Hon'ble Surendra Vikram Singh Rathore,J.
(Delivered by Hon. S.V.S.Rathore,J)
1. This criminal appeal is directed against the common judgment dated 20.11.2004 passed by Additional Sessions Judge , Fast Track Court No.3, Sitapur in S.T. No.152 of 2002, under sections 147,148,307,149,302/149 IPC and S.T.No. 199 of 2003 State Vs. Prakash under section 25 (1(b) Arms Act relating to P.S. Sandana, district Sitapur,whereby the appellants were convicted for the offence under Sections147,148,307/149 and 302/149 IPC and accused Prakash was further convicted under section 25 (1) (b) of the Arms Act. For the offence, under section 147 IPC all the accused appellants were directed to under go R.I. for a period of 6 months, for the offence under section 148 IPC all the accused/appellants were sentenced to under go R.I. for a period of one year, for the offence under section 307 /149 IPC all the appellants were sentenced to R.I. for a period of 10 years and under section 302/149 IPC they were sentenced to life imprisonment. Accused Prakash was also sentenced for the offence under section 25 (1) (b) of the arms Act with R.I. for a period of one year. For the offence under section 307/149 and 302/149 and section 25 (1) (b) of the Arms Act the sentences were coupled with fine with default stipulation. All the sentences were to run concurrently.
2. In brief ,the prosecution case, as per the FIR, is that the complainant Yogendra Singh S/o Hari Nath Singh was resident of village Maheshpur P.S. Sandna, district,Sitapur and about three years, prior to this occurrence, Radhey accused (not appellant), had borrowed three thousand rupees from Hari Nath. When Hari Nath Singh asked for this loan amount, Radhey felt annoyed and nursed grudged against Hari Nath .On 16.07.2002, in the evening Hari Nath Singh had gone to the village Anurudh Khera to meet Putan Pradhan. Complainant and his brother in law (Sister's husband) Munna Singh S/o Samrendra Singh of village Ismailganj had also gone with them. When, all the three persons were returning from the house of Pradhanji and when they reached in front of the house of Parashuram at about 09.30 p.m. All of a sudden, Radhey, Mannu , Shiv Kumar , Prakash Raidas , Rizwan, Daya Shanker , Ramesh came there with common intention, armed with country made guns and pistols. Radhey challenged abusively 'kill these bastards' and all the accused persons started firing on Hari Nath Singh. Niece of Parashuram named Chandni,aged about 6 years and Chhotey Lal, father of Parashuram also received injuries. Hari Nath Singh and Chandni died due to the fire arm injuries sustained by them. Parashuram and Ramu Pandit saw the occurrence and identified the accused persons in the light of torches and the lantern, glowing at the door of Parashuram.
3. FIR of this case was lodged by Yogendra Singh on 17.7.2002 at 10.00 a.m. at P.S.Sandana, district Sitapur.
4. I.O. Sri Bansh Raj P.W-8 took the investigation, went to the place of occurrence, conducted the inquest proceedings of the dead bodies and sent the dead bodies for post mortem. Prepared site plan and recorded some statements. Subsequently the investigation of this case was handed over to Sri V.K.Saxena P.W-9 on 18.7.2002.
5. In order to prove its case the prosecution has examined P.W.-1 Sri Yogendra Singh complainant, P.W.-2 Chhotey Lal and P.W.-3 Munna Singh as witnesses of fact. Dr. S. S. Negi P.W.-4 has proved the post mortem report of the two deceased persons. P.W.-5 is constable Virendra Singh who has proved the chick report and G.D of registration of this case. P.W-6 is Dr. Zeta Singh who has medically examined P.W-2 and has proved his injury report. P.W-7 is constable Raj Kumar who is the witness of recovery of country made gun on the pointing out of appellant Prakash.P.W.-8 is S.I.Bansh Raj, he is the initial I.O. who conducted the investigation till 18.7.2002.P.W-9 is S.I. V.K.Saxena who is the subsequent I.O. of this case. P.W.-10 is constable Dinesh Yadav who has proved chick report and G.D of case under section 25 Arms Act .P.W.-11 is S.I. Ram Darash Yadav who has investigated the case under section 25 Arms Act and has given the details of the investigation in his evidence.
