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2009 DIGILAW 3439 (ALL)

SURENDRA SINGH v. STATE OF U. P.

2009-11-07

VINOD PRASAD, VIRENDRA SINGH

body2009
JUDGMENT Hon’ble Vinod Prasad, J.—The sole appellant Surendra Singh is aggrieved by his conviction under Sections 307, IPC with imposed sentence of life imprisonment with a fine of Rs. 25,000/- and in default of payment of fine to undergo one year further RI by Additional District & Sessions Judge/Fast Track Court No. 4, J.P. Nagar in S.T. No. 355 of 2007 by his impugned judgement dated 9.4.2008.Trial Judge has also ordered to pay a compensation of Rs. 20,000/- to the victim Ramendra Singh P.W.1. Hence this appeal. 2. Encapsulated prosecution allegations against the appellant, as was sketched in the written report Ext. Ka-1 by the informant Gajendra Singh P.W.3 and later on fathered during the trial by him and the injured Ramendra Singh P.W.1, are that the injured Ramendra Singh P.W.1 was a Supervisor Guard in Insilco Factory situated in Gajraula district J.P. Nagar where appellant was an employee but was dismissed from service because of his inefficiency fifteen or twenty days prior to the date of the present incident. 3. On 10.8.2007 at 6.35 p.m. motivated by removal from service appellant perchance came across informant and injured near Raunak Factory gate when they were returning to their house on a cycle and he fired two shots at the injured Ramendra Singh P.W.1 injuring him. Injured was rushed to PHC Gajraula by the informant. From there,after some first-aid, injured was dispatched to District Hospital, Moradabad. Form there injured was hospitalised in Sai hospital, Moradabad and thereafter to Bharat Nursing Home, Meerut for further management of his injuries. 4. F.I.R. of the crime was got scribed from Bhuray and informant lodged it at Police Station Gajraula, district J.P. Nagar on 10.8.2007 at 11.10 p.m. Head Constable Ram Karan P.W.2 prepared the Chik F.I.R. Ext. Ka-1 and corresponding GD entry Ext. Ka-2. S.I. Shahdev Singh P.W.5 commencing the investigation copied Chik FIR, GD entry and medical examination report of the injured and thereafter recorded 161, Cr.P.C. statement of Ram Karan P.W.2 and informant Gajendra Singh P.W.3 and thereafter prepared the site plan Ext. Ka-7. Subsequently I.O. interrogated guard of Raunak Factory and recovered two empty cartridges of 12 bore and blood stained and plain earth and prepared its recovery memos Ext. Ka-8 and Ka-9.Further investigation was conducted by S.I. Daya Ram Singh P.W.6. Appellant meanwhile surrender on 16.8.2007. Ka-7. Subsequently I.O. interrogated guard of Raunak Factory and recovered two empty cartridges of 12 bore and blood stained and plain earth and prepared its recovery memos Ext. Ka-8 and Ka-9.Further investigation was conducted by S.I. Daya Ram Singh P.W.6. Appellant meanwhile surrender on 16.8.2007. On 23.8.2007 the second I.O. Daya Ram Singh P.W.6 recorded 161, Cr.P.C. statement of the injured at Bharat Nursing Home, Meerut and then interrogated the appellant on 24.8.2007. I.O. tried to recover country made pistol from bushes on 25.8.2008 but failed. On 26.8.2007 police remand of the appellant was applied which was allowed on 29.8.2007 and so, on 30.8.2007 appellant was brought to Raunak Factory Gate alongwith Constables Lokash Kumar and Vijay Singh from where he picked up the weapon of assault (country made pistol) and handed it over to P.W.6 who prepared its seizure memo Ext. Ka-10 and the site plan Ext. Ka-11. Concluding investigation I.O., PW6, charge sheeted the appellant vide Ext. Ka-12 on 8.9.2007. 5. Injured first of all was examined at PHC, Gajraula by Doctor Shiv Singh P.W.4 on 10.8.2007 at 9.40 p.m., who was brought to him by driver Dheeraj Singh of Police Station Gajraula and doctor had prepared his injury report Ext. Ka-4. Following injuries were detected by the doctor on the body of the injured : (1) Lacerated wound 5.0 cm X 1.5 cm X bone deep present right site of face cum forehead 5.0 cm medial to togus of of right ear. Bleeding present adv. X ray skull cum face. AD vt adv. (2) Lacerated wound 3.0 cm X1.0 cm X depth not probed proved present on right eyeball cum right upper lid. Bleeding present. K.U.O. kept under observation. R.E.F.D. referred to eye surgeon for expert opinion and management. Firearm wound of entry 2.0 cm. X 2.0 cm. X depth not proved on back of left side just below inferior angel of left scapula to the rounded in shape blackening around the wound present, bleeding present, K.U.O. adv. X-ray chest Ad. vt.- adv. Abraded contusions 3.0 X 2.0 cm present on back 8 cm below injury No. 3, red coloured. 6. In the opinion of the doctor all injuries were fresh in duration. Injury No. 1, 2 and 3 were kept under observation, injury No. 4 was mentioned as simple in nature. Only injury No. 3 was caused by discharge of any firearm. Abraded contusions 3.0 X 2.0 cm present on back 8 cm below injury No. 3, red coloured. 