Ravindra vs State

K.S. Rakhra, J.—This is an appeal u/s 374 (2) Cr.P.C. against the judgment and order dated 16.4.1982 passed by Vth Additional Sessions judge Budaun in Sessions Trial No. 378 of 1979 (State v. Ravindra) whereby the appellant has been convicted and sentenced to life imprisonment u/s 302 IPC and two years rigorous imprisonment u/s 324 IPC.

The incident relates to murder of Ram Krishna son of Rudra Prasad resident of village Sathra Police Station Usehat District Budaun which took place in the year 1972. He had contested election of village Pradhan against Baba Vishal Das who was being supported by the appellant''s father Ramdin. In the said election Baba Vishal Das defeated the deceased. After the said election appellant''s father Ramdin was murdered. His son Hari Om lodged first information report in the matter against three persons namely Ram Kislian his brother Sri Ram P.W. 1 and Nazir. All the three faced trial and were convicted by the Sessions Court. In appeal they were however, acquitted by the High Court in the year 1974. This is said to be the motive for commission of present crime and killing of Ram Krishna by the present appellant.

Ram Krishna aforesaid was killed on 29.7.1979 and his brother Sri Ram P.W. 1 lodged report of the incident on the same day at 12.45 p.m. naming appellant as the sole accused. The incident is said to have taken place at 10.00 a.m. under a Neem tree in a "Kabristan" which is about 2'' 1/2 furlong south from the abadi of village Sathra. Sri Ram claiming himself to be an eye witness stated in the first information report that Ram Krishna had gone to his field towards south east of the village abadi to deliver meals to a labour working in the field. This field was about 2-3 furlongs away from the ''Kabristan''. On his way back Ram Krishna stopped in the Kabristan under a Neem tree in order to rest for awhile because the sun was very bright. Under the same tree Nabboo P.W. 2 and Ram Swaroop who is uncle of the deceased also came and sat down. They all started smoking "biri". When the deceased did not return home till late, his brother Sri Ram finding the delay to be undue and apprehending some untoward incident on account of enmity with the sons of Ram Din, left his house for his field. At Kabristan he found all these persons sitting and he himself joined them. At about 10.00 a.m. Ravindra arrived there with a country made pistol in his hand and addressing the deceased, shouted that Ram Krishna had killed his father, therefore, Ram Krishna would not be left alive. After saying this, without giving any opportunity to anyone of them the appellant fired two successive shots from his gun on Ram Krishna. Both of them struck him and he fell on the ground and died on the spot. Informant and his companions raised alarm whereupon the appellant wielded his gun and ran towards east. He found Buddhsen P.W. 3 coming towards the place of occurrence from east and on seeing him the appellant shot a third fire in the air. It is claimed that in this incident Naboo P.W. 2 also received a single pellet injury in his abdomen. The appellant had run away leaving his ''Chappals'' there. A written report of the incident was lodged by Sri Ram P.W.I and in the said report it is mentioned that dead body was lying on the spot in the care of his family members and the pair of A ''Chappals'' and two empty shells of the shot fired by the appellant were also lying on the spot.

Ram Avadh Ram constable P.W. 9 registered the report as Crime No. 167 of 1979 under Sections 302/307 IPC. On the report lodged by Sri Ram investigation of the crime was taken up by Raj Nath Singh P.W.6. After due formalities dead body of Ram Krishna was sent for autopsy and post mortem examination was conducted by Dr. A.K. Malpani P.W. 4 on 30.7.79 at 2.30 p.m. The dead body was kept in Police Line Budaun in the night between 29/30.7.1979.

In the post mortem examination, following ante-mortem injuries were found on the body of deceased Ram Krishna:

1) Gun shot wound of entry 1 cm x 1 cm x brain deep on left side making a hole in the skull 9 cm above from It. ear. There was no blackening or tattooing present. One big pellet was recovered from brain cavity Lt. side.

2) Gun shot wound J cm x 1 cm x scalp deep on left mastoid region. One pellet was recovered.

3) Gun shot wound of entry 1 cm x 1 cm x skin deep on Rt. side chest 9 cm above from Rt. Nipple at 12 ''O''clock position.

4) Gun shot wound of entry 1 cm x 1 cm x skin deep on Rt. Side chest 6 cm lateral and anterior to injury No. 3 at anterior axillary line.

5) Gun shot wound of entry 1 cm x 1 cm x skin deep on top of Rt. Shoulder joint.

6) Gun shot wound of entry 1 cm x 1 cm x skin deep on Rt. scapular region upper part.

7) Gun shot wound of entry J cm x 1 cm x muscle deep 6 cm lateral to injury No. 6

8) Gun shot abrasion 5 cm x 2 cm x 4 cm lateral to injury No. 1

9) Gun shot wound of entry 1 cm x 1 cm x bone deep 4 cm below & medial to injury No. 6, one pellet was recovered.

