Channan and Others vs State of U.P.

Pratyush Kumar, J.—Since these appeals arise out of the same incident and have been filed against the same impugned judgment and order, they are being disposed of by a single judgement.

Five accused appellants have filed two separate appeals under Section 374 Cr.P.C. against the judgement and order dated 2nd February, 2007 passed by Sri Vinay Kumar Mathur, the then District & Sessions Judge, Shrawasti in Sessions Trial Nos. 10A/1999, 10/1999 (State v. Channan and two others) under Sections 147 , 148 , 149 , 302 , 506 I.P.C. Police Station Bhinga, District Shrawasti, whereby the appellants in Criminal Appeal No. 380 of 2007 (Khalil and two others v. State of U.P.) and in Criminal Appeal No. 379 of 2007 (Channan @ Surendra Kumar and another v. State of U.P.) assail the correctness of their conviction and sentences to wit, under Section 148 I.P.C. to undergo rigorous imprisonment of three years and to pay fine of Rs. 2,000/- in default thereof to further undergo rigorous imprisonment of three months and under Sections 302 /149 I.P.C. to undergo imprisonment for life and to pay fine of Rs. 10,000/- in default thereof to further undergo rigorous imprisonment of six months and further under Section 506 I.P.C. to undergo three years rigorous imprisonment and to pay fine of Rs. 2,000/- in default thereof to further undergo three months rigorous imprisonment.

In the matter in hand, the prosecution version in brief may be summarized as under:--

On 2nd August, 1999, at 6.35 p.m. at Police Station Kotwali Bhinga, Lahar Prasad Verma gave a written report mentioning therein that he alongwith his nephew Sarabjeet, brother Bachha Ram, Advocate, co-villagers Prem Babu and Ram Fhakere Verma were returning to their village by bicycles. In front of Shivajot on metaled road, dip was broken so they alighted from the bicycles and crossing the water on foot at 5.30 p.m. His brother was the head of them. At that moment from the left side of the road, Channan, Nizamuddin alias Pandey armed with country made pistol came on the road and fired at his brother who fell down. From the right side of the road, Khalil, Munna Ram Tiwari, Deputy Pandey armed with ''Gadasa'' ''Pharsa'' and ''Gupti'' came their and started to shower blows from their weapons on his brother. His brother had old enmity with the accused persons. They had murdered his brother on the spot. When they tried to rescue his brother, accused threatened them if they proceeded further they would be shot down and they thereafter escaped towards northern side. Dead body looked after by Prem Babu and Ram Phakere, was lying on the spot. He had come to lodge the F.I.R.

At this report, Chik FIR was scribed, Case Crime No. 180 of 1999 was registered and registration of case was entered in the report of the General Diary. Investigation was taken over by Inspector Incharge, Police Station Kotwali Bhinga. He reached the spot on the same evening and held the inquest proceedings, searched the pocket of the deceased and handed over his belongings to Lehar Prasad Verma. The first informant recorded a memo of ''Supurdigi'', sent the dead body to the mortuary for postmortem examination and took samples of plain and blood stained earth and interrogated the first informant Lehar Prasad Verma and Sarabjeet Verma, son of the deceased and scribe the F.I.R.

The following day the investigating officer interrogated Prem Babu and Ram Phakere Verma, inspected the spot, collected five pieces of blood stained iron rods, five pellets, one small piece of tin, pieces of torn papers from which smell of gun powder was coming out, torn pieces of shirt and baniyan of the deceased alongwith two empty cartridges, the articles collected by him were sealed on the spot. Memo and site plan were prepared. After completion of investigation, chargesheet was submitted against all the five named accused persons.

The magistrate took cognizance of the offence and after completing the formalities committed the case to the Court of Session. In the Court of Session accused were charged under sections 147 , 148 , 302 /149 , 506 I.P.C. which they denied and claimed to be tried. During trial Channan absented, his case was separated and registered as S.T. No. 10A/1999. After his attendance was procured both the files were consolidated.

