Allahabad High Court
Bhagwat vs State Of U.P. on 27 February, 2020
Equivalent citations: AIRONLINE 2020 ALL 291
Bench: Govind Mathur, Vivek Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD RESERVED Case :- CRIMINAL APPEAL No. - 2309 of 1983 Appellant :- Sri Bhagwat and others Respondent :- State of U.P. Counsel for Appellant :- S. Shukla,Dilip Kumar Goswami,K.K.Rao,Prabha Shanker Pandey,S. Ratan Counsel for Respondent :- D.G.A.,A.G.A. Hon'ble Govind Mathur,Chief Justice Hon'ble Vivek Varma,J.
1. By the judgment impugned dated 27th September, 1983, learned VII Additional Sessions, Gorakhpur recorded conviction of accused-appellants Sri Bhagwat, Ram Kripal Yadav and Ganesh alias Khaderu Yadav for an offence punishable under Section 302/34 IPC and awarded sentence to undergo life imprisonment. Accused-appellant Lalji Yadav has been convicted for an offence punishable under Section 302 IPC and is sentenced to undergo life imprisonment. Conviction of all the accused above-named have also been recorded under Section 307/34 IPC and for that they have been sentenced to undergo three years rigorous imprisonment.
2. The appellant no. 1 (Sri Bhagwat) and appellant no. 4 (Ganesh alias Khaderu Yadav) died during the pendency of this appeal and their appeal stood abated. Currently the appeal of appellants no. 2 (Lalji Yadav) and appellant no. 3 (Ram Kripal Yadav) survives for hearing.
3. The prosecution case, as set-out in the first information report, is that Shyama Yadav (P.W.-2) submitted a written report (Ext. Ka-2) at P.S. Belipar on 06.07.1982 at 12.15 noon asserting that earlier he had a land dispute with the accused Sri Bhagwat, which was decreed in his favour. On the fateful day, i.e., 06.07.1982 at about 08.00 AM, the informant was fixing a peg on the same land. At that time Bhagwat came and stared arguing. The informant went to his house. At about 11.00 AM, the informant, his brother Nityanand, cousin Ayodhya and maternal uncle Sheo Pujan were sitting in the Osarey (ओसारे) . Father of informant Kashi Yadav was sitting on the Gulamgaddi. At that time, accused Sri Bhagwat, his son Lalji Yadav and Ram Kripal and Khaderu son of Suryabali came there holding country made bombs (hereinafter referred as ''bomb') in their hands. Upon exhortation of the accused Sri Bhagwat, accused Lalji Yadav hurled a bomb, which hit Kashi Yadav on his chest. He fell down. The maternal uncle and informant took shelter behind the pillars and Nityanand and Ayodhya went inside the house. Upon raising of alarm and the sound of blast of bomb, villagers Ramdeo, Ram Adhar and several others reached the place of incident. Each accused appellants then hurled a bomb, however, no one was injured. It was then asserted that on account of bomb injuries, the father of the informant died. The incident was witnessed by many persons apart from the appellants. Out of fear, the informant and persons did not chase the accused. The dead body of the father of the first informant lay at the place of incident.
4. On the basis of said information, a first information report of the incident was lodged at police station Belipar on 06.07.1982 at 12.15 PM registered as case crime no. 104 of 1982 under Sections 302/307 IPC against the appellants.
5. During the course of investigation, the Investigating Officer prepared the inquest report, inspected the place of incident and prepared site-plan. The post-mortem examination on the body of deceased was conducted on 07.07.1982 at 04.00 P.M.
6. After investigation, police submitted charge sheet, Ext. Ka- 23. The trial court, vide order dated 20.01.1983 charged the accused-appellant Lalji Yadav under Section 302 read with Section 34 IPC and remaining accused-appellants under Section 307 read with Section 34 IPC. The accused-appellants pleaded not guilty and faced trial before the court of sessions.
7. During trial, the prosecution had examined altogether seven witnesses, in support of its case. The prosecution had also brought on record various documentary evidences i.e. Ex Ka-1 to Ka-23.
8. An opportunity was accorded to the accused-appellants as per provisions of Section 313, Cr.P.C. to explain adverse and incriminating circumstances against them in the prosecution case. The appellants denied all the circumstances appearing against them in the prosecution evidence and claimed their false implication. In their defence D.W.-1 (Mishri Lal) was examined.
9. The trial court, after considering the arguments and evidences available on record, convicted and sentenced the appellants vide impugned judgment, as stated herein-above, against that, present appeal has been filed.
