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2017 DIGILAW 1043 (ALL)

VISHNU KUMAR v. STATE OF U. P.

2017-04-19

BHARAT BHUSHAN, SHAILENDRA KUMAR AGRAWAL

body2017
Bharat Bhushan, J. 1. Appellant Vishnu Kumar has assailed the judgment and order dated 1.3.2004 passed by the then Addl. Sessions Judge, Court No. 4, Etawah in Sessions Trial No.319 of 2002 (State Vs Pinku Nat and another) arising out of Case Crime No.109 of 2002 under Sections 302 IPC whereby the appellant and his stated companion Pinku Nat were convicted and sentenced to life imprisonment and a fine of Rs.10,000/- with default stipulation. 2. Record reveals that two persons namely appellant Vishnu Kumar and his stated companion Pinku Nat were convicted by the judgment impugned but this appeal has been filed only on behalf of appellant Vishnu Kumar. Office report dated 15.12.2016 discloses that no appeal has been filed on behalf of co-accused Pinku Nat. Office report dated 15.12.2016 is reproduced as under:- “Office Report dated 15.12.2016:-In compliance of Hon'ble court's order dated 2.12.2016, it is to humbly submitted that no criminal appeal has been filed by co accused Pinku Nat as per record available in the computer data base of Hon'ble High Court. ” 3. This report has been confirmed by the State Counsel Sri Ajit Ray, and Sri Rajeev Sharma, learned AGA. They have informed that as per their record also no appeal has been filed on behalf of co-accused Pinku Nat. Therefore, this court is now only concerned with the appeal of Vishnu Kumar. 4. Prosecution story, in brief, is that on 28.4.2002 at about 7 p.m. Neetu (deceased), daughter of complainant was coming back along with her mother Ramdevi (P.W-4) and younger cousin Kumkum (P.W.-5) after answering the call of the nature. The appellant Vishnu Kumar and his brother-in-law (Sala) Pinku Nat were sitting near the house of one Amar Singh. Both of them alleged to have grabbed deceased Neetu with the reported intention of ravishing her. Neetu (deceased) raised commotion whereupon both the accused namely appellant Vishnu Kumar and his companion Pinku Nat started stabbing the victim. Neetu rushed towards the crossing ¼pkSjkgk½ while shouting. Her mother Ramdevi (P.W.-4) and her younger cousin Kumkum (P.W.-5) also raised commotion but both accused again came back to crossing and repeatedly stabbed the victim. Some people namely Jabar Singh and Rajesh Kumar etc arrived on the spot on the commotion and challenged the appellant Vishnu Kumar and his stated companion whereupon they fled towards Indirapur. 5. Her mother Ramdevi (P.W.-4) and her younger cousin Kumkum (P.W.-5) also raised commotion but both accused again came back to crossing and repeatedly stabbed the victim. Some people namely Jabar Singh and Rajesh Kumar etc arrived on the spot on the commotion and challenged the appellant Vishnu Kumar and his stated companion whereupon they fled towards Indirapur. 5. It is stated that some people arranged vehicle for transporting the injured girl for treatment but by that time Neetu succumbed to her injuries. It is, however, alleged that deceased Neetu informed one Doctor Vijay Bahadur (P.W-6), who arrived on the spot, regarding the incident and communicated that the appellant Vishnu Kumar and his companion had stabbed her. This statement allegedly made by Neetu (deceased) was said to have been heard by several other people on the spot. 6. Sughar Singh, father of the victim (P.W.-1) was summoned. He went to the police Station (in short P.S.) where the First Information Report, (FIR) was dictated to one Anil Tiwari and lodged it at P.S. Bakewar at about 10.10 p.m. As per the chick report (Ex-Ka-2), the police station was located at the distance of 10 km from that of village Newari Kalan where alleged incident took place. 7. P.W.-7 Anjani Kumar Srivastava, the then Sub Inspector was working as Station House Officer, (SHO) P.S. Bakewar, District Etawah. He was not present at the time of filing of the FIR. He was busy in his area. He received information on Wireless Set about this murder and, therefore, directly reached the place of occurrence. He detained relevant information as well as copy of the chik report etc from the Sub Inspector S. K. Singh. He instructed Sub Inspector Sri Panna Lal to prepare the inquest report. 8. Inquest report (Ex-ka-7) discloses that the inquest proceedings were initiated on 28.4.2002 at about 11 p.m., however, the inquest report also claims that the proceedings were concluded by 7.30 a.m. on 29.4.2002. Further investigation was conducted by P.W.-7 Anjani Kumar Srivastava, the Investigating Officer, (I.O.). He immediately initiated the search for stated accused persons and recorded the statement of several persons. Further investigation was conducted by P.W.-7 Anjani Kumar Srivastava, the Investigating Officer, (I.O.). He immediately initiated the search for stated accused persons and recorded the statement of several persons. The I.O. claims to have collected the blood stained and simple earth from the place of occurrence, thereafter, the cadaver of deceased was sent for postmortem through constable Nar Singh and constable Dayaram which was conducted by Dr Sanjay Kumar Verma (P.W-3) at 10 a.m. on 29.4.2002 i.e. almost within 12 hours of the incident. 