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2019 DIGILAW 1208 (ALL)

Raghvendra Pratap Singh v. State of U. P.

2019-05-06

B.K.NARAYANA, GHANDIKOTA SRI DEVI

body2019
JUDGMENT : B.K. Narayana, J. 1. Heard Sri Dileep Kumar, Senior Advocate assisted by Sri Satish Chandra Dwivedi and Sri Aditya, learned Counsel for the appellants, Sri Shiv Narain Singh, learned Counsel appearing for the complainant and Sri Awadhesh Narain Shukla, State Law Officer for the State. 2. These two criminal appeals have been filed by Raghvendra Pratap Singh @ Pankaj Singh, appellant in Criminal Appeal No. 6618 of 2017 and Mithun Singh, appellant in Criminal Appeal No. 6617 of 2017 challenging the judgment and order dated 4.10.2017 and 5.10.2017 passed by Additional Sessions Judge/F.T.C. Court No. 21, Allahabad in S.T. No. 1077 of 2009 (State v. Raghvendra Pratap Singh @ Pankaj Singh and another) arising out of Case Crime No. 88 of 2009, under section 302 read with section 34 I.P.C.P.S. Meja, District Allahabad, convicting the appellants under section 302/34 I.P.C. and sentencing them for life imprisonment. 3. Briefly stated the facts of this case, are as here under:- 4. P.W. 1 Rajesh Kumar Jaiswal lodged a written report at P.S. Meja on 18.3.2009 at 7:10 A.M. Ext. Ka1 alleging therein that he was resident of village Lothar, P.S. Meja, his sister-Manju Jaiswal who was aged about 20 years was going to answer the call of nature on 18.3.2009 at 6 A.M. near the bank of canal in the south of the village, Raghvendra Pratap Singh @ Pankaj Singh, appellant in Criminal Appeal No. 6618 of 2017 and one of his relative Mithun Singh, appellant in Criminal Appeal No. 6617 of 2017 came on motorcycle of Raghvendra Pratap Singh @ Pankaj Singh, appellant in Criminal Appeal No. 6618 of 2017. The aforesaid Raghvendra Pratap Singh @ Pankaj Singh, appellant in Criminal Appeal No. 6618 of 2017 tried to misbehave with his sister and with the intention of committing rape on her, he pushed her as a result she fell on the ground and thereafter he started tearing her clothes on which she started shouting. On hearing the shrieks of his sister, he ran in the same direction, however, in the meantime Raghvendra Pratap Singh @ Pankaj Singh, appellant in Criminal Appeal No. 6618 of 2017 fired from his country made pistol, he tried to catch him but they, hurling abuses at him and threatening him with dire consequences, ran away. When he reached near the dead body of his sister, she had already died. When he reached near the dead body of his sister, she had already died. On account of the aforesaid incident, the village was gripped with panic and tension. Raghvendra Pratap Singh @ Pankaj Singh, appellant in Criminal Appeal No. 6618 of 2017 and his family members were bully and mugger types who were in the habit of misbehaving with the girls of village but on account of their fear no one had ever dared to lodge any complaint against them as a result they had become more daring. 5. On the basis of the written report of incident Ext. Ka1, Case Crime No. 88 of 2009, under sections 302, 376, 511, 504, 506 I.P.C. and 7 Criminal Law Amendment Act was registered by P.W. 3 Constable Jamuna Prasad Shukla who prepared the chek F.I.R. Ext. Ka2 and recorded the gist of the F.I.R. in the G.D. vide rapat No. 11 at 7:30 A.M. on 18.3.2009, certified copy whereof was brought on record and proved as Ext. Ka3. 6. After the registration of the case, the investigation thereof was taken up by Sub-Inspector P.W. 5 Kuldeep Tiwari who immediately reached the place of occurrence and held inquest on the body of deceased-Manju Jaiswal on the same day between 8 A.M. to 10:15 A.M. and after completing the inquest proceedings, he got the inquest report prepared along with other related documents namely letter addressed to R.I., letter addressed to C.M.O., challan lash, photo nash and sample seal in the handwriting of Sub-Inspector P.W. 7 Madhu Sudan Dixit Ext. Ka5 to Ext. Ka10. Thereafter, he got the dead body of Manju Jaiswal sealed and dispatched to the District Headquarter through constables Arvind Kumar Rai and Constable Manoj Kumar Giri for postmortem examination. He inspected the place of occurrence at the instance of P.W. 1 Rajesh Kumar Jaiswal and prepared it's site plan Ext. Kail and he also collected plain and bloodstained earth from the place of incident and prepared