ANIL KUMAR JAIN Vs. STATE

JUDGEMENT

(1.) Anil Kumar Jain has preferred this appeal (No. 868 of 1978) against the judgment and order dated 22. 3. 78 of Sri N. N. Sharma, Sessions Judge, Moradabad, in Sessions Trial No. 470 of 1977 convict ing and sentencing him to five years rigorous imprisonment under Section 307 I. P. C. Vipin Kumar Jain has also filed criminal Appeal No. 874 of 1978 against the judgment and order dated 22. 3. 78 of Sri N. N. Sharma, Sessions Judge, Moradabad, in Sessions Trial No. 470 of 1977 convicting and sentencing him to imprisonment for life under Section 302 I. P. C. The State of Uttar Pradesh, being aggri eved by the judgment and order dated 22. 3. 78 passed by Sri N. N. Sharma, Sessions Judge, Moradabad in Sessions Trial No. 470 of 1977 has also preferred Government Appeal No. 2130 of 1978 against the respondents. The prosecution case is that on 6. 3. 77 around 3. 00 p. m. one Premnath s/o Swami Dayal Punjabi r/o Manpur, Police Station Kotwali, Moradabad, was going to witness the Holi procession. Kallu is a Gunda and a quarrelsome man. He has involved himself in Gundagardi earlie also. Naresh, Jagdish and Anil are of the gang of accused, Kallu. As he was going to see the Holi procession, these persons started hurling filthy abuses-to which he exhorted them not to hurl such abuses and on this Naresh threw hot water on him (Premnath) causing him burn injuries. Nirmal Kumar Jain Chakkiwal and other persons were also with him and were always on the look out for an opportunity to assault. The witnesses saved him but threatenings of ending his life were administered. A report of the incident was lodged at police station Kotwali on 6. 3. 77 at 3. 25 p. m. against Naresh s/o Ram Gulam, Kallu (Virender) son of Ram Kishore, Jagdish Jain (Lawyer) and Anil son of Panna Lal. Jugul Kishore, Jagdish Saran and Brahma Prakash Chawla sons of not known, all residents of Manpur were cited as witnesses of this incident. This report is marked Ex. Ka. 3. Prem Nath was examined by Dr. P. K. Gupta, on 6. 3. 77 at 3. 00 p. m. and following injuries were found on his person. 1. Blister 4 cms x 2 cms. on the inner aspect of right arm, 3 cms above the axilla. 2. Blister 10 cms x 6 cms on the side (Rt) of chest 3 cms below the axilla". It is alleged by the prosecution that such a lodging of the report was not liked by the above persons and they were always on the look out for a revenge. On 18. 3. 77 some time back (to the lodg ing of the report at 10. 15 p. m.) Jugal Kishore along with his friend Jagdish Moonga son of Kishori Lal were going towards station road from Town Hall. Near the power house of Budh Bazar, Anil Jain and Nirmal alias Jhabra, whose father has a flour mill, Kallu Jain who is also railed Virendra. Naresh Jain whose father was a betel (pan) shop and who all belong to Mohalla Manpur and Vipin Jain resident of Harpal Nagar who is a cousin of Anil Jain, were standing on the road. On seeing these two (Jugal Kishore and Jagdish Moonga) Kallu said that "these persons are very fond of lodging reports and let us today settle the score". Both (Jugal Kishore and Jagdish) were surrounded and Anil took out a pistol from the Phant of his pant. On this Jagdish scorned him that in case he used (the pistol) its results will not be good. On this Jhabra, Vipin and Naresh tried to catch hold these two but they ran towards the station road. Anil fired a shot at them but it did not hit them. Naresh, Kallu and Jhabra rushed and caught hold of Jagdish and Vipin took out a knife and struck Jagdish on his back and chin. Kicks and fists were also given on his person when he fell on their raising alarm Amarnath, Kunj and Ramesh Kumar Dry-cleaners and Kishore Tyagi and other persons saw these persons assaulting but on a challenge being thrown, all the assailants ran towards Manpur Mohalla, Jagdish Moonga after running for a little distance fell down in front of the shop of Shanker Doodh Bhander where by then many persons had collected. The father of Jagdish took him to the hospital but Jagdish had died. A written report of the incident was lodged by Jugal Kishore at 10. 15 p. m. on 18. 3. 77 at police station Kotwali Moradabad. The distance of the police station from the place of occurrence is three furlongs. In the quarrel which ensued on 6. 3. 77 Jugal Kishore was cited as a witness. The postmortem examination of the dead body of Jagdish Moonga was conducted on 19. 3. 77 at 3. 45 p. m. by Dr. A. N. Kapoor (P. W. 8) at P. T. C. Hospital, Moradabad. The following ante-mortem injuries were found on body of Jagdish Moonga. 1. Incised wound 2. 5 cms x 1/2 cm x 1/2 cm. transverse on the middle of the chin. 2. Incised penetrating wound 3 cm x 1 cm x cavity on the left scapular region (obliquely placed) bone cut through and through (left body of the scapula ). 3. Abrasion 1 cm x 1 cm side of left eye ball. on the outer on internal examination the doctor found effusion of coagulated blood under the injury. There was fracture of the body of left scapula below injury No. 2 Descending part of the aorta was found cut below Injury No. 2. In the opinion of the doctor death was caused due to shock and haemorrhage as a result of injuries to the aorta. After necessary investigation a charge-sheet was filed against Anil Kumar Jain. Kallu Jain alias Virendra, Jhabra alias Nirmal i Kumar, Naresh, Jagdish Saran Jain and Vipin Jain. All the accused denied the charge and pleaded not guilty. They were put to trial and the appellants were convicted and senten ced, as stated above, while the others were acquitted. Hence appeal by Anil Kumar Jain (868 of 1978) and by Vipin Kuamr Jain (874 of 1978 ). State of UP. has also filed appeal (2130 of 78) against the acquittal of Kallu alias Virendra. Jhabra alias Nirmal, Naresh, Jagdish Saran Jain for setting aside the order of acquittal of the above and for their con viction and sentence according to law. All these appeals are being disposed of together by this judgment. Heard counsel for the parties. Before scanning the evidence it is to be found that the prosecution has introduced motive to annihilate Jagdish (deceased) on account of the incident which occurred on 6. 3. 