State of U.P.; Ram Gopal vs Bhola and Others

Then IInd Addl. Sessions Judge Banda, vide his order and judgment dated 21878 passed in S.T No. 152A of 1975, State v. Bhola and 5 others, held the accused Bhola, Raj Kumar, Vijaipal, Jaikaran, Chandra Bhushan and Babu Ram not guilty of the charges under Sections 147, 148, 302/149, 307/149, 323/149 and acquitted them accordingly of the said charges.

Aggrieved against this order of acquittal, the complainant has filed the aforesaid revision and has sought a relief of setting aside the aforesaid judgment and order of the learned trial Court, and convict the accused respondents in accordance with law. The State has also felt aggrieved and filed the aforesaid appeal against the same judgment and against the same accused, which was registered as Criminal Appeal No. 3512 of 1978.

Since both the criminal appeal and revision arise out of the same order, therefore, they have been heard together.

The case arose out of the FIR dated 23775 lodged by the complainant Sri Ram Gopal Singh at 11.30 a.m. The incident is said to have taken place on the same date at about 5 pm. The distance of the police station from the place of occurrence is 18 Kms.

It has been alleged by the complainant Sri Ram Gopal Singh that on the date of occurrence, the complainant had gone to the house of Ram Autar at about 5 p.m. to greet him on the day of Holy and he was sitting with him at Ram Autar''s Chabutara and was indulging in conversation. His son Ram Krishna (deceased), Tulsi Ram, PW 3, Chandrapal, PW 2, Binda Singh and Deo Prasad, PW 4 were coming towards the complainant''s Baithaka. They were still about 3040 paces away from the Chabutara. Accused Bhola, Jai Karan, Ram Kumar, Raj Kumar, Chandra Bhushan, Baburam and Vijaipal, all respondents, arrived at the place, where Ram, Krishna (deceased) was. The accused Chandra Bhushan, Babu Ram and Jai Karan exhorted the other coaccused to murder Ram Krishna and Chandra Pal, PW 2 were available fortuitously. Being so exhorted, accused Bhola and Vijaipal fired at Ram Krishna and Chandra Pal with an intention to murder them. After receiving the fire shots, Ram Krishna fell down and Chandra Pal and injured. Then Tulsi Ram, Binda and Deo Parasad (supra) cautioned the accused not to proceed further. Thereupon, Raj Kumar pierced his Barchi in the body of Tulsi Ram with an intention to murder him. Accused Babu Ram and Chandra Bhushan were armed with lathies. Deo Prasad, PW 4 fired in exercise of right of private defence. Binda used his lathies in his defence. Bhola was armed with a rifle and Vijaipal was armed with a gun. Raj Kumar and Jaikaran were armed with Barchies. Babu Ram and Chandra Bhashan were armed with lathies. As the pressure upon the accused increased, they bolted the away. Ram Krishna was in a serious state. Therefore, he was brought to the Chabutara of Ram Autar and arrangements were being made to shift him to the hospital for medical aid, but the bullock cart arrived for carrying him when he breathed his last. Thereafter, the deadbody of Ram Krishna and injured persons were placed on the same cart and were brought upto Balbai Bus Station. After waiting for some time there, it was learnt that due to Holi festival on that day, no bus would be available. Therefore, all these persons were carried upto Banda in the same bullock cart. The accused were inimical towards the complainant and the deceased. Litigations were going on between them and on account of this enmity, they had murdered the deceased and injured others.

On the basis of the written FIR, Constable Sri Mohd. Mustafa, PW 8 registered the case in the G.D. on 27375 at 23.30 Hrs. and prepared the G.D. and the Chik report PW 2, Chandra Pal, PW 3, Tulsi Ram and PW 4, Deo Prasad were injured persons, therefore, they were sent to the Distt. Hospital, Banda alongwith Constable Sri Ayodhya Prasad for medical examination.

Unfortunately the injury reports of the three injured persons, PW 2, PW3 and PW 4 have not been available on the record. The learned trial Court has drawn an adverse inference against the prosecution.

