Allahabad High Court
State Of U.P. vs Prem Pal And Ors. on 14 March, 1996
Equivalent citations: 1997CRILJ1716
Author: R.N. Ray
Bench: R.N. Ray
JUDGMENT N.L. Ganguly, J.
1. This Government appeal is directed against the judgment and order dated 23-5-90 passed by the III Addl. Sessions Judge, Etah, acquitting the opposite parties-accused Prem Pal & 4 others in S.T. No. 767 of 1979 under Sections 147, 148, 302/149, 307/149, 325/ 149 and 320, I.P.C.
2. Shri K.C. Saxena, Addl. Government Advocate argued the appeal specifically raising the submission that the acquittal of the accused persons is not justified at all. From the evidence on record, the trial Court committed a manifest error in not placing reliance on the evidence of the prosecution which proved the prosecution case against the accused persons beyond reasonable doubt. The occular testimony of the witnesses is in no way contradict the medical evidence. The submissions of the learned A.G.A. necessitated him to place the entire evidence before the Court.
3. According to the prosecution, informant-complainant Daulat Pal Singh lodged a report at P. S. Jalesar at 11.20 a.m on 4th July, 1979 alleging that the accused persons by forming an unlawful assembly armed with gun, country/made pistol and lathis, assaulted and inflicted injuries to the informant thereby committed offences under Sections 147, 148, 323 and 307, I.P.C.
4. A short pedigree of the deceased is given below for appreciating the facts of the case.
SITA RAM
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Ist Wife Iind wife
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Jorawar Chhiddu Hoti Singh Nand Ram
(died) (issueless) | | |
Kashi Ram Daulat Pal Jagan Pal
(unmarried) -----------------------------
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Damodar Singh Umesh Pal
5. Accused Prem Pal, Karan Pal Singh, Mahabir and Viresh are real brothers and they belong to village Kunda P.S. Hasayan Distt. Aligarh. Accused Ram Charan belongs to Village Bishunipur P.S. Jalesar Distt. Etah. There has been dispute regarding the agricultural holding in respect of Khasra plot No. 220 of Village Jamalpur P.S. Jalesar between Prem Pal accused on one hand and deceased Daulat Pal Singh on the other hand. The land initially belongs to Kashi Ram, on whose death, mutation was effected in the name of Smt. Katoori Devi. Smt. Katoori Devi died some time in 1971-72. The land devolved on Dault Pal Singh. The accused Prem Pal and his brothers obtained a sale deed in respect of the said plot from sons of Smt. Katoori Devi out of her previous husband. Daulat Pal Singh claimed to be in possession of the land since before the date of the incident.
6. According to the prosecution case, Dault Pal Singh was ploughing the aforesaid field at 7.30 in the morning on 4-7-1979. His son Damodar was helping him by removing and cutting unwanted weeds and bushes. All the five persons came to the field at about 7.30 a.m., in the meantime, Malkhan Singh, Mukat Singh, Prem Pal Singh and Ompal Singh also reached the disputed plot. The accused persons abused Daulat Pal Singh who also hurled counter abuses. Accused Karan Pal Singh and Prem Pal Singh asked Daulat Pal Singh to stop ploughing the field. Daulat Pal Singh refused to stop ploughing saying that the land belongs to him. Accused Karanpal Singh asked co-accused Prem Pal to shoot at Daulat Pal Singh. Prem Pal fired from his gun causing gun-short wounds to Daulat Pal Singh who fell on the ground after receiving the shot. Malkhan Singh witness, questioned the accused persons about this conduct, whereupon accused Karan Pal Singh said that he had come to support Daulat Pal Singh and that he should also be killed. Upon this, accused Ram Charan fired on Malkhan from his countrymade pistol and the pellets hit Malkhan on the forehead and the chest. Malkhan sat on the ground. Prem Pal, the witness, then started running whereupon accused persons Karan Pal Singh, Mahabir and Viresh chased him and caught him in the field of Nanhu. They assaulted Prem Pal accused with lathis. The occurrence was witnessed by all the witnesses. After hearing hue and cry, the persons from the neighbouring villages were also attracted to the scene of the occurrence who also witnessed. The accused persons after causing injuries, fled away towards the village Kunda.