6. In the opinion of the doctor all injuries were fresh in duration. Injury No. 1, 2 and 3 were kept under observation, injury No. 4 was mentioned as simple in nature. Only injury No. 3 was caused by discharge of any firearm. Doctor had also issued two reference slips both dated 10.8.2007, one for ophthalmologist Ext. Ka-5 and other for X-ray Ext. Ka-6. Here we note that neither any ophthalmologist nor any radiologist was examined by the prosecution nor their any report was produced in the trial. Eikly case diary is also silent on this aspect of investigation to determine nature and type of injuries caused to the injured. 7. Case of the appellant was committed to the Court of sessions for trial were appellant denied the charge under Section 307, I.P.C. framed by the Sessions Judge, J.P. Nagar and claim to be tried. 8. To support its case prosecution examined injured Ramendra Pratap Singh and Gajendra Singh informant two fact witnesses as PW 1 and P.W.3. Constable Ram Karan P.W.2, Doctor Shiv Singh P.W.4, S.I. Shahdev Singh P.W.5, Daya Ram Singh P.W.6 and Constable Vijay Singh, the recovery Constable P.W.7 were examined as formal witnesses. 9. In his statement under Section 313, Cr.P.C. appellant took the defence of false implication with additional defence that informant Gajendra Singh wanted to purchase his immovable property at a very cheap price and denial by the appellant got him implicated in the offence. He further mentioned that he was the sole bread earner of his family and has got three small children. He further denied any recovery being made at his instance. 10. Additional District & Sessions Judge/Fast Track Court No. 4, J.P. Nagar found the case of the prosecution proved to the hilt convicted and sentenced the appellant as is mentioned above. Aggrieved by the aforesaid conviction and sentence appellant has approached us through the instant appeal. 11. We have heard Sri Raj Kumar Khanna, advocate for the appellant and Miss Usha Kiran, learned AGA for the State respondent. 12. Sri Khanna submitted that PW1 and PW3, two fact witnesses are wholly unreliable and their depositions are unreal and impeachable in character. Aggrieved by the aforesaid conviction and sentence appellant has approached us through the instant appeal. 11. We have heard Sri Raj Kumar Khanna, advocate for the appellant and Miss Usha Kiran, learned AGA for the State respondent. 12. Sri Khanna submitted that PW1 and PW3, two fact witnesses are wholly unreliable and their depositions are unreal and impeachable in character. Both these witnesses have contradicted each other on all relevant facts of the incident and there testimonies do not inspire any confidence at all. Learned counsel for the appellant challenged the truthfulness of the testimony of the injured by submitting that the injured has deposed a false version of the incident by testifying that two shots were fired at him in the incident and the first shot had caused him injuries in his eyes and face, which allegation has been contradicted by the doctor according to whom injured had not sustained any injury on his face and eyes by gun shot. Learned counsel further submitted that in fact, the injured sustained only a single firearm gunshot wound at the back scapula and consequently injured is not a wholly reliable witness. Advancing further argument it was submitted that the informant was not present at the spot nor he had witnessed the incident and therefore his testimony also does not establish the guilt of the appellant. Learned counsel further submitted that the FIR was lodged very belatedly after a gap of four hours because prosecution version was to be manipulated and cooked up with the help of the police. He further contended that the trial Judge completely ignored the evidences favourable to the appellant and has recorded conviction and sentence taking a lop sided view. Learned counsel further submitted that no offence under Section 307, IPC is made out against the appellant who deserves acquittal. Learned counsel has criticized the impugned judgement by further canvassing that imposed sentence of life imprisonment is extremely excessive and is not commensurate with the guilt of the appellant. Moreover no special reason much less to say an acceptable one has been mentioned by the trial Judge for imposing extreme penalty. He further submitted that the trial Judge has failed to scan and critically analyse prosecution allegations from a right prospective and was swayed by his psychology while sentencing the appellant. Moreover no special reason much less to say an acceptable one has been mentioned by the trial Judge for imposing extreme penalty. He further submitted that the trial Judge has failed to scan and critically analyse prosecution allegations from a right prospective and was swayed by his psychology while sentencing the appellant. It was suggested that present is an incident which had occurred in the