10) Gun shot wound of entry 4 cm below & lateral to injury No. 9 measuring 1 cm x 1 cm muscle deep.

11) Gun shot wound of entry 1 cm x 1 cm x brain deep 7 cm lateral to injury No. 10.

12) Gun shot wound of entry 1 cm x J cm x cavity deep on inferior angle of scapula.

13) Gun shot wound of entry 1 cm x 1 cm communicating to wound of exit on Rt. Side scapular region upper part.

14) Gun shot wound of Exit 2 cm x 2 cm communicating to wound of entry (injury No. 13) on Rt. Side shoulder on anterior aspect of chest 1 cm above clavicle.

15) Gun shot abrasion 1.5 cm x 1 cm on mid line back upper third.

16) Gun shot abrasion 4 cm x 1 cm on back left side 1 cm from mid line.

17) Gun shot abrasion 3 cm x 1 cm over back of left scapular region medial border.

18) Gun shot wound 1 cm x 1 cm x skin deep on scapular region medial part.

19) Gun shot wound of entry 1 cm x 1 cm x skin deep on left shoulder.

20) Gun shot abrasion on dorsum of left wrist joint.

21) Contusion 6 cm x 3 cm on left side of deltoid region.

22) Contusion 6 cm x 3 cm on the left side of chest 2 cm below left nipple.

23) Contusion 6 cm x 2 cm on lateral side of left leg upper IIIrd about 4 cm below and lateral to lower border of the left patella.

24) Abrasion about 2 cm x 2 cm over left side of back about 2 cm to T-12 vertebra spine.

The doctor also found fracture of right humorous bone. In the skull a hole of 1 cm x 1 cm on left parietal region under injury No. 1 was found. Membranes were punctured. Brain was lacerated on left side. First left lade rib was fractured. Pleura was found ruptured on both sides. Both lunges and pericardium were ruptured and the heart was found punctured. Seven pellets were recovered from the injuries. The stomach of the deceased was empty. Fluid and gas were found in small intestine but in the large intestine faecal matter and fluid were found. In the opinion of the doctor, the death had resulted from shock and haemorrhage as a result of ante-mortem injuries. The doctor had received ten papers from the police along with the dead body.

Nabboo P.W. 2 was similarly sent for medical examination by the police at about 5.00 p.m. on the date of the incident. He was medically examined by Dr. Zahirul Islam P.W. 5 at 8.10 p.m. and the following injury was found on his body:

1) One gun shot like wound 0.3 cm x 0.3 cm x skin deep right lower abdomen 12 cm outer to umbilicus.

Injury was kept under observation and X. ray was advised. There was no blackening, burning or tattooing. Doctor opined it to be half a day old.

For radiological examination Nabboo was referred to district hospital Budaun where Dr. V.P. Kulshreshtha P.W. 7 took his X. ray and examined him. His report Ex. Ka. 24 was to the effect that there was a big round radio opaque shadow of metallic density. The police after investigation found prima facie case against the appellant and submitted charge sheet against him.

The defence taken by the appellant was that he has been falsely implicated on account of enmity. It was contended by him that Sri Ram P.W. 1 was not an eye witness of the occurrence. There was no occasion for him to be there at the alleged time of the incident. The defence suggests that the deceased had gone to ease himself in the early dark hours of the day and there he was done to death unnoticed by any person. It was claimed that subsequently on account of enmity, the appellant was named and the first information report was not only ante-timed but was also prepared and signed by some person other than the informant. According to defence in order to give it a shape of natural story, the informant and the investigating agency planted a bucket and a handkerchief at the place of occurrence to show that the deceased had gone to his field carrying food and water for the labour working there.

With regard to Nabboo P.W. 2 who claimed to be an injured witness, it was suggested that he had received some injury in the past and a pellet was already embedded in his body. For the purpose of present case he used this and fabricated a skin deep small injury to show as if it had been caused by pellet fired from a shot in this incident and thereby to establish his presence on the place of occurrence. The appellant also disowned the pair of Chappals alleged to have been found at the place of occurrence.

It has come in the evidence that Ram Swarup who claims to be an eye witness is real uncle of the deceased. Nabboo P.W. 2 is cousin brother of Nazir who along with deceased was an accused in the murder of the appellant''s father Ramdin. Buddhsen P.W. 3 was also related to the deceased as his "Mama" was the father in law of the deceased. The defence suggestion is that only interested and inimical witnesses were cited as prosecution witnesses.

