Research › Search › Judgment

Rajasthan High Court · body

2004 DIGILAW 722 (RAJ)

Ramlal @ Ramuda v. State of Rajasthan

2004-05-06

O.P.BISHNOI, RAJESH BALIA

body2004
JUDGMENT 1. - This appeal has been filed by the seventeen appellants against a 1 judgment dated 27.3.99 of the learned Special Judge, SC/ST Cases, Pali. The appellant Ramuram has been found guilty for the offences punishable under Sections 148, 448 and 302 of the IPC. Other sixteen appellants have been found guilty for the offences punishable under Sections 148, 448 and 302/149 of the IPC. 2. According to the prosecution story PW-6 Narayan Ram Bawer' used to sell illicit country-liquor at his home in village 'Sawalta Kalan' and at about noon on 28.9.95 the appellants Ramu. Kalu and Heera went to his house for liquor. PW-6 Narayan Ram told them that there was no liquor in the stock and hence, it was not possible for him to supply the same. However, the three appellants insisted for liquor and during the conversation the deceased Mohan, who happened to be a cousin of Narayan came. Mohan told the three appellants that when there was no liquor how the same could be supplied to them. The appellant Ram got annoyed on the intervention of Mohan and threatened him with dire consequences. Allegedly P.W. 6 Narayan persuaded the three appellants to go back and consequently they left the house. However, within no time the three returned armed with 'tarsi' and dharlya' and shouted that the 'worm' must be finished. They attacked Mohan with the said weapons and allegedly the appellant Fiamu inflicted an injury on the neck of Mohan with a 'dhariya' and consequently Mohan fell on the ground. Thereafter, further injuries were caused to him by the three. Meanwhile, all the other accused persons also came and they joined Ramu, Kalu and Heera and all started to inflict injures to Mohan. A school girl returning to her house, saw the incident and she went to the house of PW--3 Ganeshram, who was the father of Mohan, and told that Mohan was being belaboured by the villagers at the house of Narayan. Thereupon, PW-6 Ganesh and his son Budha (PW-4) proceeded to the house of Narayan and found the crowd inflicting injuries to Mohan. Ganesh allegedly tried to intervene and in the process he also received injuries. Thereupon, PW-6 Ganesh and his son Budha (PW-4) proceeded to the house of Narayan and found the crowd inflicting injuries to Mohan. Ganesh allegedly tried to intervene and in the process he also received injuries. Meanwhile, a telephone call was made by some one to the police and the Circle Officer PW-13 Avtar Singh and the SHO Police Station Keria PW-15 Anop Singh along with other police people rushed to Village 'Sawalta Kalan'. The SDM of the area and the Teheildar Hulasi Ram (PVV-2) also reached the village. At 5 p.m. PW-13 Avtar Singh recorded the statement Ex.P/40 of PVV-6 Narayan and the same was sent with Special Messenger to Police Station Kerala where a case under Section 147, 148, 149, 448, 323 and 302 of the IPC and section 3 of the SC /ST (Prevention of Atrocities) Act was registered and twenty accused persons including the seventeen appellants were challenged for the said offence in the court of Special Judge, SC/ST Cases, Pall. The accused Ramlal, Kaluram, Madanlal and -Heeraram were charged for the offences punishable under Sections 148, 448, 323 and 302 of the IPC and Section 3 of the SC/Si (Prevention of Atrocities) Act. Rest sixteen were charged under Sections 148, 448, 323 and 302/149 of the IPC and Section 3 of the SC/ST (Prevention of Atrocities) Act. All the twenty pleaded not guilty to the said charge. Four witnesses were examined in defence. DW-1 Mohan deposed to the effect that he witnessed the incident and the culprits, who were involved were unknown persons and none of the accused-persons was present at the Woe of occurrence. DW-2 Pratap and DW-3 Sohan deposed about the plea of alibi of the accused Kaluram and stated that Kaluram had come to village Bhatinda to purchase a tractor and was with them during the relevant period. Similarly DW-4 Dalaram deposed that the accused Gokul was not present at the place of occurrence as he has been sent to another village 'Lalki' during the relevent period. The arguments were then heard and the judgment was delivered on 27.3.99. All the accused persons were acquitted of the charges punishable under Section 323 of the IPC and Section 3 of the SC/ST (Prevention of Atrocities) Act. Gokul Ram S/o Narayan, Godha and Bhiyan were acquitted of all the charges. The seventeen appellants were found guilty as stated supra. The arguments were then heard and the judgment was delivered on 27.3.99. All the accused persons were acquitted of the charges punishable under Section 323 of the IPC and Section 