10. While assailing the impugned judgment, learned counsel for the appellants submitted that the trial court has committed serious mistake in appreciating the circumstances in the light of the evidence adduced by the prosecution. All the eye witnesses are interested and related and their very presence is doubtful. There are lot of material discrepancies in the oral evidence of these witnesses, which cannot be relied upon. All the witnesses of fact have contradicted each other on the most crucial aspects about the incident. It shows untrustworthiness of their depositions. The FIR is ante timed and the medical evidence does not support the ocular version, therefore, appeal deserves to be allowed.
11. Per contra, learned Additional Government Advocate stated that P.Ws. 2, 3 and 6 are the eye witnesses and they have given a vivid account of the occurrence, therefore, the trial court had rightly convicted the appellants. Accordingly, it is submitted that no interference is required in the impugned judgment by this Court.
12. Heard learned counsel for the parties and examined the record.
13. Before proceeding to examine the merit of the argument advanced on behalf of the learned counsel for the parties, we would like to place on record the facts established from the medical evidence of P.W. 1 ( Dr. M.S. Hussain), who is the Doctor, who held autopsy on the dead body of deceased on 07.07.1982 at 04.00 P.M. and found the following ante-mortem injuries :-
"Multiple contusion with marked charring and tattooing in an area of left side chest and right side upper abdomen fracture of underlying ribs of left chest."
14. In the internal examination of the dead-body of the deceased the doctor found following injuries:
"Neck was congested. No injury on skull and head. Brain had decomposed. Left side of the chest was congested.
Third, fourth, fifth and sixth rib were fractured. Ruptured wound on the middle part of left lung and half an litre blood was present. Heart's perineum was congested and half an litre blood was present. Right ventricle of the heart was ruptured and blood was not present in heart.
Abdominal wall was congested. Stomach's membrane was congested and around a litre blood was clotted in cavity. The abdomen was half filled and semi-digested food was present there. Small intestine was empty. Large intestine was filled containing semi-digested food. Gall bladder was filled. Upper part of liver was ruptured. Bladder was empty."
15. During the examination-in-chief P.W. 1 stated that he conducted the postmortem on 07.07.1982 at 4.00 PM. According to him the death was caused due to shock and haemorrhage as a result of injuries. The death of the deceased is likely to have occurred on 06.07.1982 at about 11.00 AM. The ante-mortem injuries found on the body of the deceased, were likely to have caused by bomb. During the cross-examination, the doctor stated that there is no laceration or hole on the skin at the seat of injury. He also stated that no pellets were found in the internal examination. The relevant part of his testimony is extracted herein-below:
"चोट के ऊपर का स्किन में छेद नहीं है और न उसमे कोई लैसरेशन था| इंटरनल इग्जामिनेशन में कोई पैलेट नहीं मिला| यदि फायर आर्म के शॉक व बॉडी के बीच में कपडे पहने बॉडी पर चारिंग व टैटोइंग का आना सम्भव नहीं है|"
16. Now, the question arose for determination as to whether the appellants had committed the present crime or not ?. This brings us to consider the other evidences available on the record. As noticed above, in the instant case, the prosecution had examined altogether seven witnesses. P.W. 1- Dr. MS. Hussain, who conducted the post-mortem of the deceased, P.W. 2- Shyama Yadav is the informant and is the eye witness and P.W. 3- Nityanand is the brother of informant and is also the eye witness, P.W. 4-Constable Satya Deo Prasad, who brought the body of deceased for post-mortem, P.W. 5- Constable Jokhan Singh, who prepared chik report (Ext. Ka-3) and made relevant entries in the G.D., P.W. 6 Ramdeo, also an eye witness, P.W. 7- S.I. Rajendra Prasad Srivastava is the Investigating Officer, who conducted inquest proceedings and there after sent the dead body for post-mortem examination. He had also proved the site plan and seizure lists.
