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2024 DIGILAW 2249 (ALL)

Hakim v. State of U. P.

2024-10-24

ASHWANI KUMAR MISHRA, VIKAS BUDHWAR

body2024
JUDGMENT : Vikas Budhwar, J. 1. As these four appeals arise out of a common judgment and order dated 25.07.2019 passed by the Addl. Sessions Judge, Court No.3, Mathura, they are being heard together and are being decided by a composite order. 2. Criminal Appeal Nos. 6632 of 2019, 6501/2019 and 3104 of 2019 and Jail Appeal No.151 of 2019 are against the judgment and order dated 25.07.2019 passed by the Addl. Sessions Judge, Court No.3, Mathura in Sessions Trial nos. 803/2013 and 344/2014, by which the appellants have been convicted under Sections 147, 148, 302 IPC read with Section 149 IPC awarding imprisonment for life with a fine of Rs. 25,000/-and a default sentence of one year three months. FACTS 3. The prosecution story in brief is that on 06.01.2013, Bacchu Singh (PW-1) lodged a First Information Report in the Police Station-Refinery, Mathura against the appellants and one Ravi son of Kishani alleging that on 06.01.2013, when his brother Suresh Chandra had gone in the morning hours to answer the nature’s call, he was followed by the PW-1 Bacchu Singh, brother of the deceased, Vikram (PW-2) son of the deceased and Lauki, the father of the deceased and when the deceased reached the agricultural field, where mustard (sarson) was sown, then with the pre-determined mind the accused Hakim Singh son of Girraj (A-1), Lauki son of Girraj (A-2), Ajay @ Ajju son of Pooran (A-3), Kishani son of Patiram @ Patti (A-4), Hakim son of Niranjan Singh (A-5) and Ravi son of Kishani (A-6) and who were hiding behind the mustard crop at 08:30 in the morning resorted to gun-shot firing and also by using Farsa and knife, they inflicted injuries on account whereof Suresh Chandra (deceased) succumbed to the injuries and died. The case was registered by the police as Case Crime no.6 of 2013, under Sections 147, 148, 149 IPC read with Section 302 IPC. 4. Post lodging of the FIR, the Investigating Officer was appointed, inquest report was prepared, post mortem was done and after investigation, charge sheet came to be filed against the accused A1, A2, A3, A4 and A5 under Section 147, 148, 149 and 302 IPC on 12.04.2013. However, it has been reported that after filing of the Crimial Appeal No.5907 of 2019, Kishani (A-4) has died. With respect to accused A-5 Kishani, he was found to be juvenile. However, it has been reported that after filing of the Crimial Appeal No.5907 of 2019, Kishani (A-4) has died. With respect to accused A-5 Kishani, he was found to be juvenile. After taking cognizance of the charge sheet, the case was committed to the Court of Sessions on 18.05.2013, 29.11.2013 and 04.04.2014 and the charges were framed against the appellants under Sections 147, 148, 302 IPC read with Section 149 IPC. 5. During trial, the prosecution examined as many as 7 witnesses, namely Bacchu Singh (informant-PW-1), Vikram (PW-2, witness of fact), Bare Lal (PW3) author of the inquest, Dr. K.K. Gupta (PW-4), witness, who conducted post mortem, Surendra Singh, Head Moharrir (PW-5), who lodged the FIR and Ram Kishan Yadav (PW-6), first Investigating Officer, who conducted investigation for the period from 06.01.2013 to 08.01.2013 and Ashok Kumar (PW-7), second Investigating Officer, who conducted investigation from 12.01.2013 till the submission of charge sheet. Bhagwan Singh son of Lacchi Ram also stepped into the witness box as Defence Witness (DW-1). After prosecution evidence was closed, the Trial Court recorded the statement of the appellant under Section 313 CrPC. 6. All the appellants denied the allegations leveled against them, and stated that they were falsely implicated in the said criminal case. The Trial Court found them guilty and sentenced them under Section 147, 148, 302 IPC read with Section 149 IPC. SUBMISSIONS ADVANCED ON BEHALF OF APPELLANTS 7. Sri Araf Khan, learned counsel for the appellants has sought to argue that the appellants have been falsely implicated in the criminal case, as they are innocent. Elaborating the said submission, it is submitted that even if the prosecution theory is taken to its face-value, then too the appellants cannot be said to be either present at the place of the incident and further the presence of the PW-1 is itself doubtful. Submission is that as per the deposition of Bacchu Singh (PW-1) and PW-2 Vikram, the incident took place in the morning hours at about 08:30 A.M. in the month of January and the place, whereat the incident took place, there was an agricultural field, over which mustard crop was sown and the crop was about 6 ft. Submission is that as per the deposition of Bacchu Singh (PW-1) and PW-2 Vikram, the incident took place in the morning hours at about 08:30 A.M. in the month of January and the place, whereat the incident took place, there was an agricultural field, over which mustard crop was sown and the crop was about 6 ft. and the allegation is that the accused were hiding themselves behind the mustard crop and when the deceased, Suresh Chandra entered the agricultural field, then they resorted to gun-shot fire and inflicted injuries with knife and Farsa. Contention is that as per the deposition of the prosecution witnesses, the PW-1, PW-2 and Lauki, who happens to be the father of the deceased and PW-1 and the grand-father of the PW-2 were about 20-30 steps behind the deceased, thus it was not possible to identify the assailants who were hiding behind the mustard crop. 8. It is also contended that there are material contradictions in the testimony of the PW-1 and PW-2, which shows that the FIR is ante-time, particularly when during the cross-examination of Bacchu Singh by the defence, it was deposed by the PW-1 that he had gone to the Police Station and thereafter along with Sub-Inspector and the Police Force, they came to the place of incident, where the dead body of the deceased was lying in the agricultural field and the police officials waited there for half an hour and took the corpus to the Police Station-Refinery, where PW-1 waited for half an hour, whereafter the Sub-Inspector procured the signature on the FIR and even the inquest papers were prepared inside the police station, whereas PW-2 Vikram in his cross-examination by the defence deposed that the Sub-Inspector sent the cadavers to the post-mortem house from the place of incident and at the same time, PW-2 was taken to the Police Station and thereafter the FIR was lodged. It is thus contended that the FIR was lodged after post-mortem and the said fact also stands fortified as the details of the FIR are not mentioned in the post-mortem report. 