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2008 DIGILAW 1289 (MP)

Chhaabilal v. State of M. P.

2008-11-04

A.K.SHRIVASTAVA, SUSHMA SHRIVASTAVA

body2008
JUDGMENT Shrivastava, J. -- 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 3.4.1999 passed by learned 2nd Additional Sessions Judge, Tikamgarh in Sessions Trial No.37/95 convicting the appellant Mathura under section 302, IPC and appellant-Chhabilal under sections 302/34, IPC and sentencing them to suffer imprisonment of life and fine of Rs.500/- each, in default of payment of fine, further SI of one month each, the appellants have preferred this appeal under section 374(2) of Code of Criminal Procedure, 1973. 2. In brief, the case of prosecution is that on 27.7.1994 at 8:00 p.m. in village Tanga, Narendra Singh (hereinafter referred to as "the deceased") was talking to Harimohan. His brother Devendra and witness Daulat arrived here from village Bamhori Abada to call the labours. All these persons were standing there, at that juncture, one tractor came. The deceased raised his hands to stop this tractor but it did not stop, as a result of which deceased started chasing it. In between appellants came from a Gali (lane) and asked who is there, on this, deceased told that I am Narendra, thereafter it is said that appellant-Chhabilal asked Mathura Maro, as a result of which Mathura fired the gun on the deceased, and eventually deceased fell down. Thereafter, appellants fled from the place of occurrence. The persons present there namely Devendra, Harimohan and Daulat uplifted the deceased and brought him inside the house of Harimohan, however, deceased could not survive and he died. 3. It is the further case of prosecution that last election was fought by deceased and appellant Chhabilal and there was election rivalry between them. The brother of the deceased Devendra got the report written by one Sanjay and the said written report was given in the police station on the date of incident in the night. 4. On lodging of the first information report, criminal law was triggered and set in motion. A case was registered against the appellants. The investigating agency arrived at the spot; prepared Panchayatnama of the dead body and sent it for post-mortem; prepared the spot map; recorded the statement of the witnesses; on the basis of the memorandum statement of appellant-Chhabilal, one empty cartridge of 12 bore was recovered. The gun and the cartridge were sent to ballistic expert. The investigating agency arrived at the spot; prepared Panchayatnama of the dead body and sent it for post-mortem; prepared the spot map; recorded the statement of the witnesses; on the basis of the memorandum statement of appellant-Chhabilal, one empty cartridge of 12 bore was recovered. The gun and the cartridge were sent to ballistic expert. After the investigation was over, a charge-sheet was submitted in the committal Court which, on it turn, committed the case to the Court of Session and from where it was received by the trial Court for its trial. 5. Learned trial Judge, on the basis of the averments made in the charge-sheet, framed charge against appellant Mathura under section 302, IPC while charge under section 302/34 of IPC was framed against appellant Chhabilal. Needless to emphasis, both the appellants abjured their guilt and requested for trial. 6. In order to bring home the charges, prosecution examined as many as 10 witnesses and placed Ex.P-1 to P-21, the documents on record. The defence of appellants is of false implication on account of election rivalry and in support of their defence, they examined Paltu (DW1), Kure (DW2), Ramkishore Pathak (DW3), Vishwanath Pathak (DW4), Kanti Devi (DW5), Churbara (DW6), Munna (DW7), Shivlal (DW8) and Ganpat (DW9). 7. Learned trial Judge, on the basis of the evidence placed on record, came to hold that appellant Mathura has committed the offence under section 302, IPC while appellant Chhabilal committed the offence under section 302/34, IPC, accordingly, learned trial Court convicted them and passed the sentence which we have already mentioned herein above. 8. In this manner, the present appeal has been filed by the appellants assailing their judgment of conviction and order of sentence. 