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2016 DIGILAW 3004 (ALL)

Amit Sharma v. State of Uttar Pradesh

2016-08-31

A.M.THIPSAY, ANIL KUMAR SRIVASTAVA II

body2016
JUDGMENT : ANIL KUMAR SRIVASTAVA-II, J. 1. Heard Shri Nagendra Mohan, learned counsel for the appellants, Shri M.Y. Ansari learned A.G.A. And Shri S.S. Rajawat, learned counsel for the complainant. 2. Instant appeal has arisen against the judgment and order dated 04.11.2011 passed by learned Additional Sessions Judge, Court No. 2, Lakhimpur Kheri in Sessions Trial No. 654 of 2006, State v. Sachin alias Dalu Gupta and Amit Sharma whereby accused were convicted and sentenced to imprisonment for life and fine of Rs. 5000/- with default stipulation of two years imprisonment under section 302 IPC. Accused were acquitted for the charges under section 7 of Criminal Law Amendment Act and 3/25/27 of Arms Act. 3. During pendency of the appeal accused Sachin alias Dalu Gupta died, vide letter of Chief Judicial Magistrate Kheri dated 3.7.2015. 4. According to the prosecution version, complainant Ram Guni Verma is mother of the deceased Shyamu Verma. Shyamu Verma was doing business of property dealing. Accused Sachin Gupta alias Dalu was also working with him. They had some dispute over some transaction of money about ten days prior to the date of incident. Sachin Gupta was inimical to the deceased and was trying to maintain his supremacy in the business. On the date of incident, i.e., 08.02.2006, deceased Shyamu Verma had gone to purchase gutka pudiya from a khokha of Anwar in front of the house of Sachin Gupta. Accused Sachin Gupta and Amit Sharma were present there and fired upon Shyamu Verma by country made pistol. Complainant along with her daughter Ram Janki and servant Vinod son of Sankata Prasad were coming back from the market at about 03.00 PM. Complainant reached at the spot and started crying to save her son but none came for the rescue, rather there was chaos in the passerby persons. Complainant took Shyamu Verma with the help of servant Vinod to the District hospital from where doctors referred him for Lucknow but on the way to Lucknow near Oel deceased succumbed to his injuries. Complainant came back and kept the dead body in the District hospital Lakhimpur Kheri. 5. Thereafter, a written report of the incident was lodged by her on 08.02.2006 at 05.15 PM which was registered at case crime no. 332/06 under section 302 IPC and 7 Criminal Law Amendment Act at Police Station-Kotwali Sadar Kheri. Investigation was handed over to the SHO Vikas Narain. 5. Thereafter, a written report of the incident was lodged by her on 08.02.2006 at 05.15 PM which was registered at case crime no. 332/06 under section 302 IPC and 7 Criminal Law Amendment Act at Police Station-Kotwali Sadar Kheri. Investigation was handed over to the SHO Vikas Narain. After registration of the first information report, investigating officer reached at the spot and recovered blood stained and plain concrete. Site plan was also prepared. Four empty cartridges 315 bore, one live cartridge 315 bore and one lead cartridge 315 bore were also recovered from the spot. Inquest proceedings were conducted which began on 09.02.2006 at 09.00 AM and concluded on 09.02.2006 at 10.30 AM. Dead body was sealed and sent for postmortem. Postmortem of the dead body of the deceased was conducted on 09.02.2006 at 02.00 PM. During investigation accused were arrested by the police on 17.02.2006 and country made pistol and cartridges were recovered from their possession. Prosecution sanction was obtained from the District magistrate Kheri. Underwear, black shirt along with tabiz, blood stained and plain concrete were sent to the Forensic Science Laboratory. Human blood was found on underwear. Statement of witness were recorded by the Investigating Officer. After conclusion of the investigation charge sheet was submitted against the accused. 6. Accused were charged under section 302 IPC read with section 34 IPC and Section 7 Criminal Law Amendment Act and also under section 3/25/27 Arms Act. 7. In order to prove its case prosecution has produced PW-1 Ram Guni, complainant mother of the deceased, PW-2 Vinod Kumar eyewitness and servant of the complainant, PW-3 Vikas Narain Yadav Investigating Officer and witness of recovery of country made pistol, PW-4 SSI Krishna Chandra Tiwari witness of recovery, PW-5 Dr. Akhilesh Khare who has conducted the postmortem of the body of the deceased and found following ante-mortem injuries on his body :- (i) Firearm wound of entry 1 cm x 1 cm cavity deep over chin 2 cm below top of chin. Margin inverted ecchymosed. (ii) Firearm wound of exit 1.5 cm x 1 cm cervical cavity deep over back of head 5 cm behind left ear, margin averted, irregular ecchymosed. On dissection underlying bone of skull occipital bone found fractured, membrane and brain found lacerated injury no. 1 is communicated to injury no. 2. Margin inverted ecchymosed. (ii) Firearm wound of exit 1.5 cm x 1 cm cervical cavity deep over back of head 5 cm behind left ear, margin averted, irregular ecchymosed. On dissection underlying bone of skull occipital bone found fractured, membrane and brain found lacerated injury no. 1 is communicated to injury no. 2. (iii) Firearm wound of entry 1 cm x 1 cm x buckle cavity deep over right side of face 2 cm in front of right ear. Margins inverted, irregular, ecchymosed. (iv) Firearm wound of exit 1.5 cm x 1.5 cm x buckle cavity deep on left side of face and lower part of left ear. Margins averted, irregular, ecchymosed. On dissection, underlying both zygomatic bones found fractured. Injury no. 3 is communicated to injury no. 4. (v) Lacerated wound 2 cm x 1.5 cm x bone deep over left shoulder. (vi) Firearm wound of entry 2 cm x 2 cm x chest cavity deep. Middle line of chest 8 cm below suprasternal. Margins inverted, irregular, ecchymosed, blackening tutoring and charring present around the wound. (vii) Firearm wound of exit 1.5 cm x 1.5 cm over midline back of chest 3 cm below root of neck. Margins averted, irregular, ecchymosed. On dissection underlying left plura, left lung pericardium, hard iota found lacerated and 1.5 litre clotted fluid blood present in chest cavity. Injury No. 6 is communicating to injury No. 7. Direction of wound front to back put forward. (viii) Abraded contusion 4 cm x 2 cm over outer aspect left side of chest 20 cm below left axilla. (ix) Abraded contusion 3 cm x 2 cm over front of left knee. Duration of death was found as about one day. According to doctor, cause of death was due to firearm injuries. Deceased must have died instantaneously on receiving the injuries. 