the recovery memo thereof Ext. Ka12. The postmortem on the body of deceased-Manju Jaiswal was conducted by P.W. 4 Dr. Rajesh Mohan Srivastava, Senior Child Specialist T.B. Sapru Hospital Allahabad on 19.3.2009 at 2:15 P.M. and thereafter her postmortem report Ext. Ka4 was prepared by him on 19.3.2009. Ka12. The postmortem on the body of deceased-Manju Jaiswal was conducted by P.W. 4 Dr. Rajesh Mohan Srivastava, Senior Child Specialist T.B. Sapru Hospital Allahabad on 19.3.2009 at 2:15 P.M. and thereafter her postmortem report Ext. Ka4 was prepared by him on 19.3.2009. The Investigating Officer arrested accused-Raghvendra Pratap Singh @ Pankaj Singh, appellant in Criminal Appeal No. 6618 of 2017 on 19.3.2009 at 19:45 hours from a place near Bijoura Power House, Sirsa and recorded his statement then and there and lodged him in the police lockup. Mithun Singh, "appellant in Criminal Appeal No. 6617 of 2017 surrendered before the Court on 27.3.2009. He recorded the statement of Mithun Singh, appellant in Criminal Appeal No. 6617 of 2017 in the Central-Jail Naini on 29.3.2009 and on the willingness allegedly expressed by Mithun Singh, appellant in Criminal Appeal No. 6617 of 2017 to get the crime weapon which was used in committing the murder of Manju Jaiswal discovered, Mithun Singh, appellant in Criminal Appeal No. 6617 of 2017 was taken by the Investigating Officer of the case under police protection from Central Jail on 5.4.2009 at 11:35 A.M. to village Paranipur from where Mithun Singh, appellant in Criminal Appeal No. 6617 of 2017 had confessed to have concealed the crime weapon. On reaching Paranipur, Mithun Singh, appellant in Criminal Appeal No. 6617 of 2017 got a country made pistol of 315 bore which was hidden under a heap of mud below Cordia myxa tree recovered. The recovery memo of the country made pistol of 315 bore with an empty cartridge stuck in its barrel Ext. Ka13 was prepared on the spot. The recovered firearm was deposited in the malkhana. On the basis of the recovery memo, Case Crime No. 161 of 2009 (State v. Mithun Singh) under section 25/27 Arms Act was registered. He recorded the statement of C.W. 2 Laxmi Devi on 5.5.2009 and 25.5.2009. After completing the investigation, he filed charge-sheet against both the accused before C.J.M. Allahabad Ext. Ka14 in Case Crime No. 88 of 2009. Charge-sheet Ext. Ka15 was also filed in Case Crime No. 161 of 2009, under section 25/27 Arms Act against Mithun Singh, appellant in Criminal Appeal No. 6617 of 2017. 7. After completing the investigation, he filed charge-sheet against both the accused before C.J.M. Allahabad Ext. Ka14 in Case Crime No. 88 of 2009. Charge-sheet Ext. Ka15 was also filed in Case Crime No. 161 of 2009, under section 25/27 Arms Act against Mithun Singh, appellant in Criminal Appeal No. 6617 of 2017. 7. Since the offence mentioned in the charge-sheet was triable exclusively by the Court of Sessions, C.J.M. Allahabad committed both the accused for trial to the Court of Sessions Judge Allahabad where Case Crime No. 88 of 2009, under sections 302/34 I.P.C., 376/511, 504, 506(2) I.P.C. as S.T. No. 1077 of 2009 (State v. Raghvendra Pratap Singh @ Pankaj Singh and another) and Case Crime No. 161 of 2009, under section 25/27 Arms Act as S.T. No. 1160 of 2009 (State v. Mithun Singh) were registered and made over for trial from there to the Court of Additional Sessions Judge/F.T.C. Court No. 21, Allahabad who on the basis of the material on record and after affording opportunity of hearing to the prosecution as well as the accused, framed charge under sections 302, 376, 511, 504, 506 IPC. and 7 Criminal Law Amendment Act against the appellants while a separate charge under section 25/27 of the Arms Act was framed against accused-Mithun Singh, appellant in Criminal Appeal No. 6617 of 2017 separately. 8. The prosecution in order to prove its case examined as many as eight witnesses out of whom P.W. 1 Rajesh Kumar Jaiswal, brother of the deceased and P.W. 2 Shanti Jaiswal, sister of the deceased were examined as witnesses of fact while P.W. 3 Constable Jamuna Prasad Shukla, who had prepared chek F.I.R. and the G.D. entry, P.W. 4 Dr. Rajesh Mohan Srivastava, who had conducted the postmortem on the body of the deceased and prepared postmortem report Ext. Ka4, P.W. 5 Sub-Inspector Kuldeep Tiwari, who had investigated the Case Crime No. 88 of 2009, P.W. 6 Constable Ram Sakal Singh, the witness of recovery of 315 bore country made pistol on the pointing out of accused Mithun Singh, appellant in Criminal Appeal No. 6617 of 2017 pertaining to Case Crime No. 161 of 2009 and-P.W. 8 Head Constable Chandrakat Shukla who had prepared the chek F.I.R. of Case Crime No. 161 of 2009 and the relevant G.D. entry were produced as formal witnesses. 