The I.O. Sri Babu Lal, PW 9, has deposed that the case was registered in his presence at the police station. The injured witnesses as well as the complainant Ram Goapl Singh were present at the police station. Therefore, for the injured persons, namely, Tulsi Ram, Chandrapal and Deo Prasad, Chhithi Majrubies were prepared and they were sent alongwith Constable Sri Ayodhya Prasad, for medical examination. After sending the injured for the medical examination, the I.O. took the deadbody in his possession, prepared the Panchayatnama and other relevant documents and got them signed by the witnesses. He interrogated Head Constable Mohd. Mustafa, Constable Sri Ayodhya Prasad and witnesses like Sri Ram Gopal Singh, Binda Singh, Jitendra Pal Yadunath etc. Constable Sri Ayodhya Prasad had brought the carbon copies of the injury report. Therefore, the I.O. did not1 copied them in his case diary with a note that the carbon copies were not readable. He went to the hospital and interrogated the injured persons. He took in possession the bloodstained clothes of the deceased and the injured persons and got the deadbody sealed and sent for postmortem examination.

The postmortem examination on the deadbody of Ram Krishna was conducted by Dr. K.L. Pillal, PW 7 on 28375 at about 11.35 p.m. and he collected the following dates. It was a body of young man of musculer built. Rigour Mortis was present. Both the eyes were open. Cornea was hazy. He found the following injuries on the dead body :

(1) Gunshot injury of entry 1.5 cm x 1 cm x muscle deep on the left side neck, base anterior at 3 cm. above the middle of the left collar. Margins were inverted. Abraded collar present the edge of the wound. Direction downwards backwards and to the right.

(2) Gunshot injury of exit 2.5 cm. x 1 cm. on the right side back inner to the middle of the boarder of right shoulder blade. Margins inverted. Injury Nos. 1 and 2 communicating with each other.

(3) Gunshot injury of exit 1 cm. x 1/2 cm. inner to the middle to the right side back, 1 cm. inner to middle of the vertebra, border of right shoulder blade. Margins everted in injury Nos. 1 and II communicated freely. All blood vessels were lacerated. Back bones were formed in pieces.

On internal examination, he found that the pleura and parietal were torn and both the pleural cavities contained about 10 ounces of blood. Both the lungs were contused alongwith posterior border of the medical spinal aspect. Left upper lobe was punctured, through and through, with the opening on the lower part. The stomach contained about 250 Gms. of chewed food particles. The small intentine was distended full of gasses. The large intestine contained faecal matter. In the opinion of the Doctor Pillai, the death was ''caused as a result of shock and haemmorahage consequent upon antemortem firearm injuries. The injuries could have been caused by a rifle and they were sufficient in ordinary course to cause death. The deceased might have survived for not more than 30 minutes after the receipt of injuries. The death would have been caused about 3/4 day prior to the postmortem examination conducted by him on 28375 at about 11.45 a.m. It was possible that the person firing might have been at a higher level than the deceased. He would have bled a lot. If the deadbody was placed on a bullock cart, some blood might have spread on the same also. There could be a difference of 34 days either way in time of the occurrence.

After sending the deadbody for postmortem examination, the I.O. went to the spot and prepared the site plan Exhibit Ka 11. The place where Ram Kumar was said to have fallen was located by him in the passage and from there, some ordinary as well as bloodstained earth was collected and separately kept in containers and sealed. Some blood was recovered from the Chabutara, where he was made to lie down, from where he also collected both types of bloodstained earth as well as simple earth. On 10475 the CO. ordered for adding a charge under Section 307, IPC also. After concluding the investigation, he submitted a chargesheet on 28475, Exhibit Ka 15.

The prosecution examined the following evidence to prove its case.

PW 1, Ram Gopal Singh is the complainant and father of the deceased Ram Krishna. He has deposed that all the accused except Raj Kumar were members of the same family. Raj Kumar was also distantly related to them. He has given the following pedigree to connect the accused with each other.

He has, additionally stated that about 89 years prior to the incident, Baburam, Bhola, Jai Karan, Chandra Bhushan, Ram Kumar, Tulsi Ram, PW 3 and others had assaulted his father Jagannath A case under Sections 323/149, IPCwas launched, resulting in the conviction of Ram Ghulam (father of accused Raj Kumar) and Chandra Bhushan''s father, Ram Vishal and Jagdeo. The consolidation proceedings were going on the village between the complainant and his son Ram Krishna (deceased) on one hand and Raj Kumar and his father Ram Ghulam on the other hand. The complainant won from the court of Consolidation Officer and upto the appellate Court. On account of enmities, accused were bent upon causing injuries to the persons of the complainant''s side. Therefore, he gives a detailed version of the prosecution story as contained in the FIR.

