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2024 DIGILAW 2231 (ALL)

Brij Bihari Bind v. State of U. P.

2024-10-21

SIDDHARTHA VARMA, SYED QAMAR HASAN RIZVI

body2024
JUDGMENT : 1. This criminal appeal has been filed against the judgment and order dated 16.03.1983 passed by the Sessions Judge, Ghazipur in Sessions Trial No.45 of 1983 by which the appellants were convicted under Section 302/34 of the Indian Penal Code(henceforth called the "IPC") sentencing the appellants with life imprisonment. 2. Upon an incident that had taken place in the night of 15/16th of September, 1982 at about 1.00 A.M., allegedly, a first information report was got lodged at 5.30 A.M. on 16.9.1982. The version of the first information report was that the deceased Munni Lal aged, about 22 years, was killed in a bomb attack by the accused Brij Bihari Bind. The accused Brij Bihari Bind, was accompanied by Prabhu and Jitan. Prabhu was carrying a lathi and Jitan was carrying a knife. It has been stated that the accused had also intended to kill the informant, but since he ran away, they spared him. It has been mentioned in the first information report itself that the first information report was scribed by one Jagdishwar Ram S/o Ram Saran Ram. The motive in the first information report was that the first informant Shiv Nath, had built a new house and he had opened his door on the northern side, which faced the courtyard (Sahan) of the accused Brij Bihari Bind. When Brij Bihari Bind had asked the first informant and the deceased Munni Lal, to close the door, and Munni Lal in retaliation had abused him, then Brij Bihari Bind had threatened Munni Lal with dire consequences. 3. It has been alleged by the prosecution that, thereafter, the investigation commenced, and the clothes, which were having the blood of the deceased and the pieces of the bomb which were lying on the spot were recovered and their recovery memos were prepared. The torch and lantern, which were the sources of light, were also looked into by the police and even though they were not taken into custody, a memo in that regard was prepared, which was exhibited as Exhibit Ka-10. The torch and lantern, which were the sources of light, were also looked into by the police and even though they were not taken into custody, a memo in that regard was prepared, which was exhibited as Exhibit Ka-10. Thereafter, the case of the prosecution was that the deceased was still in an injured state after the bomb attack and he was taken to Nandganj Primary Health Centre, where he reached as per prosecution case at 5.50 A.M. It was further the case of the prosecution that thereafter upon finding that the state of the injured was grievous, he was referred to the District Hospital at Ghazipur. From the record, we further find that the injured after reaching the District Hospital at Ghazipur died at 10.13 A.M. and at 10.30 A.M. the doctor present sent the dead body to the Kotwali for necessary action. The communication by which the information was sent to the Station Officer, Kotwali at Ghazipur mentioned that the injured had died at 10.13 A.M. This communication sent at 10.30 A.M. on 16th of September, 1982, was exhibited as Ext. Ka-3. 4. From the record, we further find that a Panchayatnama was conducted on 16th of September, 1982 at the District Hospital, Ghazipur. This Panchayatnama reveals that some report was lodged at 10.45 A.M. and that the Panchayatnama had commenced at 11.20 A.M. at 16th of September, 1982. The person, who had given the information to the Thana about the death of the deceased was a ward boy-Bhim Singh. The Panchayatnama proceedings concluded at 12.30 P.M. Thereafter, the dead body was sent with the Panchayatnama, Nakal Rapat and various other documents for the post-mortem of the dead body. The post-mortem was conducted on 17.9.1982 at 9.30 A.M. at the district Hospital, Ghazipur. Thereafter, when the police submitted its report, the court of sessions judge, district Ghazipur on 16.3.1983 framed charges. When the accused denied the charges, the trial commenced. 5. From the side of the prosecution as many as 7 witnesses were examined. 6. The post-mortem was conducted on 17.9.1982 at 9.30 A.M. at the district Hospital, Ghazipur. Thereafter, when the police submitted its report, the court of sessions judge, district Ghazipur on 16.3.1983 framed charges. When the accused denied the charges, the trial commenced. 5. From the side of the prosecution as many as 7 witnesses were examined. 6. PW-1 was the alleged first informant and from his statement, it became clear that he intended to bring on record that the he had built a new house and in the northern side he had opened the door, which faced the house and Sahan of the accused Brij Bihari Bind and because of this fact, Brij Bihari Bind held a grudge against the first informant and his son. He has categorically stated that 5-8 days prior to the incident Brij Bihari Bind had asked the first informant and his son to close the door, and when he had refused to do so, he had threatened them with dire consequences. He has also brought a story with regard to enmity with Brij Bihari Bind and has therein stated that Brij Bihari Bind had asked the first informant to support his nephew in the Panchayat election and when he did not do so, then on that count also he was bearing a grudge against the first informant. 