Ramswaroop @ Chotaka vs State Of U.P. on 4 March, 2022

[Cites 13, Cited by 0]

Allahabad High Court

Ramswaroop @ Chotaka vs State Of U.P. on 4 March, 2022

(Delivered by Hon'ble Chandra Kumar Rai, J.) Heard Sri Rajiv Lochan Shukla assisted by Sri K.K. Pandey and Sri K.K. Mishra, learned counsels for the appellants and Smt. Manju Thakur, the learned AGA for the State.

1. These criminal appeals have been preferred against the judgment and order dated 18.3.2011 passed by the Additional Sessions Judge, Court No.8, Fatehpur in Sessions Trial No. 309 of 2006, arising out of Case Crime No.50/2006, State vs. Darshrath and others, under Sections 302/34 IPC and Section 7 of the Criminal Law Amendment Act, P.S. Ashothar, District Fatehpur, convicting and sentencing the accused- appellants Dashrath @ Badka, Ramswaroop @ Chotka, Suresh and Shivpersona @ Bantwa for life imprisonment and fine of Rs.7000/- and in default of payment of fine, they have to further undergo imprisonment of 1 year and sentencing them under Section 7 of the Criminal Law Amendment Act for imprisonment of 3 months and all the sentences will run concurrently. Further accused-appellant Ramswaroop @ Chotka was also convicted under Section 25 of the Arms Act in S.T. No.312 of 2006, arising out of Case Crime No.64/2006, State vs. Ramswaroop, P.S. Ashothar, District Fatehpur and sentenced for rigorous imprisonment of 3 years and a fine of Rs.2000/- and in default of payment of fine, he has to further undergo imprisonment of 3 months and all the sentences will run concurrently. Further accused appellant Suresh was also convicted under Section 25 of the Arms Act in S.T. No. 313/2006, arising out of Case Crime No.56/2006, P.S. Ashothar, District Fatehpur and sentenced for rigorous imprisonment of 3 years and a fine of Rs.2000/- and default of payment of fine, he has to undergo imprisonment of 3 months and all the sentences will run concurrently.

2. Since all the four appeals have been filed against the same judgment, hence all the four appeals are being heard and decided jointly by common judgment.

3. Briefly the facts of the case are as follows:-

First informant Asha Devi, wife of Shri Shiv Singh is resident of village- Bensari, P.S. Asothar, District Fatehpur. On 4.5.2006, her husband, Shiv Singh aged about 36 years along with son Ajeet and Sujeet and Dewar Jai Singh went in the Tilak Ceremony of Shiv Pratap, brother of Ram Ashrey Gupta of the same village, there was too much rush there and everybody was sitting in order to take dinner of Tilak Ceremony and it was 9.00 P.M. Dashrath @ Badka, Ramswaroop @ Chotka, sons of Ram Dularey, Shiv Prakash Yadav, brother-in-law of Chotka, resident of village- Ajhei and Suresh, son of Sita Ram came to her husband from whom dispute relating to house is going on, they dragged the husband towards the hand pipe of Hemchandra Yadav, thereafter, Shiv Prakash and Badka catch hold her husband and Ramswaroop @ Chotka and Suresh who were armed with country-made pistol in their hand, fired and murdered his husband. Her son and Dewar rushed up to escape him but accused pushed them so they fell down. Due to dragging her husband and open firing, resulting into murder , stampede occurred on the spot and people were running away, leaving the dinner. Accused went in east direction with country-made pistol in their hand, the dead body of her husband is lying on spot. Prayer was made to lodge the report and legal action be taken.

4. On the basis of written report (Ext. Ka-8), chik no. 36 of 2006, case crime no. 50 of 2006 under Section 302 IPC and Section 7 of Criminal Law Amendment Act was registered on 4.5.2006 at 22.30 with P.S. Ashothar against accused Dashrath @ Badka, Ramswaroop @ Chotka, Shiv Prakash Yadav and Suresh. chik FIR is on record as Ext. Ka-15. The investigation of the case was taken up by Sri Anand Kumar Singh, S.O. Asothar and relevant entry was made in general diary vide rapat no. 28 at 22.30 (Ext. Ka-6). On 5.5.2006 at 00.05 inquest was conducted on the dead body of deceased Shiv Singh and prepared inquest report (Ext. Ka-21). He also prepared letter to C.M.O. (Ext. Ka-22), letter to R.I. (Ext. Ka-23), challan nash (Ext. ka-24), photo nash (Ext. Ka-25). He then sent the body for postmortem by Constable Anil Kumar Shukla and Constable Sarfaraz Haider. Postmortem report is (Ext. Ka-7). Investigating Officer inspected the place of incident and prepared a site plan (Ext. Ka-1). Statement of witnesses were recorded. On 11.5.2016 accused Suresh was arrested and on his pointing out the country-made pistol was recovered from the place situated in the eastern side of village, the recovery memo is Ext. Ka-2, the spot plan of recovery place is Ext. Ka-3.