9. Learned counsel for the appellant has also argued that PW-1 has also deposed in the cross-examination that only blank papers for the purpose of preparation of panchayatnama were offered to him and he signed on the blank papers. 9. Learned counsel for the appellant has also argued that PW-1 has also deposed in the cross-examination that only blank papers for the purpose of preparation of panchayatnama were offered to him and he signed on the blank papers. It is thus contended that the very basis for holding the appellants to be guilty of commission of the said offence is not borne out from the record and it is a clear case of false implication. With respect to the conduct of the prosecution in not asking for any help from the villagers, it is contended that as per the deposition of the prosecution witnesses, they waited for one and half hours at the place of the incident and did not bother to call anybody for help despite the fact that the place of incident was just 100 meters away from the house of the appellants which itself shows that a false prosecution case has been cooked up. 10. Additionally, it has also been argued that the hollowness of the prosecution story is further borne out of the fact that though it is the case of the prosecution that at the time of occurrence of the said incident, the PW-1 and PW-2 and Lauki were about few steps away from the deceased and they were attacked by resorting to gunshot fire, but the said allegation was at no point of time reported to the police when the statements were recorded under Section 161 CrPC and at the time of the statement under Section 164 CrPC, improvements have been made just in order to falsely implicate the appellants. It is thus prayed that the judgment and order of the Trial Court convicting the appellants be set aside and the appeal be allowed in toto. SUBMISSIONS OF THE COUNSEL FOR THE STATE (A.G.A.) & INFORMANT 11. Countering the said submissions, Sri Vikas Goswami, learned A.G.A. as well as Shri Anil Kumar Pandey, learned counsel for the informant have submitted that the Trial Court has rightly convicted the appellants. It is submitted that there was ample evidence available on record including the testimony of the prosecution witnesses, which clearly proves that the appellants had committed the offence. Countering the said submissions, Sri Vikas Goswami, learned A.G.A. as well as Shri Anil Kumar Pandey, learned counsel for the informant have submitted that the Trial Court has rightly convicted the appellants. It is submitted that there was ample evidence available on record including the testimony of the prosecution witnesses, which clearly proves that the appellants had committed the offence. Argument is that it is not a case, wherein there was any fog in the morning hours, when the incident took place, as it has borne out from the record that the prosecution witnesses have come up with the stand that the weather was clear and the distance between the place of incident and the PW-1 and PW-2, who had witnessed the said incident was 10-20 steps. Thus, it is highly inconceivable that there can be any mistake in identifying the assailants. They further submit that there happens to be motive behind commission of the offence as the accused bore enmity, particularly, when the father of the accused A1 and A2 being Girraj was murdered by the deceased, Suresh and FIR came to be lodged. Thus, the same became the motive behind the commission of offence. 12. Additionally, it has been submitted that in case, there was any inconsistency in the deposition or defect in the investigation, the same would not render the case of the prosecution unreliable as what is to be seen are the evidences available on record, which even otherwise in the facts of the present case points out involvement of the accused in the commission of the offence. It is thus prayed that the appeals be dismissed. 13. In order to establish its case, the prosecution has adduced documentary and oral evidence. DOCUMENTARY EVIDENCE 14. The documentary evidence consists of: - (i) Written Report (Exbt. Ka.1) (ii) Panchayatnama (Exbt. Ka.2), (iii) Police Form No.379 (Exbt. Ka.3), (iv) Letter written to Chief Medical Officer, Mathura (Exbt. Ka.4) (v) Police Form No.13 (Exbt. Ka.5), (vi) Letter written to Reserve Inspector, Police Line, Mathura (Exbt. Ka.6) (vii) Post Mortem Report of deceased Suresh Chand (Exbt. Ka.7) (viii) Chik FIR (Exbt. Ka.8) (ix) Nakal Rapat No.20 Time: 9:40 A.M. (Exbt. Ka.9) (x) Plain soil and blood stained paper no.4A/7 (Exbt. Ka.10) (xi) Three empty cartridges 315 bore Paper no.4A/8 (Exbt. Ka.11) (xii) Site-plan Paper no.4A/3 (Exbt. Ka.12) (xiii) Charge Sheet No.42/2013 (Exbt. Ka.13) and (xiv) Charge Sheet no.42A/13 (Exbt. Ka.7) (viii) Chik FIR (Exbt. Ka.8) (ix) Nakal Rapat No.20 Time: 9:40 A.M. (Exbt. Ka.9) (x) Plain soil and blood stained paper no.4A/7 (Exbt. Ka.10) (xi) Three empty cartridges 315 bore Paper no.4A/8 (Exbt. Ka.11) (xii) Site-plan Paper no.4A/3 (Exbt. Ka.12) (xiii) Charge Sheet