In order to prove the allegations, the prosecution examined nine witnesses. Out of them three i.e. Sri Ram P.W. 1, Naboo, P.W. 2 and Buddhsen P.W. 3 are said to be the witness of fact. As stated earlier Sri Ram and Nabboo were allegedly sitting with the deceased when the assault was made and therefore, they have supported the entire prosecution story and have clearly stated that the appellant had fired at and killed Ram Krishna Buddhsen P.W. 3 is a chance witness who was going from village Sathra towards Garhi of Vishal Dass. He was at a distance of about 200 paces from "Kabristan" towards east when he Beard sound of two shots fired from a fire arm and he found the appellant running from west with country made pistol in his hand. When he was at a distance of 100 paces from the appellant, the latter did a fire there and succeeded in running away towards east. When the witness reached the "Kabristan" he found Ram Krishna lying dead and Sri Ram and Nabboo raising hue and cry there. He had also found that Nabboo had received injury of a pellet. The witness stayed there for two minutes and went away. He has supported the prosecution story by stating above facts and has also stated that on the spot Sri Ram P.W. 1 had disclosed to him that Ravindra had fired at and killed Ram Krishna.

Next set of witnesses consists of Dr. A.K. Malpani P.W.4 who had conducted post mortem examination on the body of the deceased Dr. Zahirul Islam P.W. 5 had examined the injury of Nabboo at Usehat and referred him to District Hospital for X. ray examination. Dr. V.P. Kulshreshth P.W. 7 is the Radiologist who had examined Nabboo at district Hospital Budaun and had found a big radio opaque shadow under the alleged injury suffered by Nabboo. The testimony given by these witnesses has already been discussed earlier in the judgment.

The last set of witnesses is of constable Ram Avadh Ram P.W. 9 who on the information of Sri Ram registered the case and prepared chik FIR. The constable Ranvir Singh P.W.8 is the person who was handed over the dead body of Ram Krishna at the place of occurrence on the date of incident at about 5-6 p.m. He stated that dead body was brought to Usehat on the same clay at around 10.00 p.m. and from there it was shifted to Budaun District Head Quarter at about midnight. The distance between Usehat and Budaun is at about 35 km. and these two places are connected with pucca road Raj Nath Singh P.W. 6 is investigating officer who after investigation submitted charge sheet.

In reply to this, defence has also examined four witnesses. Dr. Kranti Kumar D.W. 1 is a hand writing and finger print expert employed in the forensic science laboratory. His opinion was sought about the written report said to have been lodged by Sri Ram with regard to the incident in question. He gave opinion that after comparison of specimen writing and signature of the informant with Ex.Ka. 1 he found that written report was not prepared and signed by the informant. Ram Prakash Misra D.W. 2 is lekhpal who has been examined to prove some revenue entries, and Raja Babu D.W. 4 is a formal witness. He is a reader of the court before whom specimen signature and hand writing of the first informant was collected for comparison.

The fourth defence witness Dr. B. Rai D.W. 3 is an important witness whose opinion was sought on the two empty shells of 12 bore cartridges alleged to have been found at the place of occurrence. They were said to have been dropped on the spot by the accused appellant in the course of the incident as he reloaded his gun. Since the prosecution was claiming that culprit had used a single barrel gun, opinion was sought from Sri B. Rai as to whether the shots relating to the two empty shells produced before him were fired from one weapon or from two different weapons. He gave an opinion that impression of striking pin on the head of the shells were dissimilar and therefore, they were shot from different barrels using different pins.

On the basis of the evidence on record learned trial judge found that the prosecution story is highly reliable and accordingly he convicted the appellant and sentenced him as stated earlier.

We have heard Sri P.N. Misra, learned Counsel for the appellant, Sri J.S. Sengar and Sri Ajit Kumar Solanki, learned Counsel for the complainant and Sri Suresh Chandra Dwivedi, AGA for the State. ^^^

Sri P.N. Misra, has challenged the conviction and the order passed by the trial court by saying that the trial court has committed error in accepting the prosecution version about time of occurrence. According to him, the deceased had gone in the dark hours of the morning to ease himself where he was done to death unnoticed by any person. Subsequently when his death was detected, a story was concocted and the appellant was named therein as an accused. His argument is that all the witnesses examined in the case by the prosecution as witnesses of fact are partisan and chance witnesses. No injury was sustained by Nabboo P.W. 2 and his injury has been fabricated taking benefit of the fact that a bullet was already embedded in his stomach on account of some past injury. Further it has been submitted by him that in the circumstance of the case Sri Ram P.W.I too should have been made target but strangely the appellant did no harm him and fired two shots on Ram Krishna which is not probable. Sri Misra vehemently argued that the incident did not take place in the manner alleged by the prosecution because there is no explanation of blunt object injuries sustained by the deceased which have been described in the post mortem examination report as contusion on certain parts of the body. According to him, prosecution has made improvement from time to time in order to meet deficiencies pointed out by the defence. He challenged the first information report by saying that it was a forged and ante-timed document.