3 of the SC/ST (Prevention of Atrocities) Act. Gokul Ram S/o Narayan, Godha and Bhiyan were acquitted of all the charges. The seventeen appellants were found guilty as stated supra. Two years rigorous imprisonment has been awarded to each appellant on account of finding of guilt for the offence punishable under Section 148 of the IPC. Each one has been awarded six month's rigorous imprisonment for the offence punishable under Section 448 of the IPC . For the offences punishable under Sections 302 and 302/149 IPC life imprisonment with a fine of Rs. 2,000/- has been ordered. On account of non-payment of fine further rigorous imprisonment for three months has been ordered to each one of them. We have heard the learned counsel for the appellants as well as the learned Public Prosecutor for the State and have gone through the record of the trial court. 3. It is submitted by the learned counsel for the appellants that the prosecution has taken care to not to examine a single independent witness and all the five alleged eye-witnesses are close relations of the deceased. It is further submitted that out of the five PW-6 Narayan Ram, PW-7 Narbada and PW-8 Sardararam have not been able to corroborate the prosecution story and all the three have been declared hostile witnesses. It is submitted that PW-3 Ganesh is the father and PW-4 Budha Ram is the brother of the deceased and both have been examined as eye-witnesses whereas in fact they were not present during the the incident and came much later on the spot. It is pointed out that the Dy. Superintendent of Police PW-13 Avtar Singh as well as the SHO Police Station Kerala PW-15 Anop Singh came within half an hour of the incident after receiving information on telephone and even after their arrival no FIR was given to them till at least up to 5 p.m. and this undue delay in recording the FIR speaks for itself. It is contended that as a matter of fact no FIR was recorded on 28.9.95 and the same was recorded on 29.9.95 and was ante-dated. It is contended that as a matter of fact no FIR was recorded on 28.9.95 and the same was recorded on 29.9.95 and was ante-dated. In this connection it is pointed out that the formal FIR Ex.P/76 contains a mention on it to the effect as if it was sent vide dispatch No. 1888 dated 28.9.95 with special messenger to the concerned Magistrate. However, the endorsement of the Magistrate is to the effect that it was received by him on 29.9.95 at 10.30 a.m. from the Constable Ram Narayan of police Station Kerala. It is submitted that from this it is clear that Ex.P/76 actually was transmitted from the police station not on 28.9.95 but on 29.9.95 and that goes to suggest that no FIR was recorded on o 28.9.95 and the statement of Narayan Ex.P/40 as well as Ex.P/76 both were recorded on 29.9.95 and were ante-dated. Further it is submitted that in spite of this, the FIR Ex.P/40 contains the names of only 13 persons whereas the challan was filed against twenty. It is contended that as per the practice the statement of the lodger of the FIR, who happens to be PW-6 Narayan Ram in so this case, is recorded first of all forthwith and thereafter the statements of other witnesses are recorded. Strangely enough, the statement Ex.P/41 of PW-6 Narayan Ram under Section 161 of the CrPC. which was recorded then and there at village 'Sawalta Kalan' contains the names of seventeen I accused persons and there is no explanation as to how the four new names were added with the original 13 mentioned in the FIR. Strangely enough, the statement Ex.P/42 of Smt. Narbada contains only 13 names as contained in the FIR Ex.P/40 and this circumstance alone is sufficient to suggest that there s was total contusion as to who actually participated in the crime. In this connection it is further pointed out that the statement Ex.P/43 of PW-8 Sardara recorded under Section 161 of the Cr.F.C. contains the names of 16 persons who allegedly participated in the beating. It does not contain the names of the appellant Khima as well as Arjun. Strangely enough it contains to the name of Codha whose name does not find place either in the FIR Ex.P/40 or in the statements Ex.P.141 and Ex.P142 of Narayan and Narbada. It does not contain the names of the appellant Khima as well as Arjun. Strangely enough it contains to the name of Codha whose name does not find place either in the FIR Ex.P/40 or in the statements Ex.P.141 and Ex.P142 of Narayan and Narbada. The learned counsel has taken us through the evidence and has argued that there are big holes in the prosecution evidence and the depositions of PW-3 Ganesh and PW-4 Budharam are not in harmony with each other Further it is contended that the deposition of Sardara also goes to show that the participation of the appellants in the