77 and subsequent lodging of report by him. To supplement the motive it is alleged that Jagdish Jain who is a lawyer conspired with the accused persons to take revenge and eliminate Jagdish. Ramesb Kumar (P. W. 4) and Ram Prakash (P. W. 6) have been produced as witnesses of conspiracy. The prosecution in support of its case has produced Jugal Kishore (P. W. 2), Kishore Deo (P. W. 3) and Ramesh Kumar (P. W. 4) as witnesses having witnessed the incident. A-57 P. W. 2, Jugal Kishore, has corroborated the version in the F. I. R. He has stated that he resides in Mohalla Khushal Nagar, P. S. Kotwali, Anil Kumar Jain, Vipin, Jhabra, Kallu alias Virender, Naresh and Jagdish Jain are known to him. Amongst these persons Kallu is a Brahiman by caste but on account of his companionship with these Jain boys he is called Kallu Jain. It is stated by him that when he along with the friend Prem Nath were going to witness the Holi (when colour is played) procession, Anil Kumar Jain, Jagdish Jain, Virendra and Vipin hurled filthy abuses and when asked not to do so Naresh threw hot water on Premnath which resulted ip burn injuries to him. A report of the incident was lodged by Premnath at police station Kotwali at 3. 35 p. m. on the same day (6. 3. 77 ). P. W. 2 Jugal Kishore and Jagdish (deceased) were cited as wit nesses of the incident in the report. He admits that he and Jagdish (deceased) did not say anything. However the accused persons felt animus against these persons for lodging. the report. He has further stated that to the south of the town hall there is a road towards station and on its both sides are shops. A power house is also situate on this road. To the south of the power station on the same side is Dass General Stores. In front of this shop to the south are the shops of Shanker Doodh Bhandar and Shanker Misthan Bhandar which open to the west. These two shops are big shops 'of the town and remain open upto 10-11 O'clock in the night. To the north of Shanker Misthan Bhandar is the shop of Bombay Dyeing. There is ample light in these shops and on the road also. The tube-light which is fitted in these shops throw light on the road also. On the door of the power house there is also a tube light. On the road also there is tube light as well as on the octroi post which is lighted all the time. On 18. 3. 77, P. W. 2 Jugal Kishore, has stated that he along with Jagdish (deceased) was coming from Town Hall side and was going towards station. At about 9. 45 p. m. they saw Anil Kumar, Virendra alias Kallu, Naresh Kumar, Nirrna' alias Jhabra and Vipin Kumar standing near the power house of Budh Bazar. On seeing them Kallu said that "these persons are roaming lodging reports and let it be settled today". All these persons surrounded the two (Jugal Kishore and Jagdish Moonga (deceased ). Anil took out a pistol from his Phent of pant ) whereupon Jaqdish (deceased) warned that in case some thing happened its result would not be good. Upon this Vipin, Naresh and Nirmal tried to catch hold of the two (Jugal Kishore and Jagdish deceased) but the two ran towards the station. On this Anil fired at them but it did not hit them. Then Kallu, Naresh and Nirmal suddenly caught hold of Jagdish (deceased ). Vipin took out a knife and struck Jagdish (deceased) on the left side of his back. On his (Jagdish) turning the knife also struck him in the chin. When Jagdish (de ceased) fell down, he was given kicks and fists blows by these persons. This witness has also stated that the incident was wit nessed by Ramesh Kumar (P. W. 4), Amar Nath, Kishore Deo Tyagi (P. W. 3) besides others. When they all challenged the assail ants they ran inside the lane of Triboll which goes towards Manpur. Jagdish (deceased) after receiving the injuries ran for 5-6 paces towards Shanker Doodh Bhandar and fell down there. At that time shops of Shankar Doodh Bhandar and Shankar Misthan Bhandar were open. On the Boards of the shops, the road and the power house tube lights were providing lights. Blood had fallen on the place where Jagdish Moonga (deceased) had fallen. By then the father of Jagdish deceased had reached the place of incident. Jagidh (deceased) was taken by his father (as stated in the F. I. R.) on a rickshaw to the hospital where Doctor on seeing him declared him dead. P. W. 2 Jugal Kishore has stated that he had gone to hospital with the father of the deceased. After doctor informed them that the patient is dead he left the hospital immediately to lodge the report at the police station Kotwali. . An oral report was lodged by him at 10. 15 p. m. on 18. 3. 77 (as stated above ). P. W. 2 Jugal Kishore had been put to a very searching and gruelling cross examination. He has denied that Maya Rani is the sister of his father. But instead Phool Rani is the sister of his father who is not married to Jeevan Dass but is married to Hari Shanker who resides in Assam. He knows Jeevan Dass and his wife, Maya Rani. Their (Jeevan Das and Maya Rani's sons) Amar Nath and Manohar Lal are witnesses in the case. Jeevan Das has one daughter Kaushilya Rani who is married to Jagannath. Ramesh (P. W. 4) is the son of. Jagannath and is a witness in the case. Harbansh lal is the uncle of the deceased. Daughter of Chaman Lal is married to Harbansh Lal. The other daughter of Chamman Lal is married to Manohar Lal son of Jeevan Das (Manohar Lal is a witness though not produced in the case ). He has, however, pleaded ignorance about the relationship of Maya Rani with his father. He is also not aware about the relationship with Amarnath. He admits that all the accused and the witness are of the same caste Pun jabi. He does not know as to how far Nirmal accused is educated but he admits that his father has a flour mill. He does not know the vocation of Nirmal. He is not aware that Nirmal is having business of steel utensils. That is why the recording of a confession ally stated that Jagdish (deceased) resides at Malviya Nagar. Jagdish (deceased) had a grinding machine in which he used to work. He has specifi cally admitted that he resides in Khushal Nagar, Police Station Kotwali. At the time of incident on 18. 3. 77 he was employed in a Bank but is presently involved in a polishing work shop. The distance between his house and the house of Jagdish (deceased) is about half a mile. He has admitted that to the south of the power station is an octopi post where tubs lights are fitted. He admits that the distance between power station and Shanker Doodh Bhandar is 60-70 paces and not 100 paces. The lane going towards Manpur is around 5-7 paces from the Gol Market which is situate south of Shanker Doodh Bhandar. The police outpost is about 20 paces from the Got Market. There is only a road in between. He has admitted that a head of the road towards south and on the turning of the railway station there are five cinemas of which evening show finishes at 9. 