Allahabad High Court
Mahavir Singh And Another vs State Of U.P. on 24 April, 2013
Author: Dharnidhar Jha
Bench: Dharnidhar Jha, Pankaj Naqvi
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved Death Reference No. 18 of 2007 State of U.P. Vs. 1. Mahavir Singh and 2. Jaipal Singh both sons of Late Ram Prasad resident of Village Kalvari, P.S. Chandpa District Hathras. ...... Respondents with Capital Case No. 3447 of 2007, 1. Mahavir Singh and 2. Jaipal Singh both sons of Late Ram Prasad resident of Village Kalvari, P.S. Chandpa District Hathras. .... Appellants Vs. State Of U.P. .... Respondent with Criminal Appeal No. 3449 of 2007 Lakhan Singh S/o Dharam Singh, resident of Village Kesargari, District Mathura. ... Appellant Vs. State Of U.P. ... Respondent with Criminal Appeal No. 3450 of 2007 1. Bachchu Singh 2. Lakhmi Chandra both sons of Late Pokhpal Singh 3. Raj Kumar S/o Jaipal Singh 4. Harvir Singh S/o Kundan Singh (both R/o village Kalwari PS-Chandapa, District-Hathras 5. Jogendra S/o Megh Singh and 6. Nahar Singh S/o Megh Singh (both R/o village Mathura at presently R/o Thedi Bagia, P.S. Etmaddaula, District-Agra). ... Appellants Vs. State Of U.P. ....Respondent Counsel for the appellants:-Sarva sri Gopal Swaroop Chaturvedi, Senior Advocate, Rajul Bhargwa, R.P.S Chauhan, S.B. Kochar, Sumit Gopal,Advoates. Fro the State of U.P :-Sri Akhilesh Singh, Government Advocate. For the Informant:- Sri Ravindra Sharma, Advocate. Present: Hon'ble Sri Justice Dharnidhar Jha Hon'ble Sri Justice Pankaj Naqvi Dharnidhar Jha, J. 1. The present death reference along with three connected criminal appeals arise out of Judgement dated 10.05.2007, passed by Fast Track Court-I, Hathras in Sessions Trial No. 977 of 1997, by which the two respondents and the appellants in the three connected appeals, were held guilty of committing offences under Sections 147, 148, 302/149, 323/149 & 307/149 IPC. While appellants Mahavir Singh and Jai Pal Singh were directed to be hanged by their necks till they were dead for their conviction under Section 302/149 IPC, they were also directed to suffer rigorous imprisonment for 2 years, 3 years, 1 year and 10 years, respectively for committing offences under Sections 147/148, 323/149 & 307/149 IPC respectively. The two appellants were also directed to pay fine of Rs.5000/- each for their conviction under Sections 307/149 IPC. 2. The reference was made by the learned Trial Judge for confirming the sentence of death under Section 366 Cr P C and the same set of convicts, preferred their own appeal as may appear from Crl. Appeal No. 3447 of 2007. The solitary appellant of Crl. Appeal No. 3449 of 2007, namely, Lakhan Singh was also found guilty and convicted under Sections 147, 148, 323/149, 307/149 & 302/149 IPC and was directed to suffer rigorous imprisonment for 2 years, 3 years, 1 year, 10 years and for life respectively for his conviction under the above respective counts. Appellant-Lakhan Singh was also directed to pay a sum of Rs.25,000/- as fine and in default of the same, was directed to suffer rigorous imprisonment for 25 months. As regards the six appellants of Crl. Appeal No. 3450 of 2007, they were also convicted and sentenced equally, as was the order in respect of appellant-Lakhan Singh. 3. We have heard the death reference and three connected appeals together and are disposing them of by this common Judgement: 4. Initially, there were ten accused persons named in the FIR, out of whom, three were described as 'Bhanjes' (sister's son) of appellant-Jai Pal Singh, out of whom, accused Jitendra @ Hitendra was adjudged juvenile and his case was sent for inquiry under the provisions of Juvenile Justice Act, leaving nine accused persons on trial. 5. The prosecution story was contained in Ex. ka-1, the written report filed by PW-1 Kumari Sunita. It was stated in it that a litigation in respect of the pathway and the gate was pending in some Court between the families of the informant and the accused persons. On 06.06.1993, at about 7.30 AM, three appellants, namely, Jai Pal Singh, Jitendra @ Hitendra (adjudged juvenile) and Lakhmi started demolishing the gate of the informant and simultaneously other appellants, i.e., Mahavir Singh, Bachchu Singh, Raj Kumar, Hakoo and the three Bhanjas (nephews) of Jai Pal Singh started fixing a 'darwaja' towards the gate of the informant. The uncle of the informant, namely, Madhav Singh (deceased), her father Dhuri Singh (deceased), her grand-father Mehtab Singh (injured and not examined) and her brother Vinod Kumar (deceased) forbade the above named appellants to fix the gate and affixing a 'darwaja' over there. All of them started hurling abuses, which was objected to by the prosecution party upon which Jai Pal Singh and others stated that the prosecution party would see the result of objection being raised by them. It was stated that appellant-Jai Pal Singh went back to his house and came back with appellant-Mahavir Singh and one of the 'bhanjas' of Jai Pal Singh, namely, Fauzi (who has been subsequently described as Lakhan Singh), both of whom were armed with guns. Bachchu Singh, Lakhan Singh, Raj Kumar, Jitendra @ Hitendra, Hakoo and two other 'bhanjas' of Jai Pal Singh, were all armed with country-made pistols. As soon as they came, Jai Pal Singh, Mahavir Singh, Jitendra Singh and Fauzi fired shots while other appellants started brick-batting. The informant alleged that the shot fired by Fauzi, hit her brother Vinod Kumar. Her grand-father Mehtab Singh and her aunt Nirmala Devi (both not examined), also received injuries from shots fired by Fauzi. The informant stated that she herself along with her uncle-Madhav Singh (deceased), father-Dhuri Singh (deceased), mother-Premwati, Bhabhi-Ramwati, sister-Rajbala ran up the stairs and went onto the roof-top and started brick-batting in self-defence, when appellants-Mahavir Singh, Lakhmi Singh, Bachchu, Jitendra @ Hitendra ( juvenile accused), Hakoo and bhanja of Jai Pal Singh, namely, Fauzi, came on to the roof-top of informant's house via their own house-top. Rest of the accused persons kept surrounding the house of the informant and also kept the villagers away by threatening them. Accused persons who had reached at the top of the house, started firing shots at the informant and others and also threw bricks. The informant made specific allegations and she stated that the shot fired by appellant-Mahavir Singh hit deceased Madhav Singh and that fired by Fauzi, hit Dhuri Singh, the father of the informant. Shots fired by others and the brick-batting by accused persons, caused injuries to the informant, Premwati (PW-1),Ramwati(PW-2) (not examined) and Rajbala (not examined). A co-villager Padmawati was also hit by pellets fired by the accused and she also got injured. 6. As appears from the evidence of PW-3, SI Pramod Shanker Shukla, who was the first Investigating Officer of the case, and was also the Officer-in-charge of Police Station Chandpa, that on 06.06.1993 in the morning, a message was received on the wireless set of the police station indicating that firing was going on at village Kalwari. PW-3 took a contingent of armed forces with him and arrived at the village along with SI Kailash Chand Gautam and Constable Babu Lal and others. He found that the condition of injured Dhuri Singh, Vinod Kumar, Madhav Singh, Mehtab Singh and others were very serious, out of whom the condition of three, namely, Madhav Singh, Dhuri Singh and Vinod Kumar was highly critical. He dispatched Madhav Singh, Dhuri Singh and Vinod Kumar for treatment to Bagla Civil Hospital, Hathras. He received the written report Ex. ka-1 of PW-1 Kumari Sunita D/o Dhuri Singh at the place of occurrence and he came back with the written report to police station and handed the same over to Head Moharrir, who, as per the evidence of PW-8, drew up FIR no. 59 in respect of Case Crime No. 81 of 1993 under Sections 302, 307, etc. IPC against accused Mahavir Singh and others. PW-8 had proved the original FIR, Ext. Ka-23. 7. PW-8, Head Moharrir Atar Singh stated that he made the necessary entries in respect of drawing up of the FIR in the general diary at entry no. 15 dated 06.06.1993 at 4.45 PM and prepared the copies of the same also. The general diary entry has been marked Ext. Ka-24. 8. PW-3 further stated that after institution of the case, he took up the investigation himself and had in his custody the copy of the FIR and that of the general diary and he recorded the statement of PW-8, Head Moharrir Atar Singh at the police station itself. He again came back to the place of occurrence with Constables Babu Lal and Indrajit and on his arrival, found two persons, namely, Jai Pal Singh and Mahavir Singh coming from behind the FCI godown and both were arrested by him and some weapons were recovered from them which were seized by preparing the seizure memo. He, thereafter, came to the place of occurrence and recorded the statement of informant Kumari Sunita and at her pointing, he also inspected the place of occurrence. He prepared the sketch map of the place of occurrence, which bore his signature also. The sketch map has been marked Ext. Ka-5. PW-3 stated that he had found 2 empty cartridges, which were seized by him by preparing seizure memo Ext. Ka-6. Besides, he found a country made pistol of 12 bore and 5 cartridges, which were mis-fired and seized them also and sent the same for examination to the Forensic Science Laboratory. He also found wads, etc. at the place of occurrence, which were recovered from of the houses of the deceased Dhuri Singh and Bhola @ Madhav Singh at 2 places. He seized the wads and the cartridges and prepared seizure memo Ex. Ka-7 in that behalf. PW-3 seized the blood-stained earth from places where injured