5. On 12.5.2006, statement of witnesses were recorded by Investigating Officer. On 19.5.2006, accused Ramswaroop was taken in police custody remand in the court of Chief Judicial Magistrate and at the pointing out of accused Ramswaroop, country-made pistol used in the murder was recovered, the recovery memo is Ext. Ka-4, the site plan of recovery place was prepared which is Ext. Ka-5.

6. Chik FIR under Section 25 of the Arms Act against accused Ramswaroop @ Chotka is Ext. Ka-19 and chik FIR under Section 25 of the Arms Act against accused Suresh is Ext. Ka-17. Investigation in respect to incident under Section 25 of the Arms Act was handed over to S.I. Shyam Bihari Singh who conducted the investigation, the charge-sheet (Ext. Ka-14), under Section 25 of the Arms Act was submitted against Ramswaroop @ Chotka and charge-sheet (Ext. Ka-11), under Section 25 of the Arms Act was submitted against Suresh. I.O. Anand Kumar Singh submitted charge-sheet (Ext. Ka-6) against accused Dashrath @ Badka, Ramswaroop @ Chotka, Suresh and Shivperson @ Bachcha under Section 302 IPC and Section 7 of the Criminal Law Amendment Act. Cognizance was taken by the courts below on the charge-sheet submitted by the Investigating Officer and after summoning the accused-appellants, committed the case for the trial of the accused to the court of Session.

7. On the basis of the material available on record, learned Sessions Judge framed charge on 28.7.2006 against all the four accused Ramswaroop @ Chotka, Suresh, Dashrath @ Badka and Shivperson @ Bachcha under Section 302 IPC and Section 7 of the Criminal Law Amendment Act and on 28.7.2006, charges under Section 25 of the Arms Act were framed against Ramswaroop @ Chotka and Suresh. The accused pleaded not guilty and claimed trial.

8. The prosecution in order to prove its case examined P.W.-1 Asha Devi (1st informant and wife of deceased). P.W.2 Sujit (son of deceased who was minor on the date of incident as well as on the date of statement). P.W. 3 Jaisingh (younger brother of deceased). P. W. 4 Ram Asrey, P.W. 5 S.I. Anand Kumar Singh, P.W. 6 Dr. Vivek Nigam, P.W. 7 Shyam Singh, P.W.-8. S.I. Shyam Bihari Singh, P.W. 9 Constable Raghubar Yadav, P.W.10 Constable Sudhir Kumar Mishra.

9. The Accused - appellants in their statements recorded under Section 313 Cr.P.C. denied the prosecution case and disputed the veracity of the evidence adduced by the prosecution.

10. PW-1 Asha has stated in her examination-in-chief that Shiv Singh was my husband. Incident is of 4.5.2006, time was 9:00 P.M. My husband was murdered when he went to attend the Tilak Ceremony organised in the house of Ram Asrey Gupta. Her sons Ajit and Sujit also went there. The name of her brother in-law (dewar) is Jai Singh who also went there. Ram Swaroop, Shiv Parson, Dashrath dragged him, Ram Swaroop and Suresh are present in court today. Dashrath and Shivperson are also present. They dragged her husband and carried him towards hand pipe of Hemchandra and thereafter Ram Swaroop and Shivperson fired with country-made pistol resulting into his death. They tried to save him but they murdered her husband and went in the eastern side. She know Shyam Singh, who had written the written report of the incident. She thumb-marked the same and went to the police station along with application. She further stated that she knows accused Suresh and he has not fired at all.

11. P.W.2 Sujit has stated in his examination-in-chief that Shiv Singh was his father. He was murdered. Incident has taken place about 2 year before. He went to give water to the guest of Tilak Ceremony organised in the house of Ram Asrey Gupta. Apart from me, his uncle Jai Singh, brother Ajit and his father went there. His father Shiv Singh was ready to take food, Dashrath and Shivperson caught hold him and Ramawaroop fired and thereafter Suresh fired near the handpipe of Hemchandra, the time was about 9.00 P.M. His father died due to the fire received by him. Accused are present in Court.

12. P.W.3 Jai Singh has stated in his examination-in-chief that incident is of 4.5.2006. IInd year is going on and 2 year will complete on 4th May of this year. They went in the Tilak invitation of Ram Asrey Gupta on the date of incident. He, his sister-in-law Asha Devi and his nephews Ajit and Sujit also went there. Several persons of the village also came there. It was 9.00 PM. when the incident has taken place. Two persons Dashrath and Shivperson caught hold his elder brother Shiv Singh before him, dragged him near the handpipe of Hemchandra and Ramswarop and Suresh fired him. After receiving the fire shot, his elder brother Shiv Singh fell down and died. Ajit and Sujit, sons of deceased saw the incident. Suresh and Ramswaroop are present in Court. Dashrath and Shivperson are also present.