30 p. m. He has admitted that prior to 6. 3. 77 there was no dispute between him and the accused persons nor any report was lodged. He has also admitted that except for Kishore Deo Tyagi (P. W. 3) all the witnesses are Punjabi. He has no relationship with Jagdish (deceased) but has admitted that he was his friend. He has emphatically stated that the accused persons had no quarrel with Jagdish (deceased) prior to this incident. P. W. 2 Jugal Kishore has very clearly admitted that in the matter of dispute with Premnath on 6. 3. 77 he had given few slaps to, accused Jagdish (this Jagdish accused is a lawyer ). He has also admitted that Jagdish (deceased) had not taken any part in the quarrel though he was a witness of the incident. He had accompanied Premnath to lodge the report at the police station. But Jagdish deceased had not gone. At the time when the said report was lodged by Premnath he was standing outside but he had read the report after it was lodged. He admits that he knows Kishori Lal, father of the deceased. Prem Nath had named four persons in the report tinted 6. 3. 77. besides few other persons were also mention ed. However, he does not know as to why other persons were not named in the report lodged by Premnath. This witness has admitted that the house of Jagdish (deceased) is at a distance of one mile from the place of incident. He has further stated that he and Jagdish deceased had gone together to Town Hall around 8. 30 p. m. on that date (18. 3. 77) In the same breath he has stated that Jagdish 'had to go to A. S. Tailor. He has stated that at the time when he was going towards A. S. Tailor with Jagdish (deceased), he had not met the accused persons but immediately reverts to say that he. does not remember, He remained at the shop of A. S. Tailor for about 15-20 minutes. This witness further states that on return he had reached the Power House around 9. 45 p m. The accused persons were standing on the road at a distance of 8-10 paces from the power house when he first saw them. All the accused were empty handed, He has seen the accused persons from a distance of 15-20 paces. While he was at a distance of 4 paces from the assemblage p of the accused persons all the accused persons came and stood near this witness and Jagdish (deceased ). They had not encircled the accused. But some of the accused had surrounded them. Prior to the surrounding Kallu had stated that these two are roaming lodging many reports. Then Anil took out a pistol from the phent of his pant. At that time knife was not taken out. No one had also caught the two though attempt was made. As the two were being attempted to be caught after Jagdish had warned Anil that it would not be good if pistol is fired, both ran. He admits that he and Jagdish (deceased) did not tell the accused persons that no report had been lodged against the accused persons by them. He has stated that after 10-12 paces the accused persons caught hold of this witness but then denies that he was caught by the accused persons. He however has stated that Jagdish (deceased) was caught by the accused persons. He was 2-n paces ahead of Jagdish (deceased ). At the time when Jagdish was caught hold of he was 10-12 paces towards Shanker Doodh Bhandar. Three accused persons had caught hold of Jagdish by hand. He has clearly stated that besides hands no other part of the body was caught. After running 5-6 paces and seeing Jagdish (deceased) having been caught he stopped in front of Shanker Doodh Bhandar. He has very clearly stated that no other person either tried to catch or assault him. He was standing there when Jagdish (deceas ed) fell and all this incident took place within half a second. When Jagdish was being given kicks and fists blows he raised an alarm. He admits that he did not go to the police out post to inform the police or seek their help though the police outpost is situate only at a distance of 20 paces. Any how, he has stated that no police men reached the place. The injured was then taken to the hospital. He has admitted that in the first information report he has mentioned about the giving of kicks and fist blows but admits that no details were given as to who had given such kicks or fists blows. He has admitted that where the deceased received the knife blow and while he was running before falling down no blood fell. He has stated that only on the place where the deceased fell some blood had fallen. He has admitted that in his report he has not written that Jagdish (deceased) had witnessed the incident which happened with Premnath. He has admitted that at the time of the incident with Prem Nath (on 6. 3. 77) he had not seen Jagdish (deceased ). He has further admitted that he knows appellant Vipin for the last two years. Vipin is residing at Harpal Nagar. He had admitted that in the quarrel with Premnath. Vipin was not there though in his examination in chief he has mentioned the name of Vipin which he says was mentioned inadvertently. He has denied, that he was a Pairokar of Mohar Singh who had lodged a case against Vipin Jain and Ravi Jain under Section 324 I. P. C. and in which both accused Vipin Jain and Ravi Jain were acquitted on 9. 3. 77. He has denied that an account of this he bears enmity with Vipin Jsin. He has admitted that the road on which the incident took place is a main thorough fare of Moradabad Town where more than 50 buses come and go. Every time this road is busy with padestrians and rickshawalas. Shops of sweet meat sellers and tea vendors as well as Panwalas remain open up to '12 in the night. In front of the power station Kishore Bhojanalaya is situate which remains open upto 11 or 12 in the night. He admits that on the date of the incident the deceased (Jagdish) had to take his shirt and pant from A. S. Tailor. He however, admits that all the shops in the town close at 7. 00 p. m. The owner of A. S. Tailor resides in the first floor of the shop. This witness has admitted that Jagdish (deceased) had closed his shop some time late but both had gone together to A. S. Tailor. However, they could not get their stitched clothes i. e. pant and shirt, as the shop had closed but they were informed by the owner of A. S. Tailors that they were not ready. It is very significant that this going or visit of this witness along with Jagdish (deceased) to A. S. Tailor 'is neither mentioned in the F. I. R. nor was this fact recorded by the 1. 