9. Co accused Pinku Nat surrendered in the Court some time around 12.5.2002 while the appellant Vishnu Kumar was arrested on 18.5.2002 at 5.20 a.m. It is stated that one blood stained knife was recovered at the instance of appellant Vishnu Kumar in presence of witness Vinod Kumar Tiwari, Akhilesh Kumar Tiwari etc from the agricultural field of Madhav Tiwari. It is pertinent to point out that Vinod Kumar Tiwari, Akhilesh Kumar Tiwari and Madhav Tiwari have not been produced during the course of trial. 10. It was also admitted by Anjani Kumar Srivastava (P.W.-7), I.O. that the blood stained knife was sent to Forensic Lab, Lucknow. However, that report is neither available on record nor any explanation in this regard has been given. Link witnesses of fact of sending the cadaver first to the Reserve Inspector, Police Line and thereafter to the Mortuary have not been placed before the trial court. Infact body of deceased was not sent for postmortem in presence of P.W.-7 Anjani Kumar Srivastava. He has specifically admitted the fact that he collected the inquest report around 7.30 in the morning and returned and that the dead body was not dispatched to the Reserve Inspector, Police Line or Mortuary in his presence. After investigation, Anjani Kumar Srivastava, I.O. submitted the charge sheet (Ex-Ka-14-A). 11. The case was committed to the court of Sessions and then learned Sessions Judge, Etawah framed charges against the appellant and his companion under Section 302 IPC on 4.9.2002. Appellant denied the charge and desired to be tried. 12. Prosecution adduced the evidence of P.W.-1 Sughar Singh (Complainant/Father of deceased), P.W.-2 Head Constable Kailash Babu (recorded FIR), P.W.-3 Dr Sanjay Kumar Verma (conducted autopsy), P.W.-4 Ramdevi (eye witness and mother of deceased), P.W.-5 Kumkum (cousin of deceased and eye witness), P.W-6 Vijay Bahadur (stated eye witness) and P.W.-7 Sub Inspector Anjani Kumar Srivastava (I.O.). 12. Prosecution adduced the evidence of P.W.-1 Sughar Singh (Complainant/Father of deceased), P.W.-2 Head Constable Kailash Babu (recorded FIR), P.W.-3 Dr Sanjay Kumar Verma (conducted autopsy), P.W.-4 Ramdevi (eye witness and mother of deceased), P.W.-5 Kumkum (cousin of deceased and eye witness), P.W-6 Vijay Bahadur (stated eye witness) and P.W.-7 Sub Inspector Anjani Kumar Srivastava (I.O.). Thereafter, statement of appellant was recorded under Section 313 Cr.P.C. wherein the appellant Vishnu Kumar and co accused Pinku Nat denied all the allegations and claimed false implication on account of misunderstanding. 13. After recording the statement of appellant under Section 313 Cr.P.C., trial court summoned two more witnesses as court witnesses. It appears that the I.O. Anjani Kumar Srivastava (P.W.-7) was again summoned but this time his testimony was recorded as C.W-1 in a very cavalier manner and this time only one person namely counsel for defence cross examined this witness. Record reveals that no cross examination or questioning was done on behalf of prosecution. Record does not reveal that any opportunity was provided to the prosecution to question this witness. Similarly, Sub Inspector Panna Lal was also summoned as Court Witness (C.W.-2) but again there is nothing on record to demonstrate that the prosecution was also given any opportunity to question this witness. First the statement was written by the Court and then the cross examination was conducted by counsel for accused. 14. On conclusion of trial, both the appellant and his companion were found guilty of offence under Section 302 IPC and were accordingly convicted and sentenced to the life imprisonment along with fine of Rs. 10,000/- with default stipulation. Since no appeal of co accused Pinku Nat is before this Court, therefore, this court is only concerned with the appeal of appellant Vishnu Kumar. Judgment dated 1.3.2004 is under challenge before this court. 15. We have heard Sri Ambrish Kumar, Advocate on behalf of appellant Vishnu Kumar and Sri Ajit Ray, learned AGA for the State. 16. Learned counsel for the appellant has contended that there is no trustworthy evidence against the appellant. The testimonies of eye witnesses namely P.W.-4 Rama Devi and P.W.-5 Kumkum suffer from significant discrepancies which in turn create doubt about their presence on the spot. Further submission is that the FIR was ante-timed. 16. Learned counsel for the appellant has contended that there is no trustworthy evidence against the appellant. The testimonies of eye witnesses namely P.W.-4 Rama Devi and P.W.-5 Kumkum suffer from significant discrepancies which in turn create doubt about their presence on the spot. Further submission is that the FIR was ante-timed. There is no record of previous enmity so as to impel both the appellant and his younger brother-in-law (sala) to attack deceased virtually in day time in presence of her mother and younger sister. 17. Learned counsel has argued that it is well nigh impossible to believe that both the appellants and his younger brother in law (sala) would together attempt to sexually assault a 13 years old victim at 7 p.m. in presence of several persons and thereafter would kill the girl on their failure to satisfy the lust. 18. Learned counsel for the appellant has further submitted that both the mother and sister were accompanying the victim at the time of incident and that the incident occurred in public place. It is inconceivable that such incident would take place in public place without any previous enmity or strained relationship. 