7. Dharmendra alias Dharam Vir, the son of Malkhan, who had come to the spot, went back to the village Kunda and brought a bullock cart. He shifted the injured Dault Pal Singh, Prem Pal Singh and Malkhan on the bullock cart and proceeded to Jalesar. At Tahsil Jalesar, Daulat Pal Singh dictated the report to one Kunwar Pal Singh, a deed writer and took it to P.S. Jalesar and lodged it there at about 11.20 a.m. the same day.
8. The investigation of the case was taken over by Sub-Inceptor of Police Sri Chandra Bhan Sharma (PW-7)., who actually started the investigation on 8-7-79. The three injured persons were 'sent to the Primary Health Centre, Jalesar through Constable where Dr. Kaushal Kishore conducted their medical examinations. On 6-7-79 the injured Daulal Pal Singh and Prem Pal were admitted in the District Hospital at Etah where Daulat Pal Singh died on 7-7-79 at 7.30 a.m. The postmortem examination of the dead body of Daulat Pal Singh was conducted on 7-7-79 at 5.30 p.m. by Dr. P.K. Jain, PW-8.
9. PW-7 Sri Chandra Bhan Sharma, S.I. in his statement before the Court, stated that the FIR was lodged on 4-7-79 at P.S. Jalesar. He was on leave, he joined on 7-7-79 and the investigation was entrusted to him on 8-7-79. He interrogated the Constable Vijendra Pal Singh, who had recorded the FIR, in Central Diary, proceeded to the place of occurrence on 8-7-79 at 9.30 a.m. and there he received an information that Daulat Pal Singh had died in Etah Hospital. The I.O. recorded the statement of Mukut Singh, Prem Pal, Om Pal, pradhan of village Jamalpur Durjan and other persons, visited the place of occurrence and site plan was prepared with index. He proved the site plan as Ext. Ka. 8. The plot in question measured 7 acres 71 dicimal. This plot was divided in three sub-plots. The plot in dispute over which the incident took place, is towards the east, generally called as 12 bigha plot. At the time of inspection by the I.O., the plot was being ploughed. North south of the plot had already been ploughed earlier. The accused persons were not traceable. The I.O. interrogated Prem Pal and Malkhan Singh who was not found in the hospital also. Since the accused Karan Pal Singh, Mahabir and Viresh had already surrendered before the Court of Magistrate, no action for their arrest was taken. The other accused persons were not found. The I.O. recorded the statements of witness Prem Pal Singh in the hospital and on 20th August 1979 recorded the statement of witness Malkhan, on 23rd August, 1979 Kunwar Pal was also examined. After recording the statements and receiving the relevant injury reports etc., concluded the investigation and submitted the charge-sheet against the abovenamed accused persons. The case was committed to the Court of Session, charges were framed against the accused persons. The accused-opposite parties denied the charges. All the accused persons stated to have been implicated in the case on account of village partibandi and enmity.
10. The prosecution in support of its case, examined eye witnesses namely PW-1 Malkhan, PW-4 Mukul Singh and PW-6 Prem Pal, besides other formal witness the Doctor who had examined the injuries of the witness and performed the post-mortem of the deceased victim Daulat Pal Singh. PW-1 Malkhan Singh stated in the Court that on the date of incident, he was at the door of his house. The rasta of the accused persons to go towards the field in question is through the door of the house of Malkhan. Daulat Pal Singh was 'ploughing the field, described as 12 bighas field. While going to the field in question, the accused persons were hurling abuses for Daulat Pal Singh. The accused persons reached and stood on the 'merh' of 12 bighas field where Malkhan was ploughing. The witness Malkhan stated to have reached the plot in question. Accused person. Prem Pal asked Daulat Pal Singh to stop ploughing to which Daulat Pal Singh deceased declined that it was his land. He would not stop. Prem Pal and Karan Pal Singh hurled abuses to Daulat Pal Singh. Dault Pal Singh also abused the accused persons. Karan Pal Singh accused asked Prem Pal accused that he should shoot him. Prem Pal with hus gun shot Daulat Pal Singh who fell down on the plot after receiving the shot. The witness PW-1 Malkhan Singh told the accused persons that they had done very bad by shooting Daulat Pal Singh, then Karan Pal Singh said that he has come for helping him, kill him also. Then Ram Charan Singh accused fired with a country made pistol towards the witness Malkhan Singh which hit his forehead and chest. He sat on