0 in the statement under Section 161 Cr. P. C. This fact about his presence with Jagdish " (deceased) whom he had accompanied is very important but is unable to state the reasons as to why he did not write this fact in the report or state it to the investigating officer. The owner of A. S. Tailor has not been produced who could have testified the fact regarding the visit of Jagdish (deceased) along with this witness. This witness has admitted that as the accused persons attempted to surround him Anil had already taken out his pistol but as they were to be surrounded both ran and Anil fired at them. At the time of the firing of the pistol accused persons were 10-12 paces to the north while these two were running to the south. He admits that from where Anil had fired Jagdish (de ceased) was caught after 20-22 paces. When Jagdish (deceased) fell 10-12 persons had assembled including Ramesh Kumar (P. W. 4), Amarnath and Kishore Deo Tyagi (P. W. 3) whom he knew from before. He immediately took Jagdish 'deceased) to the hospital but again instantly adds that he and the father of Jagdish took Jagdish (deceased) to the hospital. Jagdish was taken to the hospital by him and his father en a rickshaw. This witness has stated that he had taken Jagdist' to the hospital within a minute of the running away of the assailants. Except this witness and father of Jagdish, Amarnath, Kishore Deo and Ramesh Kumar had not gone to the hospital though 5-6 persons had accompanied them. Amongst the 5-6 persons who had gone to the hospital he knows Om Prakash, and Manohar Lal. Om Pvakash and Manohar Lal are the same persons who had gone to lodge the report along with this witness at the police station. This witness has admitted that when Jagdish (deceased) was taken from the site he had expired. But he was not definite about it. He does not know as to when the father of Jagdish (deceased) arrived on the scene or how Om Prakash and Manohar Lal reached the place of occurrence. He admits that he stayed at the hospital for about 5-6 minutes and on being informed by the Doctor that Jagdish is dead he went to lodge the report on foot and reached the police station within in 4 minutes. Here again it is significant that though the father of Jagdish (deceased) was present in the hospital as stated by this witness, the former did not direct this witness to go to police station to lodge the report which infect is highly incomprehensible and foreign to human conduct. This witness has stated that Jagdish Moonga (deceased) prior to the incident was residing at Malviya Nagar. He has cate gorically stated that ('agdish deceased) never stayed at Manpur. He admits that he does not know that 5-6 persons are always present on duty at the power house. He has, further stated that he knows Virendra for the last 3-4 years. He is also aware that Virendra is also called Kallu Jain. He admits that he knew that. Virendra is by caste a Brahiman. Later on he has stated that when the ac used persons advanced towards him they were only one step. There was a dis tance of 2-3 paces between this witness and Jagdish Moonga (deceased ). He was ahead of Jagdish Moonga. He stopped after 5-6 paces on the road. By that time fire had been shot. At that time Jagdish (deceas ed) had been held and knife blows were being inflicted which he had seen. He admits that he knew Jagdish Jain prior to the quarrel with Premnath. The distance between Khushal Nagar and Manpur is less than half a mile. He does not know if there is any other person of the name of Jagdish Jain and Juqal Kishore in Manpur. He has denied that in the dispute of Prem Nath, Jugal Kishore and Jagdish of Manpur were not the witnesses. He has further admitted that he has not mentioned in the first information report that all the accused persons are of the same gang. He admits that he did not hear Anil talking to any other person. On being further cross-examined he has admitted that within one or one and a half minutes Om Prakash and father of the deceased had arrived. 10-12 persons had also assembled there. He did not talk to any of the 10-12 persons. He did not go to inform at the police outpost about the incident. After the lodging of the report the Investigating Officer recorded his state ment. He then admitted that after the lodging of the report the Investigating Officer had sent for him. He admits that Om Prakash had met him in the hospital. Learned counsel for the appellant (Anil) Sri C. S. Saran and for the appellant (Vipin) Sri A. D. Giri have vehemently attacked the veracity of the statement of this witness (P. W. 2 ). It has been submitted that this witness is a chance witness and much reliance cannot be placed on the credibility of his testimony. This witness has neither men tioned in the F. I. R. about his accompanying Jagdish (deceased) to A. S. Tailor nor has he disclosed this fact in his statement under Section 161 Cr. P. C. recorded by the Investi gating Officer. In the incident of 6. 3. 77-there was some quarrel between Premnath and Naresh, Kallu, Jagdish Jain (lawyer) and Anil while Jugal Kishore. Jagdish Saran and Brahm Prakash who are residents of Manpur were shown as witnesses. P. W. 2 Jugal Kishore has admitted that on the date of incident with Premnath he had not seen Jagdish (deceased ). The real person aggrieved could then be Premnath or other witnesses who were named in the First Information report about the incident of 6. 3. 77. In any case there cannot be any motive to put an end to the life of Jagdish Moonga (deceased ). Moreover, the witness Jagdish Saran son of not known r/o Manpur cannot be Jagdish Moonga (deceased) and it has been shown that there are many many persons of the name of Jagdish Saran in Manpur. Further P. W. 2 Jugal Kishore, has admitted that Jagdish Moonga (deceased) never resided at Manpur. The two startling factors that P. W. 2 Jugal Kishore did not see Jagdish Moonga (deceased) at the time of incident on 6. 3. 77 coupled with another fact that Jagdish Moonga (deceased) never resides in village Manpur has made the prosecution version highly doubtful that there was any motive lurking in the mind of the accused persons to kill Jagdish Moonga (de ceased ). The presence of P. W. 2 at the time of occurrence on 18. 3. 