IMPORTANT POINT
Accused cannot be convicted in face of contradictory statements of witnesses.

JUDGMENT :

N.V. Ramana, J.

This appeal by way of special leave petition is filed by the State of Uttar Pradesh against the final judgment and order dated 6th April, 2007 passed by the High Court of Judicature at Allahabad in Criminal Appeal No. 2622 of 2005. By the said judgment, the High Court has acquitted the respondents who were accused in Sessions Trial No.1090 of 2003 before the District Court, Ghaziabad, Uttar Pradesh.

2. The prosecution case, in brief, is that on 25-3-1993 at about 9.00 a.m. Mahipal (deceased) and his wife Prakashee (PW3) were going to their fields on a buffalo cart and Tej Pal, Ram Swaroop and Dharmendra (PW2) were following them. While they were on their way, the three accused (respondents herein) appeared out of a sugercane filed near the fields of one Alias, while hurling abuses against Mahipal fired at him. The fire opened by Om Pal was missed but the fire opened by Mukhtiar hit Mahipal. Navin assaulted Mahipal with the butt of the Tamancha on his head. On receiving information from Dharmendra (PW2) about the incident, Naresh (PW1) accompanied by Dharmendra took the injured Mahipal to the police station, Babugarh and lodged FIR. Thereafter, on the way to hospital, Mahipal succumbed to the injuries.

3. The Investigating Officer, Sub-Inspector R.K. Chaudhary (PW6) carried the investigation, recorded statements, prepared site plan (Ext. Ka-3), collected plain earth as well as blood stained earth from the place of occurrence and after conducting inquest at the hospital, sent the dead body for postmortem. The accused Mukhtiar was arrested on 29.3.1993 near village Bacchrota and from his possession one illegal pistol of 315 bore and one ammunition cartridge (Ext.K.13) were recovered. On 8th April, 1993 the I.O. recorded the statements of other accused Omal and Navin. A Tamancha, allegedly used in the crime, was later recovered at the instance of accused Ompal on 14.4.1993. The statement of the wife of deceased (PW3) was recorded on 24.4.1993. After concluding the investigation, the Judicial Magistrate, Hapur committed the case to the Court of Sessions where charges were framed under Section 302, IPC read with Section 34, IPC against all the three accused and additionally charges were framed against accused Mukhtiar under Section 25 of the Arms Act. The accused pleaded not guilty and claimed to be tried.

4. At the trial, the prosecution mainly relied on the evidences of complainant-Naresh Pal (PW1) and eyewitnesses Dharmendra (PW2) and Prakashee (PW3), wife of the deceased. The motive for committing the crime was said to be that there was enmity between the parties as about three years before the date of occurrence, accused Mukhtiar was shot at and in that regard a case was in progress at Hapur Court in which Mahipal (PW1) was accused. P.W. 4-Pratap Singh was examined as a witness to prove the conspiracy. P.W.5 is Dr. Hari Kishan Agarwal, who had conducted the post mortem of deceased Mahipal. P.W. 6 S.I. R.K. Chaudhary-I.O. and P.W. 7- Paltoo Ram, Head Constable are the formal witness. At the end of the trial, the Trial Court came to the conclusion that the prosecution has successfully proved the guilt of the accused. Accordingly, the accused were convicted under Section 302 read with 34, IPC and sentenced to suffer life imprisonment and to pay a fine of Rs. 5,000/- each and in default thereof, to further suffer six months rigorous imprisonment.

5. The trial Court's judgment awarding conviction and sentence has been assailed by the accused by way of criminal appeal before the High Court. On appreciation of the material placed before it, the High Court recorded its finding that the prosecution witnesses, on whose evidence the trial Court has relied on, are not reliable. Accordingly, the High Court set aside the judgment of the trial Court and acquitted all the three accused. Dissatisfied with the acquittal order passed by the High Court, the State of Uttar Pradesh has preferred the present appeal before this Co