19. He has also drawn the attention of the court to the fact that only one blood stained knife was recovered and that the I.O. has testified that both the assailants used single knife to kill the deceased. The argument was raised that only one independent witness namely P.W-6 Vijay Bahadur was produced despite the admitted presence of several witnesses on the spot and this witness has absolved the appellant Vishnu Kumar completely. Prosecution has claimed that deceased Neetu communicated to Vijay Bahadur (P.W.-6) that she had been attacked and stabbed by co accused Pinku Nat while name of appellant Vishnu Kumar was not mentioned at all. 20. On the contrary, learned AGA has submitted that three eye witnesses have been produced on behalf of prosecution. Two of them namely P.W.-4 Rama Devi, mother of deceased and P.W-5 Kumkum, sister of deceased have implicated the appellant Vishnu Kumar. 21. Learned AGA has submitted that there is no evidence of previous enmity between the rival parties, therefore, the argument that appellant has been falsely implicated without any reason is not believable. 22. Two of them namely P.W.-4 Rama Devi, mother of deceased and P.W-5 Kumkum, sister of deceased have implicated the appellant Vishnu Kumar. 21. Learned AGA has submitted that there is no evidence of previous enmity between the rival parties, therefore, the argument that appellant has been falsely implicated without any reason is not believable. 22. Learned AGA has also submitted that P.W.-6 Vijay Bahadur was infact declared hostile on the request of prosecution during the course of trial, therefore, no reliance could be placed on the testimony of Vijay Bahadur. It is submitted that the evidence of P.W.-4 Ramdevi (P.W.-5) is sufficient to establish the guilt of appellant Vishnu Kumar. 23. Before discussing and analyzing the prosecution evidence, it would be proper to delineate in brief, the oral evidence available on record. 24. P.W.-1, Sughar Singh, father of deceased came to place of occurrence after receiving information from someone on behalf of his wife and thereafter reported the matter to the police. Admittedly, he did not witness the incident. 25. Kailash Babu, (P.W.-2) is formal witness who merely recorded the FIR. 26. Dr. Sanjay Kumar Verma, (P.W.-3) conducted the autopsy on the person of deceased Neetu and following injuries on the person of deceased were noted:- (I) stabbed wound of entry 7 cm X 3 cm on the right side of lower chest cavity deep 8 cm below from right nipple. (II) stabbed wound of 4cm X 2 cm on left side of chest cavity deep 5 cm from left nipple (III) stabbed wound 2.5 cm x 5 cm on left side of abdomen just below coastal margin, cavity deep (IV) stabbed wound 2.5 cm X 1.5 cm on right side abdomen just below right coastal margin (V) stabbed wound 3 cm X 1 cm on left side of abdomen, cavity deep 6 cm from umbilicus (VI) stabbed wound 5 cm X 2 cm on right side of lower abdomen 8 cm from umbilicus cavity deep, bowel loops are prolapsing from abdomen. (VII) Incised wound 4 cm X 2 cm X bone deep on right side of waist (VIII) Incised wound 4 cm X 2 cm X muscle deep between thumb and index finger of left hand (IX) Incised wound 3 cm X 1 cm X muscle deep on dorsal left hand 27. (VII) Incised wound 4 cm X 2 cm X bone deep on right side of waist (VIII) Incised wound 4 cm X 2 cm X muscle deep between thumb and index finger of left hand (IX) Incised wound 3 cm X 1 cm X muscle deep on dorsal left hand 27. P.W.-4, Smt Ramdevi, mother of deceased and P.W.-5 Kumkum young cousin of deceased are two eye witnesses of incident. Both of them have claimed that they were accompanying the deceased Neetu. All of them had gone to defecate in the field. They were suddenly accosted by appellant and his companion, Pinku Nat while coming back after answering the call of nature. P.W.-4 Ramdevi says that co-accused grabbed both deceased Neetu and P.W.-5 Kumkum. Kumkum was pushed aside by co-accused while appellant Vishnu Kumar pushed aside P.W.-4 Ramdevi. This witness has claimed that her daughter Neetu was grabbed with intention of ravishing her. She raised alarm whereupon the appellant and his companion started stabbing Neetu. Neetu rushed towards the road crossing ¼pkSjkgk½ but she was again grabbed by assailants and stabbed repeatedly. Commotion attracted the attention of several person namely Jabar Singh, Rajesh etc on which appellant and his companion fled towards Indirapur. 28. Arrangement was made for transporting the injured. Meanwhile P.W-6 Dr Vijay Bahadur, a veterinary doctor also arrived on the spot and talked to injured Neetu. It is claimed that deceased Neetu conveyed the identities of assailants to this witness thereafter died. P.W.-4 Ramdevi has also stated that she summoned her husband and thereafter they went to police station for filing the FIR. 29. P.W-5 Kumkum is the younger cousin of deceased. She has also testified in similar manner. She has stated that her cousin (deceased) was first grabbed by assailants and then stabbed by both of them. She has also testified about the presence of her father Jabar Singh, Rajesh Kumar and Vijay Kumar etc. This witness has also claimed that deceased Neetu informed Vijay Bahadur (P.W.