9. 9. Apart from the aforesaid witnesses, C.W. 1 Renu Jaiswal, cousin sister of the deceased and C.W. 2 Laxmi Devi were examined as Court witnesses. 10. Apart from the oral evidence, the prosecution also adduced documentary evidence comprising of written report of the incident Ext. Ka1, chek F.I.R. Ext. Ka2, carbon copy of the G.D. Ext. Ka3, postmortem report Ext. Ka4, inquest report Ext. Ka5, letter addressed to Inspector Ext. Ka6, letter addressed to C.M.O. Ext. Ka7, challan nash Ext. Ka8, phot nash Ext. Ka9, sample seal Ext. Ka10, site plan of Case Crime No. 88 of 2009 Ext. Ka11, recovery memo of plain and bloodstained earth Ext. Ka12, recovery memo of country made pistol and empty cartridge Ext. Ka13, site plan of Case Crime No. 161 of 2009 Ext. Ka14, charge in Case Crime No. 161 of 2009 Ext. Ka15, chek F.I.R. of Case Crime No. 161 of 2009 Ext. Ka16, G.D. entry of Case Crime No. 161 of 2009 Ext. Ka17, the country made pistol of 315 bore allegedly recovered on the pointing out of accused Mithun Singh, appellant in Criminal Appeal No. 6617 of 2017 and three empty cartridges were exhibited as material Exts. 1 to 4. 11. The accused-appellants in their statements recorded under section 313 Cr.P.C. denied the prosecution case as false and alleged false implication due to political rivalry. They also examined Genda Devi and Shiv Shanker Vishwa-karma as D.W. 1 and D.W. 2. 12. Learned Additional Sessions Judge/F.T.C. Court No. 21, Allahabad by the impugned judgment and order convicted both the accused under section 302/34 I.P.C. and sentenced them for life imprisonment. He however acquitted both the accused of the charge under sections 376, 511, 504, 506 I.P.C. while Mithun Singh, appellant in Criminal Appeal No. 6617 of 2017 was also acquitted of the charge under section 25/27 of the Arms Act. 13. Hence these appeals. 14. Sri Dileep Kumar, learned senior Counsel appearing for the appellants has submitted that the irreconcilable contradictions and inconsistencies in the statements of the four so called eye-witnesses of the occurrence examined during the trial, P.W. 1 Rajesh Kumar Jaiswal, P.W. 2 Shanti Jaiswal (real sister of the deceased), C.W. 1 Renu Jaiswal, (cousin sister of the deceased) and C.W. 2 Laxmi Devi. P.W. 2 Shanti Jaiswal (real sister of the deceased), C.W. 1 Renu Jaiswal, (cousin sister of the deceased) and C.W. 2 Laxmi Devi having introduced as eye-witnesses of the occurrence after about one month and seventeen days of the occurrence belie their claim of being the eye-witnesses of the occurrence. It is apparent that no one had seen the occurrence and after the dead body of Manju Jaiswal was found, after due deliberations and consultations, the accused-appellants were implicated in the present case due to political rivalry. In fact the evidence of P.W. 1 Rajesh Kumar Jaiswal rules out the presence of P.W. 2 Shanti Jaiswal at the place of incident and similarly from the facts deposed by P.W. 2 Shanti Jaiswal in her testimony, it is conclusively established that P.W. 1 Rajesh Kumar Jaiswal was neither present at the place of incident at the time of the occurrence nor he had witnessed the same. He next submitted that the medical evidence on record does not corroborate the prosecution version of assault at all. He lastly submitted that such being the state of evidence, neither the recorded conviction of the appellants nor the sentence awarded to them can be sustained and are liable to be set aside. 15. Per contra Sri Shiv Narain Singh, learned Counsel appearing for the for the complainant and Sri Awadhesh Narain Shukla, State Law Officer appearing for the State have made their submissions in support of the impugned judgment and order and argued that the complicity of the appellants in committing the murder of deceased-Manju Jaiswal stands fully proved from the evidence of P.W. 1 Rajesh Kumar Jaiswal, P.W. 2 Shanti Jaiswal and C.W. 1 Renu Jaiswal and no interference either with the recorded conviction of the appellants or the sentence of life imprisonment awarded to them is warranted by this Court. Both the appeals lack merit and are liable to be dismissed. 