Prabhu Dayal (In Jail) vs State of U.P.

K.S. Rakhra, J.—Appellant Prabhu Dayal has been held guilty and sentenced to life imprisonment u/s 302 IPC. by III Addl. District Sessions Judge, Hamirpur vide his judgment and order dated 30.9.1982 in Sessions Trial No. 292 of 1998 relating to crime No. 111 of 1980 police station Rath district Hamirpur. He has preferred this appeal u/s 374(2) Cr.P.C.

Prosecution story in short was that deceased Abdul Munir alias Munna and his brother Abdul Sagir resident of Diwanpura, police station Rath had gone to a place known as Ghasi Ram ka Talab to collect "Imli" leaves for their goat on 22.6.1980. At about 10 a.m. when they were about to return Abdul Munir was shot dead by Prabhu Dayal appellant who had enmity with the deceased and had fired on the exhortation of co-accused Hindupat who too was carrying a fire arm. This incident was witnessed by Kanhaiya Lal who was also accompanying the deceased. It was also witnessed by Wali Mohammad and Bhan Singh P.W. 3 who at that time were taking bath in the nearby pond i.e. Ghasi Ram ka Talab. When the witnesses challenged, the two assailants ran away.

It is alleged that the deceased had attacked the appellant about 7 years ago and was convicted u/s 307 IPC for the same. His appeal was however allowed by the High Court about a year ago. On account of this enmity, the deceased was killed.

Report of this incident was lodged at police station Rath by Abdul Sagir P.W. 2 at 11.15 a.m. and the investigation was taken up by Mohd. Rafat Kamal P.W. 4. He recorded the statement of the informant at the police station itself and proceeded to the place of occurrence where he held inquest of the dead body lying on the spot and prepared other related documents. The dead body was despatched for autopsy on the same day. Thereafter the Investigating Officer made spot inspection and prepared site plan at the pointing of informant. He also collected bloodstained and plain earth as well as bloodstained clothes of the deceased from the place of occurrence. On the same day he recorded the statement of inquest witness and proceeded to search for the culprits. Their houses were searched but they could not be traced out. On 23.6.1980 i.e. the next day he collected post mortem report. After this the Investigating Officer took up this investigation only on 2.7.50 on which date he recorded the statement of other eye witnesses including that of Bhan Singh P.W. 3. During this investigation appellant Prabhu Dayal surrendered in the court and was taken in to custody whereas co-accused Hindupat had absconded and could not be arrested. The police after investigation submitted charge sheet against Prabhu Dayal only.

In the trial, the prosecution examined only four witnesses namely Dr. A.K. Srivastava, P.W 1, Abdul Saghir P.W. 2, Bhan Singh P.W. 3 and Mohd. Rafat Kamal P.W. 4. No evidence was adduced by the accused in defence.

According to Dr. A.K. Srivastava P.W. 1 he had conducted post mortem examination of the body of Abdul Munir alias Munna on 22.6.80 at about 3 p.m. Ex.ka-1 is the post mortem report issued by him after the aforesaid examination. He had noted that rigor mortis was absent and greenish discolouration was also not present. The abdomen was slightly distended. According to witness following ante mortem injuries were found on the body:

Gun shot wound of entry 2.2 cm. x 2 cm. on the right side back, 17 cm. below inferio angle of right scapula with scortching and blackening on 6 cm. x 5 cm. area around the wound. 5 pellets and two wad pieces were recovered from the wound from abdominal cavity.

In the opinion of the witness death had occurred due to haemorrhage and shock and it was about six hours old.

Out of two eye witnesses examined by the prosecution Bhan Singh P.W. 3 is a student and is resident of Barhara police station Jalalpur but claims that at the relevant time he was residing as a tenant in the house of Janki Prasad at Rath. Admittedly when he appeared in the trial court for giving his testimony, he was living in the house of the father-in-law of the deceased Munna in mohalla Pathnau in Rath. Mis college was closed for summer vacation in those days but he had not gone to his louse at Barhara. The defence suggestion was that he had not seen the occurrence but was subsequently called from his house and was cited as a witness.