PW 2, Chandrapal is an injured person. He has narrated the entire story as done by the complainant, PW 1.

So is the case with Tulsi. He is also an injured person and Deo Prasad, P W 4.

Other evidence is formal in nature.

PW 8, Head Constable Mohd. Mustafa has deposed that on the basis of written FIR, he prepared the chik and made entries in G.D. (Exhibits Ka 4 and Ka 5). Injured P W 2, Chandrapal, PW 3, Tulsi and PW. 4, Deo Prasad were sent to the hospital for medical examination alongwith Constable Sri Ayodhya Prasad.

PW, 6 Sri Indra Pal is a witness of Panchayatnama and real brother of PW 2 Chandrapal. He stated that from the village of occurrence to Banda, the entire journey was completed in a bullock cart.

PW 5, Constable Sri Deva Nand escorted the dead body from Kotwali to the mortuary at the Ditt. headquarter.

PW 7, Dr. K.L. Pillai conducted the postmortem examination on the deadbody of Ram Krishna and collected the data as noted above. He has opined that injury No. 1 of the deceased could have been cause by a fire shot. There could be a difference of 3 4 hourse either way about the time of the death.

P.W. 9, SI, Sri Babu Lal has conducted the entire investigation and proved the documents in connection therewith.

C.W. 1, Constable Sri Ayodhya Prasad has deposed that in the night of occurrence, he conducted the aforesaid three injured persons from Kotwali to the Distt. Head Quarter, Banda at about mid night. Dr. Joshi (who is not traceable till today) conducted the examination of all the three persons and from him, he brought the injury reports.

C.W. 2, Dr. S. Jamam was the Superintendent of Distt. Hospital, Banda since July 1975. He was directed by the court to produce some documents, including the Bed Head Tickets of the injured persons, who were hospitalised. But he says that despite efforts, he could not trace them out. Departmental enquiries were launched against the officials of his office. But that yielded no fruit with regard to the filling up of the deficiency in the persecution version. He has proved some documents in the signature and handwriting of Dr. Joshi.

C.W. 3, Dr. K.K. Verma, is the Xray Technician. He says that he had collected the documents, including injury reports, Bed HeadTicket etc. from the hospital and delivered the same in his office. But those documents are not traceable.

The accused in their statements under Section 313, Cr.P.C. have generally denied the allegations except that Ram Krishna was murdered and the accused are related to each other. Uniformity, all of them have stated that they have been falsely implicated on account of enmity. The accused have lead on oral evidence in support of their defence.

After evaluating the entire evidence and circumstances on the record, the learned trial Court has passed an order acquitting all the accused respondents, of all the charges levelled against them by extending them benefit of doubt.

The State as well as the complainant have felt aggrieved hence they have filed the aforesaid Government Appeal and Criminal Revision respectively against the said order.

Both the appeal as well as the revision were heard together. We find that there is no force in the appeal as well as in the revision and both of them deserve to be dismissed.

This fact is not disputed that Ram Krishna, S/o Sri Ram Gopal, complainant died a homicidal death. But the time, place and availability of the witnesses at that juncture are very much disputed.

We find some overacting also, which makes the prosecution case leaky and unacceptable. Allegedly, Ram Krishna was murdered on the passage shown by letter A(X). But he was removed from there and brought at the Baithaka of Ram Autar, shown by letter 4(1, 2, 3). Ram Krishna had died in the knowledge of the complainant and other persons at the Chabutara aforesaid, still his deadbody was carried upto Banda for which there was no need at all, nor any explanation has been assigned for that either in the FIR or in the statements under Section 161, Cr. P.C. But for the first time, the complainant Sri Ram Gopal Singh stated in paragraph 42 that due to fear that the deadbody might be removed by the accused, he carried the same upto Banda. This is completely an after thought and result of legal advice from whatsoever corner it might have come. All the same it shows that this allegation that the accused might remove the deadbody, does not appeal to be sound. The accused did not object to the removal of the deadbody from thepassage to the Chabutara of Ram Autar. They did not object the caravan of the prosecution side in loading of the injured persons as well as the deceased Ram Krishna in one cart. Therefore, it is difficult to believe that the accused could have taken away the deadbody and destroyed the same. Hence we do not find any reasonable cause behind the removal of the deadbody from the place of occurrence to the Chabutara and, thereafter upto Banda. We find that this is not the correct reason for doing something, which appears to be quite odd. Normally the prosecution side is not expected the remove the evidence itself without the intervention of the police. That way, the deadbody or any other evidence on the record, is left intact till the arrival of the I.O. But there, for unexplained and unsatisfactory reasons, the deadbody is said to have been removed from the spot uplo Banda creating a lot of difficulty in the mind of the court in accepting the prosecution version.

