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2017 DIGILAW 1040 (ALL)

RAJESH KUMAR LODHI v. STATE OF U. P.

2017-04-19

BHARAT BHUSHAN, SHAILENDRA KUMAR AGRAWAL

body2017
Bharat Bhushan, J. 1. Appellant Rajesh Kumar Lodhi has assailed common judgment and order dated 10.9.2003 passed by Additional Sessions Judge (Court No. 10) Kanpur Nagar in Sessions Trial No. 190 of 2001 (State versus Rajesh Kumar Lodhi) arising out of Crime No. 361 of 2000 under sections 302, 307 Indian Penal Code (in short, IPC) Police Station (in short, P.S.) Bidhnoo District Kanpur Nagar and Sessions Trial No. 308 of 2001 (State versus Rajesh Kumar Lodhi and another) arising out of Crime no. 362 of 2000 under sections 25/30 Arms Act, P.S. Bidhnoo, District Kanpur Nagar, whereby appellant was convicted and sentenced under section 302 IPC to undergo rigorous imprisonment for life along with a fine of Rs. 2,000/- with default stipulations and he was further sentenced to undergo rigorous imprisonment for three years for the offence under section 27 Arms Act. Both the sentences were directed to run concurrently. However, appellant Rajesh Kumar Lodhi was acquitted of the charge under section 307 IPC. 2. Prosecution case in brief is that on 7.11.2000 at about 7:45pm, informant Smt. Suman (PW-1) and her brother Rajjan Verma (PW-2) went to grocery shop of Prakash Bajpai to purchase Besan (gramflour) where appellant Rajesh Kumar Lodhi was also present. Deceased Dhunna, husband of informant also followed his wife to that shop. Appellant Rajesh Kumar Lodhi was hurling abuses. Deceased was also pushed back by appellant whereupon informant Smt. Suman asked her husband to come back home. Deceased sent his wife back to residence assuring her that he will not interfere with appellant Rajesh Kumar Lodhi. 3. First PW-1 Smt. Suman came back to her residence. Her husband Dhunna and her brother Rajjan Verma (PW-2) also came back and were standing on raised platform (Chabutra) of Nanku Sahu. 4. Suddenly, appellant Rajesh Kumar Lodhi, hurling abuses at deceased Dhunna, went to his residence and brought back the licensed gun of his mother and fired a shot on the chest of deceased Dhunna resulting in his instantaneous death. PW-1 Smt. Suman and PW-2 Rajjan Verma tried to catch accused-appellant but he fired again dissuading them from running after him. However, noise generated by fire-arm brought several neighbours and village folks to the place of occurrence. 5. Informant got the First Information Report (in short, FIR) scribed by Ram Kumar, elder brother of deceased and lodged it at 8:50pm at Police Station which was 2 km. However, noise generated by fire-arm brought several neighbours and village folks to the place of occurrence. 5. Informant got the First Information Report (in short, FIR) scribed by Ram Kumar, elder brother of deceased and lodged it at 8:50pm at Police Station which was 2 km. away from the place of occurrence, meaning thereby that FIR was allegedly lodged within 65 minutes of incident by the wife of deceased. 6. A chik report (Ex. Ka.2) was carved out. Investigation was taken over by S.I. Rajvansh Singh (PW-6) who was posted at Police Chauki Kuriyan, P.S. Bidhnoo. He recorded statement of informant Smt. Suman, inspected the place of occurrence, prepared site-plan (Ex.Ka.7), conducted inquest proceedings (Ex. Ka-8) and sent the cadaver for postmortem with requisite documentation through Constable Lajja Ram and Constable Kaptan Singh. 7. This Investigating Officer (in short, I.O.) also collected one empty cartridge from the place of occurrence. Memorandum of its recovery was prepared as Ex.Ka. -13. Rajvansh Singh, Ist Investigating Officer also collected blood stained and simple earth from the place of occurrence and prepared a memorandum (Ex.Ka.-14) in this regard. Thereafter, investigation was taken over by Dal Chand, the then Station House Officer (S.H.O.) P.S. Bidhnoo (PW-5) on 8.11.2000 i.e. the next day of incident and submitted a charge sheet (Ex. Ka.-6) on 29.11.2000. 