Both the eye witnesses namely Abdul Sagir P.W. 2 and Bhan Singh P.W. 3 supported the prosecution story and stated that they had seen the appellant Prabhu Dayal firing at Abdul Munir who died on the spot. In fact Bhan Singh P.W. 3 stated that on hearing the sound of firing he rushed to the place of occurrence and had seen Munna lying on the ground in a pool of blood and informant Abdul Sagir and Kanhaiya Lal were standing near him. He had also seen the appellant and his companion Hindupat each carrying fire arm in his hand, standing at a distance of about 10 paces from the victim. On being challenged they left the scene of occurrence making fire in the air. The trial court has believed their statements and found them corroborated by the statement of Dr. A.K. Srivastava P.W. 1 and has convicted the appellant.

We have heard Sri R.K. Gupta, learned Counsel for the appellant, Sri Sudhindra Kumar learned AGA. for the State and carefully examined the entire evidence on record.

The argument of Sri Gupta was that the appellant has been falsely implicated on account of previous enmity. No body had seen the occurrence and FIR was ante timed. According to him the medical evidence was not in confirmity with the oral description of the incident by the eye witnesses. Learned AGA. on the other hand contended that it is broad day light incident. The FIR was promptly lodged and the prosecution has produced ocular evidence which was fully corroborated by medical evidence and the circumstances.

On examining the evidence in the light of argument before us we find that the deceased had enmity not only with the appellant Prabhu Dayal but he was directly or indirectly connected with various criminal incidents. Some of the incident Abdul Sagir P.W. 2 has admitted and about some others he has pleaded ignorance. From his statement in the trial it has come that his own father Abdul Gafoor was also murdered earlier. This murder was committed allegedly by Muthi Pahalwan who was cousin brother of this witness. This Muthi Pahalwan and his associates were convicted by the Sessions Judge. P.W. 2 Abdul Sagir has further admitted that one Hasmat was murdered and for that deceased Abdul Munir alias Munna and his father in law Rahman were charge sheeted. Admittedly Rahman father-in-law of Munnu has also been murdered. It is also admitted that the present appellant Prabhu Dayal in a report regarding attack on him had named Munna, Mahesh and Tajju as culprits. As stated earlier Munna was convicted but his appeal was allowed by the High court. His co-accused Mahesh has also been murdered. Witness Abdul Sagir pleaded ignorance to the suggestion that one Prem Narain alia Munnu and his brother Jagdish were accused in Mahesh murder trial and the deceased Abdul Munir was a prosecution witness against Prem Narain and Jagdish. He has also pleaded ignorance to the suggestion that Abdul Munir was prosecution witness in the murder case of his father in law Rahman. The informant further admitted that subsequently Prem Narain alias Munnu has also been murdered after the incident of present crime. The above facts show that the deceased Abdul Munir alias Munna was either himself involved in several criminal activities or was related to the persons involved in such activities. The probability of his having several enemies is too strong.

When we examine the prosecution,evidence in the light of this backdrop we notice several shortcomings in the testimony of alleged witness. It is significant to note that Kanhaiya Lal and Wali Mohammad who could be independent witness have not come forward to support the prosecution version. It is quite doubtful if the FIR was promptly lodged as claimed by the prosecution. The place of occurrence was hardly 300 paces away from the house of first informant who in his deposition before the court says that after the incident he did not go to his house to inform his family members but proceeded to the police station leaving the dead body in the care of Kanhaiya Lal, Bhan Singh and Wali Mohammad. This conduct of this witness is highly improbable. Further he says that he had taken a blank lined paper from a betle shop and scribed the written report. The ''Paanwala'' had drawn this paper from a register kept by him. All the sheets in the register were lined sheets. Contrary to the statement of to the witness the written report given by him to the police station is scribed on a plain paper and not on a lined paper.

In support of his pleading that FIR was ante timed, learned Counsel for the appellant has drawn our attention to the inquest report Ex. ka-3 which does not contain any particulars of the FIR and gives no clue about the culprits or crime number. On the internal page of this inquest report no doubt the particular of GD entry has been mentioned but this in our opinion does not rule out the possibility of ante timing of the FIR. It is significant to note that the Investigating Officer claims to have prepared the inquest report on the date of incident itself in the presence of first informant but the first informant was not shown as inguest witness in the inquest memo Ex.ka-3. Similarly the details of the crime and particulars of the case are not mentioned in other paper sent with the dead body to the doctor for the purpose of conducting autopsy. Giving guide lines as how the evidence in such circumstances should be appreciated the Apex Court in the case of Meharaj Singh (L/Nk.) Vs. State of U.P., which has again been followed in Jagdish Murav v. State of U.P. 2006 (56) ACC 551 observed as follows:

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 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 (afterthought. On account of delay, the FIR not only gets benefit 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 despatching or receipt of the copy of the FIR by the Local Magistrate. Prosecution has led no evidence at all in this behalf, The second external check equally important is the sending of the copy of the copy of the FIR alongwith the dead body and its reference in the inquest report. Even though the inquest report, repared u/s 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 an embryo state 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 ate 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 P.W. 8.