16. We have very carefully considered the submissions advanced before us by the learned Counsel for the parties and perused the Lower Court record. 17. The only question which arises for our consideration in these appeals is that whether the prosecution has been able to prove its case against the accused-appellants beyond all reasonable doubts or not? 18. 16. We have very carefully considered the submissions advanced before us by the learned Counsel for the parties and perused the Lower Court record. 17. The only question which arises for our consideration in these appeals is that whether the prosecution has been able to prove its case against the accused-appellants beyond all reasonable doubts or not? 18. Record shows that the incident had taken place on 18.3.2009 at about 6 A.M. within the limits of village Lothar near the banks of canal while deceased-Manju Jaiswal was going to answer the call of nature. The prosecution case as spelt out in the F.I.R. is that the accused-appellants arrived at the place of incident on a motorcycle. Raghvendra Pratap Singh @ Pankaj Singh, appellant in Criminal Appeal No. 6618 of 2017 with the intention of committing rape on her pushed her and as a result she fell on the ground and then he started tearing her clothes on which she started shouting. On hearing her shrieks, it is alleged that her brother P.W. 1 Rajesh Kumar Jaiswal arrived at the place of the incident but in the meantime Raghvendra Pratap Singh @ Pankaj Singh, appellant in Criminal Appeal No. 6618 of 2017 fired from his country made pistol, although P.W. 1 Rajesh Kumar Jaiswal tried to catch the accused but they fled from the place of incident by motorcycle. The written report of the incident Ext. Ka1 was lodged on the same day at P.S. Meja, district Allahabad at 7:10 A.M. The inquest on the deceased's body was conducted on 18.3.2009 between 8:00 A.M. to 10:15 A.M. and thereafter her dead body was dispatched to S.R.N. Hospital Medical College Allahabad for postmortem examination. 19. The autopsy on the dead body of deceased-Manju Jaiswal was conducted by P.W. 4 Dr. Rajesh Mohan Srivastava on 19.3.2009 at 2:15 P.M. P.W. 4 Dr. Rajesh Mohan Srivastava in his evidence tendered before the Trial Court deposed that he had noted following ante mortem injuries on the body of deceased-Manju Jaiswal: (i) firearm wound entry 2.0 cm. x 1.5 cm. x chest cavity deep on back of left side Middle of chest, 10.0 cm. below left top of shoulder. Blackening, Tattooing present, Margins inverted. (ii) firearm wound of exit 3.0 cm. x 2.0 cm. on right side front of upper chest, 10.0 cm. above right nipple, Margins inverted, communicating to injury No. 1. 20. x 1.5 cm. x chest cavity deep on back of left side Middle of chest, 10.0 cm. below left top of shoulder. Blackening, Tattooing present, Margins inverted. (ii) firearm wound of exit 3.0 cm. x 2.0 cm. on right side front of upper chest, 10.0 cm. above right nipple, Margins inverted, communicating to injury No. 1. 20. He further deposed that deceased had died due to haemorrhage and shock as a result of ante mortem firearm injury. The time of death according to him had taken place about 1 and a half day before the postmortem examination which roughly corroborates the time of incident mentioned in the F.I.R. 21. Thus, from the medical evidence on record, it is established that Manju Jaiswal had died as a result of ante mortem gunshot wound received by her in the morning of 18.3.2009. 22. The next question which arises for our consideration in these appeals is that whether Raghvendra Pratap Singh @ Pankaj Singh, appellant in Criminal Appeal No. 6618 of 2017 is the author of the firearm wound noted by P.W. 5 Sub-Inspector Kuldeep Tiwari on the body of deceased-Manju Jaiswal while conducting postmortem examination on her dead body or not and that the aforesaid offence was committed by Raghvendra Pratap Singh @ Pankaj Singh, appellant in Criminal Appeal No. 6618 of 2017 and Mithun Singh, appellant in Criminal Appeal No. 6617 of 2017 in pursuance of common intention. 23. The prosecution in order to establish the guilt of the accused-appellants had examined P.W. 1 Rajesh Kumar Jaiswal and P.W. 2 Shanti Jaiswal who are the brother and sister of the deceased as eye-witnesses of the occurrence. 