Learned Counsel for the complainant as well as AGA on the other hand have argued that the appellant is real culprit and he was seen by the eye witnesses committing this murder. The deficiencies pointed out by the defence counsel were all minor according to them. They tried to give different explanations regarding difference in the striking pin mark made on the head of the two cartridges which were found on the spot. They have also tried to give explanation with regard to contusion shown on the body of the deceased and the injuries alleged to have been suffered by Nabboo in this incident. It was also argued by them that it was broad day light incident and there was sufficient motive for commission of the crime and a pair of Chappals of the deceased was found on the place of occurrence. All these contentions shall be discussed herein at appropriate stage.

We have carefully examined the entire evidence in the light of the argument raised by the learned Counsel for the parties.

As mentioned earlier, only three witnesses of fact have been examined by the prosecution and out of them Buddhsen P.W. 3 is not actual witness of occurrence but claims that he had seen the appellant running away towards east with a pistol in his hand and he had fired one shot in the air. He claims that when he went to "Kabristan" he found Ram Krishna lying dead while Sri Ram and Nabboo etc. were crying. They had told him that the appellant had killed Ram Krishna. It is therefore necessary to first examine if these two witnesses namely Sri Ram P.W. 1 and Naboo P.W. 2 had in fact seen the occurrence.

First of all let us take the case of Nabboo who claims to be an injured eye witness. As per defence he was cousin brother of Nazir who was an accused in the murder of Ramdin. Admittedly he had a field near the place of occurrence. In his deposition, he has stated that the appellant had fired from a single barrel gun and two shots were successively fired on Ram Krishna and a stray pellet also struck him in the abdomen. As mentioned earlier the injury found by the doctor on his body vide Ex.Ka. 4 was described as a gun shot like wound 0.3 x 0.3 cm x skin deep on the right lower abdomen and X. ray was advised. The defence claims that tins injury was fabricated by Nabboo in order to claim himself to be an eye witness of the occurrence. The defence suggestion is that he had earlier suffered an injury in a dacoity case along with his cousin Nazir and a pellet of gun shot struck him in the dacoity and was embedded in his abdomen. He claims this injury to have been caused to him in the present incident. While judging counter claims we find that the said pellet was not removed from his abdomen and was still lying there even when the witness appeared in the trial court on 11.8.1980 to make a deposition. This fact shows that the pellet lying in the abdomen was not making any trouble to him.

It is significant to note that all the injuries suffered by Ram Krishna deceased in this case corresponded to an entry wound of 1 cm x 1 cm. This shows that the cartridges used in firing contained pellets of 1 cm size. X. ray report Ex.Ka. 24 issued by Doctor V.P. Kulshreshtha P.W. 7 shows that the doctor had found a big round radio opaque shadow of metallic density in the abdomen of Nabboo. Since this X.ray was taken on reference being made by Dr. Zahirul Islam P.W. 5 who had conducted medical examination of Nabboo and issued injury report Ex.Ka. 4, it is clear that the doctor taking X. ray was aware of the injury noticed on the body of Nabboo. Since the deceased had received injuries from pellets of 1 cm size, the description of 1 big round radio opaque shadow of metallic density in the abdomen of Nabboo also suggests that it was a pellet of big size, at least bigger than the size of the injury noticed by the Dr. Zahirul Islam in Ex.Ka. 4. If Nabboo had received a pellet injury from the same shot which had been fired on Ram Krishna, the pellet in his body should have been of at least 1 cm in size. This does not conform to the injury size noted by Dr. Zahirul Islam in Ex.Ka. 4. He had found the injury of the size 0.3 x 0.3 cm x skin deep, which clearly indicates that this injury could not have been caused by a pellet of 1 cm size and therefore, the presence of pellet in the body of Nabboo is no indication of injury having been received in the present incident. It is significant to note that not only the size of the wound was 0.3 cm x 0.3 cm but its depth was only skin deep. No big size pellet can make entry from such small hole and that too when the hole is only skin deep. It is further to be noted that no blackening burning or tattooing was found with this injury, which could confirm the injury being caused by a fire arm. It is probably for this reason that Dr. Zahirul Islam was hesitant in describing it as a gun shot injury and has described it as a gun shot like injury. From this discussion it appears that the claim of Nabboo that he received a fire arm injury in his abdomen in this incident is untenable.