9. It has been argued by Shri Jagat Sher Singh, learned counsel for the appellants, that Devendra is the brother of the deceased and other eye-witnesses Harimohan and Daulat are the chance witnesses. The contention of learned counsel is that if the evidence of these witnesses is taken into consideration in proper perspective, it is difficult to hold that they are the eye-witnesses. By inviting our attention to the testimony to Dr. The contention of learned counsel is that if the evidence of these witnesses is taken into consideration in proper perspective, it is difficult to hold that they are the eye-witnesses. By inviting our attention to the testimony to Dr. H.N. Nayak (PW8) who is the Autopsy Surgeon and his post-mortem report Ex.P-10, it has been argued that five card wad plastic lid and bullet were taken out from the body of the deceased which would mean that the fire was made from a close range and all the eye-witnesses are also saying that from the close range gun was fired by Mathura. However, Investigating Officer R.S. Thakur (PW9) has stated that the spot map Ex.P-3 was prepared by him and in the spot map the distance from where gun shot was fired is 20 ft. and, thus, the presence of eye-witnesses become highly doubtful and the appellants have been roped on account of election rivalry. In support of his contention learned counsel has placed heavy reliance on the decision of Supreme Court Bhola Singh v. State of Punjab [1999(I) MPWN 71=1999 AIR SCW 380]. By placing reliance on the decision of Supreme Court Budhwa alias Ramcharan and others v. State of Madhya Pradesh [1990 JLJ 761= AIR 1991 SC 4 ], it has been argued that if there is sufficient evidence that there is group rivalry and election enmity, presence of accused becomes doubtful. Learned counsel has also invited out attention to the evidence of Investigating Officer R.S. Thakur (PW9) para 7 and has submitted that there is no compliance of section 157, CrPC. In support of his contention, learned counsel has placed reliance on the decision of Supreme Court Suresh Chaudhary v. State of Bihar [ (2003)4 SCC 128 ]. Further it has been argued by learned counsel that the incident had taken place at 8:00 p.m. and it was a dark night and there is overwhelming evidence in that regard therefore, it is difficult to infer that the eye-witnesses have seen the incident. Further it has been argued by learned counsel that the incident had taken place at 8:00 p.m. and it was a dark night and there is overwhelming evidence in that regard therefore, it is difficult to infer that the eye-witnesses have seen the incident. By inviting our attention to the evidence of author of FIR Devendra (PW1) who is brother of the deceased as well as the scribe of the written report Sanjay Chaturvedi (PW5), it has been submitted that if the evidence of these two witnesses is closely scrutinised, it would become as clear like a noon day that the report was lodged on next day in the morning. But, according to prosecution, FIR was lodged on the date of incident viz. 27.7.1994 at 23:30 hours and, hence, it can be said that FIR is ante-time and ante-dated and for this reason compliance of section 157, CrPC was not made. 10. By putting emphasis on the role assigned to appellant-Chhabilal, it has been argued that looking to the evidence of the eye-witnesses even if his presence is found to be proved, since as per prosecution's own case, this appellant has only stated Maro, his act would not come under the ambit and sweep of section 34, IPC and it cannot be said that he shared the common intention to kill the deceased and, therefore, he cannot be convicted under section 302/34, IPC. On these premised submissions, it has been argued by learned counsel that this appeal be allowed by setting aside the impugned judgment of conviction and order of sentence passed against the appellants. 11. On the other hand, Shri Modh, learned Deputy Advocate General, argued in support of the impugned judgment and has submitted that Harimohan (PW3) cannot be said to be a chance witness because incident had occurred in front of his house. By inviting our attention to the testimony of other eye-witnesses Devendra (PW1) and Daulatram (PW4), it has been argued that the incident had occurred on the road and if that would be the position the persons who were present there cannot be said to be a chance witness. In support of his contention, learned Deputy Advocate General has placed reliance on the decision of Supreme Court Rana Pratap and others v. State of Haryana [ AIR 1983 SC 680 ]. In support of his contention, learned Deputy Advocate General has placed reliance on the decision of Supreme Court Rana Pratap and others v. State of Haryana [ AIR 1983 SC 680 ]. On the same point he has also placed reliance on another decision of Supreme Court State of Andhra Pradesh v. K. Srinivasula Reddy [ AIR 2004 SC 3305 ]. 12. On the point of alleged non-compliance of section 157, CrPC, it has been argued by learned Deputy Advocate General that mere delay in sending copy of FIR to Magistrate will not be fatal. To buttress his submission, reliance has been placed on Rabindra Mahto and another v. State of Jharkhand [ AIR 2006 SC 887 ]. Further it has been argued that if the FIR is registered and investigation was started mere non-compliance of section 157, CrPC, cannot be said to be fatal and in that context, he has placed reliance on State of A.P. v. S. Rayappa and others [2006 SAR (Criminal) 228 (SC)]. 