13. P.W. 4 Ram Asrey in his examination-in-chief has stated that there was Tilak in his house on the day of murder. Incident is of 2 and 2 ½ years before, time is of 10.00 P.M. He was inside the house as Tilak Ceremony was going on inside the house and nasta / dinner, etc was going on outside the house. Having heard the fire sound, everybody runaway. When he came outside, nobody was present, everybody runaway. He saw the dead body of Shiv Singh is lying near the handpipe of Hemchandra.

14. PW 5 S.I. Anand Kumar Singh in his examination-in-chief has stated that from 4.12.2005 to 15.7.2006, he was posted as Station Officer, Asothar. On 4 5.2006 when he received the information with respect to murder of Shiv Singh of Village - Besari, they reached on spot along with force. After completing the necessary legal formalities, investigation of the case was started, statements were recorded and he prepared the inquest report and other documents, dead body challan, letters addressed to the authorities for conducting postmortem of the dead body of the deceased, thereafter, he sealed the dead body of the deceased and dispatched it for postmortem. Country-made pistol was recovered at the pointing out of accused Suresh, the site plan was prepared in respect of recovery place of country-made pistol, the fard was accordingly prepared. Another country-made pistol was recovered at the pointing out of accused Ramswaroop from the cow-dung manure pit. The site plan and fard was accordingly prepared in respect of the same.

15. PW 6 Dr Vivek Nigam in his examination-in-chief has stated that on 5.5.2006, he was posted as Senior Medical Officer at District Medical Hospital, Fatehpur and on that day, his duty was on postmortem. He Conducted the post-mortem of deceased Shiv Singh at 2:30 PM on the aforementioned date.

External Examination:-

Deceased was of average height. Regor mortis was present on both upper arm and in both the legs. Mouth was closed.

Ante-Mortem injuries:-

1. Fire-arm wound of entry 4cm x 3cm x cavity deep on the back of head. 7cm behind the right ear. Blackening present over the wound.

2. Fire-arm wound of exit 10 cm x 8 cm x cavity deep on the left side of head just above the left ear.

3. Fire-arm wound of entry 4 cm x 3cm x cavity deep on the left side of back of head, 5 cm above and behind the left ear. Blackening present.

4. Fire-arm wound of exit 7cm x 5cm in the upper part of right side of face including the right eye.

5. Fire-arm wound of entry 5cm x 3cm on the back of left forearm, 4 cm below the left elbow. Blackening present. Underlying bones fractured.

6. Firearm wound of exit 6cm x 4cm on the left forearm just below the left elbow and this is connecting with the injury no. 5.

7. Abrasion 3cm x 2cmon the left arm, 4cm below the left shoulder.

8. Abrasion 6cm x 4cm on the back of the left side, 8 cm below the left shoulder.

Internal Examination:-

In Injury No. 1, 2, 3, 4, the underlying bones were broken. Heart was empty while both the lungs were pale, stomach contained about 40 ml. semi digested food. Small intestine was empty and large intestine was filled with fecal matter and gasses, Liver, spleen and Kidney were pale, Gall blader was half filled and urinary bladder was empty.

16. P.W.7, Shyam Singh has stated in his examination-in- chief that paper No- 3 Ka/2 is written in his hand writing, this was written on the dictation of Asha Devi wife of deceased, document was signed by him and thumb marked by Asha Devi, written report was marked as Ext. Ka-8.

17. P.W. 8 Sub Inspector Shyam Bihari Singh has stated in his examination-in-chief that he was posted as Sub-Inspector at PS- Asolhar District Fatehpur in the year 2006. Station Officer Anand Kumar Singh who was Investigating Officer of Case Crime No. 50 of 2006, under section - 302 IPC and Section- 7 Criminal Law Amendment Act, arrested accused Suresh Yadav on 4.5.2006 and on his pointing out, weapon was recovered whereupon Case Crime No- 56 of 2006, (State vs. Suresh Yadav), under Section 25 of the Arms Act was registered and investigation was conducted by him. Statements of Constable Raghubar Yadav (FIR writer) and accused Suresh Yadav were recorded on 11.5.2006. On 12.5.2006, statement of Om Prakash Yadav was recorded. On his pointing out, site plan was prepared after inspection which are paper no. Ext. Ka-9. Ext. Ka-12, the charge-sheet in case no. 56 of 2006 and 64 of 2006 were filed by him after completion of investigation, under Section 25 of the Arms Act, which are paper no. Ext. Ka-11 and Ext. Ka-14.

18. P.W.9 Constable Raghubar Yadav has stated in his examination-in-chief that he registered the chik FIR on the basis of written report of Asha Devi which was written by Shyam Singh. He proved chik F.I.R. Ext. ka-1. He identified Ext. Ka-17 and Ext. Ka-18

19. P.W.10 Constable Sudhir Kumar Singh has stated in his examination-in-chief that on 19.5.2006, he was posted as Constable at P.S. - Asolhar, on that day he prepared chik F.I.R. in his handwriting on the basis of Ext. Ka-5. GD is Ext. Ka-20.