the floor after receiving the injuries. Prem Pal witness was also on the merh of the plot. Prem Pal witness was standing on the merh of Nandu's plot. Karan Pal Singh accused said that he has come for helping him, kill him also, then accused Karan Pal Singh, Mahabir and Viresh sorrounded the witness Prem Pal in Nandu's field and belaboured him with lathis. The witnesses Ompal and Mukut Singh were also there, they have also seen the incident who also asked the accused persons why they were doing so. The other persons of the village also arrived towards the place of incident. The accused persons then lied away. Dharmendra alias Dharmavir s/o Malkhan Singh (PW-1) went to the village and brought a bullock cart, took the injured Malkhan PW-1 on the bullock cart for Jalesar. Daulat Pal Singh was also in senses and was speaking. While going to Jalesar Police Station, they reached Tahsil, where Daulat Pal Singh in presence of the witnesses, dictated the FIR to Kunwar Pal Singh moharrir who after writing it, handed it over to Dault Pal Singh. He has put his thumb impression and filed the said FIR at the police Station himself. Thereafter, this witness and the deceased Daulat Pal Singh and Prem Pal were examined in the District Hospital, who were not admitted in the hospital. They reached the District Hospital where these persons were not admitted in the hospital. As the persons could be admitted on the letter of the doctor or the police. On 6-7-79 the letter from the Doctor was obtained and Prem Pal and Daulat Pal Singh were admitted in the District Hospital on the said day. The witness Malkhan Singh was not admitted at the District Hospital. The next day on 7-7-79 Daulat Pal Singh died in the morning.
11. After the panchayat-nama, the dead body of Daulat Pal Singh was sent for post-mortem examination through constable Sheo Raj Singh. The post-mortem examination revealed that the deceased Daulat Pal Singh had received the following ante mortem injuries:-
1. Three fire-arm wounds of entry l/4 cmx 1/4 c.m. x tissues deep on the right side of chest on the front and lower part, there was no blackening.
2. Multiple fire-arm wounds of entry l/4cmx 1/4 cm - some of which were skin deep and others cavity deep on the lower part of right side of abdomen, no blackening was found, direction was backwards and upwards.
3. Multiple fire-arm wounds of entry 1/4 cm x 1/4 cm - some skin deep and others muscle deep on the right ingunial region on the upper and front part of right thigh; no blackening was present.
4. Two fire-arm wounds of entry 1/4 cm x 1/4 cm x skin deep on the inner side of left thigh 3 cm apart from each others; no blackening was present.
5. Fire-arm wounds of entry 1/4 cm x 1/4 cm x skin deep on the back side of left index fingers; no blackening was present.
6. Fire-arm and wound of entry l/4cmx 1/4 cm x skin deep on the back side of right index fingers, no blackening was present.
7. Fire-arm wound of entry 1/4 cm x 1/4 cm x skin deep on the back side of right little finger; no blackening was present. The cause of death of Dault Pal Singh was on account of toxaemia and septicaemia on ante-mortem injury No. 2. The injured witnesses Malkhan Singh and Prem Pal were medically examined by Dr. Kaushal Kishore PW-3.
12. The injures of the injured witnesses Prem Pal and Malkhan Singh are quoted as under:
Injuries of Malkhan Singh:
1. Gunshot wound on the forehead 4 cm x 4 cm x 6 cm deep, 1 cm above the inner margin of left eyebrow, pellet was palpable and x-ray was advised.
2. Two superficial gunshot wounds on the left side of neck 3 cm apart from each other measuring. 4 cm x 4 cm x skin deep about 6 cm below the left of mandibular angle.
3. Two gunshot wounds on front side of chest. 4 cm x 4 cm. x 8 cm deep about 3.5 cm apart from each other on the inner side of the clavicle bone of right side advised x-ray.
4. Gunshot wound on the right side of chest. 3 cm x 3 cm x tissue 10.5 cm above the right nipple, x-ray was advised.
5. Gunshot wound on the right side of chest. 3 cm x. 3 cm x 1 cm deep, about 5 cm above the medial to the inner side of right of right axilla, x-ray was advised.
6. Two gunshot wounds on the left side of chest. 3 cm x 3 cm x 1 cm deep about 14.5 cm apart from each other 6 cm. below the left axilla, x-ray was advised.
7. Gunshot wound on the right side of forearm. 4 cm x 4 cm x cavity deep on the front side about 16 cm above the wrist joint, x-ray was advised.
8. Gunshot wound on the front side of the left thigh. 4 cm x 4 cm x cavity deep about. 27 cm above the left patella, x-ray was advised.