17. P.W. 2- Shyama Yadav (son of the deceased) is the informant of this case and is also an eye witness. He deposed that his house is at Gram Baghadada. The exit is towards east and it is a concrete house. There is a sitting room (ओसारा) outside the house towards east also. There is another house, where animals and hay are kept and they also reside there. Their deceased father and accused Sri Bhagwat were involved in litigation over land of the courtyard adjacent to the eastern side of said other hosue. His father won the case. The accused-appellants had earlier set on fire the said other house. He stated that his father had filed an injunction case against Sri Bhagwat and others, which was pending before the Munsif, Bansgaon and the appellants had filed appearance in that said case before the murder. He further stated that the accused-appellant Sri Bhagwat had instituted another case against him and his brother and they were convicted by the Sessions Court. They had filed an appeal in the High Court. Sri Bhagwat's house is situated at a distance of 50 steps from the south-east of the house where they used to have meals. On the date of incident at 08.00 AM he was fixing a peg in his courtyard to the south of his bungalow. Accused Sri Bhagwat came and some dispute arose between them. On the fateful day at about 11.00 AM his brother Nityanand, his maternal uncle Shivpujan and cousin Ayodhya were sitting in the Osara of the house and his deceased father (Kashi Yadav) was sitting at Gulamgaddi (raised platform). They were talking when Sri Bhagwat, his two sons Ram Kripal and Lalji Yadav and Ganesh alias Khaderu (brother-in-law of accused Lalji Yadav) came there. The accused were carrying bombs in their hands and at the exhortation of Sri Bhagwat, Lalji Yadav hurled a bomb at his father, which hit his father at his chest and consequently he died. He further deposed that his maternal uncle Shivpujan and he hid behind the pillar of the sitting room whereas Nityanand and Ayodhya hid themselves behind the doors of the house. On alarm being raised, all the accused persons threw bombs. After hearing the alarm, the witnesses Ram Deo and Ram Adhar also arrived there.
18. P.W.-2, Shyama Yadav, during his cross-examination dated 03.03.1983, denied his relationship with P.W.-6 Ramdeo but there after in the cross examination dated 04.03.1983 he deposed that the name of grandfather of Ramdeo is Shivraj, who is real brother of his grandfather. He further gave different version about the prosecution story. The relevant part of his testimony is extracted below :
" भागवत के हाथ में झोला था| झोला से लालजी निकालकर बम फेके थे बाकी लोग अपने अपने हाथ वाला बम फेका था| लालजी ने झोला से बम निकाला वो फेका| झोला कपड़ा का था| लालजी ने पहला जो बम फेका वह वह शुरू में ही उसके हाथ में था वो दूसरा बम उसी झोले से निकालकर फेका था| ऊपर जो बयान दिया है कि लाल जी ने झोला से निकालकर बम फेक वो दुसरे बम के बारे में है |"
Thereafter he stated that :
"गवाह को इकज क -2 पढ़ने को दिया गया तो पढ़कर बताया कि इसमें लिखा हुआ है कि गवाहान के आने पर चारों मुल्जिमान ने एक एक बम फेका| यह मैंने सही लिखा है| मुल्जिमान ने घटना के समय दो बार ही बम फेका था| एक बार केवल लालजी ने बम फेका था और दूसरी बार जब गवाहान आ गए तो चारों मुल्जिमान ने एक एक बम फेका था|"
He further deposed that:
"हमारे पिता की चोट से जमीन पर खून नहीं गिरा था| हमारे पिता के कमीज में जहाँ बम लगा था वहाँ का कपड़ा उड़ गया था और थोड़ा सा कमीज पर खून लग गया था| उसी दिन करीब दो बजे दरोगाजी मौके पर आये थे| उस वक्त मै लौट कर घर आ गया था| लाश करीब 4 1/2 बजे शाम को उठी थी| रिक्शे से लाश भेजी गई थी| दरोगाजी के आने पर उनके द्वारा लिखे किसी कागज़ पर दस्तखत नहीं किया था घर से लिख कर रिपोर्ट ले गया था| 11 बजकर करीब 5 मिनट पर घर रिपोर्ट लिखना शुरू किया था| थाना मैं अकेला गया था| साइकिल से थाना गया था| थाना पर मुझे दरोगाजी नहीं मिले थे| हमसे हमारे घर पर दरोगाजी से मुलाक़ात हुई थी|"
19. It is clear from the perusal of the deposition of P.W.2, the said witness is not clear regarding the manner of assault. However, he affirmed that the Investigating Officer visited the site at 02.00 PM and the dead body was dispatched at about 4-1/2 in the evening. He left the dead-body at the place of incident at 11.05 AM and went to his house to transcribe the report. He went by cycle to police station and the Investigating Officer met him at his house only.
