Mahendra Bhushan Sharma, J.
1. Accused Narain Singh and Karan Singh have been convicted Under Sections 148, 449 and 302, IPC and the other three accused persons, Bhanta, Raghuvar and Mishri, have been convicted Under Sections 147, 449 and 302/149, IPC Karan Singh and Narain Singh have been sentenced to imprisonment for life Under Section 302, IPC and to a fine of Rs. 1,00/- and, in default of payment of fine they have been ordered to further undergo rigorous imprisonment for six months. Each of them has been further sentenced Under Section 449 IPC to undergo two years rigorous imprisonment and a fine of Rs. 300/- in default of payment of fine to further suffer rigorous imprisonment for six months. Under Section 148, IPC each of them was sentenced to undergo rigorous imprisonment for one year. The other three accused persons have been sentenced to rigorous imprisonment for six months Under Section 147, IPC and two year's rigorous imprisonment and a fine of Rs. 300/-Under Section 449, IPC and in default of payment of fine to further undergo rigorous imprisonment for six months. Under the third count, i.e. offence Under Section 302/149, IPC each of the accused persons has been sentenced to imprisonment for life and a fine of Rs. 1,000/- and in default of payment of fine to undergo rigorous imprisonment for six months. Substantive sentences of all the accused persons under each count have been ordered to run concurrently.
2. The facts of the case are that in night intervening and 3rd November 1979, Jagdish son of Hazari (PW 3) was sleeping in his Patore. Smt. Ramco, who is the wife of Jagdish deceased, was also sleeping on a cot nearby. It is alleged that all the five accused-appellants came there. Accused appellants Karan Singh and Narain Singh were armed with axe and the other three were unarmed. Bhanta sat over the chest of Smt. Ramco and Mishri on her legs. She was awakened and she was gagged with the help of a piece of gunny-bag which the accused persons are said to have brought with them. Karan Singh and Narain Singh went towards Jagdish deceased and Raghuvar accused is said to have exhorted the other accused persons to put an end to the life of Jagdish. Thereafter Karan Singh gave a blow by an axe on the neck of Jagdish and the other blow by him was given on his shoulder. Narain Singh also gave a blow by axe on the right side of the neck and legs of Jagdish deceased. Thereafter the accused persons made good their escape; It is alleged that when the accused persons were running away as a result of the alaram raised by Jagdish deceased, his wife Ramco (PW 6), Raghunandan (PW 2), Har Bai (pW 4), Bhanta (PW 7) wife of Hazari (PW 3) were attracted. They saw the five accused persons running away from the side of the house of Jagdish deceased.
3. Injured Jagdish was taken to the Hospital, Karauli and there he succumbed to his injuries. PW 2 Raghunandan lodged a First Information Report (Ex. P 4) in the police station, Mandarayal, District Sawai Madhopur on November 3, 1979, at 6.25 a.m. vide rapat roznamcha No. 45. A case was registered and investigation was set in motion.
4. Dr. Suraj Mal Gupta (PW 1) examined the injuries of Jagdish when he was admitted in the hospital in injured condition. He found four injuries on his person by sharp weapon. Jagdish died in the hospital on November 3, 1979 as a result of the injuries. Dr. Gupta conducted the autopsy on his dead body. He found four external injuries on the dead body, which are as follows:
(1) Oblique incised wound 5.5 c.m. x 2 c.m. x 2 c.m. on lower part and front of right thingh, direction from outer to inner side;
(2) Vertical incised wound 7 c.m. x 2.5 c.m. x depth leading inside on front of left side of neck direction front to back;
(3) Oblique incised wound 8 c.m. x 2.5 c.m. x 3 c.m. on lower part of right side of back of head;
(4) Vertical incised wound straight 4 c.m. x 2.5 c.m. x depth upto muscles on back of right shoulder.
5. In the opinion of the Doctor, all the injuries were ante-mortem in nature and caused by sharp weapon. On opening the cranium, it was found that there was subcutaneous structures with muscles out in wound No. 3. In the opinion of the Doctor the cause of death was haemorrhage and shock due to multiple injuries and cutting on the left cartoid artery.
6. The accused persons were arrested. From accused Karan Singh and Narain Singh information Under Section 27 of the Evidence Act leading or the recovery of axe was received. After investigation a charge-sheet was filed and the accused were charged Under Section 302, and other sections of the Indian Penal Code. They pleaded not guilty to the charge and claimed to be tried.
7. The prosecution examined as many as 12 witnesses, including the solitary eye-witness Smt. Ramco (PW 6) wife of Jagdish deceased. Thereafter each of the accused persons were examined Under Section 313 of the Code of Criminal Procedure, 1973 explaining the circumstances appearing against them in the evidence of the prosecution witnesses. The accused persons stand on a bare plea of denial and they stated that they have been falsely implicated out of enmity. The learned Sessions Judge convicted and sentenced each of the accused persons as aforesaid.
8. We have heard the learned Counsel for the accused appellant and the learned Public Prosecutor for the State and have been taken through the evidence on record.
