V.V. Vaze, J.
1. The house of Pawars of Tadsar village is a divided one. Raising Annasaheb Pawar and Raosaheb Hair Pawar were cousins but spear headed two rival factions of the village. Gun-shots rented the peaceful atmosphere of this sleepy village and Raising was murdered on 14-12-1970. His cousin Raosaheb, Fattulal the present appellant and one Deshmukh were accused of the murder. Ironically, the life of Raosaheb Hari was claimed by a bullet in November 1976. Out of the three suspects, Fattulal was not traceable since the date of the incident. Raosaheb was no more which left only Deshmukh available for trial wherein he was acquitted. The long arm of the law reached Fattulal on 7-1-1979 at Karad and he was tried but acquitted.
2. The animosity between the groups of Pawars is reflected in the allegation that Lalsaheb, brother of Raising, had murdered Raosaheb. No progress could be made in the investigation of that matter as Lalsaheb also absconding.
3. Allegedly, Jaising Waghoji Zapate ('Jaising') the deceased in the present matter, belonged to Raisings group. Jaising had served a two years rigorous imprisonment term for assault on the son of Raosaheb with an axe. Jaising had also contested Gram Panchayat elections.
4. The village Tadsar has a Gaothan from where a road leads to a lake. A small streamlet known as Gelichi Oghal ('Oghal') crosses the road as one walks towards the west. On the northern side of the Oghal is situated a rice field of Kisabai Shinde which has two Umber tress, a small one and another big one. A Mal lies towards the south of the Oghal. The Oghal cannot boast of any torrential flow of water, but is 4 metres wide and the southern and northern embankments measure 2 meters 30 Centimeters and 1 meter 50 Centimeters respectively. This completes the topography of the village and on insight into the working of the house of Pawars of Tadsar.
5. On 27-8-1978 the deceased Jaising asked P.W. 9 Shekhlal Kalavant as to whether the latter would join him for fishing. As Shekhlal showed his willingness, Jaising pick-up his black rain coat from his house. Another neighbour Balu Kulkarni completed the trio who went for fishing which eventually ended as a misadventure. En-route the trio met Sambhaji (P.W. 8), Raising asked Sambhaji as to whether he would make a foursome. Sambhaji showed a conditional willingness, inasmuch as he wanted to join them after finishing his domestic chores. According to the prosecution Sambhaji joined the trio after a while, Balu Kulkarni and Shekhlal parted company after collecting some fish. Jaising and Sambhaji were the only two for the initial party of four left near the Oghal. Jaising was shot at twice from behind the Umber-bush and succumbed to the injuries.
6. On these facts, the learned Additional Sessions Judge, Sangli, found Fattulal Kasam Mulla ('Fattulal') guilty of having committed an offence punishable under section 302 of the Indian Penal Code and sentenced him to undergo life imprisonment. The learned Sessions Judge also convicted Fattulal for the offence punishable under sections 3, 25 and 27 of the Arms Act and imposed rigorous imprisonment for three years and a fine of Rs. 500/-. That is what brings Fattulal before this Court.
7. At the outset it must be emphasised that the case stands and fails on the weight to be given to the testimony of the solitary eye-witness Sambhaji. It is a trite law that a conviction can be based and very many times is based on the testimony of solitary eye-witness, because the Court is not interested in the quantitative measure of the evidence led by the prosecution but the quality thereof. Such being the case, Mr. H.P. Gole, the learned Counsel for the appellant, has gone hammer and tongs at the evidence adduced by the prosecution to demonstrate that the case built it up by the prosecution around the nucleus of the solitary witness Sambhaji is a false and fabricated one.
