Deo Narain Yadav vs State Of U.P.
2021 Latest Caselaw 11075 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.		
 
Judgment Reserved On: 25.08.2021
 
Judgment Delivered On: 09.09.2021
 
Court No. - 48
 

 
Case :- CRIMINAL APPEAL No. - 84 of 1983
 

 
Appellant :- Deo Narain Yadav
 
Respondent :- State of U.P.
 
Counsel for Appellant :- S.K. Singh,A.K.Srivastava,Apul Misra,H.K. Yadav,M.C.Tiwari,P.C. Srivastava,P.N.Misra,Rahul Mishra,S.Kumar,V.M.Zaidi
 
Counsel for Respondent :- D.G.A.
 

 
Hon'ble Anjani Kumar Mishra,J.

Hon'ble Syed Aftab Husain Rizvi,J.

(Preferred by Hon'ble Syed Aftab Husain Rizvi,J.)

1. Heard learned counsel for the appellant and learned A.G.A. for the State and perused the material on record.

2. This criminal appeal arises out of judgment and order dated 25.11.1982 passed by the Vth Additional & Sessions Judge, Allahabad in Special Case No.166 of 1982, Case Crime No.12 of 1982, under Section 302 I.P.C., Police Station- Nawabganj, District- Allahabad, convicting the appellant (accused) under Section 302 I.P.C. and sentencing him to life imprisonment.

3. The prosecution case is that complainant Rajendra Prasad Yadav gave an application dated 27.01.1982 at Police Station-Nawabganj, District- Allahabad alleging therein that he is resident of village Rajapur Mazara Awanikapura. The agricultural plot of applicant and Deo Narain Yadav resident of Rajapur Chaubara Mazara Awanikapura are adjacent and there is enmity between them regarding dismantling of boundary (mend). On 26.01.1982 at about 04 p.m. his father Rameshwar @ Bachai went to the house of Paras Nath to take money. After some time he (Rajendra Prasad) went to call his father where he saw that Deo Narain Yadav armed with his licensed gun was abusing his father and saying that you will not simply settle the dispute of dismantling the boundary (mend) and today you have met me on opportune moment, you will be killed and not spared. On this, my father forbidden him to abuse which further enraged Deo Narain Yadav. Meanwhile, co-villager Kishori Lal asked Deo Narain Yadav not to quarrel. Deo Narain Yadav advanced ahead, Kishori Lal caught hold of him but Deo Narain Yadav jerked him, and Kishori Lal fell down. Then, Deo Narain Yadav due to aforesaid enmity with intention to kill his father fired a gun shot at Rameshwar Prasad on his head, some portion of skull of my father's blow off and brain material came out and my father died on the spot. On hearing noises witness Kallu from southern side and many other co-villagers making exhortation reached the spot. Accused Deo Narain Yadav threatening all of them with death ran away towards East. Due to extreme cold, rain, darkness and due to fear, I have come to the police station today morning with co-villagers for giving information written by Doodhnath. The dead body of my father on the spot is being guarded by village Chowkidar Mahrani Din.

4. On the aforesaid written information Case Crime No.12 of 1982 under Section 302 I.P.C. was registered at Police Station- Nawabganj, District Allahabad on 27.01.1982 at 08:40 a.m. and the investigation commenced. The investigating officer, S.I. Nasiruddin reached at the spot prepared inquest report and sent the body for post-mortem examination, interrogated the witnesses, inspected the place of occurrence, prepared the site plan, took sample of blood-stained soil and plain soil and sealed it in separate containers and prepared its memo, interrogated other witnesses including eye-witness and after completion of investigation submitted the charge-sheet against the accused Deo Narain Yadav under Section 302 I.P.C.

5. The learned trial Court framed charge against the accused Deo Narain Yadav under Section 302 I.P.C. The accused denied it and claimed for trial. Prosecution examined five witnesses. Statement of accused Deo Narain Yadav was recorded under Section 313 Cr.P.C. in which, he alleged that he has been falsely implicated at the instance of Paras Nath, Kishori Lal, Kedar Nath. Paras Nath is of the party of Kishori Lal. He has also stated that he appeared as a witness against Kishori Lal. Rajendra Prasad (complainant PW-1) is under the influence of Kishori Lal. He has further stated that he had no enmity with Rameshwar Prasad (deceased). Paras Nath and Data Deen have filed a case in respect of Plot No.73 against Ram Swaroop (father of the accused) under Section 115 C which he lost from the Court of Tehsildar as well as from the Court of Commissioner and even from the Civil Court. He has further stated that on 26.06.1979, Paras Nath, Shambhoo Nath and Gopi Nath sons of Nanhku and Ram Saran son of Raghunandan (uncle of Paras Nath) assaulted him for which he lodged a report. He filed a copy of chitthi mazroobi of that incident. He further stated that on 14.10.1977 Kedhar Nath son of Shukru and Chhedi Lal son of Sher Ali resident of Rampur Chaubara murdered his brother Sampat who was a guard in R.P.F. and he lodged a report with the police, a carbon copy thereof he has filed. He has further stated that at the time of incident, he was not present at his house and no such quarrel as alleged has taken place.