8. PW-6 Head Constable Munendra Dev Shukla who has prepared the chik FIR and entered the same in the GD, PW-7 Dr. Praveen Ranjan Singh, Circle Officer who has conducted the investigation on receiving the order of Superintendent of Police Kheri on 05.3.2006. He recorded the statement of previous investigating officer as well as witnesses and submitted charge-sheet against the accused. PW-8 SI Tribhuwan Prasad Verma is the Investigating Officer of case under section 3/25/27 Arms Act. Praveen Ranjan Singh, Circle Officer who has conducted the investigation on receiving the order of Superintendent of Police Kheri on 05.3.2006. He recorded the statement of previous investigating officer as well as witnesses and submitted charge-sheet against the accused. PW-8 SI Tribhuwan Prasad Verma is the Investigating Officer of case under section 3/25/27 Arms Act. PW-9 Constable Barati Lal Gautam has prepared the chik FIR of case under section 3/25/27 Arms Act and recorded it in the GD, PW-10 Rajesh Kumar Saxena has identified the signatures of the District Magistrate on sanction order. 9. Accused have stated in their statement under section 313 Cr.P.C, 1973that deceased was a hardened criminal who was having enmity with a number of people. They have been falsely implicated by the local police. 10. In defence, DW-1 Dharmesh Shukla Chief Bureau Hindustan Newspaper Lakhimpur Kheri and DW-2 Ashok Nigam correspondent Amar Ujala Lakhimpur Kheri have been produced. 11. Learned trial court, after appreciating the evidence on record has recorded finding the guilt against the accused and held that prosecution has successfully proved the case against the accused. There was a motive. First information report was promptly lodged. It was not an ante-time FIR. Consequently, accused were found guilty and convicted and sentenced as above. 12. Aggrieved by the impugned judgment appellants preferred the appeal. 13. Learned trial court has acquitted the accused under section 3/25/27 Arms Act. No appeal was preferred by the State against the order of acquittal, hence, that finding attained finality. 14. Learned counsel for the accused Amit vehemently argued that learned trial court has not appreciated the evidence on record correctly in accordance with law. There was no eyewitness account of the incident. Only two witnesses of fact PW-1 Ram Guni and PW-2 Vinod have been produced by the prosecution. Vinod is the servant of complainant Ram Guni. Complainant Ram Guni has herself admitted that she was coming from the market and reached at the spot after seeing the crowd. It means that she was not present at the spot at the time of incident. 15. It is further submitted that the first information report is ante time in this case. Occurrence took place at 03.00 PM while the first information report was lodged at 5.15 PM. It is a written report. It means that she was not present at the spot at the time of incident. 15. It is further submitted that the first information report is ante time in this case. Occurrence took place at 03.00 PM while the first information report was lodged at 5.15 PM. It is a written report. As per the prosecution version after the incident complainant with the help of Vinod took the deceased to the District hospital from where he was referred to Lucknow. Then she took him to Lucknow but on the way near Oel he succumbed to his injuries. Thereafter again she came back to the district hospital Kheri and kept the dead body there. Thereafter she went to the police station to lodge the first information report. All these act could not be done within a period of merely two hours and 15 minutes. It is further submitted that police authorities including the District magistrate Lakhimpur Kheri has visited the place of occurrence at 04.00 PM when the FIR was not in existence. It shows that there was an interpolation in the records. It is further submitted that chik FIR was not registered on the original book as maintained at the police station under the police regulations. Rather original chik was written on a Photostat form of chik FIR register. Serial number of the form was also changed. To bring home the defence of the accused, learned counsel submitted that it was a case of police encounter wherein two police constables have visited the place of deceased and enquired from him about the case of theft, thereafter deceased was killed and in order to save the skin of police personnel false story was cooked up against the appellants. 