8. The genesis of the F.I.R. in this case deserves close scrutiny. The offence took place at 9.30 a.m. and according to Sambhaji, they proceeded through the Oghal where he tarried to wash the mosquito curtain (which they were using as a fishing net), and Jaising went ahead about 5-6 paces. He then heard a sound of gun-shot and found Jaising in a standing position facing west raising his two hands. When the witness heard the first gun-shot, he threw the mosquito curtain on the spot and took to his heels in fright and made a beeline for the village. Sambhaji then heard the sound of a second gun-shot, looked back and found Jaising falling on the ground. At that moment Sambhaji saw that Fattulal was getting up through the shrubs which were on the Northern side of the stream. That is to say, if Sambhaji is to be believed, the accused was lying in wait under the cover of two stones and a small Umber tree when the fishing party was proceeding towards the Oghal. Sambhaji claims to have seen Fattulal in a blackish jersey aiming his gun towards Jaising. He had noticed that Fattulal had wrapped a Ghongadi around his body. Sambhaji took fright, started running towards the village and when he came across the Mal, turned back to see what the matter was. The witness claims that he saw Fattulal armed with a gun by standing positions by the side of the stream. In his return journey Sambhaji met Baby (P.W. 11) whom he told that Fattulal had killed Jaising by that gun-shots. The next person Sambhaji was meeting was Anand P.W. 12 brother of deceased Jaising, standing near the cycle shop to whom he had only told the name of the assailant but also the place of the incident. The witness proceeded towards the house of Shekhlal and broke the news. If that time Jaising's parent's and Anand also gathered and all of them were told about the name of the assailant by Sambhaji. That is to say, within a very short time after the alleged incident, a very large number of people were told as to who the assailant was.
9. Ananda, after informing his father Waghoji about the tragedy, proceeded to farm house where their third brother Vijay P.W. 16 was camping. Ananda has passed S.S.C. Examination and Vijay is a graduate. Vijay admits that his younger brother Ananda had told him : 'Jaysingappa is lying dead in the Gelichi Oghal and he had died because of gun-shots.' I asked him as to who had told him about the incident. He then told me that Sambhaji had told him about it. All of them proceeded to the spot where the dead body was lying and the village Kotwal Joshi amongst others also gathered round the body. Vijay is emphatic that when Kotwal Joti asked him about the incident, he and Ananda told him that Fattulal had killed Jaising by gun-shot. Thereafter Vijay came back to the village, picked up his bicycle and proceeded to Kadegaon Police Station which is about 4 miles away from the village to give the information. The relevant portion of the F.I.R. Exh. 35 reads :---
'Ananda told me in the frightened state that Appa was shot by gun shots and Appa was lying in the brooklet of the tank. I asked him that who had shot him. He told me that Shekhlal came and told me that Appa has received gun shots... ... ... ... ... ...
There are two parties in out village, one is headed by Raosaheb Hair Pawar, and the other by Raising Anna Pawar. They both are murdered. My brother is leader of the party of Raysing Pawar, and suspect that 1) Fattulal Kasam Mulla, 2) Pandurang Kedari Kadam, 3) Baburao Abaji Surywanshi, 4) Bapurao Abaji Pawar, 5) Vyankatrao Patu Pawar all residents of Tadsar have with common intention must have killed my brother by gun-shots... ... ... They must have murdered my brother. Hence my complaint against them.'
10. When witness Vijay was confronted with the F.I.R. he realised that he had not pinpointed the name of the assailant or the name of the only eye witness to the incident and tried to explain it away thus :---
'While giving complaint, I had wrongly mentioned that I had come to know from Ananda that Shekhlal had told him that Jaising i.e. Appa is lying in dead condition in Gelichi Oghal because of gunshots. While giving the complaint I was in perplexed mood and hence therefore, could not correctly mention that Anand had come to know from Sambhaji that Fattulal had murdered Jaising.'
11. Mr. Gangakhedkar, the learned Public Prosecutor, had only the above explanation to offer regarding the commission of the names of the alleged assailant and the solitary eye witness to the incident. Understandably when a person has lost his real brother, he would be submerged in a mood of melancholy and would proceed to arrange for the last rites of the departed soul. But it appears that Vijay has enough time to get over the initial shock to tragedy and name the assailant in the F.I.R. rather than rope in as many as five persons as suspects. The incident took place in the morning round about 9.00 O'clock and the police arrived at the scene in the evening by which time, if Sambhaji is to be believed, every little boy in that village knew that Fattulal was responsible for the ghastly crime. In these circumstances, it appears to be in the highest degree improbable that Vijay, a graduate, would forget the name of the assailant in the F.I.R. after a lapse of some 7 hours after the incident. Sambhaji is an ex-army official who had seen action in Bangladesh. His military background cannot but dictate to him that if a person like Fattulal can shoot Jaising from close quarters he could as well fire another shot and obliterate the only piece of evidence against him which was living in the person of Sambhaji. In these circumstances, it is rather a tall claim made by Sambhaji that he looked back while fleeing from the place of crime and observed the dress of the assailant minutely.