24. Apart from the aforesaid witnesses, C.W. 1 Renu Jaiswal, cousin sister of the deceased and C.W. 2 Genda Devi were also examined as eyewitnesses of the occurrence. 25. Before proceeding to evaluate the evidence of the aforesaid four so called eye-witnesses of the occurrence, we consider it proper to first have a glance at the site plan of the place of occurrence which was prepared by P.W. 5 Kuldeep Tiwari, the Investigating Officer of the case within 3-4 hours of the occurrence at the instance of P.W. 1 Rajesh Kumar Jaiswal who claims himself to be an eye-witness of the occurrence which has been brought on record as Ext. Ka11. Ka11. It may also be kept in mind that none of the parties had filed any objection challenging the accuracy of the site plan. 26. A perusal of the site plan Ext. Ka11 indicates the place at where deceased-Manju Jaiswal had been shot by Raghvendra Pratap Singh @ Pankaj Singh, appellant in Criminal Appeal No. 6618 of 2017 has been shown by letter 'X'. The direction from where the accused-appellants was coming has been shown by sign while the direction from which the deceased was coming has been shown by sign. The direction in which Raghvendra Pratap Singh @ Pankaj Singh, appellant in Criminal Appeal No. 6618 of 2017 ran away after firing on the deceased has been shown by sign. The place where P.W. 1 Rajesh Kumar Jaiswal tried to stop the accused-appellant has been denoted by letter 'A'. The distance between point 'A' and point 'X' has been mentioned as 160 paces. The site plan further indicates that between point 'A' and point 'X' a canal is flowing. Neither the place from where P.W. 1 Rajesh Kumar Jaiswal had heard the shrieks of his sister nor the spot where the other three so called eye-witnesses, P.W. 2 Shanti Jaiswal, C.W. 1 Renu Jaiswal and C.W. Laxmi Devi who were introduced as eye-witnesses during the investigation at a belated stage were easing themselves has been mentioned. Now if P.W. 1 Rajesh Kumar Jaiswal had witnessed the incident and had noted presence of his real sister, P.W. 2 Shanti Jaiswal, C.W. 1 Renu Jaiswal and C.W. 2 Laxmi Devi then there is no reason why he would not have shown to the Investigating Officer the places where the aforesaid witnesses were easing themselves. 27. Moreover P.W. 2 Shanti Jaiswal, the other so called eye-witness of the incident in her examination-in-chief has categorically stated that P.W. 1 Rajesh Kumar Jaiswal, her real brother had arrived at the place of incident after the accused-appellant had shot her sister-Manju Jaiswal and had fled from the place of incident. It is noteworthy that no effort was made by the prosecution to get the aforesaid statement made by P.W. 2 Shanti Jaiswal clarified by recalling her. 28. It is noteworthy that no effort was made by the prosecution to get the aforesaid statement made by P.W. 2 Shanti Jaiswal clarified by recalling her. 28. There is yet another very interesting aspect of the matter, that although the prosecution alleges that-P.W. 2 Shanti Jaiswal and C.W. 1 Renu Jaiswal were the eye-witnesses of the occurrence but strangely P.W. 1 Rajesh Kumar Jaiswal, the so-called eyewitness of the incident had neither nominated them as witnesses in the F.I.R. nor disclosed about their presence at the place of incident to the Investigating Officer during investigation. It would be relevant to refer to that part of his cross-examination in which he was contradicted by defence Counsel with his statement recorded under section 161 Cr.P.C. in which he had not nominated his sisters, P.W. 2 Shanti Jaiswal and C.W. 1 Renu Jaiswal as eyewitnesses of the occurrence, on which he had stated that since he was very disturbed after the occurrence and in a state of agitation he failed to mention their names as eye-witnesses of the occurrence in the F.I.R. but he had told the Investigating Officer about the presence of P.W. 2 Shanti Jaiswal at & a place of incident and he was not in a position to give any reason why the aforesaid fact was not recorded by the Investigating Officer. However, P.W. 5 Kuldeep Tiwari, the Investigating Officer of the case stated on page 54 of the paper book in his cross-examination that P.W. 1 Rajesh Kumar Jaiswal had not told him when he was recording his statement under section 161 Cr.P.C. that P.W. 2 Shanti Jaiswal, the real sister of the deceased and C.W. 1 Renu Jaiswal, cousin sister of the deceased had also gone with the deceased to ease themselves at the time of the occurrence and had witnessed the occurrence. 