We find force in the argument of learned Counsel for the appellant that the circumstances of the case discussed earlier are indicative of the fact that the prosecution story was still in embryo state rand had not been given any shape and that the FIR came to be recorded late after due deliberations and consultations and was then ante timed to give a colour of promptly lodged report.

Coupled with the above another important feature is that there was inordinate delay on the part of Investigating Officer in recording the statement of eye witnesses u/s 161 Cr.P.C. As mentioned earlier he Investigating Officer recorded the statement of P.W. 3 Bhan Singh after about ten days of the incident. The Investigating Officer has tried to explain this delay by saying that on 22.6.1980 Bhan Singh could not be contacted and the Investigating Officer got engaged in other activities. The activities in which the Investigating Officer claims to have been engaged were recording the statement of witnesses of inguest and time spent in search of accused persons. To our mind the explanation given by the Investigating Officer does not justify delay of ten days in recording the statement of Bhan Singh P.W. 3. Further this Bhan Singh is resident of village Barhara within police station Jalalpur but was shown temporarily residing in mohalla Rath. He is a student and claimed that he had not gone to his house at Barhara even during summer vacation. This appears to be very improbable. In the Circumstances of the case it can not be ruled out with certainty that Bhan Singh was not a got up witness and that the FIR was not ante timed. The above conclusion gets further support from the fact that in the case diary the Investigating Officer had not noted the time on Which he commenced investigation each day and time when it was closed. The first parcha in the case diary was perused by the circle officer on 17.7.1981 and the second parcha was sent by him on 30.7.1981. This gives rise to the possibility of preparing chik report subsequently and ante timing the same. In the same continuation it may be noted that chik FIR does not indicate in column No. 3 the time when the chik report was sent from the police station to the authority concerned. The chik FIR was also placed before the CJM. Hamirpur on 24.6.1980. The constable who had been assigned the duty of delivering the special report to the authority concerned at the head quarter returned to the police station after expiry of day of 22.6.1980. All these strongly lean in favour of the appellant who claimed that documents were being ante timed.

The claim of P.W. 3 Bhan Singh that accused Prabhu Dayal and Hindupat were standing with country made pistol in their hands at a distance of about ten paces from the deceased when he saw them is also not believable. The witness had taken a bath in the pond when the incident took place. It is difficult to believe that the culprits would keep standing at the place of occurrence till the witnesses started collecting.

The medical evidence and the testimony of Dr. A.K. Srivastava P.W. 1 is also not satisfactory and does not give a clear indication as to time when the death of Abdul Munir could have occurred. In the post mortem report Ex. Ka-1 the Doctor had mentioned that rigor mortis was absent. This circumstance could support the claim of the defence that victim had died some time in the early hours and no body had seen the same. The Doctor in his testimony before the court however tried to make improvement by saying that by ''rigor mortis absent''. Mentioned in his report he meant that rigor mortis had starting setting in but had not set in the entire body. Contrary to his report the Doctor stated that rigor mortis was present. This inconsistent statement of the doctor on very important point also gives support the prosecution argument.

Considering the cumulative effect of shortcomings and discrepancies in the prosecution evidence we are of the view that the possibility of FIR being ante timed can not be ruled out. The presence of P.W. 3 Bhan Singh near the place of occurrence is also, not probable, there was strong enmity of the deceased with several persons, the possibility of some body else having killed him in the dark hours can not be ruled out. The investigation also does not appear to be fair. In these circumstances the appellant is entitled to benefit of doubt and the trial court had committed error in holding him guilty. The appeal is allowed. The conviction and sentence of the appellant in S.T. No. 298 of 1980 is set aside. He is acquitted. He is on bail. His personal bonds are discharged and he need not surrender. Let a copy of this judgment be certified to the court below for necessary action.