12. Certain discrepancies have crept in the version given by Sambhaji regarding his reaction after he heard the first shot. According to Sambhaji he was washing the mosquito net in the Oghal, when he heard the first shot and immediately threw the net at the place where he was standing in the Oghal and ran for his life. That is exactly what a man would do under the circumstances. But the mosquito net was found at a distance of about 15 metres from the place where the alleged offence took place. Assuming that Sambhaji was trailing behind Jaising by about 5-6 paces, the place where Sambhaji was washing the net was atleast 13 metres away from the place where the net was found. As the Oghal flows from west to east, it is conceivable that the net was washed away by the flow of the water but surely the net could not be perched at a height of 5 feet on the northern bank of the Oghal. Tadsar is situated in a low rainfall area, and there is no evidence to indicate that round about the date of the incident it had rained so heavily that the Oghal over flowed its bank which could be the reason to which one could have attributed the perching of the net on the northern bank.
13. If one goes through the evidence of Sambhaji one is stunned with the prevarications contained therein making him a thoroughly unreliable witness. Firstly, he had told the incident to Waghoji the father of the deceased, who had suggested to him that the witness should go to the police to give the information. Expecting that he would be asked in the cross-examination as to why he did not report to the police about the incident, the witness says that he remained in his house and told Waghoji to inform him when someone is going to the police. But that as nobody came to his house to call him, he remained till the police arrived in village in the evening. The witness is not sure as to whether he was called in the evening by the police or the next day in the morning. Sambhaji did not come across any of the relations of Jaising nor did they go to the house of Jaysing though they had gone together on that fateful day for fishing. Courtesy and fellow-feeling would ordinarily have required that he pay a visit to the house of the dead and console the bereaved.
14. The evidence contains some minor contradictions as to the mechanism of narration of event as to whether Kotwal Joti was present on the spot; Vijay asserting that he had told Joti Kotwal about Fattulal being the accused and the Kotwal denying this fact, but we do not propose to discuss, them in great detail because the contradictions are of minor nature.
15. The learned Counsel for the appellant has placed reliance in the case of The State of U.P. and another v. Jaggo alias Jagdish and others)1, : 1971CriLJ1173 , in which the Supreme Court found that two witnesses who were not mentioned in the F.I.R. but were called as witnesses to give evidence of having been present at the time of occurrence, were disbelieved. He had relied on the decision in the case of Ram Pukar Thakur and others v. The State of Bihar, : 1974CriLJ335 , where, the explanation that an eye-witness did not disclose the names of the assailants because he was too much frightened was held to be in adequate, and not safe to convict the accused of murder. The omission of the accused in the F.I.R. has also been fatal in Akoijam Ranbir Singh v. The Government of Manipur, : 1976CriLJ1712 .
16. Coming to the question of arrest of the accused, it is a singular feature of the case that the accused was not available right from 4-12-1975 the day when Raysingappa was murdered till 7-1-1979 when he was arrested in Karad. Here again the two panch witness P.W. 5 Sarjerao and P.W. 6 Mahadeo have belied the averments in the panchanama that the accused was arrested in a sugarcane crushing centre and arms and ammunition were recovered from him. As the panch witnesses did not speak about the arrest of the accused at all, the other piece of evidence of ballistic expert does not fall in the line with the story of the prosecution. So long as there is no copula between the accused and the arms and the ammunition that was seized, it will be unnecessary to examine whether the particular gun allegedly seized from the accused could also fire a cartridge of the type which was recovered from the body of the deceased. As the charge speaks about a contravention of the provisions of the Arms Act as on 27-8-1978 and also no evidence has been led that on that day the appellant possessed any arms, the charge must fail.
17. All things considered, we are of the view that the prosecution has miserably failed to prove that it was the accused/appellant Fattulal who had committed the murder of the deceased Jaysing. The appeal is therefore, allowed. The judgment, conviction and the sentence of life imprisonment imposed by the learned Additional Sessions Judge, Sangli, as well as the sentence of R.I. for three years and a fine of Rs. 500/- imposed under sections 3, 25 and 27 of the Arms Act is set aside. The accused shall be set at liberty forthwith not required in any other case. Fine if paid, be refunded to the accused.