Judgment

DR ANAND

( 1 ) THESE two appeals under Section 2 (a) of the Supreme court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970, are a directed against the judgment of the Allahabad High Court allowing the appeal of the respondent State and setting aside the acquittal of the appellants in both these appeals. Since, the appeals arise out of the common judgment, these are being disposed of by this common judgment.

( 2 ) KALU, Neelu, Meharaj Singh and Babu were challaned by the police for an occurrence which took place on 3-11-1977 at 11. 00 or 11. 15 a. m. at village Dhanju in which one Laxman Singh was murdered. The trial court acquitted all the accused, against which order the State went up in appeal to the High Court. Neelu died during the pendency of the appeal in the High court and, therefore, appeal against him abated. The High Court maintained the acquittal of Babu who is the sisters son of Kalu and Neelu, the two brothers, while convicting Kalu and Meharaj Singh for various offences. The state has not filed any appeal against acquittal of Babu. Kalu and Meharaj singh have filed two separate appeals, as noticed earlier.

( 3 ) ACCORDING to the prosecution case, on account of some pending criminal litigation against the deceased, his father and some other members of his faction for causing injuries to Neelu and Kalu and their father, the relations between the parties were strained and both sides were hostile to each other. On 3-11-1977 at about 11. 00 a. m. when deceased Laxman Singh along with his wife Smt Kamlesh PW 2, were loading jawar in their cart, kept at the chak road, accused persons armed with gun, country-made pistol and knife attacked him. Neelu and Kalu are alleged to have shot at the deceased from their respective weapons, Meharaj Singh, appellant, is alleged to have caused injuries with a knife to the deceased after he had fallen down.

( 4 ) THE first information report was lodged by Makhar Singh, father of the deceased on 3-11-1977, at about 12. 45 p. m. at Police Station Daurala at a distance of 4 kms from the place of occurrence. The investigation of the case was conducted by Sub-Inspector Sultan Singh PW 8 at the initial stage and was then taken over by PW 9 Laxman Singh Sub-Inspector. Sultan Singh pw 8, according to the prosecution version, reached the scene of occurrence at 2. 00 p. m. and prepared the inquest report of deceased Laxman Singh whose dead body was found at a distance of about 21 steps from the khajoor tree which stood on the dividing line between the fields of Balbir Singh and ganga Saran. The investigating officer noticed presence of the cart of the deceased at a distance of five steps from the khajoor tree. The dead body of. the deceased was sent for post-mortem examination which was conducted by" dr N. K. Pande PW 10, who found a number of gunshot wounds on the deceased besides eight incised wounds. Dr Pande also found that the stomach contained partially digested food material weighing about 150 gms. 18 big shots and 80 pellets, along with wadding pieces, were recovered from different parts of the body of the deceased during the post-mortem of the deceased.

( 5 ) THE trial court, after appreciating the evidence on the record, opined that the first information report was ante-timed and that the ocular testimony a was contradicted by medical evidence. The trial court also found the evidence of the alleged eyewitnesses PWs 2, 3, 4 and 5 as unreliable not only on account of the fact that they were all interested in the prosecution but also because their conduct was found to be unnatural. The trial court found merit in the case set up by Neelu, deceased and Babu, the acquitted accused. Their case was that it was a blind murder and since none of the alleged eyewitnesses had actually seen the occurrence, they had roped in the accused persons only on account of the previous enmity on mere suspicion. The High court agreed with the trial court except insofar as the complicity of the