-6) about the role of both assailants. 30. P.W-6 Vijay Bahadur veterinary doctor was declared hostile at the instance of prosecution, though he has partly supported the prosecution story. He has reiterated the date, time and place of incident but said that the deceased was done to death by co-accused Pinku Nat. He has completely absolved the appellant Vishnu Kumar. 30. P.W-6 Vijay Bahadur veterinary doctor was declared hostile at the instance of prosecution, though he has partly supported the prosecution story. He has reiterated the date, time and place of incident but said that the deceased was done to death by co-accused Pinku Nat. He has completely absolved the appellant Vishnu Kumar. He has also claimed that the deceased did inform him the identity of assailant but she did not name the appellant Vishnu Kumar as assailant. She had only named co-accused Pinku Nat. 31. P.W-7 Anjani Kumar Srivastava, has testified twice in different roles. First he had testified as prosecution witness (P.W.-7) but later on summoned again by court and thereafter testified as Court Witness. (C.W.-1). There was no necessity of recording the statement of this witness as C.W.-1. He could have simply been recalled and re-cross examined by both the parties. Recording of statement of one person in two different 'Avtar' is strange procedure. 32. Panna Lal, C.W.-2 is also a formal witness who has testified that he had sealed the dead body of deceased on 28.4.2002 and thereafter sent the body through constable Narsing and constable Daya Ram for postmortem. He has also stated that he prepared the inquest proceedings in the day light. He has also said that hair of head of corpse were found to be tied in Bun ¼twM+k½ . This witness has also stated that there was injury on the private parts of deceased, though, this witness had not examined the injured himself. All these claims are very significant and we will discuss them at the relevant stage. 33. Incident was allegedly witnessed by several persons. It is stated that incident occurred at public place. Some of independent witnesses namely Jabar Singh, Rajesh Kumar and P.W.-6 Dr Vijay Bahadur have been named in the FIR itself. P.W.-4 Rama Devi has admitted that even Jabar Singh is her brother-in-law. Despite the stated presence of large number of persons on the spot no independent witnesses barring P.W.-6 Dr Vijay Bahadur has been produced by the prosecution. Both eye witnesses namely P.W. 4 Rama Devi and P.W.-5 Kumkum are mother and cousin of the deceased Neetu. Only independent witness, P.W.-6 Vijay Bahadur has been declared hostile at the instance of prosecution itself, though he has supported the basic prosecution story in his testimony. Both eye witnesses namely P.W. 4 Rama Devi and P.W.-5 Kumkum are mother and cousin of the deceased Neetu. Only independent witness, P.W.-6 Vijay Bahadur has been declared hostile at the instance of prosecution itself, though he has supported the basic prosecution story in his testimony. He has testified that Neetu was indeed murdered in public place by co accused Pinku Nat but he has absolved the appellant Vishnu Kumar completely. He has specifically asserted that appellant Vishnu Kumar was neither present at the spot nor deceased was stabbed by him. 34. It is pertinent to point out that primary emphasis of the prosecution is that deceased orally communicated the names of assailants to this witness prior to her death. Prosecution story is that as the deceased was being stabbed by assailants, P.W.-6 Vijay Bahadur arrived on the spot whereupon assailants fled away and when Vijay Bahadur asked Neetu about the incident she communicated that she had been stabbed by co accused Pinku Nat. This witness has completely absolved the appellant Vishnu Kumar. 35. Learned AGA has pointed out that later on during cross examination by state counsel, this witness has admitted that he did give statement to I. O. saying that deceased had informed him that co accused Pinku and appellant Vishnu Kumar both caught her with the intention of ravishing her and thereafter stabbed her on her resistance. Learned AGA has submitted that this admission on the part of P.W-6 Vijay Bahadur shows involvement of appellant Vishnu Kumar as well. We are afraid that this conclusion is not based on any legal principle. 36. This admission merely means that perhaps during the investigation P.W.-6 Vijay Bahadur did gave this sort of statement to the Investigating Officer. But whether this statement was correct or not is still to be ascertained. Statement under Section 161 Cr.P.C. cannot be used for ascertaining the involvement of appellant Vishnu Kumar. This admission merely means that P.W-6 Vijay Bahadur gave particular type of statement under Section 161 Cr.P.C. but that statement alone cannot be used for holding the appellant Vishnu Kumar guilty of offence, especially in the light of the fact that during his testimony on oath this witness has completely absolved appellant Vishnu. 37. The fact that this witness has been declared hostile does not necessarily mean that his whole testimony can be discarded. 