crime cannot be believed. Further, it is submitted that the principal witnesses PW-3 Ganesh and PW-4 Budharam have not even properly identified the appellants during their depositions and instead of naming them and identifying them in the court have come with an omnibus statement to the effect that all the persons present in the court were participants in the crime. It is pointed out that the 'Sarpanch' Dame Ram (PW'-1) was possibly present and there is a mention in the FIR to the effect that it was at his information on telephone that the police came. It is submitted that the school girl, who according to the FIR was the first person to witness the incident of beating, went and informed PW-3 Ganesh about the incident but the investigating officer has excluded her as well and she is not cited as a prosecution witneee It is submitted that according to the first report Ex.P/77 in the 'Rozaamcha' of the police station Keria the message recorded therein was to the effect that the quarrel was between the 'Bawer's' and 'Raikas' of village 'Sawalta Kalan'. However, the whole complexion of the story was changed by PW-13 Avtar Singh and as many as 16 villagers, who were not 'Raikas' were implicated and challaned in the case. The learned Public Prosecutor has supported the conclusions drawn by the learned trial court in the impugned judgment. 4. We find that PW-3 Ganesh, his son Budha Ram (PW-4), PW- 6 Narayan Ram, his wife Smt. Narbada (PW-7) and PW-8 Sardara Ram have been examined as eye-witnesses in the case. It is not in dispute that the deceased was a first degree cousin of PW-6 Narayan Ham and PW-8 Sardara Ram. 4. We find that PW-3 Ganesh, his son Budha Ram (PW-4), PW- 6 Narayan Ram, his wife Smt. Narbada (PW-7) and PW-8 Sardara Ram have been examined as eye-witnesses in the case. It is not in dispute that the deceased was a first degree cousin of PW-6 Narayan Ham and PW-8 Sardara Ram. It is also not in dispute that the deceased was the son of PW-3 Ganesh and brother of PW-4 Budha. in this way, it is clear that apart from the aforementioned five close relations, there is no other eye-witness in the case. It is not that there were no other eye-witnesses. It has come in evidence that almost the entire village population had assembled at the place of occurrence but all have been excluded by the investigating officer. There is mention in the FIR Ex.P/40 that it was a school-girl who, while returning from the school, witnessed the beating of the deceased by the crowd and she went to the house of PW-3 Ganesh and gave him the information to the effect that his son Mohan was being belaboured by the villagers in the house of PW-6 Narayan Ram. PW-3 Ganesh in his statement has stated that he so thereafter went running to the house of Narayan Ram and it took him 5 to 10 minutes to reach the place of occurrence. Needless to say that the girl who did not come running must have taken a minimum 10 minutes to complete the journey from the place of occurrence to the house of Narayan Ram. That would mean that when the school-girl first saw the villagers beating the deceased, some minutes thereafter PW-3 Ganesh was able to reach the place of occurrence. Needless to say that in these circumstances it was impossible that Ganesh could witness the incident from beginning to the end.. It is not in dispute that his son PW-4 Budharam went subsequent to Ganesh because he was following his father to the place of occurrence. According to the FIR Ex.P/1 initially three appellants Ramu, Kalu and Heera came armed with 'tarsi' and 'dhariya' and attacked the injured. Further it is mentioned in the FIR that the first injury was by Ramu which was inflicted on the neck of the deceased and on account of this injury the deceased fell on the ground. According to PW-9 Dr. Further it is mentioned in the FIR that the first injury was by Ramu which was inflicted on the neck of the deceased and on account of this injury the deceased fell on the ground. According to PW-9 Dr. led Prakash the injury, which was inflicted on the neck, was fatal and the deceased died as a result of loss of blood and shock on account of the said injury. According to the FIR the deceased received one injury on his neck while standing and fell down and the remaining injuries were received while he was lying on the ground. The deposition of PW-3 Ganesh is self-defeating and unworthy of any reliance. He has deposed that the house of Narayan had a thorny fence with a gate and he had to jump over the same in order to enter the house. In his examination-in-chief he has stated that when he entered the house in the aforementioned fashion, all the accused persons started to beat him and he received injuries to his head, legs, both the shoulders and thigh area and in this way