darkness and was a case of hit and run from the back and no body had seen the incident and because of the property lust and suspicion appellant has been falsely implicated. It was also suggested that informant was not present at the spot and that is why FIR was lodged very belatedly without any valid explanation and neither informant nor injured had any opportunity to identify the shooter. Concludingly it was argued that the appeal be allowed and the appellant be acquitted of the charge levelled against him. 13. Learned AGA per contra refuted all the submissions of appellants counsel and submitted that informant and injured both have supported the prosecution version and there is no damaging evidence in their depositions, which can dislodge the prosecution version. Presence of the informant at the spot is not doubtful and therefore charge against the appellant is established and appeal being bereft of merits deserves to be dismissed. She further submitted that once the appellant had fired a shot at the deceased his intention to commit murder can very well be presumed and therefore, the recorded conviction is sustainable and appeal deserves to be dismissed in full. 14. We have considered the rival contentions and have gone through the entire record of this appeal including the trial Court record and have our selves cogitated over the evidences of fact witnesses. After analysing entire facts and circumstances, we find that neither injured Ramendra Pratap Singh P.W.1 nor informant Gajendra Singh P.W.3 are wholly reliable witnesses. Their depositions suffers from intrinsic inherent defects with embellishments and therefore cannot be accepted at all. Prosecution and I.O. both have left much to be established. 15. Ab initio we point out that motive to commit the crime has not been established by leading cogent and reliable documentary evidences. Their depositions suffers from intrinsic inherent defects with embellishments and therefore cannot be accepted at all. Prosecution and I.O. both have left much to be established. 15. Ab initio we point out that motive to commit the crime has not been established by leading cogent and reliable documentary evidences. If the appellant was an employee in Insilco factory of the injured and dismissed from service his service record and the documents in respect of his removal could have been filed by the prosecution which it has not done at all. More over an incurrable defect has cropped up in the case procedure and that is that this incriminating circumstance regarding motive to commit the crime has not been put to the appellant under Section 313, Cr.P.C. In such a view we have no hesitation in our mind that once a circumstance, which is incriminating in nature, is not put to the accused in his examination under Section 313, Cr.P.C., the same cannot be taken into consideration against the accused to convict him. Examination of the accused appellant in this respect is very perfunctory. It is recollected that questioning an accused under Section 313, Cr.P.C. regarding all the incriminating circumstances appearing against him in the prosecution evidence is not an empty formality but has got a salutary purpose. It is not an ornamental procedure to be observed as a matter of course. The inherent idea and principle behind such an examination of accused is that he should not be condemned without affording him an opportunity to explain, accept or deny prosecution evidences appearing against him. Trial Judges should be oblivious of such legal duty casted upon them by the statute. It was for them to do justice and to separate the grain from the chaff. Matter of any prejudice being caused to the accused by such non or defective examination is quite another aspect of the matter but none observance of this legal perquisites entail serious repercussions. In the instant case prejudice has been caused to the accused as he could have denied that allegation to be false or could have taken any other defence. Penal statute is a statute of strict liability and therefore all endeavour should be made to hold the trial in accordance with the procedure established by law. In this respect we draw support from few recent decisions of the Apex Court. Penal statute is a statute of strict liability and therefore all endeavour should be made to hold the trial in accordance with the procedure established by law. In this respect we draw support from few recent decisions of the Apex Court. In Ranvir Yadav v. State of Bihar, 2009(6) SCC 595 Apex Court while judging the above legal aspect has held as follows : “Though various points were urged in respect of the appeal, the primary stand was that incriminating materials were not put to Ranvir Yadav in examination under Section 313 of the Code of Criminal Procedure, 1973 (in short “the Code”). Learned counsel for the respondent State on the other hand submitted that the accused is a history-sheeter, has a long criminal record and therefore there is no scope for interference in this appeal. According to him, all the relevant questions were put during examination under Section 313 of the Code. 9. “12. The purpose of Section 313 of the Code is set out in its opening words-’for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him.’ In Hate Singh Bhagat Singh v. State of Madhya Bharat it has been laid down by Bose, J. that the statements of the accused persons recorded under Section 313 of the Code ‘are among the most important matters to be considered at the trial.’ It was pointed out that: (AIR p. 470, para 8) ‘8. ........The statement of the accused recorded by the Committing Magistrate and the Sessions Judge are intended in India to take the place of what in England and in America he would be free to state in his own way in the witness box (and that) they have to be received in evidence and treated as evidence and be duly considered at the trial.’ This position remains unaltered even after the insertion of Section 315 in the Code and any statement under Section 313 has to be considered in the same way as if Section 315 is not there. 13. The object of examination under this section is to give the accused an opportunity to explain the case made against him. This statement can be taken into consideration in judging his innocence or guilt. 13. The object of examination under this section is to give the accused an opportunity to explain the case made against him. This statement can be taken into consideration in judging his innocence or guilt. Where there is an onus on the accused to discharge, it depends on the facts and circumstances of the case if such statement discharges the onus. 14. The word ‘generally’ in sub-section (1) (b) does not limit the nature of the questioning to one or more questions of a general nature relating to the case, but it means that the question should relate to the whole case generally and should also be limited to any particular part or parts of it. The question must be framed in such a way as to enable the accused to know what he is to explain, what are the circumstances which are against him and for which an explanation is needed. The whole object of the section is to afford the accused a fair and proper opportunity of explaining circumstances which appear against him an that the questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. A conviction based on the accused’s failure to explain what he was never asked to explain is bad in law. The whole object of enacting Section 313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to give such explanation as he desires to give. 15. The importance of observing faithfully and fairly the provisions of Section 313 of the Code cannot be too strongly stressed : ’30. ...........it is not sufficient compliance to string together a long series of facts and ask the accused what he has to say about them. He must be questioned separately about each material substance which is intended to be used against him.........The questioning must therefore be fair and couched in a form which an ignorant or illiterate person will be able to appreciate and understand. He must be questioned separately about each material substance which is intended to be used against him.........The questioning must therefore be fair and couched in a form which an ignorant or illiterate person will be able to appreciate and understand. Even when an accused person is not illiterate, his mind is apt to be perturbed when he is facing a charge of murder........Fairness therefore requires that each material circumstance should be put simply and separately in a way that an illiterate mind, or one which is perturbed or confused, can readily appreciate and understand. 10. In order to appreciate the stand relating to not putting the relevant questions during the examination under Section 313 of the Code, the factual scenario needs to be noted. The examination (of Ranvir Yadav) under Section 313 of the Code, the same reads as follows: “Q. It is stated on the basis of statement of witnesses that on 31.7.1982 at around 8.30 a.m. Rameshwar Mistry was killed in Sirjua Diara by firing shot from rifle? What do you have to say about it? A. No, I was falsely implicated. Q. It is also stated that the accused kept the dead body of Rameshwar Mistry, Rajendra Mistry and Bramhdeo Singh on boat and they took Lalit Narayan Singh, Kailash Singh, Challitra Singh, Anil Sahib and Biranchi Das on the boat and killed Kailash Singh by proceeding further and threw the dad body in river by cutting it, what do you have to say? A. Police has implicated me. Safi Alam, SP of Khagaria committed murder on 15.4.1980 in the evening by firing shot. My servant has filed case on him. My uncle filed case on Police SDO from that day, he started implicating me in the case and started saying me to withdrew the case. The police which comes, states the same thing. I was not allowed