77 is highly improbable and creates a very serious doubt as he has failed to explain the reasons of his presence and to narrate the story of his visit to A. S. Tailor along with Jagdish Moonja (deceased) either in the first information report or in the statement under section 161 Cr. P. C. as stated above. Moreover, if at all there was any enmity between" the two groups, it was with P. W. 2 Jugal Kishore and Jagdish Jain as P. W. 2 Jugal Kishore besides Prem nath had also given one or two slape to Jagdish Jain who naturally being, a lawyer must have felt hurt. Scores were liable to be settled between Jagdish Jain op the one hand and Premnath and P. W. 2 Jugal Kishore on the other. Apparently, there was no 'enmity between the accused persons and Jagdish Moonga (deceased), Another significant fact which decries the testimony of P. W. 2 Jugal Kishore is that his statement is in contradiction ,with. the statement of the Investigating Officer (P. W. 7 ). Further his testimony is at variance with the site-plan prepared by the Investi gating Officer. P. W. 2 Jugal Kishore has stated that Anil fired from power house while the place where empty cartridges and wads marked A in site plan in 45-511 paces from the power house. He has stated that Anil fired when this witness and Jagdish (deceased) were running. ' It has come in the evidence that when Anil fired the other assailants were between Anil and this witness and Jagdish (deceased ). This version is wholly incompatible with the prosecution story as there was every likelihood that the fire might have injured the assailants who were chasing the two. Another important fact which mitigates the credibility of the testimony of P. W. 2 Jugal Kishore is that he has involved Vipin in the incident of 6. 3. 77 though he had later corrected himself by saying that Vipin was not there. It tends to reflect his mind that he was an interested witness and was mindful of implicating the appellants Anil Kumar Jain and Vipin Kumar Jain who are cousins, Saliently P. W. 2 has denied any relationship with Jugdish (deceased) except his friendship but it is revealing from the record that he is related to P. W. 4 Ramesh Kumar who is inimical to the appellants. Another cardinal fact which discredits the truthfulness of the statement of P. W. 2 Jugal Kishore is that he has stated that he took Jagdish (deceased) to the hospital along with his father. At the hospital 'the doctor first noted and certified that Jugal Kishore is dead. However, later on the name of Jugal Kishore has been scored off and the name of Jagdish Moonga has been written over it. It is highly improbable that when P. W. 2 Jugal Kishore had himself taken Jagdish (deceased) to the hospital how the doctor would mention his name instead of "jagdish Moonga". P. W. 2 Jugal Kishore has stated that father of Jagdish (deceased) was also with him. Such a mistake would rarely creep in and it clearly shows that P. W. 2 Jugal Kishore was not present at the hospital. It is admittedly the prosecution version that Jagdish (deceased) had received the knife injury and just within a minute his father had arrived there. P. W. 2 Jugal Kishore and father of Jagdish (deceased) took Jag dish (deceased) to the hospital. How the father of Jagdish (deceased) has reached the scene of occurrence has no where been shown or explained. Even the Investigating Officer has not interrogated him nor the circumstances had been explored regarding the arrival of the father of Jagdish (deceased ). It caste a serious doubt as to whether the father of the deceased had reached within a minute or so or had accompanied P. W. 2 Jugal Kishore to the hospital with the injured or deceased. Another glaring fact which discredits the statement of this witness is that in the F. I. R. he has mentioned that the father of Jagdish (deceased) took him to hospital. It is not mentioned in the report that this witness also went along with the father of the deceased to the hospital. This fact has been introduced later in his statement and is in fact wholly contradictory thus creating a serious doubt about the presence of this witness at the time of the incident. Another salient fact which would appear incomprehensible is that this witness has stated that three accused persons had caught hold of Jagdish (deceased) only by hand and no part of his body was caught. Admittedly accused persons Vipin Kumar, Naresh Kumar and Nirmal alias Jhabra were chasing Jagdish and unless they had run ahead 'of him it would not have been possible to hold the hand of Jagdish (deceased) by the three accused persons. It also appears improbable that three accused persons would hold him in such a manner as to permit Vipin Kumar to inflict the knife injury. Such a cinematic version does not inspire any confidence. Another fact which belies common sense is that this witness was only 2-3 paces ahead of Jagdish (deceased ). As has been discussed above there was no enmity between the accused persons and Jagdish (deceased ). This witness was also within the reach of the accused persons and it would have been quite natural for the accused persons to take revenge from this witness as he had slapped Jagdish (Lawyer) in the incident on 6. 3. 77. This witness has also stated that no one tried to catch him or assault him. This witness has also stated that Anil had fired immediately near the power house, when this witness and Jagdish (deceased) were being surrounded. But, in his cross examination he has stated that after running for few paces and when he had stopped on the road then he turned back and saw the fire from the pistol. At that time Jagdish (deceased) was being caught by the other persons and knife injuries were being inflicted. This appears to be wholly incongruous and is at variance with his statement about the firing of the pistol near the power house. In view of the above it is difficult to place any reliance on the testimony of P. W. 2 Jugal Kishore which inherently lacks in intrinsic worth and is bereft of any credi bility. His testimony is of no avail to the prosecution version and has to be discarded. Further more the story as regards the usage of fire arm is again wholly incredible and no reliance can be placed on it. It may further be mentioned that the police outpost is only 20 paces from the place of incident. No police official or man was informer' or had reached the place of occurrence. in normal circumstances it would have been most natural to have informed the police men at the police outpost. Admittedly no person of the locality has been produced in this case who may have independently deposed about the truth fulness of the prosecution version. This caste a serious doubt on the prosecution story. It is, thus, apparent that P. W. 2 Jugal Kishore is a partisan witness and his testimony is highly interested and has been discarded as discussed above. Besides P. W. 2, Jugal Kishore, the prosecu tion has produced P. W. 3, Kishore Deo Tyagi who is alleged to have witnessed the incident He has corroborated the statement of P. W. 2 Jugal Kishore. He has admitted that the road On which the incident is alleged to have occurred is a very busy road where lights are lit all the night. This witness has stated that around 9. 