received 7-8 injuries. Thereafter he states that in his presence the appellant Ramuda inflicted an injury on the neck of the deceased with a 'tarsi' as a result of which Mohan fell on the ground. Thereafter, other injuries were inflicted by 'lath's' and 'dhariyas'. He has specifically stated that on account of the injury on the neck Mohan died then and there. Regarding motive, the witness stated that there was a case between Ramu and the deceased and the same was pending in the court and some date had been given. However, during cross-examination the witness admitted that no case was pending and previously one case was instituted by the deceased in which an FR was filed by the police long back. In his cross-examination Ganesh has stated that at the time of the incident the deceased had no cloth on the upper portion of his body, as his bush-shirt was lying placed on the nearby cot. This portion of the statement is unique in the sense that neither in the FIR nor in any statement recorded under Section 161 of the Cr.P.C. there is a mention to the effect that the incident started after the bush-shirt of the deceased was taken off. This portion of the statement is unique in the sense that neither in the FIR nor in any statement recorded under Section 161 of the Cr.P.C. there is a mention to the effect that the incident started after the bush-shirt of the deceased was taken off. The witness has specifically stated that persons participation in causing injuries to the deceased and 10 more were standing nearby. Further he has stated that the 10 persons who were standing nearby belonged to the party of the assailants. Subsequently, the witness has stated that he saw all the entering the house of Narayan and all the were shouting that they have to kill Mohan. In cross-examination the witness is positive that when the deceased was receiving injuries by all the persons he was not aground and was actually standing with his hands folded. In cross-examination dated 30.8.96 the witness has stated that the deceased was bleeding from his head, hands, legs and neck and while the deceased was in this condition he fell on the deceased in order to cover him from the blows which were raining on him. However, in his cross-examination dated 3.10.96 he denied that inspite of his falling on the injured his wearing apparel did receive any blood stains. Thereafter, he stated that his blood stained cloths in fact were shown by him to the police. It is not in dispute that no blood stained cloths of Ganesh have been tendered in evidence. He further states that the said 10 other colleagues of the assailants were without any lathi' or other weapon with them. At one place he states that all these 10 people were wielding 'lathis'. We find that it was impossible for Ganesh to witness the incident in which the injured received injuries. PW-4 Budha Ram has also deposed in similar manner and since he did not reach the place of occurrence prior to Ganesh it was impossible for him to witness the incident. He has stated that when his father reached the house of Narayan all the accused persons started inflicting injuries to his father. Thereafter, he states that the accused Ramu inflicted an injury to the neck of the deceased by 'fame. According to this witness he remained outside and did not enter the house of Narayan. He has stated that when his father reached the house of Narayan all the accused persons started inflicting injuries to his father. Thereafter, he states that the accused Ramu inflicted an injury to the neck of the deceased by 'fame. According to this witness he remained outside and did not enter the house of Narayan. According to the prosecution story and the evidence which has come, the injured was surrounded from all sides by the crowd during the incident and in these circumstances, when the house was surrounded by a thorny fence of considerable height it was impossible for Budharam to witness any incident. He has stated that 4-5 persons of the village were standing outside the gate and another 4,5 persons were standing inside the gate and they never participated in the incident. Needless to say that he should at least be able to tell the names of these 8-10 people who were standing near him throughout the incident but he has not been able to disclose the name of even one of them. Ganesh and Budharam both have contradicted their earlier statements Ex.D/1 and D/2 respectively which were recorded under Section 161 of the Cr.PC. Both son and father specifically deposed that all the accused persons were present and participated in causing injuries lo Mohanram. However, in the statement Ex.D/1 and Ex.D/2 involvement of only seventeen persons has been mentioned. 