13. In the opinion of the doctor, all the injuries sustained by Malkhan were fresh and were caused by some fire-arm.
Injuries of Prem Pal :
1. Lacerated wound on the left leg from side 2 cm x I cm 1 cavity deep 25 cm below the lower border of left patella, x-ray was advised.
2. Lacerated wound on the left leg. 2 cm x 5 cm x I cm deep below injury No. 1.
14. PW-9 Dr. Daya Shanker, M.O. of the District Hospital, Eath, proved the x-ray report of injuries received by Malkhan PW-1 and Prem Pal PW-6, respectively. Pellets and cartridges were found in x-ray of Malkhan PW-1 and on x-ray examination of the leg of Prem Pal, fracture in both the bones of leg was detected.
15. The trial Court appreciated the evidence of injured witnesses PW-I Malkhan, PW 4 Mukut Singh and PW-6 Prem Pal Singh. The finding of the Court below is that Malkhan Singh PW-1 is related to Daulat Pal Singh, deceased, since his son is married to the daughter of Daulat Pal Singh. He initially deposed to the family pedigree of Daulat Pal Singh and said that Daulat Pal Singh, resident of Mauja Bhoor Nagaria P.S. Awagarh was the grand son of one Sita Ram. This Sita Ram had contracted two marriages, and his first wife was in village Jamalpur Durjan PS Jalesar and the second wife belongs to village Sarani PS Awagarh. Sita Ram had two sons namely Jorawar Singh and Chhiddu Singh from his first wife and two more sons Joti Singh and Nand Lal were born from his second wife. Daulat Pal Singh, was the son of said Hoti Singh. Kashi Ram was son of Chhiddu. Smt. Katoori Devi was the wife of Kashi Ram. Although Kashi Ram and Daulat Pal Singh were Thakurs by caste, Smt. Katoori Devi was Brahmin. She was already married. From her previous marriage, two sons namely Benwari and Brij Behari were born. Kashi Nath Singh owned 35-40 bighas of land in village Jarnalpur, where the present occurrence took place. Kashi Ram had died 15-16 years back. After his death, Smt. Katoori Devi succeeded the aforesaid holding. She too died 9-10 years back i.e. 1971-72. After the death of Smt. Katoori Devi deceased became the owner and it was he who continued to be in cultivatory possession till the date of the incident. The witness Malkhan Singh PW-1 stated that he was present at village Kunda where the incident took place. They had their companion Ram Charan, who passed through the way in front of the house of Malkhan Singh. The witness Malkhan Singh heard the accused persons calling names, hurling abuses for Daulat Pal Singh. The accused persons reached the place of incident and stood on the boundary of the two plots of 12 bighas and musanda plot. This 12 bigha plot is sub-divisional and northern half portion of the entire land in dispute. Daulat Pal Singh was ploughing the eastern subdivision of the northern half portion of the entire land called as 12 bigha plot. Damodar S/o Malkhan Singh was also present on the plot helping in ploughing the plot. The witnesses Malkhan Singh, Mukut Singh and Prem Pal had reached besides one om Pal Singh at the place of incident. The witness described the manner of the incident saying that the accused Prem Pal armed with a gun, Ram Charan carrying a country made pistol and the remaining accused Karan Pal Singh and Mahabir and Viresh armed with lathis. On reaching the plot, had asked Daulat Pal Singh to stop ploughing who had declined as the plot belonged to him. The accused persons started abusing Daulat Pal Singh who also in turn abused the accused. Karan Pal Singh accused and asked Prem Pal Singh to shoot at Daulat Pal Singh as he had not conceded to the demand. Prem Pal fired with his gun at Daulat Pal Singh who fell down. Malkhan Singh questioned this conduct of the accused persons, whereupon Karan Pal Singh said that since he had come to support Daulat Pal Singh, he be also killed. Ram Charan fired from his country made pistol and caused gun shot injuries to Malkhan Singh on the forehead and chest. Prem Pal was also assaulted on the boundary of the northern field of Nanhu. The injured witnesses were taken to the hospital for medical examination and the injuries were examined which are already quoted above.