8. It is pertinent to point out that a single barrel gun no. 12748-81, an empty and one live cartridges were also recovered from the house of appellant Rajesh Kumar Lodhi in presence of Police witnesses as well as other witnesses namely, Ramesh Kumar Rajput and Radhey Shyam Rajput. The memorandum of recovery (Ex.Ka.17) discloses that one empty cartridge was found embedded in the chamber of Single Barrel Gun and while one live cartridge was found on the floor. This gun belongs to Smt. Ram Shree, mother of appellant Rajesh Kumar Lodhi. This recovery was investigated by PW7 S.I. Vipin Kumar Tyagi who prepared the site-plan (Ex.Ka.-18) and submitted charge sheet (Ex.Ka.-19) against appellant Rajesh Kumar Lodhi and his mother under section 27/30 Arms Act. Both sessions trial no.190 of 2001 (State versus Rajesh Kumar Lodhi and another) arising out of Case crime no. 361 of 2000 under section 302/307 IPC and Sessions Trial No. 308 of 2001 (State versus Rajesh Kumar Lodhi) under sections 25/30 Arms Act were connected and a joint trial was conducted. Both sessions trial no.190 of 2001 (State versus Rajesh Kumar Lodhi and another) arising out of Case crime no. 361 of 2000 under section 302/307 IPC and Sessions Trial No. 308 of 2001 (State versus Rajesh Kumar Lodhi) under sections 25/30 Arms Act were connected and a joint trial was conducted. In the main case, trial Judge charged accused Rajesh Kumar Lodhi under section 302/307 IPC vide order dated 25.1.2002. The appellant Rajesh Kumar Lodhi denied the charges and claimed to be tried. 9. The prosecution produced seven witnesses in support of its charge namely, PW-1 Smt. Suman (wife of deceased and eyewitness), PW-2 Rajjan Verma (brother of Smt. Suman and eyewitness), PW-3 Deshraj Khanna, the then Head Clerk, P.S. Bidhnoo, recorded the FIR under section 302), PW-4 Dr. Adkhilesh Shukla, (conducted the autopsy), PW5 Dal Chandra (IInd I.O.), PW-6 Rajvansh Singh (Ist I.O.) and PW-7 Vipin Kumar Tyagi (I.O. of offence under section 27/30 Arms Act). 10. The statement of appellant was recorded under section 313 Criminal Procedure Code (in short, Cr.P.C.) where he denied all the allegations and claimed false implication on account of prior enmity. On conclusion of trial, Additional Sessions Judge was convinced of prosecution evidence and therefore, convicted Rajesh Kumar Lodhi for the offence under Section 302 IPC and Section 27 Arms Act and appellant was sentenced, as aforesaid. This judgment is under challenge before this Court. 11. Heard Sri Arvind Kumar Srivastava, learned Amicus Curiae for appellant Rajesh Kumar Lodhi and Sri Rajeev Sharma, learned AGA for the State. 12. Learned Amicus curiae has argued that there is no independent evidence on record to prove the guilt of appellant Rajesh Kumar Lodhi. A claim was made that FIR was ante-timed and fabricated. The scribe of FIR was not produced. The shopkeeper Prakash Bajpai, Nanku and Ram Kumar were not produced during the course of evidence. Submission was that the place of occurrence is uncertain and indicated recovery is full of discrepancies. Learned Amicus curiae has submitted that presence of witnesses on the spot is highly doubtful. 13. Per contra, learned AGA has submitted that there was no enmity between the parties, therefore, question of false implication does not arise. He has claimed that minor discrepancies would not render the evidence of witnesses untrustworthy. He has claimed that FIR was lodged promptly. Therefore, no opportunity was available for witnesses to concoct the evidence. 14. 13. Per contra, learned AGA has submitted that there was no enmity between the parties, therefore, question of false implication does not arise. He has claimed that minor discrepancies would not render the evidence of witnesses untrustworthy. He has claimed that FIR was lodged promptly. Therefore, no opportunity was available for witnesses to concoct the evidence. 14. Prosecution evidence indicates that incident was witnessed by two persons, namely, PW-1 Smt. Suman, wife of deceased and PW-2 Rajjan Verma, brother of PW-1 Smt. Suman. No other witness was produced by the prosecution. Ordinarily independent witnesses are not required in every case. If credibility of witnesses is intact, then no person can be acquitted merely on the ground that some other available witnesses were not produced. 