7. On the night of the incident, at around 1:00 A.M. on 16 September 1982, the first informant woke up due to the barking of dogs. He used a torch and, in the torchlight, saw Brij Bihari Bind, Prabhu, and Jitan at his house, with Prabhu carrying a lathi and Jitan carrying a knife. He saw Brij Bihari Bind holding a bomb and was pointing it towards Munni Lal. He was, as per the PW-1, giving out his mind that Munni Lal was to be killed. Munni Lal thereafter ran away and the first informant and Munni Lal raised a hue and cry. Upon hearing this, Jai Mangal, Shriram, Kharphattu, and Prem arrived at the scene, all carrying torches. When Munni Lal reached the Sahan of one Sohan, Prabhu and Jitan used force, causing Munni Lal to fall. At that point of time, Brij Bihari Bind hurled the bomb, he was holding, at Munni Lal, This killed him. Thereafter, the three accused ran away. 8. When Munni Lal reached the Sahan of one Sohan, Prabhu and Jitan used force, causing Munni Lal to fall. At that point of time, Brij Bihari Bind hurled the bomb, he was holding, at Munni Lal, This killed him. Thereafter, the three accused ran away. 8. The first informant stated that because of the bomb attack, Munni Lal sustained injuries in his stomach and waist and his intestines came out. He tied Munni Lal's stomach with a piece of cloth and took him to Nandganj Thana. The Munshi at the Thana asked the son-in-law of the first informant to write the report, which he did on the informant's dictation. The police questioned the injured person and sent him to the hospital at Nandganj. When the doctor at Nandganj found the condition hopeless, the injured was referred to the District Hospital at Ghazipur, where Munni Lal died around 10:11 AM. 9. In the cross-examination, the first informant maintained what he had stated in his statement in chief. However, in paragraph No. 11 he has stated that he had shown the nail on which the lantern was hanging at the time of incident, but in the subsequent paragraph, he had stated that he had not been able to show the soot, which might have been there because of the lighting of the lantern. Upon being questioned about the place where the incident had occurred, he stated that the injured/deceased had fallen in the Sahan of one Sohan and that the place of incident was around two and a half Latthas away from his house. He answered to a question as to whether there was blood found at the place of incident and in his answer, he had stated that blood was found there. In the cross-examination, he further stated that he had told the police that in fact he had come out of his house and had reached the place of occurrence because of the barking to the dogs. Upon further been questioned as to why the accused had not killed him, he answered that the accused had chased him also, but because he had hidden himself, therefore, he was saved. After hiding, the accused persons pursued Munni Lal. He has stated that Jagdishwar, who was the scribe of the first information report was at that point of time in the village itself, though he was a resident of Mathiya. 10. After hiding, the accused persons pursued Munni Lal. He has stated that Jagdishwar, who was the scribe of the first information report was at that point of time in the village itself, though he was a resident of Mathiya. 10. Learned counsel before referring to the statement of PW-2 had referred to the statements of PW-4 and therefore, the statement of PW-4 is being referred to the judgment hereinbelow. The PW-4 was one Shri Prem, who according to the PW-1, was also present on the spot. He has also supported the version of PW-1 and has stated that he woke up because of the barking of the dogs, and thereafter, he had heard the shouting of Munni Lal and Shivnath. He has also stated that there was a lantern lit in the house of Shivnath. He has also stated that apart from him, Shri Ram, Jaimangal and Kharpattu had reached the spot. They were also carrying torches. He had also stated that the deceased had died because of a bomb being hurled at him. 11. In the cross-examination, he stood by his testimony, but in paragraph 11 he had stated that the 'Rapat" was not scribed at house of Shivnath. Shivnath got it scribed by the Munshi at the Nandganj Thana. PW-4 stated that at the Thana, he himself including many others namely, Jaimangal, Shri Ram, and Munni Lal, Jagdhari had come. He definitely did not mention the name of Jagdishwar, the scribe of the first information report. 12. The learned counsel then referred to the statement of PW-5, Shri Shriram. He confirmed the incident as was narrated by the PW-1 and PW-4 in his examination-in-chief, but in cross-examination, when asked about the source of light, he stated that a lantern was lit in Shivnath's house. In paragraph No. 7, upon being asked, who all had gone to Thana Nandganj, he had stated that he did not go to Thana Nandganj. He also stated that he did not know the reason why his presence had been shown at Thana Nandganj. He further described, upon being questioned, how the incident had occurred in the narrow passage neighboring the Sahan of Sohan. 13. PW-6, the Investigating Officer had narrated in his examination-in-chief the method in which he had conducted the investigation. He also stated that he did not know the reason why his presence had been shown at Thana Nandganj. He further described, upon being questioned, how the incident had occurred in the narrow passage neighboring the Sahan of Sohan. 13. PW-6, the Investigating Officer had narrated in his examination-in-chief the method in which he had conducted the investigation. In paragraph No. 4 of the statement he stated that on 18.9.1982 he had come to know that the deceased had died on 16.9.1982 at the hospital at Ghazipur and thereafter he had converted the case from 307 to 302 IPC. There was a G.D. entry also of that conversion at G.D. No. 26 dated 18.9.1982 and the time at which the entry was made was 10.10 P.M. He has also proved the GD entry. 14. In paragraph No. 7 he had very categorically stated that Panchayatnama was prepared by the Sub Inspector-Radhey Mishra and when body was sent for post-mortem, the Photo Lash, Challan Lash and the request of the Reserve Inspector for post-mortem were sent. 15. He has stated that the Panchayatnama was exhibited as Ext. Ka-15. Photo Lash was exhibited as Ext. Ka-16. Challan Lash was exhibited as Ext. Ka-17 and record for the return of clothes exhibited as Ext. Ka-18. The request for post-mortem was exhibited as Ext. Ka-19. 