16. The acquittal order of the accused-opposite parties by the Court below was on the ground namely that the FIR of the incident could have been filed within two hours of the occurrence. There was accordingly a delay of more than 1 hour and 40 minutes in lodging the FIR and there was no plausible explanation for the delay by the prosecution. The second ground for acquitting the accused opposite parties is that the investigation in the case was tained. The incident took place on 4th of July 1979 and the investigation was taken over with unexplained unreasonable delay. The FIR admittedly was lodged at 11.20 a.m. on 4th July 1979. The S.I. Chandra Bhan Sharma was on duty on 4th July 1979 who admitted to have come on 17-7-79 about 50 minutes after the lodging of the FIR S.I. Chandra Bhan Sharma PW-7 instead of proceeding to investigate the case, thought it convenient to proceed on casual leaves for two days the same day after arriving at 12.10 p.m. who came back on 7-7-79 and started investigation on 8-7-79. It is not disputed that there were two injured persons with gun shot wounds and third had fracture bones at the knees. It was a cognizable offence which required immediate investigation. The head constable Brijendra Pal Singh PW-10 had admitted that at 5.05 p.m. on 5-7-79 SI Digamber Singh had returned at the police station. In the morning at 11.30 a.m. of 5-7-79 S.I. Sri J.P. Singh, S.O. Incharge had also come to the police station. No reason whatsoever was brought before the Court as to why these people did not take up the investigation.
17. The Sessions Judge also found that there was no acceptable explanation whatsoever for the inordinate delay in recording the statement of the two important material witnesses of the case. The learned Sessions Judge also was not satisfied with the prosecution evidence adduced in the case, who may be called independent witnesses. It is the finding about statements of the witnesses that other witnesses of the village had arrived at the scene and had witnessed the incident but not a single independent witness was examined by the prosecution. The witness Malkhan Singh PW-I has been found to be an inimical witness with the accused persons Prem Pal and others. The prosecution case also was not believed by the learned Sessions Judge as to who was in actual possession over the land in question on the date of incident. It was found, as stated by the prosecution witnesses, that mutation proceeding in respect of the land was going on, as initiated by the accused opposite parties on the basis of the sale deed obtained by them in their favour. The Court below found that Prem Pal and other accused-opposite parties had a better title over the disputed land on the date of incident. The accused-opposite parties house is situate within two furlongs from the place of incident. PW-1 Malkhan Singh admitted that village Bhor Nagaria where the deceased Daulat Pal Singh used to live in village Bhor Nagaria is situated at about 15 miles from the village of the disputed holding. None of the witnesses stated that Daulat Pal Singh lived in village Jamalpur or doing his cultivation there. None of the eye witnesses or witnesses in the case stated that Daulat Pal Singh came before 7.30 a.m. on 4-4-79, all over the way from Bhor Nagaria with his plough and bullocks and then started ploughing the disputed holding. The learned Sessions Judge was of the view that it was not shown that Daulat Pal Singh was in actual possession over the disputed holding on 4-7-79. The evidence of PW-1 Liladhar to show that Daulat Pal Singh was in possession was not believed by the learned Sessions Judge. The prosecution case was not accepted to be proved to have been taken place at the place in the manner it was committed by the learned Sessions Judge on the ground that PW-4 Mukut Singh had stated that the three injured persons in. the incident had received bleeding injuries and were bleeding professedly but no blood was found from any of the plots connected with the occurrence by the I.O. PW-7 Sri C.O. Sharma. The learned Sessions Judge also doubled the prosecution case and version of the prosecution. The prosecution witness PW-1 Malkhan Singh, PW-4 Mukut Singh contradicted themselves in their statements that Malkhan Singh had questioned the conduct of the accused persons in having shot Daulat Pal Singh. Mukut Singh had positively stated that Malkhan Singh had said nothing at that time. Malkhan Singh claimed to have followed the accused after having seen them running towards Daulat Pal Singh with arms in hands and even abusing, Daulat Pal Singh. He has not made any such statement before the Investigating Officer Mukut Singh and stated that he and one Om Pal Singh has gone to the village imalia for purchasing bullock, while returning to Imalia, they saw the occurrence. He said that it was on way back from Imalia that he and also Om Pal Singh answered the call of nature. The learned Sessions Judge did not believe the statement of Mukut Singh PW-4 that a person would go at early hours 4 O' clock for purchasing bullock.
