JUDGMENT Rajan Roy, J. Heard Sri. Umesh Verma, learned A.G.A. for the State and Sri. Mandeep Kumar Mishra, learned counsel for the respondent. 2. This is an appeal by the State under Section 378(3) Cr.P.C. challenging acquittal of the accused in Sessions Trial No.379/1997 under Sections-435/34, 302/34 I.P.C. & Section-3(2) (5) Scheduled Castes and Scheduled Tribe (Prevention of Atrocities) Act, 1989 vide judgment and order dated 29.03.2006. Leave was granted in the matter on 29.08.2022 after condoning the delay in filing the appeal. 3. Respondent no.1-Pahalwan and respondent no.2-Munna Singh have died. Therefore, the appeal as regards them has been dismissed as abated way back on 29.08.2022 itself. The appeal survives only with regard to respondent no.3-Nankau Singh. 4. Prosecution case in nutshell is that on 07.12.1993 in the morning at about 08:00 A.M., respondent no.3 along with other accused set the hut of the deceased, which was situated in his grove, on fire and threw him into the fire after tying his hands with aluminium wire resulting in about 60 per cent burn injuries which ultimately proved fatal and caused his death on 08.12.1993 at 05:00 A.M. 5. He was administered initial medical treatment at C.H.C., Mall, Lucknow on 07.12.1993 by P.W.6-Dr. R.C. Chaddha. Thereafter, the deceased, while he was alive, was medically examined by Emergency Medical Officer at Balrampur Hospital at Lucknow on 07.12.1993 at 02:40 P.M. 6. The F.I.R. was initially lodged on 07.12.1993 at 10:00 A.M. at Police Station-Mall, District-Lucknow under Sections-435, 324 and 3(2)(v) SC/ST Act naming the three accused, namely, Pahalwan, Munna Singh and Nankau Singh. After death of the injured-Badkau, Section -302 I.P.C. was added. 7. Inquest was conducted on 09.12.1993 at 12:15 P.M. at the mortuary of Balrampur Hospital where the deceased had died a day earlier. Post-mortem was conducted on 10.12.1993 at 11:30 A.M. at Lucknow. Cause of death is mentioned in the post-mortem report as shock and hemorrhage due to ante-mortem burn injuries. There is not dying declaration of the deceased. 8. The ashes recovered from the scene of crime and the clothes of the deceased were sent for forensic examination. Forensic report is Ex.Ka.5. 9. After chargesheet being filed, the accused were charged with the offence punishable under Sections-435/34, 302/34 I.P.C. and Section-3(2)(5) of SC/ST Act. 10. The case of defence is one of denial and false implication on account of prior enmity. 11. Forensic report is Ex.Ka.5. 9. After chargesheet being filed, the accused were charged with the offence punishable under Sections-435/34, 302/34 I.P.C. and Section-3(2)(5) of SC/ST Act. 10. The case of defence is one of denial and false implication on account of prior enmity. 11. Thirteen prosecution witnesses were examined before the trial court, which ultimately acquitted all three accused. 12. The contention of learned A.G.A. for the State in nutshell is that trial court has erred in holding that time of lodging of F.I.R. is suspicious and also in disbelieving the testimony of eye-witness i.e. P.W.1-Shyam Kumar who is daughter-in-law of the deceased. It has also erred in not believing testimony of other prosecution witnesses and in acquitting the accused. 13. Learned counsel for respondent no.3-accused submitted that the trial court on an appreciation of evidence before it has rightly acquitted respondent no.3. The time of lodging of F.I.R. is suspect. The testimony of prosecution witnesses including P.W.1 is not at all reliable. There have been improvements. Statements itself have been recorded belatedly before the police thereby leaving scope for deliberation and consultation. It is a case of false implication either on suspicion or on prior enmity which is admitted to both the parties. 14. We proceed to consider the State's appeal keeping in mind the parameters and scope for interference in an appeal against acquittal by the State. 15. As regards the time of lodging the F.I.R., P.W.1 has stated that the incident happened at about 08:00 A.M. on 07.12.1993 and F.I.R. was lodged at 10:00 A.M. The distance of the scene of crime from the police station is about 8 Kms. It has come in the testimony of P.W.1 that she took out Badkau from the burning hut all on her own. She remained near the burning hut for about one hour when people kept coming to see him. After his body was taken to the house, he remained there for half an hour and thereafter, she went to lodge the F.I.R. She must have taken some time to reach the police station which was eight kilometers away. She also stated that she was not heard at the police station, therefore, she gave an application to the higher authorities. However, the F.I.R. has been shown as lodged on 07.12.1993 at 10:00 A.M. 16. She also stated that she was not heard at the police station, therefore, she gave an application to the higher authorities. However, the F.I.R. has been shown as lodged on 07.12.1993 at 10:00 A.M. 16. On a perusal of the written tehrir submitted by P.W.1- Shyam Kumari-the daughter-in-law of the deceased based on