16. It is further submitted that ocular testimony does not find support from the medical evidence. According to the prosecution only fires were shot at the deceased by the accused but the postmortem report shows that apart from firearm injuries, deceased has also suffered contusion abrasions. No explanation has been put forward by the prosecution as to how these contusion and abrasion were found on the body of the deceased while it was not a case of the prosecution that any injury was caused by any hard and blunt object. It is further submitted that inquest proceedings were conducted on the next day without any reason. No explanation has been put forward by the prosecution as to how these contusion and abrasion were found on the body of the deceased while it was not a case of the prosecution that any injury was caused by any hard and blunt object. It is further submitted that inquest proceedings were conducted on the next day without any reason. It shows that the FIR was ante timed. It is further submitted that PW-1 Ram Guni was not present at the spot. Her conduct is very unnatural. She has not even informed her husband about the death of her son. It is further submitted that a memo was sent by the concerned doctor of the district hospital at 04.00 PM on 8.2.2006 to the police station for recording the dying declaration of the deceased but that document is not proved. Further the concerned doctor, who had referred the deceased to Lucknow, was not produced without any logical reason. No report of the ballistic expert was obtained. 17. Per contra learned AGA and learned counsel for the complainant submitted that the prosecution has successfully proved the case against the accused. First information report was lodged promptly. PW- 1 Ram Guni and PW-2 Vinod are eyewitnesses who have seen the occurrence. Ocular evidence is fully corroborated by the medical evidence. Investigation was conducted in accordance with law. 18. Before dealing with the factual aspect of the matter we would like to first consider the medico-legal aspect in this case. It is consistent case of the prosecution right from lodging of the FIR that the accused have fired upon the deceased who had succumbed to his injuries. PW-1 Ram Guni has specifically stated that she had seen that both the accused have fired upon her son deceased Shyamu Verma. Fire hit him on the chest, right side of forehead who fell down on receiving the injuries. PW-2 Vinod Kumar has also stated that both the accused have fired upon the deceased who sustained the firearm injuries. PW-5 Doctor Akhilesh Khare had conducted the postmortem of the deceased and found nine injuries on the body of the deceased, out of which six injuries were of entry and exit wounds of firearm while one lacerated wound, two abraded contusions were also found by the Doctor on the body of the deceased. PW-5 Doctor Akhilesh Khare had conducted the postmortem of the deceased and found nine injuries on the body of the deceased, out of which six injuries were of entry and exit wounds of firearm while one lacerated wound, two abraded contusions were also found by the Doctor on the body of the deceased. No explanation has been put forward by the prosecution to explain as to how the deceased has received these injuries? It is nowhere case of the prosecution that apart from firing any other weapon was used to cause injuries to the deceased. It is a material omission which goes to the root of the matter. Prosecution was obliged to submit an explanation as to how these injuries were caused. PW-5 Dr. Khare has specifically stated in the cross-examination that injury No. 5, 8 and 9 could be caused by some hard and blunt object. Specifically, it is also stated by him that injury no. 5 could not be caused by rubbing on the hard surface, rather it could be caused only by attacking with some hard object with force. Learned counsel for the complainant has placed reliance upon Umesh Singh v. State of Bihar (2013) CrL.J. 2116, wherein in para 16 it was held that :- "The learned State counsel has rightly urged that if the medical and ocular evidence is contrary then the ocular evidence must prevail. This aspect of the matter has been elaborately discussed and the principle is laid down by this Court in the aforesaid decision. The findings and decision recorded and rendered by the learned Additional Sessions Judge after thorough discussion and on proper appreciation of evidence on record held that the doctor has opined that rigor mortis starts within 1 to 3 hours and vanishes after 36 hours. The said opinion of the medical officer PW 8 regarding complete vanishing of rigor mortis from the dead body after 36 hours is medically not correct and this may be lack of his knowledge on the subject and he was liberal to the cross-examination by the defence lawyer. 19. Further, it was held that between medical and ocular evidence the ocular evidence must be preferred to hold the charge proved. Facts of the present case are on a different footing. 19. Further, it was held that between medical and ocular evidence the ocular evidence must be preferred to hold the charge proved. Facts of the present case are on a different footing. In this case, Doctor has found three injuries on the body of the deceased, which could have been caused by some hard and blund object. It is a fact noted down by the Doctor. It is not an inference given by the doctor. So far as ocular evidence is concerned even no suggestion was given to the witnesses namely PW-1 Ram Guni and PW-2 Vinod that any hard and blunt object was also used in the commission of the crime. PW-5 Dr. Khare has specifically denied that injury No. 5 could have been caused by rubbing, meaning thereby that even if we presume that after sustaining the firearm injuries deceased fell down on the earth even then injuries no. 5, 8 and 9 could not have been caused. Prosecution has utterly failed to give any explanation of the injuries as to how they were caused. 