Hon'ble Surendra Singh, J.:- 1. This is an appeal against the conviction and sentence dated 22.10.1982 passed by IInd Addl. Sessions Judge, Etah (AS) in ST No. 270 of 1982. THE FACTS 2. An incident happened at 22:30 hours on 25.11.1981. In this incident, one Dhal Singh (the Deceased) was killed. Rajvir (the Informant) is the son of Dhal Singh. He lodged the FIR at 9:30 hours on 26.11.1981. It was registered as case crime no. 293 of 1981 under section 147, 148, 302 IPC, police station Soro, district Etah. 3. The relevant pedigree of the parties are as follows: Bhup Singh Mehtab Devi Singh Dal Singh Subedar Mohar Singh (Deceased) I (accused) I Om Prakash I I (PW-2) I ____________I_____________ ________________I______ I I I I | | Rajvir Ramesh Ram Pal Jaipal Rajendra Daughter = (Informant) (Accused) (Accused) Amar Singh (PW-1) (Accused) 4. Om Prakash 9PW-2) has deposed that Mohar Singh is his uncle but Mohar Singh's father is different from grandfather of PW-2. It is for the reason that top line in the pedigree is dotted. 5. The allegations in the FIR are as follows: The Informant alongwith his brother Rampal and the Deceased were lying down on cots covering themselves with quilts in chaupal of our house after ending their daily chores. A lantern was also lighted; At about 20:30 hours, they had gone off to sleep, Mohar Singh and his two sons Jaipal and Rajendra, his son-in-law Amar Singh who lives in the village for last 4-5 years, and Shaitan Singh (all are referred as the Accused) came; Amar Singh and Shaitan were wielding firearms and others were wielding latthis; Mohar Singh exhorted that today the old man should not be left alive, he made number of complaints to the police against them; Mohar Singh also threatened them that if they moved from the cots, they would be killed; Amar Singh and Shaitan Singh fired shots on the Deceased from close range. One fire shot hit the ear and other in the stomach; On the noise of fire shots as well as on their shouting their brother Ramesh and neighbour Om Prakash also came. They had torches; The assailants threatened them and ran away. One fire shot hit the ear and other in the stomach; On the noise of fire shots as well as on their shouting their brother Ramesh and neighbour Om Prakash also came. They had torches; The assailants threatened them and ran away. The Deceased died on the spot; They did not follow the Accused because they had firearms and no one went to lodge the FIR in the night for the same reasons; Many villagers had also seen the Accused running away after killing the Deceased and recognised them but due to their terror in the village no one could say anything against them; Mohar Singh is a miscreant. He alongwith his sons, son-in-law and Shaitan Singh often commits theft and robbery; The Deceased used to make complaints to the police against the Accused and because of this reason they were on inimical terms with the Deceased; Last month, Amar Singh had stolen three buffaloes. At that time, a buffalo of Informant's brother-in-law, Suraj Pal was also stolen. The Deceased being suspicious, had shown those three buffaloes to the Informant's brother-in-law. This was the reason for murder. 6. The police investigated the case and submitted the charge sheet. 7. The case was committed to the session's court and was numbered as ST No. 270 of 1982. 8. Among others, the prosecution has filed the following documents. Copy of the FIR dated 26.11.1981 (Ex Ka-1); GD Entry no. 15 dated 26.11.1981 (Ex Ka-3); Recovery memo of blood stained & plain earth dated 26.11.1981 (Ex Ka-10); Recovery memo of metallic cap of cartridge dated 26.11.1981 (Ex Ka-11); Recovery memo of lantern & supurdaginama dated 26.11.1981 (Ex Ka-12); Recovery memo of Torch and Supurdaginama dated 26.11.1981 (Ex ka-13). 9. The prosecution examined the following witnesses. Rajvir (PW-1): Informant, an eyewitness; Om Prakash (PW-2): Deposed that he saw the Accused running away; Dr. Daya Shankar (PW-3): Doctor, conducted the postmortem; Nan Singh Sharma (PW-4): Investigation Officer (IO). 10. The Accused were examined under section 313 CrPC on 18.10.1982. They denied their involvement in the incident and stated the Deceased used to make false complaints to the police against the Accused. 11. Among others, the Accused filed the copy of NCR No. 187 under section 323, 504, 506 IPC, police station Soro, district Etah lodged by the Deceased against Mohar Singh, Rajendra and Jaipal. However, no witness was examined on their behalf. 12. 11. Among others, the Accused filed the copy of NCR No. 187 under section 323, 504, 506 IPC, police station Soro, district Etah lodged by the Deceased against Mohar Singh, Rajendra and Jaipal. However, no witness was examined on their behalf. 