Madhav Singh, Dhuri Singh and Vinod Kumar were lying and we find the same indicated in the site plan, as places denoted by letters B, C and E in the northern side of the map. The seizure memo in respect of seizure of the blood-stained earth was marked as Ex.ka-8. He also found brick-pieces and stone-pieces at the same roof-top and seized them also by preparing seizure memo Ext.ka-9. He recovered the gate, which was allegedly removed after demolishing the wall of the half-built room of the house of accused-Mahavir Singh and the same was handed over to accused Mahavir Singh. PW-3, thereafter, came back to the police station and recorded statements of the accused persons. While he was writing the case diary, he received news of death of deceased Madhav Singh and, thereafter, appears to have taken the Photographer to the place of occurrence for getting the place photographed. He, thereafter, copied the injury reports furnished by the doctor and after examining the injured, also recorded statements of witnesses along with those of the accused persons, who had themselves surrendered to the custody of the Court. He collected the post-mortem report of Madhav Singh and submitted charge-sheet No. 753 dated 18.06.1993 against the two appellants, namely, Mahavir Singh and Jai Pal Singh. In between, he also filed charge-sheet against appellants Bachchu Singh, Lakhmi, Raj Kumar and Harbir by submitting another charge-sheet. PW-3, thereafter, handed over the charge of the investigation to Circle Officer, PW-6 Gurumit Singh. 9. Circle Inspector Gurumit Singh (P.W.-6) stated that he took over the charge of investigation from PW-3 on 19.06.1993 and perused the statements recorded by PW-3 and, thereafter, inspected the place of occurrence also. He also recorded the statements of Constable Abhay Ram, Kumari Sunita (informant), Head Moharrir Atar Singh (PW-8), Constable Babu Lal, Smt. Premwati (PW-2), Home Guard Satyaveer Singh and SI G S Rana but, could not arrive at any conclusion as regards the investigation of the case and transferred the charge to CBCID as per the direction of the S.P. From the evidence in cross-examination of PW-6, Inspector Gurumit Singh, we find that there are certain facts stated by him, which entail serious doubt about his fairness. He was recording the steps in investigation in the case diary, which had never been officially issued to him. Not only that, his cross-examination at page 104 for bringing on record one of the previous statements of Kumari Sunita, was found out and out false and the Court had recorded that the fact which was put to him as part of the statement of Kumari Sunita as regards the genesis and manner of occurrence, was in fact not in the statement of PW-1, Kumari Sunita. The Court in order to record the conduct of PW-6 in making false statement on oath, extracted the whole statement of the informant recorded by him under Section 161 Cr.P.C. in the case diary. It was suggested to P.W.-6 that in order to falsely implicate the accused persons, he had distorted the facts by wrongly recording the statement of informant and it was further suggested to him that the written report which was earlier filed before the police, had been destroyed by him for being replaced by a new one so as to implicate the accused persons. We shall consider the above facts along with other facts at the appropriate stage of the present judgement. 10. In addition to P.W.-6 Inspector Gurmit Singh other officers, like, P.W.-9. S. I. Mahendra Singh Verma, P.W.-12 S.I. S.C. Pal, P.W.-13 S.I. Subedar Singh and P.W.-14, D.S.P.(C.B.C.I.D.)Prem Prakash also investigated the case in some part or the other. It was P.W.12, S.I. S.C. Pal, who submitted charge-sheet against the accused persons finally. 11. The defence of the appellants was suggested to P.W.-1, Kumari Sunita, which appears at page 63 of the paper book. It was virtually the facts of the counter version of the case. The defence suggested that, in fact, appellant-Mahavir Singh was making certain construction at his roof top and Anguri Devi, who happened to be his Bhabhi, was carrying the building materials up to the roof top when the three deceased of the present case, namely, Dhuri Singh, Bhola @ Madhav Singh and Vinod Kumar alonwith others came at the roof top of their own houses with guns and country made pistols and started firing shots on Mahavir Singh and others. The deceased of the counter version, namely, Anguri Devi shouted that the three deceased and others had come over to the roof and were proceeding towards the roof of Mahavir, when in self-defence Mahavir picked up his licenced gun and came on to his roof. But, by that time, the three deceased persons and others had already started firing shots, which was retaliated in self-defence by appellant Mahavir Singh in order to prevent the three deceased and others from crossing over to his roof from their own roofs. On account of firings made by the three deceased persons and others, Anguri Devi was hit and died there at the roof top and on account of pelting of stones in retaliation, appellants Mahavir Singh and Jaipal Singh also received injuries. Further defence suggestion was that some of the persons on the side of the informant descended inside the house of Mahavir Singh and assaulted others also and after bringing the police in their collusion, created a false story implicating the appellants. 12. In support of the charges, the prosecution examined as many as 14 witnesses, out of whom, as has already been noted, P.W.3, S.I. Pramod Shankar Shukla,P.W.-6 Circle Inspector Gurmit Singh, P.W.-9 S.I. (C.B.C.I.D.) Mhendra Singh Verma, P.W.-14, D.S.P. (C.B.C.I.D.) Prem Prakash and P.W. 13, Inspector Subedar Singh and P.W.-12 Inspector S.C.Pal had investigated the case in some parts or the other, out of whom P.W.-3 and P.W.12 had submitted two charge-sheets respectively: the first being against appellants Mahavir Singh and Jaipal Singh and the second by P.W.-12 being against the rest of the appellants. P.W.-8, S.I. Atar Singh on the relevant date, that's, on 06.06.1993 was posted in P.S. Chandapa as Head Moharir and he drew up F.I.R. No. 59 in connection with Case Crime No. 81 of 1993 on the basis of the written report Ext. Ka-1 of P.W.-1 and made entries of institution of the present case as also other cases, which were registered under the Arms Act against some of the appellants, like, Mahavir Singh and Jaipal Singh. P.W. 10, S.I. Kailash Chandra Gautam was posted as A.S.I. in Hathras Gate Police station on the day of occurrence, that's, 06.06.1993 and on having received a memo informing the police about the death of Bhola @ Madhav Singh, he reached Bagla Hospital to hold inquest upon the dead body and prepared the inquest report as Ext. Ka-27. 13. Out of the remaining witnesses, P.W.-1 was the informant of the case, namely, Km. Sunita who was, allegedly, injured with P.W.-2 her mother Premwati. P.W.-4, Dr. S. M. Gupta had conducted autopsy on the dead body of Bhola @ Madhav Singh, one of the three deceased in the present case, as also on the dead body of Anguri Devi, who was the Bhabhi of appellant-Mahavir and who as per the defence was the deceased as per counter version, having been killed by three deceased of the present case and others. P.W.-5, Dr. Dayanand Bharadwaj had conducted post-mortem examinations on the dead bodies of deceased Dhuri Singh and Vinod Kumar. P.W.-7 was another police officer, namely, S. I. Indal Singh, who had held inquests upon the dead bodies of Dhuri Singh and Vinod Kumar while being posted as A.S.I. in the Defence Colony Police Station, New Delhi. The inquest was held by P.W.-7 in All India Institute of Medical Sciences where the two deceased Vinod Kumar and Dhuri Singh had died. P.W.-11 Devendra Kumar Kesri was the Pharmacist in Bagla Police Station, Hathras and he stated that on 06.06.1993 while Dr. V. K. Agrawal was posted in the said hospital, he had examined the injuries of Dhuri Singh and Vinod Kumar (both deceased) and Smt. Nirmala, Smt. Padmawati, Km. Sunita (P.W.-1), Km. Rajbala, Smt. Ramwati and had issued medical reports in respect of their injuries which were also mentioned in the Police Medico Legal Case Register of Bagla Civil Hospital at serials No. 316, 317, 320, 321, 322, 323 and 324. P.W.-11 produced the carbon copies of the injury reports also, which as per him, had been prepared by Dr. V. K. Agrawal who had died before the trial had commenced and had testified that writings and signatures on Exts. Ka. 28 to 34 were those of Dr. V. K. Agrawal. P.W.-11 also deposed that on the same day, the said Dr. V. K. Agrawal had also examined Mehtab Singh and had issued injury certificate Ext. Ka.-35. 14. The defence had examined a solitary witness, namely, Smt. Renu and had, mainly, relied upon the admission of the prosecution witnesses. 15. After considering the evidence, both oral and documentary, the learned trial Judge had passed the impugned judgement and had sentenced the appellants in terms as was noticed by us in the very first paragraph of the present judgement. 16. Sri Gopal Swaroop Chaturvedi, learned Senior Advocate, took us through the evidence of two eye witnesses P.Ws. 1 and 2 as also the evidence of police witnesses and submitted that it was admitted that Anguri Devi had been killed in the same occurrence by the deceased and it also appears admitted that the two appellants Mahavir Singh and Jaipal Singh had also received some injuries in the same incident. But, the witnesses were denying that either Anguri Devi or Mahavir Singh or Jaipal Singh had been hit by any shots or other weapons, which were fired or used by the members of the prosecution party and thus, appear making false statements on some of the most material parts of the occurrence. It was contended that the evidence of two eye witnesses and the written report, Ext. Ka.