No.42/2013 (Exbt. Ka.13) and (xiv) Charge Sheet no.42A/13 (Exbt. Ka.14) TESTIMONY OF PROSECUTION WITNESSES: 15. PW-1: Bacchu Singh, the informant has been examined as PW-1. He is the brother of the deceased. PW-1 in his examination stated that on 06.01.2023, his brother, Suresh Chandra in order to answer the nature’s call left his house and the PW-1 along with PW-2 Vikram and his father Lauki left after few minutes and when the deceased reached the agricultural field, where the mustard crop was standing owned by Girraj son of Lakshman Singh, then the accused A1 to A-6 resorted to gunshot firing and also inflicted injuries by knife and Farsa and the deceased succumbed. In the cross-examination by the defence on 31.10.2014, he has stated that the deceased had left the house for answering the nature’s call 1-2 minutes earlier and when he along with PW-2 and Lauki were going to answer nature’s call, then several villagers were also present answering the nature’s call. The distance between the PW-1 and the deceased was 20 steps and the accused A-1 to A-6 were hiding behind the mustard crop resorted to gunshot firing and inflicted injuries. The PW-1 also deposed that when after receiving the injuries, deceased fell down, then PW-2 Vikram and his father Lauki caught hold of the deceased and their hand and clothes got stained with blood. However, the sample of the blood-stained clothes was not taken by the police and the clothes was thereafter washed. It is also stated that the report was lodged in the police station and the scribe to the said report was Rajendra Singh who was the brother-in-law of the deceased, he was not called, however, he arrived a day prior to the date of incident and he was staying in the house and he owned a mobile phone, but he did not come to the place of incident and he remained in the house. The police was not informed through the mobile phone of Rajendra and so far as the mobile phone, which was with the deceased, the same did not have any balance. The police was not informed through the mobile phone of Rajendra and so far as the mobile phone, which was with the deceased, the same did not have any balance. The accused were armed with knife and the Pharsa, but it is not known as to who was holding which weapon. PW-1 stated that he had heard as many as six gunshot fires simultaneously. It was also stated that along with Sub-Inspector, the police force reached the place of incident. The Investigating Officer did not prepare the site-plan in the presence of the PW-1 and the Investigating Officer waited at the place of incident for half an hour and thereafter took the dead body to the Police Station, Refinery where PW-1 along with others waited for one hour and then the written report was signed by PW-1. The inquest was prepared, which was signed in the Police Station. PW-1 showed his ignorance to the fact as to whether he signed inquest or not at the time of sealing the dead body and thereafter, the dead body was sent for post mortem. PW-1 further stated that about 3-4 gunshot fires were made upon PW-1. PW-2 and his father Lauki, who were about 30 steps away from the deceased. However, the same was not reported to the police and no statement to the said effect was made under Section 161 CrPC. He also stated that when the inquest report was forwarded to him, the same was blank on which his signatures were taken. Thereafter signatures of the witnesses to the inquest report, Pooran, Bhoori, Banke Bihari and Siyaram was also taken that too on blank papers. 16. In the cross-examination of the PW-1 by the defence on 26.11.2014, he has stated that Rajendra Singh son of Udai Singh, Scribe of the written report resides in Barsane, which is 50-55 kilometers from the police station and the distance of police station from the place of incident is 10 kilometers. He further stated that PW1 along with his younger brother Than Singh, Banke Bihari had gone to Police Station on a motorcycle and when the police came to the place of incident, then the dead body was taken to the Police Station. He further stated that PW1 along with his younger brother Than Singh, Banke Bihari had gone to Police Station on a motorcycle and when the police came to the place of incident, then the dead body was taken to the Police Station. He further deposed that Siyaram had gone to the police station twice, firstly at the time of the loding of the First Information Report and secondly, for signing the inquest report in the police station. PW-1 while answering a question posed to him deposed that after postmortem, the Investigating Officer asked the alleged witnesses to the inquest to sign the inquest report. He further stated that place of the incident where the accused had hidden themselves, 5-6 feet of mustard crop was standing. PW-1 also stated that another motive for enmity is that Kishan Dei mother of PW-1 had entered into an agreement on 07.12.2010 with the accused Hakim S/o Niranjan, however, the sale deed could not be executed and on account of nonpayment of interest, seeds of enmity stood sown. PW-1 in his cross-examination by the defence on 27.11.2015 deposed that the place of incident is about 100 meters from the house wherein they reside and at the time when the incident took place accused Kishani was holding Farsa and Ravi knife. Further in his cross-examination, he has come up with the stand that when he had gone for answering the nature’s call, no villager was found and they were about 20-25 steps away from the deceased when the incident took place. 