30 - 10. 00 p. m. he was returning to his home from the shop of Gupta Sports through this road. When he reached near the sub-power station he saw five persons, Anil, Jhabru, Naresh, Kallu and Vipin standing there. He saw Jagdish Moonga (deceased) and Jugal Kishore (P. W. 2) coming from the Town Hall side. When they reached near these accused persons, Kallu accused on seeing them said "these persons are roaming lodging the report and let it be instantly settled". All these five accused persons encircled Jagdish Moonga (deceased) and Jugal Kishore (P. W. 2 ). Anil took out revolver from the Phent of his pant. On this Jagdish Moonga (deceased) exhorted and cautioned them that if it is used it will not be good. Then Vipin, Naresh and Kallu accused persons tried to catch hold of Jugal Kishore (P. W. 2) and Jagdish Moonga (deceas ed) but they ran towards the station. Anil then fired from his pistol though it did not hit any one. It may be mentioned here tnat this witness has not stated that the fire was aimed at these two persons Jugal Kishore (P. W. 2) and Jagdish Moonga (deceased) Thereafter Naresh, Kallu and Jhabra caught hold of Jagdish (deceased) and Vipin inflicted a knife injury on the back of Jagdish (de ceased ). When Jaqdish (deceased) turned Vipin gave a knife assault on the chin of Jagdish (deceased ). Thereafter all, i. e. Naresh, Kallu, Jhabra, Anil and Vipin hurled kicks and fists blows to Jagdish (deceased ). The incident of knife assault took place in front of Bombay Dyeing shop. After receiv-in the knife assault Jagdish (deceased) after running a short distance fell in front or Shankar Doodh Bhandar. When Jagdish (deceased) fell down, all the accused ran towards Manpur. He had recognised the accused persons in the light which was lit ion the street and in the shops as well as on the power house and the octroi post. He however, admits that all the accused are known to him from before. In his cross examination he has admitted that Amarnath and Manohar Lal (who are cited as witnesses) are real brothers. He does not know about their relationship with Jugal Kishore (P. W. 2 ). But, he knew Jugal Kishore (P. W. 2) from before. Father of Jugal Kishore (P. W. 2) is also known to him. He admits that he knows Jagdish (deceased) his father, Kishori Lal, and his uncle, Harbansh Lal as well as their family for the last 10-12 years. He knows Sheela Moonga, wife of Harbansh Lal very well. He has admitted that he was carrying partnership business with the Moonga family in the name and style of H. K. Engineering Corporation. He has further admitted that he resides at a distance of half mile from the place of occurrence. He has further admitted that his wife and the wife of Har bansh Lal Moonqa are partners in a firm in the name and style of Balaji Industries but this business has been closed for the last two years. His uncle Dalieet Singh possesses huge property and Harbansh Lal has purchased a part thereof for Rs. 90,000/ -. He too had purchased the house in which he is residing from Daljeet who is residing at Delhi. He admits that he had filed a case under Section 307 I. P. C. against one Sri Chopra with whom he had a quarrel. When he was further cross-examined he has admitted that the proprietor of Gupta Sports is known to him. At the time of incident he was returning from Gupta Sports as its proprietor was contesting an election for Parliament and he was his agent and at that time list of counting agents was being prepared. He admits that by that time election had been over. He has further admitted that he does not remember whether he had told the fact to the Investi gating Officer. He however admits that while returning to his home from railway station the shop of Gupta Sports would not fall on the way. This witness has further stated that he had seen the accused persons when he was standing in front of the power station and the accused persons were standing on the road in front of power station while Jagdish (deceased) and Jugal Kishore were in front. of Kishore Bhojnalaya. The accused persons were at a distance of 30-35 ft. from him. He is deliberately concealing that he does not know that there are many-many shops of sweet-meat sellers, Pan and tea vendors, biscuits and confectionary. He does not know any one except the pro prietor of Shankar Doodh Bhandar. He has further admitted that after the accused persons had encircled shot was fired within a minute or two. At that time the person who had fired was to the north of the injured. Fire was shot from a distance of 20 paces. At the time of the firing other accused persons were to the south. of the persons who had fired. Jagdish (deceased) and Jugal Kishore were also running to the south and the accused person were chasing him. He adrmcs that he saw the incident from the place where he was standing but he did not make any efforts to save the two. He has stated that at the time when the 'fire was shot Ramesh (P. W. 4) and Amar Nath were standing near the shop of Bombay Dyeing. This witness, no doubt, admits that the road on which the incident occurred is a very busy road but at that- -time there was not much of rush. This is in contradiction with the statement of P. W. 2, Jugal Kishore. Besides, Ramesh' and Amarnath no person unknown to him had arrived at the place. He stayed there for five minutes and left for his house. He did not. visit hospital along with Jagdish as he had to submit papers in the election office and as such went straight to his house. Jagdish had died before him. He did not visit the hospital that night nor did he go to the house of Jagdish (deceased ). This conduct in view of the business relationship and close associa tion with the Moonga family is highly unnatural J. DJJ -the statement does not inspire confidence that he had witnessed the incident. He. has admitted that it was just a sheer "chance" that this incident happened while he was returning from the shop of Gupta Sports. Admittedly, he is a chance witness and is highly partisan having business relationship with the Moonga family. This witness again has failed to explain the reasons of his pre sence of the Investigating Officer. He has further admitted that Kallu had not tried to catch hold Jagdish (deceased) bodily which has attempted by Naresh, Jhabra and another person. He has also admitted that he had lodged the report against Hariom Chopra in the year 1976 in which final report was submitted. He, however, states that he does not remember that at the time of incident with (Dm Prakash on 25. 