No oral evidence in defence produced by the accused. The learned trial Court after hearing the arguments by impugned judgment has convicted the accused (Appellant) for charge under Section 302 I.P.C. and sentenced him for life imprisonment.

6. The post-mortem of the deceased was conducted on 28.01.1982 at 02.40 p.m. by Doctor P.L. Nigam PW-4 and according to which on external examination, the rigor mortis has passed off from the upper portion of the body but was present in the lower limbs. Mud was found sticking on both the legs and on the left thigh, blood was accumulated on the left side of the face and chin. Following ante-mortem injuries were found on the body.

One gun shot wound 7.5"x6" x brain cavity deep starting from the right side of the tip of nose going upwards and laterally crossing whole of the body of nose, left side of the forehead going upwards upto the middle of the vault of scalp. The posterior end of the wound was placed 3" above pinna of left ear. The scalp bones were broken into innumerable pieces of varying sizes. Whole of the brain matter including meningia were missing from the cavity except both the lobes of cerebelum and a part of the base of brain. One piece of flattened fire-arm pellet, irregular in shape was recovered from the posterior part of the brain cavity. The margins of the wound of nose were inverted and it appeared to be woud of entry and the posterior part over the vault of the scalp, the margins of the wounds are everted. It shows that the wound of entry is on the anterior part of the wound and the wound of exit at its posterior part.

On internal examination Dr. Nigam found that the skull bone was broken into pieces and the membrane of the brain were lacerated and the brain was missing as mentioned in injury no.1

In the opinion of the Dr. P.L. Nigam (PW-4) the cause of death was shock and hemorrhage on account of ante-mortem injury and duration of death was two days from time of post-mortem. The pellet recovered from the body was sealed in an envelop and sent to the police. Dr. P.L. Nigam PW-4 in his examination-in-chief has also stated that the death of Rameshwar Prasad could have been caused on 26.01.1982 at about 04 p.m. and injury no.1 in the ordinary course was sufficient to cause his death and the injury could have been caused with the gun shot.

7. Learned counsel for the appellant contended that the injury of the deceased could not be caused by a 12 bore gun. The dimension of the wound is 7.5"x6" and it has blown the skull. The wound is blast wound and greater probability is that it has been caused with a high velocity weapon like rifle. Its impact is great and consequent damage is much, hence medical evidence does not corroborate the oral testimony. Learned A.G.A., on the other hand, contended that injury depends on the cartridge used in the weapon, if a single ball cartridge is used the injury of such a nature can be caused and there is no contradiction between the medical evidence and ocular testimony. The post-mortem report indicates that a shot has been fired from the front which has hit the upper portion of the face from nose to the skull on the left side and due to this skull bone was broken into pieces and the brain matter was missing from the cavity. One piece of flattened firearm pellet irregular in shape was recovered from the posterior part of the brain cavity. The margins of the wound of the nose were inverted and it appeared to be a wound of entry and posterior part over the vault of the scalp the margins of the wound are everted. It shows that the wound of entry is on the interior part of the wound and the wound of exit at its posterior part. A bullet fired by a rifle due to its velocity passes out of the body making an aperture of entry and exit. In the instance case, the position is not the same but it is a single wound suggesting that the shot must have been fired from a close range but more than 3 feet. In such a situation the injury of such a nature can be caused from 12 bore gun. So it cannot be said that the injury received may not have been caused by a 12 bore gun.