6. After completion of the investigation charge sheet was submitted against six appellants . Charge sheet was not filed against accused Radhey as he could not be arrested by that time. It has come in the evidence of P.W.-5 constable Virendra Singh that dead body of accused Radhey was found within the circle of P.S. Sandana on 10.3.2004. During course of investigation on 7.8.2002 at about 5.00 p.m. accused Shiv Kumar and Prakash were apprehended by the police and on the pointing out of accused Prakash, a 12 bore country made gun was recovered for which he was tried in S.T.No. 127 of 2003 under section 25 (1) (b) Arms Act.
7. After appreciation of evidence, produced by the prosecution,the appellants were convicted as stated above ,hence the present appeal.
8. Case of defence is of denial and false implication. It is pleaded that deceased was a man of bad character and history sheeter having so many enemies.
9. No evidence in defence has been adduced on behalf of the accused persons.
10 As per post mortem report following injuries were found on the person of deceased Hari Nath Singh
1. Multiple fire arm wounds of entry in an area of 8 cm. X6 cm. On right side part of chest 10 cm. from rt. Nipple at 7 to 8 O' clock position .Size of large wound 1 cm. X 1 cm x skin deep, size of smallest wound 0.3 cm.x0.3 cm x muscle deep,size of margins of wound inverted blackened and lacerated.
2. Lacerated wound 5 cm x 4 cm. X bone deep on rt. Upper arm on part and medial aspect situated 2 cm. above elbow . Margins of 1/3 of front and outer aspect are blackened lacerated and inverted margins of rest 2/3 of inner aspect are lacerated and everted and underneath vessels are lacerated.
3. Fire arm wound of entry in an area of 4 cm. X 3 cm. On dorsum of right hand and at the base of rt. finger and index finger. Margins are inverted blackened and lacerated.
4. Abrasion 4 cm. X 2 cm. on the back of left shoulder joint.
As per post mortem report stomach was empty , urinary bladder was empty.
11. As per post mortem report of km. Chandni following injuries were found on her body,
1. Multiple firearm wounds of entry all over back of chest and abdomen including both buttocks each measuring 0.3 cm x 0.3 c.m x skin to cavity deep , margins are inverted ,blackened and lacerated.
2. Multiple fire arm wounds of entry in an area of 10 cm. X 3 cm. On the back of left upper arm each measuring 0.3 cm X 0.3 cm, skin to muscle deep.
The position of stomach and urinary bladder of Km.Chandni was identical to the position of deceased Hari Nath Singh.
12. P.W. 2 is the injured witness and has received the following injuries,
1. Multiple wound of entry in an area of 6 cm.x4 cm. Present oval in shape on left side face 1 cm. Below the lower eye lid of left eye size varing from 0.5 cm.x0,4 cm x skin deep to muscle deep to 0.4 cm. X skin to muscle deep blackening present around wound .
2. Multiple wound of entry in an area of 10 cm.x3 cm. Present on left side scalp 6 cm. above the left ear size varing from 0.5 c.m.x 0.5 c.m x scalp deep to 0.5 c.m x 0.4 cm x scalp deep blackening present.
3. A wound of entry on front of left arm 6 cm. Below the top of left shoulder, size 0.5 c.m x 0.4 c.m , skin to muscle deep , blackening present.