20. P.W. 3 is the son of the deceased and also an eye witness. In his examination-in-chief he supported the prosecution story in entirety. He deposed that the report of the incident was written by P.W.2 at the place of incident and thereafter he went to the police station to register the FIR and when the Investigating Officer came, the place of incident was shown by him. During cross examination he stated that chest of the deceased was ruptured due to the injury caused by bomb. The relevant part of his testimony is extracted below:
"करीब 8 -10 कदम की दूरी से बम फेका गया| फेका गया बम सीधे मेरे पिताजी के सीने पर लगा बम के चोट से सीना फट गया था| बम की चोट लग कर मेरे पिताजी ग़ुलामगर्द पर गिर गए|"
He further deposed that due to injury of the bomb, blood was present and the colour of the chest of his father turned black. He continued that there is no Chowkidar in the village and the body of the deceased was dispatched at 4-5 hours, at that time his brother Shyama Yadav (informant/P.W.-2) was present at the house. The relevant part is extracted below:
"मेरे गाँव में चौकीदार नहीं रहता है। .....गाँव में रहता है वह आया था या नहीं मुझे नहीं मालूम। लाश करीब 4-5 बजे शाम को करीब उठी थी| लाश उठते समय मेरे भाई श्यामा घर पर थे|"
21. P.W.-4 Constable Satyadeo Prasad in his examination-in-chief stated that he received the dead-body on 06.07.1982 at 4 ¼ PM and he along with Chowkidar of the village brought the body for postmortem and on the next date he also identified the body in front of the doctor. During his cross-examination he deposed that he had brought the body by a rickshaw. The distance is seven kilometres and almost four hours was taken. He categorically deposed that he reached police lines at 08.00 PM. The body was kept in the mortuary in the night. He along with Chowkidar stayed at mortuary.
22. P.W.-5 Constable Jokhan Singh, who prepared chik report, in his cross-examination, stated that special report was sent to the Magistrate through constable Radhey Shyam on 06.07.1982 at about 3-1/4 PM. However, in the general diary entry of that date, time of return of Radhey Shyam has not been entered. He further stated that he is not in a position to inform as to when Radhey Shyam returned.
23. P.W.-6 Ramdeo claimed himself to be another eye witness of the incident and gave entirely different version. In his examination-in-chief he deposed that Sri Bhagwat, Lalji, Kripal and Ganesh hurled bombs at Kashi. In all four bombs were hurled. During his cross-examination he admitted his relationship and stated that deceased Kashi and his father Kalpnath were brothers. He categorically stated that the Inspector reached at the place of incident at 12.00 noon and the dead body was dispatched at about 08.00 PM in the night. At that time the ladies and male members of family of Shyama (P.W.-2) and Nityanand (P.W.-3) and Kashi (deceased) were present. He also stated that he is a witness of a case pending between the informant and accused-appellants. The relevant part of his testimony is extracted below:
"दरोगाजी मौके पर 12 बजे दिन को आये थे| लाश मेरे समझ से करीब 8 बजे रात को उठी थी| दरोगाजी के आने पर श्यामा, नित्या, काशी के घर के मर्द औरतें और लड़के मौजूद थे| काशी के साले शिवपूजन चले गए थे| "
24. P.W-7, R.P. Srivastava, the Investigating Officer, in his examination-in-chief deposed that after obtaining the copy of chik FIR and general diary, he left for the place of occurrence at 02.00 PM and after reaching the place of occurrence he found the body of deceased lying at Verandah. He prepared Panchayatnama, Chalan-nash and other police papers and dispatched the dead body through constable Satya Deo Prasad and one B.C. Nath. Thereafter, he recorded the statement of first informant (P.W.-2) and Nityanand (P.W.-3) and inspected the place of incident and prepared site plan. During the cross-examination he deposed that he met the informant/P.W.-2 in the evening at 04.24 PM and recorded his statement. He started the inquest proceeding at 03.00 PM and completed the same at 04.15 PM in the evening. The dead body was sent to Headquarters (मुख्यालय) at 04.15 PM. Further he stated that time was not mentioned in the chalan-nash. The distance of place of occurrence and Headquarters is 6 ½ kilometres. After looking at the chalan nash he stated that the body reached on 07.07.1982 at 07.15 AM. On being cross-examined by the Court, he stated that it takes maximum three hours to reach the Headquarters from the place of incident. On being further cross-examined by the defence, he deposed that he cannot give reason for late arrival of the dead-body to the Headquarters. He further stated that in the site plan he has not shown the place where bombs were hurled. He also deposed that in the inquest report name of accused were not written.