-1 filed, allegedly, by P.W.-1 before the police, was suspect and it appears from the evidence of prosecution witnesses itself that for quite sometime no one was coming out to tell the police as to what had really happened and the written report was dictated either by the police or by someone else to falsely implicate the accused persons. Submission also was that the investigation was not only inept but was carried out only with a view to suppress the real story and to frame untrue facts to create a concrete case for prosecution so that the accused persons were convicted. The whole prosecution story was mysterious, as some of the facts which were alleged by the prosecution and was supported by its witnesses, do not appear true from the records of investigation. Submission also was that the genesis of the occurrence that the accused persons had demolished the gate of the informant and had created an opening in their own houses and wall so as to encroaching upon the land of the deceased, had not been established and the learned trial judge had wrongly recorded a finding that there was an order of stay restraining the accused persons from doing any act of construction or other work of the nature till further orders. Submission also was that no documentary evidence or order of court in support of the genesis of occurrence was produced as evidence in the case, but in spite of that the learned trial judge had extensively mentioned that there was a court proceeding in which some stay order had been obtained by the husband of P.W.-2 and father of P.W.-1, namely, Dhuri Singh restraining the accused persons from carrying out any construction or demolition. Submission also was that the findings of the court below was one sided and appeared that he was predetermined to pass the impugned judgement. 17. In response to the above submission, the learned Government Advocate and the learned counsel for the informant, have submitted that the learned trial judge has discussed in his judgement that there was an order passed in Original Suit No. 270 of 1993 restraining the accused persons from doing the act, which was done by them on the day of occurrence. It was further submitted that the genesis was proved and the demolished gate of the deceased was recovered from the house of appellant-Mahavir Singh, as per seizure memo Ext. Ka.-10. Submission also was that the Investigating Officer had found that the accused persons had broken their own walls to fix a gate. It was contended that the genesis of the occurrence was fully established. As regards the ante-dating of the FIR or filing of the written report subsequent to the investigation having been proceeded with and that too at the dictation of someone else, the contention was that both P.W.-1 and the first Investigating Officer P.W.-3 were very categorical when they stated that the report was written by P.W.-1 Sunita who handed the same over, at the place of occurrence, to P.W.-3. 18. The learned Government Advocate and the learned counsel appearing on behalf of the informant also submitted that it is true that there was no blood found at the main gate, where Vinod Kumar (deceased) had been shot and injured, possibly because he would have climbed-up the stairs to reach the roof top where he was found lying injured. Submission was that the evidence of the prosecution was not suspect rather the witnesses were trustworthy and it appears that the deceased, in the counter case, namely, Anguri Devi, might have been killed by the accused persons themselves to set up a strong defence in their favour. 19. The very genesis of occurrence was that a litigation was pending between the parties in some courts and, on that particular day, early in the morning, accused persons, namely, Jaipal, Jitendra @ Hitendra (Juvenile) and Lakhmi Singh started demolishing the gate of the informant while the other set of accused, like, appellants Mahavir Singh, Bachchu Singh, Rajkumar, Harvir Singh @ Hakku and three 'bhanjes' of Jaipal Singh (whose names were belatedly given by the informant as per P.W.-3 and P.W.-6, the two Investigating Officers on 19.06.1993 through another written application) started fixing a 'darwaja' towards the gate of the informant. P.W.-1, the informant, in her cross-examination, which appears at pages 54 and 57 of the paper book, stated that the accused persons had neither engaged any mason nor had arranged or stored any building material, like, bricks, sand or cement in order to closing her door or to affix their own 'darwaja' on the day of occurrence. 20. There is evidence of the same witness in cross-examination that the house of the informant, i.e., the house of deceased Dhuri Singh and that of her uncle Bola @ Madhav Singh alongwith those of appellants Mahavir Singh and Lakhmi Singh were situated in one row. It had further been stated by P.W.-1 that a road was passing in front of all the above houses of the prosecution party and the appellants, and it was so wide that even a car could run on it. On the other side of the road, was a pond and the road was also in front of the house of Bhola @ Madhav Singh (the deceased). This road was meeting the road, which went to Bijrauli and all the four houses had main entries opening on the same road. This evidence of P.W.1 appears at pages 56 of the paper books. 21. On perusal of the site plan Ext. Ka-5, we find that the above evidence of P.W.-1 is completely inconsonance with the description of the houses given by P.W.1 in her evidence in cross-examination. The house of deceased Dhuri Singh appears at the northern extremity of the site plan and to the south of that house of Dhuri Singh, that's, father of P.W.1, there was an open land in front of house of Madhav Singh and the gate which was attempted to be demolished by the accused persons, was fixed in the extended part of the open 'sahan' which gate has been described as 'AA'. Both houses of the informant and that of Madhav Singh appears having clear and separate entrances. Likewise, the house of appellant Mahavir Singh, which was a wall to wall construction with that of Madhav Singh, had also an entry to it, which exited on the main road which was situated west of the pond as stated by P.W.1. 22. We have already noted that P.W.-1 had stated that the accused persons had neither engaged any mason nor had stored any building material for fixing a gate. It further appears from the evidence of the first Investigating Officer that though he had mentioned in the site plan that the gate at 'AA' was being dislodged by the accused persons, which was objected to by the informant, but, the description of the fact in the index indicates that it had not been demolished and merely an attempt had been made. However, in his cross examination, P.W.3 admitted that he had not mentioned in the index of the site plan that there was any signs of fresh demolition of the gate at 'AA'. Similarly, the Investigating Officer (P.W. 3) had noted that he found that accused persons, like, Mahavir Singh, Raj Kumar, Harvir Singh @ Hakku and others had broken the wall at 'A' and affixed a new gate there. But, what appears from the site plan is that point 'A' was in the wall of a partially constructed room of the house of appellant Mahavir Singh and there was already a passage in the said house of Mahavir Singh, the existence of which, was admitted by P.W.1 in her evidence when she was describing the situations of the four houses situated side by side and in continuity with each other. In that view, it does not appear acceptable that the accused persons should be breaking the wall of their own house for fixing another gate of which there was no purpose as there was already a big entry to the house. In support of the statement in the site plan that the wall had been broken at 'A', there is no evidence orally adduced. 23. In the above view of the fact, it appears doubtful that any attempt was made by the accused persons to demolish the gate of the prosecution at 'AA' and it also appears unreasonable and unacceptable that the accused persons should affix another gate that too in the wall of a room of the house, which had already a very convenient passage situated between two rooms of the same house. 24. In view of the evidence available to us, we are of the opinion, that the very genesis appears not established beyond doubt. 25. The other aspect, which makes the genesis suspect, is the assertion of the informant in her written report that there was a litigation pending between her family members and the appellants in respect of a pathway and the gate in question. It is true that there might not be any mention further in the F.I.R. as to what was the nature of the litigation and what order had been passed, but in the evidence of P.Ws. 1 and 2 it had been stated that an order of stay had been passed by a competent civil court restraining the appellants from carrying out any construction work there. P.Ws. 1 and 2 had stated that certain constables had come to serve the order of the court upon the parties. This evidence appears at page 56 of the paper book in the evidence of P.W.-1 and at page 67 of the paper book in the evidence of P.W.-2. But, what we find is that no order of the Court was produced during the course of trial. The Investigating Officer (P.W.-3) was also stating that there was some order of stay, but he had not inspected the records nor had perused the order. The learned trial judge had, extensively, mentioned this fact in his judgement that the witnesses had stated about an order of stay restraining the appellants from carrying out any construction or demolition work. But, unless the order had been brought on record and had again been put to the accused as a circumstance against them for eliciting their explanation during their examination under Section 313 Cr.P.C., we wish that the court below had not utilised that evidence for sufficiently establishing the genesis of the manner of occurrence. 