13. By inviting our attention to the evidence of Harimohan (PW3), it has been argued that application under section 311, CrPC was filed on behalf of appellant Mathura after examination of Harimohan (PW3) was over and the same was allowed by the trial Court on 10.11.1998 and, therefore, if certain discrepancies have been crept out from his testimony, the same should not be relied upon in view of the decision of Supreme Court Khujji alias Surendra Tiwari v. State of M.P. [AIR 1991 SC 1583]. 14. On the point of conviction of appellant Chhabilal under section 302/34, IPC it has been argued that gun was of appellant Chhabilal and, therefore, when the presence of both the appellants have been established by the prosecution witnesses, looking to the circumstances that gun is of Chhabilal, it can be inferred that in order to share the common intention to kill the deceased, appellant Chhabilal handed over his gun to appellant Mathura and, hence, this appellant has been rightly convicted under section 302/34, IPC. 15. Having heard learned counsel for the parties, we are of the view that this appeal deserves to be allowed. 16. In the present case, a written report Ex.P-1 was submitted by complainant Devendra Singh to Station Officer In-charge, Police Station Jatara, District Tikamgarh which was received on 27.7.1994 at 23:30 hours. 15. Having heard learned counsel for the parties, we are of the view that this appeal deserves to be allowed. 16. In the present case, a written report Ex.P-1 was submitted by complainant Devendra Singh to Station Officer In-charge, Police Station Jatara, District Tikamgarh which was received on 27.7.1994 at 23:30 hours. Devendra (DW1) has categorically proved his written report Ex.P-1 and has also admitted that the same was firstly written by Sanjay Chaturvedi (PW5) and thereafter it was submitted in the police station on the basis of which the first information report Ex.P-2 was registered on the date of incident viz. 27.7.1994 at 23:30 hours. On going through these two documents, it is revealed that Devendra (PW1) who is the brother of the deceased came from his village Bamhori Abada to contact some labours for the construction of his well and arrived in village Tanga at 8:00 p.m. where he found the deceased standing in front of the house of Harimohan and all of them were talking to each other. At that juncture, one tractor came towards the village and the deceased raised his hands to stop the said tractor but it did not stop, as a result of which deceased chased the said tractor. At that time appellants came there. According to this witness appellant-Mathura was having 12 bore gun in his hand and both the appellants came in running condition. On being asked by them who is there, deceased replied expressing his presence and thereafter appellant Chhabilal told appellant Mathura Maro who immediately fired the gun and thereafter both the appellants ran away. Thereafter this witness, Harimohan and Daulat uplifted the deceased and brought him to the house of Harimohan. This witness thereafter went to village Bamhori Abada to bring the vehicle and before he could return to village Tanga, deceased already died. It has also been stated in the written report that deceased and Chhabilal fought the election against each other and there was election rivalry. Devendra when appeared in the Court as PW1, proved his written report Ex.P-1 as well as FIR Ex.P-2 which was written on the basis of Ex.P-1. 17. According to this witness, deceased tried to stop the tractor but when it did not stop, he chased the tractor. Thereafter both the appellants came in running condition. Devendra when appeared in the Court as PW1, proved his written report Ex.P-1 as well as FIR Ex.P-2 which was written on the basis of Ex.P-1. 17. According to this witness, deceased tried to stop the tractor but when it did not stop, he chased the tractor. Thereafter both the appellants came in running condition. Appellant-Mathura was carrying a 12 bore gun and he raised alarm that who is there, in reply deceased expressed his presence and thereafter appellant Chhabilal asked appellant Mathura by saying Maro Do Goli (fire the gun) thereafter appellant Mathura fired the gun and the bullet struck the right abdominal region of the deceased. 