There is another angle, as admitted by the complainant, in para 48 of his statement that the deadbody is supposed to be something very pure and sanctified. Therefore, every effort is made to see that nobody touches the same, with shoes on and in a casual manner. Therefore, in order to maintain the religious sanctity also, the deadbody should not have been treated in a cavalier manner by the complainant and his party.

If at all, there was any genuine fear in the mind of the complainant, he could have remained throughout near the deadbody and kept the same under lock and key so that the accused might not remove away the same. Another reason assigned for late arrival of the deadbody or carrying the same from the village of occurrence, is that originally they intended to catch the bus for Bilbai to Banda. Then a question arose as to whether the deadbody could be carried in a bus. The complainant says that he does not know that the buses do not carry deadbody. But it is a fact that, as yet in his life span of 56 years, as he was on 11777, when his statement was recorded, he has not seen the bus carrying the deadbody on it. Therefore, normally, he could not have expected to carry the deadbody even if the bus was available at Bilbai. So, it was hoping against hope and no normal and prudent man would do like that therefore, we find that the deadbody should not have been normally removed from the spot upto Banda. But there can be a reason, as alleged by the accused, that the real assailants were not known by that time, hence some legal advice and police advice were felt essential before lodying the report and removing the taint in the prosecution case, and for that purpose too, the deadbody was brought from the village of occurrence to Banda, where profuse legal and police advice were available in abundance. It appears that the time and opportunity had been promptly utilized by the complainant and the prosecution. All the same it does not appear to be a conduct of normal and reasonable man. So, we find that the removal of the deadbody from the spot is a fatal defect in the prosecution case.

The deadbody was brought at the Chabutara of Ram Autar, where the complainant was already sitting from before the occurrence alongwith Langra Chamar. Therefore the best witnesses would have been Ram Autar and Langra Chamar, who also saw the incident as the complainant had done from the same spot i.e. Chabutara. The complainant admits, in para 49 that he had neither any enmity with Ram Autar nor any affinity. Therefore, it would be essential for the prosecution to have produced Ram Autar and Langra Chamar as prosecution witnesses. They would have been independent persons too. Yet, for the reasons unexplained, these witnesses have been withheld by the prosecution and only relation and inimical witnesses have been examined. The enmity with the accused was not only recent but for a very long time i.e. since the days of the complainant''s father, was therein the background. At the instance of the complainant''s father, Sri jagannath, accused Baburarrt, Bhola, Chandra Bhan, Ram Kumar and Tulsi had been convicted by the learned trial Court, although released by the appellate Court, later on. It further makes the enmity still very fresh and bayonot. Consolidation proceedings in the village started and fresh litigations started between the deceased and Ram Kumar, accused as well as his father Sri Ram Ghulam. On the date of this incident, i.e. alleged murder, the consolidation courts wherein seisin of the dispute between the parties. Therefore, it appears that only inimical witnesses have been purposely chosen and independent and reliable witnesses have been purposely not examined. That also speaks a lot about the prosecution''s intentions.

The time of the occurrence is said to be 5 p.m. but the postmortem report does not support this version. In the stomach, 250 Gms. of chewed food particles were available. It means that hardly 3040 minutes prior to the incident, i.e. around 4 p.m., the deceased would have taken food. This is not the time when the food is taken by the villagers. This fatal defect was felt, therefore, improvement started, although not in the FIR since this point had not been mentioned nor explained, a fresh case was taken by Chandrapal PW 2 in para 2 in the examination in chief that the deceased had taken Puwa (Pudding) prepared on the date of holi. It shows that after the arrival of the postmortem report, the case was reexamined by the police and local authorities or even lawyers, easily available to the complainant and new theory of taking Pua, which has been recently taken by the deceased, was introduced. Hence this theory is rejected. The result is that the incident could not have taken place around 5 p.m. as alleged but much later during the dark hourse of night, may be upto 9 p.m. on that date. So, the prosecution case becomes shaky from its very beginning on this ground as well and time of murder has not been established so far.