17. PW-2:-Vikram son of Suresh got himself examined as PW-2. He in his examination-in-chief on 03.09.2016 had deposed that the accused A1-A6 had murdered his father and he also with PW-1 and his grandfather Lauki were behind the deceased, who had gone to answer the nature’s call. In his cross-examination by the defence on 23.09.2016, he deposed that at the place of incident, there existed 3 and 1/2 feet mustard crop and his father had gone to answer nature’s call 1 to 2 minutes earlier and he was 20-25 steps behind the deceased. He in his cross-examination further deposed that the Investigating Officer had sent the cadevers to the post-mortem house, directly from the place of incident and thereafter PW-2 along with others had gone to the police station and thereafter the FIR was lodged. He in his cross-examination further deposed that the Investigating Officer had sent the cadevers to the post-mortem house, directly from the place of incident and thereafter PW-2 along with others had gone to the police station and thereafter the FIR was lodged. Further in his cross-examination by the defence, PW-2 deposed that his maternal uncle Rajendra Singh lives about 50-60 kilometers away and police arrived after a period of 1 to 1 and half hours at the place of incident and they waited for the said period. He also deposed that certain blank papers were provided to him and he was required to sign them, which he signed. 18. PW-3:-Bare Lal is the author of the inquest. He in his examination-in-chief has stated that he had prepared the inquest report on 06.01.2013 at the place of incident. Information was received about the commission of crime at 09:40 A.M. and the proceeding for making the inquest report started at 10:45 A.M. and it concluded at 11:40 A.M. In his cross-examination, he deposed that name of the accused does not find mention in the inquest report. He in his cross-examination dated 06.09.2017 submitted that he had not drawn the samples of blood stained soil and he does not remember that at the place of incident or near the dead body any cartridge or bullets were found and he also does not remember that he had taken photos of the footsteps of the accused. 19. PW-4:-Dr. K.K. Gupta had conducted the post mortem. According to him, as many as six injuries were sustained by the deceased about 8 hours earlier and the cause of death is gunshot injuries as well as injuries by hard and blunt object. The autopsy surgeon found following anti-mortem injuries to be the cause of death: “1. Firearm entry wound 2.5 cm x 1.5 cm on the chest in the front portion. Contusion 2 cm x 1 cm in the right armpit in which the bullet was found stuck inside. 2. Firearm entry wound 1 cm x 0.5 cm deep on the left side of the chest. 3. Incised wound 1 cm x 2 cm deep to bone and incised wound 1 cm x 1 cm deep to bone in the back of the skull. 4. Incised wound 1 cm x 1 cm deep to bone on left tample. 5. 2. Firearm entry wound 1 cm x 0.5 cm deep on the left side of the chest. 3. Incised wound 1 cm x 2 cm deep to bone and incised wound 1 cm x 1 cm deep to bone in the back of the skull. 4. Incised wound 1 cm x 1 cm deep to bone on left tample. 5. Incised wound 6 cm x 2 cm deep to bone on the top of the skull. 6. Lacerated wound 1 cm x 0.5 cm on the right ring finger.” 20. PW-5:-Surendra Singh, Head Moharrir in his cross-examination stated that he had recorded the contents of the written report in the G.D. and has proved the Chik report. He is a formal witness. 21. PW-6:-Ram Kishan Yadav, the first Investigating Officer, in his examination-in-chief on 06.07.2018 has deposed that on the pointing out of the PW-1 the first informant, he prepared the site-plan. He in his cross-examination by the defence submitted that it is true that for lodging the FIR no person by the name of Vikram or the Scribe, Rajendra had come to the police station, as their name does not find place in the G.D. However, Bacchu (PW-1) had come to lodge the FIR. He in his cross-examination further deposed that while recording of statement under Section 161 CrPC, the PW-1 and PW-2 did not make any disclosure that they also confronted gunshot fires from the accused at the time of the incident. He further deposed that during the investigation he had not perused the inquest report. He further deposed that while preparing the site-plan, he had not marked the places where on the pointing of the PW-1, the accused are stated to have been stationed while committing crime. He also deposed that he has not recorded the statement of any independent witnesses, who had witnessed the said incident. 22. PW-7:-Ashok Kumar, the second Investigating Officer, in his examination-in-chief has stated that he had taken the statement of PW2 Vikram on 19.03.2013, prior to it he was not available. He further deposed that he has not taken any statement of any other person, as nobody had witnessed the said incident. TESTIMONY OF DEFENCE WITNESS 23. DW-1:-Bhagwan Singh son of Lacchi Singh appeared as DW 1. He further deposed that he has not taken any statement of any other person, as nobody had witnessed the said incident. TESTIMONY OF DEFENCE WITNESS 23. DW-1:-Bhagwan Singh son of Lacchi Singh appeared as DW 1. According to him, on 06.01.2013 at about 6:00 A.M. to 07:00 A.M. in the morning, he along with Ajju after hearing noises of firing came out of the house. He further stated that Ajay @ Ajju, A-2 has been falsely implicated. He in his cross-examination stated that it is wrong to say that the accused had committed the crime. ANALYSIS 24. We have given a thoughtful consideration to the arguments of the rival parties and have perused the record carefully including the trial court records. 