29. Another contradiction in the statement of P.W. 1 Rajesh Kumar Jaiswal is that although the postmortem report of the deceased indicates that the deceased had been shot from behind but P.W. 1 Rajesh Kumar Jaiswal despite claiming himself to be an eye-witness of the occurrence had not stated the aforesaid fact either in the F.I.R. or in his statement recorded under section 161 Cr.P.C. However, he stated that it is true that he had not mentioned in the FXR. that his sister had been shot by Raghvendra Pratap Singh @ Pankaj Singh, appellant in Criminal Appeal No. 6618 of 2017 from behind but he had narrated the aforesaid fact to the Investigating Officer but the Investigating Officer of the case in his cross-examination on page 54 of the paper book has categorically deposed that P.W. 1 Rajesh Kumar Jaiswal in his statement recorded during interrogation had not told him that de-ceased-Manju Jaiswal was shot from behind. Even in his examination-in-chief, P.W. 1 Rajesh Kumar Jaiswal had failed to support the prosecution case as spelt out in the F.I.R. in its totality. The material contradictions in his testimony to which we have already referred to hereinabove and the statement of P.W. 2 Shanti Jaiswal totally belie his claim of being the eye-witness of the occurrence and no reliance can be placed on his evidence for the purpose of convicting the appellants and the reliance placed by the Learned Trial Judge on his evidence for the purpose of convicting the appellants was totally unwarranted and per se illegal. 30. Now coming to the evidence of P.W. 2 Shanti Jaiswal, we find that she in her examination-in-chief stated that about 2 years before recording of her statement she had gone with her sister-Manju Jaiswal to answer the call of nature while they were going to answer the call of nature, she saw the accused-appellants came on a motorcycle. Both of them started misbehaving with her sister-Manju Jaiswal and with the intention of committing rape on her, they pushed her to the ground and when her sister-Manju Jaiswal protested and tried to save herself, Raghvendra Pratap Singh @ Pankaj Singh, appellant in Criminal Appeal No. 6618 of 2017 shot her with his Country made pistol and thereafter both the accused-appellants fled, they started weeping and then her brother, P.W. 1 Rajesh Kumar Jaiswal arrived. Since she had fallen ill after witnessing the incident and was terrified, people took her to her home. She was interrogated after one and a half month of the occurrence by the police. Since she had fallen ill after witnessing the incident and was terrified, people took her to her home. She was interrogated after one and a half month of the occurrence by the police. Although both P.W. 1 Rajesh Kumar Jaiswal and P.W. 2 Shanti Jaiswal have deposed about the presence of P.W. 2 Shanti Jaiswal at the place of occurrence but as already noted, her name was neither mentioned in the F.I.R. nor in the statement of P.W. 1 Rajesh Kumar Jaiswal recorded under section 161 Cr.P.C. It is very interesting to note that her name as a witness had surfaced for the first time in the statement of C.W. 2 Laxmi Devi whose statement was recorded by the Investigating Officer of the case, P.W. 5 Kuldeep Tiwari after one month and seventeen days of the occurrence in the village. He deposed that C.W. 2 Laxmi Devi had told him that on the date of incident she had gone to ease herself along with D.W. 1 Genda Devi, P.W. 2 Shanti Jaiswal and C.W. 1 Renu Jaiswal. However, when C.W. 2 Laxmi Devi appeared before the Court during the trial, she in her examination-in-chief deposed that D.W. 1 Genda Devi was a resident of her village, P.W. 2 Shanti Jaiswal was her neighbour and C.W. 1 Renu Jaiswal was also her neighbour. Manju Jaiswal is the daughter of Rangai. Manju Jaiswal had not died due to illness. When they had gone to the canal, they saw Manju Jaiswal lying dead. The entire village had come to see her dead body. The time was about 8 A.M. On the date of incident, she had gone to answer the call of nature alone at about 6-7 A.M. to the other side of the canal. Thus, the entire prosecution story that