The prosecution had filed documentary evidence, inter-alia FIR Exhibit Ka-1, Chik FIR Exhibit Ka-3, recovery memo (samples of blood stained and simple earth) Exhibit Ka-11, ''Supurdiginama'' Exhibit Ka-2, copy of report of the General Diary Exhibit Ka-4, inquest report Exhibit Ka-5, site plan Exhibit Ka-12, recovery memo of articles taken from the spot Exhibit Ka-13, postmortem report Exhibit Ka-15, Serologist report Exhibit Ka-16. In the oral evidence, seven witnesses were examined, out of them Lehar Prasad Verma, P.W.-1 is the first informant and brother of the deceased Sarabjeet Verma, P.W.-2 is the son of the deceased and scribe of the written report. Ram Phakere Verma, P.W.3 is an eye-witness. All the three witnesses reiterated the prosecution version as contained in the First Information Report. Constable Dudhai Ram, P.W.-4 took the dead body to the mortuary at Bahraich. H.M.-21 Shiv Das Verma, P.W.5 is the scribe of Chik FIR, he proved Chik FIR Exhibit Ka-3 and copy of the report of the General Diary Exhibit Ka-4. S.S. Solanki, P.W.6 is the police inspector, investigating officer, who proved various recovery memos, site plan and chargesheet Exhibit Ka-14. Dr. V.M. Pandey, P.W.-7 is the medical officer who on 3rd August, 1999 at 2.00 p.m. performed the autopsy on the dead body of Bachha Ram Verma. According to him, time since death was estimated to be within 24 hours. During internal examination, he found his occipital bone broken, Trachea and Larynx were severed. In his opinion, death had occurred due to shock and hemorrhage as a result of ante-mortem injury. He proved the postmortem report Exhibit Ka-5 wherein the following ante-mortem injuries have been recorded postmortem report.

"1. (Gunshot) wound of entry 8 c.m. x 2.5 c.m. distrying line 1/2 of left ear extending up to neck obliquely in the neck behind the divide, blackening and tattooing present.

Punctured wound 1 c.m. X 0.5 c.m. x bone cavity deep at right (sic) on forehead 2 c.m. above left eyebrow.

Lacerated wound 8 c.m. x 3 c.m. on occipital region x bone deep.

Multiple abrasion measuring each 2 c.m. in diameter in area of 30 c.m. x 6 c.m. on back transvessely present in upper portion of back. F.B. at places pulpable and visible.

Fire arm injury in area of 19 c.m. x 1 c.m. on left scapuler region x (multiple abrasions) measuring 0.2 c.m. in diameter blackening (sic).

Incised wound 5 c.m. x 1.5 c.m. x bone deep in front of neck just below hyoid bone, cutting trachea, oesophagus and arteries.

Incised wound 5 c.m. x 1.5 c.m. x bone deep in front of neck below 2 c.m. (from the) injury No. 6 cutting trachea, oesophagus and vessels."

Doctor had recovered 22 pellets from Injury Nos. 1, 5 pellets from injury No. 4.

After prosecution closed its evidence, statements of the accused were recorded wherein they denied the facts touching the occurrence stated by the eye witnesses. They disputed the correctness of the papers prepared by the investigating officer. According to them, witnesses were deposing against them due to enmity. They did not say anything about the report of State Forensic Laboratory Exhibit Ka-16. Munna Ram Tewari claimed that relation of Bachha Ram had some civil litigation pending against him. In the defence, eye-witnesses named in the F.I.R., Prem Babu was examined as D.W.-1 and Ali Ahmad as D.W.-2. According to Prem Babu, D.W.-1, till 4.15-4.30 p.m. the deceased was with him. Information of his murder was given by Ali Ahmad when he reached at the spot with Ram Phakere Verma. Neither Lehar Prasad Verma nor Sarbjeet Verma were present there. He had gone to police station Bhingra to inform about the murder. On the way he met relative of the deceased and informed them. At about 4.30 p.m. police and relations of Bachha Ram reached the spot.