15. In the present case, there are some significant discrepancies in the FIR as well as prosecution witnesses which do create an expression that these witnesses are not wholly reliable, therefore, question of corroboration emerges. 16. First of all, place of occurrence is not certain. FIR (Ex.Ka.-1) says that deceased Dhunna, his wife PW-1 Smt. Suman and his brother, namely, PW-2 Rajjan Verma came back from the shop of Prakash Bajpai and at the time of incident, deceased Dhunna was standing on the Chabutra (raised platform) where appellant Rajesh Kumar Lodhi came and shot him dead. This Chabutra of Nanku Sahu has not been shown in site-plan (Ex.Ka.-7). Notes annexed with this site-Plan indicate that incident took place and dead body was found on the Chabutra of Nanku Sahu but site-plan does not display it. Site-plan indicates that dead body was found in front of Chabutra of Sonu Savita. The name of Sonu Savita is found neither in the FIR nor in the oral testimony of eyewitnesses. If we carefully peruse the site plan, it would indicate that both PW-1 Smt. Suman and PW-2 Rajjan Verma were merely 2 steps and 3 steps away from the place of occurrence. If both eyewitnesses were present on the spot in such close quarter, there was absolutely no chance of any major contradictions and discrepancies and yet Chabutra of Nanku Sahu is totally absent from the site-plan. 17. If we take site-plan into consideration, it would reveal that deceased was done to death in front of house of Sonu Savita yet name of Sonu Savita is not mentioned in the FIR at all. 17. If we take site-plan into consideration, it would reveal that deceased was done to death in front of house of Sonu Savita yet name of Sonu Savita is not mentioned in the FIR at all. Sonu Savita and Nanku Sahu have not been produced in evidence. If the contents of FIR were to be believed, then testimony of Nanku Sahu would be vital for establishing the case of prosecution. On the other hand, if the contents of site-plan are accepted, then evidence of Sonu Savita would have been very important. Absence of Sonu Savita and Nanku Sahu from witness box is fatal to the prosecution case in view of several discrepancies found in the testimonies of two eyewitnesses. 18. This alone is not only discrepancy as far as place of occurrence is concerned. Prosecution evidence indicates that Ist I.O. PW-6 S.I. Rajvansh Singh went to the place of occurrence immediately. Site plan (Ex.Ka.-7) indicates that this site plan was prepared on 7.11.2010 itself and yet the inquest report prepared immediately in the aftermath of the incident on 7.11.2000 at about 10:00pm discloses that cadaver of deceased Dhunna was found on the Chabutra of his own house. In this inquest report, nothing is mentioned about Chabutra of Nanku Sahu or Chabutra of Sonu Savita. It creates a third place in the shape of Chabutra of deceased himself. Now, the question arises if two eyewitnesses were present on the spot, and inquest proceedings were initiated at 10:00pm on the same night, then there was no possibility of any discrepancy regarding place of occurance or this discrepancy could have been explained by Nanku Sahu and Sonu Savita. But both of them have been withheld without any explanation whatsoever. PW-1 Smt.Suman has specifically mentioned in her testimony that her husband was standing on the Chabutra of Nanku Sahu, when he was shot by accused from very close quarter. She claims to have rushed towards assailant along with her brother Rajjan Verma. Admittedly, it was onset of night at the time of occurrence. PW-1 Smt. Suman herself has claimed that a lantern was burning at the door of Nanku Sahu and she recognized the assailant in the light of this lantern and yet this stated lantern was neither taken into possession by any I.O. nor any memorandum was prepared. 