20. DW-1 Bisun Dayal has stated in his examination-in-chief that he knows Ramswaroop @ chhotka and Dashrath @ Badka who are sons of Ram Dularey. On 4.5.2006 he came to their village. He came to house of Ram Sumer on that day for the Tilak ceremony of Komal, son of Ram Sumer. He reached at 4-5 P.M. He stayed there for whole night and in the morning upto 8 A.M. Ramswaroop @ Chhotka and Dashrath @ Badka met him in the Tilak, both the persons were with him from 4-5 PM to 8.00 AM next morning. They were with him and did not go anywhere else. He further said that the day he went in the Tilak he heard about the murder of Shiv Singh.

21. The learned Sessions Judge, Court No.8, Fatehpur, after hearing the parties and perusal of the record, passed the impugned judgment. Hence this appeal.

22. Counsel for the appellants submits that recovery and place of incident is doubtful. The recovery of country-made pistol from the ditch and another from the manure pit filled with cow-dung, cannot be said to be in working condition unless there is satisfaction that weapon were in working condition, the country-made pistol recovered on 19.5.2016 from the manure pit filled with cow-dung, cannot give smell of gun powder. In forensic examination, only one country-made pistol matched. So far as place of incident is concerned in site plan, place of blood stains are not mentioned as such the place of incident is doubtful. P.W.-1 in the First Information Report says that she saw the incident while in the statement under Section 161 Cr.P.C., she says that she came to place of incident when her sons and brother-in-law informed her about the incident. In the same manner, in the FIR, name of accused Suresh is mentioned but in examination-in-chief as well as in cross-examination, P.W.-1 says that Suresh has not fired at all, only rest of the three accused were involved in the incident, P.W.-7 Shyam Singh, scribe of FIR in his cross-examination states that after Panchayatnama, report was written on the dictation of Daroga ji but later on says that report was written on the dictation of Asha Devi. Similarly, there are so many contradictions in the statement of P.W.-2. Counsel for the appellant further submits that P.W.-1, P.W.-2 and P.W.-3 are unreliable witnesses as all the three were not present nor they have seen the incident. P.W-3 in his cross-examination has stated that in dinner only, he went from his house. P.W.-3 in his examination-in-chief states that he, his nephew Sujit and Ajit as well as his sister-in-law Asha Devi went in Tilak ceremony. In the same manner, P.W.'s- 1 and 2 were unreliable witnesses, they say one thing at one place and some thing at another place. P.W.-2 is tutored witness as he stated that he is 16 year of age and he is giving statement as told by the counsel so P.W.-2 is also unreliable witness. It is further submitted that medical evidence also belies the prosecution case. Counsel for the appellants submitted that in the postmortem report, it is mentioned that stomach contained semi-digested food, small intestine was empty and large intestine filled with fecal matter and gases. P.W.-6 Doctor in his cross-examination stated that deceased must have taken food 2-3 hours before death. However, from the FIR and statements of P.W.-2 and P.W.-3, it has come that deceased was going to take food in the Tilak ceremony so prosecution case is false and cannot be believed. It is further submitted that the First Information Report is anti-timed. This argument is pressed on the ground that P.W.-9 in his cross-examination stated that he is not aware about sending of special report of this case by whom and when, in G.D. there is no reference of sending the special report of this case, in the chik FIR (Ext. ka-15), there is signature of C.O. but no date is mentioned. The same was sent before Magistrate on 11.5.2016. P.W.-9 further stated that in coloumn no. 3 of chik FIR no time and date is mentioned. No signature and thumb impression of first informant is mentioned in the relevant coloum of chik FIR. In inquest only crime number is mentioned, nothing else is mentioned on the top of inquest. P.W.-7 Shyam Singh, scribe of FIR in his cross-examination, states that after the inquest, report of the incident was written. All these facts indicate that prosecution case is false.

23. Counsel for the appellant placed reliance upon paragraph-101 of the police regulation which is as follows:-

"101. Special Report cases.- Whenever the occurrence of an offence of any of the following kinds is reported-

(1) dacoity, (2) robbery except unimportant cases such as snatching ear-rings, (3) torture by police, (4) escape from police custody, (5) forging of currency notes (6) manufacture of counterfeit coin, (7) serious defalcations of public money including theft of notes or hundis from letters, (8) important cases of murder, rioting, burglary and theft, breaches of the peace between different classes, communities or political groups and other cases of special interest, copies of the report will be sent immediately in red envelopes to the Superintendent, the District Magistrate, the Sub-Divisional Magistrate and the Circle Inspector by post or hand whichever may be the quicker method of conveyance. The telephone or telegraph when available, and the department telegraphic code, copies of which have been supplied to all police stations near telegraph offices should also be used to give the Superintendent early news of such offences."

