B.K. Sharma, JJ.
1. Criminal Appeal No. 1394 of 1979 has been preferred by accused Lalman Singh against his conviction and sentence of life imprisonment for the offence under Section 302 read with Section 114, I.P.C. and Criminal Appeal No. 1695 of 1979 has been preferred by Pratap Singh accused against his conviction and sentence of life imprisonment for the offence under Section 302, I.P.C. simpliciter awarded by Sri L.R. Kohli, the then III Additional Sessions judge, Kanpur on 25-4-1979 in S.T. No. 211 of 1978, State v. Pratap Singh.
2. Both the appeals, being against the same judgment, were connected. During the pendency of the above appeals, Pratap Singh-accused-appellant of Criminal Appeal No. 1695 of 1979 had died and so his appeal has abated and there remains only the present Criminal Appeal No. 1394 of 1979 by Lalman Singh against his conviction and sentence for disposal on merits.
3. The topography of the spot, as narrated in the judgment of the trial Court and undisputed before us, was that Ram Narain Shukla, the deceased in this case, had a shop in the name and style of 'Jawan Arms' delaing with fire-arms situate on Malsi Road, Police Station Kotwali, Kanpur that from the road, a Gali went from south to north; that in the north, it jointed another Gali which was running east-west (both these lines being known as Pattey Wali Gali); that towards west of the lane running from south to north at the tri-junction, there was a Bhatti and the lane running east-west joined another lane towards its east; that this eastern lane runs north-south and is known as Khoya Wali Gali and towards north, this Khoya Wali Gali bifurcated into two lanes and its western branch went towards Mollganj and the other branch went towards north-east towards the temple of Buddha Devi of deceased, there was a foot-path and then there was a road running east-west.
4. As per prosecution the occurrence took place on 24-9-77 at 9 p.m. The prosecution story is that at the time of the occurrence, repairs were going on in the shop of Sri Ram Narain Shukla deceased and, therefore, the deceased Sarvesh Datt, Ravi Shanker Shukla informant, Sheo Kumar Shukla and Santosh Sharma had been sitting on chairs in front of the adjoining shop of Shitla Prasad that there was electric light nearabout that place that three persons, namely, Lalman Singh accused, Pratap Singh accused and an unknown person (Nagendra Singh accused) reached there from Pattey Wali Gali; that two of them, namely, Pratap Singh accused and the unknown (Nagendra Singh accused) had country-made pistols in their hands; that reaching the place of occurrence, Lalman Singh accused-appellant exhorted his companions saying "SHUKLA KA BACHCHA AAJ BACHNEY NA PAY" that thereupon, Pratap Singh accused fired at Ram Narain Shukla hitting him on the right side of his body; that the unknown companion of this accused, namely, Nagendra Singh accused also fired at Ram Narain Shukla, but it mis-fired; that the three accused then about-turned and started running in Pattey Wali Gali: that the informant and others chased them; that the pistol, which Pratap Singh accused had been holding, fell down near the Bhatti. adjoining the tri-junction of Pattey Wali Gali but Lalman Singh accused listed that pistol and started running towards Mollganj; that on the tri-junction of Khoya Wali Gali. Gali Buddha Devi and the lane going towards Moplganj, Lalman Singh accused-appellant was deprived of the pistol and the informant returned to the place of murder along with Sheo Kumar and from there carried the deceased in his injured condition in a rickshaw to U.H.K. Hospital kanpur where ram Narain Shukla injured was declared dead; that after the dead body of the deceased had been put in the mortuary, the informant returned to his house; that in the meantime, Lal Man Singh accused-appellant had been brought there that Constables Rampal Singh and Mohd. Ilyas had also arrived there and that thereafter Ravi Shanker informant scribed the first information report (Ext.Ka-1) of the occurrence and carried it along with Lalman acused and the countrymade pistol to Police Station Kotwali and Lodged the F.I.R. AND THE ACUSED-APPELLANT THERE AT 10.30 p.m. on its basis Sri Maharani Din, Clerk Constable prepared check report and registered the case in the general diary. Memo Ext. Ka-2 was prepared at the police station about the country-made pistol and the empty cartridge, that was inside its chamber
5. The usual investigation followed. Panchayatnama proceedings were taken and charge-sheet was submitted against the present accused-appellant Lalman Singh and four others.
