JUDGMENT 1. -Appellant-Ziyauddin was convicted and sentenced to four years' rigorous imprisonment for offence under section 307 IPC by learned Sessions Judge, Dungarpur vide judgment dated 25.3.1983. He has assailed his conviction and sentence by preferring this appeal. 2. Briefly stated, Hargovind lodged first information report at police station Kotwali. Dungarpur at 9.00 p.m. on 7.4.1982 that at about 3.50 or 4.00 p.m. when he was proceeding towards his house in Soniya Chowk and when he reached near the house of his relation Shankerlal Joshi he heard slogans. He looked up and saw that the appellant was aiming at him with a gun from his roof. Appellant tired at him. Six pallets recovered. He in order to save himself rushed and when reached near Fauj Ka Baria, Basanti Lal, Amar Prakash and some other persons met him. They took him to hospital where he was operated and pallets were taken out. Police registered a case under section 307 IPC. During investigation site plan was prepared on 10.4.1982. Hargovind was medically examined. Injuries were found on his fore arm. Three injuries were caused by blunt weapon. On X-ray examination a pallet was found in his palm and injury No. 2 was found to be grievous. Witnesses were examined under section 161 Cr.P.C. and after investigation challan was submitted before the Magistrate having jurisdiction. He committed the case to the learned Sessions Judge who framed and read over charge under section 307 IPC to the appellant on 20.10.1982. The appellant denied his indictment and claimed trial. Thereupon prosecution examined eight witnesses in support of its case. Appellant was examined under section 313 Cr.P.C. He produced eight witnesses in defence. Learned Sessions Judge, after hearing both the parties, convicted and sentenced the appellant as stated above. 3. I have heard the learned counsel for the appellant as well as learned Public Prosecutor at length and have gone through the record. 4. While assailing the conviction learned counsel for the appellant submitted that the conviction is totally bad in law and on facts. 3. I have heard the learned counsel for the appellant as well as learned Public Prosecutor at length and have gone through the record. 4. While assailing the conviction learned counsel for the appellant submitted that the conviction is totally bad in law and on facts. He submitted that the first information report was lodged with a delay, that it does not mention the names of eye-witnesses who are stated to he PW 4 Shanshi Kant and PW 5 Jenendra, Hargovind is himself a history sheeter and when communal riot took place his services were utilised by the police to implicate innocent people in order to clean its face before administrative machinery. He also submitted that the weapon has not been recovered from the appellant and that in the facts and circumstances when it is said that the house of the appellant is 144 feet away from the place where Hargovind was standing, it was not possible that the fire shot by the appellant could have injured Hargovind. He further submitted that it is alleged that the appellant was on higher pedestal and the injured was on the road, the distance was about 144 feet, the appellant could not he visible from the roof of the appellant, that the palm of Hargovind could not be injured by fire caused by appellant from both sides. He also submitted that injured suffered some injuries by blunt weapon but there is no explanation how these injuries were caused. According to him all said and done the appellant has been fit in the frame in order to save the local police from the responsibility of not maintaining law and order during the communal riot. He also submitted that one Gulam Mohd. filed first information report on which charge-sheet was filed Ex. D/4 states that during riots his property was looted and burnt by some miscreants on 7.4.1982 and a case under sections 147 & 436 IPC was registered in which Lala. Gopal, Navneet, Dinesh Kumar, Lala alias Anirudh and Alok Shah were challenged, the present case was a counter blast. He. therefore, submitted that the appellant deserves acquittal. 5. On the other hand. learned Public Prosecutor tried to support the judgment of learned Sessions Judge. 6. First of all I will take up the point of delay in lodging the first information report. First Information report Ex. He. therefore, submitted that the appellant deserves acquittal. 5. On the other hand. learned Public Prosecutor tried to support the judgment of learned Sessions Judge. 