25. Now we will first examine as to whether the testimonies of eye witnesses (P.W.2, 3 and 6) are consistent or not. In this regard we would find that the informant (P.W.-2) as per deposition, left the dead-body at the spot and came to his house at 11.05 AM and after scribing the complaint, went to police station by cycle for registering the same. He also deposed that Investigating Officer (P.W.-7) reached at the place of occurrence at 02.00 PM and at that time he was not present as he was at his house. He further stated that the body was dispatched at 4-1/2 PM for mortuary. However, P.W.-3 deposed that P.W.-2 scribed the first information report at the place of incident. In his examination-in-chief, although he did not mention the time when the Investigating Officer arrived at the spot, he stated that the body was dispatched at 4-5 PM. Further, P.W.-6, the other eye-witness claimed that Investigating Officer (P.W.-7) reached the place of incident at 12.00 noon and dead body was dispatched at 08.00 PM in the night and at that time ladies and male members of the family of P.W.-2 and P.W.-3 were present. Whereas, the Investigating Officer, in his examination-in-chief, stated that he left the police station at 02.00 PM, after receiving the copy of chik FIR and general diary.
26. As mentioned earlier, the distance from the police station to place of incident is 10 kilometres, the time at which the Investigating Officer reached the spot, has thus not been proved by the prosecution. Further, P.W.-2, in his cross-examination, was not consistent regarding the manner of assault. In the first information report he stated that Lalji hurled a bomb, however, in the cross-examination he submitted that Lalji hurled two bombs. When he was shown the copy of first information report, he corrected himself. Whereas, P.W. 6 Ramdeo, gave an entirely different version that bombs were hurled by Bhagwat, Lalji, Kripal and Ganesh. In all four bombs were hurled according to that witness.
27. P.W.-2 and P.W.-3 had categorically stated that bombs were hurled at the chest of their father and he died on account of bomb injury but the medical version shows that there is no laceration or hole on the skin and and on internal examination, no pellets were found inside the body of the deceased.
28. Another striking feature of the case is the highly unnatural conduct of the alleged eye witnesses (P.W. 2 and P.W.3). It is really surprising that when the Investigating Officer visited the site and prepared Panchnama, neither P.W. 2 nor P.W. 3, who claimed to be eye-witnesses, were present at the spot. It is also surprising to note that a person, whose father is dead, would prefer to remain in his house when the Investigating Officer would come for investigation. Normally, in such circumstances, no family member will ever allow the body of close relative to remain lying on the ground and leave the place of incident and go to house and return only after the body leaves for mortuary.
29. Absence of P.W.-2 and P.W.-3 at the time of Panchayatnama and reaching the place of incident only after the body leaves for mortuary, creates a reasonable doubt about the prosecution story, that in fact they were actually present at the time of incident or not.
30. P.W.-2 and P.W.-3 are real brothers and P.W.-6 is their cousin. Thus, it is evident that these three eye witnesses are close relatives. It has to be borne in mind that the testimonies of related witnesses is required to be evaluated with care and caution. Scrutiny of the testimonies of P.W.-2, P.W-3 and P.W-6 shows that they are in contradiction with each other. We therefore, come to the conclusion that their testimonies are not worthy of credence and do not inspire confidence of this Court.
31. Additionally from the statement of P.W.-2, P.W-3 and P.W-6 and their cross-examinations, it is evident that the parties were involved in large number of criminal cases. It is true that enmity is double edged sword but there is reasonable doubt that there is possibility that accused persons have been implicated due to the long existing animosity between them. In Dalip Singh Vs. State of Punjab, AIR 1953 SC 364, the Supreme Court has observed that if there is personal enmity then there is tendency to drag any innocent person against whom the witness has a grudge. Para 26 of the said Judgment reads as under:-
"26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is tendency to draw in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."
32. In view of the above, the submission of the learned counsel for the appellants that due to the enmity, appellants have been implicated in the matter merits acceptance.
33. The next point argued before us relates to ante-timing of the F.I.R. As mentioned earlier, the incident is alleged to have occurred on 06.07.1982 at 11.00 AM and FIR was lodged on the same day at 12.15 PM by P.W.- 2. The distance of police station from the place of incident is 10 kilometres. The first circumstance, which raises doubt is in the inquest report, which was prepared on the same day. The Investigating Officer concerned has mentioned the name of only one accused Sri Bhagwat. No explanation was given by the prosecution about this discrepancy. The inquest report is supposed to have been prepared after the FIR is lodged and copy of FIR is available with the Investigating Officer and the team of police officials assisting the Investigating Officer, officer preparing the inquest report, are normally aware of the names of all the accused from the copy of FIR.