6. The autopsy on the dead body of the deceased performed by the Surgeon disclosed that the deceased had received a gun shot wound of entry on his right arm-pit with tatooing. By the shot, the third and fourth ribs of right side had been fractured. The lungs were lacerated. Pellets and Tiklies were found inside. The ante morte injuries of the deceased were sufficient to cause death in the ordinary course of nature.
7. At the trial Pratap Singh accused-appellant, since deceased, had been charged under Section 302, I.PC. simpliciter while Lalman Singh accused-appellant was charged under Section 302 read with Section 114, I.P.C.; Nagendra Singh co-accused had been charged for the offences Under Sections 307 and 302/34, I.P.C. Bir Singh and Om Prakash were charged with abetment of murder with the help of Section 109, I.P.C.
8. At the trial, the learned III Additional Sessions Judge, Kanpur believed the prosecution story of the fire by Pratap Singh accused at the exhortation of Lalman Singh, accused-appellant and causing the death of Ram Narain Shukla. On this finding, he convicted and sentenced both these accused-appellants. Regarding Bir Singh and Om Prakash accused, he found that there was no evidence of motive and rejected the evidence of conspiracy and so acquitted them. Regarding Nagendra Singh, co-accused, whose fire is said to have" missed, the identification evidence was discarded and consequently, accused Bir Singh, Om Prakash and Nagendra Singh were acquitted by the learned Sessions Judge.
9. We have heard the learned Counsel for Lalman Singh accused-appellant and the learned Additional Government Advocate.
10. In this case it is not controverted that the deceased Ram Narain Shukla was shot at and injured on the date, time and place as claimed by the prosecution though the presence, exhortation, chase and spot arrest of the accused-appellant has been hotly contested. It has been pointed out by the learned A.G.A. that since the house of the accused was in the upper story of his building in which the shop aforesaid was situated in the ground-floor and the informant was the real son of the deceased, his presence at the scene of occurrence would be quite natural. It has also been argued that the evidence showed that the deceased was taken in an injured condition to the hospital by the informant though the deceased died in the way and then there was a circumstance that the F.I.R. of this case was lodged by the informant promptly which also tended to show that he was an eye-witness of the occurrence including the chase and spot arrest of the present accused-appellant. It has also been argued by the learned A.G.A. that since the repair work was going on the spot of the deceased in the days of occurrence, the presence of Shiv Kumar, who was Sarhu of the deceased and who also used to work on the shop in those days arid the presence of Sarvesh Datta, an 'employee' of the shop at the scene of occurrence would be quite natural. Reliance has also been placed by the learned A.G.A. on the fact that the Investigating Officer has found number of chairs present at the spot which was a circumstance showing the presence of several persons sitting with the deceased at the time of occurrence. It is also claimed that the evidence on record shows very well that there was ample artificial light of electric bulbs at the site of the murder and also in the Gali where the chase and the arrest was made. So that there would be no difficulty in identification. It has also been claimed by the learned A.G.A. that it is a case of private arrest of the accused-appellant with a country-made Tamancha and great value is always attached to such evidence by the Courts. The learned A.G.A. has pointed out that the claim of the present accused-appellant was that he had been arrested from the hospital where he had gone. His contention was that there was no reason for him to go to the hospital.'
11. As noted above, the informant is the real son of deceased. Sheo Kumar (P.W.3) is a relation of deceased and Sarvesh Datt (P.W.5) was an employee at the shop of the deceased. The defence has claimed that though it was an incident of a thickly populated abadi area where a large number of local persons might have been present, but no independent witness of the locality has been cited and produced by the prosecution as a witness of the occurrence and that all these three witnesses, namely, the informant Ravi Shanker, Shiv Kumar and Sarvesh Datt are highly interested and so their testimony ought not to be relied upon. Though relationship with or for that matter employment at the shop of the deceased in the days of occurrence could not by itself be made a ground to discard the testimony of such witness or witnesses, it goes without saying that the testimony of such interested witnesses has to be scrutinised with great care before being accepted and relied upon. Their evidence is to be appreciated against the background of the totality of the undisputed and established facts and circumstances of the case and broad probabilities inherent in the situation. If there are inherent infirmities and improbable features which throw doubt on the prosecution evidence, the Court would be slow in acting upon such evidence.