37. The fact that this witness has been declared hostile does not necessarily mean that his whole testimony can be discarded. The hostility by itself is not sufficient to efface the testimony of such witness from the face of record. This witness has infact supported the prosecution story. He has given same time and place as claimed by the prosecution. He has also demonstrated the involvement of co accused Pinku Nat in the assassination of deceased Neetu. This witness has said that it was he who initially gave information to the Chowki police and police station. He perhaps used the telephone of some Muslim gentleman nearby. He was present throughout the inquest proceeding. He is witness of inquest proceeding as well. Vijay son of Chote Lal is the 4th witness in the inquest proceeding. He has also admitted that he accompanied transportation of corpse to the Police Station Bakewar where the dead body was kept for 10-20 minutes. 38. We believe that the evidence of P.W.-6 Vijay Bahadur son of Chotey Lal does weaken the prosecution case as far as the appellant Vishnu Kumar is concerned. Prosecution has also adduced three other witnesses of facts. One of them, P.W-1 Sughar Singh is the father of deceased. Admittedly, he was not present on the spot at the time of incident. His testimony is not very relevant so far as the question of murder of deceased is concerned. But his testimony establishes certain ancillary facts which in turn will help this court in evaluating the testimony of two eye witnesses namely P.W.4 Rama Devi and P.W.-5 Kumkum. 39. P.W-1 Sughar Singh has testified that on the date of incident he was present in Mehandipur. Incident occurred at 7 p.m. and he came back at 8.30 p.m. and went to police station at about 10 p.m. Claim is that report was lodged at about 9.15 p.m. FIR (Ex-Ka-2) indicates that incident occurred at 7 p.m., and report was lodged at 10.10 p.m. But during cross examination this witness has made strange assertions. He has stated that he was approached by one Laljee Tiwari around 8 a.m. to 8.15 a.m. (morning) in Mehandipur. It appears that Laljee Tiwari asked him to come back to village Newarikalan where his wife reported entire incident to him. He has stated that he was approached by one Laljee Tiwari around 8 a.m. to 8.15 a.m. (morning) in Mehandipur. It appears that Laljee Tiwari asked him to come back to village Newarikalan where his wife reported entire incident to him. His claim is that when he came back to Newarikalan from Mehandipur in one hour, he found his crying wife with the corpse of deceased Neetu. Claim is that road was blocked and hundreds of people were present around cadaver. He was naturally shocked and distraught. His wife Rama Devi (P.W-4) and niece Kumkum (P.W.-5) gave information of incident within next 10-15 minutes. He remained present near the dead body for one to one & half hours then he went to the police Chowki Aheripur and informed the police about the incident. The police personnel came on the spot. He has testified that he came back to the place of occurrence after one hour with the sub inspector and constable. He has further testified that the Sub-inspector examined the cadaver, prepared inquest and also questioned several persons and then asked the complainant to give that report. Thereafter the FIR was dictated to one Anil Kumar Tiwari by complainant and then the FIR was given to the Sub-Inspector. 40. P.W-1 Sughar Singh has further stated that police personnel of Aheripur police chowki went back in the morning and Senior Sub-Inspector, SHO, P.S. Bakewar came back on next day. Claim of Sughar Singh should be examined minutely in a chronological order. 41. Admittedly incident occurred at 7 p.m. in the evening. Obviously Laljee Tiwari must have given this information in the evening and not at 8 a.m. in the morning. So claim of P.W.-1 Sughar Singh that he was informed by Laljee Tiwari in the morning is contrary to the prosecution story and cuts the very root of prosecution claim. But even if we ignore this claim of 8 a.m. for a moment there are still some unanswered questions. 42. P.W.-1 Sughar Singh has testified that Sri Laljee Tiwari came to him at 8-8.15 and that he left Mehandipur after 20 minutes of receiving summons from his wife. His relaxed attitude can be understood for the simple reason that admittedly Laljee Tiwari did not inform him about the death of Neetu. Therefore, he took 20 minutes to depart for his village Newarikalan. His relaxed attitude can be understood for the simple reason that admittedly Laljee Tiwari did not inform him about the death of Neetu. Therefore, he took 20 minutes to depart for his village Newarikalan. He has admitted that he took another one hour to reach Newarikalan from Mehandipur. When he came to place of occurrence, hundreds of people had gathered around that place. Naturally this must have been shocking affairs for the father of deceased. He has stated that entire incident was reported to him by P.W.-4 Rama Devi and P.W.-5 Kumkum and in 10-15 minutes. He has also admitted that he sat with the corpse for one to one & half hours. If we assume that P.W.-1 Sughar Singh arrived at the place of occurrence somewhere around 9.30 p.m. then he spent another one and half hours with the corpse. It was natural conduct. His daughter had suddenly been brutally murdered hence it was natural for parents to mourn her death at-least for some time which he admittedly did. 43. P.W-1 has further stated that Sub-Inspector examined the corpse; inquest proceedings were conducted; dead body was sealed; site plan was prepared and several persons admittedly were questioned. It must have at-least taken two hours. Now comes clincher. P.W.