherein in Para 22, it has been held that:
"22. In our view, the High Court has completely missed the significance of the finding recorded by the trial Court. The trial Court found that in the FIR as also statements recorded under S. 161 Cr.P.C, the witnesses had clearly mentioned that both the appellants had climbed on top of the wall and from there Shingara Singh A-2 fired at Surinder Singh. If this version were to be accepted, the injuries caused would not have been of the nature found by the Medical Officer......." ".........There was no dispute that their deposition in Court was consistent, but what as observed by the trial court was that their version as to manner of occurrence as deposed to by them was at variance with what was stated in First Information Report by P.W. 5, and in the statements of Pws 6 and 7 recorded under S. 161 Cr.P.C. When confronted with their earlier statements, they could not give a satisfactory explanation, with the result that their credibility was sufficiently impeached. The change of version by each one of them, and to the same effect, was deliberate and not merely accidental or an account of lapse of memory. It cannot be disputed that this was a very significant change. It cannot also be disputed that the change was deliberately made by all the witnesses, so that the prosecution case became consistent with the medical evidence on record. We, therefore, do not find any error committed by the Trial Court in coming to this conclusion."
16. Reading such judgment, it is pointed out that since in the FIR, name of only Chhote has been mentioned as an assailant and there is planned improvisation so to implicate Tej Pal, therefore such evidence so to implicate Tej Pal should have been discarded by the trial Court which is an error on face of record committed by the trial Court and needs to be corrected at this stage.
17. Learned counsel for the appellants has also placed reliance on the judgment of Supreme Court in case of Eknath Ganpat Aher & Others Vs. State of Maharashtra & Others, (2010) 6 SCC 519, wherein it has been held as under :-
"26. It is an accepted proposition that in the case of group rivalries and enmities, there is a general tendency to rope in as many persons as possible as having participated in the assault. In such situations, the courts are called upon to be very cautious and sift the evidence with care. Where after a close scrutiny of the evidence, a reasonable doubt arises in the mind of the court with regard to participation of any of those who have been roped in, the court would be obliged to give the benefit of doubt to them."
Therefore, it is submitted that if arguments as regard to initial report being lodged against unknown persons is discarded then also in the light of law laid down in case of Eknath Ganpat (Supra) read with Shyam Singh (Supra), acquittal should have been recorded in respect of all accused persons.
18. Reliance has also been placed on the judgment in case of Zafar Vs. State of U.P., (2003) AIR SC 931, wherein it has been held that testimony of the child witness needs to be appreciated very carefully as omission in FIR filed by Grandfather of said child that he told him that accused had killed his father i.e. deceased; is significant, though not singlely but coupled with aforesaid doubtful features, in the circumstances accused was entitled to be acquitted.
19. It is submitted that in the present case, doubtful features are the testimony of Balkishan (PW-3) on whose narration FIR was lodged by Janved Singh (PW-1) and Janved has categorically mentioned that FIR was recorded in the manner in which it was dictated, leaves no manner of doubt that Balkishan (PW-3) had informed him only about role of Chhote in using an axe to cause grievous injuries to deceased Ramnaresh as well as Balkishan (PW-3). There is no mention of role of Tej Pal. The statements of Balkishan (PW-3) who was 15 years of age at the time of his deposition was recorded on 25.08.2004, whereas incident had taken place on 20.11.2003, he gave his case diary statement on 30.01.2004 and no explanation has been given for such delay in recording case diary statement; therefore, if he has to be believed that he had given oral statement to Janved Singh (PW-1) as has been narrated by Janved Singh (PW-1) then at that point of time, role of only Chhote Singh has been ascribed of causing an injury with an axe and not of Tej Pal or any other appellant. Therefore, in view of such contradiction in the testimony of child witness PW-3, acquittal should have been recorded in regard to all the other accused persons.
20. Reliance has also been placed on the judgment of Supreme Court in case of Lallu Manjhi and Another Vs. State of Jharkhand, (2003) AIR SC 854, wherein it has been held that when conviction is on the basis of sole testimony of eye witness not wholly reliable or not wholly un-reliable and eye witness interested being brother of deceased his testimony is not fully corroborated by medical evidence, investigation defective and there is non examination of witness of locality and there is no specific finding on factum of possession of land in dispute could be arrived at, it was held that no reliance could be placed on sole testimony of witness for the purpose of recording conviction of accused.