13. Heard Sri S. Anadi Banerji and Sri Vivek Bhatt, learned counsel for the appellants and the learned A.G.A. on behalf of the State
14. Argument of the learned counsel for the appellants is that in this case FIR was delayed and no satisfactory and reliable explanation of the same was given by the prosecution. Hence the corroborative value of the FIR is reduced to a great extent and it makes the entire prosecution story suspicious. It is further argued that the presence of P.W. 1 and P.W.-3 on the place of occurrence is highly doubtful. P.W.-2 has not recognized any accused person of his own. It is further argued that the position of stomach contents falsifies the time of occurrence as alleged by prosecution. Manner in which the occurrence is alleged to have taken place is not supported by the evidence on record and the story of FIR has been considerably improved which renders it unbelievable. The alleged injured witness P.W.-2 was medically examined after a considerable delay. It is further argued that the deceased was a man of bad character and the position in which his dead body was found corroborates the defence version. It is further submitted that inmates of the house in which the dead body of the deceased was found have not been examined and only interested witnesses were produced and therefore, their evidence cannot be believed.
15. It is argued by learned A.G.A. on behalf of the State that all the three eye witnesses have fully corroborated the prosecution story and no illegality has been committed by the trial court in relying upon their evidence. It is further submitted that there is sufficient explanation of delay in lodging the FIR, and the delay in medical examination of the injured. Evidence of P.W.-2 does not adversely effect the prosecution story.
Arguments of the parties are being considered point wise.
16. Delayed FIR.
The fundamental object of an FIR is that it acts as a safeguard against embellishment, exaggeration and forgetfulness. True, that it is not the requirement of law that every minute detail of the the occurrence needs to be recorded in the FIR but it must disclose the commission of an offence. Though it is trite that the FIR does not constitute substantive evidence and can, strictly speaking, be only used as a previous statement for the purpose of either corroborating or contradicting its maker, yet omission of material facts pertaining to the crime is undoubtedly relevant in judging the veracity of prosecution case. It has been so observed in the case of State of Maharashtra vs. Ahmad Shaikh Babajan, (2010)1 SCC (Cri) 1356.
17. The effect of delayed FIR has been considered in the case of Bhagaloo Lodh an Anrs. State of U.P., reported in 2011 (2) ACR 2301(SC) the Hon'ble apex court on this point has held as under, "Prompt and early reporting of the occurrence by the informant with all its vivid details gives an assurance regarding truth of its version. In case there is some delay in filing the FIR, the complainant must give explanation for the same. In absence of such an explanation, the delay may give presumption that allegations/accusations were false and had been given after thought or had given a coloured version of events. Undoubtedly, delay in lodging the FIR does not make the complainant's case improbable when such delay is properly explained. However, deliberate delay in lodging the complaint is always fatal. (Vide: Sahib Singh v. State of Haryana, AIR 1997 SC 3247; Gorige Pentaiah Pentaiah v. State of A.P. & Ors., (2008) 12 SCC 531; and Kishan Singh (dead) thr. Lrs. v. Gurpal Singh & Ors., AIR 2010 SC 3624)."
18. In this case occurrence is alleged to have taken place on 16.7.2002 at about 9.30 p.m. and the FIR of this case was lodged at the police station on 17.7.2002 at 10.00 a.m. As per chick report Ex.Ka 4 the distance of the police station from the place of occurrence was only 13 Kms. In cross examination , P.W.-1 on this point has stated that he remained at the place of occurrence throughout the night. He did not go to lodge the FIR as he was terrified. In the morning when there was light, then he went to the house of Puttan Pradhan and thereafter to police station. Throughout the night he remained at the place of occurrence and he was weeping. There is no chaukidar in the village. Therefore, the only explanation for delay in FIR is that the complainant who happens to be the son of deceased, remained at the place of occurrence due to fear and made no effort to lodge the FIR. While according to the prosecution story one Munna Singh who happens to be the son in law of the deceased was also present there and was also an eye witness. If the complainant was not in a position to go to lodge the FIR then Munna Singh who is a Home Guard was very much there who could have lodged the FIR. The FIR could have been sent by any other person at the police station. As per the evidence, the complainant had gone to lodge the FIR at the police station along with two other persons on the motor cycle next day in the morning.Apart from it, P.W.-2 has stated that after the occurrence his family members were taking him and injured Chandni to hospital. While they were on the way, Chandni succumbed to the injuries and they all came back. This statement gives rise to inference that there was no terror of accused persons in the mind of the victims and it falsifies the statement of P.W.-1 who says that he did not go to lodge the FIR due to fear. I.O. of the case has also stated that P.W-1 has not given him any such statement. Secondly it is very strange that P.W.-2 had received gun shot injuries on his face , which as per doctor P.W-6 could have been fatal but no effort was made to take Chhotey Lal P.W.-2 to hospital and to lodge the FIR by any of his family member, specially when one dead body was lying in their house.