25. The First Information Report alleges that the accused-A1 to A6 resorted to gunshot firing and extended injuries to the deceased by Knife and Farsa resulting in the death of the deceased. The PW1, Bachchu Singh and PW2, Vikram claim themselves to be the eyewitness of the said incident. Though it is alleged that along with them, Lauki, who happened to be the father of the deceased and PW1 and grandfather of PW 2 was also present and he too witnessed the said incident but he did not enter into the witness box on behalf of the prosecution. The incident is stated to have occurred at about 8:30 AM in the morning on 06.01.2023 when the deceased had gone to answer nature’s call and when he reached the agriculture field of Girraj son of Lakshman Singh then the accused A1 to A6 who were hiding behind the mustard crop, came out of the bushes and resorted to gunshot fires and also inflicted injuries by Farsa and Knife. As per the deposition of the PW1 and PW2, they identified the accused-A1 to A6 as the distance between the accused and PW1-PW2 was just 20-30. These witnesses had also gone to answer nature’s call after a gap of 1-2 minutes. 26. The first and foremost question which arises for determination is as to whether the first information report is anti-timed or not. In order to address the said issue, it would be apposite to have a bird's eye view of testimony of PW1 and PW2 who are the star witnesses of prosecution and have witnessed the incident. 26. The first and foremost question which arises for determination is as to whether the first information report is anti-timed or not. In order to address the said issue, it would be apposite to have a bird's eye view of testimony of PW1 and PW2 who are the star witnesses of prosecution and have witnessed the incident. PW1 in his cross examination dated 31.10.2014 has deposed that he had gone to the police station whereafter the investigating officer along with police force came to the place of the incident where the dead body was lying in the field. As per his deposition, the police waited for half an hour at the place of the incident and took away the body of the deceased to the Police Station, Refinery where the PW1 waited for an hour and the first information report was lodged and thereafter inquest was conducted and his signatures were taken on the blank papers and thereafter the dead body was sent for the postmortem. PW2-Vikram in his cross-examination by the defence on 23.09.2016 has however deposed that the dead body of the deceased was sent directly from the place of the incident by the police for postmortem and thereafter when the PW2 along with PW1 came to the police station then the first information report was lodged. The depositions of PW1 and PW2 clearly go to show that the first information report was lodged after the dead body was taken from the place of incident and brought to the Police Station. The aforesaid circumstances leads to the inference that only after noticing the injuries and postmortem that the first information report came to be lodged on the written report made by the PW1, scribed by Rajendra who happens to be the brother-in-law of the deceased. The F.I.R. however reveals that the written report was made first, by then other processes had not commenced i.e. inquest and postmortem had not taken place. The manner and stage at which F.I.R. came to be lodged is clearly contradicted by the prosecution witnesses of fact. The possibility of F.I.R. having been lodged after deliberation and consultation cannot be ruled out. The argument that the F.I.R. is anti-timed cannot be brushed aside. 27. The manner and stage at which F.I.R. came to be lodged is clearly contradicted by the prosecution witnesses of fact. The possibility of F.I.R. having been lodged after deliberation and consultation cannot be ruled out. The argument that the F.I.R. is anti-timed cannot be brushed aside. 27. The Hon'ble Apex Court in the case of Meharaj Singh v. State of U.P. 1994 (5) SCC 188 in para 12 has observed as under: "FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at h the trial. The object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses if any. Delay in lodging the FIR often results in embellishment, which is aa creature of an afterthought. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of coloured version or exaggerated story. With a view to determine whether the FIR was lodged at the time it is alleged to have been recorded the courts generally look for certain external checks." 28. Recently in Mohd. Muslim v. State of Uttar Pradesh, 2023(7) SCC 350 , the issue of anti-timing of the FIR was also discussed and it was held as under: "In Meharaj Singh v. State of U.P., 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." 29. Apparently, we also find that there is no reference to the first information report in the Postmortem report. This fact also supports the inference that F.I.R. came into existence, later. Reliance has also been placed upon decision in the case of Balvir Singh v. State of Madhya Pradesh, 2019 (15) SCC 599 that mere non-mention of the credentials of the FIR in the inquest report will not make the prosecution theory doubtful. It has been observed as under: "FIR is a printed format which contains Column 11-"Inquest Report". Column 11 of the FIR, of course, contains Inquest No. 10/98. It has been observed as under: "FIR is a printed format which contains Column 11-"Inquest Report". Column 11 of the FIR, of course, contains Inquest No. 10/98. Merely because the FIR contains inquest number, it cannot be said that the FIR was registered subsequent to the inquest. In State of U.P. v. Ram Kumar, the Supreme Court held that: (SCC p. 619, para 13.4) "13.4. … The mere fact that on the inquest report FIR number was written by different ink cannot be the basis for observing that the FIR was ante-timed or antedated." On being questioned, Investigating Officer S.D. Khan (PW 14) has stated that he has registered Inquest Report No. 10/98 with regard to the death of deceased Mohan under Section 174 CrPC. As seen from the evidence of PW 2, after the occurrence, dead body of Mohan was lying twenty yards away from the road and he went to the police station to lodge the complaint via Lallu fourway and Sarvodya fourway. The inquest being done at the spot and FIR being registered at the police station under Sections 302, 506-B, 341, 294, 323, 34 IPC and Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, mention of inquest number in the FIR does not affect the prosecution case nor does it affect the credibility of the eyewitnesses." 