8. The prosecution case is based on direct evidence and two eye-witnesses. PW-1 Rajendra Prasad and PW-2 Kishori Lal have been produced by the prosecution. Rajendra Prasad is son of the deceased and also the informant. In his examination-in-chief this witness has said that deceased Rameshwar @ Bachai was his father and accused Deo Narain Yadav is the resident of his own village. The agricultural plots of Rameshwar Prasad (deceased) and accused Deo Narain Yadav are adjacent. Sometimes his father used to plough a portion of the field of the accused and some times the accused used to plough some area of his plot dismantling the boundary (mend) and on account of that Deo Narain Yadav used to bear grudge against the deceased Rameshwar Prasad. The house of Deo Narain Yadav is 200 paces away in the south of his house. He further stated that his father was murdered about 9 months ago at 4 p.m. His father has gone to the house of Paras Nath to take money, when there was delay in his return he went to call him. He further stated that his father was standing between baithaka of Paras Nath and Deo Narain Yadav's fodder cutting machine. Deo Narain Yadav was standing near his house armed with a gun. Deo Narain Yadav was asking his father to settle the dispute of the boundary (mend) soon otherwise he will be killed as he has met him on opportune moment. Meanwhile, Kishori Lal arrived there and asked Deo Narain Yadav not to quarrel. Deo Narain Yadav advanced ahead then Kishori Lal caught hold of him but Deo Narain Yadav pushed him and Deo Narain Yadav after advancing ahead fired a gun shot at Rameshwar Prasad which hit his head and his skull blown off and he fell down and died on the spot. Rajendra Prasad and Kishori Lal made a noise then Kallu came there. Deo Narain Yadav extending threats that if anybody would try to advance, will be killed, escaped from there. Soon after the incident his mother came there. The witness has further stated that in the evening and in the night he could not go to the police station to lodge a report as it was raining and cold and also due to fear. In the night he kept on watching the dead body and on the next morning he got the report scribed by Doodh Nath a teacher and accompanied with Paras Nath and Ram Kailash went to police station to lodge the report. On spot the blood which oozed out from the injury of Rameshwar Prasad was fallen on the ground.

Kishori Lal PW-2 is an eye-witness. In his examination-in-chief he has stated that Rameshwar Prasad was murdered 9 months earlier. At abut 4 p.m. he was at home when he heard hue and cry of the quarrel he reached at the place of occurrence the house of Paras Nath and fodder cutter machine of Deo Narain Yadav there he saw Rameshwar and his son Rajendra Prasad and Deo Narain Yadav there. Deo Narain Yadav was armed with a licensed gun. Some altercation was going on between Deo Narain Yadav and Rameshwar Prasad. He tried to pacify and also tried to caught hold Deo Narain Yadav but he pushed him and fired a gun shot at Rameshwar Prasad which hit the head of the Rameshwar Prasad and his skull blown off. Rameshwar fell down and died. On this, Kishori Lal PW-2 and son of Rameshwar Prasad made a noise then Kallu came there. Thereafter, accused Deo Narain Yadav escaped towards east extending threats.

9. Learned counsel for the appellant contended that Rajendra Prasad PW-1 is the son of deceased and interested witness while Kishori Lal PW-2 is inimical witness and both the witnesses are chance witnesses, their presence on the spot is highly doubtful and their testimony cannot be relied on. It is settled principle of law that oral testimony of a witness cannot be discarded simply on the ground that he is interested witness or inimical or chance witness. What is required is cautious approach in scrutiny and appreciation of his testimony.

10. It is clear from the evidence that the distance between the house of the complainant and the place of occurrence is near about 200 paces and according to prosecution case the complainant reached at the place of occurrence to look his father who has gone to take money from house of Paras Nath and there was delay in his return. It is not the prosecution version that the complainant was accompanying his father when he went to the house of Paras Nath. Rajendra Prasad PW-1 has stated in his cross examination that Paras Nath was not present in his house at the time of murder. As Rameshwar (deceased) has gone to the house of Paras Nath to take money and Paras Nath was not present in his house at that time so there was no occasion for delay in return of Rameshwar which is the reason assigned for presence of Rajendra Prasad PW-1 at the place of occurrence at the time of incident. Regarding presence of Kishori Lal PW-2 at the place of occurrence, it is in the evidence that Kishori Lal reached there on hearing the noises of quarrel. It is admitted by Kishori Lal PW-2 that he was at his home and when he heard the noises of quarrel he reached on the spot. The evidence on record also establishes that house of Kishori Lal is in the north-east of pond, 50-60 paces away from the place of occurrence and there are houses of several other persons near his house. Kishori Lal PW-2 in his cross examination has said that dead body was lying 5-6 paces from the house of Deo Narain Yadav in which there is a boring machine. The houses of Jeet Lal, Bindeshwari, Jawahar and Suraj Deen are 50-60 paces from the dead body. He has further stated that his house is in the east of Suraj Deen and in the north of the house of Jeet Lal. So there are several other houses near the house of Kishori Lal which are nearer to the place of occurrence than that of Kishori Lal. Rajendar Prasad PW-1 has also said in his cross examination that there are houses of Jeet Lal, Suraj Deen, Bindeshwari, Raja and others near the pond and none of them is the witness of the incident, only Kishori Lal has been named as witness.