5. So far as PW-6 Narayan Ram and his wife PW-7 Narbada are concerned they have denied that Ramu, Kalu and Heera came to Narayan in order to purchase liquor. Instead both have deposed that Godha (who has been acquitted) and Budha came to their house for liquor. They have stated that after the two returned, it was the 'entire village' who attacked their house and they are not sure whether the appellants were present or not during the incident. PW-6 Narayan Ram has denied that the statement (FIR) Ex.P140 was dictated by him. In this way the very FIR has been disowned by him. After hearing the contents of Ex.P/41 the witness denied that the statement like this was made by him. Regarding the thumb impression the witness has stated that it was obtained by the police saying that since the incident had taken place in his house, he was required to thumb-mark the paper. 6. After hearing the contents of Ex.P/41 the witness denied that the statement like this was made by him. Regarding the thumb impression the witness has stated that it was obtained by the police saying that since the incident had taken place in his house, he was required to thumb-mark the paper. 6. The learned Public Prosecutor has argued that so far as the appellant Budha is concerned, the deposition of PW-7 Smt. Narbada alone is sufficient to bring home the charges against him. It is contended that the said appellant has been duly identified in the court by the said witness and she has narrated his involvement in the incident in no uncertain terms. We find that the submission made by the learned Public Prosecutor in this as connection is not at all acceptable. No doubt she has stated, in her examination-in-chief, that the appellants Budha and Godha both came for liquor to her house and when her husband Narayan told them that there was no liquor available, the appellant Budha inflicted the fatal injury on the neck of Mohan with a 'farsa'. Thereafter, 'all others' started belabouring Mohan so with 'lathies'. According to her, the sharp-edged weapon 'farsa' was with Budha and all other assailants were wielding lathies'. In this way, Smt. Narbada has deposed in total contradiction of her statement Ex.P/42 recorded under Section 161 of the Cr P.C. According to Ex.P/42, three accused-persons Ramu, Kalu and Heera went to the house of Narayan for liquor. Contrary to this. the deposition of Smt. Narbada is to the effect that Godha and Budha only came for liquor. According to Ex.P/42, the incident took place in two parts. Initially, Ramu, Kalu and Heera created the scene at the house of Narayan for liquor but Narayan persuaded thorn to leave the house, whereupon, all the three left the house and went away. Thereafter, Ramu, Kalu and Heera came with 'farsa' and 'dhariya', and shouted that the 'worm' must be finished. In her deposition, PW-7 Narbada has stated that the whole incident took place in one go. She does not say that initially the assailants went back and thereafter they returned. According to the prosecution story, it were Ramu, Kalu and Heera who initially came for liquor. However, Smt. Narbada specifically denied that the said three came to her house for liquor. She does not say that initially the assailants went back and thereafter they returned. According to the prosecution story, it were Ramu, Kalu and Heera who initially came for liquor. However, Smt. Narbada specifically denied that the said three came to her house for liquor. She admitted that her statement under Section 161 of the Cr.PC. was recorded by the police. However, she has specifically stated that during her statement made to the police, she did not disclose the name of any of the assailants. According to her, she simply stated that persons were involved and nobody's name was disclosed by her in the police statement. According to prosecution story, it was the appellant Ramu, who inflicted the total injury on the neck of the deceased with a sharp-edged weapon. This aspect was put to Smt. Narbada by the Spl. Public Prosecutor and she denied the same. She attributes a sharp-edged weapon with Budha Ram and has stated that Mohan received injuries from Budha Ram by a sharp-edged weapon which does not find place in her statement Ex.P/42. According to Ex.P/42, the accused Budhararn was wielding a lathr. In her deposition, she has stated that Budhar am had a 'farsi' and inflicted injury to the neck of the deceased by the same. The witness has not been able to stand the cross-examination at all and has stated that she cannot tell as to which of the accused-persons inflicted injuries by 'lathier' or by stones. She has further gone to the state that the number of the assailants could be more than 20-25. In her cross-examination, she was given a suggestion that actually none of the appellants inflicted any injury to anyone. She could not deny the suggestion and admitted that it could be so. Needless to say that the deposition of Smt. Narbada, in this way, being contrary to the prosecution story and contrary to her own statement (Ex.P/42) recorded under Section 161 of the Cr.PC. the same cannot be made the basis of conviction of the accused Budha. 