The investigation was very sluggish. Whereas, the I.O. Sri Babu Lal, P. W. 9 states that at the time of registration of the case, at 11.30 p.m., he was present in the police station. He directed the injured persons, namely, Chandrapal, Tulsi Ram and Deo Prasad to be taken to the Hospital through Constable Sri Ayodhya Prasad. Thereafter, he busied himself in preparation of Panchayatnama, Exhibit Ka 2. He interrogated Ram Gopal Singh, the complainant, Sri Binda Singh, Sri Indra Pal, Sri Vadu Raj Singh, Sri Babu Lal and Head Constable Mohd. Mustafa and Constable Sri Ayodhya Prasad at the police station in the same night. Sri Ayodhya Prasad had brought the result of medical examination, but only their carbon copies. Therefore, the I.O. did not copy those injury reports in his case diary. This is most unusual thing. In the ChitthiMajrubies or on the back of the same, the injuries have not been noted by the Doctor. Invariably in police cases the issue of carbon copies is unknown and uncustomary. Not only this, even unheard of so far. That shows something is shy (sic) which has gone unexplained. Alter doing all this, he went to the hospital. He interrogated Chandrapal, Tulsi Ram and Deo Prasad. The complainant says in para 16 that the I.O. interrogated him at about 12 p.m. in the same night. It is impossible to believe it because the case was registered at 11.30 p.m. After that the I.O. copied the FIR and G.D. and then he conducted the Panchayatnama on the deadbody available in the police station itself and, therefore, he started interrogating the witnesses. It was impossible to complete all these within few minutes of the registration of the case. The I.O. admits in para 17 that he completed the Panchayatnama work upto 12p.m., then only he could have started interrogating the witnesses, which would have taken not less than an hour or so. In order to meet this time, gap and explain the unexpected hurry, the I.O., PW 9 in para 17 states that when the Constable was preparing original FIR and Chik, he was loudly speaking and in that process, that I.O. continued writing the case diary. This is again a unconventional reply to a totally conventional circumstances, which goes against the prosecution case. That shows that the prosecution case regarding the time of the registration of the FIR, is not believable.

A look at the Panchayatnama, Exhibit Ka 2, shows that the names of the accused i.e. State v. X, Y, Z, have not been mentioned at the top of it. Not only this, whereas the FIR was registered at 11.30 p.m., the Panchayatnama was prepared at 11.35 p.m. As observed earlier, a lot of things were to be done. So within 5 minutes, the'' preparation of Panchayatnama could not start.

Not only this, in the Panchayatnama, the cause of death is said to be due to fire shots (Goli Lagne Se), whereas, according to the FIR, it is clearly stated that the accused Ram Kumar assaulted Tulsi Ram with a Barchi. Baburam and Chandra Bhushan assaulted Deo Prasad with lalhies. These things have not been mentioned in the Panchayatnama. Goli (fire shot) can be caused by gun as well as rifle or Kattas. According to the FIR., Bhola had a rifle and Vijaipal had a gun. The complainant knew the difference between a gun and a rifle. So, merely writing that on account of Goli the injuries were caused, is not sufficient. Atleast the I.O. should have noted the difference and used the coloquial terminologyrifle and gun. But he did not do so. The simple reason appears to be that the FIR was not ready by that time. This thing was left unexplained for a future date as and when the circumstances so appear. Some bald language �Goli Lagne Se mrityu Hau� is contained in the opinion of panchas also. Even they have not used the word gun or rifle. This again indicates that the FIR was not ready by the time the investigations alleged to have been started. Efforts for adjustment thus badly failed.