16. In paragraph No. 11, while being examined, the Investigating Officer has stated that he was not aware as to when the Chik FIR reached the Sadar Hospital. He has stated that the name of the deceased was not written on the documents by which the Thana had referred the injured to the hospital (Chitthi Majroobi). He has stated that on all these documents crime number had to be written but a perusal of the Chitthi Majroobi showed that the crime number had got torn. 17. Upon being questioned as to whether the time 6.15' had been changed to 5.15' in the medical report, he denied that fact. He has also stated that he had not mentioned as to who all were examined on 16.9.1982. He has stated that in the G.D. it was not entered as to whether the injured Munni Lal was in his senses and whether he was breathing. He has denied the fact that he recorded all wrong statements of the injured as he could not speak at that point of time. He has stated that in the G.D. it was not entered as to whether the injured Munni Lal was in his senses and whether he was breathing. He has denied the fact that he recorded all wrong statements of the injured as he could not speak at that point of time. He has further stated that when the statement of the injured Munni Lal was being recorded he had not got the signature of any independent witness. When exactly the G.D. of 16th of September, 1982 reached the police station, he was not aware. However, he stated that the G.D. entry of 25 of September 1982 did reach the Kotwali. 18. In paragraph 12 of his cross-examination, he stated that on 16.09.1982, he had reached the house of the first informant at around 7:30 A.M. and at that time, the first informant was along with him. The first informant had shown all the relevant places in the house, i.e., the place where he himself and the deceased were sleeping on the night of 15-16 September 1982. He stated that, at the time he visited the site, he did not find any lantern hanging from any nail. He also did not ask the first informant whether the lantern was hanging there. He categorically had stated that he was not shown the place where the lantern was hanging and, therefore, he had not shown the same in the site plan. 19. In paragraph 15 of his cross-examination, he has categorically stated that at the place of incident he had not found any blood which might have flown out of the body of the injured. In paragraph 16, again he has stated that in the panchayatnama, there was no reference of there being any blackening or charring at the place where the bomb might have caused the injuries. In paragraph 21 of his cross-examination, he has stated that in the statement recorded under section 161 Cr.P.C., he had recorded only what the witnesses had stated and if there was any improvement in the statements made by those witnesses in the Court, then he did not know why it was so done. Upon a question being asked specifically as to whether on a subsequent date, the first informant and he himself had called Jagdishwar and had got ante-dated FIR lodged, he had denied that accusation. 20. Upon a question being asked specifically as to whether on a subsequent date, the first informant and he himself had called Jagdishwar and had got ante-dated FIR lodged, he had denied that accusation. 20. Learned counsel for the appellants thereafter took the Court through the statement of PW-2, the doctor who had conducted the post-mortem. The doctor, in his statement in chief, recorded that on 17.9.1982 he was the Medical Officer posted at the District Hospital, Ghazipur and at 9.30 AM on that date he had conducted the post-mortem. He has thereafter described all the injuries which were responsible for the death of the deceased. In his examination in chief, he has stated that the cause of death was excessive bleeding. In his cross-examination, in paragraph 6, he has stated that the documents which he had received before the post-mortem was conducted, definitely did not contain the chik FIR. 21. PW-3 is the doctor who had attended the injured on 16.9.1982 and has stated that the injured had reached him at 5.50 AM and thereafter he had described the injuries which were found on the body of the injured. The injured had been sent along with a recommendation for the examination of the injuries. This document is referred as chitthi majroobi. In his cross-examination, he has definitely stated that in the chitthi majroobi there was no case crime number transcribed. He has stated that the injured had not disclosed his name and upon a question being asked as to when the name of the injured was written on the injury report, he had stated that only when the injured himself had told his name, it was written on the injury report. Upon being asked as to why he had not stated that there was blackening or charring around the injury, he has stated that it was just possible that he had missed it out. This witness in his examination in chief has very categorically, while describing the first injury, stated that the stomach was absolutely torn and there was an injury of 10.5 cm x 5 cm and that the intestine had come out of the abdominal cavity. 22. Learned counsel for the appellants states that the fact of the matter is that the entire incident, as has been reported in the FIR had never occurred. 