1. 76 when Harbansh Lal Moonga was there and who was abused to which this witness protested. He has further admitted that within 2-3 minutes of the firing knife injuries were inflicted. He' admits that the person who had fired was standing and at that time Jagdish (deceased) was running in the middle of the road. It is very significant that he did not talk to any other person or the Witness at the time of the incident. For the reasons stated, above no reliance can be attached to the testimony of this witness. Further his statement also deserves to be discarded for the reasons on which the statement of' P. W. 2 Jugal Kishore has been rejected. The last eye-witness this incident is P. W. 4 Ramesh Kumar He has stated that around 9. 00 or 9,30 p. m. he was going towards south, when he saw Jagdish (lawyer) standing with five other persons, namely, Kallu, Jhabra, Naresh, Anil and Vipin. Jagdish (lawyer) shook hands with all the five persons and sought their leave. He exhorted them to do the needful where after he would see to it. Ali the persons remained standing there. It may be mentioned here that this is also shown by the prosecution that a conspiracy was hatched by Jagdish Jain. However, the learned Sessions Judge has disbelieved the prosecution version that such a conspiracy hatched. P. W. 4 Ramesh went to the shop of Shankar Doodh Bhandar to take milk and on return after travelling 20 paces of Bombay Dyeing he saw, Jagdish Saran deceased and Jugal Kishore coming from the side of the Committee. He heard Kallu saying that these persons are roaming lodging the reports, they should be killed today. At that time besides Kallu, Vipin, Jhabra and Naresh were standing. On such exhortation Anil took out a pistol, from the Phent of his pant on which Jagtiish cautioned him that its result would not, be good. Thereupon accused persons tried to surround the two (Jagdish deceased and Jugal Kishore (P. W. 2 ). After this Vipin, Naresh and Jhabra after going 8-10 paces stopped. Jagdish (deceased) and Jugal Kishore ran towards the station. Anil fired a pistol shot which did not hurt any one and the two persons ran. Then Kallu,' Jhabra and Naresh caught the hand of Jagdish and Vipin inflicted a knife injury on the back of the deceased. When the knife was taken out it hit the chin also. These persons gave kicks and fists blows acts. He has anther stated that at the time of me inside it Amarnath, Kishore Deo Tyagi (P. W. 3) and few other persons whom he does not know were present. After 2-3 minutes father of Jagdish (deceased) reached the scene of occurrence. Apparently he has also tried to corrobo rate the prosecution version and the statement of P. W. 2, Jugal Kishore and P. W. 3 Kishore Deo Tyagi. In his cross-examination he has admitted that he knew Vipin from before. Neither Vipin was his friend nor was inimical to him. He admits that on Tuesday he plays cards with these five accused persons besides few other persons. He has been playing cards with them for the last 4-5 years. He admits that he did not talk to accused persons. He admits that all the shops from Town Hall to Power House were open but immediately reverts to say that few shops were open. He has stated that he did not require from the accused persons as to what the matter was. This belies human conduct as he was known to all the accused persons with whom he was playing cards for the last 4-5 years. He has further admitted that Kallu had exhorted from the place where the accused persons were standing and immediately surrounded Jagdish (deceas ed) and Jugal Kishore (P. W. 2) more than 10-12 persons, besides the accused persons and other witnesses were present. But, none came forward to intervene or save the deceased from the assault. He has admit ted that the accused persons did not run towards Jugal Kishore and Jagdish (deceased) but has stated later that accused persons after running 8-10 paces had caught hold of Jagdish (deceased ). But again Jagdish (deceased) got himself free and ran for 10-15 paces though he was caught again by the accused persons. This version, as has been introduced, is contradictory to the statement of P. W. 2. Jugal Kishore as well as P. W. 3 Kishore Deo Layagi. He has stated that he had gone to the hospital but had not accompanied Jagdish Moonga (de ceased) as he had gone on foot while Jagdish Moonga (deceased) was taken on a rickshaw. He has admitted that when he reached the hospital he was not aware whether P. W. 2 Jugal Kishore was there or not. He has categorically stated that he did not see Jugal Kishore (P. W. 2) in the hospital. He admits that Ram Prakash Katiyal is. father of Jugal Kishore who is distantly related to him. He does not know as he has stated that Ram Prakash Katival is the real brother of his maternal grand-mother. He admits that he did not disclose to any one about the fact of his slaying cards with the accused persons. He admits that he was going lost minded and as such he did not enquire from Vakil Sahib (Jagdish Jain) about the incident. He further admits that it was just "instance" or "chance" that when the accused were talking he had reached there. He further admits that it is also a "chance" that father of deceased reached there within, two minutes. He has admitted that he did not talk to the father of the deceased. He admits that he did not tell about the shaking of hands by Jagdish Jain with the remaining accused to Jugal Kishore before his going to Kotwali. He has clearly stated that none of the accused had caught hold of the deceased bodily. He has stated that he had gone to the shop of Shankar Doodh Bhandar to take milk but he has admitted that the shop of Shankar Joodh Bhandar closes at 7. 00 p. m. This witness had told the Investigating Officer the name of the deceased as Jagdish Moonga. It is for the first time in his statement in the court that he has mentioned Jagdish Moonga (deceased) as Jagdish Saran. It may be mentioned here that this Jagdish Saran is cited as a witness in the incident of Holi when Prem Nath had lodged a report on 6. 3. 