20. Learned counsel for the complainant has also placed reliance upon State of Haryana v. Bhagirath and Others (1999) 5 SCC 96 it was held in para 15 that :- "The opinion given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the Judge to adopt the view which is more objective or probable. Similarly, if the opinion given by one doctor is not consistent with probability the court has no liability to go by that opinion merely because it is said by the doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject." 21. Aforesaid case law is not applicable to the facts of the present case. In the present case specific injuries were noted by the doctor at the time of postmortem examination. Of course, due weight must be given to opinions given by persons who are experts in the particular subject." 21. Aforesaid case law is not applicable to the facts of the present case. In the present case specific injuries were noted by the doctor at the time of postmortem examination. He has not given an opinion, rather he recorded the injuries which were found by him on the body of the deceased. So far as ocular evidence is concerned there is no statement of the eyewitness that any hard and blunt object was used at the time of incident. Hence, no benefit of the aforesaid case law could be extended in favour of the prosecution. 22. Learned counsel for the complainant also placed reliance on Solanki Chiman Bhai Uka Bhai v. State of Gujarat (1983) SCC (Cri) 379 wherein it was held that :- "Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eye-witnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eye-witnesses cannot be thrown out on the ground of alleged inconsistency between it and the medical evidence." 23. Prosecution could not get any benefit of the aforesaid case law, rather it goes against the prosecution because witness have specifically stated a particular weapon was used in the commission of crime. 24. Injury no. 5, 8 and 9 were found on the body of the deceased which have not been explained by the prosecution as to how those injuries were inflicted on the body of the deceased, which creates a doubt about the genesis of the incident. Benefit of such doubt could only be extended in favour of the accused. 25. Occurrence had taken place at 03.00 PM while the deceased went to the shop in front of the accused Dalu alias Sachin Gupta to purchase the Gutka where both the accused were present and fired upon the deceased. First information report was lodged by mother of the deceased PW-1 Ram Guni. 25. Occurrence had taken place at 03.00 PM while the deceased went to the shop in front of the accused Dalu alias Sachin Gupta to purchase the Gutka where both the accused were present and fired upon the deceased. First information report was lodged by mother of the deceased PW-1 Ram Guni. Written report was scribed by one Atul Dixit who has not been produced in court. Specific defence has been taken by the defence that the first information is ante-timed and ante-dated. It is also argued by the learned counsel for the appellant that witness Ram Guni and PW-2 Vinod were not present at the spot. Their conduct was such which shows that they were not present at the spot. 26. Admittedly, PW-1 Ram Guni is mother of the deceased while PW-2 Vinod is servant of the deceased. No other witness of fact has been examined by the prosecution. It is admitted in the first information that at the time of incident there were large number of people present at the spot. A chaos was there. People shut down doors of their houses. It is settled legal position that quality and not the quantity of the evidence is to be seen. It is also settled legal position that even if no independent witness is produced and only relative or interested witnesses are produced then it could not be believed that their evidence is not reliable. 27. In Sheesh Ram and others v. State of Rajasthan, (2014) 3 SCC 689 , it was held by the Hon'ble Apex Court that "......... It is submitted that all these witnesses are related and therefore their evidence cannot be relied upon. Assuming they are related to each other, and, hence, interested witnesses, it is well settled that the evidence of interested witnesses is not always suspect. It has to be scrutinized with caution and can be accepted if it is found reliable ......" 28. In Appabhai v. State of Gujarat, 1988 Supp SCC 241, it has been held that :- "Experience reminds us that civilised people are generally insensitive when a crime is committed even in their presence. They withdraw both from the victim and the vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. They withdraw both from the victim and the vigilante. They keep themselves away from the court unless it is inevitable. They think that crime like civil dispute is between two individuals or parties and they should not involve themselves. This kind of apathy of the general public is indeed unfortunate, but it is there everywhere whether in village life, towns or cities. One cannot ignore this handicap with which the investigating agency has to discharge its duties. The court, therefore, instead of doubting the prosecution case for want of independent witness must consider the broad spectrum of the prosecution version and then search for the nugget of truth with due regard to probability if any, suggested by the accused." 