6. First of all I will take up the point of delay in lodging the first information report. First Information report Ex. P/2 is signed by Hargovind and was lodged at 9.00 p.m. while the occurrence is said to have taken place on the same day at about 3.30 p.m. In the facts and circumstances of this case it is submitted by learned counsel for the appellant that everything is to he scrutinised very carefully and during such days when riots took place, role of the police was not of an independent agency. I find from Ex. P/2 itself that the incharge of police station Dungarpur Kamla Shankar first mentioned the FIR No. as 75/82 but later on changed it to 74/82. It clearly means that there was something fishy. Kamla Shankar has not been produced by the prosecution though he was named in the charge-sheet. The prosecution has deliberately withheld him and, therefore. presumption goes against the prosecution. 7. Secondly. if the first information is taken to be lodged on 7.4.1982 itself at 9.00 p.m. then delay of 5-6 hours is not explained. Hargovind PW 3 does not say as to why the delay was caused and why he did not immediately rush to the police after having received injuries. I also find that the report does not mention any date. It was submitted to Kamla Shankar Incharge of the police station. He himself scribed date as 7.4.1982 and time 9.00 p.m. on it. It is found that there was over writing in the timing of filing of report. Kamla Shankar has not been produced to explain these discrepancies like over writing on the number and timing in the report. So the number and timing have been changed. 8. Then it is found that the first information report reached the Court of Chief Judicial Magistrate. Dungarpur on 12.4.1982 at 10.00 a.m. while the Court is itself situated in Dungarpur. There is no explanation of this delay. So the number and timing have been changed. 8. Then it is found that the first information report reached the Court of Chief Judicial Magistrate. Dungarpur on 12.4.1982 at 10.00 a.m. while the Court is itself situated in Dungarpur. There is no explanation of this delay. Of course delay is not fatal in every case but in the facts and circumstances of this case when the first information report does not mention the names of even eye-witnesses and yet the prosecution has produced Jenendra and Shashi Kant as eye-witnesses, the delay becomes fatal in this case. The police filled up the lacuna during this period in developing its case by securing these two persons Jenendra and Shashi Kant whose statements under section 161 Cr.P.C. were recorded on 10.4.1982. So the report was sent to the Magistrate on 12.4.1982 after these lacuna of procuring eye-witnesses was filled up. Thus there is no alternative but to hold that the delay of five days in sending the first information report to the Court is very fatal to the prosecution and makes the whole case a bundle of untruth to frame the appellant. The suspicion of the learned counsel for the appellant that the first information report was registered after false witnesses were secured on 10.4.1982 has force in the facts and circumstances of this case. 9. Names of eye-witnesses Jenendra and Shashi Kant are not mentioned in the first information report. The prosecution has to explain. PW 3 Hargovind does not name them. Had he seen them, he would have definitely mentioned their names in the first information report. However, he stated that when he saw blood coming out from his injury he rushed , towards Fauj Ka Barla, in the way Basant Kumar and Shashi Kant met him whom he told that the appellant had fired on him. Thereupon Basant Kumar took him to hospital. Shashi Kant PW 4 as stated earlier has not been named in the first information report at all. Instead the first information report mentions that Hargovind found Basant Kumar and Amar Prakash near Fauj ka Barla who took him to hospital. Had Shashi Kant met him he would have definitely named him in the first information report as he has named Basant Kumar and Amar Prakash. Since Hargovind has not named them in the first information report, their evidence cannot be accepted to he truthful. Had Shashi Kant met him he would have definitely named him in the first information report as he has named Basant Kumar and Amar Prakash. Since Hargovind has not named them in the first information report, their evidence cannot be accepted to he truthful. PW 3 Hargovind stated that he narrated theincident to Shashi Kant. But Shashi Kant has come as an eye-witness. PW 4 Shashi Kant stated that he was standing on the roof of his house. He saw Hargovind going towards Fauj Ka Barla. Thereupon he and Jenendra Kumar came on the road and then he saw that the appellant fired at Hargovind. This version is nothing but a concocted story. Had he been present, Hargovind would have definitely named him in the first information report as he was a material witness. Similarly, Jenendra Kumar corroborating this witness stated that he was present with Shashi