Ali Ahmad D.W.-2 has stated that on the fateful day, Bachha Ram took a ride on his motorcycle to go to his village. Near village Shivjot road was damaged and waterlogged. They both alighted from the motorcycle and were crossing the water on foot. 4-5 persons came out of the bushes from the road side, caught the deceased and took him into bushes with them. At that time except him none was present. Out of fear he ran towards Bhinga town. On the way Prem Babu and Ram Phakere met him. He informed them about the incident and came back to the spot with them. Dead body of the deceased was lying on the road on southern side and many persons were present there. He did not see Lahar Prasad Verma and Sarabjeet Verma.

Learned Sessions Judge believed the eye-witness account, adduced the prosecution, did not consider the contradictions and discrepancies and material enough to disbelieve the eye witness account. He rejected the arguments advanced on behalf of the defence and recorded the finding guilt against the appellants, thereafter he convicted and sentenced the present appellants mentioned as above.

Heard Sri Nagendra Mohan, learned counsel for the appellants, Sri M.Y. Ansari, learned AGA for the State and perused the record.

Appellant No. 2 in Criminal Appeal No. 379 of 2007 has been declared juvenile by the Juvenile Justice Board vide report dated 7th July, 2015. We propose to deal with the matter of Nizamuddin in accordance with the Section 20 of Juvenile Justice (Care and Protection of Children) Act, 2000. Learned counsel for the appellants has submitted that the impugned judgment is not sustainable. Learned trial Judge has not appreciated the evidence in proper perspective to wit, he has ignored that in the First Information Report, use of grenade by Khalil was not mentioned, there are over writings in the inquest report which unmistakably indicate that FIR was not in existence when inquest report was prepared and it was ante-timed. His further argument is that in the inquest report, description of weapons used for the commission of murder has not been given, special report was not send, Chik FIR dated 2nd August, 1999 reached the Court of Magistrate on 19th August, 1999. According to learned counsel for the appellants, FIR has not been lodged by eye-witness, this fact is evident from the fact that in the FIR, it has not been mentioned that bag of the deceased was looted by the appellants. According to him, learned Sessions Judge has not taken into consideration defence evidence and wrongly convicted the present appellants.

On behalf of the respondent-State, learned AGA has repelled these arguments and justified the findings recorded by the learned Sessions Judge. He has further pointed out that the deceased was an advocate. He was murdered on account of enmity while he was coming back to his village.

Before we propose to deal with the arguments submitted by the respective parties, we would like to recollect the manner in which appeal against conviction is required to be considered by this Court and scope of jurisdiction conferred on the Court by Sections 374 and 386 Cr.P.C. Further we would like to refresh the observation made by the Apex Court in the case of Ishvarbhai Fuljibhai Patni v. State of Gujarat [1995 Supreme Court Cases (Crl) 222]. Para-4 of the judgment reads as under:

"4. Since, the High Court was dealing with the appeal in exercise of its appellate jurisdiction, against conviction and sentence of life imprisonment, it was required to consider and discuss the evidence and deal with the arguments raised at the bar. Let alone, any discussion of the evidence, we do not find that the High Court even cared to notice the evidence led in the case. None of the arguments of the learned counsel for the appellant have been noticed, much less considered and discussed. The judgment is cryptic and we are at loss to understand as to what prevailed with the High Court to uphold the conviction and sentence of the appellant. On a plain requirement of justice, the High Court while dealing with a first appeal against conviction and sentence is expected to, howsoever briefly depending upon the facts of the case, consider and discuss the evidence and deal with the submissions raised at the bar. If it fails to do so, it apparently fails in the discharge of one of its essential jurisdiction under its appellate powers. In view of the infirmities pointed out by us, the judgment under appeal cannot be sustained."