12. It is obvious that in the present case, the concrete fact constituting the occurrence is only this much that the deceased had been fired at with a fire-arm once due to which he died soon after. But the case has been embellished. The present accused-appellant Lalman has been given the role of exhortation though on the prosecution case, it is he who is said to have the motive to do away with the deceased. There was, however, no allegation that he was carrying any weapon of any kind or tried to inflict any injury on the body of the deceased. Pratap Singh co-accused the person, who was imputed the role of fire at the deceased, was said to be a relative of the present accused-appellant and also alleged to be a bad character. Then in the F.I.R., there was an allegation made that Pratap Singh co-accused and the present accused-appellant were accompanied by a third person who was not known to the informant and the witnesses from before and the said third person was alleged to be carrying a Tamancha and there was allegation that he fired with that Tamancha which had, however, missed i.e. misfired and that person was alleged to have run away from the spot along with Pratap Singh co-accused. The role of the present accused-appellant was enlarged by alleging that while Pratap Singh co-accused was running from the spot of murder, the Tamancha with which he (Pratap Singh co-accused) had fired, had fallen to the ground and the same was picked up by the present accused-appellant and further by alleging that the present accused-appellant was chased and with the help of one Manmohan Lal, who was going from the side of Moolganj, i.e. from the opposite side, he was arrested along with the murder weapon to serve as an index of his complicity in the murder of the deceased. It was also claimed in the F.I.R. that the empty cartridge of freshly fired shot which had caused the death of the deceased was inside the barrel of the Tamancha. Then to further bettress the case it was claimed in the F.I.R. that this accused-appellant was brought to the police station along with two Police Constables of the outpost of the police station (named in the F.I.R.). As the third unknown person Nagendra Singh accused was arrested during the investigation and was put up for identification. However, the identification evidence in regard to him was discarded by the trial Court itself. It is unnecessary to dilate on the discussion made by the trial Court regarding the evidence against him beyond saying that some adverse impact is certainly created in the mind as it appears that the witnesses, who identified him knew him from before but he was not nominated in the F.I.R? Then during investigation Om Prakash and Bir Singh accused were implicated in this murder case as abatters of the murder by Pratap Singh co-accused alleging that they had fired Pratap Singh co-accused for committing the murder. The evidence of abatement as given by Kunwar Bahadur Singh P.W. at the trial was also discarded by learned Sessions Judge as unbelieveable and for that reason, accused Bir Singh and Om Prakash too were acquitted by the learned Sessions Judge in the same Sessions trial.
13." One stark fact, which stands out in the entire prosecution story is, that as per this case not only the other witnesses of the occurrence said to have chased the assailants even the informant who was the real son of the deceased andwas said to have seen deceased, being shot at and injured by Pratap Singh co-accused, instead of attending to the deceased (his injured father), is said to have left him to his fate and started running with the witnesses and chasing the assailants. It is also claimed by the prosecution that in the course of the chase the Tamancha of Pratap Singh co-accused had failed and then it was picked up by Lalman Singh present accused-appellant and with the help of one Man Mohan, Sarvesh Datt, who was coming from the opposite side, arrested the accused-appellant Lalman Singh and then snatched that Tamancha from Lalman Singh and gave it to another person who was participating in the chase and then came back to his deceased father in his injured condition, then took him to the hospital on a rickshaw where the doctor declared him (the injured) dead. In the ordinary course if he was present near the deceased at the time of the fire being shot at him, he would have first attended to the deceased rather than tried to run after the assailants, who according to the prosecution evidence, were armed with fire-arms. It is also to be taken notice of in this cage that the deceased Ram Narain Shukla was not an ordinary person to whom or to his son or to the inmates of his house, fire-arms would not be available in times of need. The deceased was himself the proprietor of a shop (Jawan Arms Company) dealing in firearms in front of which shop itself the deceased was fired at. The prosecution claimed that repair work was going on in the days of occurrence. This has been set out by the prosecution as the ground for the presence of the prosecution witnesses Sheo Kumar and Sarvesh Datt (who were both employed at the shop aforesaid) at the spot. If we take that the repair work really was going on at the time of occurrence itself, then the shop must be open and the fire-arm would be present in plenty and in the ordinary course if the informant was present there or the other witnesses, namely, Sheo Kumar and Sarvesh Datt, who were employees of the same shop were present they would have certainly taken out some of the fire-arms and used them against the assailants but as the prosecution story is the informant does not claim to have taken out any weapon from the shop of the deceased and he also not claim to have taken any weapon from the house in the upper storey before chasing the assailants, who according to him were carrying fire-arms. Nor is there any allegation that the relation and employee viz., Sheo Kumar and Sarvesh Datt, P.Ws. tried to take out any arm from the shop before going to chase the persons who were carrying fire-arms. In any case the story of chase of the assailants even at the cost of the life of his own father by the informant does not appeal to reason. The story of Tamancha of Pratap Singh, co-accused having fallen down to the ground and further the story of picking up of the weapon by the present accused-appellant also does not carry conviction.