22. Learned counsel for the appellants states that the fact of the matter is that the entire incident, as has been reported in the FIR had never occurred. He submits that if the documents along with the prosecution witnesses are perused, it becomes clear that the FIR was not in existence at least till such time as the post-mortem was conducted. He submits that the chitthi majroobi which was sent by the police station at Nandganj on 16.9.1982 to the Medical Officer at the hospital at Nandganj did not contain any case crime number. Further, the learned counsel for the appellants states that the documents by which the doctor at the District Hospital had informed the police station i.e. Kotwali, Ghazipur again did not mention about any case crime number. Still further, learned counsel for the appellants states that the panchayatnama which was prepared on 16.9.1982 categorically states that there was some hand-written memo of the District Hospital which was sent through the ward-boy Bheem Singh along with some information at Rapat No.14 dated 16.9.1982 and on it the time was given as 10.45 AM. Still further, learned counsel for the appellants pointed out, from the list of documents which accompanied the panchayatnama which travelled with the dead body and reached the doctor for the post mortem did not in fact contain the chik FIR and it was only a nakal rapat which had accompanied the panchayatnama. From the statements of the witnesses, learned counsel for the appellants has stated that the statement of PW-2 in paragraph 6, it was categorically stated that when the documents came for the post mortem, they did not contain the chik FIR. The relevant portion of paragraph 6 is reproduced here as under :- ^^iksLVekVZe ds fy;s tks Hkh dkxtkr esjs ikl vk;s Fks mlesa fpd jiV dh udy u FkhA^^ 23. Thereafter, learned counsel for the appellants has referred to the statement of PW-6 who was the Investigating Officer and from paragraph 7, learned counsel for the appellants states that it becomes clear that the documents which accompanied the dead body for post mortem were only panchayatnama (Exhibit-Ka-15), Photo Nash (Exhibit Ka-16); Challan Nash (Exhibit Ka-17); the report of return of the clothes (Exhibit Ka-18) and the request for post mortem (Exhibit Ka-19). The relevant portion of paragraph 7 is being reproduced here as under :- ^^-----------eSus mudks fy[krs iढ+rs ns[kk gS vkSj muds ys[k oks gLrk{kj dks igpkurk gwa vly iapk;rukek ij bDt d&15] QksVks yk’k ij bDt d& 16] pkyku yk[k ij bDt d&17] fjiksVZ okLrs okilh diM+s ij bDt d 18 vkSj fjiksZV okLrs iksLVekVZe ij bDt d 19 Mkys x;sA mlh fnu eq>s ij ekywe gqvk fd rhuks eqfYteku gkftj vnkyr gks pqds FksA^^ 24. Learned counsel for the appellants, therefore, states that definitely the FIR did not accompany the dead body and the panchayatnama. To bolster his case, learned counsel for the appellants has referred to a judgment of the Supreme Court in Mohd. Muslim vs. State of Uttar Pradesh (Now Uttarakhand) reported in (2023) 7 SCC 350 and he has specifically referred to paragraphs 12, 13 and 14 of that judgment which state that if there were anomalies in the entries indicating that the FIR was ante-dated then the case of the prosecution becomes doubtful. Since, learned counsel for the appellants referred to paragraphs 12, 13 and 14, the same are being reproduced here as under :- "12. The FIR (Exh. Ka -8) dated 04.08.1995 is stated to have been lodged at 9:00 AM. The submission of accused appellant is that, in fact, the FIR was lodged at 1:50 PM and it has been ante-timed. We have perused the original of the FIR dated 04.08.1995 from the trial Court record. A bare pursual of the aforesaid FIR clearly shows that there is some interpolation in the time of its lodging mentioned therein. It is evident from naked eye that 1' has been converted into 9' and 5' has been rounded off to make 0' whereas 'PM' has been converted into 'AM'. In other words, 1:50 PM has been changed to 9:00 AM. This is abundantly clear from the FIR and there cannot be two opinions on that. The trial Court is not correct in saying that there is no interpolation and that since 'AM' has been used, it means that the FIR has been lodged in the morning. The Trial Court completely lost sight of the fact that not only the time has been changed but the word 'PM' has also been interpolated and converted into 'AM'. Thus, in our opinion, the FIR has been ante-timed from 1:50 PM to 9:00 AM. 13. The Trial Court completely lost sight of the fact that not only the time has been changed but the word 'PM' has also been interpolated and converted into 'AM'. Thus, in our opinion, the FIR has been ante-timed from 1:50 PM to 9:00 AM. 13. The chick FIR report was sent to the Court on 8.08.1995 with the delay of about 4 days. It is worth mentioning that FIR in a criminal case and particularly in a murder case is a vital and a valuable piece of evidence especially for the purpose of appreciating the evidence adduced at the trial. It is for this reason that the infirmities, if any, in the FIR casts a doubt on its authenticity. The FIR in such cases may also lose its evidentiary value. In Meharaj Singh and Ors. Vs. State of U.P. and Ors.', it has been opined that on account of the infirmities such an ante-timing of the FIR loses its evidentiary value. Thus, this entitles the accused to be given the benefit of doubt. 14. The reason for ante-timing the FIR is not difficult to comprehend. The prosecution case is that deceased Altaf Hussain was going to the consolidation Court for attending the land dispute. Obviously, if he was going to the Court, it would have been early in the morning before the start of the Court rather than in the afternoon that too in the post-lunch session. In order to justify that deceased Altaf Hussain was going to the Court in the morning, the timing of the FIR has been changed to 9:00 AM. Had the incident occurred in the morning before 9:00 AM, and the police had arrived at the spot at 10:00 AM, the dead body would have been sent to the mortuary immediately thereafter by the afternoon but this has not happened and the dead body of the deceased Altaf Hussain was sent to the mortuary late in the evening by which time it was too late to conduct the post-mortem which had to be postponed for the next day." 25. Learned counsel for the appellants also referred to a judgment of this Court in Kishori Lal vs. State of Uttar Pradesh reported in 1994 (0) JIC 352 and since he has specifically referred paragraph no.11, the same is being reproduced here as under :- "11. The first information Report (Ex. Learned counsel for the appellants also referred to a judgment of this Court in Kishori Lal vs. State of Uttar Pradesh reported in 1994 (0) JIC 352 and since he has specifically referred paragraph no.11, the same is being reproduced here as under :- "11. The first information Report (Ex. Ka- 1) was indisputably written by Chandra Bhan Singh PW 2 at the Police Station, Karwi itself. The Chitthi Majroobi (Ex. Ka-11) does not contain the case crime number. This means that the case was not registered till the preparation of Chitthi Majroobi. There is no explanation for the same. Therefore, the first information Report can be said to have been written after due deliberations and consultations." 