19. Admittedly, it was onset of night at the time of occurrence. PW-1 Smt. Suman herself has claimed that a lantern was burning at the door of Nanku Sahu and she recognized the assailant in the light of this lantern and yet this stated lantern was neither taken into possession by any I.O. nor any memorandum was prepared. 19. It is very important to point out that PW-1 Smt. Suman has admitted that Nanku Sahu and his family were present at the time of incident and yet name of Nanku Sahu is completely absent from prosecution case. In fact, he was not even nominated as prosecution witness in the charge-sheet. PW-2 Rajjan Verma has also talked about Chabutra of Nanku Sahu as a place of occurrence. We believe that uncertainty regarding place of occurrence creates doubt about presence of eyewitnesses. PW-6 S.I.Rajvansh Singh, Ist Investigating Officer has not also specified the place of occurrence either in his evidence or in the site plan. 20. Learned AGA has laid a great stress that FIR was lodged within 65 minutes of incident. He has claimed that it should obviate any doubt about veracity of prosecution evidence. Critical examination of his claim, in fact, creates more doubt about prosecution story. First, it must be mentioned that the place of occurrence was 20 km. away from the P.S. Bidhnoo. The incident allegedly occurred at above mentioned place yet prosecution claims that distraught wife managed to reach P.S. Bidhnoo, after getting a report scribed by his brother-in-law (Jeth) and lodge it at 8:50pm i.e. all within 65 minutes of incident. This claim is not supported by prosecution evidence. 21. PW-1 Smt. Suman says that after the incident, she dictated the FIR to her Jeth Ram Kumar. The FIR was read over to her. She put signature on this FIR and went to lodge it at P.S. Bidhnoo, which was 20 km. away from the place of occurrence. She admitted that she was busy with her children when accused came and fired shot upon deceased. She claimed that she started crying and weeping, and kept on crying through-out the night and did not go anywhere. She has also said that her Jeth Ram Kumar also came in the night along with family and all of them were sitting around the dead body of the deceased. She claimed that she started crying and weeping, and kept on crying through-out the night and did not go anywhere. She has also said that her Jeth Ram Kumar also came in the night along with family and all of them were sitting around the dead body of the deceased. The relevant portion of her testimony is reproduced below :- **eSa jksuk ihVuk 'kq: dj nhA ge yksx jkr Hkj ?kVukLFky ij jksrs jgsA eSa vkSj dgha ugha x;hA esjs tsB Hkh jkr dks vk x;s FksA esjs tsB dk uke jkeqdqekj oekZ gSA muds cPps o iRuh Hkh vk x;s FksA mDr lHkh yksx jkr Hkj ifr ds 'ko ds ikl jgsA eq>s /;ku ugha gS fd iqfyl okys jkr dks vk, ;k ughaA eSa ?kj esa FkhA u eSa gks'k esa Fkh u csgks'k gh FkhA eq>s ;kn ugh fd ?kVuk dh fjiksVZ eSus dh ;k ughaA Fkkuk fo/kuw eSa x;h FkhA eq>s ;kn ugha gS fd ?kVuk ds fdrus fnu ckn Fkkus x;hA Fkkus tsB ds lkFk x;h FkhA ;g /;ku ugha gSa fd fnu esa Fkkus x;h ;k jkr esaA Fkkuk fo/kuw fjiksVZ fy[kkus x;h FkhA fjiksVZ Fkkus ij fy[kk;k ;kn ughaA fjiksVZ fy[kh x;h FkhA ;kn ugha fd iqfyl us dksbZ nLr[kr djk;k Fkk ;k ughaA eq>s ;kn ugha gSa fd esjk dksbZ c;ku fy;k x;k ;k ughaA dksbZ njksxk ?kVukLFky ij dHkh vk;s ;k ugha eq>s /;ku ughaA ifr ds ekSr ds ckn 8&10 fnu rd eq>s gks'k gokl ugha FkhA ;kn ugha gS fd Fkkus esa fjiksVZ fy[kkrs le; gks'k Fkk ;k ughaA ;g Hkh /;ku ugha gS fd fdlus fjiksVZ fy[kh FkhA eSus jkedqekj tsB ls fy[kk;k FkkA** 22. The aforesaid paragraph indicates that PW-1 Smt. Suman did not go to Police Station in the night. In fact, she was not even aware of arrival of Police in the night. At one place, she says that she does not even remember when she filed the FIR. She did not remember the presence of Police personnel on the spot. The testimony of PW-1 Smt. Suman discloses that she remained rooted to the place of occurrence throughout the night of incident. In any case, the scribe Ram Kumar Verma was not present on the spot. He came, later on, to attend the mourning of deceased Dhunna along with his wife and children. The testimony of PW-1 