12. The ASJ by his judgement dated 22.10.1982 convicted the accused and awarded the following sentence to them. (i) Amar Singh and Shaitan Singh were sentenced: Two years' rigorous imprisonment under section 148; and Imprisonment for life under section 302 read with section 149 IPC. (ii) Mohar Singh, Jaipal, and Rajendra were sentenced: One year's rigorous imprisonment under section 147 IPC; Imprisonment for life under section 302 read with section 149 IPC. The sentence was to run concurrently. 13. The accused have filed two separate appeals. Amar Singh and Shaitan Singh have filed criminal appeal no. 2771 of 1982; Mohar Singh, Jaipal, and Rajendra have filed criminal appeal no. 2780 of 1982. POINTS FOR DETERMINATION 14. We have heard Sri SK Kulshretha, counsel for the Appellants in Criminal Appeal No. 2771 of 1982; Sri OP Mishra as friend of the court, for the appellants in Criminal Appeal No. 2780 of 1982; and Sri Arunendra Kumar Singh, AGA for the State. The following points arise for determination in the case. (i) Whether the FIR was ante-timed? (ii) Whether the incident took place at the time and place as alleged by the prosecution. (iii) Whether the Accused are guilty? 1st POINT : FIR NOT ANTE-TIMED 15. The prosecution examined four witnesses. Out of these four, two namely the Informant (PW-1) and Om Prkash (PW-2) are witnesses of the fact and the remaining two are formal witnesses. 16. The Informant (PW-1) deposed that he started from his house at 6.30 hours in the morning and thereafter the FIR was lodged at 9:30 hours. There was no written report. It was orally stated at the police station. 17. The distance between the place of incident and the police station is 8 miles. If a person starts at 6:30 hours then he is likely to reach the police station approximately by the time, the FIR is said to have been lodged. 18. The IO (PW-4) has deposed that after reaching the spot, he started inquest at 12:00 hours. The inquest report indicates the case crime number and party as State Vs. Mohar Singh and others. This shows that the FIR was already lodged. 19. 18. The IO (PW-4) has deposed that after reaching the spot, he started inquest at 12:00 hours. The inquest report indicates the case crime number and party as State Vs. Mohar Singh and others. This shows that the FIR was already lodged. 19. The GD Entry No. 15 dated 26.11.1981 (Ex Ka-3) is also on record. The time is 9:30 hours. It shows that the FIR was recorded at 9:30 hours. 20. In our opinion, the FIR was not ante-timed. It was recorded at 9:30 hours. 2nd POINT : PLACE AND TIME-- AS ALLEGED BY PROSECUTION 21. There are two witnesses of fact. The Informant (PW-1) is an eyewitness of the incident; whereas, Om Prakash (PW-2) is not eyewitness of the incident. He reached on the spot after the incident but said to have seen the Accused running away. 22. The Informant (PW-1) and Om Prakash (PW-2) both deposed that the incident happened at 22:30 hours on 25.11.1981. There is no suggestion that the incident happened later in the night. 23. The IO (PW-4) found blood on the spot (Ex Ka-12) and the metallic cap of the cartridge (Ex Ka-11). This indicates that the incident happened at the place alleged by the prosecution. 24. In our opinion, the incident happened at the place as alleged by the prosecution at about 22:30 hours. Amar Singh & Shaitan Singh -- Guilty 25. The Informant (PW-1) deposed that: A month before the incident, his brother-in-law's (?????) buffaloes were stolen; He had seen the stolen buffaloes at the place of Amar Singh; The Deceased has lodged complaint in the police station. However, the police did not do any investigation. 26. The incident took place in the chaupal of the Deceased. Towards north of chaupal is the house of the Deceased. The Informant deposed that towards north of the house of the Deceased was the house of Om Prakash (PW-2). Towards west of the house of PW-2 was passage. Thereafter, there was some land of gaon sabha that was allotted to Amar Singh. There was dispute regarding the same. 27. The ante mortem injuries of the Deceased are as follows: (i) Firearm wound of entry near right pinna front side upper part 2 cm x 2 cm Blackening present. (ii) Firearm wound of entry on the right side epigastric region 6 cm. There was dispute regarding the same. 27. The ante mortem injuries of the Deceased are as follows: (i) Firearm wound of entry near right pinna front side upper part 2 cm x 2 cm Blackening present. (ii) Firearm wound of entry on the right side epigastric region 6 cm. above and at 11 O' clock position to umbilious 2 cm x 1.5 cm. Blackening present. 28. The Informant deposed that Amar Singh and Shaitan Singh were weilding firearms and fired the shots at the Deceased from close range. 29. Om Prakash (PW-2) deposed that he reached the spot after hearing the fire shots and he saw the Accused running away. 30. In the injuries blackening is present. It supports the prosecution case that shots were fired from close range. 