24. Counsel for the appellant further submitted that independent witnesses of the incident have not been examined although in the Tilak ceremony, there were number of people of the village which also falsifies the prosecution case. The counsel for the appellant further submitted that plea of alibi set up with respect to accused Dashrath has been proved from the examination-in-chief and cross-examination of D.W-1.

25. Counsel for the appellants cited judgment of the Apex Court and submitted that appeals filed by accused appellants be allowed, particulars of the judgments are as follows:-

(1994) 5 SCC 188, Mehraj Singh vs. State of U.P., (2006) 2 SCC 450, Radha Mohan Singh @ Lal Saheb and Others vs. State of U.P., (2006) 9 SCC 731, Budh Singh and Others vs. State of U.P.

26. Learned AGA, Smt. Manju Thakur on the other hand supported the impugned judgment and orders of conviction by contending that no delay has been caused in lodging the FIR. Recovery memo and recovery of country-made pistol from accused Ramswaroop @ Chotka and Suresh fully make out the case against accused / appellants. Prosecution case is fully proved from the statement of P.W.-1, P.W.-2 and P.W.-3. The appeals filed by accused - appellants have no merit and are liable to be dismissed.

27. Upon hearing learned counsel for the parties and perusal of record, first of all we are considering the argument raised on the point of contradictions in the statement of P.W.-1, P.W.-2 and P.W.-3, unreliable witnesses and tutored witness. P.W.-1 in the First Information Report says that she saw the incident while in the statement under Section 161 Cr.P.C., she says that she came to place of incident when her sons and brother-in-law informed her about the incident. In the same manner, in the FIR, name of accused Suresh is mentioned but in examination-in-chief as well as in cross-examination, P.W.-1 says that Suresh has not fired at all, only rest of the three accused were involved in the incident, P.W.-7 Shyam Singh, scribe of FIR in his cross-examination states that after Panchayatnama report was written on the dictation of Daroga ji but later on says that report was written on the dictation of Asha Devi. In the same manner, there are so many contradiction in the statement of P.W.-2. The counsel for the appellant further submits that P.W.-1, P.W.-2 and P.W.-3 are unreliable witnesses as all the three were not present nor they have seen the incident. P.W-3 in his cross-examination has stated that he was the sole member of his family who went to the Tilak. But in his examination-in-chief states that he, his nephew Sujit and Ajit as well as his sister-in-law Asha Devi went in Tilak ceremony. In the same manner, P.W.'s- 1 and 2 were unreliable witnesses, they say same thing at one place and some thing at another place.

28. P.W.-4 in his cross-examination states that from every house of the village, only one person of the house was given an oral invitation of Tilak. He further stated that he invited Shiv Singh. Therefore, from the statements of P.W.-1, P.W.-2, P.W.-3 and P.W.-4, the presence of eye-witnesses P.W.-1, P.W.-2 and P.W.-3 at the time and place of incident is doubtful and due to contradiction in their statements, P.W.'s- 1 to 3 do not inspire confidence.

29. The next argument advanced by learned counsel for the appellants is that the F.I.R. is ante-timed. In support of this argument, counsel placed the statement of P.W.-9 which is as follows:-

