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(iii) DW-1, who scribed the FIR, as per the prosecution case, gave a statement that he scribed the FIR at the police station at about 11 am on the dictation of the I.O.; therefore, it appears to be a case where the body of the deceased was first picked up by the police, brought to the police station, where it was identified by PW-1 and, thereafter, on the basis of enmity, a false FIR was got lodged by getting it ante-timed.

(b) PW-1 is not consistent and makes improvement during his deposition; whereas, PW-2 is a chance witness whose explanation for his presence there does not at all inspire confidence. Therefore, as both the eye witnesses fall in the category of interested and partisan witnesses, keeping in mind that their testimony does not inspire confidence and no independent witness of the village has been examined to support the prosecution case, benefit of doubt is to be extended to the appellants.

24. First, we shall proceed to test whether the FIR is ante-timed. According to the appellant's counsel, there are various circumstances which suggest that the FIR is ante-timed. These circumstances include delayed post-mortem; discrepancy in the the entries made in inquest report, challan nash, etc with the Chik report and, above all, the statement of DW-1, the scribe of the FIR. We shall notice the submissions in detail on these aspects, one by one, below. In respect of the delay in autopsy, according to appellant's counsel, the autopsy of the body was conducted late at around 4 pm. According to appellant's counsel, there was no occasion for that kind of a delay if the inquest had been over by 10.30 and the body was sealed and papers were prepared for autopsy. This delay, according to him, suggests that the police papers were not ready by noon. In addition to that, DW-1, scribe of the FIR, stated that he wrote the FIR at the police station on the dictation of the I.O. at 11 am, which, according to appellant's counsel, means that the FIR was not lodged at 8.30 am as alleged. Appellant's counsel also pointed out that the post mortem number mentioned in the register maintained at the district police head quarters is different from that mentioned in the post mortem report suggesting that the body reached for autopsy before the papers could. It was pointed out that as per the testimony of PW-6, post mortem number is assigned at the police lines (district police head quarters) and the post-mortem report must reflect that number. But, in the instant case, the post-mortem report mentions number 522 of 2002 when, in the register maintained at police lines, the number is 521 of 2002, which suggests that the body was sent directly to the hospital for autopsy and the papers relating to autopsy were filled later. It was also argued that testimony of DW-1 that he scribed the FIR at 11 am was unjustifiably discarded by observing that if the FIR had been written at 11 am, the body could not have reached police lines by 2.10 pm as that place was 48 km away from the police station. It has been argued that this reasoning is perverse because to cover a distance of 48 km in a vehicle one would, at the maximum, take one hour and thirty minutes. Therefore, even if the body is dispatched from the police station at 12.30 hrs it can easily reach police lines by 2.10 pm or 14.10 hrs. Another aspect highlighted to demonstrate that the first information report is ante-timed and prepared after the inquest report is, that, though, as per record, inquest is stated to have been completed at the spot by 10.30 am, but, PW-2, who is a witness of the inquest and is a signatory to the report, stated that his signature was obtained on the report at the police station at about 3.30 pm (15.30 hrs.). It was also pointed out that, in the inquest report, the distance of the place of occurrence from the police station is 8 km, whereas in the Chik FIR the same is mentioned as 6 km and, similarly, in the papers relating to autopsy i.e. challan nash, etc except section 302 IPC, the other charging section i.e. 506 IPC, which finds mention in the Chik FIR, is not there; therefore, it is clear that at the time when the inquest report was prepared, the Chik FIR was not with the person who prepared the inquest report or papers for autopsy.