31. There is nothing in their testimony to disbelieve their statements so far as Amar Singh and Shaitan Singh are concerned: no one leaves real killers. But we do have some doubts so far as Mohar Singh, Jaipal and Rajendra (the Other Accused) are concerned. 32. In our country, it is not unusual to involve more people than are involved in the case. This could be the case here. Our reasons for the same are mentioned in the succeeding paragraphs. 33. The Other Accused are said to be wielding laltthies but there is no latthi injury. 34. Jaipal and Rajendra have not been assigned any role. Mohar Singh has been given role of exhortation. 35. It was winter night and time was about 22:30 hours. Their appears to be no reason why anyone would make sound. People might be sleeping at this time. By exhortation or making sound, you wake up others giving them opportunity to recognise. It neither makes sense nor appears to be probable. 36. There was a dispute regarding land between the parties. It is shown in the site plan (Ex Ka-1) and also deposed by the Informant (PW-1). He deposed that: Towards east-south of their chaupal there is some open piece of land, belonging to him; Towards east of this land, there was gher of Mohar Singh; There was no passage for Mohar Singh to go to his gher. However, Mohar Singh forcefully used to go to his gher from the land of the Informant side. 37. There had been dispute between the parties. However, Mohar Singh forcefully used to go to his gher from the land of the Informant side. 37. There had been dispute between the parties. The Deceased had lodged the NCR No. 187 against Mohar Singh, Jaipal and Rajendra under section 323, 504, 506 IPC, police station Soro, district Etah (Ex Kha-1). 38. It is possible that the Informant thought it to be good opportunity to get rid of Mohar Singh and his sons. 39. Considering the circumstances that: Mohar Singh, Rajendra Singh and Jaipal are said to be wielding lathies but there was no lathi injury; No role has been assigned to them except of exhortation to Mohan Singh. And there was no reason for the same; There was dispute between the parties; It is possible that their names might have been included without their complicity in the crime. They are being given benefit of doubt. CONCLUSION 40. Our conclusions are as follows: (i) The FIR was not ante-timed; (ii) The incident took place in the chaupal of the Deceased at 22:30 hours; (iii) The appellants Amar Singh, Shaitan Singh are guilty under section 302 read with section 34 IPC and are sentenced to imprisonment of life; (iv) Mohar Singh, Jaipal, and Rajendra (the appellants in criminal appeal no. 2780 of 1982) are given benefit of doubt. 41. In view of our conclusions: The Appeal No. 2771 of 1982 against the judgment dated 22.10.1982 passed by IInd Addl. Sessions Judge, Etah (AS) in ST No. 270 of 1982 is dismissed. The conviction of Amar Singh and Shaitan Singh is upheld under section 302 read with section 34 IPC. They are sentenced to imprisonment for life. They are on bail. Their bail is cancelled and they will be taken into custody to serve out their sentence; Mohar Singh, Jaipal, and Rejendra, appellants in Crl. Appeal No. 2780 of 1982 are given benefit of doubt. The Appeal against conviction and sentence dated 22.10.1982 passed by IInd Addl. Sessions Judge, Etah (AS) in ST No. 270 of 1982 is allowed. They are on bail. They need not surrender. Their bail bonds are cancelled and their sureties are discharged. HON'BLE YATINDRA SINGH, J HON'BLE SURENDRA SINGH, J. 1. In this case Sri SK Kulshrestha had made statement on 28.7.2010 that he has no instructions. Sessions Judge, Etah (AS) in ST No. 270 of 1982 is allowed. They are on bail. They need not surrender. Their bail bonds are cancelled and their sureties are discharged. HON'BLE YATINDRA SINGH, J HON'BLE SURENDRA SINGH, J. 1. In this case Sri SK Kulshrestha had made statement on 28.7.2010 that he has no instructions. Today, when the case was taken up, he made statement that he has instruction to argue the criminal appeal no. 2771 of 1982. 2. We have heard Sri SK Kulshrestha, counsel for the appellant in Crl. Appeal No. 2771 of 1982, and Sri OP Mishra, as friend of the court, counsel for the appellants in Crl. Appeal No. 2780 of 1982. 3. Crl. Appeal No. 2771 of 1982 against the conviction and sentence dated 22.10.1982 passed by IInd Addl. Sessions Judge, Etah (AS) in ST No. 270 of 1982 is dismissed. However Crl Appeal No. 2780 of 1982 is allowed. 3. Sri OP Mishra will be entitled to one-day fees alongwith expenses from the High Court Legal Services Committee. 4. For detailed orders see our orders of date passed on separate sheet of papers. 5. For detailed orders see our orders of date passed on separate sheet of papers.