It is also in the statement of Rajendra Prasad PW-1 that there are 2-3 houses in the south of Paras Nath and an Abadi Pasiyana in the west of the house of Ram Saran Yadav. So it is also established that there are houses and Abadi in north-east as well as north-west and west directions of the place of occurrence but none of resident of these houses are alleged to have come at the place of occurrence hearing the noises of quarrel. It is in the statement of Rajendra Prasad PW-1 that when he reached to the spot Deo Narain Yadav was saying to his father to settle the dispute of the boundary (mend) soon otherwise he will be killed as he has met on opportune moment. Thereafter Kishori Lal tried to pacify but Deo Narain Yadav shot the gun fire. This indicates that whole incident has occurred in a very short span of time. It does not show that the altercation was so loud that it may attract persons residing 50-60 paces away from the place of occurrence. In these circumstances, the presence of witness Kishori Lal at the time and place of occurrence becomes doubtful. The absence of any other witness of the vicinity or nearby locality further confirms this. Apart from Kishori Lal another witness named in the F.I.R. is Kallu and from the evidence, it is also established that Kallu was an accused in a criminal case in which Kishori Lal was a witness and Kishori Lal filed affidavit in favour of Kallu. So Kallu and Kishori Lal are friendly and all of them are in league with one another. It also indicates that intentionally and after giving a thoughtful consideration, the choice of witnesses have been made and only two persons who are favourable to the complainant have been named in the F.I.R. as witness. It is also in the statement of Kishori Lal PW-2 that at the time of incident it was raining and neither he nor Rameshwar nor Rajendra Prasad was holding any umbrella. This is also unnatural.

11. Although, Kishori Lal has tried to conceal the facts about enmity and matters related to it and have given evasive replies to the questions asked in cross examination on these points and have shown ignorance about certain facts which are supposed to be his knowledge but from his cross examination it is fully established that he was an accused in a case under Sections 107 and 117 Cr.P.C. in which the accused was second party and he has said that in that case he was falsely implicated by accused Deo Narain Yadav. He has also admitted that Sampat (brother of the accused) was murdered and he was excommunicated and still his community members have no relations with him. Considering all the aforesaid facts and in the absence of no other independent and nereby resident named in the F.I.R. as witness the presence of witness Rajendra Prasad PW-1 and Kishori Lal PW-2 who are interested, inimical and chance witness becomes doubtful.

12. There are some other contradictions and discrepancies in the statements of the witnesses. Rajendra Prasad PW-1 in his cross-examination has said that when his father was shot he was 4-5 paces East from his father. He has further said that he has indicated this place to the Investigating Officer when he was preparing the site plan but in the site plan, the position of complainant Rajendra Prasad has been shown in the Northwest direction from his father. He has further said that Kishori Lal witness was 1-2 paces east from Deo Narain and he has shown this place to the investigating officer but in the site plan, the place where Kishori Lal was present is shown to the west from the deceased. Kishori Lal PW-2 has also said that there is one hand-pump in the North of the house of Bachai and when shot was fired he was 2 paces to this hand-pump and Rajendra the son of Rameshwar was 3 paces in the north, this statement is also against the site plan because in the site plan the hand-pump has been shown in the extreme north of the house of Paras Nath much away from the place of occurrence while the presence of accused, deceased, and the witnesses has been shown in the south-east direction of the House of Paras Nath. Rajendra Prasad PW-1 has told the presence of only Kishori Lal and Kallu on the spot during the occurrence and soon thereafter. While Kishori Lal PW-2 in his cross examination has said that on hearing the noises and sound of fire Kallu and many others came to the spot making exhortations. He has further said that other persons came after 10 minutes after the arrival of Kallu and 5 minutes thereafter Deo Narain Yadav ran away. Many persons exhorted then Deo Narain Yadav ran away. The persons who came included men, women and children of the village. There is no such description in the statement of Rajendra Prasad PW-1 and he has not said anything about the presence of any other person except Kishori Lal and Kallu, Rajendra Prasad PW-1 has also said that the whole night the only source of light was of the lantern. The lantern was kept there in open near the dead body whole night. While from the evidence on record it appears that it was raining at the time of occurrence and also the whole night. So, this statement also cannot be believed. Rajendra Prasad PW-1 in his cross examination has also said that witnesses Kishori Lal or Kallu did not stay there on the spot in the night. They went to their homes after seeing the incident and did not come back to the spot. This is unnatural conduct. Further on this point, Kishori Lal has said that he remained at the spot till 8 p.m. and when the Chowkidar came there then he returned to his home. The aforesaid discrepancies and contradictions are major and affects the reliability of the witnesses.