29. Occurrence took place at 03.00 PM in a market place. According to the prosecution there was hue and cry and people shut down their doors of houses and shops, hence, even if no independent witness is produced then it does not adversely affects the prosecution version but at the same time it is to be seen as to whether evidence of PW-1 Ram Guni and PW-2 Vinod is fully reliable, credible and trustworthy? Whether the first information report was lodged at 5.15 PM and investigation started after that or the first information report is ante-time? 30. Learned counsel for the appellant has vehemently argued that first information is ante-time. 31. PW-1 Ram Guni has stated that she was coming from the market on a rickshaw along with her daughter Ram Janki and servant Vinod. All were riding one rickshaw. They left the rickshaw at some earlier place as there was a mob collected at the spot. She has further admitted that when she dictated the report she does not have any discussion with any person about the incident. Since Shyamu deceased used to go to the Anwar's shop for purchasing gutka so she presumed that he must have gone there to purchase gutka. It is further admitted by her that house of Sachin alias Dalu is also there so she thought that the accused were present there. She left the rickshaw about 10 to 15 steps earlier as she saw a mob. Procession of tajia was also going on but nobody from the procession interfered in the matter. When she reached near Shyamu he was unconscious. She along with Vinod took Shyamu to the district hospital on another rickshaw. She left the rickshaw about 10 to 15 steps earlier as she saw a mob. Procession of tajia was also going on but nobody from the procession interfered in the matter. When she reached near Shyamu he was unconscious. She along with Vinod took Shyamu to the district hospital on another rickshaw. After reaching at the hospital after about quarter past one hour she left for Lucknow after arranging money. Shyamu succumbed to injuries in between Oel and Hargaon. At the hospital Doctor examined Shyamu, treated him and then referred him. Doctor did not make any inquiry as to how Shyamu sustained the injuries. When Shyamu died on the way she came back to the hospital in the same ambulance. It took about one hour to come back. Thereafter, dead body was kept in a Kothari in the hospital then she went to the Police Station Kotwali and lodged the FIR. PW-2 Vinod who is also an eyewitness has stated that he along with Ram Guni took Shyamu to the district hospital where primary aid was given to him and he was referred to the King George Medical College, Lucknow. On the way Shyamu succumbed to the injuries in between Oel and Hargaon. Again he came back to the hospital along with dead body. They reached the district hospital at about 03.20 PM, stayed there from 15 to 20 minutes. They hired an ambulance and left for Lucknow. When Shyamu died on the way they reached to the District hospital along with the dead body at 3.45 PM. Statement of these two witnesses clearly shows that the first information report was not lodged at the time when it is alleged to be recorded at the police station. This fact further finds corroboration from the statement of PW-1 Ram Guni who has stated that after the incident District Magistrate and Superintendent of Police also came at the spot. PW-3 Vijay Narain Yadav is the Investigating Officer of this case who has stated that he was posted as Inspector In-charge of the Police Station Kotwali Lakhimpur Kheri on 08.02.2006 and the case was registered at the police station in his presence. He took over the investigation and recorded the statement of complainant Ram Guni and then proceeded to the place of occurrence. He took over the investigation and recorded the statement of complainant Ram Guni and then proceeded to the place of occurrence. This statement was given in the examination in chief but in the cross-examination this witness has taken an about turn from his statement given in the examination-in-chief. He has stated that the case was not registered in his presence at the police station, rather chik FIR and GD were handed over to him at the place of occurrence by Constable Chhote Lal Misra and Raghuraj Yadav. Thereafter, he started the investigation. It is further stated that he reached at the spot at 03.00 or 03.30 PM. He got an information about the incident at the RT set. Before proceeding further, at this stage, it is relevant to look into the original chik FIR which was prepared by PW-6 Head Constable Munendra Dev Shukla who was posted as Head Moharrir at Police station Kotwali on 08.02.2006. This witness has proved the chik FIR exhibit ka-10 as well as GD exhibit ka-11. Exhibit ka-10 chik FIR is a Photostat copy of an original chik FIR format which is maintained at the police station for recording the first information report under section 154 Cr.PC, 1973. It is admitted by this witness that for recording the chik FIR of cognizable offences a bound register is maintained at the police station wherein the copy of the chik FIR is prepared in duplicate by using a carbon paper. One copy is given to the complainant, another is given to the Investigating Officer and the original is maintained at the police station which is a permanent record. In exhibit ka-10 there is an interpolation in the serial number of the chik FIR. The last digit number is 267302 wherein last digit 2 is interpolated by the use of ink of pen and it is converted from 1 to 2. This witness PW-6 Munendra Dev Shukla has made an attempt to justify the action of using the Photostat form in place of original by stating that the original form bearing number 267301 to 267303 were in rotten condition so they were removed under the oral orders of the SHO and in their place Photostat forms were kept. It is a serious issue wherein the role of PW-3 Inspector Vikas Narain Yadav and PW- 6 Head Constable (Retd) Munendra Dev Shukla was very suspicious. It is a serious issue wherein the role of PW-3 Inspector Vikas Narain Yadav and PW- 6 Head Constable (Retd) Munendra Dev Shukla was very suspicious. PW-6 Munendra Dev Shukla has further tried to justify the action by stating that an oral order was given by the Station House Officer to lodge the FIR on Photostat form but in the same breath he further states that the SHO was on duty of gusht according to the GD but physically he was present at the police station. This statement is in contradiction to the statement given by PW-3 Inspector Vikas Narain Yadav who at