21. Placing reliance on such judgment, it is submitted that evidence of Balkishan (PW-3) is in same category neither wholly reliable nor wholly unreliable; therefore, conviction on the basis of sole testimony of Balkishan (PW-3), who had allegedly witness the incident, conviction cannot be maintained and finding of acquittal should have been recorded.
22. On the source of light, reliance has been placed on the judgment of division Bench of this Court in case of Baboo Vs. State of M.P., (2005) 4 MPHT 210, wherein in absence of source of light at the place of incident and it being a dark night and prosecution witnesses had failed to give description of assailants and finding that identification parade was not arranged properly and legally, giving benefit of doubt, a finding of acquittal was recorded.
23. In the present case, it is pointed out that there is discrepancy as to source of light as can be seen from the testimony of PW-3 or PW-14, therefore, such testimony could not have been relied upon.
24. Reliance has also been placed on the judgment of Supreme Court in case of Harjinder Singh alias Bhola vs. State of Punjab,1999 AIR SC 3962, wherein in Para 13, finding contradictions in the evidence of chance witnesses PW-3 and PW-4, finding of acquittal has been recorded. Reliance has also been placed on the judgment of Supreme Court in case of Joseph Vs. State of Kerala, (2003) AIR SC 507, wherein it has been held that though conviction can be recorded on the basis of evidence of solitary injured eye witness but when such evidence is in conflict with other evidence and medical evidence then conviction on the basis of his sole testimony is not proper. It is submitted that learned trial Court has recorded an incorrect finding as to the nature of injuries caused by an axe to have been caused by handle of an axe when it was separated from the iron part of the axe which is contrary to the seizure memo and pointing out from the MLC (exhibit P-15) that there was only one incised wound on the body of injured witness Balkishan (PW-3) as is evident from Exhibit P-15 and other injuries were in the form of lacerated wound or contusions. This judgment of Supreme Court in case of Joseph has been pressed into service.
25. It is submitted that there is no mention of blood group on the axe. In fact no FSL report has been produced, though a letter was written to the Director, FSL, Sagar vide Exhibit P-23; therefore, reliance has been placed on the judgment of Division Bench of this Court in case of Dayaram and other vs. State of M.P., (2006) 2 MPLJ 97, wherein it has been held that when prosecution has failed to establish through cogent and reliable evidence for proving motive because of which the appellants could involve themselves in such a serious crime like murder, conviction and sentence of appellants was set-aside.
26. Reliance has also been placed on the judgment of Supreme Court in case of C. Antony v. K. G. Raghavan Nair, (2002) 6 SCC 470, wherein it has been held that if two views are possible then one which favors the accused should be adopted. Reliance has also been placed on the judgment of Supreme Court in case of Mukhtiar Ahmed Ansari Vs. State (N.C.T. of Delhi), (2005) AIR SC 2804, wherein in a case pertaining to Terrorist and Disruptive Activities (Prevention) Act, it has been held that as per Section 154 of the Evidence Act, accused can rely on the evidence of a hostile witness. Placing reliance on such judgment, it is submitted that since PW-5 has not supported the prosecution case that Balkishan (PW-3) was in a position to speak and has in fact deposed that Janved Singh (PW-1) had informed him that some unknown persons had attacked Ramnaresh and Balkishan (PW3) and this fact gets credibility from over-writing in lash panchayatnama, therefore, accused can rely on the evidence of such hostile witnesses and if such evidence is read in favour of the accused, then no other finding except that of acquittal could have been recorded by the concerned Court.