18. In cross-examination, Devendra (PW1) has admitted in para 5 that he had passed High School. He has also admitted in para 6 that all of a sudden he came to village Tanga to meet his brother Narendra (deceased) and immediately thereafter within 5-10 minutes he was murdered. In para 9 when he was confronted that why he accompanied other witness Daulat (PW4) of his village, this witness has stated that there was no special reason to accompany him. According to this witness, he was going to village Tanga and witness Daulat himself expressed his wishes to accompany him. Further he has stated that Daulat, all of a sudden met him when this witness was going alone to village Tanga. Further he has admitted that the presence of Daulat has not been mentioned in his written report Ex.P-1 and why it has not been so mentioned, he cannot say, although he narrated this fact to the police. Further he has stated that he came to village Tanga to contact the labours to construct the well in his village. However, he has admitted in para 9 that deceased was chasing the tractor, and when it did not stop this witness also started chasing the tractor, but, why this fact has not been mentioned in his written report Ex.P-1 and his case diary statement Ex.D-2, he cannot say though these facts were told by him to the police. 19. In para 11 of his cross-examination, this witness has specifically stated that Investigating Officer prepared the spot map on the next day i.e. 28.7.1994 and he pointed out the place where witness Harimohan and Daulat were standing. According to this witness, the electric light was on at that time. 19. In para 11 of his cross-examination, this witness has specifically stated that Investigating Officer prepared the spot map on the next day i.e. 28.7.1994 and he pointed out the place where witness Harimohan and Daulat were standing. According to this witness, the electric light was on at that time. In para 12 of his cross-examination, he has admitted that he did not state the factum that there was any source of light in his written report Ex.P-1. Thereafter this witness has stated that the gun shot was fired at the range of 7-8 ft. but the distance between the barrel of the gun and the deceased was only 3-4 ft. and this fact was also stated by him to the Investigating Officer when the spot map was being prepared. This witness has also stated that if the distance of causing gun shot fire has been shown in the spot map to be 20 ft., the same is incorrect. Further this witness has stated that while preparing the spot map why the Investigating Officer has mentioned that he (this witness) saw the incident from a distance 50-55 ft. he cannot say. 20. In para 15 of the cross-examination, this witness has admitted that except appellant Chhabilal, deceased was not having any enmity with anybody. The cause of enmity between Chhabilal and deceased has been stated by this witness that they fought election and appellant Chhabilal won the election. In para 16 of his cross-examination, this witness has stated that in front of Block Officer of Jatara, Sanjay Chaturvedi, the scribe of his written report Ex.P-1 met him to whom this witness told the incident. Earlier to it he did not tell anybody except to his father. According to this witness when he met Sanjay Chaturvedi he was perplexing and thereafter Sanjay Chaturvedi also accompanied to the police station and told the incident to TI (Town Inspector). The Town Inspector insisted to submit a written report and thereafter report was written by Sanjay Chaturvedi. 21. On marshalling the evidence of this witness, it is gathered that this witness is a resident of other village Bamhori Abada and he came to village Tanga to contact the labours at 8:00 p.m. and all of a sudden he met to Daulat in his village Bamhori Abada and the said witness Daulat also accompanied him to village Tanga. 21. On marshalling the evidence of this witness, it is gathered that this witness is a resident of other village Bamhori Abada and he came to village Tanga to contact the labours at 8:00 p.m. and all of a sudden he met to Daulat in his village Bamhori Abada and the said witness Daulat also accompanied him to village Tanga. Further it is carved out from his testimony that from a close range of 3-4 ft. gun shot was fired by appellant Mathura on the insistence of appellant Chhabilal. According to us, the statement given by him in his examination-in-chief Maro goli (fire the gun) is material improvement because this fact has not been stated by this witness either in his written report Ex.P-1 on the basis of which FIR was lodged or in his case diary statement Ex.D-2. In these two documents simply it has been stated by this witness that Chhabilal told Maro and nothing more. It has also been crept out from his testimony that the factum of causing fire by 3-4 ft. was stated to the Investigating Officer and if in the spot map 20 ft. distance has been shown, the same is incorrect. 