19. These facts give rise to an inference that family of Parsuram was waiting for the arrival of any family member of the deceased Hari Nath because of which they themselves did not consider it proper to lodge the FIR themselves. There is absolutely no explanation as to why the family members of Chhotey Lal did not lodge the FIR. The story of terror of accused is also falsified by the fact that Munna Singh P.W.-3 went to the house of the deceased after one hour of the occurrence which is in different village. Therefore, the explanation of the delay which has come in the statement of P.W.-1,does not appeal to the reason.
20. In this case the FIR was lodged after a long delay of about 12 hours of the occurrence. It gives rise to the inference that the FIR was the result of consultations and deliberations. Law is settled on the point that where FIR is delayed and no satisfactory explanation for the same is furnished then on this score alone entire prosecution case cannot be thrown out but in that case court is expected to evaluate and appreciate the evidence with extra caution. Learned trial court did not examine the evidence in this background and wrongly relied upon the explanation submitted by the prosecution.
Presence of P.W. -1Yogendra Singh and P.W-3 Munna Singh on the place of occurrence
21. The next point to be considered is the presence of prosecution witnesses on the place of occurrence. As per the prosecution story on the date of occurrence the deceased Hari Nath Singh had gone to the house of Putan Prdhan and the complainant Yogendra Singh who is son of the deceased, and Muna Singh who is son in law of deceased who lives in a different village Ismailganj had accompanied him. The argument of the Ld. defence counsel is that P.Ws 1 and 3 are closely related and PW.3 is not only related witness but is also a chance witness. There was no occasion for P.W.3 to be present on the place of occurrence and in his evidence he has not disclosed any reason as to why he had gone to the village of the deceased. P.W. 3 Munna Singh is a Home Guard by profession and the distance from his village to the place of occurrence is about 6 kms. He has admitted in his cross examination that on the date of occurrence he had gone to his in laws house by chance. He had no purpose for going there. He remained in the village of occurrence for about one hour after the occurrence and thereafter he came back to his in laws house and from there in the morning, he went back to his village to give information of the occurrence. The distance from the place of occurrence to the police station as per chick FIR is 13 kms and this distance by motor cycle could have been easily covered in less than half hour. Therefore, even after the sun rise , there was considerable delay in lodging the FIR. Because sun rise in the month of July takes place much earlier. The presence of P.W. 3 has not been satisfactorily explained by the prosecution.