In addition to above there are several circumstances which create suspicion about the presence of Nabboo at the place of occurrence. It has come in the evidence that although he was an injured witness, he did not accompany Sri Ram to the police station to lodge the report and instead he claims to have remained present throughout near the dead body till the investigating officer came to the spot at about 4 ''O'' clock and sent him for medical examination through a constable at 5.00 p.m. It has also come in the evidence that after the murder of Ram Krishna several persons from surrounding area and family members of Ram Krishna had assembled at the place of occurrence. This witness claims that from the injury received by him, there was bleeding and he pressed ''Tahmad'' on the injury and the blood stains were found on the ''Tahmad'' itself. The point for consideration is that he was not of the family of Ram Krishna. He claims to have received injury and according to him a big size pellet is still embedded in his abdomen, in such a situation there was absolutely no justification for him to have stayed at the place of occurrence till 5.00 p.m. In all probability if he had received injury he must have left for the police station along with the first informant and in any case he must have rushed to doctor for getting medical aid. The investigating officer has stated that when he reached the place of occurrence he found Nabboo in pain and crying because of injury received by him. If Nabboo was feeling that much of pain and was crying because of injury it cannot be believed that he would remain present throughout near the body of the deceased and would not go to the doctor or to the police station, for medical aid/treatment or for complaint.

In addition to above, it is further to be noted that although the investigating officer had reached the place of occurrence at about 4 ''O'' clock and had found Nabboo there, his statement u/s 161 Cr.P.C. was not recorded by the investigating officer at that time. In fact it was recorded after about 7-8 days i.e. on 6th August 1979. He is resident of village Sathra where the incident took place. In the ordinary course even if he was sent by the investigating officer for medical aid on the same day without recording his statement, his statement should have been recorded on the next day or on the same day when the medical was done. Nabboo P.W. 2 in this regard has tried to give a lame excuse by saying that after his medical examination, the police constable who had accompanied him, told him to go anywhere he liked and therefore, he went to his daughter''s house in village Allapur. He claims that he had taken treatment from the doctor at Allapur and on 8th day he came to know that he was wanted by the investigating officer and therefore, he returned and met the investigating officer at Usehat where his statement was recorded.

This explanation given by Nabboo about his delayed statement u/s 161 Cr.P.C. is not reliable because he could not produce any evidence to show that at Allapur he had taken any medical treatment. In para 42 of his deposition he stated that he had never come in contact with any doctor. He stated that his son in law used to consult doctor and manage medicine for him but he failed to disclose name of the doctor. In the circumstances mentioned above, it is highly doubtful that Nabboo had received any injury in this incident. His injury noted by Dr. Zahirul Islam was too simple and could be easily fabricated. The delay in recording statement u/s 161 Cr.P.C. and his conduct of remaining at the place of occurrence till 5.00 p.m. without any reason would go to strengthen the above suspicion. Authenticity of his statement as an injured witness is therefore, reduced to zero.

Now let us see if otherwise Sri Ram''s & Nabboo''s claim to be an eye witness is to be accepted or not. Both of these witnesses have stated that the appellant had used a single barrel gun and he had reloaded the gun after each fire. Two shots were fired at the place of occurrence and according to them, the appellant had dropped the empties of two fired shots at the place of occurrence which were later on collected by the investigating officer. The appellant is said to have made third fire, when he was running away towards east and happened to find Buddhsen P.W. 3 coming from the opposite direction. The victim Ram Krishna and the witness present with him were all sitting under Neem tree in "Kabristan". According to their statements the victim Ram Krishna had received only fire arm injuries which have been described in the autopsy report. Ex.Ka. 3. There are 12 wounds of entry of 1 cm x 1 cm size and also a wound of exist of 2 cm x 2 cm size. All these injuries could naturally be caused by shots fired from a gun. The victim in addition to the above fire arm injuries had also on his body some other injuries not attributable to use of fire arm i.e. his injury No. 21 in the autopsy report was contusion 6 cm x 3 cm on left side of deltoid region. Injury No. 22 was contusion 6 cm x 3 cm on the left side of chest 2 cm below left nipple. Injury No. 23 was contusion 6 cm x 2 cm on lateral side of left leg upper IIIrd about 4 cm below and lateral to lower border of the left patela. Injury No. 24 was abrasion about 2 cm x 2 cm over left side of back. There is no satisfactory explanation as to how Ram Krishna had received three contusions of the above description. When the witnesses were put to cross examination on this point, they developed a story by saying that at the spot there were lying some bricks and after receiving the injury of fire arm, Ram Krishna had fallen on those bricks and also on the root of the Neem tree. He was wreathing in pain so violently that he received these contusions. The witnesses went to the extent of saying that blood coming from the injuries of the victim had stained bricks lying on the spot. The investigating officer Raj Nath Singh P.W. 6 however, did not find any bricks much less blood stained bricks at the place of occurrence nor did he find any blood stained root of the Neem tree there. The first information report is also silent about any such bricks or root of the Neem tree or wreathing of the victim in pain while lying on the bricks or on the root of Neem tree. Both these witnesses Nabboo and Sri Ram have stated that they had told the investigating officer about it but the investigating officer stated before the court that no such statement was given by these witnesses to him.