26. In addition to that, learned counsel for the appellants states that neither the scribe of the FIR nor the chik writer were examined by the prosecution and he submits that in the absence of examination of these two important witnesses, the case of the prosecution becomes doubtful. In that regard, learned counsel for the appellants referred to a judgment of this Court in Dhani Ram vs State of U.P. reported in 1982 SCC Online (All) 1099. In this case, learned counsel refers paragraph 14 and stated that the judgment was based on a celebrated judgment of Calcutta High Court reported in 1934 AIR (Cal) 458 : Debendra Chandra Sarkar vs. Emperor and he, therefore, submits that if the scribe of the written report has not been examined then the non-production of the witness who was instrumental in proving that the FIR becomes fatal to the case. This tells heavily on the case of the prosecution and in the absence of such a witness, it was not possible to ascertain what exactly was the version of the informant at the time when the Tehrir was first put into writing and also it was not possible to establish the genuineness of the Tehrir. The paragraph 14(1) of the judgment is being reproduced here as under :- "14. The appeal is allowed for the following reasons : 1) The scribe of the written report Ext. Ka. 1 has not been examined in this case. Chhotey, informant who claimed to have dictated this report has simply thumb marked the same. Chhotey conceded that Sant Ram the scribe of this report was sent for. The appeal is allowed for the following reasons : 1) The scribe of the written report Ext. Ka. 1 has not been examined in this case. Chhotey, informant who claimed to have dictated this report has simply thumb marked the same. Chhotey conceded that Sant Ram the scribe of this report was sent for. Shambhu went to call Sant Ram who resided at a distance of three miles from his village. He further conceded that. Mewaram, PW 2, and other co-villagers were well educated; he could not give any reason for getting the report scribed form Sant Ram. Sant Ram has been withheld in this case and has not been examined to face the cross examination. Head-constable Janki Singh who scribed the FIR Ext. Ka. 3 and G.D. entry Ext. Ka. 4 was not examined. Thus FIR and G.D. entry were not formally proved by their scribe. Had these witnesses been examined they could have been cross-examined about the alleged false incrimination of the Appellant in this crime at the instance of Abdul Rahim Khan, Irshad Ali Khan etc. who attested the inquest memo Ext. Ka. 5, as was the defence. In Debendra Chandra Sarkar v. Emperor, 1934 AIR(Cal) 458 it was pointed out that non-production of such witnesses who prepared the FIR tells heavily on prosecution as in their absence it was not possible to ascertain what exactly was the version of the informant at the time when the Ejahar was first put down in writing or whether the writing represented a genuine version given by the informant himself or was coloured by interference from other sources. Under the circumstances of the present case we have to respectfully endorse the same." 27. Learned counsel for the appellants, thereafter submitted that if the statements of various witnesses are perused then it would become clear that there are any number of contradictions in their statements. 28. PW-1 who was the father of the first informant has stated that when the incident had occurred and there was a hue and cry raised by the first informant and his son, then on the spot came Jai Mangal, Sriram, Kharpattu and Prem but of these so many eye-witnesses, only Sri Prem and Sriram came to the witness box and in the statements of these two witnesses, the statement of PW-1 gets contradicted. PW-1 had stated that he had got the FIR scribed by his son-in-law Jagdishwar. However, PW-4 has stated in paragraph 11 that the report was not written at the house of the first informant and in fact Shiv Nath, the first informant had gone to the police station where he had got it written by the Munshi present there and at the police station at Nandganj this witness says that there were present Shiv Nath, he himself, Jai Mangal, Sriram, Munni Lal, Jagdhari and a lot of other villagers but he does not mention the presence of Jagdishwar. Similarly, the PW-5 who had appeared in the witness box, had in fact differed from the statements as were given by PW-4 and PW-5 and in fact he had stated that he had not gone to the police station at all. Since paragraph 7 of the statement given by PW-5 was relied heavily by learned counsel for the appellants, the same is being reproduced here as under :- 29. Thereafter learned counsel for the appellants referred to the statements of PW-6 who was the Investigating Officer. He has stated that the PW-1 had stated that he had accompanied the injured to the hospital at Nandganj but the PW-6 has stated, in his cross-examination in paragraph 12, that he had reached the place of incident on 16.9.1982 at 7.30 AM and at that point of time, the PW-1 the first informant was along with him. Learned counsel for the appellants, therefore, states that the entire case of the prosecution becomes falsified in view of the fact that the PW-1 is stating that he was present at the hospital at Nandganj whereas PW-6 was stating that he was with him. 30. Thereafter learned counsel for the appellants has again pointed out to the statement of the PW-6 wherein he has stated that even though he commenced with the investigation on 16.9.1982 and it was well within the knowledge of everyone that the deceased