77. This witness has stated that he is residing in the same house in which his father lives. This house is owned by Digambar Jain Mandit and a case for his eviction there from had been filed against him. He has lost the case and an appeal is pending in the High Court. Surprisingly he pleads ignorance by stating that he does not know that Jagdish Jain is doing necessary Pairvi in the case as an office bearer. He also denies having any knowledge that Anil accused is the Deputy Secretary of the Digambar Jain temple committee. This witness is highly interested and is inimical to Anil as well as to his cousin, Vipin and also to Jagdhli Jain (lawyer ). His testimony lacks intrinsic worth and cannot be relied upon. The trial court thus rightly discarded his testimony as regards incident and conspiracy. His testimony also deserves to be discarded for the reasons on which the testimony of P. W. 2, Jugal Kishore and P. W. 5 Kishore Deo Tyagi has been discarded. His deposition is of no avail to the prosecution version. He is apparently, as admitted by him a chancre witness and has also admitted that it was just a chance that he was there and the incident happened before him. It is;h'm borne out that a litigation is pending agent him in which Anil Jain is doing necessary Pairvi against him as deposed by D. W. 1, Sheetal Chand Jain. P. W. 5 Premnath has testified the fact about the Holi incident and his lodging the report on 6. 3. 77. He has corroborated the version of the F. I. R. lodged by him. He admits that the accused persons are known to him for 4-5 years and till 6. 3. 77 there was no dispute or quarrel amongst them. He admits that neither any proceedings were drawn against the accused persons nor did he file any complaint because he had felt pacified. He admits that Jagdish Moonga never stayed in Mohalla Manpur. But, in the report lodged by this witness he has cited Jagdish Saran as a witness of the incident being of Mohalla Manpur. He denies as to how the parentage of Kallu has been mentioned in the report though he does not know his father's name. He admits that Jugal Kishore (P. W. 2) is known to him for the last 5-6 years and he is resident of Khushal Nagar. He has categorically stated that P. W. 2 Jugal Kishore never resided in Mohalla Manpur. He has admitted that in his report he did not mention that a scuffle ensued between Jugal (Jugal Kishore) and Jagdish (Jagdish Jain Lawyer ). For the first time such a statement was given by him in the Court. The testimony of this witness is wholly of no avail to the prosecution story. P. W. 6, Ram Prakash, has been produced by the prosecution to establish the conspiracy that was hatched by the accused persons. He has stated that Jagdish Jain (Lawyer) is known to him for the last 6-7 years as he and Jagdish Jain lawyer were fond of food and drinks. In the same breath this witness says that he is visiting Jagdish Jain Lawyer for the last 8-8 1/2 years for food and drinks. The accused persons used to come to Vakil Sahib. He has stated that around 8. 30 (on that day i. e. 18. 3. 77) when he went to the house of Vakil Sahib he was not there. His mother gave a cot to sit. After about 3/4 hours Vakil Sahib had come by which time he had gone in the drawing room. He drank. He had cut onion and tomato After 3/4 hours there was a knock at the door. All the five persons came and told Vakil Sahib that they had done away with the Punjabi. Jugal Kishore, no doubt, had run away but Jagdish (deceased) had been done away with Vakil Sahib told them not to be scored. He has admitted that he had told the Investigating Officer that the address of Manohar had been given by Jagdish Lawyer but he does not know as to why the Investi gating Officer did not mention this fact in his statement'. There is no credibility in the statement of this witness and more so the statement intrinsically lacks in worth. The trial Court rightly rejected his evidence as regards the hatching conspiracy. Even his statement is of no avail to the prosecution version as no person would admit their guilt before a person unless he is himself a part of such conspiracy. His statement thus, cannot be relied upon. P. W. 7 Inspector Kameshwar Prasad is the Investigating Officer in this case. He admits having prepared the site plan and which he had sent along with the case diary. However, the original site plan that was prepared by him was not available.-$ on the record. He has admitted that on 26/10/77 as per instructions of the State counsel he had visited the site again and prepared site plan again. This is again very intriguing circumstance which deserved to discard the prosecution version. He has stated that on the same night he had visited the place of occurrence. He has stated that he had found an empty cartridge and three wad near Dass General Stores. Earliest he has stated that empty cartridges as well three wads are before him but during the cross-examination it has been admitted by him that they are not before him. He has not admitted that the empty cartridges and the three wads were sealed in a box on 19. 3. 77. It is difficult to believe that it would be possible for him to see the empty and the three wads in the night of the incident. It is again wholly natural that the empty cartridges and the three wads were still lying on the spot in front of Das General Stores. Admittedly it is a very busy road and any person or children could have taken it away. Moreover, no witness has stated that the firing took place in front of Dass General Stores. Only one fire was shot and there was no occasion to have taken out the empty when the witnesses do not say that another fire was shot. Further in the site plan he has not shown the place of incident from where the fire was shot. He admits that he does not know as to where Kishore Bhojnalaya is situate. As has been shown above Kishore Bhojnalaya is an import ant place as regards the occurrence. He admits that he had not interrogated any person of the locality or of the shop owners or the persons Who were posted there on duty at the power station. In view of the above the prosecution has failed to bring home the guilt to the appel lants. The appeals preferred by Anil Kumar and Vipin Kumar Jain, thus deserve to be allowed and the Government Appeal deserves to be dismissed. In the result Criminal Appeal No. 868 of 1978 and Criminal Appeal No. 874 of 1978 are allowed. The conviction and sen tence of the appellants are set aside. They are on bail. Their bail bonds are discharged. Government Appeal No. 2130 of 1978 is dismissed. .