14. The story of spot arrest as alleged by the prosecution is not trustworthy. It is not the prosecution case that as soon as the accused-appellant was arrested in the Gali after the chase, he was taken from there to the police station straightway and lodged there. The story, as narrated by the informant in his testimony, on the contrary, is that when after the chase, the present accused-appellant was arrested, he handed him over to the chasers and the Tamancha to Sarvesh Datt P.W. and then took the deceased in a rickshaw to the hospital; that from the hospital, he returned to his house (in the upper storey) and when he came to the scene of murder after consoling his house holders, two Constables had come there and Sarvesh Datt and others had brought Lalman Singh accused-appellant there and there he scribed the written report Ext. Ka-1 and that he then went to the police station along with it, the accused-appellant, the Tamancha and the Constables and lodged the F.I.R. at the police station and handed over the accused-appellant and Tamancha to the Station Officer.
15. Sheo Kumar (P.W.3) has claimed to have accompanied the informant and the deceased to the hospital and to have returned from there to the house of the informant and further claimed that after sometime Sarvesh Datt P.W. and other came to the scene of murder with two Constables and Lalman Singh accused-appellant and that then Ravi Shukla informant scribed the F.I.R. and then went to the police station. In his cross-examination he stated that at the spot when the accused-appellant was arrested the Constables had not reached in his presence and that (even) when he (along with the informant) came back to the scene of murder after the arrest of accused-appellant Lalman Singh, the Constables were not present there. He further stated that nobody was sent to the police out-post. He stated that he had a telephone at his shop but no telephone call was made from there to the police station. He stated further that he did not know from where the Constables reached there. He further stated that they were going to the hospital via Moolganj Chauraha and that the police out-post is only ten paces away from that Chauraha. He further stated that they passed from informant of the police outpost while going to the hospital but they did not stop to give information at the out- post nor sent any one to the police out-post to give information of the occurrence. He stated that the deceased was taken by them to the hospital so that he may be treated and that there was hurry to take him to the hospital. So this was the explanation given by him for not going to the police out-post. But what about the delay occasioned by the alleged chase of the culprits, in the taking of the deceased to the hospital? Here, it would be useful to refer to the testimony of Sarvesh Datt (P.W.5). He claimed that 15-20 minutes after the arrest of the deceased-appellant, they returned to the scene of murder and that Ravi Shanker informant came back to the scene of murder at 9.45 p.m. and after coming he scribed the F.I.R. at the spot. He further stated that after the arrest of Lalman Singh accused-appellant, Man Mohan witness (not examined in the trial Court though he was an ex-employee of the deceased) remained with them up to 10.00 p.m. He further claimed that the police had come in his presence. He further stated that two Constables alone had come. He further stated that the Constables had come (to the spot of arrest) about 3-4- minutes after the arrest of accused-appellant Lalman Singh and that after the coming of the Constables, they stayed at the place of arrrest for 4-5 minutes and then went to the scene of murder and they kept Lalman Singh accused-appellant in custody at the spot and that when the informant came back from hospital along with Sheo Kumar he took Lalman accused appellant to the police station with the help of Sheo Kumar P.W. and two Constables. These discrepant statements speak for themselves.
16. In this connection, it is also useful here to refer to the testimony of Constable Ram Pal Singh (P.W.7) who is said to be one of the two Constables picturing in the prosecution story. He claimed in his affidavit as P.W.7 that on receiving the information of the spot arrest of accused-appellant by the informant, he along with Constable Mohd. Ilyas came to the scene of spot arrest of the accused-appellant and found him in custody and that after return of the informant from the hospital, he went to the police station along with Constable Mohd. Ilyas the arrested accused-appellant Lalman Singh and the Tamancha and also the informant and Sheo Kumar P.W. However, he did not state in his affidavit as to who gave the information at the police station and at what time he received the information. He has also not stated in his affidavit as to why he did not prepare any memo about the arrest and recovery there and did not carry this accused to the police station straightway and instead took him to the scene of murder and preferred to wait.