In the case of Lal Mandi Vs. State of West Bengal, , the Apex Court in para-5 of the report has given caution to the High Court reminding its duty in the matter of hearing of appeal against conviction. It would be gainful to reproduce the observation made in para-5 of the report, extracted below:

"5. To say the least, the approach of the High Court is totally fallacious. In an appeal against conviction, the Appellate Court has the duty to itself appreciate the evidence on the record and if two views are possible on the appraisal of the evidence, the benefit of reasonable doubt has to be given to an accused. It is not correct to suggest that the "Appellate Court cannot legally interfere with" the order of conviction where the trial court has found the evidence as reliable and that it cannot substitute the findings of the Sessions Judge by its own, if it arrives at a different conclusion on reassessment of the evidence. The observation made in Tota Singh''s case, which was an appeal against acquittal, have been misunderstood and mechanically applied. Though, the powers of an appellate court, while dealing with an appeal against acquittal and an appeal against conviction are equally wide but the considerations which weigh with it while dealing with an appeal against an order of acquittal and in an appeal against conviction are distinct and separate. The presumption of innocence of accused which gets strengthened on his acquittal is not available on his conviction. An appellate court may give every reasonable weight to the conclusions arrived at by the trial court but it must be remembered that an appellate court is duty bound, in the same way as the trial court, to test the evidence extrinsically as well as intrinsically and to consider as thoroughly as the trial court, all the circumstances available on the record so as to arrive at an independent finding regarding guilt or innocence of the convict. An Appellate Court fails in the discharge of one of its essential duties, if it fails to itself appreciate the evidence on the record and arrive at an independent finding based on the appraisal of such evidence."

Before we embark to re-examine and reassess the probative force of the testimonies of the eye-witnesses examined by the prosecution in support of the charges, we think that medical evidence should be taken into account first because from the medical evidence some assistance would be derived while we will be appreciating the eye witness account. We have reproduced the ante-mortem injuries found on the dead body of the deceased. Dr. V.M. Pandey, P.W.-7 who conducted the postmortem examination has been cross examined only on three points, whether he found any exit fire arm wound on the person of the deceased, nature of fire arm used by the assailants and estimated time of taking food before deceased had died but neither ante-mortem injuries recorded in the postmortem report Exhibit Ka-15 nor cause of death and nor time of death has been disputed by the defence. The doctor has stated that he did not find any exit wound on the person of the deceased. He could not form an opinion that fire arm injuries were caused by which type of fire arm. He opined that the deceased must have taken food 3-4 hours before his death. Thus, homicidal death of the deceased is established from the statement of Dr. V.M. Pandey, P.W.7 which is duly corroborated by postmortem report Exhibit Ka-15. We can safely conclude that his opinion regarding time of death and cause of death are duly considered and worthy of reliance.

What, we find in the impugned judgment that has engaged our attention for a considerable period is in the instant matter, some material facts were not mentioned in the First Information Report lodged by an eye-witness and also scribe by an eye-witness. These facts are as under:--

"1. In the First Information Report, it has been mentioned when the deceased was crossing waterlogged dip, accused came on the road, Channan and Nizamuddin discharged gun shot from their country made pistols at the deceased.

Sustaining gun shots the deceased had fallen down.

From the right side of the road, Khalil, Munna Ram Tiwari, and Deputy Pandey armed with ''Ghadasa'', ''Pharsa'' & ''Gupti'' started to shower blows from their respective weapons on the deceased.

When witnesses raised alarm, after murdering the deceased and threatening the witnesses, the accused departed towards northern side."

In the evidence given before the trial court, eye-witness version on these points have deviated from the FIR and the following improvements were made:--

"1. When the deceased after crossing waterlogged dip, reached on the road, Channan and Nizamuddin came in front of him. Both were armed with country made pistols. Nizamuddin caught hold of the deceased and Channan after putting country made pistol on the side of the head above the ear (Kanpatti), shot him.

The deceased after removing the hands of Nizamuddin tried to run away, at that Nizamuddin shot from country made pistol on the back of the deceased.

The deceased faltered and fell down, thereafter, in order to save himself ran towards the bushes on the southern side of the road.

From the southern side of the road, Khalil and Munna Ram Tiwari, Deputy Pandey etc. came. Khalil was holding ''Ghadasa'' and country made granade, Munna Ram Tiwari was armed with ''Pharsa'' and Deputy Pandey was armed with ''Gupti''.

When the deceased was running, Khalil had thrown country made bomb on his brother, there upon the deceased fell on the bushes.

Khalil, Munna Ram Tiwari and Deputy Pandey struck blows on the deceased from ''Ghadasa'', ''Pharsa'' and ''Gupti''.