had died on 16.9.1982 at 10.13 AM but the Investigating Officer has stated that he came to know about the death only on 18.9.1982 and thereafter he had converted the case from section 307 IPC to section 302 IPC and this was done by the GD Entry No.26 on 18.9.1982. Learned counsel for the appellants, therefore, states that the Investigating Officer when himself had not come to know about the death on the day it had actually occurred then it appeared that the investigation was done in a most slipshod manner and no reliance could be placed on it. To bolster his case, with regard to the fact that when the witnesses become unreliable, the prosecution story becomes unbelievable, learned counsel relied upon a judgment of this Court in Jagat Pal & Ors. vs. State of U.P. & Ors. reported in (2020) 7 ADJ 85 (All) and has specifically relied upon paragraph nos.19, 21, 24, 25, 26 and 27 and they are being reproduced here as under :- "19. The question is what will be impact if the testimony of fact witnesses is not in consonance with the FIR version and there is apparent improvement/contradiction as compared to the statement under section 161 CrPC? The law in respect of the statement given under 161 CrPC and improvement made therein by the witness during trial has been discussed by the Supreme Court in several decisions. In State of Rajasthan v Smt Kalki, AIR 1981 SC 1390 , while dealing with this issue, this Court observed as under: "In the depositions of witnesses there are always normal discrepancies, however honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person." 21. It has been held in Syed Ibrahim v State of AP, AIR 2006 SC 2908 ; and Arumugam v State, AIR 2009 SC 331 that the courts have to label the category to which a discrepancy belongs. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. It has been clearly laid down in State Represented by Inspector of Police, Tamilnadu, (2008) 15 SCC 440 that, in case, the complainant in the FIR or the witness in his statement under section 161 CrPC, has not disclosed certain facts but meets the prosecution case first time before the court during trial, such version lacks credence and is liable to be discarded. 24. In Sunil Kumar Shambhu Dayal Gupta Vs. 24. In Sunil Kumar Shambhu Dayal Gupta Vs. State of Maharashtra, 2011 (72) ACC 699 (SC), the Court noted on record that there had been a lot of improvements and contradictions in his statements. The witness deposed for the first time in the court during the trial, that when he went to examine the deceased, she was found in an unkept room/store room and that he was introduced to the deceased as a Psychiatrist and that the deceased had asked him whether he treated his wife in the same way as she had been treated by her husband. None of this was mentioned in his statement recorded by the police. Nor it had been recorded therein that the deceased had told him that she was harassed by the appellants and her ornaments were taken away/worn by her mother in law. More so, he had not stated in his police statement that the deceased was merely mentally disturbed and not suffering from a gross psychological problem. Nor had he stated therein that the deceased had told him that she was not having any faith in any of her family members and she was deprived of their love, affection and sympathy. It has been also noted that the witness did not state in his statement before the police that when he went to see the appellants, they had asked him whether he had brought gold ornaments or had come empty handed or that he was told that the deceased would not be allowed to live there and they would make her condition even more miserable. Such an improvement was made while deposing in court and no explanation could be furnished by him as to why such vital facts were not stated by him at the time of recording his statement under section 161 CrPC. Holding that such statements should be discarded being major contradictions and improvements, the Court laid down: "Such contradictions in his statements cannot be held to be mere explanations or elaborations of his version, but are tantamount to material contradictions or vital omissions. The Rules of appreciation of evidence requires that court should not draw conclusions by picking up an isolated sentence of a witness without adverting to the statement as a whole. The Rules of appreciation of evidence requires that court should not draw conclusions by picking up an isolated sentence of a witness without adverting to the statement as a whole. In such a fact- situation, it is not safe to rely on his testimony for the simple reason that he had made a lot of improvements/embellishments while deposing in court and vital contradictions exist with his earlier recorded statement. Thus, no reliance can be placed on his depositions to hold that appellants had ill-treated the deceased or that appellant No.3 had taken away/worn her ornaments or that she had been deprived of their love and affection or that she was not suffering from epilepsy etc." 25. The Supreme Court also found that the prosecution witnesses who were family members of the deceased, stated new facts which were not earlier mentioned either while lodging the FIR or in their statements recorded under section 161 and such allegations had been made for the first time while making statements before the court during trial. There were material contradictions and improvements, which were not mere elaborations of their statements already made. Therefore, the Court held: "Thus, their statements in regard to those allegations were liable to be discarded. While deciding such a case, the Court has to apply the aforesaid tests. Mere marginal variations in the statements cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited." 26. In Rohtash v State of Haryana, (2012) 6 SCC 589 , there had been major improvements/embellishments in the prosecution case and demand of Rs.10,000/- by the appellant does not find mention in the statements under section 161 