18. Prem Pal PW-6 stated that he was going at the relevant time to village Malik to procure farm labour. He admitted in his cross-examination that he came to the pond situated little south of the village and he, therefore, proceeded towards the village. He admitted that he proceeded to the east. He explained the reason that he had to contact his washerwoman. He said that he contacted his washer-woman but was unable to give her name. Thus, the learned Sessions Judge was of the view that Prem Pal is made to adopt this route so as to show his presence on the holding in question. Thus, the learned Sessions Judge found that the witnesses Malkhan Singh PW-1, Mukut Singh PW-4 and PW-6 Prem Pal were not believable in view of the manner of the incident stated by these witnesses. The conduct on the part of the witness Prem Pal was also said to be unnatural,.
19. Heard Sri K.C. Saxena, learned A.G.A. for the appellant and Sri Kamal Krishna, learned counsel for the accused-opposite parties at length had perused the record. Learned A.G.A. relied upon the decisions AIR 1961 SC 715, Sanwant Singh v. State of Rajasthan, AIR 1971 SC 460 Ramabhupala Reddy v. State of Andhra Pradesh and AIR 1955 SC 585 Banshidhar Mohanty v. State of Orissa. He also cited decision in, AIR 1972 SC 2679 (Pal Singh v. State of Punjab) in support of his submission that the scope of an appeal against the order of acquittal is now fully settled, as summarised in para 8 of the said judgment, quoted below:
1. An appellate Court has full powers to review the evidence upon which the order of acquittal is founded;
2. The principles laid down in Shed Swarup's 61 Ind. App 308 : AIR 1934 PC 227 (2), afforded a correct guide for the appellate Court's approach to a case disposing of such an appeal.
3. The different phraseology used in the judgment of this Court such as;
(a) 'substantial and compelling reasons'
(b) 'good and sufficient cogent reasons';
(c) 'Strong reasons' are not intended to curtail the undoubted power of an appellate Court in an appeal against acquittal to review the entire evidence and to come to its own conclusion, but in doing so it should not only consider every matter or record having a bearing on the questions of fact and the reasons given by the Court below in support of its. order of acquittal but should express the reasons in its judgment which led it to hold that the acquittal was not justified.
This, in our view, correctly summarises the legal position as finally settled by this Court.
20. Sri K.C. Saxena placed the evidence of three injured witnesses namely PW-1 Malkhan Singh, PW-4 Mukut Singh and PW-5 Prem Pal. He submitted that the injuries received by these three witnesses have been proved and there is no room of doubt left that they have not received injuries in the incident in question. He also submitted that it cannot be doubted that deceased Daulat Pal Singh had received injuries and was initially examined by the Dr. Sri Kaushal Kishore PW-3. The injury of PW-6 Prem Pal was fractured bone of the Knee and was proved by the Radio Logist Dr. Surendra Nath PW-2. The learned counsel for the opposite parties submitted that in the FIR it was not stated by the informant that the victim Daulat Pal Singh and the injured Prem Pal and Malkhan Singh had reached there at the police station immediately after the incident. Sri Kamal Krishna, learned counsel for the opposite parties placed para 20 of the Statement of PW-1 where he stated that he had gone to the police station along with Daulat Pal Singh, Damodar Singh and Malkhan Singh. No one else had gone with them. Others along with them had also reached with injured Prem Pal to the police station. If that statement is correct, then the Presence of the three injured and deceased would be first at the police station the time of lodging of the report, The first medical examination of Daulat Pal Singh was done at I p.m. on 4-7-79 proved as Ext. Ka. 3 which shows that Daulat Pal was brought by Damodar to the Primary Health Centre where the Doctor examined him. The injury reports of Prem PW-6 Ext. Ka. 5 shows that he was medically examined at 2.30 p.m. on 4-7-79 and was brought by constable police Digvijai Singh of PS Jalesar. it is argued by Sri Kamal Krishna that the FIR is ante-timed document. The mere fact that the deceased Daulat Pal Singh is shown to be the informant and lodging the report at the police station at 11.20 a.m. do not inspire confidence and belief. Admittedly, he had received gun shot injuries and that too also quite in large numbers on his person who in normal course of conduct of police and Investigating Officer should have been sent with a letter from the police station to the Doctor for medical examination. The injury report shows that he was taken to the Doctor for medical examination by Damodar. The manner of the investigation, the conduct of the I.O. that after receiving the FIR which was registered at the police station after 50 minutes of its recording the I.O. conveniently took two days casual leaves and left the police station without handing over the charge of the investigation to any other sub-inspector there. He has not given any cogent evidence or such evidence which may justify the taking of casual leaves. It has also been proved and found by the Court below that there