13. There is a specific allegation in the F.I.R. that Deo Narain Yadav was armed with his licensed gun and he used this weapon in the crime. Although, it was a licensed gun it has not been recovered and sent for Forensic examination. The Investigating Officer has not made any effort for the recovery of the weapon used in the offence while it may be a good piece of evidence to support the prosecution and this will certainly go against the prosecution.

14. The learned counsel for the appellant further contended that according to the prosecution version the occurrence has taken place at 26.01.1982 at 4 p.m. and the F.I.R. was lodged on 27.01.1982 while in the normal course the F.I.R. could have been lodged within 2-3 hours and it appears that occurrence might have taken place sometime in the night and that is why the report was lodged in the morning of the next day. The learned A.G.A. contended that the reason for the delay in lodging the F.I.R. has been reasonably explained. Rajendra Prasad PW-1 has stated that he did not go to the Police Station to lodge the report in the evening or in the night because it was raining and the weather was really cold and also due to fear. The explanation given by the prosecution appears to be plausible but the material on record indicates that it creates serious doubt about timing of the occurrence. The incident is of the last week of the January in which sunset occurs after 5 p.m. and the incident is said to have occurred at 4 p.m. so there was more than an hour before it became dark. But the statement of the witnesses show that lodging of the F.I.R. was not considered at all just after the occurrence in the evening. Kishori Lal PW-2 has said that till he was at the place of occurrence there was no mention of the lodging of the F.I.R. and at another place, he has said that he remained at the place of the occurrence till 8 p.m.. Rajendra Prasad PW-1 has also said that at 6:30 a.m. next morning writing of the report was started and it was then decided to lodge the F.I.R.. In the evening, when Ram Kailash came neither report was written nor it was considered to go to the police station to lodge the F.I.R.. However, it is normal human behaviour to inform the police to lodge the F.I.R. soon after such type of occurrence but it appears that neither any effort was made nor it was considered to lodge the F.I.R. soon after the incident. From the statement of the witnesses, it is also established that village Chowkidar and other persons have come to the spot after darkness. Rajendra Prasad PW-1 in his cross examination has said that "village Chowkidar came to the the spot after 2-3 hours when called. Chowkidar lives in Pasiyana. I have gone to call him. He has further stated that I have seen Paras Nath on the spot after arrival of Chowkidar." On another place in his cross examination, he has said that he saw Ram Kailash in the evening at his house when he went to call Chowkidar. When he saw Ram Kailash the sun was already set and lantern were lit. While Kishori Lal PW-2 has said that he remained on the spot till 8:00 p.m. and when Chowkidar came on the spot then he went to his house. It is clear from the material on record that the place of occurrence is inside the village Abadi and there are several houses nearby and village Chowkidar lives in Abadi called Pasiyana. The arrival of village Chowkidar and other person at place of occurrence after the darkness clearly indicates that the occurrence as alleged by the prosecution is not of 4:00 p.m. but after the sunset and that may be the reason that F.I.R. could not be lodged same day. Rajendra Prasad PW-1 has said in his cross examination that "I have said to Chowkidar to lodge the F.I.R. at the police station as soon as he came to the spot but there is no explanation why Chowkidar not lodged the F.I.R. or what reply he gave to the complainant." It is also in the statement that Parasnath is intermediate and at the time of occurrence he was in class 8th and that when Chowkidar came to the spot till then Ex-Ka-1 was not written. This also indicates that because of sunset, darkness has prevailed due to which no one tried to report the incident at the police station. Not lodging the F.I.R. in the evening and even no effort made to inform the police creates serious doubt about the time of occurrence and the possibility that occurrence has taken place after the sunset, cannot be ruled out. So in this case delay in lodging, the F.I.R. seriously doubts the time of the incident and adversely affects the prosecution case and also the reliability of eye-witnesses.