17. There is no explanation as to why the accused and the Tamancha were recorded to have been lodged by the informant at the police station and not by the Constables if they had taken the accused and the Tamancha in custody at the spot as claimed. Cross-examined for the defence, he stated that his duty was at Moolganj Chauraha from 4.00 p.m. along with Mohd. Ilyas; that he reached the spot of arrest at 9.15 p.m.; that he learnt about the fire having been made at 9.00 p.m. He claimed that he reached the spot of arrest and found a crowd of 50-60 persons who were unknown to him. He claimed that he took Lalman Singh accused-appellant in his custody whereas the custody of the Tamancha had been taken by Mohd. Ilyas; that they took accused-appellant to the scene of occurrence i.e. scene of murder where it took half an hour; that the informant came at the scene of occurrence at 10 p.m. and. the F.I.R. was scribed at the scene of occurrence. He further stated that some persons had given information about the occurrence who was not connected with him but even then did not disclose his name. He further stated that he had received an information that a murder had taken place at Valsi Road but he did not think it necessary to go there but preferred to go at the place of spot arrest. All this evidence does not inspire confidence in the least.
18. Here it may be mentioned that though according to the recovery memo prepared at the police station, only an empty cartridge was recovered from the Tamancha in question and no other cartridge, live or empty, was shown as recovered from the person of the accused-appellant, the informant stated in his examination-in-chief itself that at the police station when the personal search of the accused-appellant was taken, two empty cartridges were recovered from the pocket of the Kurta which he was wearing. This was a categorical statement made by him which was contrary to the memo prepared and also contrary to the accused-appellant at the police station. It appears that his cross-examination was continued on the next day. He stated in para 17 (page 31 of the paper-book) in reply to the defence question whether the cartridges were recovered from the pocket of the Kurta of Lalman Singh accused-appellant, he resiled from his earlier statement and claimed that on the previous day he has stated by mistake that the cartridges were recovered from the pocket of accused-appellant. Then he added "Mujhe Nahi Malum Kahan Se Aaye". It meant that the cartridges were certainly recovered at the time of search of the accused-appellant Lalman Singh as per this witness.
19. There is formal evidence of police witnesses on the record but nowhere it has come that any cartridges were recovered from the pocket of the accused-appellant Lalman Singh. It means that the informant of the case was out to implicate the accused-appellant as such as possible even by indulging in white falsehood.
20. At this stage, it would be useful to place on record that on the prosecution evidence, the Tamancha the empty cartridge said to have been recovered from the barrel of it and the various articles found at the spot were sent to the Ballestic Expert but the report of the Ballestic Expert has not been placed on record by the prosecution for some reason that the learned Additional Government Advocate could not explain.
21. Another point of importance, which needs to be placed on record is that the F.I.R. has been patently scribed at the police station after having the arrest of the accused-appellant made in whatever manner it has been made. This is so because in the F.I.R. it has been stated in the body at the bottom that from the hospital where the doctor declared the injured dead, the informant came to the scene of occurrence leaving the dead body at the hospital and brought him (accused-appellant Lalman Singh) to the police station along with two Constables Mohd. Ilyas and Ram Pal Singh. As against this the sworn testimony of informant Ravi Shanker (P.W.I) was that he scribed the written F.I.R. at the scene of occurrence itself after having reached there from the hospital and that then he went to the police station along with the written report, the arrested accused, the recovered Tamancha and the Constables and to the same effect, is the testimony given by Sheo Kumar (P.W.3). He claimed that when he and the informant returned to the house after the deceased was declared dead, Sarvesh Datt P.W. and two Constables as well as the arrested accused-appellant Lalman Singh reached there (at the scene of murder) and at the asking of the Constables, he brought a paper and the informant scribed the F.I.R. and then they went to the police station. So these prosecution witnesses have no scruples in telling lies.