were two other sub-inspectors available on 5th July, 1979. There is no explanation as to why the investigation was riot started immediately. The learned A.G.A. submitted that mere delay in starting the investigation has not been shown that it has in any manner prejudiced the defence case. The submission is not acceptable. The first and primary duty of the prosecution is to prove the case against the accused persons beyond all reasonable doubts. Had the police immediately after registering the FIR, proceeded to the place of incident, it could have been found and ascertained that the place of incident, as stated in the oral evidence of the PW-1 is corroborated. No recovery of blood was made at the place of incident. The manner in which the marpit had Started, has to be examined by the Court to be correct and believable. The injured witnesses said to have received injuries were no doubt medically examined, but mere fact that two injured witnesses examined in the case would conclusively bring home the prosecution case and the accused persons be convicted. Sri Kamal Krishna, learned counsel for the opposite parties submitted that the learned Sessions Judge has appreciated the oral and documentary evidence adduced in the case. He submitted that the trial Court appreciated the evidence of the prosecution witnesses and said that the statements of the witnesses Under Section 161, Cr. P.C. was recorded by the I.O. on 14-7-79 and 20-7-79. The trial Court has to appreciate the evidence of the witnesses and when the Court below itself doubts the evidence of the prosecution witnesses on the ground that material for testing the varacity of the evidence was itself recorded with inordinate delay. This Court is not supposed to reappreciate the evidence itself to arrive at a different conclusion. The test for interfering in the findings of the trial Court is now also settled. The High Court in appeal against acquittal is not generally to interfere merely on the ground that the High Court takes a different view in. appreciation of evidence, test is that the Court has to see whether the findings recorded after appreciation of evidence is patently absurd and no reasonable person could arrive at such a conclusion if the material is brought before him. The Supreme Court in 1979 Cri LJ 51 : (AIR 1979 SC 135); Ganesh Bhawan Patel v. State of Maharashtra condemned the police about the manner and delay in the investigation. In that case, the occurrence took place in the evening of 29-11 -79 though all material witnesses of the occurrence were available with the police, their statements Under Section 161, Cr. P.C. were recorded on the morning of 30-11-1979. The Hon'ble Supreme Court was pleased to observe:
Delay of a few hours, simplicitor, in recording .the statements of eye witnesses may not, by itself, amount to a serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eye-witnesses to be introduced.
21. .The learned counsel for the opposite parties also submitted that besides the three witnesses examined Malkhan Singh, Mukut Singh and Prem Pal, another witness Om Pal Singh was also present at the time of the incident. He could have been examined as an independent witness but the prosecution failed to examine the independent witness. The learned Court below also found that possession of Daulat Pal Singh at the time of the incident over the plot in question was also not proved. Daulat Pal Singh was not resident of the same village, where the incident took place. It is stated by the witness that Daulat Pal Singh lived at a distance of 8.9 Koss means 16-18 miles. It would be not possible generally to reach the place of occurrence in the early hours of the morning with bullock and plough etc. for ploughing. The evidence of the prosecution case was appreciated by the trial Court and the findings recorded by the learned Sessions Judge about the manner of the incident varacity of the eye witnesses and the investigation have been doubted. The most vital point urged by Sri Kamal Krishna is that the deceased Daulat Pal Singh said to have lodged the report himself along with the injured persons whereas he was shown to have been medically examined at the hospital brought by Damodar. This clearly shows that the FIR lodged in the case cannot be accepted to be a genuine document and it has been found that the document appears to be ante timed. There was no reason if Daulat Pal Singh deceased had gone to lodge the report, some constable, as in the case of two other witnesses, must have accompanied him to the hospital for medical examination. The mere fact that the FIR itself is shown to be ante-timed and the fact that the investigation was faulty and partial, the conduct of the S.I. Sri C. B. Sharma, PW-7 was such which creates a reasonable doubt in the mind of the Court below that the prosecution case was not proved beyond reasonable doubts against the accused-opposite parties.
22. After hearing Sri K.C. Saxena, learned A.G.A. for the appellant and Sri Kamal Krishna, learned counsel for the opposite parties-accused, we are of the view that the Government Appeal deserves to be dismissed. This Court is not convinced that the order of acquittal in any manner could be interfered with for the reasons and observations, made above.
23. The Government Appeal is dismissed.