22. The other eye-witness is Harimohan (PW3) and, according to him, on the date of incident he was standing along with the deceased in front of his house. At that time, from village Bamhori Abada, Daulat and Devendra also arrived and all of them were talking to each other. Devendra was saying that he has to arrange the labours to construct his well. Thereafter towards village Tanga a tractor came and the deceased gave signal to stop but when that tractor did not stop deceased started chasing the said tractor and this witness, Daulat and Devendra were also chasing the deceased. At that juncture, from another side appellants came there. Appellant Chhabilal asked who stopped the tractor and in its reply deceased told that I had stopped. Thereafter appellant Chhabilal asked Mathura Maro Goli (fire the gun) and thereafter Mathura who was carrying the gun fired it. Thereafter both of them went away. According to this witness, Devendra went to village Bamhori Abada to bring a tractor and before he could return along with the tractor, deceased already died. 23. Thereafter appellant Chhabilal asked Mathura Maro Goli (fire the gun) and thereafter Mathura who was carrying the gun fired it. Thereafter both of them went away. According to this witness, Devendra went to village Bamhori Abada to bring a tractor and before he could return along with the tractor, deceased already died. 23. In cross-examination, above said witness has admitted that 2-3 months earlier to the incident there was an election of Sarpanch of the Gram Panchayat and the same was contested by the deceased as well as by Chhabilal apart from one Kamlesh. The factum of winning the election by appellant Chhabilal has been admitted by this witness. Further this witness has admitted that earlier to the winning of this election, for last ten years deceased was the Sarpanch. This witness has further stated that although deceased lost the election and appellant Chhabilal won the said election but the relationship between both of them were cordial. On being confronted to his case diary statement Ex.D-1, this witness has admitted that after the election, the relationship became strained, but earlier to the election the relations were cordial. Hence, according to us, on the point of election rivalry this witness is trying to conceal the reality and when he was confronted from his case diary statement, then only he has admitted that there was election rivalry between the deceased and appellant Chhabilal. In para 7 of his cross-examination, this witness has admitted that in front the house of Bihari Bunkar the deceased received gun shot injury. Further he has stated that at a close range of 7-8 ft. gun shot was fired and this witness and other eye-witnesses namely Devendra and Daulat were 8-10 ft. behind the deceased. Further this witness has stated that he did not say to the Investigating Officer that he saw the incident from 50 ft. and if the said fact has been mentioned by the Investigating Officer, he cannot state the reason. Further he has stated in para 8 of his cross-examination that he did not say to the Investigating Officer that at a distance of 20 ft., gun shot fire was caused and if the Investigating Officer has written this fact, he has no reason to say. In para 12 of his cross-examination, this witness has admitted that in the election of appellant Chhabilal, appellant Mathura was his supporter. In para 12 of his cross-examination, this witness has admitted that in the election of appellant Chhabilal, appellant Mathura was his supporter. Further in para 13 of his cross-examination, this witness has admitted that the date of incident was a dark night and electric power was off in between 7 to 10 p.m. Thereafter he has stated that specifically he cannot say that who told Mathura to kill the deceased. 24. Last eye-witness is Daulat (PW4). He has stated that on the date of incident he was sitting on the door of his younger brother, at that juncture, he saw that Devendra (PW1) was passing away. On being asked to him where he is going, Devendra replied that he is going to village Tanga. This witness also expressed his desire to go to village Tanga because his sister-in-law resides there. Thereafter both these persons went to village Tanga and reached there at late night. According to this witness, when they reached nearby the house of Harimohan, they saw deceased and Harimohan standing there, at that time, there was sufficient light of electric power. Thereafter one tractor came there and deceased tried to stop it but the same did not stop as a result of which deceased chased the said tractor. At that time, from the other side appellants came there. Appellant Chhabilal asked who has stopped the tractor. On this, deceased told that he had stopped. Thereafter appellant Chhabilal told Mathura Mar Sale Ko and thereafter appellant Mathura fired the gun and bullet struck the abdominal region of the deceased. In para 10 of his cross-examination, this witness has admitted that gun shot was fired at a distance of 3-4 ft. of the deceased. The suggestion put to him that it was fired at a distance of 20 ft. has been denied by him. Further he has stated that why he stated in the spot map that gun shot was fired at a distance of 20 ft., he cannot say. The omission of stopping tractor by the deceased was also confronted to him from his case diary statement Ex.D-3. Further this witness has stated that at the time of preparation