When the witnesses raised alarm, the assailants threatened them and after murdering the deceased ran away to the northern side.

It has also come out that the deceased was carrying bag which was taken away by the assailants while departing."

There is no dispute that these improvements did not find place in the First Information Report and it is also not res-integra that such type of improvements would be treated material omission amounting to material contradictions.

Perusal of the impugned judgment reveals that the defence impeached the prosecution evidence on the basis of these omissions in the First Information Report. We find that the learned trial Judge has repelled the argument on account of the fact that witness Lahar Prasad Verma, first informant P.W.-1 and scribe of the First Information Report Sarabjeet Verma, P.W.-2 were interrogated by the investigating officer on the same day and in their statements recorded under Section 161 Cr.P.C. all these improvements indicated above found place. Relying upon the well established law that First Information Report is not an encyclopaedia of the crime, he treated the omissions in the First Information Report supplemented by their statements recorded under Section 161 Cr.P.C. and came to the opinion that improvements stated above did not make the veracity of the prosecution version doubtful. Since two eye-witnesses were party to the First Information Report, we think that it is our duty to find out whether the learned trial Judge has rightly rejected the effect of the material contradictions finding place in the First Information Report as of no significance. While doing so, we will also be required to see whether investigating officer conducted the investigation fairly or there were manipulation in it to make up a good case for the prosecution.

If FIR has been promptly lodged and investigation has been conducted properly i.e. statements of Lahar Prasad Verma and Sarabjeet Verma, the defence of the appellants would perhaps deserve the same fate as it was dealt with by the learned Sessions Judge. Time of incident is stated to be 5.30 p.m., Chik FIR was scribed at 6.35 p.m. on the same day, distance between the place of occurrence and the police station is 10 kms. On the face of it, FIR has been promptly lodged. To succeed, the prosecution is obligated to show that crime was reported without undue delay. Under Section 114 of the Evidence Act, there are rebutable presumption which the Court may raise. Illustration ''e'' of this section empowers the Court to presume that official acts have been regularly performed. On the basis of this presumption the Court is entitled to raise a presumption that at the stated time the crime was reported may be presumed to be correct on the basis of time mentioned in the Chik FIR about lodging of the First Information Report. However, this presumption has been confined to the procedure only by long series of decisions, in matters when doing an official act, goes to the root of the validity of the result, Division Bench of this Court in Swadeshi Cotton Mills Co. Ltd. Vs. State Industrial Tribunal, U.P. and Others, , refused to draw such presumption. It is trite to say that lodging of the First Information Report at the time entered in Chik FIR has assumed great importance. We do not think that this is a matter of mere procedure, on it depends the fate of the prosecution and the defence. Even if we treat that onus is on the defence to show that the police personnel colluded with the first informant against the appellants to show that crime was reported promptly. We find on the Chik FIR Exhibit Ka-3 that Chik FIR had reached the Court of CJM on 18th August, 1999 almost with the delay of 16 days. We think that this late reaching of chik FIR in violation of statutory provisions shift burden on the prosecution to explain why it was received with such an inordinate delay. Copy of the report of General Diary of the police station Exhibit Ka-4 merely shows that at the time mentioned in Chik F.I.R. Case Crime No. 180 of 1999 on the basis of written report of Lahar Prasad Verma was registered. The authenticity of this document also becomes doubtful on account of the fact that Chik FIR was received with inordinate delay in the Court of CJM. This exhibit cannot be said to be treated to be an explanation for inordinate delay noticed by us hereinabove. H.M.-21 Shiv Das Verma, P.W.-5 merely testifies the scribing of Chik F.I.R. and registration of Case Crime No. 180 of 1999 and its entry in the report of the general diary. He was suggested that First Information Report was written and lodged one day after the incident which this witness denied.