30. There is no quarrel to the proposition of law as laid down in the above-noted decision but what is to be seen in the present case is the overall surrounding circumstances which makes the prosecution theory doubtful regarding the timing of lodging F.I.R. for variety of reasons. There is no quarrel to the proposition of law as laid down in the above-noted decision but what is to be seen in the present case is the overall surrounding circumstances which makes the prosecution theory doubtful regarding the timing of lodging F.I.R. for variety of reasons. Firstly, the depositions of PW1 and PW2, as noticed above shows that the first information report had been lodged after the dead body was picked up from the place of the incident and brought to the police station and after noticing the injuries during inquest and the postmortem the first information report came to be lodged, whereas the prosecution case is otherwise, secondly, absence of any reference of the FIR in the postmortem, thirdly, the fact that the inquest was prepared in the police station and, fourthly, the fact that the PW1 in his cross-examination dated 31.10.2014 had deposed that in the police station blank papers were offered to him for signing the inquest report and further at that time when the PW1 was required to sign the inquest report, it did not bare the signatures of the eye-witnesses to the inquest report. Likewise, PW2 in his cross-examination dated 23.09.2016 had also deposed that he was required by the police to sign on certain blank papers in the police station. The overall circumstances only leads to a conclusion that the story set up by the prosecution implicating the accused is not only doubtful but also sans credibility. 31. Apart from the same, another question which arises for consideration is that by whom and by which mode the police was informed about the occurrence of the incident. The first information report is stated to have been lodged in the police station on 06.01.2023 at 9:40 AM by PW1, Bachchu Singh on a dictation being made to Rajendra who happened to be the brother-in-law of the deceased. PW1, Bachchu Singh in his cross-examination dated 31.10.2014 had deposed that at the time of the incident on the fateful day only the deceased was having a mobile phone, however, there was no balance available in the mobile phone. The scribe of the first information report, Rajendra Singh was not present at the place of the incident, however, he was at that point of time in the house of the PW1 which is 100 meters from the distance of the place of the incident. The scribe of the first information report, Rajendra Singh was not present at the place of the incident, however, he was at that point of time in the house of the PW1 which is 100 meters from the distance of the place of the incident. He specifically deposed that he had not called the police through the mobile phone of Rajendra. PW2 in his cross-examination dated 13.04.2017 deposed that he is not aware as to who informed the police and he was also present at the place of incident and he had gone to the police station only when the dead body had been sent for postmortem. Besides, the same, the statement of PW1 or PW2 does not spell out that the police was informed through the mobile phone of any third person. Thus, in view of the depositions of the prosecution witnesses, it becomes a mystery as to how and by which mode, the police officials were informed about the incident. 32. It is, thus, not emerging from the deposition of the prosecution witnesses as to how the scriber to the FIR, Rajendra Singh was informed to be present in the police station for taking dictation for lodging of the first information report. Interestingly, the PW6, Ram Kishan Yadav who was the (first) investigating officer who had conducted investigation from 06.01.2013 to 08.01.2013 in his cross-examination dated 06.07.2018, after perusing the GD report had deposed that neither name of PW2 nor Rajendra was mentioned in the GD which may suggest that they had come for the purposes of lodging of the first information report. Not only this, the prosecution for the reasons best known to them, did not produce Rajendra to enter into the witness box to support their prosecution theory. Rajendra could have been confronted with inconvenient questions, which the prosecution apparently wanted to avoid. 33. Notably, PW1 in his cross-examination dated 26.11.2014 in response to a question being posed to him by the defence deposed that after postmortem, the investigating officer asked the alleged witness to the inquest to sign the inquest report. The overall circumstances as apparent from the testimony of the PW1 and PW2 creates a serious doubt upon the prosecution theory and the manner in which the things have been tailored so as to create evidence against the accused. 34. The overall circumstances as apparent from the testimony of the PW1 and PW2 creates a serious doubt upon the prosecution theory and the manner in which the things have been tailored so as to create evidence against the accused. 