** ih0MCyw0and9 dka0 2416 j?kqoj ;kno Fkkuk f'koiqj tuin okjk.klh ''"'kiFk iwoZd c;ku fd;k fd and fnukad 4-5-06 dks Fkkuk vlksFkj tuin Qrsgiqj Fkkuk dk;kZy; esa rSukr FkkA ml fnu eSus okfnuh vk'kk nsoh dh rgjhj tks ';ke flag ds }kjk fy[kh FkhA ds vk/kkj ij eqdnes dh fpd ,Q0vkbZ0vkj0 rS;kj Fkkus ij dh FkhA fpd ,Q0vkbZ0vkj0 isij ua0 3v@1 dks ns[kdj xokg us dgk fd ;g ogh fpd ,Q0vkbZ0vkj0 gS vius ys[k o glrk{kj dh f'kuk[r fd;kA eSus dk;eh eqdnek dk bUnzkt th0Mh0 dh jiV la[;kand28 le; 22-30 ftlesa 4-5-06 dks esjs }kjk fd;k x;k FkkA vly th0Mh0 eS yk;k gWwA esjs leus gSA vly th0Mh0 dh QksVks dkih eS lR;izfrfyfi izekf.kr fy[kdj nkf[ky dj jgk gWwA QksVks dkih ij izn'kZ dand16 Mkyk x;kA 11-5-06 dks Hkh eS cgSfl;r lh0 DydZ fu;qDr FkkA ml fnu eSus QnZ cjkenxh ds vk/kkj ij eqyfte lqjs'k ds fo:) 25 vkElZ ,sDV dk eqdnek dk;e fd;k Fkk fpd ,Q0vkbZ0vkj0 '''kkfey i=koyh isij ua0 3v@1 dks ns[kdj dgk fd ;g esjs ys[k o gLrk{kj esa gs ftl ij izn'kZ dand17 Mkyk x;kA dk;eh eqdnek dk bUnzkt th0Mh0 dh jiV la[;k 23 le; 16-30 ij esjs }kjk fnukad 11-5-06 dks fd;k x;k Fkk vly th0Mh0 eS yk;k gWwA esjs lkeus gSA ewy ds lkFk dkoZu yxkdj rS;kj dh x;h dkoZu dkih i=koyh esa miyC/k gSA vly ds lkFk izekf.kr i= fy[kkdj gLrk{kj cuuk dgk gSA th0Mh0 dh dkoZu dkih ij izn'kZ dand18 Mkyk x;kA x x x x dzkl ckbZ fMQsal Qkj ,DT;wM Qkj n'kjFk ,.M jke Lo:i ;g dguk xyr gS fd Fkkuk v/;{k vkUkUn dqekj flag ds v/khuLFk gksus ds dkj.k nckc o'k ,aVh Vkbe dk;Zokgh dh gksA ;g Hkh dguk xyr gS fd foHkkxh; gksus ds dkj.k xyr c;ku ns jgk gWwA x x x x dzkl ckbZ fMQsal Qkj ,DT;wM lqjs'k ;g eqdnek 4-05-06 dks 22-30 cts dk;e gqvkA bl eqdnes ds dk;eh ds iwoZ ml fnu Fkkus esa dksbZ nLrukth fjiksVZ ntZ ugh gq;h FkhA bl eqdnes ds dk;eh ds ckn Hkh ml fnu ;kfu 4-5-06 dks dksbZ nLrUnkth fjiksVZ Fkkus ij dk;e ugh gq;hA eS ;g ugh crk ldrk fd bl eqdnes dh dk;eh ds ckn 5-5-06 dks dksbZ nLrkUnkth Fkkusa esa dk;e gqbZ fd ughA fnukad 4-5-06 dks eS th0Mh0 esa bl eqdnes dh Lis'ky fjiksVZ Hksts tkus dk dksbZ mYys[k th0Mh0 esa ugh gSA bl eqdnes dh Lis'ky fjiksVZ fdlds }kjk vkSj dc Hksth x;h eq>s ugh ekywe gSA fpd ,Q0vkbZ0vkj0 /kkjk 302 izn'kZ dand15 es lh0vks0 ds gLrk{kj gS ysfdu dksbZ rkjh[k ugh gSA eft0 ds ;gkW izi= dand15 eft0 ds ;gkW 11-5-06 dks izkIr gksus dk mYys[k gSA fpd ,Q0vkbZ0vkj0 ds dkye ua03 ij fjiksVZ Hksts tkus dk fnu o le; dk dkye gS ysfdu ml dkye eas dksbZ rkjh[k o le; ugh fy[kk Mkd nwljs fnu Hksth tkrh gSa fpd esa oknh ds fu'kku vaxwBk o gLrk{kj dk dkye gSA ysfdu fpd o izn'kZ and15 esa u rks oknh dk fu'kku vaxwBk gS vkSj u gLrk{kj ghA ;g dguk xyr gS fd eqdnes dh ,Q0vkbZ0vkj0 o rgjhj ,aVh VkbZe o ,aVh MsV djus lykg e'kfojk ds ckn esa rS;kj dh x;h gSA th0Mh0 ds vuqlkj ,l0vks0 vkUkUn dqekj flag ds jokuxh Fkkus esa fnukad 4-5-06 dks fd'kuiqj {ks= ds fy, 12-30 cts jokuxh ntZ gSA ogkW ls muds okilh dk dksbZ mYys[k lh0Mh0 esa ugh gSA ml th0Mh0 vkSj ,l0vks0 dh jokuxh ftl dk;Z ds fy, Fkkus ls gqbZ o fdl LFkku ds fy, gqbZ mldk mYys[k ugh gSA ;g dguk xyr gS fd th0Mh0 dh baVªh ,aVh VkbZe ,oa ,aVh MsV djds fy[kh x;h gksA fnukad 11-5-06 dks dzkbe ua0 50@06 vUrxZr /kkjk 25 vkElZ ,sDV 16-30 cts dk;e fd;k x;k FkkA ml eqdnesa dh dk;eh ls iwoZ le; 12-10 ij eqdnek dk;e gqvk FkkA ;g dguk xyr gS fd eq0ua0 50@06 /kkjk 25 vkElZ ,sDV rFkk lqjs'k dk eqdnek ,l0vks0 vkUkUn flag ds dgus o izHkko esa gksus ds dkj.k QthZ ,aVh VkbZe o ,aVh MsV djds fy[kk x;k gSA x x x x dzkl ckbZ fMQsal Qkj ,DT;wM f'ko ijlu fpd ,Q0vkbZ0vkj0 esa fjiksVZ esa fnukad o le; dk dkye gSaA mlesa fnukad 4-5-06 ds uhps le; iMk gS ftlesa vksoj jkbZfVax dh x;h gSA ;g djsaD'ku fjiksVZ fy[kus ds ckn fd;k x;k gSA gkFk ls fy[k jgs Fks lgou xyrh gks ldrh gSA ;g dguk xyr gS fd igys le; nwljk Mkyk Fkk vkSj lykg e'kfojk ds ckn nwljk le; Mkyk x;k gSA tc eS fjiksVZ dj jgk Fkk ml le; ,l0vks0 lkgc Hkh FksA ;g dguk xyr ugh gS fd okfnuh dks ,l0vks0 lkgc igys ekSdk ns[kus ds fy, ysdj x;s mlds ckn okil vkdj igys dk le; Mkydj okfnuh dks cksy dj ;g rgjhj fy[kokbZ FkhA esjs cksyus ij okpd }kjk fy[kk x;kA c;ku lqudj rLnhd fd;kA 17-2-010 **