From the above discussions we conclude that there is no acceptable explanation for the contusions found on the body of the deceased and therefore, the presence of the eye witnesses who failed to give logical explanation for their absence is doubtful.

There are further very strong circumstance which create serious doubts about the claim of Nabboo and Sri Ram that they had seen the occurrence. As stated earlier both of them claimed that the appellant had opened fire from a single barrel gun and had dropped two empties of the used cartridges on the spot. They were collected by the investigating officer in presence of the witnesses and sent to "Malkhana" in a sealed bundle. The prosecution has led evidence to show that the seal of the bundle remained intact at the "Malkhana" as well as m transit and also at the laboratory where the same were sent for examination and report. Dr. B. Rai, D.W. 3 is a ballistic expert employed in the government forensic science laboratory at Lucknow since 1969. He had given his opinion in about 1200 cases prior to the opinion in the present case. After examining the two empties and impression of the firing pin on their heads he gave definite opinion that these two shots were not fired from one and the same barrel but had been fired from two different barrels. This opinion of the ballistic expert completely knocks down the prosecution version that the appellant had fired successive shots from a single barrel gun by reloading it on the spot. This circumstance again makes the presence of Nabboo and Sri Ram at the place of occurrence at the time of incident as not believable.

In order to meet this situation, different and contradictory arguments were pressed by the learned Counsel for the complainant and AGA. Sometimes it was argued that the gun used by appellant could have been double barrel gun which was confused by the witnesses as single barrel gun. This argument is to be rejected solely on the ground that the witnesses have clearly stated that after firing the first shot, the assailant dropped empty cartridges on the spot and reloaded the gun. After second shot also he reloaded the gun.

Another explanation tried to be given by Sri Sengar learned Counsel for the complainant was that the accused appellant might have brought with him one empty of an earlier used cartridge and might have dropped it at the place of occurrence in order to create confusion. We are of the opinion that no such inference can be drawn on the basis of surmises. In any case both witnesses have stated that two empties were dropped by the appellant at the place of occurrence after firing two shots and if the appellant had brought with him one empty of some cartridges shot earlier, the investigating officer should have found three empties at the place of occurrence which is not the case of the prosecution.

The prosecution also claims that the accused had left his "Chappals" on the place of occurrence and the said "Chappals" were collected by the investigating officer but no satisfactory evidence was produced before the trial court to show that these "Chappals" really belonged to the appellant.

Now let us examine the circumstances to find out whether prosecution story as given in the first information report was probable or not. It is claimed by the prosecution that this murder was committed on account of earlier murder of Ramdin, the father of the present appellant. The prosecution story is that deceased Ram Krishna had gone to deliver meal to labourers working in his field and when he did not return for sufficient time, Sri Ram P.W. 1 set out in search of him and found him resting and talking to Ram Swaroop in the "Kabristan" under a Neem tree. The first information report which is challenged by the defence appears to be ante-timed and forged document as it does not disclose as to at what time the deceased had gone to his field to deliver meal to his labourers. In evidence it has however, been stated by the witnesses that at about 8.00 a.m. Ram Krishna had left the house for the said purpose. It is in the evidence that the ''Kabristan'' was at a distance of about 2''1/2 furlong from the house of the deceased and his field was about 3 furlong from the ''Kabristan''. Thus, the field was about five or six furlongs away from the house of the deceased. He had left his house at 8.00 a.m. and at 9.30 a.m. Sri Ram went out in search of his brother by saying that he apprehended some untoward incident to have occurred on account of enmity with the sons of Ramdin.

The above version does not appear to be inspiring confidence. First of all only 1''1/2 hour had passed and looking to the distance which the deceased had to cover in going to the field and in coming back to the house, the period of 1''1/2 hours was not so much as to cause anxiety to Sri Ram inspiring him to set out in search of his brother. If there was real apprehension in his mind he would not have let the deceased go alone and would have accompanied him. Not only this, as per statement of Sri Ram the deceased owned a licensed gun. Had there been any real danger to his life, he must have in all probability, carried his gun with him. The very facts that he did not carry his gun nor did he take anybody else to accompany him despite that there was danger to his life make Sri Ram''s claim that he had set out in search of his brother to be unreliable. It is only a pretext for showing his presence at the place of occurrence.

Sri Ram''s presence on the place of occurrence is also doubtful because the appellant did not try to cause any harm to him. The appellant had allegedly fired a shot which had struck Ram Krishna and instead of firing a second shot on Sri Ram he chose to fire second shot also on Ram Krishna. Sri Ram was also accused in the murder of Ramdin and the role of firing was attributed to him in the said case. The fact that accused did not make any attempt on Sri Ram creates doubt about his presence.