which the F.I.R. was lodged on 07.12.1993 at 10:00 A.M., we find that it speaks about all the three accused, with whom the informant's side had a dispute pertaining to a Nali, came to the spot on 07.12.1993 at 08:A.M. and set the hut in the grove of the deceased, on fire. The tehrir says that Badkau aged 65 years who was sitting near a fire by the side of the hut and warming himself, was burnt. On an alarm being raised, Ramai, Chotelal and several other persons reached and dowsed the fire on the hut. Relevant extract of the written tehrir reads as under:- ^^vkt fnuk¡d 7-12-93 dks le; djhc 8 cts fnu esa esjs gh xk¡o ds igyoku flag iq= ju/khj flag uudA iq= ju/khj flag eqUuk flag iq= ju/khj flag vk;s vkSj ftuls ukyh ls ikuh fudkyus ds lEcU/k esa fookn py jgk gSA esjs ckx esa j[kh >ksiM+h esa vkx yxk fn;k] rFkk ogh ij vkx rki jgs esjs llqj cM+dA ftudh mez djhc 65 lky ds Fks ty x;sA ftl ij 'kksj xqy epk;k rks esjs xk¡o ds jebZ iq= ukugw NksVs yky iq= ukugw o xk¡o ds cgqr ls yksx vk x;s ftUgksaus NIij dh vkx cq>k;k o vius llqj cM+dA dks Fkkus ysdj vkbZ gw¡A^^ 17. There is no mention about the accused having been thrown Badkau into the hut after setting it on fire. 18. The statement of P.W.1 the only eye-witness to the incident was recorded before the police under Section 161 Cr.P.C. three months after the incident as stated by her in her testimony. Her statement was thereafter recorded under Section 164 Cr.P.C. on 01.06.1994 i.e. almost six months since the incident. The initial investigation was conducted by local police and final report was submitted on 28.12.1993. However, subsequently on 21.02.1994, the State Government transferred the investigation to Crime Branch of Central Investigation Department, Lucknow. Thereafter, investigation was conducted by Sri. S.C. Pachauri from 21.02.1994 to 21.09.1994 but Sri. Pachauri has not entered the witness box. The initial investigation was conducted by local police and final report was submitted on 28.12.1993. However, subsequently on 21.02.1994, the State Government transferred the investigation to Crime Branch of Central Investigation Department, Lucknow. Thereafter, investigation was conducted by Sri. S.C. Pachauri from 21.02.1994 to 21.09.1994 but Sri. Pachauri has not entered the witness box. He was transferred and after him, the investigation was handed over to P.W.8-Om Prakash Srivastava on 22.11.1994. He submitted the chargesheet based on the evidence collected by Sri. Pachauri and did not conduct any independent investigation himself, a fact which has been stated by him in his cross-examination. 19. There is prior enmity between the parties as is admitted to both the sides. The enmity was with regard to water in a Nali near the scene of crime itself. 20. The recitals in the written tehrir based on which the F.I.R. has been lodged and the statement given by P.W.1 before the court are at variance. P.W.1 has stated before the court below that she had gone to ease herself near the place of incident when she heard shouts of her father-in-law, she went towards the grove and saw that the hut was on fire and the three accused were holding the hands of his father-in-law and then threw him into the burning hut. Now, this version is missing from the written tehrir dictated by P.W.1 which has been proved by her and which she had got written by Rajendra of Veerpur whom she had met while she was going to police station. This apart, she has also stated before the court that before throwing him into the fire they had tied the hands and legs of Badkau with almunium wire. This is also not mentioned in written tehrir. This story as narrated before the court has been developed subsequently. The delay in recording her statement before the police and then before the Magistrate become important in this context especially in view of prior enmity between the parties. 21. P.W.1 has also admitted that he used to warm himself by litting a fire inside the hut and near it also. He used to keep Kanda i.e. cow dung cakes, for the said purpose. Inflammable material i.e. dried grass and branches were also stored for the said purpose inside the hut. 22. 21. P.W.1 has also admitted that he used to warm himself by litting a fire inside the hut and near it also. He used to keep Kanda i.e. cow dung cakes, for the said purpose. Inflammable material i.e. dried grass and branches were also stored for the said purpose inside the hut. 22. As regards the other prosecution witnesses i.e. P.W.2 to 5, 9 and 10 are concerned, none of them have seen commission of the crime. It is P.W.1 alone who claims to have seen it and as already discussed, there is variance in her statement before the court and the recital in the F.I.R. The important event implicating the accused as having thrown Badkau after tying his hands with aluminum wire into the burning hut is missing in the written tehrir and, from a reading of it, what comes out is that the hut was set on fire, Badkau was keeping himself warm near the hut after having lit a fire and he got burnt. There is no mention of the accused having thrown him into the hut. The incident happened in December which in rural areas is not only cold but early mornings are very foggy. The discrepancy in the recitals in the F.I.R. and the statement of P.W.1 creates a reasonable doubt about prosecution case and improvement therein is apparent, therefore, P.W.1's statement on this count is not reliable especially in view of delay in recording of her statement before the police and before the Chief Judicial Magistrate which left scope for deliberation and consultation and false implication based thereon considering the prior enmity. 