Kant and after seeing Hargovind he and Shashi Kant came down stairs and went to him. He also saw that the appellant fired at Hargovind. Had he been present. the first information report lodged by Hargovind would have definitely mentioned his name. There is no explanation as to why the names of these two witnesses were not written in the first information report when they were the eye-witnesses. The prosecution is not able to explain as to wherefrom their presence was detected when the first information report did not mention their names. Learned Public Prosecutor cited a recent judgment Babu Singh v. State of Punjab, 1997 Cr.L.R. (SC) page 19 . wherein it was held that even if name of a witness is not given in the first information report, his testimony can be relied if it is foundto be trustworthy. I find that these witnesses are cooked up witnesses. Investigating Officer Kesar Singh PW 8 does not explain as to wherefrom he could detect that these two witnesses were the eye-witnesses of the occurrence. He did record their statements on 10.4.1982 but is not able to say as to where these witnesses came from. However, I have examined statements of these two witnesses who have corroborated each other but they are not corroborated by injured Hargovind himself. Hargovind does not say that they were present. Instead he says that Shashi Kant was not eye-witness. He took him to hospital. Shashi Kant does not say that he took Hargovind to hospital. However, I have examined statements of these two witnesses who have corroborated each other but they are not corroborated by injured Hargovind himself. Hargovind does not say that they were present. Instead he says that Shashi Kant was not eye-witness. He took him to hospital. Shashi Kant does not say that he took Hargovind to hospital. Instead he says that after the incident he went back to his house. According to these two alleged eye-witnesses when fire was shot they were present. If they were present with Hargovind then there was likelihood that they could have suffered some injuries as pallets could not have identified only Hargovind injured. Shashi Kant is a her and unbelievable. He stated before the Court that he was present on the roof of his house when he saw Hargovind and then he came down and went to Hargovind. But this is not found in his statement Ex. D/2. This omission is very material. It means that he did not go to the place of occurrence at all. He does say that when he was standing on his roof he saw that Ziyauddin was not having any arm in his hand. Similarly, PW 5 Jenendra Kumar stated that he was standing on the roof of the house of Shashi Kant and saw Hargovind coming from the side of ghati. Then he and Shashi Kant came down stairs. When Shashi Kant himself did not state to the police in his statement in Ex. D/2 that he came down stairs, naturally Jenendra Kumar. if he was accompanying Shashi Kant, would also not come down stairs. He has definitely concocted the story that he saw the appellant firing at Hargovind. He is such a witness that during cross-examination he says that he and Hargovind had no talks though he knew Hargovind right from his birth. Even when Hargovind was injurd he did not raise him and he does not know as to who took Hargovind to the hospital. The behaviour of the witness is not natural. Similarly, behaviour of Shashi Kant PW 4 is very unnatural when he says that he did not have any talk with Hargovind. So these witnesses i.e. Shashikant and Jenendra Kuamr are unbelievable so far as incident is concerned. The behaviour of the witness is not natural. Similarly, behaviour of Shashi Kant PW 4 is very unnatural when he says that he did not have any talk with Hargovind. So these witnesses i.e. Shashikant and Jenendra Kuamr are unbelievable so far as incident is concerned. Learned counsel cited Rant Kumar Pande v. State of Madhya Pradesh, AIR 1975 SC page 1026 , in which it was observed that no credence to the version of the alleged eye-witnesses could be given as they were not mentioned as eye-witnesses in the first information report. The omission was held to be very material as it affected the probabilities of the case which was relevant u/s. II of the Evidence Act in judging the veracity of the prosecution case. 10. Now remains Hargovind himself. He has stated that it was the appellant who fired at him from the roof of his house when he was crossing the road and reached near electric pole where he stood on the main road. He stood near a electric pole on the main road near the house of Rama Kant. It is PW 8 Kesar Singh who prepared site plan Ex. P/I. He has proved this site plan. It states that the electric pole was situated at place 'B' where Hargovind is said to have standing at the time of occurrence. The