26. In our opinion, there was absolutely no evidence on record. Even if some police officers had ever gone to serve the order or the court's employee who had, as per the evidence of P.W.-2 at page 67 of the paper book, had come to serve the stay order on the parties, they should have been examined. P.W.-2 was also stating that commission had also been issued by the court and a survey knowing Commissioner had come as appears from the evidence of P.W.-2 in the same paragraph at page 67 of the paper book, who had measured the land also. If that was so, then it was desirable that both the court employee who had served the order and the Pleader Commissioner ought to have been examined so that there had been satisfactory evidence on record in support of the genesis of the occurrence. In absence of the evidence, as we have just pointed out, we are of the view that the genesis of occurrence had not been established. 27. P.W.-2 had stated in the last line at page 67 of the paper book that the accused persons were themselves creating a 'darwaja' in their house and had not engaged any mason. Even if, we accept the evidence of P.Ws. 1 and 2 that the accused persons had broken their own walls to create a 'darwaja' in the room at 'A', then we again do not find any evidence showing that the same was in any way going to obstruct the passage of the informant at 'AA' and that it could be creating an infringement upon their rights so as to giving rise to sufficient reason for protesting the opening. We have already doubted in absence of the description as to what was the length or height of the wall, which had been broken. The prosecution claims that the accused persons had, indeed, broken the wall to fix a 'darwaja' in the partially constructed room of the house of appellants Mahavir Singh which evidence besides being absurd also appears without any support from any other objective evidence. These are some of the reasons upon which we doubt the very genesis of the occurrence. 28. The other challenge to the trustworthiness of the witnesses and the credibility of the whole prosecution case was set up by the learned Senior Counsel appearing for the appellants by submitting that the prosecution appears guilty of suppressing the true facts and the manner in which the occurrence had taken place and the most important circumstance in that respect was that the written report Ext. Ka.-1 was lodged after many hours of the incident and quite after the death of Bhola @ Madhav Singh. 29. The attention of the Court was drawn in the above connection to the evidence of P.W.-1 at page 58 of the paper book where she had been cross-examined in the above respect. It was also suggested that, in fact, the written report was never written by P.W.-1 and there were probabilities that either the police, specially, P.W.-3 S.I. Pramod Shankar Shukla or one of the relatives of the informants had dictated the facts and had implicated the appellants falsely. In the above connection, a reference was made to the relevant parts of evidences of prosecution witnesses. As may appear from the written report and the evidence of P.W.-3, S.I. Pramod Shankar Shukla, when he had reached at the place of occurrence, he found Dhuri Singh, Vinod Kumar, Madhav Singh and other injured in very serious condition and he dispatched the three, namely, Madhav Singh, Dhuri Singh and Vinod Kumar (three deceased of the present case) with S.I. Kaushal Chandra (not examined) to Bagala Civil Hospital. P.W.-3 had stayed at the place of occurrence after having dispatched the injured to the hospital, where P.W.-1 handed over to him Ext. Ka.-1, her written report. The time of receipt of the written report has not been stated by any witness. But, P.W.-8, S.I. Atar Singh who was the Head Moharrir in Police Station, Chandpa on 06.06.1993 has stated that P.W.-3 came to the police station and handed over the written report to him and on that basis he drew up the F.I.R. of the case, Ext. Ka.-23 at 8.45 a.m. 30. We find from the column of the F.I.R. indicating the distance and direction of the place of occurrence from the police station, that's, column no. 2 that the distance between the place of occurrence and the police station was 8 kilometres and if the written report had been handed over to P.W.-3 as per the evidence of P.Ws. 1 and 3 and other witnesses which was lastly delivered by P.W.-3 to P.W.8, Head Moharrir, Atar Singh for drawing up the F.I.R. and making the entries in the general diary and other records, then it must be handed over quite sometimes before 8.45-a.m. and, as such, one may infer that the report had been written quite sometimes before the drawl of the F.I.R. at 8.45 a.m. on 06.06.1993. But, what we find is that the prosecution evidence itself indicates that the above claim of the prosecution regarding lodging of the report by handing the same over to P.W.-3 at the place of occurrence is out and out a fabricated and false evidence. The first circumstance is that neither P.W.-1 nor P.W.-3 had given any definite time as to when the written report was written by P.W.-1 and handed over to P.W.-3 at the place of occurrence. P.W.-1 had stated in her evidence at page 58 of the paper book that she had written the report after one hour of the occurrence and in the next line she was again correcting herself by pointing out to the court that she had scribed the written report just after 15-20 minutes of the occurrence. If it could be so, then the written report could have been written by 7.45 a.m. by P.W.-1 and should have been presented around that time on 06.06.1993 to P.W.-3. But there are many circumstances which simply do not allow this Court to draw the above inference and to uphold the prosecution claim in that regard that the report was, indeed, lodged within 15-20 minutes or even within an hour of the occurrence. 31. Some of the evidences are coming from the prosecution witnesses themselves. P.W.-10, S.I. Kailash Chandra Gautam was posted on 06.06.1993 in Hathras Gate Police Station within whose jurisdiction, the Bagla Hospital was situated. He was the Sub-Inspector of that Police station there and he stated that on 06.06.1993, he received a memo from Bagla Hospital informing the police that Bhola @ Madhav Singh had died there and the inquest had to be held. Accordingly, P.W.-10 alongwith constables Subedar Singh and Hira Singh went to Bagla Hospital, Hathras and found the dead body of deceased Bhola @ Madhav Singh lying in the verandah of the emergency ward of the hospital. P.W.10 held inquest upon the same after reaching the hospital at 10.00am and concluded the proceedings by 11.45 am. by associating five witnesses to the inquest proceedings. The other fact which had been stated by P.W.-10 relates to the position of the dead body and the injuries which were found by him on it. We are not for, the present discussion, concerned about that aspect of his evidence. What concerns us is that P.W.-10 had stated that the memorandum of communication, which was received by the police station or by P.W.-10 from Bagla Hospital, Hathras was dated 06.06.1993 and bore 9.20 am. as the time of sending the communication. Thus, it is clear that by 9.20 am, deceased Bhola @ Madhav Singh had died in the emergency ward of Bagla Hospital, Hathras. It is also, evidently clear from the evidence of P.W.-3, S. I. Pramod Shankar Shukla, who reached the place of occurrence first after receiving an information on the wireless set of his police station Chandpa that after he had sent injured Madhav Singh, Dhuri Singh, Vinod Kumar to the above hospital, only then could he receive the written report from P.W.-1. As per the evidence of P.W.-3, the written report was received by him after the three injured who were alive, had been dispatched, to the hospital. P.W.-1, Km. Sunita, the informant of the case, had stated the fact which is completely contrary to the evidence of P.W.-3. She had stated at the above noted page 58 of the paper book that when she was scribing Ext.Ka.-1, the written report, the three injured persons were already there at the spot and after she had written the report, the police had taken them away which indicated that the three injured persons had been removed from the place of occurrence for being shifted to the hospital only sometimes after the written report was scripted by P.W.-1. But, one important fact, which had been mentioned in the written report makes it utterly unacceptable that the written report could have been written only after 15-20 minutes of the occurrence or prior to shifting of the three injured, that's, the three deceased of the case to hospital. It is the statement appearing in the written report which reads that Bhola @ Madhav Singh had died while being shifted to the hospital. 32. The learned trial judge had observed that the informant was a young girl of 15-16 years and she was a rural child, who could not understand the implications of making the above statement, especially, when her mental condition was so shattered on account of the occurrence. These facts had been discussed by the learned trial judge in paragraph 38 and onwards of the judgement. It had further been noted in paragraph 41 of the judgement that the F.I.R. is not a substantive piece of evidence and it could be used only for contradicting or corroborating the maker of document. But, what we want to point out is that in spite of the written report not being a substantive piece of evidence, it is the most potent weapon in the hands of the defence to point out to the court as to what was the basic prosecution case and what improvement had been made by the prosecution while adducing evidence from the original story which was contained in the F.I.R. In 1994 (5) Supreme Court Cases 188 Mehraj Singh Vs. State of U.P. it was observed by the Supreme Court as under: " 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 eye witnesses, 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." 