C.W. 2 Laxmi Devi had disclosed the names of P.W. 2 Shanti Jaiswal and C.W. 1 Renu Jaiswal as the eye-witnesses of the occurrence during investigation stands totally disproved from the evidence of C.W. 2 Laxmi Devi and compels us to draw only one inference that neither P.W. 2 Shanti Jaiswal nor C.W. 1 Renu Jaiswal had witnessed the occurrence and when the Investigating Officer of the case was unable to get any clue about the perpetrators of the crime, he planted P.W. 2 Shanti Jaiswal and C.W. 1 Renu Jaiswal and introduced them as eye-witnesses of the occurrence. In this regard it would be useful to have a glance at the statement of P.W. 5 Sub-Inspector Kuldeep Tiwari, the Investigating Officer of the case which evinces that there is no mention in his entire statement as to how he came to know about C.W. 2 Laxmi Devi being an eye-witness of the occurrence who had allegedly told him about P.W. 2 Shanti Jaiswal, C.W. 1 Renu Jaiswal and D.W. 1 Genda Devi had also witnessed the occurrence along with her. From the facts deposed by P.W. 5 Sub-Inspector Kuldeep Tiwari in his cross-examination on page 68 of the paper book, it transpires that he has merely stated that he had recorded the statement of C.W. 2 Laxmi Devi after about one month and seventeen days of the incident in the village and the said witness had told him that she had gone to answer to call of nature in the morning on the date of occurrence with D.W. 1 Genda Devi, P.W. 2 Shanti Jaiswal and C.W. 1 Renu Jaiswal and he had come to know about D.W. 1 Genda Devi, P.W. 2 Shanti Jaiswal and C.W. 1 Renu Jaiswal being the eye-witnesses of the occurrence from C.W. 2 Laxmi Devi. The statement of C.W. 2 Laxmi Devi was recorded after 20 days on 25.5.2009 and thereafter the statements of D.W. 1 Genda Devi, P.W. 2 Shanti Jaiswal and C.W. 1 Renu Jaiswal were recorded by him. Moreover, P.W. 5 Sub-Inspector Kuldeep Tiwari, the Investigating Officer of the case has stated in his cross-examination on page 68 of the paper book that C.W. 2 Laxmi had told him that D.W. 1 Genda Devi, P.W. 2 Shanti Jaiswal and C.W. 1 Renu Jaiswal had gone to answer the call of nature in the morning. 31. Genda Devi who although according to the prosecution was an eye-witness of the occurrence but she was not examined during the trial by the prosecution. 31. Genda Devi who although according to the prosecution was an eye-witness of the occurrence but she was not examined during the trial by the prosecution. However, she entered the witness box as D.W. 1 and deposed that on the date of incident when she had gone to ease herself she had found dead body of Manju Jaiswal lying about 200 paces from the culvert in the east and when she and other ladies of the village who had also arrived at the crime scene made a noise on seeing the body of de-ceased-Manju Jaiswal D.W. 2 Shiv Shanker Vishwakarma who was working nearby field went to the village and informed P.W. 1 Rajesh Kumar Jaiswal about the incident. D.W. 2 Shiv Shanker Vishwakarma in his evidence tendered before the Trial Court has fully corroborated the evidence of D.W. 1 Genda Devi. 32. The entire prosecution story is so improbable and full of infirmities that no prudent man can ever accept the same to be fine. The F.I.R. of the incident was lodged by the real brother of the deceased, P.W. 1 Rajesh Kumar Jaiswal claiming himself to be the eye-witness of the occurrence but P.W. 1 Rajesh Kumar Jaiswal failed to mention that P.W. 2 Shanti Jaiswal, his real sister and C.W. 1 Renu Jaiswal, his cousin sister and C.W. 2 Laxmi Devi had also witnessed the incident either in the F.I.R. or in his statement recorded under section 161 Cr.P.C. which is absolutely unnatural and contrary to normal human conduct. P.W. 2 Shanti Jaiswal and C.W. 1 Renu Jaiswal although claimed themselves to be the eye-witnesses of the occurrence but they kept quiet for one month and seventeen days of the occurrence. No explanation is coming forth why P.W. 2 Shanti Jaiswal and C.W. 1 Renu Jaiswal did not came forward either on the date of incident or within a reasonable period to get themselves interrogated by the Investigating Officer. Moreover, there is no explanation coming forth from the side of P.W. 1 Rajesh Kumar Jaiswal for his failure to disclose to the Investigating Officer that P.W. 2 Shanti Jaiswal and C.W. 1 Renu Jaiswal were also the eye-witnesses of the occurrence. 