22. Apart from it , as per the persecution evidence , it is clear that accused persons chased the deceased Hari Nath Singh and Hari Nath ran towards the house of Parsuram. He entered into the house of Parsuram and he was murdered there. His dead body was lying inside the house of Parsuram . But it is really strange that the story of Hari Nath Singh having been chased by the accused persons or the fact that the dead body of Hari Nath Singh was lying inside the house of Parsuram were not mentioned in the FIR by the complainant. This was very important aspect of the case. The court is conscious about the fact that FIR cannot be an encyclopedia of entire prosecution story but the fact "where the dead body was lying" was an important fact which in our opinion must have been mentioned in the FIR.Absence of this fact in the FIR, creates suspicion regarding the presence of PW. 1 on the spot. P.W. 2 Chhotey Lal is an injured witness, therefore, his presence on the place of occurrence cannot be doubted. This witness has categorically stated in his evidence that there was no outsider or any other person present at the time of occurrence. Perusal of the FIR shows that all the accused persons all of a sudden came when deceased was in front of the house of Parsuram and on the exhortation of Radhey all the accused persons fired with their respective weapons at the deceased. During trial, there was an improvement of the witnesses that several blows with the butts of the guns were also given by the accused to the deceased. Hari Nath. But in the post mortem report there was only one abrasion on the back of left shoulder joint. P.W. 4 Dr. S.S Negi in his cross examination has stated that none of the injury of Hari Nath could have been caused by lathi or by any other blunt object. There is another fact, which also falsifies the presence of P.W. 1 on the place of occurrence. He, in his examination in chief has stated that because of the gun shot injuries Chandani died on the spot but this fact is not the least supported by the evidence of P.W.2 who has stated that his family members took Chandani and him to hospital but while they were on way to hospital Chandni succumbed to her injuries and they came back. Therefore, the only conclusion is that when the P.W. 1Yogendra Singh reached the place of occurrence after the injured P.W. 2 and Chandni were brought back to the place of occurrence. Only because of it he has stated that Chandni died on the spot. P.W. 3 in his examination in chief has stated that when the complainant party was coming back from the house of Puttan Pradhan and when they reached in front of the house of Parsuram, then Parsuram and Hari Nath Singh started talking with each other and at that time all the accused persons reached there and on the exhortation of Radhey all the accused persons started firing causing injuries to Hari Nath who rushed towards the house of Parsuram, accused persons chased him inside the house of Parsuram but this is not the story of FIR. P.W. 2 on this point says that Hari Nath Singh came form the northern side and was standing on the chak road, he told Chotey that "Badmash" are chasing him. But this fact has neither been supported by P.W. 1 or by P.W.3. Both these witnesses have not supported the fact that Hari Nath deceased had any conversation with Chhotey P.W.-2. This witness has specifically stated that at the time of occurrence , no other person of the village or any outsider was present on the place of occurrence. This statement of P.W. 2 by itself falsifies the presence of P.W.- 1 Yogendra , P.W. 3 Munna Singh because both these persons belong to different villages. In view of the above discussion made above, the presence of P.W. 1 and P.W. 3 on the place of occurrence becomes highly doubtful. The best witness to prove the presence of P.W.1 and P.W-3 in village of occurrence at the time of this incident was Puttan Pradhan but it is strange enough that he has not been examined and no effort has been made by the prosecution to produce him to prove the presences of these two witnesses. The delay in lodging the FIR also supports this conclusion .
Whether the manner in which the occurrence is alleged to have taken place is reliable ?
23. Since in our opinion, the FIR was lodged after a considerable delay and without any plausible and reliable explanation of such delay. The presence of P.W.1 and P.W.3 on the place of occurrence is doubtful, therefore,the only evidence remains to be considered is of P.W. 2 who is an eye witness as well as an injured witness.
24. P.W.-1 has stated that his father had taken Pakori of Ghuiya(Arbi) and had also taken Khichri at about 6 .30 p.m. before going to the house of Prdhan, but the occurrence is alleged to have taken place at about 10.00 p.m. i.e about 3 and half hours after taking the aforesaid meal but it is strange that stomach and urinary bladder of deceased Hari Nath was empty. No semi digested of partly food was found in the post mortem and this position of the stomach suggests that the occurrence had not taken place at the time as alleged by the prosecution. We are taking this aspect in consideration because, as stated earlier a duty is cast upon the court to evaluate the prosecution evidence with caution.
25. The evidence of P.W.-2 Chhotey Lal makes the entire prosecution story doubtful. This witness has named only two accused persons in his examination in chief and has also not stated regarding the presence of P.W. 1 and P.W.3. As per prosecution story, there was light of lantern but his witness says that there was "dhibri" light in the veranda of his house. He has stated that he was told by Hari Nath Singh that these persons are coming to kill him and just thereafter the firing took place. He could not see who fired and after receiving the fire arm injury Hari Nath Singh went inside the house. Accused persons also chased Hari Nath Singh and fired on him. It has come in the evidence that about 10-12 shots were fired on the deceased and blood was oozing from the injuries and fell on the ground. But no blood, empty cartridge , wad or pellet was recovered from the course through which the deceased is alleged to have been chased by the accused persons. It has come in evidence that the deceased was wearing a Tahmat and Kurta. He was having Gamchha on his shoulder but as per the inquest, the dead body was found inside the house of P.W. 2 and it was lying on a darri and there was only underwear on the dead body. The Kurta and Gamchha were placed near his head. How Kurta was removed from his body and who removed it has not been explained by the prosecution. The fatal blow to the deceased was given inside the house but it is strange that not even single inmate of that house was made a witness nor was examined by the prosecution.