34. Nonetheless, what is relevant is also the conduct of the PW1 and PW2 in depicting their presence, which is hard to believe. It is the consistent stand of the PW1 and PW2 that they had witnessed the said incident. The distance between the deceased and the PW1 and PW2 is hardly 20-30 steps. The PW1 and PW2 are also consistant in their stand that they had identified the assailants. Though according to them, gunshots were fired not only on the deceased but they too were confronted with gunshot firings. The said fact came to be deposed by the PW1 in his cross-examination dated 31.10.2014 alleging that when they tried to save the deceased then firing was made upon them. This fact was not either reported in the first information report nor in the statements under Section 161 CrPC. The only excuse taken for not reporting the said fact either in the FIR or in the statement under Section 161 of the CrPC was that they did not remember the said incident. In the opinion of the Court, it is highly inconceivable and improbable that such a vital fact would not be disclosed to the police, particularly, when the PW1 and PW2 could identify the assailants and they were few steps away from the deceased and on account of firing on them, they could not help or save the deceased, who happened to be a blood relative. The said conduct of the prosecution witnesses, PW1 and PW2 itself creates a doubt upon the prosecution theory with regard to their presence at the place of incident and the manner of incident reported by them. 35. In Mohammad Mulsim (supra), the Hon’ble Apex Court while examining the conduct and behaviour of the son and the nephew of the deceased victim, who were eye-witnesses to the incident, observed as under:- “17. The deposition of Salim Ahmad (PW-1) reveals that he was at a distance of 20 steps from his father but even then he could not rush to save his father from the assault and could not even caught- hold of any of the accused appellants who conveniently escaped through the jungle. ...” 36. The deposition of Salim Ahmad (PW-1) reveals that he was at a distance of 20 steps from his father but even then he could not rush to save his father from the assault and could not even caught- hold of any of the accused appellants who conveniently escaped through the jungle. ...” 36. To be precise, it is nothing but a classic case of improvement. The Hon'ble Apex Court in Yudhishtir v. The State of Madhya Pradesh, 1971 (3) SCC 436 in para 11 observed as under: “The evidence given by P.Ws. 1 and 6 before the Court was sub-stantially in variance with the version given by them in the statements given to the police at the earliest occasion. Before the Court they have considerably improved their statements. Omissions in the statements to the police were of a of a very serious nature making their evidence before the Court false and unacceptable.” 37. Another issue which is of primary importance is that PW-1 in his cross-examination dated 31.10.2014 stated that as soon as the assailants/ accused left the place of incident, they ran towards the deceased who was lying in the agriculture field. PW-2 Vikram and his father Lauki caught hold of the deceased on account whereof their hands and clothes were stained with blood. However, the investigating officer did not draw the samples of the blood-stained clothes and the clothes were thereafter washed. Non-drawing of the samples of bloodstained clothes and allowing them to be washed itself indicates that the manner in which the investigation took place is not only suffering from infirmity but also actuated by flaws. On a cross-examination of PW7, the first investigating officer, Ram Kishan Yadav, he deposed on 06.07.2018 that for the very first time the statement of PW2-Vikram was taken on 19.01.2013 after a period of about 13 days from the date of the incident. The reasons shown by him in doing so is that prior to 19.01.2013, PW2-Vikram was not available. The aforesaid circumstances leads to the inference that a well-deliberated prosecution theory was allowed to be developed so as to implicate the accused. The reasons shown by him in doing so is that prior to 19.01.2013, PW2-Vikram was not available. The aforesaid circumstances leads to the inference that a well-deliberated prosecution theory was allowed to be developed so as to implicate the accused. Though on a cross-examination of PW6, Ram Kishan Yadav, the first investigating officer deposed that he had prepared the site plan on the pointing out of the PW1, Bachchu Singh, however, PW-1 Bachchu Singh clearly deposed in his cross-examination dated 31.10.2014 that the site plan was not prepared in his presence by the investigating officer. More so, the investigating officer, PW6 in his cross-examination dated 06.07.2018 has deposed that though he had prepared the site plan but he had not shown the places whereat the accused were standing at the time of the incident and further, according to him, he was not able to record the statement of any independent witness. 38. Certainly, a defective investigation may not demolish the prosecution theory but overall circumstances needs to be considered depending upon the facts and circumstances in order to weigh the import and the impact of the defective investigation. We find that there are various shortcomings not only in the investigation conducted by the investigating officer but also the fact that the prosecution theory itself appears doubtful for holding appellant's guilty of commission of the charged offence. What is required is a threadbare analysis of the prosecution theory in light of the oral and documentary evidence on record. 39. Apparently, PW3, Bare Lal, author of the inquest in his cross-examination dated 06.09.2017 has deposed that at the time of the inquest, he did not find any cartridges near the dead body of the deceased. Not only this, there is nothing on record to suggest that any gunshot was fired by the accused upon the PW1, PW2 and Lauki, as no evidence worth-consideration has been brought on record to show that any firing was done upon them. 40. Apart from the above, the entire prosecution theory hinges upon the fact that the deceased had left for answering the nature’s call 1/2 minutes prior to the PW1 and PW2 and Lauki and they were at a distance of 20-30 steps. The deceased was also staying and had slept with them in their house. 