house of the appellant is situated at place 'C'. It is alleged that the appellant fired from the roof of this house. It is a three storied building. The site plan shows a west cast lane at place 'J' and is opposite to cross lane 'I'. On its eastern side house of Shashi Kant is situated. Opposite to it there is house of Heeralal. Adjacent to it is the house of appellant's father. The case of the prosecution is that the appellant while standing on the roof of this three storied house situated at place 'C' fired which hit Hargovind who was standing on the road at place 13' which is near the electric pole on the corner of the house of Shashi Kant. It has been submitted by the learned counsel for the appellant that if gun is tired from this three storied house, it will first cross the lane then house of Shashi Kant and then only the pallet would hit anybody standing at place 'B'. It has been submitted by the learned counsel for the appellant that if gun is tired from this three storied house, it will first cross the lane then house of Shashi Kant and then only the pallet would hit anybody standing at place 'B'. According to the learned counsel this distance is about 144 feet and it was not possible that Hargovind might have been seen or hit by a shot fired by the appellant standing on the roof of house at place 'B'. His first submission is that no gun has been recovered from the appellant at all. even PW 4 Shashi Kant who was standing on his roof did not find any arm in the hands of the appellant. 11. Site plan Ex. P/1 mentions place 'C' as the place wherefrom gun shot is alleged to have been tired by some person. It does not mention the name of the appellant. The site plan was prepared on 10.4.1982 and when the name of the appellant is not shown in it, it means that upti I then it was not known as to how Hargovind had suffered injuries. It indicates that Hargovind, a history sheet, has been used to frame the appellant. Learned counsel cited Hakuinat Rai v. State of Rajasthan, 1987 Cr.L.R. (Raj.) page 718 , in which it has been held that when site plan does not mention as to where the witness stood, it creates doubt about presence of the witness. This is a Division Bench judgment of this Court. The site plan Ex. P/1 does not show the presence of Jenendra and Shashi Kant and the place where they were standing. Therefore, their presence becomes all the more doubtful. There was no recovery of pallets or wads from the place of occurrence, there was no blood spot, therefore, it cannot be believed that Hargovind suffered gun shot injuries at the place where he is alleged to have suffered. In the said citation it has also been held that when statements of witnesses are different from the medical opinion regarding direction of gun shots, the prosecution story is falsified. In the said citation it has also been held that when statements of witnesses are different from the medical opinion regarding direction of gun shots, the prosecution story is falsified. In the facts and circumstances of the ease when it is alleged that gun was fired from the roof of house of the appellant and there is no witness to say as to how the shots reached and caused injury to Hargovind, l am not going to accept the story of prosecution that Hargovind suffered injuries by fire made by the appellant. 12. PW 3 Hargovind has stated that he saw the appellant firing at him. This cannot be believed to be correct because from the place where Hargovind was standing, the house of the appellant was not visible. Secondly. if Hargovind is believed to that extent that he had seen the appellant aiming towards him, he could have immediately moved from the place in order to save himself. He did not do so which is very unnatural. Anybody, who is within the range of fire of a gun and if he see any person aiming the gun towards him, would definitely try to run away as his own life is precious to him. Hargovind did not behave in a very natural way and the conclusion would be that he has been procured to support police which might have assured some concession to him, he being a history shceter who attends police station every day. The witness knew very well that the riots had hegun and even then he went to the house of Shankarlal Advocate. He stated that he went to meet Shankarlal Advocate in a case in which he was a witness and when he found that the door of the house of Shankar Lal was closed, he did not knock it and came back. His movement in such situation on a flimsy ground is not to be believed. He might have taken part in some incident where he was injured. The charge-sheet Ex.D/4 mentions that burning of shops of Gulam Mohd. took place at about 4.00 p.m. There might be a difference of 10-15 minutes between two incidents. His