to study at that time. I was studying . Due to this reason, I was falsely implicated. Q. I heard the statement of witnesses. Do you have to say anything in defence? A. I write it later on. Q. It is also evident that you fired shot from the rifle at the arm of Amin.” It is true as contended by learned counsel for the appellant that no incriminating materials were put to the accused under Section 313 of the Code. Do you have to say anything in defence? A. I write it later on. Q. It is also evident that you fired shot from the rifle at the arm of Amin.” It is true as contended by learned counsel for the appellant that no incriminating materials were put to the accused under Section 313 of the Code. There is no accusation specifically put in question during examination as quoted above. It only refers to victim of kidnapping. So far as Question 3 is concerned same relates to PW 10. He did not say that he had seen gun fired by the appellant. 11. Above being the position the appeal deserves to be allowed. It is a matter of regret and concern that the trial Court did not indicate the incriminating material to the accused. Section 313 of the Code is not an empty formality. There is a purpose behind examination under Section 313 of the the Code. Unfortunately, that has not been done. Because of the serious lapse on the part of the trial Court the conviction as recorded has to be interfered with. Conviction recorded by the High Court is set aside. Bail bonds executed to give effect to the order of bail dated 8.1.2002 shall stand cancelled because of the acquittal. The appeal is allowed to the aforesaid extent." Another judgement is Bimla Devi and another v. State of J&K, (2009)6 SCC 629 . In the aforesaid judgement Apex Court has held as under : 16. In the said case the matter was remanded. But in the present case no useful purpose would be served in remanding the matter since it is more than 20 years old and the appellant has served part of the custodial sentence. Apart from that in the present case, in the examination under Section 313 of the Code no question was put up relating to demand of dowry and abetment of the suicide. That being so, the appeal deserves to be allowed which we direct. The conviction stands set aside. The bail bonds executed to give effect to the order of bail dated 9.1.2001 shall stand discharged.” 16. Yet another decision of the apex Court is Shaikh Maqsood v. State of Maharastra, (2009) 6 SCC 583 . Supreme Court in this case has laid down as follows : 8. “12. The conviction stands set aside. The bail bonds executed to give effect to the order of bail dated 9.1.2001 shall stand discharged.” 16. Yet another decision of the apex Court is Shaikh Maqsood v. State of Maharastra, (2009) 6 SCC 583 . Supreme Court in this case has laid down as follows : 8. “12. The purpose of Section 313 of the Code is set out in its opening words-’for the purpose of enabling the accused personally to explain any circumstances appearing in the evidence against him’. In Hate Singh Bhagat Singh v. State of Madhya Bharat it has been laid down by Bose, J. (AIR p. 469, para 8) that the statements of the accused persons recorded under Section 313 of the Code “are among the most important matters to be considered at the trial’. It was pointed out that : (AIR p. 470, para 8) ‘8. ........ The statements of the accused recorded by the committing Magistrate and the Sessions Judge are intended in India to take the place of what in England and in America he would be free to state in his own way in the witness box (and that they) have to be received in evidence and treated as evidence and be duly considered at the trial............’ This position remains unaltered even after the insertion of Section 315 in the Code and any statement under Section 313 has to be considered in the same way as if Section 315 is not there. 13. The object of examination under this section is to give the accused an opportunity to explain the case made against him. This statement can be taken into consideration in judging his innocence or guilt. Where there is an onus on the accused to discharge, it depends on the facts and circumstances of the case if such statement discharges the onus. 14. The word ‘generally’ in sub-section (1)(b) does not limit the nature of the questioning to one or more questions of a general nature relating to the case, but it means that the question should relate to the whole case generally and should also be limited to any particular part or parts of it. The question must be framed in such a way as to enable the accused to know what he is to explain, what are the circumstances which are against him and for which an explanation is needed. The question must be framed in such a way as to enable the accused to know what he is to explain, what are the circumstances which are against him and for which an explanation is needed. The whole object of the section is to afford the accused fair