one place states that the case was registered in his presence at the police station but in the cross-examination admits that it was not registered in his presence. There is a serious irregularity in this case. Prosecution has failed to show as to how the original chik FIR register was changed? As to how and under whose orders and under what regulation of police manual or any other rules SHO can issue directions to lodge the FIR on the Photostat of original chik FIR register? Even if for the sake of argument, it may be accepted that original form of chik FIR register bearing no. 267301 to 267303 were got rotten then this fact could have been mentioned in the GD of the police station and the FIR could have been lodged on the next form having number 267304. Even then information should have been given to the higher authorities. Register of chik FIR is maintained at the police station under the legal provisions. No police officer could be permitted to change the original forms otherwise it would have been very easy for the police officers to make the entries as per their convenience and choice. Such practice could not be appreciated by the Court, rather it should be deprecated and is being deprecated by this Court for which necessary instruction and action should be taken by the concerned authorities at their end. 32. PW-7 Dr. Praveen Ranjan Singh was Circle Officer City Lakhimpur on 5.3.2006 who started the investigation on the basis of an order issued by the Superintendent of Police. Law is settled on the point that investigation begins after recording of the first information report at the police station. 32. PW-7 Dr. Praveen Ranjan Singh was Circle Officer City Lakhimpur on 5.3.2006 who started the investigation on the basis of an order issued by the Superintendent of Police. Law is settled on the point that investigation begins after recording of the first information report at the police station. PW-3 Inspector Vikas Narain Yadav has stated that he reached at the spot at about 3.00 or 3.30 PM on 08.02.2006 on receiving an information on his RT set. He got the information about 10 to 15 minutes prior to reaching at the spot. This witness has stated in the examination-in-chief that he recorded the statement of Ram Guni at the police station after receiving the copy of chik and GD. Thereafter, he left for the spot but in the cross 23 (Criminal Appeal No. 21 of 2012) examination it is admitted by PW-3 Vikas Narain Yadav that he recorded the statement of Ram Guni and Vinod at the spot. Prior to it copy of chik and GD was made by him in the case diary. It means that there is a serious contradiction in the statement of the witness. It appears that Inspector Vikas Narain Yadav has not given a true statement before the Court. He being a responsible police officer was required to state the facts correctly before the Court but he tried to mislead the Court and also made different statements at different stages. It has come on record in the statement of PW-3 Inspector Vikas narain adav that he has not recorded the statement of FIR writer during investigation. Further it is admitted by him that the District magistrate and Superintendent of Police Lakhimpur Kheri also visited the place of occurrence at 04.00 PM on 08.02.2006. PW-6 Head Constable Munendra Dev Shukla has admitted that at 04.00 PM a memo was given at the police station by the Ward Boy of the District Hospital regarding deceased. It is mentioned in the memo that the dead body has been kept in the mortuary of the hospital. 33. PW-6 Head Constable Munendra Dev Shukla has admitted that at 04.00 PM a memo was given at the police station by the Ward Boy of the District Hospital regarding deceased. It is mentioned in the memo that the dead body has been kept in the mortuary of the hospital. 33. It is further admitted by PW-3 Inspector Vikas Narain Yadav that it is mentioned in the GD that rdehyk lEcfU/kr jftLVªs'ku fd;k tk jgk gSA Msyh tjk;e jokuk gksxhA lwpuk }kjk tfj;s vkj Vh lsV ds ek/;e ls d.Vªksy :e ds vQljku okyk dks nh xbZA ckn rS;kj djds ,l vkj vQljku okyk ds ikl jokuk fd;k tk;sxkA vkj Vh lsV dh lwpuk izkIr gksus ij rqjUr ckn Jheku {ks=kf/kdkjh uxj egksn; tfj;s vkj Vh lsV vkns'k fn;k fd Fkkuk/;{k [khjh vfrfjDr iqfyl cy ds lkFk Fkkuk/;{k uhexkao vfrfjDr iqfyl cy ds lkFk Fkkuk/;{k Á/kku i;kZIr iqfyl cy ds lkFk dkuwu O;oLFkk ,oa 'kkfUr O;oLFkk lqfuf'pr j[kus ds fy;s yksd O;oLFkk cuk;s j[kus ds fy;s vfoyEc eksgryk gkFkhiqj ?kVukLFky igqaps] ;g Hkh vkns'k fn;k fd izfrlkj fujh{kd fjtoZ iqfyl ykbu dks lwpuk nh fd vfoyEc M+s<+ lsD'ku ihŒ ,Œ lhŒ ekSdk ij eSaus {ks=kf/kdkjh egksn; ds vkns'k dks tfj;s vkj Vh lsV lEcfU/kr vf/kdkfj;ksa dks crk;k x;k rFkk ,lŒ ,pŒ vks egksn; dks Hkh voxr djk;k x;kA 34. This entry in the GD by which the case was registered at the police station specifically shows that an information was sent by the RT set to the concerned police authorities to reach at the spot along with the sufficient police force but PW-3 Inspector Vikas Narain Yadav himself admitted that at 04.00 PM District Magistrate and Superintendent of Police Lakhimpur Kheri visited the place of occurrence. What was the reason as to how both these senior-most officers of the District arrived at the spot prior to lodging of the FIR? As to how Investigating Officer was present at the spot when the FIR of the matter was not even lodged at the spot. How he came to know about the incident ? What was the reason as to how both these senior-most officers of the District arrived at the spot prior to lodging of the FIR? As to how Investigating Officer was present at the spot when the FIR of the matter was not even lodged at the spot. How he came to know about the incident ? Even if for the sake of argument it is accepted that some information about the incident was received at