Smt. Suman discloses that she remained rooted to the place of occurrence throughout the night of incident. In any case, the scribe Ram Kumar Verma was not present on the spot. He came, later on, to attend the mourning of deceased Dhunna along with his wife and children. If report was scribed by Ram Kumar Verma, then it could not have been done within few minutes of incident. The evidence reveals that Ram Kumar Verma was informed about death of his brother, then his brother came along with entire family to the place of occurrence. We do not believe that this witness immediately travelled 20 km. to lodge the report at 8:50pm. Argument of ante-timing of FIR can not be ignored especially in the light of testimony of PW-1 Smt. Suman. 23. The evidence of PW-2 Rajjan Verma further complicates the prosecution case. He says that he along with his sister rushed towards the spot and found deceased Dhunna dead. PW-1 Smt. Suman Devi says that she went to Police Station along with her Jeth to lodge the FIR. G.D. (Ex. Ka.-3) talks of FIR being lodged at 8:50pm at the Police Station by PW-1 Smt. Suman, widow of deceased Dhunna. The extract of G.D. says that PW-2 Rajjan Verma accompanied Smt. Suman (PW-1) and handed over an FIR scribed by Ram Kumar (Jeth). This extract of G.D. does not talk about presence of Ram Kumar at the time of lodging of FIR. PW-2 Rajjan Verma also says that he went to lodge FIR with his sister Smt. Suman. But PW-1 Smt. Suman disputes this assertion. She has clearly stated that she went to Police Station in the company of her Jeth Ram Kumar. This is very starling discrepancy. If PW-1 Smt. Suman and PW-2 Rajjan Verma were present and had seen the incident together, then there would not be any question of such a significant discrepancy. In fact, Ram Kumar should have been produced in the evidence to explain the discrepancy. Unfortunately Ram Kumar Verma also has not been produced. We believe that discrepancy regarding lodging of the FIR is significant and has not been explained by the prosecution. PW-2 Rajjan Verma has talked about a scooter on which he went to Police Station Bidhnoo in the night while PW-1 Suman has not talked about it. Unfortunately Ram Kumar Verma also has not been produced. We believe that discrepancy regarding lodging of the FIR is significant and has not been explained by the prosecution. PW-2 Rajjan Verma has talked about a scooter on which he went to Police Station Bidhnoo in the night while PW-1 Suman has not talked about it. PW-2 Rajjan Verma has claimed that they went to Police Station along with a third unknown person. This third person has not been named by the prosecution evidence either orally or in the extract of G.D. 24. Interestingly PW-1 Smt. Suman says that she had dictated the FIR to her Jeth Ram Kumar who read back the contents of FIR to her. She then signed the FIR and went along with her Jeth to Police Station. The statement does not talk about presence of Rajjan Verma. PW-2 Rajjan Verma talks about presence of a third unknown person. Ram Kumar was certainly not unknown person. He has also claimed that report was dictated by him and her sister at Police Station to the Police personnel and both of them signed that FIR. Relevant portion of statement of PW-2 Rajjan Verma is reproduced below :- **Fkkus ij fjiksVZ eSus o esjh cgu us fy[kkbZ FkhA tckuh cksydj fy[kkbZ FkhA iqfyl okys fy[k jgs FksA ge nksuksa us nLr[kr fd;k FkkA bl ?kVuk ds ckjs esa iqfyl us iwNrkN ckn esa dh FkhA** 25. If the report was dictated to the Police personnel at Police Station, then whole prosecution story is on shaky ground and presence of PW-1 Smt. Suman and PW-2 Rajjan Verma on the spot becomes doubtful. If the presence of these persons on the spot is not certain, then these discrepancy ridden testimonies are not sufficient for conviction of appellant. 