Learned counsel for the appellants have drawn our attention to the facts that though inquest proceedings were held in the evening of 2nd August, 1999 but postmortem was conducted on 3rd August at 2.30 p.m. According to him, on the point of transportation of dead body from the place of occurrence to the mortuary, there is evidence of constable Dudhai Ram, P.W.-4, who discloses during cross examination that dead body was taken to Bahraich by Tractor-trolly and it took about two and a half hours. They reached Bahraich at 10.30 p.m. in the night. He was not aware that his ''Amad'' (arrival) at Reserve Police Line was shown to be 7.30 a.m. on the next following day. Lahar Prasad Verma, P.W.1 during cross examination has stated that he accompanied the dead body, it was taken to Bahraich on Tractor-trolly of Chandrasen at about 8 0''clock. He came directly to Bahraich. They reached there between 11-12 p.m. in the night. Two constables remained with the dead body at his residence and at 6-7 a.m. took the dead body to the mortuary. Why they waited during the night and delayed their arrival, the only possible answer appears to be they waited for copy of Chik FIR, a necessary document.

In this factual backdrop we appreciate the argument advanced on behalf of the appellants that inquest report was prepared without lodging of First Information Report. It becomes crystal clear that parentage of the deceased and the first informant were corrected by overwriting. Age of the deceased appears to be added subsequently. Name of the constable who brought police papers was inserted by way of addition. The most important omission is in Exhibit Ka-8, letter by the investigating officer to R.I. In the column showing the time when the dead body was dispatched is still blank. The column showing when the dead body was received in the Reserve Police Line. It only bears an endorsement by the Doctor that at 12.00 noon on 3rd August, 1999, he received the police papers and autopsy was performed on 2.30 p.m. on that day. The overwritings in the inquest report lead us to infer that when the inquest report was prepared, copy of the First Information Report was not with the investigating officer who conducted the inquest proceedings. Here it is worth mentioning that inquest proceedings were held after lodging of F.I.R. and was terminated at 7.45 p.m. on 2nd August, 1999. Thus, it can be safely said that till 7.45 p.m. on 2nd August, 1999, FIR was not registered. Ante-timing of F.I.R. is the only possibility which has serious implications.

In support of his arguments the learned counsel for the appellants has referred the case of Meharaj Singh v. State of U.P. 1995 Crl.LJ 457 (SC) he has placed reliance on the observations made in the paragraph 12 of the report which reads as under:

"(12) FIR in 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 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 eye witnesses, if any. Delay in lodging the FIR often results in embellishment, which is a creature of an after though. On account of delay, the FIR not only gets bereft of the advantage of spontaneity, danger also creeps in of the introduction of a 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. One of the checks is the receipt of the copy of the FIR, called a special report in a murder case, by the local Magistrate. If this report is received by the Magistrate late it can give rise to an inference that the FIR was not lodged at the time it is alleged to have been recorded, unless, of course the prosecution can offer a satisfactory explanation for the delay in dispatching or receipt of the copy of the FIR by the local Magistrate. Prosecution has led no evidence at all in this behalf. The second eternal check equally important is the sending of the copy of the FIR along with the dead body and its reference in the inquest report. Even though the inquest report, prepared under Section 174 Cr.P.C. is aimed at serving a statutory function to lend credence to the prosecution case, the details of the FIR and the gist of statements recorded during inquest proceedings get reflected in the report. The absence of those details is indicative of the fact that the prosecution story was still in embryo and had not been given any shape and that the FIR came to be recorded later on after due deliberations and consultations and was then ante timed to give it the colour of a promptly lodged FIR. In our opinion, on account of the infirmities as noticed above, the FIR has lost its value and authenticity and it appears to us that the same has been ante timed and had not been recorded till the inquest proceedings were over at the spot by PW8."

The above observations of the Hon''ble Apex Court are still holding the field.