22. Then another unusual feature in this case is that though the house of deceased and the informant is above the arms shop, from where the murder could certainly be seen taking place, no inmates of the house has been cited as an eyewitness in this case. It is also more surprising that even after the murder, their presence at the spot has been carefully excluded. The informant stated in his testimony in para 9 that when he returned from the hospital to the scene of murder, no inmates of his house had come down from the house uptil then and also claimed that when he has taken his deceased father to the hospital from the spot at the time too, no inmates of the house had come to the scene of occurrence. Sheo Kumar (P.W.3) also similarly stated in his cross-examination at the trial that when after the spot arrest, they reached at the scene of murder, no inmates of the house of deceased had (come) there though alleging that there was a crowd of 30-40 persons present there. Sarvesh Datt (P. W.5) also similarly stated in his testimony that after 15-20 minutes after the arrest of the accused-appellant, when they returned to the scene of occurrence, no member of the family of the deceased was present there. All these circumstances indicate that the occurrence did not take place in the manner as claimed by the prosecution and its witnesses.
23. We have already dealt with the abnormal feature of the case that the informant does not claim to have attended his father on his receiving injury and preferred to run after the assailants. It may be mentioned here that Sheo Kumar (P.W.3) stated in para 11 of his evidence that after the deceased received fire-arm on his body, nobody gave any attention towards him (the deceased) and the injured-deceased was not attended too. From all this unusual conduct as stated it is obvious that when the deceased was fired at, perhaps nobody out of the witnesses was around and that on hearing the sound of fire, the informant rushed to the spot and finding the deceased in his injured condition, put him in a rickshaw and had taken him to the hospital where he was declared to be dead and that the present prosecution story was carved out in consultations with the police. It is also obvious that Lalman Singh accused-appellant was not seen with the assailants at the time and place of murder nor was he arrested in a hot chase as claimed by the prosecution but was arrested from elsewhere and his spot arrest was shown in this case in concert with the police. The defence claimed that Lalman Singh accused-appellant was arrested from the hospital by the men of the deceased and Shri Krishna Misra and falsely implicated in this case. The defence has examined Sudharkar Maurya (D.W.3) in this case and there is no particular reason to doubt his testimony.
24. Before concluding, the aspect of motive may be briefly dealt with. Motive wherever established could be used to give an assurance to the direct evidence of the occurrence and so the direct evidence has to be scrutinised first and if the direct evidence is not trustworthy, the evidence of motive could hardly help the prosecution.
25. In the F.I.R., motive was set up in regard to the present accused-appellant. It was near the arms shop of deceased, there was shop No. 46/82 which was initially in possession of Sri Krishna Misra and the shop and house Mo. 45/162 had been given to Lalman Singh accused-appellant as a partner. But later on, the accused-appellant stopped his visits to the shop and house whose litigation was pending in court; that Sri Krishna Misra used to visit the informant's house that several times, a Panchayat took place in respect of this shop and house but Lalman Singh accused-appellant did not agree and he (Lalman Singh accused-appellant) told several persons that so long as Ram Narain Shukla (the present deceased) is alive, the Panchayat Faisla of his shop cannot take place and that on the day immediately preceding the date of occurrence, Pratap Singh, co-accused, had visited the shop of the informant (son of the deceased) and called upon the deceased to stop helping Sri Krishna Misra otherwise it will not be good for him but the deceased refused to oblige which annoyed Pratap Singh co-accused. However, at the trial, the informant did not testify to this motive in full. All that he had stated was that there was a Namkin shop of Sri Krishna (aforesaid) and Lalman Singh accused-appellant used to sit at the shop; that Pratap Singh co-accused used to visit Lalman Singh accused-appellant and that 8 months prior to the occurrence, a Panchayat had taken place at the house of the deceased in which the deceased and two others were the Panchas; that the Panchayat had been called as a quarrel had taken place; between Lalman accused-appellant and Sri Krishna; that Lalman Singh accused-appellant did not attend that Panchayat and only Sri Krishna had come. He, of course, testified to the alleged incident of the previous evening as given in the F.I.R. As far as the incident of previous evening is concerned, it is not stated in the testimony or in the F.I.R. that the present accused-appellant was present therein. It has been stated in the testimony of the informant in cross-examination that there is a (rival) shop of the informant running in the name and style of 'Shukla Namkin Bhandar' for the last 20-30 years and yet there is another shop Bhola Besan Bhandar of the brother of co-accused Bir Singh (who had been acquitted by the trial Court). In his cross-examination, it has also come that shop No. 46/82 