and proper opportunity of explaining circumstances which appear against him and that the questions must be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate and understand. A conviction based on the accused’s failure to explain what he was never asked to explain is bad in law. The whole object of enacting Section 313 of the Code was that the attention of the accused should be drawn to the specific points in the charge and in the evidence on which the prosecution claims that the case is made out against the accused so that he may be able to given such explanation as he desires to give. 15. The importance of observing faithfully and fairly the provisions of Section 313 of the Code cannot be too strongly stressed : ’30. .........it is not sufficient compliance to string together a long series of facts an ask the accused what he was to say about them. He must be questioned separately about each material circumstance which is intended to be used against him. ......The questioning must, therefore, be fair and must be couched in a form which an ignorant or illiterate person will be able to appreciate an understand. Even when an accused person is not illiterate, his mind is apt to be perturbed when he is facing a charge of murder. ......Fairness, therefore, requires that each material circumstance would be put simply and separately in away that an illiterate mind, or one which is perturbed or confused, can readily appreciate and understand. 9. We find substance in the plea of learned counsel for the appellant that no question was put to be accused which established that he was the author of the crime. That being so, the conviction cannot be maintained and is set aside. The appeal is allowed. The appellant be set at liberty forthwith unless required to be in custody in connection with any other case.” 17. That being so, the conviction cannot be maintained and is set aside. The appeal is allowed. The appellant be set at liberty forthwith unless required to be in custody in connection with any other case.” 17. For the twin reasons mentioned above we are of the opinion that prosecution has failed to establish motive alleged by it nor the same can be considered by us for judging the guilt of the appellant and we have to keep that aspect of the prosecution allegation out of our consideration, which we do. 18. The question, which now arises is as to whether for the aforesaid reason should we set aside the entire prosecution allegations? After going through the material on record we are of the opinion that for the said reason the impugned conviction should not be set aside as the settled position of law is that in a case of an eye witness account motive relegates into the background. Therefore we proceed to summate and critically examine factual aspects of the appeal as was argued before us. 19. According to the deposition of the injured he along with informant was returning on a cycle when the incident occurred. He was paddling the cycle and informant was sitting on the top frame bar. If this fact was correct, there should have been mention of cycle either in the FIR or in 161, Cr.P.C. statement of both the fact witnesses. Curiously enough neither this fact is mentioned in the FIR nor P.W.1 and P.W.3 have disclosed this fact to the I.O. during investigation and it was for the first time that they disclosed it in their cross examination depositions before the Court. Firstly, this omission creates doubt about the presence of the informant at the spot and secondly it shows that witnesses are trying to prevaricate for the reason to make the presence of the informant believable. We will show in the later part of this judgement that the presence of informant at the scene of incident is also not established beyond all reasonable doubt. Since no mention of cycle was uttered during investigation hence no attempt was made by the I.O. to locate it. This part of prosecution story that informant was accompanying the injured on a cycle therefore is an unproven fact. Since no mention of cycle was uttered during investigation hence no attempt was made by the I.O. to locate it. This part of prosecution story that informant was accompanying the injured on a cycle therefore is an unproven fact. Here we add that the statement of the injured was recorded very belatedly after twenty days on 30.8.2007 and therefore it can not be argued that he was not in a fit state of mind to disclose all these facts. 