In the letter to the CMO, Exhibit Kha 4 and Kha 5 and in the letter to the R.I., Kha 6, all the columns have remained blank, namely the column No. 1 meant for description of injuries, column No. 2 for length and breadth of the injuries, column No. 3, for part of the body over which the injuries were caused, their nature simple or grievous or dangerous, the weapons used, whether the weapons were dangerous in nature or not. This shows that all the relevant documents had not been prepared at the time when the dead body was sent and they were prepared at a later time and in a hurried manner. Therefore, relevant columns were left blank. This speaks a lot about the investigation process and its authenticity that creates a grave doubt regarding the genuineness of the prosecution case and the very sanctity of the FIR.

The original injury reports of the injured have not been placed on the record so far allegedly, they were placed at some time but they were removed later on from the record and this point has been dealt with by the learned trial Court in his judgment, casting a blame on the prosecution side for the loss/removal of the records from the Court file.

A large number of applications were moved by the accused to bring forth the original injury reports and Xray reports, BedHeadTicket etc. and averred that then only they would be tiled. But they have stealthily been taken away by somebody. The Doctor Joshi, who conducted the examinations of the injured persons, have not been produced before the trial Court. Secondary evidence to fill up the gap also could not be said to be sufficient. The manner in which the Constable Sri Ayodhya Prasad and some officials of the office of the CMO were dealt with by the prosecution, also tells a lot about it purposely and intentionally, allegedly, carbon copies were alone brought before the I.O., if at all but the I.O. did not been it proper to go deeper into the matter. He should have enquired from the Doctor. But he did not do that. The C.O. directed the I.O. to obtain the original injury reports. The I.O. admits in para 29 that despite these directions by the C.O., he did not contact the Doctor in order to obtain the original injury reports. He did not record his statements. He did not visit the hospital to obtain they X ray report and plates. All these things go to show that the I.O. was not playing a fair game. He filed an affidavit in the High Court for contesting the bail application of Bhola, accused. In para 16 of the same, he has mentioned that the original injury memo is on the record, which is 100% lie. In para 55, the I.O. has admitted that he had prepared the Challan Lash, Exhibit Ka 34. There are cuttings in this document and all the columns have not been filled in. Therefore, the sum total of analysis of the performance of the I.O., makes the prosecution case leaky and unacceptable.

As yet, the record is not clear as to when the special report in this case was sent. The I.O. admits in para 48 that he has not mentioned the name of the person/constable who carried the special report. It means, he was not interrogated at all. This is a serious lapse on the part of the prosecution. Intentionally, this thing is being concealed and no effort had been made to explain the same. Even, Constable Sri Mohd. Mustafa, PW. 8, in para 20 admits that special report was sent with delay and not along with other papers. Constable Ram Shankar, who had been deputed to serve the special report on the authorities, returned on the same day at 3.30 p.m. But his statement has not been recorded as to when he served the special report. In para 22, he admits that the case diaiy entries relating to 28375 were received in the police office on 31375 although both of them are located at the same place. In para 23, he admits that the word Barchi'' in Exhibit Khan 5, has been written by the C.O. in his own hands. This circumstance has not been explained. This way, it appears that the F.I.R. had not been lodged as promptly as it is said to be. Documents Exhibits Kha 1 to Kha 7 were produced before the I.P. by the complainant Sri Ram Gopal Singh within 46 days from the date of occurrence and his statement was recorded by the I.O. But one of the documents was prepared in the Copying Deptt. On 7575. Therefore, this documents could not have been handed over to the I.P. within a week of the occurrence, as alleged. So, it appears that the investigation started much later than what it is shown to be. Hence it seems that the I.O. was in league with the complainant and prepared the documents at his behest. Not only this, statements of all the P.Ws. were recorded many days after the incident and the false efforts are said to have been made to prove that the investigation process started in the right earnest, but it cannot succeed.

An intrinsic evidence available on the record in the shape of medical evidence also does not support the prosecution case.

P.W. 7, Dr. Pillai, who conducted the postmortem examination, admits in para 12 of his crossexamination that looking to the injuries received by the deceased, it could be said that the assailant was towards the left of the victim and at a higher level than the victim. But there is no such evidence on the record. Not only this, the pellets entered in the scapular region and went downwards and came out from the back. The passage of the pellets was in a horizontal shape, vide the would of entry. But there is no such evidence. So, it seems that the incident did not take place as it is said to be.