CrPC, the same was held to be major improvement which effected the prosecution version adversely. In Tomaso Bruno Vs. State of Uttar Pradesh, (2015) 7 SCC 178 , the prosecution tried to establish the case against the accused by making improvements at various stages. In Tomaso Bruno Vs. State of Uttar Pradesh, (2015) 7 SCC 178 , the prosecution tried to establish the case against the accused by making improvements at various stages. The version of PW-3 that he saw both the accused hugging, kissing and cuddling each other and that Francesco Montis was sitting on the other side of the table appearing depressed was not stated to the investigating officer when he recorded his statement under section 161 CrPC. Likewise, version of the witness that on the fateful night, the second accused asked him 'not to disturb till tomorrow morning' was also not mentioned in his statement recorded by the investigating officer under section 161 CrPC. The Court held: "If the PWs had failed to mention in their statements u/s 161 CrPC about the involvement of an accused, their subsequent statement before court during trial regarding involvement of that particular accused cannot be relied upon. Prosecution cannot seek to prove a fact during trial through a witness which such witness had not stated to police during investigation. The evidence of that witness regarding the said improved fact is of no significance. 27. In Rambraksh v State of Chhatisgarh, AIR 2016 SC 2381 , PW3 Dasmatiya Bai in her complaint as well as her statement before the police has not told that she witnessed the occurrence during which both the accused assaulted her husband with lathi and Danda. Only in her testimony before the Court she claimed to have witnessed the occurrence. Pointing out that the High Court has rightly ignored the improved part of her testimony and placed no reliance on it, the Supreme Court laid down that improvement made by witness in his statement made in the Court during trial than what was made to the IO during investigation under section 161 cannot be relied upon." 31. Learned counsel for the appellants while taking the Court through the various statements has stated that the PW-1 had stated that there was blood lying on the spot. Learned counsel for the appellants while taking the Court through the various statements has stated that the PW-1 had stated that there was blood lying on the spot. He has further stated that the cause for the death had been stated to be excessive bleeding but he states that when the statement of the Investigating Officer (PW-6) is seen, he states that no blood was found at the place of incident and he, therefore, submits that it appears that the incident had occurred somewhere else and the place of incident as was shown as the sahan of Sohan was done only for the purpose of false implication. 32. Learned counsel for the appellant further submitted that when the incident had occurred, there was in fact no source of light. If the source of light had been there then the Investigating Officer at the time of the preparation of the site plan would have given out the place where the lantern was actually hanging. 33. Learned counsel for the appellants further submitted that if the Exhibit Ka-7 is perused, it becomes clear that it was a document which was prepared subsequent to the death of the deceased as the injured had, if the injury report is perused, suffered such injuries that it was not only difficult for a person to survive, it was absolutely impossible for a person even if he was breathing, to give a statement which was as long as had been recorded under section 161 Cr.P.C. by the Investigating Officer. Further learned counsel for the appellants states that the doctors PW-2 and PW-3 had also stated that at the time when the injured was brought, there was virtually no pulse and even if he was not declared dead, definitely he was not in a position to give any statement which could have been as long as was actually recorded in Exhibit Ka-7. Learned counsel for the appellants states that if the statements of doctors are seen then it becomes clear that not only was the pulse weak, in fact the pulse was not to be found at all. Learned counsel for the appellants states that if the statements of doctors are seen then it becomes clear that not only was the pulse weak, in fact the pulse was not to be found at all. Also, he submits that the Exhibit Ka-7 was a document which purportedly was recorded under section 161 Cr.P.C. and there was no signature of any independent witness on it specially when it was evident to the Investigating Officer that the person who was making that statement was not to live very long. Learned counsel for the appellants states that if the Investigating Officer had in fact on that date and at that particular time actually recorded the statement of the injured then he would have definitely taken the precaution to get the statement recorded in the presence of independent witnesses. Not having done that, learned counsel for the appellants states, that the statement which is exhibited as Ka-7 could not be relied upon at all. 34. Learned AGA Sri Rahul Asthana has, however, supported the judgment impugned in the instant Criminal Appeal. He has submitted that the case was based on the testimony of eye-witnesses and those statements of the eye-witnesses could not lightly be done away with. Learned AGA further submits that the fact that certain witnesses who had actually seen the incident had not appeared in the witness box, did not in any manner make the case of the prosecution weak. Learned AGA further submits that if the scribe and the chik writer was not produced then also it would not make any difference. Learned AGA submits that also if the reference of the Case Crime Number was not to be found in the chitthi majroobi and thereafter on the document by which the doctor at the District Hospital, Ghazipur had informed the police station Kotwali, District Ghazipur, then also it did not make any difference. He submits that if the documents which had accompanied the dead body for the post mortem also did not contain the FIR, it mattered little as the incident had occurred and if there was a rapat in existence then the case of the prosecution had to be believed and it could not be lightly thrown away. Learned AGA further submitted that the statement which was recorded of the injured and was exhibited as Ka-7 could always be read as a dying declaration. 