33. As such, in our considered view, the learned trial Judge was simply overlooking the importance of the F.I.R., specially, when there was a serious challenge set up against its veracity and genuineness both. One fact upon which we doubt the claim of the prosecution about its genuineness is that it was never lodged promptly and prior to 9.20 am on 06.06.1993 as emerges from two evidences. P.W. 10, S.I. Kailas Chandra Gautam had stated that he received a communication from Bagla Hospital, Hathras on 06.06.1993 which was bearing time of its dispatch as 9.20 a.m., informing that the deceased Bhola @ Madhav Singh had died in the hospital. Thus, it is clear that Bhola @ Madhav Singh had not died while he was on way to the hospital. But, in spite of that, what had been mentioned in the written report almost at its end, was that while being shifted to hospital, the uncle of the informant, namely, Bhola @ Madhav Singh breathed his last. This appears at page 10 of the paper book. Thus, this line which had been recited in the written report, clearly, indicates that the report must have been written sometimes after 9.20am on 06.06.1993. It further indicates that the evidence of P.W.-1 that the injured persons were shifted to the hospital only after she had finished writing the written report as appears at page 58 of the paper books, was also not true. P.W.-1 was making a completely false statement in her cross-examination as regards one of the most important aspects of the prosecution case regarding ante-dating of the F.I.R.. Further, the evidence showing that the written report would have been written sometimes after the injured had been shifted to the hospital, comes from one of the witnesses of the prosecution, that's, P.W.-3 S.I. Pramod Shankar Shukla. He was the only police officer, who had reached the place of occurrence on 06.06.1993 and he had stated, which evidence had not been challenged, that he found injured Bhola @ Madhav Singh, Dhuri Singh and Vinod Kumar, all of whom subsequently died, in a very precarious condition and sent them to Bagla Hospital immediately with S.I. Kailas Chandra Gautam and thereafter, the written report was handed over to him by P.W.-1. P.W.-3 had further stated, in the above connection at page 80 of the paper book, that when he reached at village Kalvari, the place of occurrence, he did only two things; he sent the three injured for treatment to Bagla Hospital, Hathras and received the written report from P.W.-1 and further that till the time, he had received the written report, there was no information to him that any of the injured had died. If this was what P.W.-3 was stating then there could not be any other inference than that the written report was brought into existence only after Bhola @ Madhav Singh had died in Bagla Hospital, Hathras. As such, the whole claim of the prosecution that it was a report which was lodged promptly or at the point of time as claimed by it appears out and out a false claim and the evidence in that behalf could not be accepted. 34. In view of the above evidence and the inferences arising there from, the defence suggestion to P.W.-3 to page 58 that the report was written quite sometimes after the injured persons had been dispatched to the hospital, assumes significance. 35. The next question which requires to be considered by this Court is as to whether P.W.-1, indeed, had scribed the written report or was there any probability that the same could have been created or dictated to her by someone else. It has already been noted that as per the prosecution case and evidence it was P.W.-1 who had written the report but when she was cross-examined on the above fact at the same page 58 and onwards and at page 60 of the paper book, she stated that she had written the report only after 15-20 minutes of the occurrence and only when some persons who were present at the scene of occurrence reminded her or asked her to at least write down the report. So, she sat down to write the report. P.W.-1 had, candidly, admitted that among persons reminding her to write down the report was one of her 'Phupha's' (husband of father's sister). P.W.-1 was cross-examined further in the above connection and she admitted that, indeed, it was her 'Phupha' who had asked her to write down the report as appears from page 60 of the paper book. But, she was stating that she did not remember the name of that person. However, she stated that the said 'phupha' of P.W.-1 had arrived earlier to the date of occurrence but when or on which date, she could not say. She also could not say as to at whose place the said 'phupha' of P.W.-1 had stayed nor she could say as to which place he belonged to. But, from cross-examination of P.W.-1 at page 60, we have an inference coming out that the informant was concealing one of the most important facts relating to scribing of the written report. If she had herself written the report, she could have very well stated that she had done it out of her own will without being coaxed or reminded by anyone to do so. while we were considering the evidence of P.W.-1, we found that there was something, which P.W.-1 was concealing and it was probably because the facts which were appearing in the written report or the names which were cited as accused persons which were the products of some minds other than that of the informant. We find a possibility or a probability emerging from the evidence of P.W.-1, from her cross-examination-evidence that probably some resourceful person, may be, her 'phupha' whose name she was concealing alongwith his place of residence, was an expert in drawing the reports of cognizable cases that she was doing it at his dictation. 36. The learned trial judge has observed that the informant had not a tranquil mind and a composed disposition so as to allowing her to do every thing at the right time and rightly. We also feel that it could never have been possible for a girl of 15-16 years who had herself being injured and had lost her father, uncle and brother to say, as she so elaborately stated the facts by specifically alleging different parts of overtacts to persons and even assigned the roles of firing shots as a result of which so many persons were injured. We believe that the written report, Ext. Ka.-1 was written by someone else and definitely much, much after 9.20 am. on 06.06.1993. One of the most important aspects in the above connection, which we found from the prosecution evidence was coming from P.W.-3, the first Investigating Officer, who was stating that he had mentioned in Case Diary No.1-A dated 06.06.1993 that he had dispatched the injured with S.I. Kailash Chandra Gautam for treatment, who came and handed over to him the reports of injured Dhuri Singh, Vinod and Nirmala Devi and further stated that injured Bhola @ Madhav had died in Bagla Hospital, Hathras and his dead body was lying there. P.W.-3 had stated the above facts at page 80 of the paper book and had further stated that he had not mentioned the time when Case Diary No. 1-A was started to be written and was closed after completing it. The other fact which he had stated at the same page, was that he after having received the written report of P.W.-1, immediately went to the police station and ensured that the F.I.R. was instituted under the relevant sections of the offences. But, what was curious about the statement of P.W.-3, was that he was stating at page 76 of his deposition that he had come to village Kalvari and dispatched the three injured to the hospital and had also received the written report of P.W.-1., but he did not read it. 37. We simply wonder as to how any police officer, who could be conscious and sensitive and who was exhibiting promptitude in-action could receive a report of as serious an occurrence as the present one should go to the police station without even having a glance of it and get the case instituted on that basis. He was definitely knowing the contents of the written report and, as such, he was making the statement that he had not read it. It indicates sufficiently that the defence suggestion to P.W.-3 at page 80 of the paper book that he had not received the written report at the place of occurrence and had rather subsequently, obtained it after himself dictating it may not be meriting dismissal and may be suggesting the probability as to how the written report had been brought out collusively. Thus, what we find from the discussion of evidence of witnesses of the prosecution is that the claim of the prosecution that the written report was lodged just after 15-20 minutes of the occurrence or before 8.45 am. on 06.06.1993, was not only incorrect but was false. It was created only after 9.20 am. on 06.06.1993 and there was a probability that P.W.-1 had not herself written it rather the same was dictated either by her 'fufa' or possibly by P.W.-3, S.I. Pramod Shankar Shukla. 38. In view of our above findings, which emerge from the evidence of prosecution witnesses, the case suffers, in our opinion, with the most important defect of creating the very basis of the prosecution case which might not be containing the true description of the incident. The whole exercise of the prosecution appears to suppress the real manner of occurrence and the facts relating thereto. 