30. From a reading of the entire statement of P.W.-9, the delay in sending special report to the concerned Magistrate is not explained. The statement of P.W.-7 will be also relevant which is as follows:-

*ih0MCyw0and7 ';ke flag iq= Jh jke jru flag mez 45 o"kZ yxHkx is'kk fdlkuh fuoklh fo"Bh Fkkuk vlks0 ftyk QrsgiqjA 'kiFkiwoZd c;ku fd;k fdand dkxt la[;k 3v@2 esjs gkFk dk fy[kk gqvk gS ;g esus e`rd dh iRuh vk'kk nsoh ds cksyus ij fy[kh FkhA tks vk'kk nsoh us eq>s cksyk Fkk mlh ds vk/kkj ij eSus fy[kk Fkk D;ksafd eSa ekSds ij ugha FkkA rgjhj fy[k tkus ckn eSaus vius gLrk{kj fd;s Fks vkSj vk'k nsoh dk vaxwBk fu'kku yxok;k FkkA vaxwBk fu'kku yxokus ls igys eSaus vk'kk nsoh dks rgjhj i Cross by Defence for accused Shiv Parsan ;g rgjhj eSaus jkf= es yxHkx 12 cts fy[kh FkhA Fkkus es ;g rgjhj fy[kh xbZ FkhA 11-30 ;k 12 cts ds chp es vk'kk nsoh ds lkFk Fkkus igWqpk FkkA ;g dguk lgh gS fd eSaus rgjhj ij yxs fu'kkuh vaxwBk ij uke ugha [kksyk gSA eq>s vk'kk nsoh us ftrus eqfYteku ds uke cryk;s Fks mu lHkh ds uke eSaus rgjhj es fy[k fn;s FksA eSaus fdlh O;fDr dk uke vius rjQ ls ugha fy[kk Fkk vk'kk nsoh ds rgjhj esa f'koijlu dk uke ugha fy[kok;k FkkA Cross by Defence for Accused Suresh eq>ls njksxk th us Fkkus esa iapk;rukek Hkjus ds ckn cksy cksy dj rgjhj fy[kok;h FkhA fQj dgk fd e`rd fd iRuh vk'kk nsoh us cksy cksy dj fy[kokbZ FkhA njksxk th e`rd dh iRuh dks vius lkFk Fkkus ys x;s Fks eSa ?kVuk ds le; ekSds ij ekStwn ugh Fkk njksxk th us esjk dksbZ c;ku ugha fy;kA Cross by Defence for Accused Dasrath and Ram Swaroop ftjg dk volj fn;k x;kA ftjg ugha fd;kA ftjg dk volj lekIr fd;k x;kA esjs cksyus ij gLrfyfi }kjk fy[kk x;kA c;ku lqudj rLnhd fd;kA g0 vLi"V 30-10-2009 **

31. The abovementioned statement of P.W.-7 fully reveals that after preparation of inquest, report of the incident was written and lodged. All these facts fully demonstrate that FIR is ante-timed.

32. The case law cited by counsel for the appellant on the point of ante-timed FIR, reported in (1994) 5 SCC 188, Mehraj Singh vs. State of U.P. will be relevant. Paragraph No. 12 of the judgment is as follows:-

"12. FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version or exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in despatching or receipt of the copy of the FIR by the local Magistrate. Prosecution has led no evidence at all in this behalf. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174 CrPC, is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante-timed to give it the colour of a promptly lodged FIR. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value and authenticity and it appears to us that the same has been 'ante-timed and had not been recorded till the inquest proceedings were over at the spot by PW 8."

33. The other judgment cited by counsel for the appellant on the point of ante-timed FIR is reported in (2006) 9 SCC 731, Budh Singh and Others vs. State of U.P. Paragraph nos. 20 to 22 of the judgment is as follows:-

"20. Yet again, to P.W. 8, Shailesh Tyagi, clear suggestion was given that "writing of diary was stopped" and FIR was recorded when Investigating Officer returned in the afternoon on 13.4.1992 from the place of occurrence and thereafter the special report was sent. The FIR, according to the said witness, was sent by post. He merely stated that the Constable who went to the police station, which was at a distance of 50 kms. from the Headquarter, took with him the FIR also but no date or case number had been mentioned in the prescribed column.