26. PW-6 Rajvanash Singh was first I.O. He claims that one empty cartridge (Ex.Ka.13) was recovered from the spot in presence of witnesses. A single barrel gun was recovered from the residence of appellant Rajesh Kumar Lodhi wherein empty cartridge was found embedded in the chamber of gun and live cartridge was also recovered from the floor of the house. All the materials were sealed and sent for forensic examination. Prosecution story indicates that two empties and one live cartridge were sent for forensic examination. Forensic report, available on record, talks of receiving three empties and one live cartridge for examination. All the materials were sealed and sent for forensic examination. Prosecution story indicates that two empties and one live cartridge were sent for forensic examination. Forensic report, available on record, talks of receiving three empties and one live cartridge for examination. Documentary evidence (Ex.Ka-13 and 15) indicate that one empty was recovered from the spot and one empty and one live cartridge along with single barrel gun were recovered from the residence of appellant. These recoveries were made in presence of independent witnesses, namely, Jitendra Kumar, Savita and Dhiraj Kumar Khanwar for first recovery and Ramesh Rajput and Radhey Shyam for second recovery. None of these witnesses have been produced in evidence to establish the aforesaid recoveries. PW-6 S.I. Rajvansh Singh has reiterated that one empty was recovered from the spot and one empty was found embedded in single barrel gun recovered on 8.11.2000 from the residence of appellant but surprisingly four empties and one live cartridge surfaced from the packet of recovered material. This fact has been admitted by PW-6 in his statement in the following words :- **cjkne'kqnk dkjrwl ftldks vnkyr ds lkeus [kksyk x;k rks xokg us crk;k fd ftlesa ,d 1 ftUnk dkjrwl o pkj [kks[kk dkjrwl gSA** 27. This discrepancy in the number of live cartridge and empties sent by police personnel and opened during court trial is certainly fatal to the prosecution case. It is pertinent to point-out that PW-7 Vipin Kumar Tyagi, I.O. of Criminal Case under Arms Act has merely talked of one single barrel gun, one live cartridge and one empty but when same material was opened in the court, it spilled one live cartridge and 4 empties. This discrepancy has not been explained by prosecution. This creates doubt about the procedure adopted by police to seal and dispatch the recovered materials to the forensic laboratory. This doubt has been enhanced in view of the fact that four independent witnesses connected with two recoveries have not been produced before the court. 28. The presence of light on the spot at the time of occurrence is also shrouded in the mystery. Incident occurred in the month of November at about 7:45pm. Dusk must have fallen. This doubt has been enhanced in view of the fact that four independent witnesses connected with two recoveries have not been produced before the court. 28. The presence of light on the spot at the time of occurrence is also shrouded in the mystery. Incident occurred in the month of November at about 7:45pm. Dusk must have fallen. PW-1 Smt. Suman has admitted that electricity had been cut off an hour prior to incident and there no light was emitting from the street-bulbs though she has talked about burning lantern at the Chabutra of Nanku Sahu. On the other hand, PW-2, Rajjan Verma, has admitted the absence of street-light but has claimed that electricity was available at the residence of deceased and electric bulb was giving light at the Chabutra of Nanku Sahu. This is contrary to the evidence of PW-1 Smt. Suman, her sister. This contradiction has not been explained by the prosecution. This indicates desire to create evidence. 