-1 Sughar Singh has admitted that thereafter sub inspector asked him to give him a written report. At that stage, P.W.-1 dictated the FIR to one Anil Kumar Tiwari and now this written report was given to sub-inspector meaning thereby that the report was given to sub Inspector Aheripur after 2 a.m. on 29.4.2002. 44. It is pertinent to note that even at this stage this report was given to Sub Inspector Chowki Aheripur in his hand at the place of occurrence. P.W.-1 Sughar Singh has also admitted that police of Chowki Aheripur left the place of occurrence in the morning. At this stage, we can notice the entry in the inquest report which shows that inquest was conducted till 7.30 a.m. on 29.4.2002 in village Newarikalan. It further indicates that sub Inspector took this report back to police station after 7.30 in the morning and yet the FIR is shown to have been registered on 28.4.2002 at about 22.10 hours in the night i.e. within 3 hours of the incident despite the absence of P. W.-1 Sughar Singh in his village. It further indicates that sub Inspector took this report back to police station after 7.30 in the morning and yet the FIR is shown to have been registered on 28.4.2002 at about 22.10 hours in the night i.e. within 3 hours of the incident despite the absence of P. W.-1 Sughar Singh in his village. There is absolutely no way that the FIR could have been registered on 28.4.2002 at 22.10 p.m. Even after several hours, this report was merely given in the hands of the unnamed police officials of chowki Aheripur. It also belies the claim of P. W.-7 Anjani Kumar Srivastava when he says that he reached the place of occurrence after receiving the information on wireless set on 28.4.2002 and was handed over the copy of the chik report and written report. If the report had not been written till 2 a.m. in the morning of 29.4.2002 how could I.O. Anjani Kumar Srivastava received the copy of the chik report and written report in village Newarikalan on 28.4.2002 in the late evening ? 45. It is pertinent to point out that a memorandum of taking sample of blood soaked earth and simple earth was prepared as Ex-Ka-6. This was infact prepared on 29.4.2002. This document talks of only one accused. It says that ^^vkt fnuakd 29@4@2002 okfly flys rQrh'k eq0 v0 la0 109@2002 /kkjk 302 vkbZ0ih0lh0 cuke fiadw ds^^ . This line does not refer to the involvement of appellant Vishnu Kumar. It does not even indicate involvement of any other accused except Pinku Nat. If the FIR was in existence containing names of both accused then there was no reason for police personnel to name only Pinku Nat in Ex-Ka-6. 46. The absence of name of Vishnu Kumar per-se may not be fatal. But the fact remains that this document does not even indicate involvement of any other accused except Pinku Nat. We believe that name of Vishnu Kumar was added later on and that the FIR was not in existence till execution of Ex-Ka-6 and this fact is supported by the evidence of eye witness P.W.-6 Vijay Bahadur which talks of presence of only co-accused Pinku Nat. He has specifically absolved the appellant Vishnu Kumar in this case. 47. We believe that name of Vishnu Kumar was added later on and that the FIR was not in existence till execution of Ex-Ka-6 and this fact is supported by the evidence of eye witness P.W.-6 Vijay Bahadur which talks of presence of only co-accused Pinku Nat. He has specifically absolved the appellant Vishnu Kumar in this case. 47. We have carefully examined all the material on record and we believe that claim of prosecution that the FIR was lodged at 10.10 p.m. in the night of 28.4.2002 i.e. within 3 hours of the incident is completely false. It is evident that the FIR has been deliberately ante-timed. It was lodged after prior consultation and on legal advice. It further demonstrate an attempt to manufacture the evidence. 48. Coming back to the testimony of the eye witnesses namely Rama Devi, (P.W.-4) mother of deceased and Kumkum, (P.W.-5), cousin of deceased, it is evident that there are some serious and significant discrepancies and improbable facts. Prosecution and two eye witnesses have claimed that deceased was coming back after defecating in the field and the deceased was grabbed by co-accused and appellant with intention of ravishing her. Now admittedly only one knife was recovered from the appellant Vishnu Kumar subsequent to his arrest after one month of the incident. 49. Appellant was arrested on 18.5.2002 and it is stated that one knife was recovered at the instance of appellant. Appellant Vishnu Kumar was arrested after almost 21 days of the incident and yet police personnel were able to recover this knife at the instance of appellant. This recovery was allegedly made from agricultural field of Madhav Tiwari in presence of Vinod Kumar Tiwari and Akhilesh Tiwari from beneath the earth near Mango Tree. This was obviously a public place and two witnesses were present and yet not a single witness has been produced to support the claim of this recovery of knife. Why were Vinod Kumar Tiwari and Akhilesh Tiwari not produced during trial ? Strangely, Madhav Tiwari, from whose field the knife was allegedly recovered has not been produced by the prosecution either with no explanation of any kind. 50. P.W.