25. Having noticed the submissions of the learned counsel for the appellant on the issue whether the FIR is ante-timed, we may, at the out set, observe that there are no cut and dried formulae or tests to determine whether an FIR is ante-timed or not. An inference with regard to the FIR being ante-timed is to be drawn only after careful scrutiny of the evidence and material on record. The most common test adopted for the purpose is to find out from the evidence and material on record whether the existence of case details, such as case crime number, etc, that arise on registration of FIR, are reflected in police papers prepared subsequent to the registration of the FIR as also as to when special report or report under section 157 CrPC was forwarded. Delayed dispatch of the body for autopsy, where autopsy is required, is also a circumstance, in the facts of a case, if unexplained, and it may create a doubt with regard to the existence of the FIR at the time specified. In the instant case, two aspects highlighted by the appellant's counsel that raise a doubt about the existence of the FIR at the specified time need be noticed. One is the statement of the scribe (DW-1) that he scribed the FIR at the police station at 11 am; and the other is the statement of inquest witness (PW-2), who states that he signed the inquest report at the police station at 3.30 am. Upon a careful perusal of the record, we find in the statement of PW-2, who is an inquest witness, that his signature on the inquest report was obtained at the police station at 3.30 pm (15.30 hrs). Whereas, the inquest report states that inquest was over at the spot by 10.30 hrs. We also find that the distance of the place of occurrence from the police station mentioned in the Chik FIR is different from that mentioned in the inquest report. We also find that in the challan nash (Exb. Ka-13), amongst charging sections, other than section 302 IPC, section 506 IPC is not mentioned and, as per the entry in the challan-nash, the body was received at police lines, Azamgarh at 14.10 hours to which, post mortem number 521 of 2002 was assigned whereas, the post-mortem number reflected in the autopsy report is 522 of 2002. But the challan-nash as well as the inquest report discloses the case crime number of the case (i.e. 527 of 2002). The challan-nash also discloses the time of dispatch of the body to the Police Head Quarters (i.e. Police Lines) for autopsy, as 10.30 hours. Ordinarily, when inquest and post-mortem related papers are filled after the FIR has come into existence, entries in those subsequent papers are expected to be in sync with the entries in the Chik FIR inasmuch as the I.O. or the police team is expected to carry a carbon copy or copy of the report for reference. But there is no such rule that where the entries are at variance with the Chik FIR, it would be presumed that the FIR was not in existence, particularly, when the entries reflect the case details i.e. the case crime number. No doubt, the post-mortem report recites post mortem number 522 of 2002 instead of 521 of 2002, but this entry is made by the doctor, or the staff subordinate to the doctor, to whom no question has been put with regard to the discrepancy. Under these circumstances, PW-6's explanation that if there is any such discrepancy it is for the doctor to explain, is acceptable. But since no question was put to the doctor with regard to the said discrepancy, it would not be appropriate on our part to accept the suggestion that the body was sent directly to the hospital for post-mortem and the papers were prepared thereafter. Similarly, the discrepancy in the distance mentioned in the inquest report with that mentioned in the Chik FIR, could best be explained by S.I. Lallan Mishra who, according to PW-6, prepared the inquest report. But, importantly, he has not been examined therefore, the defence cannot be blamed for not putting questions to him. In so far as non-filling of all the charging sections are concerned, that, by itself, in our view, is not sufficient to raise a presumption with regard to non-existence of the FIR at the time specified, particularly, when there is a recital of the case crime number in those papers relating to autopsy. However, there is another aspect of the matter, which is, that filling up of case details in subsequent papers is not conclusive of the FIR having come into existence because, it is possible that, upon noticing a crime or an incident, the police may reserve a number for that case, particularly, if, on that day, there is no other cognizable case reported and the records of the police station, being not digitised/ computerised, admit of filling data, later. Notably, in this case, the Constable Clerk at the police station, namely, PW-4, was questioned in this regard, upon which, he stated that no other cognizable report, except the case at hand, was reported at that police station on that date. But, as we find that no suggestion has been put either to the investigating officer, or the Head Moharir, who made GD entry of the written report, with regard to they bearing any ill motive as against the accused or being under any kind of influence of the complainant party to manipulate the records, the above mentioned circumstances, by itself, are not sufficient to enable us to record a finding that the FIR is ante-timed. But, the deposition of DW-1 that the FIR was scribed by him at 11.00 am at the police station is a very important circumstance which we will have to address to rule out the possibility of the FIR being ante-timed. In this context, we would like to notice the discrepancy in between the statement of PW-1 and DW-1 as to the place where the FIR was scribed. PW-1 states that the FIR was scribed by DW-1 at the spot i.e. the place of occurrence. DW-1 says that he scribed the FIR at the police station at about 11 am. What is important is that DW-1 is not a resident of the village where the spot i.e. place of occurrence is located. From DW-1's statement it appears he resides at a distance of about 200 meters from the police station where the report was lodged. This circumstance lends credence to the testimony of DW-1 that the FIR was scribed at the police station. Once, that is the position, the possibility of the FIR being scribed at the police station and at the time suggested by the defence increases manifold, particularly, when nothing could be elicited from DW-1 as to him being in cahoots with the accused. To discard the testimony of DW-1, the trial court took the view that since, for autopsy, the body reached the district police head quarters, 48 km away, by 14.10 hrs, if the FIR had been lodged at 11.00 am that would not have been possible. We disagree with the above reasoning of the trial court because, in times of vehicular transport, covering a distance of 48 km is very much possible within an hour and thirty minutes. Therefore, in our view, even if the FIR or papers related to autopsy were prepared by noon or so, the body could have easily reached the district police head quarters by 14.10 hrs.

37. The summary of our analysis is that the deceased had gone to the Bazaar early morning to buy betel leaves for the shop of PW-1; the shop of PW-1 use to open on a daily basis at 6 am; therefore, it is most likely that either the incident occurred earlier than the time put by the prosecution, which possibility is not ruled out by medical evidence, or PW-1 was at his shop and not with the deceased at the time of the incident; further, if PW-1 had been present at the time of the incident, and the same had occurred in the manner alleged, he would not have been spared. Thus, the presence of PW-1 at the spot at the time of occurrence is highly doubtful. Further, the testimony of PW-1 does not inspire our confidence as he makes a huge improvement in his deposition in court than what he stated in the FIR with regard to the mode and manner in which the incident occurred and by whom injuries were caused to the deceased. That PW-2 is a chance witness whose explanation with regard to his presence at the spot is flimsy and not confidence inspiring and he is also interested in the conviction of Rajesh (appellant no.2) for reasons disclosed above, therefore, his testimony does not inspire our confidence; more so, because he states that he signed the inquest report at the police station at 3.30 pm. Further PW-2's deposition is at variance with PW-1 in so far as he does not disclose about PW-1 escaping from the spot towards village Amari. That, except PW-1 and PW-2, who are highly interested witnesses, no independent witness has been examined; and no effort has been made to connect the weapon recovered at the instance of the appellant no.2 with the bullet recovered from the body of the deceased. Last but not the least, from the statement of DW-1 i.e. the scribe of the FIR as well as other circumstances noticed above including the statement of PW-2 that he signed inquest report at 3.30 pm, there arises a strong possibility of the FIR being ante-timed. The sum and total of our analysis is that the prosecution evidence is not trustworthy and fails to inspire our confidence to sustain the conviction of the appellants. Consequently, the benefit of doubt would have to be extended to the accused appellants.