of the spot map, he pointed out the place of electric light but why that fact has not been mentioned in his statement, he cannot say. He has stated that he saw the incident at a distance of 10-15 ft. Further this witness has stated that at the time of preparation of the spot map, he pointed out the place of electric light but why that fact has not been mentioned in his statement, he cannot say. He has stated that he saw the incident at a distance of 10-15 ft. but why the distance 55 ft. has been mentioned in spot map, he cannot say. 25. If we marshal the evidence of the above three eye-witnesses, it is gathered that all of them are saying in singular voice that at a close range of 3-4 ft., gun shot was fired by appellant Mathura to the deceased. The factum of causing gun shot from a close range has not at all been stated in the written report Ex.P-1 nor in the case diary statement of any eye-witness. Seeing occurrence from the close distance is also doubtful because the presence of eye-witnesses seeing the incident from a place of 50-55 ft. has been shown in the spot map and it has been specifically stated by the Investigating Officer R.S. Thakur (PW9) in para 11 of his cross-examination that the notes and the identification marks in the spot map Ex.P-3 mentioned by him are on the basis of the information given by the witnesses. On going through the spot map Ex.P-3, it is revealed that Devendra (PW1) and Harimohan (PW3) are the witnesses to this document apart from other witnesses. 26. Thus, it raises heavy doubt about the presence of eye-witness at the time of the occurrence. According to us, all the eye-witnesses are saying that gun shot was fired by Mathura from a close range of 3-4 ft. in order to fit their testimony to the post-mortem report Ex.P-10. According to Dr. H.N. Nayak (PW8), 5 wood cork plastic lid and bullet were taken out from the dead body of the deceased while conducting the post-mortem. Thus it can be inferred that the fire was made from a close range. In this context it would be condign to quote that para of Modi's Medical Jurisprudence and Toxicology 22nd Edition page 356 which reads thus : "If an over short card wad is found in the wound, it indicates that the shot was fired from less than two yards, while its absence suggests more than two yards." 27. In this context it would be condign to quote that para of Modi's Medical Jurisprudence and Toxicology 22nd Edition page 356 which reads thus : "If an over short card wad is found in the wound, it indicates that the shot was fired from less than two yards, while its absence suggests more than two yards." 27. Neither the author of FIR Devendra (PW1) in his written report Ex.P-1 and in his case diary statement Ex.D-2 nor the other eye-witnesses namely Harimohan (PW3) and Daulat (PW4) have stated in their case diary statement that from a close range at a distance of 3-4 ft. gun was fired by appellant Mathura. Indeed, in spot map Ex.P-3 the distance of causing gun shot fire has been mentioned to be 20 ft. and the spot map has been prepared in presence of Devendra (PW1) and Harimohan (PW3). The Investigating Officer R.S. Thakur (PW9) in para 11 of his cross-examination has admitted that the points which are mentioned in the spot map, have been written by him on the information given by the witnesses to the spot map. Thus, on 28.7.1994 when the spot map was prepared it was stated by alleged eye-witnesses namely Devendra (PW1) and Harimohan (PW3) that the gun shot fire was caused from a distance of 20 ft. but when along with charge-sheet the post-mortem report was filed and in order to fit their testimony in the slot of the post-mortem, all the eye-witnesses have changed their version by saying that from a close range of 3-4 ft. gun shot was fired. The Supreme Court in Bhola Singh (supra), has categorically held that omission of eye-witnesses in mentioning the nature of weapon used, their version that accused had used blunt side of weapon was set out to fit in with post-mortem report would make their presence from the scene of occurrence doubtful and the accused is entitled for the benefit of doubt. It will be fruitful to quote that portion of para 5 of the said decision in which the Supreme Court has held as under : "5. .... We have carefully gone through the evidence of Kartar Singh (PW1) and Didar Singh (PW2), the two eye-witnesses. If they had really witnessed the occurrence as had taken place, they would have certainly described the weapons used in causing injuries to the deceased-Saun Singh, leading to his death. .... We have carefully gone through the evidence of Kartar Singh (PW1) and Didar Singh (PW2), the two eye-witnesses. If they had really witnessed the occurrence as had taken place, they would have certainly described the weapons used in causing injuries to the deceased-Saun Singh, leading to his death. It is highly improbable