27. Ms. Sudha Shrivastava, on the other hand, submits that as per memorandum (Exhibit P-9) given by Chhote Singh under Section 27 of the Evidence Act, he had mentioned that he had kept the axe after washing it with water drawn from the well and had hidden it close to the well; therefore, there could not have been any blood stains as have been found in the seizure memo (Exhibit P-10) made at the instance of Chhote Singh. Her first submission is that this is a concocted recovery and Ram Singh (PW-6) independent witness of recovery (Exhibit P-10) has been declared hostile. He has categorically deposed that police had not made any interrogation from Chhote Singh in front of him nor any recovery was made from Chhote Singh or at the instance of Chhote Singh. Similarly, Mukesh Pal (PW9) is also hostile and has not supported seizure of axe from Chhote Singh. It is also submitted that axe with blood stains which was recovered from the spot is attributed to Tejpal, and therefore, conviction of Chhote Singh has been wrongly recorded. It is submitted that since defence has been able to establish that the axe which has been recovered from the spot vide Exhibit P-6 was lying parallel to the body of Ramnaresh and as has been alleged by Balkishan (PW-3) an axe had fallen down from the hands of Tej Pal would not have been kept parallel to the body of Ramnaresh. It is apparent that prosecution has tried to falsely narrate that the axe which was recovered from the spot was containing blood stains. It is submitted that when these statements are read with the FIR and lash panchayatnama, then it is apparent that FIR was lodged against unknown persons and there is suggestion to the prosecution witnesses that deceased and Balkishan (PW-3) had taken an axe along with them, therefore, the axe which has mentioned in the spot map is the one which was carried by Ramnaresh and Balkishan (PW-3). It is also submitted that Balkishan (PW-3) in Para 3 of his statement has mentioned that Police had taken his statement at Gwalior hospital then he says that he had given statement when he had returned back from Indore. He admits that he returned back from Indore within one month of the incident. Thus, it is pointed out that the statement which was given by Balkishan (PW-3) at Gwalior hospital has been suppressed by the Police and there are no statements taken immediately after return of Balkishan (PW-3) from Indore on record. Thus, in fact Balkishan (PW-3) had given three statements, but only one statement has been produced. It is also submitted that third statement of Balkishant (PW-3) has been manipulated as per medical and postmortem reports. It is also submitted that as per PW-2, which is an admission to the effect in Para 6 of his testimony that time of incident was about 12:00 p.m. and this was narrated to him by Balkishan (PW-3). This is corroborated by the PM report, and therefore, at 12:00 p.m. since moon had not appeared in the sky, there was no source of light in which Balkishan (PW-3) could have identified the assailants.
28. It is also submitted that as per the MLC, it was constable Radhelal who had taken Balkishan (PW-3) for MLC but statement of Radhelal has not been recorded and he has not been examined else he would have been the best witness to point out whether Balkishan (PW3) was in a position to speak or not. It is also submitted that there is manipulation in the spot map (Exhibit P-3) which reflects timing as 10:45 am whereas witness Janved (PW-1) and Ramsingh (PW-6) has mentioned that spot map was prepared at 4:00 pm. Though Janved (PW-1) in para 7 has mentioned that Police had prepared spot map at about 4:00 p.m. but it is contrary to the time mentioned on the spot map Exhibit P-3. It is also pointed out that R.V.S Kushwah (PW-13), Sub-Inspector, has admitted that statements of Balkishan (PW-3) were recorded at the place of Jagram, elder brother of Janved Singh (PW-1) and Balkishan has admitted enmity between Jagram and accused, and no explanation for delay in taking statement has been given. It is also pointed out that Balkishan (PW-3) had come to Court along with Jagaram to give his statement. It is also submitted that Janved Singh (PW-1) is a hearsay witness and as per Section 60 of the Evidence Act, there should be direct evidence. It is also submitted that Mr. Ravindra Mishra (PW-14), Sub Inspector and I.O. of the case has admitted in Para 15 of his testimony that axe was recovered from open place.
29. Reliance on the judgment of Supreme Court in case of Trimbak vs The State of Madhya Pradesh, (1954) AIR SC 39 has been placed wherein it has been held that recovery from such open place cannot be made basis of conviction. It is also submitted that there is no seizure of Rajai and no compliance of Section 157 Cr.P.C in regard to prompt communication of FIR to the concerned Magistrate. It is submitted that as per Section 114 of the Evidence Act, presumption is to be drawn against the prosecution as even weapon seized was not shown to the Doctor as to whether such injury could have been caused with the weapon as was seized and similarly injuries caused by hard and blunt object have not been explained. It is also pointed out that witnesses of seizure are hostile and further a marg intimation Exhibit P-2 contains crime number which reflects that all the proceedings were drawn subsequently and both marg intimation and FIR are anti-dated and anti-timed. In view of such facts, it is prayed that finding of acquittal should have been recorded against all the accused.