34. Another circumstance is that in the inquest prepared at the spot itself, the eye witnesses (P.W.-2, 3 and 6) were not present. No explanation was given by the prosecution about the absence of eye witnesses. Another circumstance equally important is that the Investigating Officer prepared the inquest report and other papers to dispatch the dead body for conducting post-mortem. The dead-body was dispatched through constable Satyadeo Prasad along with one B.C. Nath. No family member accompanied the body. During the cross-examination the I.O. categorically stated that he dispatched the dead-body at 04.15 PM. However, in the "challan-nash" (Ex Ka-6), the time of sending the dead body was not entered, even the time of receiving the information at police station as well the time of death was not recorded. However, it contained an endorsement that the body was received by Reserve Inspector on 07.07.1982 at 07.15 PM. No explanation has been given as to why the said details were not mentioned in challan-nash at the time of dispatch of body and the reason for delay in reaching the Reserved Police Line on 07.07.1982 at 07.15 PM. Further, there is also no explanation by the prosecution as to where the dead body was kept from the time it reached the Reserve Police Line till the time it was received at at the mortuary. Apart from it, the other person B.C Nath, (as per P.W-4, he is the chowkidar of the village and as per P.W-3 there is no chowkidar in the village) who accompanied the dead-body to Reserve Police Line/mortuary was not produced before the court by the prosecution for his examination. The unexplained delay in the post mortem also creates a serious doubt.
35. Additionally, with a further view to determine whether the F.I.R. 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 F.I.R., 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 F.I.R. 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 F.I.R. by the local Magistrate. As per the prosecution, the copy of FIR was sent through constable Radhey Shyam. However, in regard to the time and date it was received by the local Magistrate, there is no evidence; in fact prosecution had led no evidence at all in this behalf. The second external check equally important is the sending of the copy of the F.I.R. 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 absence of eye witnesses in the inquest proceedings; the absence of name of all the accused are indicative of the fact that the prosecution story was still in an embryonic stage and had not taken definite shape, till then, and that the F.I.R. came to be recorded later on after due deliberations and consultations and it was then ante-timed to give it the colour of a promptly lodged F.I.R. It may also be noticed here that P.W.-2, the informant, as stated earlier reached his house after the incident at 11.05 a.m, scribed the FIR and then cycled to the police station which is 10 km from the place of incident. It also raises a reasonable doubt about the whole prosecution story Thus, in our opinion, on account of the infirmities as noticed above, the F.I.R. 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 P.W-7 (I.O.).
36. In this regard, we may also refer to a judgment of the Hon'ble Supreme Court in the matter of Meharaj Singh Vs. State of U.P., reported in 1995 Cri.L.J. 457. The relevant paragraph of the said judgment is quoted below:
"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."
37. At this stage, we may also refer to the site plan (Ex-Ka-9). The site plan does not show the places were all the bombs were hurled. Apart from it, as per the opinion of the doctor there was no laceration or hole on the skin of the deceased nor any pellets were recovered from the internal examination. Thus, the ocular version is not supported by the clear medical opinion, which does not suggest any injury caused by country made bombs being hurled at the deceased.
38. Further, there is no explanation as to why the blood stained shirt of the deceased was not sent for chemical examination so as to ascertain that the cloth contained human blood. Absence of burnt rug pieces and explosive substance at the site, also make the prosecution story highly improbable.
39. The learned Trial Judge without considering the aforesaid material discrepancies, placed reliance upon the so called ocular version and recorded his findings. The trial Judge, even went to the extent of observing a factually incorrect opinion of the doctor that the death was caused due to shock and haemorrhage as a result of firearm injuries, whereas the doctor opined that " death due to shock and haemorrhage as a result of sustained injury " (Ex-Ka-9).
40. Taking cumulative effect of the circumstances and the testimony of the witnesses into consideration, we are of the view that prosecution has failed to bring true facts before the court. The incident is highly doubtful and it is clearly established from the record that the F.I.R. was ante-timed. The witnesses were inimical to the accused and they have given contrary statements on material points. The trial court, in our view, failed to appreciate the relevant circumstances and evidence on record. The appeal, therefore, deserves to be allowed.
41. The appeal is allowed. The conviction and sentence recorded by trial Court by judgement dated 27th September, 1983 in session trial no. 604 of 1982 is set aside. The accused-appellants are acquitted from the charges. The accused-appellants Lalji and Ram Kripal shall be set at liberty forthwith, if not required in any other case.
Order Date :- 27.2.2020
Ashish
(Vivek Varma, J.) ((Govind Mathur, C.J.)