and unlikely that when the accused armed with sharp weapons like Gandasa and Ghop had used only the blunt edged side and not the sharp edged side of the said weapons. We are convinced that these two eye-witnesses had set out his version only to fit in what had been found in the post-mortem report. The normal way in which a Gandasa and Ghop could be used was only from the sharp edged side and not from the blunt edged side. Therefore, it is highly unlikely that the two eye-witnesses PW1 and PW2 could have seen the incident as had taken place. It gives rise to serious doubt, as to their presence at the time of incident. The trial Court and the High Court did not duly appreciate this aspect of the matter and, therefore, we are of the view that there is an error in this regard. Hence, we accept the case as set forth on behalf of the appellant. We allow this appeal, set aside the conviction passed by the trial Court as confirmed by the High Court and set him at liberty." 28. Yet there is another facet of the matter that why all the witnesses are stating that they have seen the incident from a close distance because on the date of occurrence in between 7:20 to 9:00 p.m. there was no source of light because the electric power was cut and in this regard the testimony of Ramkishore Pathak (DW3) who at the relevant point of time was serving on the post of Junior Engineer in M.P. Electricity Board and who, while giving his statement, brought the relevant document has so deposed. According to him in between 7:20 p.m. to 9 p.m. there was no electric supply and in this regard he submitted the requisite document Ex.D-4. Needless to emphasis the credential value of the evidence of defence is at par with that of prosecution witness. Apart from this, this witness is totally an independent witness. According to him in between 7:20 p.m. to 9 p.m. there was no electric supply and in this regard he submitted the requisite document Ex.D-4. Needless to emphasis the credential value of the evidence of defence is at par with that of prosecution witness. Apart from this, this witness is totally an independent witness. When there was no source of light, it cannot be said that eye-witnesses have identified the appellants from a distance of 50-55 ft., since this distance has been mentioned in the spot map Ex.P-3. According to us, all the eye-witnesses are showing their presence at a close distance of 10-15 ft. because in order to create the evidence that even in the dark night they were able to identify appellant Chhabilal phonetically and as per their statement appellant Chhabilal exhorted Mathura to kill the deceased. 29. At this juncture, we would also like to examine the testimony of Chetram (PW7) who is the Patwari and who prepared another spot map EX.P-9. In this spot map also the place of firing gun, 20 ft. has been shown and 55 ft. distance has been shown from where the eye-witnesses have seen the incident. In cross-examination, this witness has admitted that nearby the place of occurrence there is no electric pole and if there would have been any electric pole certainly it would have been mentioned in the spot map hence, according to us, it can be inferred that at that time there was no source of light. Thus, in the light of the above said evidence placed on record, the decision of Rana Pratap (supra), and K. Srinivasulu Reddy (supra), are distinguishable. In absence of source of light, it cannot be said that eye-witnesses have seen the incident from a distance of 55 ft. In this context we may profitably place reliance on the following decisions : (i) Arokia Thomas v. State of T.N. [(2006)10 SCC 542 (para 2)]; (ii) Hem Raj and others v. State of Haryana [ AIR 2005 SC 2110 (para 14)]; (iii) Babboo and others v. The State of M.P. [ AIR 1979 SC 1042 (para 8)]; (iv) Ram Narain and others v. State of Punjab [ AIR 1975 SC 1727 (para 11)]. 30. 30. If we test the testimony of PW5, Sanjay Chaturvedi (who is the scribe of the written report of Devendra (PW1) on the basis of which FIR Ex.P-2 was registered) on the touch stone and anvil of the testimony of Devendra who is author of FIR and Investigating Officer R.S. Thakur (PW9), it can be inferred that FIR is ante-time and ante-dated. Before we marshal the evidence of this witness, we would like to state that this witness is totally an independent person although he is acquainted to the deceased and his brother Devendra Singh, the author of FIR. According to this witness, written report Ex.P-1 was written by him in Police Station Jatara and the same was written on being dictated by Devendra Singh. This witness has specifically stated in para 2 of his cross-examination that the report Ex.P-1 was written by him at 10-11 in the morning. According to him, Devendra Singh (PW1) met him at the bus stand of Jatara. He was perplexing and was insisting this witness to accompany Police