40. Apart from the above, the entire prosecution theory hinges upon the fact that the deceased had left for answering the nature’s call 1/2 minutes prior to the PW1 and PW2 and Lauki and they were at a distance of 20-30 steps. The deceased was also staying and had slept with them in their house. However, PW1-Bachchu Singh in his cross-examination on 23.01.2016 deposed that though PW1, Bachchu Singh was living in the new house but the deceased for the past 3 years was living in the old house. The said testimony of the PW1 also creates a doubt upon the presence of the PW-1 and PW-2 who claim to be the eye-witnesses to the said incident. 41. Nonetheless, what is more amazing is the fact that on the one hand in the cross-examination of the PW1, Bachchu Singh dated 31.10.2014, he had deposed that he was not aware as to which of the accused was holding knife and farsa but an improvement was made in the cross-examination on 27.11.2015 that Kishani was holding farsa and Ravi was having a knife. The testimony of the PW1 itself depicts that improvements have been sought to be made just in order to create evidence against the accused. Normally, much weightage is not to be given to minor improvements but what is to be seen is the over all circumstances cumulatively in order to derive an opinion as to whether the prosecution theory is doubtful or not. 42. Plainly and simply, right from the inception, there appears to be material contradictions not only in the oral testimony of the proseuction witnesses but also the first information report and inquest, which goes to suggest that the entire prosecution theory is botched up sans any credibility. 43. As regards the theory propounded by the prosecution that since the accused bore enmity with the deceased and the same became the basis of commission of the offence is concerned, the law is well settled in this regard that enmity is a double edged weapon. In Balram vs. State of Madhya Pradesh, 2023 Livelaw (SC) 960, the Hon’ble Apex Court observed as under: - “17. As already discussed herein above, previous enmity is a double edged weapon; on the one hand it provides the motive, whereas on the other hand, the possibility of false implication cannot be ruled out.” 44. Recently in Nand Lal Vs. In Balram vs. State of Madhya Pradesh, 2023 Livelaw (SC) 960, the Hon’ble Apex Court observed as under: - “17. As already discussed herein above, previous enmity is a double edged weapon; on the one hand it provides the motive, whereas on the other hand, the possibility of false implication cannot be ruled out.” 44. Recently in Nand Lal Vs. State of Chhattisgarh, AIR 2023 SC 1599 , the following was observed: - “We may gainfully refer to the following observations of this Court in the case of Ramesh Baburao Devaskar and Others v. State of Maharashtra MANU/SC/8026/2007: (2007) 13 SCC 501 : “19. In a case of this nature, enmity between two groups is accepted. In a situation of this nature, whether the first information report was ante-timed or not also requires serious consideration. First information report, in a case of this nature, provides for a valuable piece of evidence although it may not be a substantial evidence. The reason for insisting on lodging of first information report without undue delay is to obtain the earlier information in regard to the circumstances in which the crime had been committed, the name of the accused, the parts played by them, the weapons which had been used as also the names of eyewitnesses. Where the parties are at loggerheads and there had been instances which resulted in death of one or the other, lodging of a first information report is always considered to be vital.” As held by this Court, the FIR is a valuable piece of evidence, although it may not be substantial evidence. The immediate lodging of an FIR removes suspicion with regard to over implication of number of persons, particularly when (2007) 13 SCC 501 the case involved a fight between two groups. When the parties are at loggerheads, the immediate lodging of the FIR provides credence to the prosecution case.” 45. In the present case, we find that though the prosecution has pressed into service the motive for commission of the crime, but looking into the over all circumstances emanating from the depositions of the prosecution witnesses as well as from the FIR, we find that the prosecution has failed to establish the commission of the crime by the accused beyond reasonable doubt. 46. 46. In view of the discussions made above, we are of the considered view that the testimony of the prosecution witnesses is not trustworthy and it would be unsafe to record conviction, particularly in absence of corroborative evidence available on record. Less to say about credibility of the FIR and the inquest report. 47. In our view, the Trial Court has failed to properly evaluate the evidences available on record, and thus, the appellants are entitled to be accorded benefit of doubt. Consequently, the appeals are allowed. The orders dated 25.07.2019 passed by the Addl. Sessions Judge, Court No.3, Mathura in Sessions Trial nos. 803/2013, 299/2013 and 344/2014, by which the appellants have been convicted under Sections 147, 148, 302 IPC read with Section 149 IPC are set aside. The appellants are acquitted of all the charges, of which they have been tried. They are reported to be in jail. They are set at liberty forthwith if not wanted in any other case, subject to compliance of the provisions of Section 437 of CrPC, 1973/ 481 of Bharatiya Nagrik Suraksha Sanhita, 2023, to the satisfaction of the trial court concerned. 48. Let a copy of the order/judgment and the original record of the lower court be transmitted to trial court concerned forthwith for necessary information and compliance. The office is further directed to enter the judgment in the compliance register maintained for the said purposes of the Court.