26. P.W.-2 Chhotey Lal in his examination in chief has named Radhey and Shiv Kumar but in his cross examination he resiled from this statement and has stated that he has taken the names of these persons as told to him by deceased Hari Nath Singh. On this point learned A.G.A has argued that it amounts to dying declaration but we are not convinced with this argument because I.O who recorded the statement of P.W.-2 Chhotey Lal under section 161 Cr.P.C has stated that Chhotey Lal has not named Shiv Kumar in his statement and as stated earlier accused Radhey has already expired,therefore, the name of accused Shiv Kumar is being taken for the first time in his examination in chief and that too has been resiled in the cross examination,therefore, this evidence cannot be said to be reliable and cannot be acted upon.
27. The argument of the learned counsel for the appellant is that the deceased was a man of bad character and he had some illicit relations and while he was indulging in such activities, he was murdered as he had so many enemies, cannot be said to be without substance. The position in which the dead body was found inside the house lying on a Darri with only underwear on his body, suggests a different story.
28. P.W-2 has further stated that he is an old man of 75 years. He himself had not seen Shiv Kumar and Radhey on the place of occurrence. He has admitted that his vision is weak. Admittedly the night was dark and therefore, it was not expected from this witness who has weak vision to recognise the accused persons but on the contrary he has subsequently stated that deceased Hari Nath was a history sheeter. He had faced several dacoity cases of police station Sandana and in other police stations. In one case he was convicted and released on bail by the High Court. This witness has categorically stated that when he was lying under "Kathal" tree none of the villagers or any other out-sider was present there. This statement of this injured witness damages the entire prosecution story.
Effect of delayed receiving of report under section 157 Cr.P.C.
29. In this case FIR was lodged on 17.7.2002 at 10.00 a.m. and it was produced before the magistrate concerned on 20.7.2002 i.e after about three days. This fact has been considered by the trial court and the trial court has not taken any note of this fact on the ground that this report was produced before the Circle Officer on 18.7.2002.Word "Forthwith" has been used in Sectin157 Cr.P.C but the learned Trial Court did not give due importance to this aspect of the case.
30. Hon'ble apex court in the case of Bhajan Singh alias Harbhajan Singh and Ors Vs. State of Haryana (2011)7 SCC, 421 has elaborately dealt with the importance of sending the copy of the FIR to the Illaqa Magistrate with delay and after placing reliance upon a large number of judgments including Shiv Ram v. State of U.P., AIR 1998 SC 49; and Arun Kumar Sharma v. State of Bihar, (2010) 1 SCC 108 came to the conclusion that Cr.P.C. provides for internal and external checks: one of them being the receipt of a copy of the FIR by the Magistrate concerned. It serves the purpose that the FIR be not ante-timed or ante-dated. The Magistrate must be immediately informed of every serious offence so that he may be in a position to act under Section 159 Cr.P.C., if so required. The object of the statutory provision is to keep the Magistrate informed of the investigation so as to enable him to control investigation and, if necessary, to give appropriate direction. However, it is not that as if every delay in sending the report to the Magistrate would necessarily lead to the inference that the FIR has not been lodged at the time stated or has been ante-timed or ante-dated or investigation is not fair and forthright. In a given case, there may be an explanation for delay. An unexplained inordinate delay in sending the copy of the FIR to Illaqa Magistrate may affect the prosecution case adversely. However, such an adverse inference may be drawn on the basis of attending circumstances involved in a case.