Sri Ram''s presence further becomes doubtful because no blood stains were found on his cloth or on his hands. In his deposition in para 49 he mentioned that after the victim was fired at and the culprit had run away, he saw his brother and also tried to support him but found that Ram Krishna had died. Since no blood stains were found on his clothes, he changed his version by saying that after this incident he did not touch the body of his brother. This is highly unnatural conduct and the statement appears to have been given with a view to explain absence of blood stains on his hands and clothes.

A close scrutiny of the circumstance would show that prosecution''s claim that the deceased had gone to deliver food to some labourer working in his field and that this was done at 8.00 a.m. is also highly doubtful. In order to strengthen the prosecution story the witnesses have tried to say that at the place of occurrence a bucket used for carrying water, scarf and a basket for carrying "Chapatis" were also found near the dead body as if the deceased had returned after delivering food and water lo the labourer working in the field. The investigating Officer had collected all these articles from the place of occurrence. The defence contention is that these items were planted later on with a view rib give natural shape to the prosecution story. In support of this it has been pointed out that in the first information report Ex.Ka. 5 it is not mentioned that the deceased had gone to his field at 8.00 a.m. The first information report specifically mentions that a pair of Chappals & two empties of the cartridges shot on the spot were lying near the dead body. We are of the opinion that if the informant was so particular to go into these details in the first information report, he should have in all probability mentioned about the bucket, scarf and the basket also alleged to have been used by the deceased in taking meals to his labourer working in his field. The absence of all these particulars in the first information report creates doubt about the prosecution version.

In the circumstances of the case when defence was disputing prosecution version that the deceased had gone to his field to give food to the labour working there, it was incumbent for the prosecution to have examined the labourers working in the field to whom the meal was delivered. Sri Ram P.W. 1 in his testimony before the court in para 33 has stated that the person who was working as labourer was permanently engaged by him and he used to go to the field early morning in the dark hours for work. Neither the said labour has been examined nor any explanation has been given for not examining him before the court.

Sri Ram P.W. 1 in para 34 and 35 of the statement before the court deposed that the deceased had left the house for the said purpose without taking bath and without having any break fast. He has specifically mentioned that the deceased had defecated before leaving his house. In that connection he had stated that they had provision of latrine in the house itself, lie also slated that deceased used to defecate very early in the dark hour of the morning. Examining the autopsy report in the light of this statement of the witness, we notice that the doctor had found fluid and faecal matter in the large intestine and fluid and gases present in the small intestine of the deceased. Their presence is suggestive of the fact that he had not defecated till then and probably he had gone in the field to defecate when he was killed.

In addition to the above short comings there is also strong force in the contention of the defence that the first information report was ante-timed and is a forged document. Sri Ram P.W. 1 claims that after the incident he prepared the first information report at the place of occurrence itself by sending for a paper from his house. One Ram Sewak had accompanied him to the police station and his presence is noted at the police station in the general diary. Nabboo who was injured did not accompany the first informant to the police station. We have already mentioned that in the first information report although it has been mentioned that two cartridges and the pair of ''chappals'' are lying on the spot but the first information report is silent about the bucket, basket and the cloth in which chapatis. and water were taken for the labourer. If Sri Ram had prepared the first information report he must have mentioned them also in it. In order to show that the written report Ex.Ka. 1 was a forged document, the defence got the matter referred to hand writing expert who has been examined as Dr. Kranti Kumar D.W. 1. This witness after comparing the specimen of hand writing and the signature of the first informant gave definite opinion that on account of dissimilarities noticed by him, the questioned first information report was not written and signed by the first informant. The trial court has tried to ignore this fact by saying that the first information report was prepared immediately after the incident and therefore, there could be some difference in the hand writing specimen and the signature. We are of the opinion that the hand writing expert''s report in the circumstances of the case mentioned above cannot be ignored so lightly. This opinion about hand writing was given by a hand writing expert working in forensic science laboratory of State Government. The examination of the specimen of hand writing was not done by Dr. Kranti Kumar alone but it was done jointly by him and another expert Om Prakash Muni Tripathi who had also signed the report. The opinion of these experts therefore, is of great importance and for further reasons which are being given here after, it will be clear that the first information report is a fabricated document and is also ante-timed.