The very basis of the prosecution of the appellants become shrouded with doubt and about the fairness of the investigating agency cannot be inferred in such circumstances. When we reach the possibility of investigating officer colluding with the first informant to implicate the appellants by over stepping his authority, we cannot ruled out the chances that on the following day i.e. 3rd August, 1999, after spot inspection and finding the remains of use of country made bomb, the investigating officer had recorded the statement of the first informant and Sarbjeet Verma, P.W.-2 under Section 161 Cr.P.C. This finding can also be objectively corroborated from the fact that traces of country made bomb could be discovered only in the morning of 3rd August, 1999. Had it been discovered on 2nd August, 1999 the first informant could have added that in his written report which has been held to be written after due deliberation. This is not a mere conjecture on our part. Inspector S.S. Solanki, P.W.6 has stated in his examination-in-chief that as soon as he received the police papers, he reached on the spot and held the inquest proceedings. According to him, thereafter he had recorded the statements of Lahar Prasad Verma and Sarabjeet Verma. According to Lahar Prasad Verma, P.W.-1, he has proceeded with the dead body at 8.00 p.m. Inquest proceedings were concluded at 7.45 p.m. Some time must have spent in obtaining signatures of the witnesses of the inquest proceedings. Thus, there remains no time wherein the statement of the first informant could be recorded by Sri S.S. Solanki, P.W.-6.

When we have reached to this point that statements of Lahar Prasad Verma, P.W.-1 and Sarabjeet Verma, P.W.-2 were recorded by the investigating officer under Section 161 Cr.P.C. belatedly and these statements were deliberately ante-timed, reason shown by the learned Sessions Judge to place reliance on these statements and not to treat the omissions in the First Information Report indicated by us, hereinbefore appears to be erroneous. The omissions amounting to material contradictions hit the very substratum of the prosecution story thereby make the genesis of the occurrence and eye witness account highly doubtful.

More so statements recorded under section 161 Cr.P.C. can be used only for contradiction purposes, the learned Sessions Judge has erred in using them to corroborated the statements on oath made by these two witnesses. That is not permissible in law.

This leads us to conclude that neither Lahar Prasad Verma, P.W.-1 nor Sarabjeet Verma, P.W.-2 nor Ram Phakere Verma, P.W.-3 had seen the occurrence. They are planted witnesses. On their testimonies no reliance can be placed.

As against this we have the testimony of Prem Babu, D.W.-1 who was admittedly clerk of the deceased and the resident of the same village. He has given vivid account of the fateful day. During cross examination nothing can be extracted which may reflect that he was favouring the accused persons and concealing the correct facts. The learned trial judge did not treat his evidence in the same light in which he had appreciated the evidence of prosecution witnesses. Only by denying that he was not interrogated by the investigating officer, his evidence does not loose its value.

Ali Ahmad, D.W.-2 also successfully faced the test of cross examination. He has given reason for his presence at the spot at the relevant time. His testimony has been discarded on the ground that, it was the first time that deceased took ride on his motorcycle, does not appear an adequate reason to disbelieve the statement on oath given by defence witness. Evidence of the defence witnesses is required to be appreciated in the same manner and on the same yardsticks which are used in reference to the prosecution witness.

In view of above, we find that quality of the defence evidence is better than evidence adduced by the prosecution. May be the evidence of the defence witnesses in itself not clinching in character about the innocence of the appellants however, it is adequate enough to create a doubt about the complicity of the appellant in the occurrence culminating in the death of the deceased. We are making this observation apart from the reasons which lead us to disbelieve the veracity of the prosecution story. When these two are taken into consideration, simultaneously we have no hesitation to record a finding that in the present matter prosecution has failed to prove the charges against the present appellants beyond doubt.

The impugned judgment suffers from factual error and legal infirmities. Findings recorded by the learned Sessions Judge are not based on proper appreciation of evidence, hence, they are not sustainable. The impugned judgment and order are liable to be set aside. Therefore, the appeals deserve to be allowed.

Criminal Appeal No. 379 of 2007 and Criminal Appeal No. 380 of 2007 are allowed. The impugned judgment and order dated 2.2.2007 are set aside. Conviction and sentence of the appellants awarded by the trial court under Sections 147 , 148 , 149 , 302 , 506 I.P.C. are set aside. The appellants are acquitted from the charges levelled against them. The appellants are on bail. They need not surrender their bail provided under Section 437-A Cr.P.C.. They file their personal bond and two sureties like amount to the satisfaction of the Sessions Judge concerned within 30 days from the date of judgement.

Office is directed to communicate this order to the court concerned and to send back the record to the court below.