was initially in the tenancy of Sri Krishna and now for the last two and half years, it was in the tenancy of accused-appellant and that this shop had been attached in connection with sales tax dues against Sri Krishna and that in respect of this shop, litigation continued for six months between Lalman accused-appellant and Sri Krishna. Further it has come in his cross-examination that Lalman Singh accused-appellant used to sit at the Namkin shop of Sri Krishna as a partner under the partnership which took place 11/2 or 1 3/4 years prior to the present murder; that in the said litigation which had taken place between Lalman Singh accused-appellant and Sri Krishna about possession of shop, the deceased or the informant was not a party. It is further stated by the informant in his testimony that the Panchayat had taken place at the instance of Sri Krishna that in the Panchayat, Lalman Singh accused-appellant had come only once and had not come in the second Panchayat; that the first Panchayat was held 2-3 days earlier than the second Panchayat. The defence suggestion was that no Panchayat took place at all. This witness further stated that in the Panchayat, it was settled that Sri Krishna will pay the loss suffered by Lalman Singh accused-appellant and Lalman Singh accused will return the shop and Karkhana to Sri Krishna. He further stated that in the first Panchayat discussion on the subject was made but nothing was settled and Lalman Singh accused-appellant had requested in the Panchayat that he be given time to think over the matter. He further testified that the matter had been decided in the second Panchayat but on his own showing the second Panchayat was not. attended by Lalman accused-appellant and so the question of verdict therein was meaningless. Asked further in his cross-examination, he stated in the last paragraph of his evidence that Lalman Singh accused-appellant had stopped the visit of Sri Krishna to the shop house 25-26 months before the present occurrence. He further stated that it is wrong that Lalman Singh accused-appellant had stopped the visit to the house and shop of Sri Krishna. He was referred to the contents of the F.I.R. wherein such an assertion was made but he said that the word 'Ka' has been converted into 'Ki' by somebody. He further stated that it is wrong that Lalman Singh accused appellant lateron stopped the visit to shop No. 46/162. He was confronted with his statement before the Investigating Officer "Ak Dukan 46/82-Makan No. 46/162--Parantu Bad Men Lalman Ne Es dukan Va Makan Men Aana Jana Bhi Band Kar Diya". He denied having given such statement before the Investigating Officer and he is unable to tell the reason as to how the Investigating Officer has recorded this in his statement. From this, it is clear that while there was a dispute between Lalman Singh accused-appellant and Sri Krishna, it was Sri Krishna, who had every reason to get Lalman Singh accused-appellant falsely implicated in this case because of his (Sri Krishna's) being excluded by him (Lalman) accused-appellant from the shop and the house and Lalman Singh accused-appellant who was in actual physical possession of the shop had hardly any motive to commit the occurrence even if the deceased had supported Sri Krishna in the dispute of shop and the house.
26. In his statement recorded under Section 313, Cr. P.C., the claim of Lalman Singh accused-appellant was that Sri Krishna Misra had quarrelled with him so many times and even did Marpit and got his shop, house and godown and also Karkhana sealed and during the course of litigation, his shop was closed for one month and then he (accused-appellant) succeeded in the litigation and opened the shop and that thereafter Sri Krishna had got him apprehended by his men and beaten and obtained his signature on a document and about that incident (not the present incident), he had lodged an F.I.R. at Babupurwa Police Station whereupon Sri Krishna threatened and challenged him at Ursala Hospital and that his men had beaten and caught him. It is further claimed that these men were of Sri Krishna as well as of Ram Narain Shukla present deceased.
27. In view of the circumstances mentioned above, it cannot be said that the prosecution has proved the motive for the accused-appellant to have got the murder committed. On the contrary, there was every likelihood of his being falsely implicated in this case by the informant at the instance of Sri Krishna with whom, on his own showing, he and the deceased had close terms.
28. It may be that the incident of previous evening narrated by the informant with Pratap Singh co-accused was testified to by Sheo Kumar (P.W.3) also in his testimony but on his own showing he was not present at the time of incident of previous evening. He claimed that Ram Narain ' Shukla, present deceased, had told him about the same. His testimony however, is not dependable at all in view of the discussion aforesaid. None of the prosecution witnesses of fact deserves to be believed in view of the circumstances discussed earlier.
29. For the reasons abovementioned, this appeal is allowed and the conviction and sentence of Lalman Singh accused-appellant set aside. He is acquitted of the offence under Section 302/114,I.P.C. He is on bail from this Court. He need not surrender to it. His bail bonds are cancelled and the sureties are discharged.
30. Let a copy of the judgment be sent to the Sessions Judge concerned for information and compliance. The compliance report shall be submitted to this Court within a month.