15. Learned counsel for the appellant contended that the place of occurrence is also doubtful as no pellets, Tikli, or any other sign of firing has been found on the spot. He further contended that according to the prosecution version the skull of the deceased was broken and the part of the brain came out lying on the ground but the same has not been taken into possession by the investigating officer and sent for post-mortem examination with the dead body. Learned A.G.A. contended that the deceased has died instant death due to head injury. The investigating officer has taken blood-stained and unstained soil from the spot and its chemical examination report confirms human blood in it. The statement of the witnesses are consistent on this point and there is no ground to make any doubt about the place of occurrence. It is true that the part of the brain which was lying beside the dead body has not been sent for post-mortem examination but in the inquest report, it is mentioned that part of the brain is lying beside the dead body, so not sending brain material with dead body for post-mortem is nothing but latches on the part of investigating officer. From the oral evidence and other material on the record, the place of occurrence is fully established there is no doubt about this.

16. Learned counsel for the appellant further contended that the motive attributed is very weak and remote. There is no immediate motive of the incident. Rajendra Prasad PW-1 himself has said that sometime his father used to plough a portion of the field of the accused and some times the accused used to plough the some area of his plot. There is no evidence on record to indicate that any such incident has taken place on the day of occurrence or soon before it, hence, no motive is established from the material on record. The motive as alleged in the F.I.R. is that there was previous enmity between deceased and the accused in respect of the intervening boundary (mend) and Rajendra Prasad PW-1 has corroborated the allegations of the F.I.R. and it is not disputed that agricultural field of the accused and the deceased are adjacent. As the prosecution case is based on the direct evidence, the motive is not so important. It is settled principle of law that where eye-witness account is produced motive looses its significance.

17. The learned A.G.A. contended that after the occurrence the accused absconded, he was not found at his house, so under section 8 of the Evidence Act, adverse inference will be drawn against him that he is guilty. The learned counsel for the appellants on the other hand contended that the accused was not preset at his home at the time of occurrence and this fact has been stated by him in his statement under Section 313 Cr.P.C. The arguments of learned A.G.A. cannot be accepted. The evidence on record indicates that the place of occurrence is near the house of the accused and accused was not found at his house when the Investigating Officer came after lodging of F.I.R. in the noon of 27.01.1982. So it should have come in the knowledge of the accused that he has been named in the F.I.R., it was natural on his part to leave his residence and no adverse inference under Section 8 of Evidence Act can be drawn for this conduct of the accused.

18. The learned A.G.A. further contended that the oral testimony of PW-1 is consistent throughout except on one point when he has misread the direction of west to east. Kishori Lal PW-2 has also corroborated the oral testimony of PW-1 and there is no major discrepancy or contradiction. Medical evidence also supports the ocular version. The oral statement of PW-2 cannot be discarded because he has some dispute with the accused party. Learned counsel for the appellant submitted that witnesses are interested and inimical and both the witnesses are chance witnesses. No other witness of the vicinity has been named in the F.I.R. nor produced in the Court. Their presence on the spot is doubtful and they are not reliable. The sanctity of F.I.R. is also doubtful, there is no plausible explanation for the delay in lodging the F.I.R.. Time of occurrence is also doubtful and the motive attributed is weak and remote. The licensed gun has not been recorded.

19. From the appreciation of the evidence on record, it is clear that the two witnesses examined by the prosecution as eye-witness are not reliable, their presence on the spot at the time of occurrence and their seeing of occurrence is highly doubtful. The time of the occurrence is also doubtful and the possibility cannot be ruled out that occurrence may have taken place after the sunset in the darkness. The two prosecution witnesses being interested and inimical and also chance witnesses lack, the credibility and cannot be relied. There are shadows of doubts on the prosecution evidence and from the appreciation of evidence and entire material on record, it is clear that case of the prosecution is not stand proved beyond reasonable doubt. So it will be just and proper to give the benefit of doubt to the accused.

20. The learned Trial Court has failed to appreciate the evidence in right perspective and finding of conviction recorded by it is not just and liable to be set aside.

21. Consequently, this Criminal Appeal is allowed and the judgment and order of conviction dated 25.11.1982 passed by the Vth Additional & Sessions Judge, Allahabad is hereby set aside. Accused Deo Narain Yadav is acquitted of the charge under Section 302 I.P.C. The applicant is on bail. His personal bonds and sureties bonds stand cancelled, sureties stand discharged. He need not surrender.

22. Lower court record along with copy of the judgment be transmitted immediately to the trial Court.

Order Date :- 09.09.2021

Krishna*