31. The present case also stands on the same footing because in this case FIR was lodged after a considerable delay of about 12 hours. The explanation submitted for the same, in our opinion, is not satisfactory, therefore these checks become extremely important and specially where the presence of witnesses being managed by the prosecution then such allegations assume great importance but the learned trial court has not appreciated this point in correct perspective.
Whether Evidence of all the three witnesses is consistent ?
32. In criminal jurisprudence, evidence has to be evaluated on the touchstone of consistency. Consistency is the keyword for upholding the conviction of an accused. In a criminal trial, evidence of the eye witness requires a careful assessment and must be evaluated for its creditability. Since the fundamental aspect of criminal jurisprudence rests upon the stated principle that no man is guilty until proven so , hence utmost caution is required to be exercised in dealing with situations where there are multiple testimonies and testifying before the court. There must be a string that should join the evidence of all the witnesses and thereby satisfying the test of consistency in evidence amongst all the witnesses.
33. When the evidence of all the three witnesses is taken together, then it is clear that evidence of these witnesses is not consistent with each other. P.W.1 states that because of the fear of all the accused persons he did not go to lodge the report while P.W.-3 says that after one hour of the occurrence he went to his in laws house meaning thereby there was no terror of the accused persons in the mind of P.W.-3. P.W-2 says that his family members after the incident took him and Km. Chandni to hospital. It also shows that there was no terror of the accused persons in their mind. P.W.-1 and P.W.-3 say that there was light of lantern and torches but P.W.-2 says that when firing took place at that time there was no light of any sort. P.W.-3 says that on hearing the noise several persons had assembled there but P.W.-2 does no say so. P.W.-1 says that deceased Hari Nath Singh had taken meal at about 6.30 p.m. But the stomach contents falsified the time of occurrence as alleged by the prosecution. The statement of the witnesses giving blows by the butt of the gun is not supported by the medical evidence. P.W.-3 says that Parsuram was talking with his father in law Hari Nath Singh and at that time the accused persons reached there from eastern side while P.W.-2 says Hari Nath Singh came from northern side and he was standing on the chak road and he told Chhotey Lal, P.W.-2 that he is being chased but neither P.W.-1 nor P.W.-3 says that any conversation took place between Hari Nath Singh and P.W.-2 Chhotey Lal. Apart from it, it has come in the evidence of the witnesses that there was oozing of blood from the body of Hari Nath Singh and the accused persons made 10- to12 fire but it is really strange that not even a single tikli, charra or empty cartridge was recovered from the course through which Hari Nath Singh entered into the house of Parsuram. Apart from it, no blood was recovered from the place where Chhotey Lal and Km. Chandni are said to have received injuries. P.W.-1 says Chandni died on the spot but P.W.-2 does not say so.
34. All thee inconsistencies in the prosecution case assume great importance because the origin of the FIR as discussed earlier was under suspicion but the learned trial court has not given due importance towards these inconsistencies in the statement of the witnesses which renders the conclusion arrived at by the learned trial court to be incorrect.
35. So far as the case under section 25 Arms Act is concerned , on this point P.W.-7 Raj Kumar was examined. There is no independent witness to support this story. While on the fard of recovery two persons namely Dipu Gupta and Desh Raj were made witnesses but non of them was produced and examined in support of this story of the prosecution, therefore, the case under section 25 Arms Act was also not satisfactorily proved against accused Prakash.
36. In view of the above discussion, the finding arrived at by the trial court were based on incorrect appreciation of evidence which rendered the findings incorrect and accordingly the conviction of the accused persons for the charges levelled against them was wrong. Accordingly the appeal deserves to be allowed and is accordingly allowed. The impugned judgment dated 20.11.2004 passed in S.T.No. 152 of 2002 and in S.T.No. 199 of 2003 are hereby set aside .All the accused appellants are hereby acquitted of all the charges levelled against them. The accused persons are in custody. They shall be set at liberty and released forthwith. The registry is directed to communicate the order of the court to the court concerned to ensure the immediate compliance.
Date of Order: 21.3.2012 R.P.