39. The other circumstance as regards the suppression of the true facts relating to the occurrence and its manner also emerges from the very prosecution story. P.W.-1 is the sister of deceased Vinod Kumar and P.W.-2 is his mother as per the written report and the evidence. The two witnesses P.Ws. 1 and 2 stated that when the accused persons started demolishing the gate of their house, they were forbidden to do so, upon which appellants Mahavir Singh and Jaipal Singh hurled abuses upon the family members of the two witnesses, like, the three deceased and Mehtab Singh and went inside their own houses and came again with country made guns and country made pistols. Appellants Mahavir Singh, Jaipal Singh and Fauji @ Lakhan were armed with guns, while the remaining appellants were armed with regular guns whereas the other accused persons were armed with guns and country made pistols and no sooner had they appeared at the scene of occurrence, that's, at the gate of the informant, than they started firing shots from their respective weapons and Fauji @ Lakhan fired at Vinod Kumar. P.W.-1 had stated this fact in her evidence at page 54 of the paper book and during her cross-examination on this fact at page 62 of the paper book, she stated that Vinod Kumar had been hit and injured there at the gate. What we understand from the above lines, which appear at page 62 of the paper book, is that deceased Vinod Kumar was never hit or injured at the roof of the house. This inference gets support from the evidence of P.W.-2 Smt. Premwati during her cross-examination. P.W.-2 stated that the shot, which was fired from a distance of 10-15 steps, had hit Vinod Kumar and he had fallen down and further that her husband and 'dever',that's, Bhola @ Madhav Singh did not lift Vinod Kumar from there and P.W.-2 and others rushed upstairs on to the roof top out of fright. While so rushing, none of them who were present there, stated that they should lift and take away Vinod Kumar also. This evidence of P.Ws. 1 and 2, leaves no manner to doubt that Vinod Kumar had ever been at the roof-top of house, at any moment of time rather the evidence of P.W.-2 and also of P.W.-1 leads to the conclusion that Vinod Kumar after being injured, remained lying at the gate on the ground where he and others had assembled to oppose the demolition of the gate. As such, there could be a natural inference that due to injuries, which were caused to Vinod Kumar, blood must have fallen there and must have been found by P.W.-3, who had inspected the place of occurrence and prepared the site plan. P.W.-3 did not state that he found any trace of blood at place 'AA' or anywhere around it rather the evidence of P.W.-3, as we have already noted, was that he found the three deceased in a highly injured condition at the roof-top of the house and as may appear from the site plan, deceased Vinod Kumar was found lying in a pool of blood at place 'V'. P.W.-3, we have already noted, had stated that he brought the three injured and other persons down the roof-top of the house and sent them to hospital for treatment. The evidence of prosecution witnesses, that's, P.Ws. 1, 2 and 3 clearly negates its very basic case as regards the manner and place of occurrence of first instance regarding the demolition of the gate by the accused persons and the same being objected to on which the accused persons came and fired at Vinod Kumar and injured him at the gate. This is one of the most vital deficiencies in the prosecution case as it clearly indicates that not only the witnesses were making false statement on one of the material parts of its case rather they were probably doing so in order to suppress the real manner of occurrence in which it had taken place. 40. The other aspect on suppression of facts and making false statements also emerges from the evidence of prosecution witnesses when they were purposely making statements either showing their ignorance towards the situation of the house of one Padmawati, a co-villager, who was also hit by pellets fired during the course of the incident. The very statement of the informant-Sunita (P.W.-1) indicates that she was not ready to make a true discloser even of the situation of houses including her own house. P.W.-1 had stated, as may appear form her deposition at page 56 of the paper books, that she cannot say as to whether her house was situated at the eastern extremity of the village and that there were only 2-4 houses before her house to its east and the whole village was in front of her building. During that course, she described the situation of houses of deceased Bhola @ Madhav Singh and those of the accused persons and was stating that the houses were facing east and just in front of those houses, was situated the road which was going towards Gajraula and further east of the road was a pond. This evidence, we have already discussed, while discussing the genesis part of the occurrence. While describing the situation of the houses, P.W-1 was not stating categorically that her house was facing east rather she was stating that sun always rises in front of her house and she further stated that in the straight right hand direction of her house, that's, to the south of her house was the house of Padmawati and that could be accessed by foot in five minutes. The situation of the house of Padmawati, which emerges from the reading of the evidence, is that the house of Padmawati was situated south of the houses of the informant and the accused persons, which houses were in one cluster and those were wall to wall constructions as appears from their description in the site plan as well. P.W.-3, the first Investigating Officer, S.I. Prem Shankar Shukla, during his cross-examination by the defence appears knowing on the day of occurrence itself as there were clear statements coming from witnesses that the said Padmawati had also been hit in the course of the same transaction. But, P.W.-3 stated that he did not find out as to in which direction or where the house of the said Padmawati was located, specially, if her house was located to the south of the house of P.W.-1, Sunita. P.W.-3 stated that the house of Kumari Sunita was situated north to the house of appellant Mahavir Singh. P.W.-9 Inspector, Mahendra Singh of CBCID had taken over the investigation from the second I.O. P.W-6 on 15.07.1993 and he stated that during investigation, he found that a lady named Padmawati, whose house was situated away from the place of occurrence, had also been injured and he perused her statement also. He thereafter inspected the place of occurrence himself with the sector officer and found that the house of Padmawati was situated to south of the place of occurrence. The place of occurrence, which had been described by the witnesses and P.W.-3, the first I.O. indicates that the deceased had been hit and injured at the roof top of the house of deceased Dhuri Singh. The evidence of P.Ws. 1 and 2 indicated that the accused persons had come at the top of the house of Mahavir Singh, whose house was at the same height at the roof-top with that of deceased Bhola @ Madhav Singh and the firing had been resorted to by the accused persons from the roof-top of the house of Mahavir Singh and Madhav Singh. Thus, what appears from the evidence of witnesses is that the accused persons were facing north and were firing in that direction at the prosecution party who were standing north to them and as such, all shots which could have been fired by the accused persons must have gone in the north direction. This was the reason that the three deceased, namely, Bhola @ Madhav Singh and Dhuri Singh and Vinod Kumar were found lying injured at places 'B', 'C' and 'V' on the roof of the house of P.W.-1. Not only that the brick and stone pieces which were pelted allegedly by the accused persons, were also found on the northern part of the house of Dhuri Singh which had been shown by marks '+'. 41. It is admitted that the prosecution party also brick-batted in self-defence and the Investigating Officer had found pieces of bricks on the southern part of the roof of Bhola @ Madhav Singh 's house which was contiguous north to the roof top of the house of Mahavir. It had emerged from the evidence and it is not denied that the house of Padmawati was situated south of the houses of the informant and accused persons, and probably it was located somewhere south of the road passing in front of the houses of the informant and the accused, and was turning to right to go towards Bijrauli. 42. What we find from the evidence of P.W.-9, the third Investigating Officer, namely, Inspector Mahendra Singh Verma is that during inspection of the place of occurrence made by him, he found that the houses of the deceased Madhav Singh and Dhuri Singh were located in the north of the house of Padmawati. P.W.9 further found that houses of Mahavir Singh was situated south of the houses of Madhav Singh and Dhuri Singh and it was possible that shots could have been fired from the roof-top of Mahavir Singh's house at any one standing in the north. Likewise, any shot could be fired towards south from the roof-top of house of deceased Madhav Singh and Dhuri Singh and, as such, the inference could be that Padmawadi could have been hit only by a shot, which could have been fired from the top of the house belonging to the deceased. This probability, indicated by P.W.9 after inspecting the place of occurrence fits in the evidence of the prosecution and defence version also as there is no denial that the prosecution party had also indulged in brick batting. Both P.Ws. 1 and 2 were denying that Padmawati was hit by any shot fired by any one on their side appears a rank concealment of a fact which could have indicated that the prosecution party had also indulged into firing shots, which may be indicated by the discussion of evidence made hereinafter. 