9. The contention of the learned Counsel for the accused appellants is that the case rests on the evidence of solitary eye-witness Smt. Ramco (PW 6) wife of the deceased, Jagdish. She is not a witness of sterling worth and she has not been corroborated by the prosecution evidence in all material particulars and it will not be safe to base the conviction of any of the accused persons on her statement. It has also been contended by the learned Advocate that the occurrence is said to have taken place in the night intervening 2nd and 3rd November, 1979 and there is no material on record in any evidence of the witnesses of the prosecution that there was any source of light inside the room in which the accused persons could have been identified. According to the learned Advocate, in the circumstance Ramco (PW 6) is said to have been placed at the time of the alleged occurrence it was virtually impossible for her to have identified the assailants of her husband Jagdish deceased.
10. In so far as the other witnesses, namely PW 2 Raghunandan, PW 4 Harbai and PW 7 Bhanti, are concerned, the contention of the learned Advocate for the accused appellants is that they are all interested witnesses and there was ah enmity between them and the accused persons. There were cases pending between them. Therefore, the possibility of false implication and over implication cannot be excluded. That apprt, it is further contended by the learned Advocate that at that time they could not have identified the persons who were running.
11. The learned Public Prosecutor, who has supported the learned Sessions Judge, contends that in her examination-in-chief Ramco (PW 6) made a categorical statement that she identified that accused persons and, it was for the accused persons to have solicited in the cross-examination also how she has identified these persons. The accused persons failed to bring the circumstances in the cross-examination on the point as to how she identified. Therefore, there is no reason why the statement of PW6 Ramco about the identity of the accused persons should be discarded. The learned Public Prosecutor further contends that PW 2 Raghunandan, PW 4 Harbai and PW 7 Smt. Bhanti were residing nearby and they were attracted by hearing the alarm raised by Jagdish deceased as well by his wife Ramco (PW 6). Therefore, they could have seen the accused persons running away in the moon-light, as is admitted it was not a dark night and. there was sufficient moon light in which the accused persons, who were running away, ought to have been identified.
12. We have given our careful consideration to the arguments advanced by the learned Public Prosecutor for the State.
13. Smt. Ramco (PW 6) is a solitary eye-witness in the case and before a conviction can be based on her evidence it is necessary that she should be a witness of sterling worth. A look at the statement of Ramco (PW 6) shows that it is not possible to categories her as a witness of sterling worth. She has not stated that there was any source of light inside the room where she was sleeping on a separate cot and her husband Jagdish, deceased was also sleeping on a separate cot. The occurrence, according to her took place while both of them were sleeping inside the room. There must be some source of light in which she could have been a position to identify the assailants of her husband. But she has hot stated a word about it in her statement. We find no merit in the argument of the learned Public Prosecutor that When she has stated in her statement categorically that she identified the accused persons, it was necessary for the accused persons to have solicited in her cross-examination as to how she identified them. It was for the prosecution to have brought on record the circumstances in which the accused persons, the alleged assailants of Jagdish, could have been identified. Smt. Ramco (PW 6) has not said a word that there was any source of light in the room. As stated earlier, she has said that when she was sleeping accused Bhanta sat on her chest and Mishri sat on her legs and she was awakened. Bhanta gagged her mouth with the help of a piece of gunny-beg which the accused persons had brought with them and made good their escape from the place of occurrence. In these circumstances, she was not in a position to see what was happening to her husband. Surprisingly, she says that even then she was in a position to see as to how Narain Singh who was standing nearby gave blows on the head of her husband and exhorted the accused persons that Jagdish should be cut immediately. If all the accused persons would have come with a common object to cause death of Jagdish there could not have any cause for exhortation and they could have finished their job. In our opinion, Smt. Ramco (PW 6) could not have been in a position to see the assailants and identifying the accused persons or any of them. There is no dispute that litigation was going on in between Jagdish's father Hazari on the one hand and the accused and some of them on the other as is evident from copies of the complaints Ex. P 5 and Ex. P. 6 which appear to have been filed by Hazari against the accused persons and some of them. Enmity was, therefore existing between the accused persons and the deceased and it being a double edged weapon, the possibility cannot be excluded that because of strained relations the accused might have been falsely implicated. After having gone through the statement of PW 6 Ramco, we are of the opinion that she could not and did not witness the occurrence. We, therefore, do no consider it in the interest of justice to place reliance on her statement.
14. If the evidence of Ramco (PW 6) is excluded, there remains no other eye-witness of the occurrence except the evidence of Raghunandan PW2, Har Bai PW 4 and Smt. Bhanti PW 7. They are all of the same family and as such, interested witnesses. They have stated that they saw the accused persons coming out of the Bhakal at that time in the night intervening 2nd and 3rd November, 1979, from a distance of 20-25 paces. It can be a case of mistaken identification and it will not be safe to place reliance on their statements. Though, it cannot be disputed that Jagdish died as a result of the injuries, but the prosecution has failed to prove that it was the accused or any of them who is responsible for causing the death of Jagdish.
15. Consequently we allow this appeal and set aside the judgment passed by the learned Sessions Judge, Sawai Madhopur, dated June 2, 1981. We acquit the accused persons Karan Singh and Narain Singh of the offences Under Sections 148, 449 and 302 IPC and the other accused persons, Bhanta, Raghuvar and Mistri Under Sections 147, 459 and 302 149, IPC. Bhanta, Mishri and Raghuvar are on bail. They need not surrender to their bail bonds. Karan Singh and Narain Singh are in Central Jail, Jaipur. They shall be released forthwith, if not required in any other case.