Station, Jatara. The statement of this witness that he wrote the report in the morning in between 10 to 11 somersaults the entire case of prosecution, because, as per prosecution's own case on the basis of the written report received by Station Officer In-charge on 27.7.1994 at 23:30 hours, FIR was registered at 23:30 hours on 27.7.1994 and, therefore, it can be inferred that FIR is ante-time and ante-dated. On going through para 6 of the testimony of Investigating Officer R.S. Thakur (PW9), it is revealed that the report was received by him on 27.7.1994 at 23:30 hours. According to us, both the situations cannot exist at one point of time. If the written report Ex.P-1 was written in the morning in between 9-10 as stated by Sanjay Chaturvedi (PW5), how it was received by the Investigating Officer on 27.7.1994 at 23:30 hours. Thus, it would mean that in order to cook the case the factum of receiving written report Ex.P-1 on 27.7.1994 at 23:30 hours has been added later on by the Investigating Officer and, accordingly, FIR Ex.P-2 was registered and, therefore, it can be inferred that the FIR Ex.P-2 is not only ante-time but is ante-dated also. Thus, it would mean that in order to cook the case the factum of receiving written report Ex.P-1 on 27.7.1994 at 23:30 hours has been added later on by the Investigating Officer and, accordingly, FIR Ex.P-2 was registered and, therefore, it can be inferred that the FIR Ex.P-2 is not only ante-time but is ante-dated also. In para 6 of his cross-examination, this witness has admitted that the factum of note 'B' to 'B' in the written report Ex.P-1 was written by him after 5-6 days on the insistence of Town Inspector. The portion marked 'B' to 'B' of Ex.P-1 is "Ba Kalam Sanjay Chaturvedi s/o Shri Ramcharan Chaturvedi, Civil Line, Tikamgarh" (written by Sanjay Chaturvedi s/o Shri Ram Chandra Chaturvedi, Civil Line, Tikamgarh). The truth has come out from the mouth of this witness and, therefore, it can be inferred that after 5-6 days, this witness Sanjay Chaturvedi was called and he was asked to write a written report by the Town Inspector of the police station and on the basis of such report ante-time and ante-dated FIR was registered and this is the reason why the compliance of section 157, CrPC was not made. In this context, it would be fruitful to analysis the evidence of Investigating Officer para 7 wherein he has specifically admitted that he left the instructions to send the copy of the FIR to the concerning Magistrate and this fact has been mentioned by him in his case diary. On being confronted to him to whom he gave such instructions, this witness has stated that those instructions were given to Head Constable Karnpal. Further he has put his inability that whether Head Constable Karnpal had sent copy of the FIR to concerning Magistrate or not. According to IO this fact has also not been mentioned in the case diary. Further he has admitted that whether any copy of FIR was sent to the Magistrate or not, he cannot say and this fact can only be stated by Head Constable. The prosecution has not taken any pains to examine Head Constable Karnpal in order to demonstrate that copy of FIR was sent to the concerning Magistrate in terms of section 157, CrPC. The prosecution has not taken any pains to examine Head Constable Karnpal in order to demonstrate that copy of FIR was sent to the concerning Magistrate in terms of section 157, CrPC. The Supreme Court in Bir Singh and others v. The State of Uttar Pradesh [ AIR 1978 SC 59 para 11], has held that a Court cannot take judicial notice of the compliance of section 157 CrPC, but it has to be proved like any other fact. In this context we may profitably quote that portion of para 11 of the said judgment which reads thus : "11. .... The High Court indulged in another conjecture that the FIR must have been sent to the PP and to the Elaqa Magistrate. This was not however a matter of which judicial notice could be taken but had to be proved like any other fact." Since copy of FIR has not been sent to the Magistrate and there is no iota of evidence in the case diary in this regard, according to us, this amounts to a serious lapse on the part of the investigating agency going to the root of the matter and hammers the authenticity of prosecution's case. In the light of the evidence which has been placed on record, the decisions of Supreme Court Rabindra Mahto (supra), and S. Rayappa and others (supra), are distinguishable. 31. For the reasons stated herein above, we are unable to uphold the conviction of the appellants. Hence, this appeal succeeds and is hereby allowed. The conviction and sentence of appellants is hereby set aside and they are acquitted from all the charges. Appellant Mathura is in jail, he be set at liberty forthwith, if not required in any other case. Appellant Chhabilal is on bail, his bail bonds are hereby discharged.