7. PW-8 Saradara Ram has been declared hostile by the concerned prosecutor but his statement does not suggest that he had been won over by the accused persons or was influenced by them. He has stated that the house of Narayan Ram was attacked by 30-40 people and the persons standing were all part of the said crowd. 7. PW-8 Saradara Ram has been declared hostile by the concerned prosecutor but his statement does not suggest that he had been won over by the accused persons or was influenced by them. He has stated that the house of Narayan Ram was attacked by 30-40 people and the persons standing were all part of the said crowd. According to this witness the accused Rupa had the 'dhariya' and all other had 'lathies' with them. According to the witness the deceased was surrounded by the crowd and was fatally wounded thereafter. The witness stated that since 30-40 persons were inflicting injuries, he was not in a position to tell as to which accused inflicted injury to the deceased. However, the deposition of Saradara Ram is not in harmony with the prosecution story as disclosed in the FIR. The witness has denied that the appellant Ramu was wielding any 'farsi' and Kalu and Heera were wielding 'dhariyas'. During cross-examination he stated that it was not possible to say as to actually which accused caused injury to the deceased and to Ganesh. Regarding the arrival of Ganesh the witness is 1 specific that Ganesh appeared on the scene much after Mohan fell to the ground, The deposition with his earlier statement Ex.P.43 recorded under Section 161 of the Cr.PC. 8. We find that the prosecution evidence which has come on record is s a complete mess and it is well nigh impossible to separate the grain, if any, from the chaff. As pointed out earlier the prosecution has examined five dose relations of the deceased as eye-witnesses. It is not that there were no other eye-witnesses. As pointed out earlier the school-girl who initially saw the beating and then went to Narayan to inform him about the incident was a lo very important witness but she has not been examined by the investigating officer. It has come in evidence that the school is nearby and the number of students was between 50 to 60 only. It was, thus, not impossible to locate the girl and then to record her statement. The teachers in the school were independent persons and it was natural that they must reach the scene of occurrence, the school being nearby, but no such teacher has been examined. According to Sardara Ram the houses of Bhornaram and Pukhraj are in the vicinity but they have also not been examined. The teachers in the school were independent persons and it was natural that they must reach the scene of occurrence, the school being nearby, but no such teacher has been examined. According to Sardara Ram the houses of Bhornaram and Pukhraj are in the vicinity but they have also not been examined. According to PW-3 Ganesh the houses of Surajmal, Gokul, Poker, Sonaram and Rawta are in the vicinity. He has further admitted that Sonaram Bawari was present at his house at the time of incident. The witness has further admitted that the houses of Jora, Mohan and Babu are also in the vicinity. He has admitted that the school was also situate nearby and the teachers were present in the school. According to the Site Map Ex.P145 and the Site-Note Ex.P/2 the houses of Shenker Bheel and Sonaram Bawari are situated in close vicinity. It therefore, cannot be said that the residents of the aforementioned houses were impossible to have any knowledge about the incident or about the identity of the assailants. But systematically the concerned investigating officer has kept all of them out of the scope of investigation. There is a mention in the FIR Ex.P/40, about the presence of the 'Sarpanch' of the village Denaram (PW-1) who allegedly sent the information regarding the incident either to the police or to the SDM or to both. This witness was examined under Section 161 of the Cr.P.C. more than once and according to the prosecution story he has all the idea about the events which took place on 28.9.95 prior to the incident in question and he allegedly saw all the challenged persons coming out of the house of Narayan Ram armed with deadly weapons after the incident. Strangely enough, though this Demaram Meghwal, Sarpanch was examined as PW-1 but the concerned prosecutor did not ask even a single question from him about the presence of the accused persons and he has been examined simply as a 'motbir witness only. 9. PW-3 Ganesh in his cross-examination has specifically stated that within half an hour of the incident the police arrived at the spot and it was Avtar Singh, Dy. Superintendent of Police who enquired about the incident from Budha, Narayana and Sardara. Further it is stated that the injured Ganesh was transported to Hospital by PW- 13 Avatar Singh. 