30. Learned Public Prosecutor submits that as far as motive is concerned, it has been proved by the prosecution when Balkishan (PW-3) admits that there was an enmity between uncle Jagram on one hand and accused on another hand. It is further submitted that minor omissions in the testimony of witnesses cannot be given too much of emphasis. It is pointed out that Dr. Hemant Goutam (PW-10) has mentioned in Para 4 of his testimony that he was not in a position to say as to whether the injured was in a condition to speak after sustaining injury or not. It is submitted that this part of crossexamination of PW-10 defeats the case of the accused that Balkishan (PW-3) was not is a position to speak. It is further submitted that accused persons are known to Balkishan (PW-3); therefore, source of light is not very important. Known person can be identified with the contours of the body. Reliance has been placed in the case of Nathuni Yadav and Others Vs. State of Bihar and Another, (1998) 9 SCC 238, wherein in Para 17, it has been held that motive for doing a criminal act is generally a difficult area of prosecution. One cannot normally see into mind of another. Motive is the emotion which impels a man to do a particular act. Such impelling cause need not necessarily be proportionately grave to do grave crimes.
31. Similarly, reliance has been place on the judgment of Supreme Court in case of Thaman Kumar Vs. State of Union Territory of Chandigarh, (2003) 6 SCC 380, wherein the ratio is that where the ocular evidence is found to be trustworthy and reliable and finds corroboration from the medical evidence, a finding of guilt can safely be recorded even if the motive for the commission of the crime has not been proved.
32. Learned Public Prosecutor has also placed reliance on the judgment of Supreme in case of Mangoo And Another vs State Of Madhya Pradesh, (1995) AIR SC 959, in regard to credibility of the evidence of a child witness wherein it has been held that once presence of child witness is proved at the place of occurrence then discrepancies regarding number of blows inflicted and which side of weapon was used in first instance is immaterial and therefore, it was held that accused was liable to be convicted.
33. Reliance has also been placed on the judgment of Supreme Court in case of Prakash and Another Vs. State of M.P., (1993) AIR SC 65, wherein in Para 11 discussing credibility of a child witness has been upheld on the ground that if victim's younger brother aged about 14 years give proper account of incident witnessed by him, his testimony could not be discarded on ground of likelihood of his being tutored. It is also submitted that the judgment recorded by learned trial Court does not call for any interference and therefore, needs to be upheld.
34. Though, reliance has been placed by learned Public Prosecutor on three judgments of the Supreme Court to point out that usually it is difficult to decipher motive, secondly where ocular evidence is trustworthy and reliable and finds corroboration from the medical evidence, a finding of guilt can be safely recorded, and thirdly to point out that once presence of child witness is proved at the place of occurrence, then discrepancies regarding number of blows inflicted and which side of weapon was used in first instance becomes immaterial, fourthly, reliance also been placed on the judgment of the Supreme Court in case of Prakash and another (supra) to bring home this aspect that testimony of a child witness cannot be discarded merely on ground of it being tutored, but these judgments can be of consequence only when prosecution is able to explain overwriting on Naksha Panchayatnama (Exhibit-5) because there is no explanation that how word 'Agyat' has been changed to 'Aropi', specially when explanation given by the I.O. (PW-14) is taken into consideration wherein in Para 16, I.O. (PW-14) has mentioned that this overwriting was because of leakage of ink in sunshine but this is contrary to the statement given in Para 14 by the same I.O. that incident took place in winters in month of November. There is no mention of time on Exhibit-P-5 to show that whether it was so brightly sunny so to lead to leakage of ink from a pen. Besides this, the leakage of ink leaves an unreadable spot and will not result in overwriting. Therefore, the first doubt as to the prosecution story, as has been pointed out by learned counsel for the appellants, is from the overwriting apparent on face of it (Exhibit P-5).
35. The second issue with renders the chain of circumstances incomplete and creates sufficient doubt as to the credibility of Balkishan (PW-3) is deposition of I.O. (PW-14) who has admitted in Para 10 of his cross examination that he had seen injured Balkishan (PW-3) at the police station and he was not in a position to speak, therefore, he was sent to the hospital. In this very para, he admits that Janved (PW-1) had reached police station on 21.11.2003 at about 11.30 a.m. along with his nephew Balwan Singh (PW-2) and there was nobody else. He has categorically mentioned that Balkishan (PW-3) had not reached police station. He has also deposed that during the course of whole investigation Balkishan (PW-3) had not visited police station and then gave explanation that since he was injured, he was admitted in the hospital. Thus, not only there is contradiction in the testimony of I.O. (PW-14), but also this fact is corroborated by prosecution witness Rajendra Singh (PW-5) that when he had heard cries of Janved (PW-1) at about 6:00 am on 21.11.2003 then Janved had informed him that some unknown persons had killed Balkishan and Ramnaresh. This very witness has deposed that he had taken injured Balkishan to Police Station Jigna in a tractor of Mahendra Singh, where report was lodged by Janved (PW-1). In Para 5, this very witness has deposed that when Daroga had asked Janved Singh (PW1) as to who committed this offence, then Janved (PW-1) had said that he is not in a position to say as to who had committed such offence. In Para 6, this very witness has admitted that when he had seen Balkishan for the first time, Balkishan was unconscious and was not in a position to speak. Even Janved (PW-1) had informed him that Balkishan is not in a position to speak and is not able to narrate anything.