21. He accepted that the FIR was produced before the Court of Chief Judicial Magistrate on 18.4.1992.This Court in Meharaj Singh v. State of U.P., as regards the requirement of sending of the FIR to the Court, the inquest report as also the requirements to comply with other formalities provided for external checks, categorically held:

"FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a coloured version of exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded, the courts generally look for certain external checks. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have bee recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in despatching or receipt of the copy of the FIR by the local Magistrate. Prosecution has led no evidence at all in this behalf. The second external check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174 Cr.P.C., is aimed at serving a statutory function, to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in an embryo state and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante-time to give it the colour of a promptly lodged FIR. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value and authenticity and it appears to us that the same has been ante-timed and had not been recorded till the inquest proceedings were over at the spot by PW 8." The said decision of this Court was followed by a Three Judge Bench of this Court in Thanedar Singh v. State of M.P., [2002] 1 SCC 487 and also in, Rajeevan and Anr. v. State of Kerala, [2003] 3 SCC 355 and Bijoy Singh and Anr. v. State of Bihar, [2002] 9 SCC 147.

22. We are, however, not oblivious of the fact that Meharaj Singh (supra) has been distinguished in Rajesh @ Raju Chandulal Gandhi and Anr. v. State of Gujarat, [2002] 4 SCC 426, stating :

"Relying upon the judgment of Meharaj Singh v. State of U.P. the learned counsel appearing for the appellants has submitted that FIR in a criminal case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led in the trial. The object of insisting upon prompt lodging of the FIR is to obtain information regarding the circumstances in which the crime was committed including the names of actual culprits and the part played by them, the weapon of offence used as also the names of the witnesses. One of the external checks which the courts generally look for is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. The absence of details in the inquest report may be indicative of the fact that the prosecution story was still in embryo and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultation and was then ante-timed to give it a colour of promptly lodged FIR. The reliance of learned counsel for the appellant on Meharaj Singh case is of no help to him in the instant case inasmuch as all requisite details are mentioned in panchnama Exhibit P-32. Mere omission to mention the number of the FIR and the name of the complainant in Ext. P-37 has not persuaded us to hold that the FIR was ante-timed in view of the peculiar facts and circumstances of the case as noticed by the trial court, the High Court and by us hereinabove."

34. The next argument advanced by counsel for the appellants that in the Tilak ceremony, large number of villagers were present but no independent witness was produced by the prosecution specially when the eye-witnesses totally failed to prove the prosecution case which casts a doubt on the prosecution case, also appears to be correct. The further contention of counsel for the appellants is that medical evidence also belies the prosecution case. In support thereof, it was argued that in the postmortem report it is mentioned that stomach contained semi-digested food, small intestine was empty and large intestine filled with fecal matter and gases. P.W.-6 Doctor in his cross-examination stated that deceased must have taken food 2-3 hour before but from the FIR and statement of P.W.-2 and P.W.-3, it has come that deceased was going to take food in the Tilak ceremony. So prosecution case is false and cannot be believed. Accordingly, medical evidence also falsifies the prosecution case.

35. The last contention raised by learned counsel for the appellant that plea of alibi set up with respect to accused Ram Swaroop @ Chotka and Dashrath has been proved from the examination-in-chief and cross-examination of D.W.-1, as no question was asked by prosecution on this point, hence plea of alibi is proved. The contention of counsel for the appellant has force.

36. In view of the facts and circumstances of the case and evidence available on record, as discussed above, we find that the evidence of the alleged eye witnesses produced by prosecution does not inspire confidence. There exists a doubt whether they are eye-witnesses of the incident. Oral evidence is also not consistent with the medical evidence, FIR is ante-timed and there are no independent witness of the incident. Prosecution has failed to prove the charges against the appellants-accused beyond reasonable doubt.

37. Accordingly, the appeals are allowed. The impugned judgment / orders of conviction and sentence dated 18.3.2011 are set aside. Appellants are acquitted of the charges framed against them. The accused- appellant Ramswaroop @ Chotaka in Criminal Appeal No.1921 of 2011 is in jail. He shall be released from jail forthwith. Accused-appellant Dashrath @ Badka in Criminal Appeal No. 1922 of 2011, accused - appellant Suresh in Criminal Appeal No.1920 of 2011 and accused - appellant Shivperson @ Bantwa @ Baccha @ Shiv Prakash @ Shiv Darshan in Criminal Appeal No.2439 of 2011 are on bail. Their bail bonds and sureties are discharged.

38. Let a copy of the judgment along with the original record be sent to the court below for compliance Order Date :- 4.3.2022 C.Prakash (Chandra Kumar Rai, J.) (Anjani Kumar Mishra,J.)

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