20. Another important aspect of the case, which makes prosecution evidence suspect and allegation unproved is that according to paragraph 2 of examination-in-chief of the injured PW1 first fire had caused him injuries in the eyes and on the waist. However, when doctor Shiv Singh, P.W.4 entered into the witness box, he stated vide para 7 of his deposition in examination in chief that on the eye of the injured there was lacerated wound which was caused by any blunt object butt of pistol. This contradiction occurred in examination- in- chief of both these witnesses was not got explained by the prosecution. Paragraph 7 of doctor PW 4 therefore directly contradicts ocular testimony of PW1. Doctor Shiv Singh P.W.4 is very specific in deposing that injury number 1 and 2, sustained by the injured, can be caused only by the butt end of a countrymade pistol or by blunt object. This falsifies allegations of two shots being fired at the time of the incident and makes the deposition of the injured and the informant suspect regarding actual assault. Both these statements occurred in examination- in-chief itself and this further erodes occular testimony from it’s credibility. 21. Another reason for not believing allegations of two shots fired in the incident is that the prosecution has not produced any document from ophthalmologist or radiologist to establish that the deceased had sustained injuries on his eye and face by gunshot. Attour no document from District Hospital, Moradabad, Sai Hospital, Moradabad and Bharat Nursing Home, Meerut has been produced by the prosecution to establish its charge of two shots. It is the specific case of the injured vide paragraph-4 of the deposition that he was treated in all these hospitals. Attour no document from District Hospital, Moradabad, Sai Hospital, Moradabad and Bharat Nursing Home, Meerut has been produced by the prosecution to establish its charge of two shots. It is the specific case of the injured vide paragraph-4 of the deposition that he was treated in all these hospitals. Absence of any document from these hospitals indicate that the injuries had not sustained any firearm injury in his eye and face which fact compels us to take a view that the deposition of the injured in that respect is not true. 22. Thirdly, two shot theory by the accused is further belied by the fact that doctor Shiv Singh P.W.4 vide paragraph 10 of his deposition has specifically said that unless the expert report from an Ophthalmologist and the radiologist is produced before him he will not be in a position to say whether the sustained injuries were grievous in nature or not and on what distance the scapula injury was seated from the spinal cord. Neither the medical examination by the ophthalmologist nor that of the radiologist was shown to P.W.4. In such a view, what has been established by the prosecution beyond all reasonable doubt,on which we can place reliance, is only this much that a single firearm injury was sustained by the deceased at his scapula region while he was returning from his factory all alone with blunt object simple injury on the eye and face. This makes prosecution case highly suspect full of doubts. 23. Coming to the presence of the informant at the time and place of the incident the only evidence on record which probabalises it can be that he had transported the injured to the hospital but that fact is belied by medical report of the injured where in it is mentioned that he was brought by driver Dheeraj Singh of P.S. Gazraula. It is the deposition of the injured that he was carried to the police station first and from there he was sent for medical examination. If this fact was correct why the FIR of the injured was not taken down at that moment and why it was registered very belatedly after a gap of four hours. It is the deposition of the injured that he was carried to the police station first and from there he was sent for medical examination. If this fact was correct why the FIR of the injured was not taken down at that moment and why it was registered very belatedly after a gap of four hours. These contradictory evidences indicate that informant is not a reliable witness and he was not present at the spot as according to his deposition he had carried the injured to the hospital first and thereafter late in the night that he had lodged the FIR after getting him hospitalised in Meerut Hospital. This contradiction in the prosecution case has occurred only for the reason that no body had witnessed the incident and shooter was not known and informant was not present at the scene of the incident. It further leaves unanswered a big question that if informant was not present at the spot then who carried the injured to the police station from the place of the incident and what information was given to the police at that time? It was from police station that the injured was sent to PHC for treatment by a police driver? where was the informant at that time and why he had not come forward and why prosecution is not explaining his presence at that time? why prosecution is shy of not bring before the Court the true facts and why it is concealing the earliest disclosure made by the injured at the police station at that time. Evidence of injured leaves no room for doubt that he was carried to the police station first. where is then the information given to the police at that time and why FIR was not lodged immediately ? Prosecution