-7 Sub-inspector Anjani Kumar Srivastava has admitted that this knife was sent for forensic examination to the State Forensic Laboratory, Lucknow but the I.O. submitted the charge sheet before receiving the report of forensic laboratory. 50. P.W.-7 Sub-inspector Anjani Kumar Srivastava has admitted that this knife was sent for forensic examination to the State Forensic Laboratory, Lucknow but the I.O. submitted the charge sheet before receiving the report of forensic laboratory. His confidence in anticipating favorable report from the laboratory was remarkable and yet there is no report of forensic lab of any kind is on the record. No satisfactory explanation is forthcoming from the prosecution on this score. There is no evidence on record to show that this knife had any blood stains on it. There is also no evidence that blood of deceased Neetu was found on knife. A strange story has been advanced by the I.O. Anjani Kumar Srivastava who stated that both the assailants had only one knife and they were using the same knife alternatively i.e. one assailant stabbed the victim then the knife was taken by second assailant then he stabbed the victim and they kept on stabbing the victim alternatively with the use of same knife at public place in the presence of several person including the two eye witnesses of the same family without interruption of any kind. This narration appears to be bizarre and quite unnatural. We believe that testimony of P.W.-6 Vijay Bahadur assumes significance. 51. Postmortem report and the evidence of P.W.-2 Dr Sanjay Kumar Verma indicate that autopsy was conducted at 10.30 a.m. on 29.4.2002 i.e. within 12 hours of the incident. Record reveals that inquest proceedings were finished by 7.30 a.m. in the morning of 29.4.2002. There is no evidence on record to show time of dispatch to the Mortuary. There is no link evidence in this regard on record. Admittedly, district hospital was almost 40 kilometers away from the place of occurrence. I.O. has admitted that it would take at-least 5-6 hours for the corpse to reach the Mortuary located in district hospital. The evidence reveals that corpse was infact first taken to P.S. Bakewar as stated by P.W.-6 Vijay Bahadur. Admittedly, district hospital was almost 40 kilometers away from the place of occurrence. I.O. has admitted that it would take at-least 5-6 hours for the corpse to reach the Mortuary located in district hospital. The evidence reveals that corpse was infact first taken to P.S. Bakewar as stated by P.W.-6 Vijay Bahadur. Under the circumstances, if we believe that the corpse was indeed dispatched to Mortuary right in 7.30 in the morning, though it is difficult to perceive it but for the sake of argument we can assume that the dead body was indeed dispatched to the Mortuary at 7.30 a.m., but evidence reveals that the dead body was first taken to P.S. Bakewar where it was kept for some time and then it was again dispatched to Mortuary. Investigating Officer has himself admitted that 5-6 hours were needed for transportation of body to the District Hospital and yet the postmortem was conducted at 10.30 a.m. This does not add up. There is something missing somewhere. Why documentation and oral evidence of prosecution are not in consonance with each other ? It was simply not possible to conduct autopsy at 10.30 a.m. It is more likely that false records were created by the police personnel prior to the dispatch of dead body for postmortem. It raises question mark about the veracity of evidence of all police personnel along with complainant P.W.-1 Sughar Singh. 52. As stated earlier P.W-1 Sughar Singh has said that when he reached the place of occurrence, his wife was crying and weeping with the corpse of daughter in her lap. This fact is not borne out of the evidence of P.W.-4 Rama Devi who has said that she was at her residence when her husband came to spot. Her specific claim is that dead body was lying on the road till 2-2.50 a.m. in the morning on 29.4.2002 and that she did not remove the dead body from the place of occurrence. She was taken to residence by other women. She claims that when her husband arrived from Mehandipur she was at her residence. This is contrary to the statement of her husband who says that he found her wife at the place of occurrence with the body of deceased in her lap. P.W-5 Kumkum too has said that P.W.-4 Ramadevi stayed with the corpse till the arrival of P.W-1 Sughar Singh. This is contrary to the statement of her husband who says that he found her wife at the place of occurrence with the body of deceased in her lap. P.W-5 Kumkum too has said that P.W.-4 Ramadevi stayed with the corpse till the arrival of P.W-1 Sughar Singh. This discrepancy in the statements of these witnesses is puzzling. There is no evidence that clothes of Rama Devi were soaked or stained with the blood despite spillage of blood from the injuries of deceased said to be lying in her lap. Surprisingly and admittedly, P.W.-4 (Ramadevi) mother and P.W-5 (Kumkum), sister of deceased and hundreds of other people did not provide any medical assistance to the victim. 