29. The FIR (Ex. Ka-1) indicates that a licensed gun of the mother of appellant was used in assassinating deceased Dhunna. PW-1 Smt. Suman, who has claimed to be present just 2-3 steps away from his deceased husband says that accused was using double barrel gun. She has very firmly asserted at least two places during her evidence that appellant was holding and using double barrel gun while PW-2 Rajjan Verma has claimed that deceased was shot by single barrel gun. Both of them were stated to have been standing just 2-3 steps away from the deceased at the time of occurrence, if their claim and contents of site-plan (Ex.Ka-7) are taken into consideration. These significant contradiction and discrepancy have not been explained by the prosecution at all. It is pertinent to point out that PW-6 Rajvansh Singh has reiterated that single barrel gun 12 Bore No. 12748/81 was recovered from the residence of appellant. Police claimed that single barrel gun (Fard Ka-15) was used in the incident. PW-2 Rajjan Verma also says that single barrel gun was used but the wife of deceased PW-1 Smt. Suman says that appellant used double barrel gun for assassinating her husband. This discrepancy is absolutely fatal to the prosecution. This discrepancy creates doubt about presence of witnesses on the spot. 30. PW-2 Rajjan Verma also says that single barrel gun was used but the wife of deceased PW-1 Smt. Suman says that appellant used double barrel gun for assassinating her husband. This discrepancy is absolutely fatal to the prosecution. This discrepancy creates doubt about presence of witnesses on the spot. 30. The lantern allegedly burning at the site was not taken into possession by any I.O. The presence of Ram Kumar at the police station is not supported by evidence on record. Police personnel insisted that investigation started immediately in a aftermath of incident. Inquest proceedings were initiated at 10:00pm while eyewitness PW-1 Smt. Suman (informant) says police did not come in the night. 31. In fact, she says that police personnel came on next day at 3:00pm in the afternoon. The report was lodged at 8:50pm while PW-1 Smt. Suman says that she did not go to the Police Station whole night. At one place she has said that she was sitting around body of her husband throughout the night along with her Jeth Ram Kumar and his family. Obviously, the claim of Amicus Curiae that FIR was ante-timed can not be ignored. Place of occurrence is completely uncertain. Inquest says that dead-body was found outside the residence of deceased while oral testimony talks that incident occurred at Chabutra of Nanku Sahu while site plan indicates that incident occurred outside the residence of Sonu Savita. 32. We believe that non-production of witnesses of recovery, namely, Nanku Sahu, Sonu Savita, Ram Kumar and Prakash Bajpai are fatal to the prosecution case. We also believe that there is a fair chance that some of the police papers were fabricated especially timing of FIR is doubtful. 33. We are also convinced that genesis of story is shrouded in the mystery. We believe that prosecution has not come forward with clean hands. An attempt to manufacture evidence is palpable. Eyewitnesses are wholly unreliable. Their presence on the spot is doubtful. Therefore, appellant is entitled to benefit of doubt. We also believe that it would not be safe to convict the appellant on this unreliable and discrepancy ridden evidence. 34. In the result, the appeal is allowed. An attempt to manufacture evidence is palpable. Eyewitnesses are wholly unreliable. Their presence on the spot is doubtful. Therefore, appellant is entitled to benefit of doubt. We also believe that it would not be safe to convict the appellant on this unreliable and discrepancy ridden evidence. 34. In the result, the appeal is allowed. The common judgment and order dated 10.9.2003 passed by Additional Sessions Judge (Court No. 10) Kanpur Nagar in Sessions Trial No. 190 of 2001 (State versus Rajesh Kumar Lodhi) arising out of Crime No. 361 of 2000 under sections 302, 307 IPC Police Station Bidhnoo District Kanpur Nagar and Sessions Trial No. 308 of 2001 (State versus Rajesh Kumar Lodhi and another) arising out of Crime no. 362 of 2000 under sections 25/30 Arms Act, P.S. Bidhnoo, District Kanpur Nagar, is set aside. Appellant Rajesh Kumar Lodhi is acquitted of charge under sections 307 and 302 IPC. Appellant be released forthwith, if not required in any other case. 35. Office is directed to certify the judgment to the concerned court through Sessions Judge, Kanpur Nagar within 15 days. The concerned court shall send the compliance report within one month thereafter.