movement in such situation on a flimsy ground is not to be believed. He might have taken part in some incident where he was injured. The charge-sheet Ex.D/4 mentions that burning of shops of Gulam Mohd. took place at about 4.00 p.m. There might be a difference of 10-15 minutes between two incidents. But it is clear that peace of the town was disturbed on that day and in the circumstances Hargovind instead of keeping himself shut in the house was going to the house of an advocate in order to contact him. This story itself is not worth acceptance because on such occasions when looting and arson take place because of riots, peace loving people stay confined to their houses and do not roam on the streets. However. Hargovind admitted himself that he was involved in a criminal case which was pending before Chief Judicial Magistrate. PW 8 Kesar Singh, Investigating Officer, has accepted that Hargovind was a history sheeter of the police. In these circumstances I am of firm view that the witness has been procured as a complainant in this case by the police in order to frame the appellant as the police wanted to come out with flying colours when it was not able to control the riots and wanted to challan certain persons of both communities as some persons of other community hooked and challenged by Ex. D/2. PW 3 Hargovind was examined as a witness by PW 8 Kesar Singh during investigation. His previous statement Ex. D/1 has been used for the purpose of contradiction. In his previous statement Ex. DR Hargovind stated in 'A' to 'B' part that when Ziyauddin saw him going he fired at him. But this is denied by him during trial. However, even then he maintained that Ziyauddin fired on him. If the version given in police statement is believed then conduct of witness Hargovind is not natural. If the shot was aimed at him he should have run away or removed himself from the place. But when he says in his cross-examination that as soon as he reached near electric pole a fire came which hit him and the same was done from the front side. He was not moving towards the lane where house of appellant is situated. So fire if caused by appellant would not hit him. But when he says in his cross-examination that as soon as he reached near electric pole a fire came which hit him and the same was done from the front side. He was not moving towards the lane where house of appellant is situated. So fire if caused by appellant would not hit him. The witness in order to implicate the appellant has gone to the extent of saying that the house of appellant was situated on the road. He admitted that the distance of the house of the appellant from the main road was about 25-30 paces. All this cannot be believed as the house is situated in a lane. Investigating Officer PW 8 Kesar Singh who prepared site plan did not measure the distance but has admitted that the distance was about 20-25 feet. If the statement of Hargovind is taken to he correct about this distance then distance would he about 50-60 feet and not 20-26 feet, as stated by the Investigating Officer. The defence has produced DW 1 Nazir Mohd., retired Revenue Inspector, who prepared site plan Ex. D/3. According to it the distance was 144 feet and while a person standing near the electric police cannot see any person standing on the roof of the house of the appellant or vice versa. The defence says that it is 144 feet and from the evidence of PW 3 Hargovind it is found that distance is about 50-60 feet, it cannot be accepted that if a gun is fired from the house of the appellant it would directly hit a person standing at place 'B' near electric pole. The bullet would first cross the lane. then house of Rama Kant and then would reach the place near electric pole. It was submitted that the pallet would sprinkle and it is true, but I find that there is no mark of any pallet either on the place of occurrence or at any wall of the house of Rama Kant. The whole story of firing gun shot by appellant is a cock and bull story and cannot be believed. Service of a history sheeter has been used to book appellant. 13. PW 7 Dr. The whole story of firing gun shot by appellant is a cock and bull story and cannot be believed. Service of a history sheeter has been used to book appellant. 