33. Moreover, there is no explanation coming forth from the side of P.W. 1 Rajesh Kumar Jaiswal for his failure to disclose to the Investigating Officer that P.W. 2 Shanti Jaiswal and C.W. 1 Renu Jaiswal were also the eye-witnesses of the occurrence. 33. That apart, there are material contradictions in the testimonies of P.W. 1 Rajesh Kumar Jaiswal, P.W. 2 Shanti Jaiswal and C.W. 1 Renu Jaiswal with regard to the manner of assault which totally shatter their credibility. Whereas in the F.I.R. and in the evidence of P.W. 1 Rajesh Kumar Jaiswal, no overt act of any kind has been attributed to Mithun Singh, appellant in Criminal Appeal No. 6617 of 2017. The only allegation made against him by P.W. 1 Rajesh Kumar Jaiswal in the written report of the incident Ext. Ka1 and in his statement recorded during the trial was that he had come along with Ragh-vendra Pratap Singh @ Pankaj Singh, appellant in Criminal Appeal No. 6618 of 2017 on his motorcycle to the place of incident and after Raghvendra Pratap Singh @ Pankaj Singh, appellant in Criminal Appeal No. 6618 of 2017 had shot Manju Jaiswal, both of them had escaped on the same motorcycle whereas P.W. 2 Shanti Jaiswal in her examination-in-chief deposed that both the appellants came on a motorcycle and started misbehaving with her sister-Manju Jaiswal and with the intention of committing rape upon her, they pushed her to the ground while C.W. 1 Renu Jaiswal in her statement recorded during the trial has merely stated that while she was going to answer the call of nature in the morning with her cousin sister-Manju Jaiswal and P.W. 2 Shanti Jaiswal, she was walking slightly ahead of them and after Manju Jaiswal and then P.W. 2 Shanti Jaiswal had sat down to ease themselves, she had heard a sound of gunshot and when she got up, she saw Raghvendra Pratap Singh @ Pankaj Singh, appellant in Criminal Appeal No. 6618 of 2017 and Mithun Singh, appellant in Criminal Appeal No. 6617 of 2017 running away. Strangely C.W. 1 Renu Jaiswal has not stated in her evidence that both the accused had made good their escape on the motorcycle. She has also not stated about the accused-appellants making the deceased fell on the ground and then trying to tear her clothes with the intention of committing rape on her. Strangely C.W. 1 Renu Jaiswal has not stated in her evidence that both the accused had made good their escape on the motorcycle. She has also not stated about the accused-appellants making the deceased fell on the ground and then trying to tear her clothes with the intention of committing rape on her. Neither the bloodstained and plain earth recovered from the place of incident nor the country made pistol of 315 bore allegedly recovered on the pointing out of Mithun Singh, appellant in Criminal Appeal No. 6617 of 2017 were sent for forensic examination. The Investigating Officer of the case has further deposed that no efforts was made by him to get the name of the registered owner of the motorcycle which was seized by him from the spot, ascertained. 34. Thus, the prosecution has failed to lead any cogent evidence to link the crime weapon allegedly recovered on the pointing out of Mithun Singh, appellant in Criminal Appeal No. 6617 of 2017 with the crime in question and to establish that motorcycle which was seized from the crime scene belonged to Raghvendra Pratap Singh @ Pankaj Singh, appellant in Criminal Appeal No. 6618 of 2017. 35. In view of the aforesaid, we do not find it safe at all to rely the testimonies of P.W. 2 Shanti Jaiswal and C.W. 1 Renu Jaiswal who in our opinion are got up, planted and tutored witnesses. 36. Thus, upon a wholesome consideration of the facts, attending circumstances and the evidence on record, we do not find that the prosecution has been able to prove its case against the accused-appellants beyond all reasonable doubt. 37. Accordingly, both the appeals succeed and are allowed. The appellants are acquitted of all the charges framed against them. Raghvendra Pratap Singh @ Pankaj Singh, appellant in Criminal Appeal No. 6618 of 2017 is in jail. He shall be released forthwith unless he is wanted any other case while Mithun Singh, appellant in Criminal Appeal No. 6617 of 2017 is on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged. They shall however comply with the mandatory provision of section 437-A Cr.P.C.