53. P.W-4 Rama Devi has also claimed that her daughter was stabbed repeatedly and 14 stab wounds were caused by the assailants. Specific number of wounds have been given by this witness. At one place she has stated that blood was oozing from the injuries and at another place she denied the spillage of blood. She claims to be present throughout the incident with her deceased daughter and yet there is no evidence of any attempt to save her daughter. She was holding metal pot in her hand and she did not use that metal pot to defend her daughter. Story advanced by her is gruesome. She claims that deceased was stabbed by 2-3 times by assailants initially but victim rushed towards road crossing and then assailants again dragged her and stabbed her repeatedly. Admittedly there were several shops nearby and yet there is no evidence that anybody made any attempt to save the victim. It is pertinent to point out that both the assailants were not holding any dangerous weapons or firearms. Both assailants were sharing only one knife and according to prosecution, this single knife was used by both the assailants alternatively. This claim is bizarre but even this unreal story has not been established by cogent and trustworthy evidence. 54. Claim of P.W.-4 Rama Devi of 14 wounds on the person of deceased is not borne out from the evidence. This witness has claimed that 14 wounds were caused at the person of deceased. Autopsy report says that only 9 injuries were found on the person of deceased. This contradiction creates doubt about the presence of P.W.-4 Rama Devi on the spot. 55. This witness has claimed that 14 wounds were caused at the person of deceased. Autopsy report says that only 9 injuries were found on the person of deceased. This contradiction creates doubt about the presence of P.W.-4 Rama Devi on the spot. 55. C.W.-2 Sub Inspector Panna Lal has claimed that private parts of deceased Neetu had sustained injuries. He has also claimed that hair of deceased were tied in bun. This witness has claimed that injury on the private parts of deceased was not examined by him but had been seen by mother of deceased. But story of this injury on the private parts of deceased is not supported by medical report. Infact no such claim was made by P.W.-4 Rama Devi. Fact remains that this claim is not supported by P.W.-4 Rama Devi and P.W.-5 Kumkum. 56. P.W.-4 Rama Devi has claimed that her daughter was dragged by assailants by hair i.e. both of them caught deceased Neetu from hair, dragged her and then stabbed her repeatedly. This story does not find support from other evidence on record. As stated earlier, C.W.-2 has stated that hair on the head of deceased were tied in a bun and this fact finds support from the entries enshrined in the inquest report (Ex-Ka-7) which specifically asserts that the hair of deceased were tied in a bun. If the hair of the head of deceased were tied in a bun then the story that she had been caught and made immobilized by catching hold of her by hair of the head is not sustainable. It is true that inquest report indicates the presence of some injury on the private part of the deceased but this story does not find support from the medical report. We have eye witness who says that 14 injuries were found on the person of deceased; inquest report demonstrate eight injuries on the person of deceased including one injury on the private part of the deceased while autopsy report talks of nine injuries without indicating any injury on the private parts of the deceased. 57. The discrepancies in the statement of P.W-4 Ramadevi and P.W.-5 Kumkum are significant. P.W.-4 Ramadevi has infact at one place talks of going to the field in the morning while the prosecution has said that the incident occurred at late evening. 57. The discrepancies in the statement of P.W-4 Ramadevi and P.W.-5 Kumkum are significant. P.W.-4 Ramadevi has infact at one place talks of going to the field in the morning while the prosecution has said that the incident occurred at late evening. She has surprisingly at one place said that blood did not fall down on earth while P.W.-5 Kumkum has said that blood spilled on the road and on the crossing ¼pkSjkgk½ . Infact blood spilled over from the initial stage of incident till the crossing of road where ultimately deceased was done to death. 58. We have carefully examined all materials on records. There are far too many discrepancies in the evidence of prosecution. We believe that the FIR was ante-timed. An attempt to manufacture the evidence is palpable. We believe that the genesis of case is different and is not compatible with the prosecution story and prosecution evidence. We have noticed an attempt to withhold the independent evidence. The incident allegedly occurred in the presence of several independent persons including shop keepers nearby and yet only one independent witness namely P.W.-6 Vijay Bahadur was produced and that witness has not supported the involvement of Vishnu Kumar. He has supported the basic contours of prosecution story but has absolved the appellant Vishnu Kumar completely. 59 In view of aforesaid discussion, we find this to be a case where a reasonable doubt arises as to the guilt of the appellant Vishnu Kumar. The conviction of the appellant Vishnu Kumar, therefore, deserves to be set aside by giving the appellant benefit of doubt. 60. The appeal is accordingly allowed giving benefit of doubt to the appellant. The appellant's bail and surety bond shall stand discharged. 61. Let a copy of this judgment be sent to the concerned Trial Court within a week.