43. The defence was that Anguri Devi, Bhabhi of appellant Mahavir Singh was taking the building material atop the house of Mahavir Singh who was to lay down the bricks at the roof to his house. P.W.1, the informant of the case, had admitted that the house of appellant Mahavir Singh was partially built and the ceiling of one of the rooms was yet to be completed, this evidence has come from P.W.1 at page 58 of the paper book. 44. P.W.2, Premwati had stated in her evidence that the accused persons were breaking their own 'darwaja' and had not engaged any mason or labour. Thus, it may give rise to an inference that some work of construction or demolition was going on in the house of accused Mahavir Singh. Both P.Ws. 1 and 2 had admitted that on the same day Anguri Devi, 'Bhabhi' of the deceased had died on account of being hit by gun shot. P.W.-1, admitted this fact at page 62 of the paper book but stated as to when she was hit by the gun shot, was not known to her, rather she came to know about it after some time of the incident that Anguri Devi had died of gun shot. On being further pursued in cross-examination, she stated that she cannot say whether she learnt about her death only after five or ten minutes of the incident. But,she stated that the children of the locality were giving out that Anguri Devi had been killed. She further stated that Anguri Devi was not shot at the top of the house. P.W.2 Smt. Premwati, the mother of P.W.1, was more categorical in admitting that Anguri Devi had died in the course of same transaction and she had learnt about it in the hospital. This evidence of P.W.2 appears at the foot of page 69 of the paper book, where she further stated that she did not know whether the police had seen the dead body of Anguri Devi. She had not gone herself to see her. P.W.2 further admitted that the case for the murder of Anguri Devi was pending in the same court and in that case Mohan Singh, Ram Narain, Satyaveer alias Gandhi, Indraveer alias Nehru and others had falsely been implicated as accused. 45. D.W.1, namely, Renu who happened to be the daughter of Raghuvir Singh, had stated that she had come on that day to her father's house and on 06.06.1993 at about 7-7.30 A.M. her uncle appellant-Mahavir Singh was carrying out some construction work in his house at the roof-top and that her aunt Anguri Devi was also there at the top of the house. When the deceased and others came there armed with guns and started abusing as also started pressurizing and threatening and fired shots as a result of which Anguri Devi was hit and killed. It had not been denied by any of the witnesses that she was not present at the roof top rather P.W.2 had stated that she learnt that Anguri Devi died in the course of same incident. The witnesses had not stated as to whose shots from their side had hit Anguri Devi or was there anybody else whose shot had hit deceased Anguri Devi, the Bhabhi of appellant-Mahavir Singh and Jaipal Singh. Not only that, while speaking about the firings made by the accused persons, it was stated by P.W.2 at page 69 that it was the roof top of Mahavir's house that the accused persons had fired shots from but she could not say as to what was the number of shots, which were fired and during that course a shot fired from the roof top of Mahavir's house hit Padmawati and in the similar fashion Madhav Singh and Dhuri Singh were also hit by shots fired from Mahavir's house. She further stated that a shot fired from the roof top of Mahavir's house also injured appellant Jaipal Singh. Thus, appellant Jaipal Singh was injured also gets admitted from the evidence of P.W.2 at page 69. But the explanation appears patently false in as much as the evidence of P.W.-9, Inspector Mahendra Singh Verma and the situations of the houses described by P.W.-1 in her evidence leaves no manner of doubt that Padmawati could be hit only by a shot fired from the roof-top of the prosecution's house and, likewise, Anguri Devi and Jaipal could also have been injured from shots fired from the roof top of the house of Dhuri Singh and Madhav Singh. The evidence of witnesses regarding the manner in which Padmawati got injured or Anguri Devi was killed appears out and out false and indicates further that the witnesses were telling lies to the Court on one of the most important aspects of the prosecution case. This appears more prominently appearing from the prosecution evidence both of P.Ws. 1 and 2, who had stated that none of the deceased nor any other members of their side were armed with a gun or even had picked up a lathi or danda. P.W.-1, had stated the above facts at page 61 of the paper book, whereas P.W.-2 had stated the above fact at page 68 of the paper book. The above line of evidence, clearly, indicates that the witnesses were not ready to come out cleanly on the manner of occurrence. 46. As regards the allegations made in the F.I.R. as to the manner of occurrence, P.W.-1 stated at page 61 of the paper book that she could not say as to who among the accused persons was having a single barrel gun or a DBBL gun. P.W.-1 further stated in her evidence as appears from page 61 of the paper book that the accused persons immediately came on to the roof top following the informant and others and she could not say as to who among the accused had come first at the roof-top. She stated that all of them came together. Though, it was stated in her written report that she herself and her family members, like, her uncle-Madhav Singh, father-Dhuri Singh, mother-Premwati (P.W.-2) Bhabhi-Ramwati and sister-Rajwala started brick batting in self-defence from the roof-top, but in her evidence in court she showed her ignorance as to whether any one from her side had, indeed, thrown bricks or stones at the accused persons and stated that, in fact, as soon as the accused persons had come, they started firing shots and that, at that particular time, the ceiling of Mahavir Singh's house had not been covered appropriately and had not been fully constructed. The accused persons reached at the top through the stares and started firing shots. They fired from the part of the ceiling top which was behind the stare-case of the house of Mahavir Singh and further fired after coming on to the roof of Mahavir's house. But, P.W.-1 could not say as to how many shots were fired by the accused persons and she further stated that some of the shots were fired blank and some were fired at some targets. P.W.-1 stated that the shots, which were fired from the ceiling of Madhav Singh had hit and injured persons on her side. Some accused persons were firing from the ceiling of Mahabir Singh and some from that of Madhav Singh. But, she again could not say as to which of the accused was on either of the two ceilings and further as to who had fired the shots from Madhav's ceiling, was also not in her memory. So far as P.W.-2 is concerned, she also stated that the firing of shots started from ceiling of Madhav Singh's house but she could not say as to what was the number of shots fired by the accused. She stated that the shots fired from Mahavir Singh's ceiling had hit the Jatava Lady, Padmawati. 47. It is, evidently, clear from the evidence of two witnesses that the accused persons were targeting the three deceased and others while firing shots and, as such, were definitely firing in north direction and, as such, the evidence of P.W.-2 that Padmawati was also injured by a shot fired from Mahavir's ceiling is patently false. The evidence of two witnesses on the manner of occurrence also does not inspire confidence, especially, when Vinod Kumar (deceased) was found lying with two injured Dhuri Singh and Bhola @ Madhav Singh at the same roof top. 48. It was contended by the prosecution that it could be a possibility that Vinod Kumar had been hit on the ground but had scaled the stares and thereafter had fallen on the ceiling. This submission is, completely, contrary to the evidence of witnesses available on record. Both the witnesses and, especially, the mother of Vinod Kumar, P.W.-2 had stated that while they were running up the stares, they left Vinod Kumar at the same place near the main gate of the premises and no one ever attempted even to lift him or asked the other to do so. In our opinion, the narration of the witnesses on the manner of occurrence is completely distorted. 49. It was not the end of the matter that the public witnesses were manipulating their statements by concealing the true facts in respect of the occurrence. There are sufficient reasons to infer that even the F.I.R. could have been changed and for that purpose the volume of the F.I.R. which was being used by the police station Chandpa was found devoid of pages no. 36 to 39. It had been admitted by P.W.-8, S.I. Atar Singh, who had drawn up the F.I.R. of the case that in the original book of the general diary it was mentioned in entry no. 24 dated 06.06.1993 at 12.10 am that pages no. 36 to 39 of the book were missing. P.W.-8 stated that he had drawn up the F.I.R. of the case at page no. 40, as the previous four pages of the volume were missing as stated above. Not only that, there appears some manipulation made in the general diary entry also, by which the name of an accused was added in general diary entry no. 30 and facts were also written in the same entry no. 30 in carbon-print by hand. The above facts of missing of pages no. 36 to 39 from the general diary was also admitted by P.W.-3 and it was suggested to him that it was done at his instance. 50. In addition to the above, what we find is that P.W.