The place of occurrence has not been fixed so far as despite existence of wound of entry and exit, no pellets. Tiklies and wax etc. were recovered from the place of occurrence and no effort has been made to explain the omission on the part of the prosecution. Therefore, it stems that the truth has not been allowed to come on the record. That is why the efforts to shift the deadbody, for no earthly reason, has been made and reason has been so far explained by the prosecution. As the FIR itself has become an unacceptable document, therefore, the entire case built upon the same, falls like a house of cards. That is why unexplained delays have been caused in reaching the police papers before the authorities. Another beauty of the FIR is that it does not specify the place of occurrence in it and it has been left as vague. From the passage and Chabutara, the bloodstains allegedly recovered did not tally with the blood of the deceased.

The effort to prove medical documents made through Dr. S. Jamam, C.W. 2 also could not take out the prosecution case from the filth of falsehood and unreality. He has tired to explain as to how the medical reports, including BedHeadTicket were smuggled from office of the court and allowed to go out of bounds. In the enquiry, he had concluded that Sri. K.K.Verma was responsible for the loss of the records. But what action has been taken against Sri Verma, is not known. In para 4, he says that witnesses Tulsi, Chandrapal were, no doubt, admitted in the hospital on 28375 but their injuries have not been noted even in the register of injuries. Chandrapal was discharged on 5475 and Tulsi on 94 75. On further crossexamination, he admits that nobody was admitted in the hospital on 27375, although the I.O. says that he sent the injured persons for medical examination immediately after the FIR was registered so much so that he recorded the statements on the following day. The distance of the police station from the hospital is hardly a furlong. Therefore, omission is fatal to the prosecution and shows that the injured were not admitted to the hospital in the same night because they were not available for the same. Injury reports Cl to C6, allegedly recorded by Dr. Y.K. Joshi were there. But Doctor Jamam could not say as to when they were recorded. Not only this, the supplementary report had been fixed intentionally at an unconventional place but the date and machinery for the same, have not been explained. In para 15, he admits that he did not enquire about the fact as to what documents had been taken to the court and by whom. He did not take care to enquiry about the lost documents i.e. the original injury reports. The reason for the same is unexplained. Therefore, the Director of Medical Health was compelled to order sealing of the documents. But what documents were sealed, he does not know. That register of seal, has not been produced before the trial Court although everything was to be done by him on the specific direction of the Director of the Health. But still he did not comply with his directions. Therefore, it seems that the effort to fill up the gap by examining Dr. Jamam, must fail. The oral evidence consisting of the complainant Sri Ram Gopal, does not inspire confidence. It was a day of Holi when the occurrence took place. The wife of the complainant was at Banda. Therefore, in the normal course, the complainant should also have been in Banda. But he did not go from there till the murder took place. It seems that he was not present at the place of occurrence. That is why, that FIR was delayed and antetimed and the explanations for thirdly given by him, do not appear to be acceptable. Not only this, the documents, Exhibit Kha 1, Kha 3, which came into existence some times in May 1977, were given to the I.O. so late. According to him, they were given by him 45 days before his interrogation, which allegedly took place immediately after the incident. It is not borne out from the record and delay in giving of papers dated 7575, Exhibit Kha 3, by him to the I.O. is not explained.

In para 18, he admits that he remained in Kotwali upto 4 a.m. what was the purpose of his detention at the police station upto 4 a.m., is not clear nor explained. Everything was complete by 11.30 a.m. or 12 a.m. on the date of occurrence. Injured had already been shifted to the hospital and the deadbody was sealed by that time and was ready for dispatch to the district mortuary. Then his detention upto 4 p.m. on the following day at the police station was totally unwarranted and it definitely shows that the FIR, was still under contemplation. Its final shape was not given by 11.30 or so. That is why, the complainant was detained upto 4 a.m. at the police station on the following day. Not only this, he remained at his house in Bengalipura upto 730 or 8 a.m. on the following day. Thereafter, he departed with the I.O. from the place of occurrence around 9 a.m., where he arrived at about 12 a.m. midnight. Thereafter, he left the I.O. and went home. Again the returned alongwith the wife of the deceased Smt. Sheo Devi. It is difficult to believe that Smt. Sheo Devi the poor widow would have remained at the house of the complainant in the village and not gone to Banda alongwith her husband''s deadbody. Nay, there was no necessity of recording her statement. But that was done. This again shows that the complainant was not behaving like a normal and prudent man.