the police station then it should have been entered in the GD but no such information is produced before the learned trial court to show that prior to lodging of the FIR any information either telephonically or through RT set or otherwise was received at the police station which brought the police officers as well as the senior most district authorities to come into action and visit the place of occurrence. All these doubts clearly establish some foul play in the matter. It is further very important to note that Investigating Officer who is a senior police officer did not even care to record the statement of the scribe of the first information report which is a most important document. He has not been able to give any reason. PW-6 Munendra Dev Shukla has stated that his statement was recorded by the Investigating Officer on 09.5.2006 while PW-3 Inspector Vikas Narain Yadav has admitted that during investigation he has not recorded the statement of FIR writer. It is a serious lacuna on the part of the Investigating Officer. Cumulative effect of all the aforesaid circumstances gives an irresistible conclusion that the first information report was not lodged on 08.02.2006 at 5.15 PM. First information report is ante-timed. 35. It was held in Anand Mohan v. State of Bihar (2012) 7 SCC 225 that if the date and time of FIR is suspicious, the prosecution version is not rendered vulnerable but the Court is required to make a careful analysis of the evidence in support of the prosecution case. In the light of aforesaid legal dictum now we have to closely and carefully analyse the evidence of two eyewitness namely, PW-1 Ram Guni and PW-2 Vinod. 36. PW-1 Ram Guni is mother of the deceased who is an eyewitness in the case. She was coming back along with Ram Janki and Vinod on the rickshaw and saw a mob near the khokha of Anvar. 36. PW-1 Ram Guni is mother of the deceased who is an eyewitness in the case. She was coming back along with Ram Janki and Vinod on the rickshaw and saw a mob near the khokha of Anvar. She left the rickshaw and reached at the spot. It is alleged by this witness that she had seen the occurrence. Presence of the PW-1 at the spot is very much doubtful. She is mother of the deceased. Her conduct is such that her house is about 15 to 20 steps from the place of occurrence. She did not even inform her husband about the incident. She took the deceased along with Vinod to the hospital. From the hospital again she took deceased to Lucknow on the way in between Oel and Hargaon Shyamu succumbed to the injuries. She brought back the dead body to the hospital, kept it there, reached her house but did not inform her husband that their son Shyamu has been murdered. This whole conduct shows an abnormal conduct of PW-1 Ram Guni. Further she has admitted that she thought that accused would have been present at the spot as Shyamu used to go to the khokha of Anvar to purchase gutka and they might have murdered him. It is further admitted by her that there was a tajiya procession. She left the rickshaw. At the time of incident tajiya procession was going on the same road. When she reached near Shyamu he was unconscious in injured condition. She and Vinod took him to the hospital. Their clothes got blood stained but no such clothes were recovered by the Investigating Officer, neither they have been shown to the Investigating Officer. It is a serious circumstances which shows that her presence at the spot was very much doubtful. Further if the tajiya procession was going on when the incident took place then there would have been a large number of people who must have seen the occurrence but no-one came forward to depose in the matter. Further when there was a procession going on at the spot then how she saw the incident. She has herself admitted that she left the rickshaw about 10 to 15 steps behind as the procession was going on. It means that when the occurrence took place she was not present there. 37. Further when there was a procession going on at the spot then how she saw the incident. She has herself admitted that she left the rickshaw about 10 to 15 steps behind as the procession was going on. It means that when the occurrence took place she was not present there. 37. It is specific prosecution version that only three wounds of entry and three wounds of exit were found on the body of the deceased. At the spot four empty cartridges 315 bore, one live cartridge and one lead cartridge 315 bore was found. PW-1 Ram Guni has stated that she heard voice of five to six fires which also negates the prosecution version keeping in view, the injuries received by the deceased on his body. Presence of PW-1 Ram Guni further becomes doubtful when she states that she took Shyamu in injured condition to the District Hospital where primary aid was given and he was referred to the King George Medical College, Lucknow. Not a single document has been produced by the prosecution to show that the deceased was taken to the district hospital in injured condition. It was a case of gun shot injury. If Shyamu was taken to the District hospital in the injured condition and doctor had treated him then the injuries should have been mentioned by the doctor in medico-legal register. A government doctor is under an obligation and duty to maintain the register but no such register is produced. Even concerned doctor, who has referred the injured Shyamu to King George Medical College Lucknow, has not been produced by the prosecution. Doctor was a very important witness to show as to when he has referred Shyamu to King George Medical College. Non production of such an important witness is vital for the prosecution. PW-2 Vinod Kumar is also an eyewitness. This witness has given an exaggerated statement in his examination-in-chief to the effect