-3 had not mentioned any time as to when he had taken up or performed any steps in investigation. He was cross-examined to the above lapse in investigation by defence and he stated that he had, after receiving the wireless message regarding the incident of firing going on at village Kalwari, carried out all steps in investigations in one continuity. It is, apparently, clear from the evidence of P.W.-3 that he had investigated the case from 06.06.1993 and was divested of it on 19.06.1993 and, as such, it could not be accepted that he could have conducted the investigation from 06.06.1993 to 19.06.1993 in one case diary only on one date. It is already established from his own evidence that he remained in-charge of the investigation for 13 days and as such, he must have written as many numbers of case diaries. But, he did not point out any date or time in respect of any steps taken by him towards the investigation of the case or in respect of the part of the investigation completed by him by any time on a particular date. The worst was in the case of the second I.O., P.W.-6 Inspector-Gurmit Singh of the C.B.C.I.D., who had taken over the investigation from S.I. Pramod Shankar Shukla (P.W.-3). He had admitted in his cross-examination by defence that the case diary volume no. 14508 had been issued to him by S. P., Aligarh and a certificate was appended to it by the S.P., Aligarh that the volume contained 200 duplicate pages with his signatures dated 19.06.1993 and he conducted investigation of the present case, i.e., Case Crime No. 81 of 1993 and the counter Case vide Case Crime No. 81A of 1993. But, what appears from the evidence of P.W.-6, is that inspite of being issued Volume no. 14508 of Case Diary by S. P., Aligarh with a valid certificate regarding the pages of volumn on 19.06.1993, he had used unauthorised case diary also in submitting different case diaries in the two cases, i.e., the present case and the counter case. Not only that, P.W.-6 was making certain statements in favour of the prosecution, when he was stating that Kumari Sunita had stated to him as to how the occurrence had initiated, how it had proceeded and who were injured by which of the accused persons. P.W.-6 stated that the above details were duly stated by P.W.-1. But, the Court was verifying the above statements of P.W.-6 by looking to the case diary and was, thereafter, recording, as may appear from page 104 of the paper book, that the above statement was not in the statement of Kumari Sunita recorded under Section 161 Cr.P.C. The court, as such, copied the whole statements of P.W.-1 Kumari Sunita and held that the witness P.W.-6 was making false statement. 51. Section 172 of the Cr.P.C. speaks about the maintenance of a diary as regards the proceedings in investigating a criminal case. The provision reads as under: "172. Diary of proceedings in investigation- (1) Every police officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation. [(1A) The statements of witnesses recorded during the course of investigation under section 161 shall be inserted in the case diary.] (1B) The diary referred to in sub-section (1) shall be a volume and duly paginated.] (2)Any Criminal Court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial. (3) Neither the accused nor his agents shall be entitled to call for such diaries, nor shall be or they be entitled to see them merely because they are referred to by the Court; but, if they are used by the police officer who made them to refresh his memory, or if the Court uses them for the purpose of contradicting such police officer, the provisions of section 161 or section 145, as the case may be, of the Indian Evidence Act, 1872 (1 of 1872), shall apply." 52. As may appear from sub-section (1), the police officer making investigation under Chapter XII of the Cr.P.C. has to enter day by day his proceedings in respect of the investigation in the diary with all details, like, the time and date of having received information by him and also the beginning of the investigation and closer of the same by him. He has also to mention date-wise and time-wise visits by him of place or places and the statements of circumstances ascertained through his investigation. Likewise, the statements of the witnesses have also to be noted in the same manner as the same being part of investigation and it has always to be described as to on which date and at what time he recorded the statement of a particular witness. The case diary has to be paginated and has to be in one volume. We have already noted that P.W.-3 the first Investigating Officer was cross-examined by the defence as to different steps of investigation which was taken by him or different proceedings which were carried out by him during that course. He did not specifically state as to on which date and at which time any particular proceedings of investigation was started and closed by him. He was simply stating that he wrote the case diary in one continuation. His own evidence gives an impression as if he had sat down to write down the diary in one continuity in utter disregard of the provisions of Section 172 Cr.P.C. We have also referred to the evidence of P.W.-6, the second Investigating Officer who had admittedly used multiple unauthorized case diaries in investigation of the case which is completely in contravention of the provision of Section 172 (1B) of the Cr.P.C. If this is how the state of investigation appears from the case diary then there could be the only irresistible conclusion that both the Investigating Officers were not only unmindful of the provisions of Section 172 Cr.P.C. but had probably ante-dated the case diary for reasons best known to them and had no respect for propriety. It is a mystery to us as to why the two Investigating Officers, that's, P.WS.-3 and 6 were conducting themselves so unlawfully. What we gather from their conduct and action is that probably they had also had only one agenda and that was of creating evidence in support of the written statement of P.W.-1 and in spite of, probably, knowing the real facts of the case, they were not allowing them to surface through their investigations. This is another reason upon which we have serious doubt and hesitation in acting upon the evidence of the prosecution. 53. The other instance was that P.W.-3 had started preparing the inquest report in the counter version by holding the same at the dead body of Anguri Devi. But, he interpolated the description of the same as regards the case crime number and time by making cuttings and overwriting as appears from the evidence of P.W.-3 appearing at pages 77 of the paper book. 54. We have also the opportunity of looking to the original inquest report of Anguri Devi and we find that the document which was initially being used to fill up the details in respect of the dead body of Anguri Devi was interpolated to make it the inquest report of Madhav Singh, which was out and out an interpolation. Not only that, the probabilities of the case indicated that the dead body of Anguri Devi could be lying at the roof top of Madhav Singh's house. But, P.W.-3 was stating that he found the dead body on the ground floor of the house and held inquest on it there. P.W.-3 stated that in spite of having learnt about the death of Anguri Devi, he did not go over the ceiling of Madhav's house to find out as to where the dead body was and as appears from his cross examination at page 85 of the paper book, he did not even think it proper to seize the blood stained earth from the place where the dead body of Anguri Devi was lying. 55. In our opinion, it appears that the whole police machinery was acting in favour of the prosecution and was probably distorting the facts so as to creating a fool proof case. There is no doubt in it that four lives were lost and a huge number of persons were injured out of whom a few were independent persons, but none of them, except P.Ws.1 and 2 turned up to support the prosecution case. P.W.1 had stated that the whole village had witnessed the occurrence and that appears a natural and true statement as appears in the last paragraph at page 62 of the paper book. However, none of the villagers came forward to tell the Court as to for what reason and how the occurrence had taken place. We have already stated that it was a case in which the witnesses were not ready to narrate the true facts to the Court and appeared, mainly, distorting the facts of the case so much so that even the written report appears an ante-timed document which might have been brought into existence by someone else, might be, either the 'Phupha' of P.W.1 or P.W.3 S.I. Pramod Shanker Shukla. The investigation was also tainted, it appears that no police officer except P.W.9 was really insistent on bringing out the truth. 56. In view of above evidence, we do not have any hesitation to hold that it was not a case in which the court below had any reason to hold that the charges were proved beyond doubt. It was a case, which was beset with many infirmities mainly on account of unacceptable evidence coming from the witnesses on all aspects of the case and the accused persons were entitled to acquittal. 57. In the result, we negative the reference made by learned trial judge to confirm the death sentence passed upon appellants-Mahavir Singh and Jaipal Singh. We find that the charges had not been proved to the hilt and, as such, allow the above noted three connected appeals. All appellants are acquitted of charges they had been found guilty of. 58. The appellants in all the appeals are in custody. On account of their acquittal, we direct their release immediately if not wanted in any other case. (Dharnidhar Jha, J.) Hon'ble Pankaj Naqvi, J.
I agree.
(Pankaj Naqvi, J.) Dt. 24th of April, 2013 Y.K.