35. Learned AGA further submitted that the statement which was recorded of the injured and was exhibited as Ka-7 could always be read as a dying declaration. 35. Having heard Sri Sandeep Kumar Dubey, learned Amicus Curiae and learned AGA Sri Rahul Asthana, we find that definitely there are any number of contradictions in the statements of PW-1, PW-4 and PW-5. PW-1 had throughout stated that along with him had gone PW-4 and PW-5. PW-1 had also stated that the FIR was got lodged by his son-in-law Jagdishwar. We find that Jagdishwar was an important witness who ought to have been produced from the side of the prosecution, specially in view of the fact that there were contradictions in the statements of PW-1 and PW-4. PW-1 had stated that Jagdishwar had accompanied him to the police station but PW-4 had stated in paragraph 11 that Jagdishwar was not present at the police station at all. Still further, we are of the view that PW-1 had stated that PW-5 had also accompanied him to the police station but in fact PW-5 had categorically denied that he had gone to the police station at Nandganj at all. Still further we find that the PW-1 had stated that he had in fact gone to the police station at Nandganj but the Investigating Officer, in his statement, has stated that at 7.30 AM, the Investigating Officer had gone to the site and he was accompanied by PW-1. All this makes the case of the prosecution absolutely doubtful. When the contradictions in the statements were to an extent that they could be called intense contradictions, then definitely the statements could not be believed. 36. Also, we find that there is a doubt created in the mind of the Court as to whether the FIR was at all lodged at the time it was alleged, was lodged. The communication (chitthi majroobi) by which the police station at Nandganj had referred the injured to the hospital does not contain any case crime number. Thereafter we find that the case crime number was missing on the communication which was sent by the doctor at the District Hospital at Ghazipur to the Kotwali, Ghazipur. Still further, we find that the panchayatnama also does not contain any case crime number. The panchayatnama mentions about some Rapat No.14 but it was definitely not an FIR. Thereafter we find that the case crime number was missing on the communication which was sent by the doctor at the District Hospital at Ghazipur to the Kotwali, Ghazipur. Still further, we find that the panchayatnama also does not contain any case crime number. The panchayatnama mentions about some Rapat No.14 but it was definitely not an FIR. Also, the documents which accompanied the dead body had all the documents but it did not have the FIR. In fact the doctor PW-2 who had conducted the post mortem had also stated that the chik FIR was not accompanying the dead body. The Investigating Officer has also stated in his statement that the FIR was not accompanying the dead body. All this definitely goes to show that the FIR was ante-dated and definitely it was not there at the time when it ought to have been made available. Also, the case crime number which was required to be compulsorily written on so many documents was missing. The only logical conclusion appears that the FIR was scribed much later and was thereafter put in the police record after the investigating agency and the first informant had decided whom to be made the accused in the case. 37. We also find that when the injured was taken from the hospital at Nandganj to the District Hospital at Ghazipur, it was not clear who had accompanied the injured. Nowhere in the statements has it been recorded as to who accompanied the injured. In fact even the communication which was sent by the doctor at District Hospital to the Kotwali, Ghazipur was sent by a ward-boy Bhim Singh and, therefore, the absence of any family member raises a doubt in the mind of the Court as to whether the family members were there at the point of time when the incident had occurred or whether an unknown body was carried from one place to another. Only subsequently when the informant appeared on the scene, the entire story was thereafter weaved. 38. In view of the fact that the documents and the statements do not inspire confidence, we are of the view that the accused cannot be convicted of the charges which were levelled against them. Only subsequently when the informant appeared on the scene, the entire story was thereafter weaved. 38. In view of the fact that the documents and the statements do not inspire confidence, we are of the view that the accused cannot be convicted of the charges which were levelled against them. The entire circumstances as have been narrated definitely raise a doubt in the mind of the Court as to whether the prosecution had in fact been able to prove the charges. 39. The appeal viz.-a-viz. appellant nos.2 and 3 had already abated on 31.1.2024 and 25.8.2022 respectively. The appeal viz.-a-viz. appellant no.1 stands allowed. The judgment and order dated 16.03.1983 passed by the Sessions Judge, Ghazipur in Sessions Trial No.45 of 1983 is set aside viz.-a-viz. the appellant no.1. Since the appellant no.1 is already on bail, he need not surrender. The sureties are, however, discharged. 40. We do appreciate the hard work done by the learned Amicus Curiae Sri Sandeep Kumar Dubey and provide that he would be paid a fee of Rs.25,000/- by the High Court Legal Services Authority. The Registrar General of this Court to see that this order for the payment of the fee to the learned Amicus Curiae is complied with.