23. In this very context, we may consider the testimony of P.W.5-Ramai regarding whom P.W.1 has stated that he and Cheda Lal had reached the scene on hearing her shouts ahead of others. P.W.5-Ramai has stated that in fact he (P.W.5) had reached the scene first and thereafter, others had come. He does not speak about the presence of P.W.1 at the scene of crime that too prior to him reaching there. He says that when he reached the scene, he found that the hut had been completely burnt and Badkau was lying outside the hut about eight steps away and his entire body was burnt. He has stated that he cannot say as to who took out Badkau from the hut. He says that when he reached the scene, he found that the hut had been completely burnt and Badkau was lying outside the hut about eight steps away and his entire body was burnt. He has stated that he cannot say as to who took out Badkau from the hut. Now, if P.W.1 was present and she had taken out Badkau from the hut as claimed then obviously this would have been known to P.W.5-Ramai. Cheda Lal-the other person who according to P.W.1 had reached the scene after her shouts, has turned hostile. 24. Moreover, as already stated, none of the other prosecution witnesses nos.2 to 5, 9 and 10 are eye-witnesses to the commission of the crime. Their testimony is relevant only in the context of Section-32 of the Evidence Act as some of them have heard Badkau stating, while he was alive, as to who had burnt him. In this context, when we examine the statement of P.W.2-Dayaram who is son of the deceased-Badkau, he has stated that he had gone to the tubewell before break of dawn. The incident happened in December. When he returned from tubewell to his house then he saw the crowd and his father lying on a Charpai, meaning thereby, he did not even visit the scene of crime. In his examination-in-chief, he has stated that his father had told him that the accused had set him on fire. He is son of the deceased and there is a prior enmity between the parties. His statement before the police itself was recorded several months later as initially a final report had been submitted. His statement before the C.J.M. was also recorded on 01.06.1994, that is, almost after six months. 25. P.W.3-Cheda Lal has turned hostile. He has testified that he had not taken the name of Munna Singh and Nankau Singh, instead, he had told the police that there was dispute between Pahalwan Singh and Shivnath Pasi. He has testified that when he reached the scene, Badkau was lying near the fire. He was burnt and was alive but he did not say anything. When his sons asked him several times, he took the name of Thakur but did not say anything else. When he asked as to who were the Thakurs, he did not respond. Thus, he has not supported the prosecution case and that is why he was declared hostile. 26. When his sons asked him several times, he took the name of Thakur but did not say anything else. When he asked as to who were the Thakurs, he did not respond. Thus, he has not supported the prosecution case and that is why he was declared hostile. 26. P.W.4-Swamideen has also stated that Badkau had died in his hut, whether he had been burnt by somebody or by himself, he did not know. In cross-examination, he has stated that after getting burnt, Badkau was not in a position to speak. He did not have voice. Now, this creates a doubt as to testimony of other witnesses who have stated that after getting burnt when he was asked as to who had burnt him, he had named the three accused as stated by P.W.2,- his son. P.W.1 has not spoken about Badkau having disclosed the name of the accused to any other person, on being asked. Thus, the testimony of P.W.4 whose presence has been mentioned by Ramai-P.W.5, does not help the prosecution and prove the guilt of respondent no.3. 