The first circumstance in this regard is description of Ram Sewak who had gone to the police station along with informant to lodge the report. Sri Ram admits that this Ram Sewak is "Nai" by caste, but in the general diary of the police it has been mentioned that the informant was accompanied by Ram Sewak Vaish. This mistake in description of the caste of Ram Sewak would show that the first information report was not prepared by the first informant and he had not gone to the police station at the time alleged by him. Secondly the entire prosecution story revolves around the fact that Ram Krishna had gone to his field at 8.00 a.m. but this time of 8.00 a.m. is neither mentioned in the first information report nor is mentioned in the statement of Sri Ram given u/s 161 Cr.P.C. He also did not mention to the investigating officer that Ram Krishna had taken along with him a bucket full of water, a basket and a piece of cloth or scarf for carrying Chapatis. The language of the first information report shows as if it were prepared at the police station. The expression used in it is ''Lash Mauke Par Chhor Aya Hun'' This description itself might not have been valuable but in the light of the other circumstance of the case it gathers importance.

The post mortem examination of the dead body was conducted on 30th July 1979 at 2.30 p.m. It has come in the evidence of constable Ranvir Singh P.W.8 that the distance between Ushet and Budaun is about 35 kilometres and they are connected by Pace a road. The distance of place of occurrence from the police station is about six miles given in the chick report. There was thus sufficient time gap between the time of occurrence and the post mortem examination. There is no satisfactory evidence to show that the copy of the first information report was forwarded to the doctor conducting autopsy of the dead body. Dr. A.K. Malpani P.W. 4 has stated that ten documents were received by him along with dead body. He has given details of those documents but he has not mentioned about the copy of the first information report. A perusal of the original inquest report shows that along with the dead body inquest report in four pages, challan "lash" in one page, photo "lash" in one page, form No. 33 in one page report of medical officer one page and specimen seal one page were sent to the doctor. It appears that after making all these entries, some addition was made. Portion of the relevant page is torn but on the existing portion there appears to have been written "Chik 1". The prosecution has failed to bring on record Chik report which they claim to have been sent to the doctor and was returned by him after his signature. The statement of the doctor in this regard suggests that two of the documents sent to the doctor were missing.

In light of this, let us see if the dead body and papers were despatched with all reasonable promptness or there was any slackness in that. Sri Ram P.W. 1 has stated that the dead body was shifted from the place of occurrence at about 6.00 p.m. by bullock cart upto Usehat where they reached by 9 or 10 p.m. From Usehat to Budaun. the dead body was shifted by a tractor trolley. According to him, the dead body was brought to Budaun police line at about mid night. The "Challan Lash" Ex.Ka.9 however, records that the dead body had arrived at Bundaun mortuary on 29th July 79 itself at 23.45 hours. This contradiction indicates that there were some manipulation with the records and different explanations were given to show the time consumed in shifting the body to mortuary. Not only this in this Challan Ex. Ka.9 the time of lodging of the report has been mentioned at 10.15 a.m. on 29.7.79. The first information report as per prosecution version in this case was lodged at 10.00 a.m. Variation in the description of time in form 13 and Chik FIR also indicates that the first information report was prepared subsequently. The above conclusion is further strengthened by the circumstance that the investigating officer was himself present at Budaun on 30th July 1979 whereas he ought to have been at village Sathra for the purpose of investigation. In tact, the investigating officer Raj Nath Sirrgh had admitted that after reaching the village Sathra on 29.7.79, he stayed there in the night and carried on the investigation in the morning of 30th July 1979. Again he carried investigation and recorded statement of various witnesses and remained there upto 12 in the noon. He says that thereafter he went to Budaun as he had come to know that the accused had gone to Budaun. He admits that he reached Budaun at about 3-4 p.m. There is no satisfactory evidence on record to show that the investigating officer had made any search for the accused at Budaun. The investigating officer admitted that he had not searched any house for the arrest of the accused. He gave general statement that he searched for the accused at some probable places. In the circumstance of the case, it cannot be ruled out that the investigating officer had carried copy of the first information report and other papers prepared subsequently to be placed before the doctor.

In the light of the discussions made above and also in light of the fact that only interested witnesses were cited as eye witnesses, we are of the definite opinion that the prosecution has failed to bring home its charges and possibility that the deceased had been killed in the earlier dark hours of the day when he had gone to ease himself cannot be ruled out. The presence of the eye witnesses Sri Ram and Nabboo at the place of occurrence is highly doubtful and so is presence of Buddhsen P.W. 3 who is also relation of the deceased and who says that after the incident he stayed there for only two minutes and thereafter left for the Gari Baba Vishal Das where he was going. He is the person who incidently was again present when the investigating officer was at the place of occurrence in the evening and was recording statement of the witnesses. The trial court has grossly erred in relying upon the prosecution witnesses and by basing conviction on the said evidence.

Resultantly the appeal is allowed. The conviction of the appellant u/s 302 and 324 IPC and sentences passed thereunder by the trial court are set aside. The appellant is acquitted. He is on bail. He need not surrender. His personal bonds and surety are discharged.

Let a copy of this judgment be certified to the trial court for information and necessary action.