36. Another important aspect of testimony of prosecution witnesses has been over looked by the Additional Sessions Judge is that Balkishan (PW-3) himself has admitted in Para 8 of his testimony that when accused were running, he could not shout because he had injury in his mouth and had fallen near the well. This is a very important clue in the chain of events because when a person could not speak or shout due to injury in his mouth, then how he could have spo
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ken after 5-6 hours of the incident when swelling is bound to increase has not been explained by the prosecution. For this, it will not be out of place to refer to testimony of Dr. Hemant Gautam (PW-10) who had found incised wound measuring 10 cm x 4 cm x 3 cm bone deep over the right mandible region. This injury was bleeding and he had advised for x-ray. This very doctor in Para 4 has admitted that when injured was brought for medical examination which was conducted vide Exhibit P-15, at that point of time Balkishan (PW-3) was not in a position to speak and he was unconscious. This very witness has admitted that after about one hour of contracting such injury swelling starts setting in. Prosecution has not produced x-ray report of injured Balkishan (PW-3) and had not examined any radiologist to point out that as to whether any fracture was sustained by Balkishan in his mandible or not, and if any fracture was sustained then what was the nature of such fracture. Similarly, prosecution has not enclosed any document to show that injured Balkishan (PW-3) was referred from Gwalior hospital to Indore for treatment. 37. In para 8, Balkishan (PW-3) had initially given a different version that he could not shout because his mouth was pressed, however he admitted that if somebody shouts from his field then such voice can be heard at his residence. Later on, he has given correct fact that he could not shout because there was injury in his mouth. When these statements of Balkishan (PW-3) are read in consonance with the statement of Dr. Hemant Gautam (PW-10) and Shri Ravindra Mishra (PW-14), I.O. of the case, it is apparent that when Balkishan (PW-3) was taken to the Police Station in the morning for lodging of the FIR, he was unconscious, when he was taken to the doctor for MLC (Exhibit P-15), he was unconscious, i.e. Balkishan (PW-3) was unconscious at 7:30 a.m. when intimation was given to the Police. He was unconscious at 9:30 a.m. when MLC (Exhibit P-15) was conducted and as per own admission of Balkishan (PW-3), he could not shout because he had injury in his right mandible, then this story of selectively gaining consciousness to narrate whole story to Janved (PW-1) appears to be humanly impossible coupled with the fact that on Naksha Panchayatnama (Exhibit P-5), there is overwriting and word 'Agyat' has been changed to 'Aropi', this Court is of the opinion that such act on the part of the I.O. which remains unexplained and total chronology of events as deduced from the statement of injured and Dr. Hemant Gautam (PW-10) leads to only one conclusion that accused have been falsely implicated. 38. This conclusion gets further credibility from the admission of Balkishan (PW-3) that there is an old enmity between his uncle Jagram whose son died in the incident and the accused persons. Though a suggestion that they were attacked by some unknown assailants as area is a docoity infested area has been denied and even this suggestion has been denied that deceased Ramnaresh was acting as an informer to Rambabu Gadariya Gang, but once the credibility of eye witness becomes doubtful and the investigation is not one beyond manipulation as referred to above giving example of Exhibit P-5, this Court is of the opinion that the case turns from one of eye witness count to one under circumstantial evidence and prosecution has failed to prove all the necessary sequence in a chain leading to a singular conclusion that appellants are guilty, therefore, in absence of cogent material evidence, appellants are entitled to benefit of doubt, and therefore, appeals filed by the appellants are allowed and judgments of conviction and sentence awarded by the trial court against the appellants are set-aside. They are acquitted of the aforesaid offences. 39. From the record, it appears that the appellants Rajendra Singh, Munna Singh and Tej Pal Singh are on bail. Their bail bonds and surety bonds stand discharged. Appellant - Chhote Singh is in jail. He be released immediately, if not required in any other case. 40. Copy of the judgment be sent to the trial Court along with its record for information and compliance.