27. Moreover, if P.W.1 had seen the accused committing the crime where was the occasion for her husband or son or for that matter other prosecution witnesses to have asked Badkau as to who had committed the crime. This inconsistency and contradiction itself creates a doubt about the prosecution case and enforces the opinion that all this has been done after due deliberation and consultation on account of prior enmity or suspicion as the case may be. 28. P.W.9-Lotan is son of P.W.1 and grandson of the deceased. He also says that on being asked by his uncle-Ramai, Badkau said that the accused had burnt him but, again, if his mother (P.W.1) had already seen commission of crime and Ramai had reached the scene as stated by P.W.1 when she was present then, where was the occasion for Ramai (P.W.5) to ask Badkau as to who had committed the crime. Moreover, in his cross examination, he has stated that Badkau-his grandfather had not himself stated that the accused had burnt him. 29. Moreover, in his cross examination, he has stated that Badkau-his grandfather had not himself stated that the accused had burnt him. 29. P.W.10- Phoolchand has stated in his examination-in-chief that on being asked, Badkau had told him that the accused had burnt him, however, in cross-examination, he has stated that Badkau was only slightly burnt and only a part of his hand and face had been burnt which is inconsistent with medical evidence on record as also the testimony of other prosecution witnesses including P.W.9, according to which, he had been substantially burnt which creates a doubt as regards the presence of P.W.10 at the house where Badkau had been kept on a Charpai. 30. In this context, we may refer to the testimony of P.W.6- Dr. R.C. Chaddha, Medical Officer who attended the injured at C.H.C., Mall for the first time on 07.12.1993 itself. He has stated that injured had 60 per cent burn injuries. We may then refer to testimony of P.W.13- Dr. Abhimanyu Kumar who was the Emergency Medical Officer at Balrampur Hospital, Lucknow and had attended the injured-Badkau on 07.12.1993 at 02:40 P.M. He has testified that the injured had superficial to deep burn injuries on his head, neck, chest, stomach, back both thighs which were half burnt and both the hands. The injuries must have occurred half a day earlier. In cross-examination, he has stated that Badkau had been substantially burnt and in such a condition, he could have been unconscious or semi-unconscious state. He did not take down any dying declaration. This medical condition also makes it unsafe to believe the testimony of prosecution witnesses in the context of Section 32 of the Indian Evidence Act. 31. In view of the above discussion, we are of the opinion that the testimony of P.W.2 to 5, 9 and 10 as regards the circumstances of transaction which resulted in death of Badkau is not at all reliable. 32. 31. In view of the above discussion, we are of the opinion that the testimony of P.W.2 to 5, 9 and 10 as regards the circumstances of transaction which resulted in death of Badkau is not at all reliable. 32. Inspite of the fact that Badkau died on 08.12.1993 at 05:00 A.M. inquest was conducted on 09.12.1993 at 12:30 P.M. wherein, although there was no necessity, it was mentioned that the accused had burnt the deceased which goes to show that the time gap between the incident which took place on 07.12.1993 till preparation of inquest report was used to deliberate, consult and then to implicate the accused as there is no mention of the facts mentioned in the inquest report, in the written tehrir. 33. No doubt, the trial court erred when it stated that Badkau was brought dead to Balrampur Hospital which is not the case but, this by itself does not render the conclusion ultimately arrived at regarding failure of prosecution to prove the guilt of the accused beyond reasonable doubt, perverse. 34. The testimony of P.W.1 that she had seen commission of the crime as also the testimony of prosecution witnesses nos.2 to 5, 9 and 10 regarding the circumstance of the transaction which resulted in his death are not at all reliable. The inconsistencies and contradiction are apparent as discussed. 35. Prior enmity can cut both ways, it can be the motive for commission of a crime as also for false implication. 36. The forensic report says that the ashes, and clothes of the deceased, which were recovered were examined and smell of kerosene was found therein. Now, it is not the case of the prosecution, certainly not of P.W.1 who had seen the incident as claimed, that, the accused had poured kerosene oil either on the hut or on Badkau before setting it on fire or throwing him in it. There is no recovery of any container containing kerosene oil from the scene of crime. 37. The prosecution has failed to prove its case beyond reasonable doubt. 38. There is no recovery of any container containing kerosene oil from the scene of crime. 37. The prosecution has failed to prove its case beyond reasonable doubt. 38. Considering the scope of interference in an appeal by the State against acquittal as laid down by Hon'ble the Supreme Court in the case of 'State of Karnataka v. Gopalkrishna' (2005) 9 SCC 291 ; 'Sudershan Kumar v. State of Himachal' (2014) 15 SCC 666 ; 'Dilawar Singh v. State of Haryana' (2015) 1 SCC 737 & 'H.D. Sundara & Ors. v. State of Karnataka' (2023) 9 SCC 581 , we see no reason to interfere with the judgment of acquittal. 39. Accordingly, the appeal is dismissed. Respondent no.3 is directed to file personal bond and two sureties each in the like amount to the satisfaction of the Court concerned in compliance of Section 437A of the Code of Criminal Procedure within six weeks. 40. Let trial court record along with a copy of this judgment be sent to learned trial court for its information and necessary compliance.