that when he was coming back from market along with Ram Guni and Ram Janki then he saw that mother and father of the accused Dalu were standing on the poarch of the house and were exhorting that ns[krs D;k gks dke reke djksA Both were carrying country made pistols in their hands. Only three fires were shot, out of which two were shot by Dalu and one was shot by Amit. Only three fires were shot, out of which two were shot by Dalu and one was shot by Amit. There is no prosecution case that father and mother of Dalu has exhorted the accused to kill Shyamu. PW-2 Vinod Kumar has also admitted that he along with Ram Guni took Shyamu to the District Hospital. Their clothes were stained with blood but their clothes were not taken in possession of the Investigating Officer. When this witness has stated that when two fires were shot at Shyamu he fell down at that time PW-2 Vinod was not sitting on rickshaw, rather he was coming on foot. Strangely, Ram janki, sister of the deceased left the place and went to her house. She did not stay at the place of occurrence when her real brother with whom she was living was in such a critical injured condition. This witness has further admitted that when they brought back the dead body to the hospital he stayed there for one to one hour and fifteen minutes in the hospital. They reached at the hospital with the dead body at 3.45 PM while PW-1 Ram Guni has stated that it took about one hour to reach the place from hospital where his son died. Thereafter ambulance again took one hour to come back at the hospital. It means that after leaving the hospital for Lucknow it took two hours to again come back at the hospital. PW-1 Ram Guni remained in the hospital with Shyamu in injured condition for about 10 to 15 minutes while according to PW-2 they reached at the hospital at 03.20 PM, stayed there about 15 to 20 minutes. It further fortifies the argument of the learned counsel for the appellant that first information report is ante-time. Further presence of PW-2 at the place of occurrence is also not proved. There is material contradiction in the evidence of PW-1 Ram Guni and PW-2 Vinod. Both of them have given contradictory statements to each other and their evidence is not reliable. 38. There is another aspect of the matter. First information report was lodged at 5.15 PM but the inquest proceedings were conducted on 09.2.2006 at 9.00 AM. It is mentioned that since it got dark, hence, inquest proceedings could not be conducted on 08.2.2006. At the time of inquest, deceased was found wearing only one underwear. 38. There is another aspect of the matter. First information report was lodged at 5.15 PM but the inquest proceedings were conducted on 09.2.2006 at 9.00 AM. It is mentioned that since it got dark, hence, inquest proceedings could not be conducted on 08.2.2006. At the time of inquest, deceased was found wearing only one underwear. Admittedly, house of the deceased was about twenty steps from the place of occurrence. Deceased went to the khokha of Anvar to purchase gutka. Deceased was a young man. Occurrence is of the month of February, which is a time of cold weather. How and why deceased was wearing only underwear at the time of incident? It is a circumstance which should have been clarified by the prosecution but no such clarification was on record. This circumstance also creates a doubt. Further matter was so serious that even the District Magistrate and Superintendent of Police visited the place of occurrence then why the inquest proceedings were not conducted on the same evening. All these circumstances create a doubt about the prosecution story. 39. When the dead body reached the police station in the evening and the FIR was lodged at 5:15 PM, then there is no reason as to why the inquest proceedings could not be conducted on the same day? Why Investigating Officer waited till next morning? Explanation submitted by the Investigating Officer is not at all convincing and satisfactory that it was dark due to which inquest proceedings could not be conducted. It is a case of murder in the city area within precincts of police station Kotwali where elaborate arrangement for light are available but the Investigating Officer did not care to conducting the inquest in the evening itself. This itself is a strong circumstance to show that there were certain reasons due to which inquest proceedings were not conducted in the evening, rather they were conducted in the next morning. The only inference which can be drawn along with other circumstances of the case is that all the proceedings were conducted ante-time. 40. Considering all the facts and circumstances and aforesaid discussion, we are of the considered view that the learned trial court has not considered the evidence in correct legal perspective, rather it has misinterpreted the evidence on record. Prosecution has failed to prove the guilt against the accused beyond reasonable doubt. Accordingly, appeal deserves to be allowed. 41. 40. Considering all the facts and circumstances and aforesaid discussion, we are of the considered view that the learned trial court has not considered the evidence in correct legal perspective, rather it has misinterpreted the evidence on record. Prosecution has failed to prove the guilt against the accused beyond reasonable doubt. Accordingly, appeal deserves to be allowed. 41. Appeal is allowed. Impugned judgment and order dated 04.11.2011 is set-aside. Accused 33 (Criminal Appeal No. 21 of 2012) appellant is acquitted of the charge levelled against him. He is in jail. He shall be released forthwith if not wanted in any other case. 42. Office is directed to certify this order to the learned trial court to ensure compliance. Office is further directed to transmit the lower court record forthwith.