has not answered any of these very damaging circumstances nor state counsel before us could offer any explanation for such glaring omissions which are contradictory to the prosecution case. It seems that informant was summoned later on only to lodge the FIR and he was not present at the spot. It is very queer that presence of the informant during the whole episode is only at the time of lodging of the FIR, if his statement of being present at the time of occurrence is disbelieved. Absence of any mention of cycle further erodes his presence at the spot. It is very queer that presence of the informant during the whole episode is only at the time of lodging of the FIR, if his statement of being present at the time of occurrence is disbelieved. Absence of any mention of cycle further erodes his presence at the spot. Paragraph 4 of the deposition of PW 1 injured can not be reconciled by the evidence of informant PW 3. Additionally it makes the lodging of FIR anti timed after due deliberation and consultation and seems to be the out come of after thought and hence we now turn towards that aspect. 24. According to the FIR version after the incident informant carried the injured to Gajraula government hospital and got him medically treated. Thereafter when the injured was referred to district hospital Moradabad, informant accompanied him there as well and got him medically examined. From Moradabad injured was referred to Sai hospital and then to Bharat Nursing Home Meerut and informant had accompanied him to that hospital also and got him hospitalised. After this that the informant returned to the police station Gajraula and then he got Ext. Ka 1(written FIR) scribed from Bhurey and then lodged it at the police station. This deposition vide para 5 of examination in chief of PW 3 informant is contradicted by PW 1 vide para 4 of his deposition and secondly by the medical examination report of the injured. If injured is to be believed he was brought to the police station straight from the place of the incident and from there he was sent for medical examination. This fact finds support from his medical examination report as well. Why then FIR was not lodged at that time? It is noted that medical examination of the injured was conducted at 9.40 p.m. and therefore he must have reached at the police station prior to it. Why then FIR at 11.10 p.m. and why then false deposition by the informant PW3 ? No answer to it is available with the prosecution at all. No document of any other hospital has been produced either during investigation or during trial in the Court ostensibly for the reason that it did not fit in with the time frame alleged by the prosecution to explain the delay in lodging of the FIR. All this are very suspicious and wholly disproved circumstances which makes lodging of FIR anti timed. All this are very suspicious and wholly disproved circumstances which makes lodging of FIR anti timed. Our inquisitiveness to separate the grain from the chaff to find out the real truth of the allegations remains wholly unsatiated and hence we find it wholly unsafe to act on such depositions of witnesses. The lodging of very first version of the prosecution there for is a sham document on which no reliance can be placed at all and consequently Ext. Ka 1 looses all it’s corroborative value dissipating entire prosecution story. 25. A few words about trial Court judgement. Trial Court while convicting appellant has completely ignored all the above surreal facets of prosecution allegations. It proceeded on the premises as if PW1 and PW 3 are apostle of truth. It did not scan their evidences critically for accepting them for their intrinsic worth. It relied upon ipse dixit of PW 1 and 3 and did not give sufficient and adequate reasons for not accepting defence argument. Justice means justice to both, to the Prosecution and to the accused, dispensed with according to law. Trial judge has failed to note reasons mentioned above and therefore we find ourselves in total dis-agreement with it. It totally ignored to consider the evidence brought on record by the defence favourable to it and its whole endeavour was to show that the accused was guilty. It forgot to discharge it’s judicial responsibility to scan evidence dispassionately to surface the truth for which alone the Court exits. An unmerited conviction is as big an injustice as an unmerited acquittal and we say no more. 26. Resultantly this appeal is allowed. Conviction and sentence of the appellant referred to above in the opening part of this judgement recorded by Additional District & Sessions Judge/Fast Track Court No. 4, J.P. Nagar in S.T. No. 355 of 2007 relating to police station Gajraula district J.P. Nagar by his impugned judgement dated 9.4.2008 are hereby set aside and appellant is acquitted of the levelled charge. Appellant is in jail. He shall be set at liberty forthwith unless incarcerated in any other offence.