9. PW-3 Ganesh in his cross-examination has specifically stated that within half an hour of the incident the police arrived at the spot and it was Avtar Singh, Dy. Superintendent of Police who enquired about the incident from Budha, Narayana and Sardara. Further it is stated that the injured Ganesh was transported to Hospital by PW- 13 Avatar Singh. The witness has further stated that prior to his journey to the hospital at all the details of the incident were narrated by him to Avtar Singh. He has further state that whatever was told by him to Avtar Singh was recorded by the police simultaneously and thereafter he was taken to the hospital at 'Rohit' by the police which was barely 15 Kms. away from the place of occurrence. The witness is positive that after the first-aid at Rohe hospital he returned to his village within half an hour. According to the FIR Ex.P/40 Ganesh was taken to the hospital prior to the arrival of the police. In this connection PW-3 Ganesh has denied the suggestions to the effect that he went to the hospital prior to the arrival of the police. Needless to say that in these circumstances the statement Ex.P/40 (FIR) which was recorded at 5 p.m. becomes a post investigation document. in the light of the statement of PW-3 Ganesh to the effect that within half an hour of the incident the police (PW-13 Avtar Singh, DSP) arrived at the place of occurrence and he narrated the whole incident to Avtar Singh which was duly recorded on paper by the police, we find that it is highly suspect that the FIR Ex.P/40 was actually recorded on 28.9.95. The formal FIR Ex.P/76, although has an endorsement to the effect that it was dispatched with special messenger to the Magistrate on 28.9.95 itself but actually Ex.P/76 was delivered by the special messenger to the concerned Magistrate during office hours on 29.9.95 and that creates a doubt that it actually was sent with the special messenger on 28.9.95, and the defence suggestion to the effect that Ex.P/40 as well as Ex.P/76 were recorded on 29.9.95 and were ante-dated becomes acceptable. 10. As pointed out earlier the FIR/Parchabayan Ex.P/40 contains the name of only 13 accused persons including Godha, Bhiyan and Gokul SA) Narayan. 10. As pointed out earlier the FIR/Parchabayan Ex.P/40 contains the name of only 13 accused persons including Godha, Bhiyan and Gokul SA) Narayan. The names of the appellants Madanlal, Heerdas, Gamandaram, Jeevaram, Mangilal, Arjun and Jeevan Singh do not find a mention in the FIR. The said Godha, Bhiyan and Gokul She Narayan have been acquitted mainly on the ground that even in the statements recorded under Section 161 of the CrPC. their names do not find place. Though the parchabayan' Ex.P/40 of Narayan Ram contains the names of only 10 appellants and three persons who have been acquitted, his statement Ex.P/41 recorded under Section 161 of the Cr.P.C. makes a mention of the names of as many as 17 assailants. This ana-moly between Ex.P/40 and Ex.P/41 has not at all been explained. Wife of Narayan, PW-7 Narbada was examined under Section 161 of the of the Cr.P.C. However her statement Ex.P/42 contains only 13 names. The statement Ex.P/43 of Sardara (PW-8) recorded under Section 161 of the Cr.P.C. contains the names of only 16 persons and the names of appellants Khima and Arjun do not find place therein. 11. It will not be out of place to mention here that during the deposition of the alleged eye-witnesses the appellants were not identified properly in the court. In an omnibus manner the witnesses without naming each accused and identifying them in the court have simply stated to the effect that "all the accused persons" participated in the crime. Needless to say that the witnesses were to name each one of the accused person and then also identify him in the court but the same was not done. This, in itself, is fatal to prosecution and it cannot be said that the accused persons were properly identified during trial. 12. In view of what has been said above this becomes a fit case in which the appeal should be allowed and the same is hereby allowed. The judgment of the trial court is set aside. The appellants are acquitted of all the charges. The appellants whose sentences have not been suspended shall be released forthwith unless they are needed in connection with any other caseAppeal Allowed - Conviction Set Aside. *******