13. PW 7 Dr. Bal Mukund Upadhyay stated that lacerated wound having tattooing margins on dorsum of let wrist, lacerated round punctured wound with tattooing margins and blackened was found on the right middle finger with superficial burn and blackened skin burn injury on medial side of left thigh were found on the person of Hargovind when he examined him on 7.4.1982. He also found red bruise on medial upper side of left elbow. a read bruise in front of right thigh and a red bruise in second intercostal space on right side of sternum which was caused by blunt object. He prepared report Ex. P/3. According to him the three injuries which are said to have been caused by gun shot were blackened. He agreed that blackening will not occur if a fire arm is fired from more distance than four feet. Of course he is not a ballistic expert but it can very well be believed that if a gun is fired from a distance of 50-60 feet, the injuries, as were found on the person of Hargovind, would not be caused. He has admitted that injury No. 5 which is a red bruise would not be caused by a fire arm. He has also admitted that in case of injury No. 4 which is a blackened skin burn injury on medial side of left thigh would be caused after it has blackened clothes which covered the place of injury. Needless to say that no such clothes were exhibited by the prosecution. Learned Sessions Judge was of the view that doctor's evidence was only opinion evidence and the eye-witness should be disbelieved on the basis of such an opinion evidence. Learned Sessions Judge did come to the conclusion that distance between the house of the appellant and the place 'B' was not less than 40-50 feet. This is what I have (sic) and in case a tire is shot from the top of the house of the appellant, it would not cause such injuries as are caused to injured Hargovind. Therefore, from the evidence of Dr. Bal Mukand himself the story is not corroborated. This is what I have (sic) and in case a tire is shot from the top of the house of the appellant, it would not cause such injuries as are caused to injured Hargovind. Therefore, from the evidence of Dr. Bal Mukand himself the story is not corroborated. Then the prosecution is not able to throw light as to how other injuries i.e. injuries No. 1, 5 & 6 were caused to Hargovind. Hargovind simply says that he suffered injuries by fire and does not tell about these injuries which were found on his body. Hargovind is definitely an unreliable witness and has been procured to frame the appellant as stated in earlier part of this judgment. 14. PW 1 Amar Prakash has stated that when he was going towards Ghati Mohalla Hargovind met him and showed his hand which suffered injury and asked him to take to hospital. He has stated that he and Basant Kumar took him to hospital. The witness admitted that the market was closed on that date as riots had taken place. He has stated that when Hargovind met him he was wearing a pant which was burnt but it was not having any hole. He knew Hargovind from before and, therefore, he took him to hospital where bandage was done and then Hargovind was left at his house. According to this witness pant of Hargovind was found blackened at a place but even then same was not seized by Investigating agency and has not been exhibited in Court. If the prosecution wanted to prove that injury was caused by gun shot, then pant should have been produced. Basant Kumar PW 6 stated that Hargovind met him and asked to take him to hospital and also told that Ziyauddin had fired at him and that he suffered injuries on both of his hands. He says that he did not know Amar Prakash had took Hargovind to hospital. While Amar Prakash has stated otherwise and stated that he and Basant Kumar took Hargovind to hospital. The contradiction is very material in the sense that both of the witnesses say that injured told them that it was the appellant who fired at him. The first information report Ex. P/2 mentions the names of Basant Kumar and Amar Prakash both as persons who took Hargovind to hospital. The contradiction is very material in the sense that both of the witnesses say that injured told them that it was the appellant who fired at him. The first information report Ex. P/2 mentions the names of Basant Kumar and Amar Prakash both as persons who took Hargovind to hospital. But when Amar Prakash and Basant Kumar came, they did not corroborate each other. However, Hargovind was definitely examined. But these two witnesses cannot be believed that the appellant's name was told to them by Hargovind or they took Hargovind to hospital. Hargovind was himself in a fit condition to go to hospital and he did go. These two witnesses have been procured just to corroborate Hargovind to support story of taking away to hospital. I am not ready to accept that Hargovind might have told these two witnesses the name of the appellant. Even if it was told, it is not proved by these two witnesses. The case has been cooked up against the appellant. In view of above discussion I am of the view that the appellant has been framed and he deserves acquittal. 15. Consequently, the appeal succeeds. Appellant-Ziyauddin is acquitted from the charge of Section 307 IPC. His bail bonds are discharged.Appeal allowed. *******