The most reckless act on the part of the complainant is that the dead body was placed on the naked bullock cart without any bedsheet or cover over his body. Dr. Pillai admits that during the course of carriage in the cart, the deceased must have bled. But no drop of blood was recovered from the carriage, by the I.O. That again shows that the prosecution case is not correct. In para 29, he admits that in the way to Kotwali from his house in Bangaleepura there fell the house of Sri. Chaudhary, Advocate. In para 30, the complainant admits that as a matter of routine, he used to go to Banda Distt. from village Johri, where he was posted as a teacher. So, it was all the same natural for him to be with his wife at Banda on the Holiday at the time of occurrence, and not in the village. He specifically states that his normal routine was to go to Bengalipura, Banda with his wife direct from the school, and it was of occasionally that he went to his village and that also to perform some specific work. Therefore, the presence of the complainant at the date, time and place of occurrence becomes doubtful. That is further corroborated by the late preparation of the records by the police authorities as discussed above, in detail. This way, the statement of the complainant has been rightly rejected by the learned trial Court as unworthy of credence.

PW 2, Sri Chandrapal is an injured person. But the nature of his injuries has not been brought on the record. He is supposed to be an eyewitness of the occurrence. In para 4 of his statement, he states that Binda Singh used his lathies in his selfdefence. But here is no explanation as to where his lathi blows went because none of the accused is injured. Not only this, Binda Singh has not been examined to explain the circumstance in which he yielded his lathi in his selfdefence, specially in the light of the fact that these facts do not find mention in the FIR. In para 6, he states that the saw no drop of blood at the spot, where Ram Krishna had fallen down was found. But the I.O. shows that he recovered bloodstain from there. This shows how irresponsible and unfaithful the I.O. was towards his duty to carry out openly in a fair manner, as an agent of the State and not an agent of the complainant.

In para 18, he says that the passage, which he was using for going home, is about 4 furlongs away from the road. Therefore, he appears to be a chance witness, if at all as he would have followed another passage, which would have been closer and more convenient for him. Had he followed the correct passage, he would not have seen the occurrence at all in the normal course. He further says in para 24 that the deadbody of Ram Krishna was placed at the Chabutara. But no blood fell at the Chabutara of Ram Autar, whereas, the I.O. says that he recovered blood from here also. In para 25, he admits that no Charra, Tikli or cartridges, pellets etc. were recovered from the spot. Admittedly, he was iniminal to the accused. Therefore, his evidence is not reliable and it has been rightly rejected by the learned Court.

P.W. 3 Tulsi''s injuries have also not been examined in accordance with law. He admits enmity with the accused Ram Kumar and others vide para 6 of his statement. Chandra Bhushan accused''s father is Sri Ram Vishal. In para 7, he admits that in a theft case, he was convicted and Sri Ram Vishal, the father of Ram Kumar accused had appeared as a witness against him. But to top it all, in para 13, he admits that the I.O. did not interrogate him at all nor he saw the injuries received by him. Therefore, his evidence is equally unreliable and has been rightly rejected by the learned trial Court.

PW 4, Deo Prasad states that Ram Kumar had caused Barchi injury to Tulsi. That has not been proved by medical evidence. In para 6, he admits that he is closely related to the complainant. The nearest house from the place of occurrence is that of Ram Dham. But not even a single person from the house of Ram Dhani, came forward to witness the incident. In para 9, he admits that he alongwith his grandfather was beaten by 13 persons, including all the five accused arrayed in the present case. Therefore, he is equally inimical, interested and partisan witness. To top it all, he played the role of a Gandhi on the spot. In para 12, he admits that he had a doublebarrel gun, from which he did not fire even when this cousin was injured. Not only this, even when Tulsi Ram was injured with Barchi, he did not fire. What was the gun then in carrying a gun, which was not used at all. Therefore, his very presence on the spot appears to be doubtful.

Thus after a threadbare analysis of the prosecution case and circumstances available on the record, we find that the learned trial Court has rightly rejected the prosecution case. The judgment and order acquitting the accused, passed by the learned trial Court, is perfectly just. Hence it is confirmed.

Both, the appeal as well as the criminal revision, have no force. They are accordingly, dismissed. The accused are already in bail.

Appeal and revision dismissed.