IMPORTANT POINT
Non-recording of statement of witnesses named in F.I.R. on the day of occurrence despite sufficient opportunity, raises doubt about authenticity of contents of F.I.R. and also testimony of eye witnesses.

Headnote:Indian Penal Code, 1860-Sections 147, 148, 307/149, 302/149 & 201-Accused armed with country pistol, gun and rifle fired at deceased and her wife-Both were killed on spot-Trial Court convicted all accused for offences under-High Court set aside the conviction of all accused-Appeal-Three partisan eye witnesses-Their testimony was not liable to be discarded on ground that they were partisan-It was to be judged with more circumspection-place of occurrence as set out in F.I.R. became doubtful from evidence of witnesses-Fact that eye witness had not received any injury coupled with other facts, made his presence doubtful as an eye witness at the place of occurrence-Condition in testimony of witnesses became relevant when Investigating Officer did not record statement of any of eye witnesses named in FIR on first day despite opportunity-Findings of High Court could not be said perverse. (Paras 4 & 5)

JUDGMENT

Khare, J.-By the present appeals the appellant, State of U.P. questions the correctness of the judgment dated 27.2.1990 rendered by the High Court of Judicature at Allahabad, acquitting the respondents herein by allowing the appeals preferred by the respondents and setting aside the convictions recorded against them by the Additional Sessions Judge, Mainpuri. Before we take up the arguments of learned counsel for the appellant, it is necessary to set out the prosecution case.

2. In short, the prosecution story is that on 22.2.1985 at about 2.30 p.m., in village Nagla Pati, Police Station Bhongaon, District Mainpuri, the deceased Kalicharan was returning from the court of SDM, Bhongaon, after attending the proceedings in his case. When Kalicharan reached near the house of Ganga Ram, the accused Malkhan s/o. Bhagwan Singh armed with country made pistol, Sher Singh son of Bhagwan Singh armed with rifle, Bhagwan Singh son of Dhanpat armed with country made pistol, Murari son of Ram Narain (Murari died during sessions trial) armed with gun, Shri Kishan son of Bhola Nath armed with country made pistol (Katta), Indrapal son of Ram Bharose armed with country made pistol, Bhim Sen son of Lakhan Singh, armed with country made pistol and Netra Pal son of Bhagwan Singh armed with country made pistol, emerged behind the fodder grass and hut of Dampat Lal and on exhortation of Bhagwan Singh to kill the deceased, Kali Charan, Sher Singh, Malkhan Singh, Shri Krishna and Indrapal fired at Kalicharan with their kattas and guns with intention of killing him. After hearing the gun shots and hue and cry Bhopal son of Natho Ram, Ram Chander son of Parsadi. Puttu son of Kalyan Singh and the wife of Kalicharan. Smt. Laungshri came rushing. Tika Ram who was following Kalicharan from the house, came forward with exhortation. In order to save Kalicharan, his wife Smt. Laungshri fell upon the body of Kalicharan. Bhagwan Singh again exhorted the accused persons to kill Smt. Laungshri. On such exhortation, Netra Pal and Murari fired shots from their respective weapons on Smt. Laungshri. Kali Charan and his wife, Smt. Laungshri died at the spot. Thereafter, the accused dragged the dead bodies from the place of occurrence towards the direction of West and after crossing the road, took the bodies to the Bitaura of Deva Jeet, where they were attempting to burn the dead-bodies by sprinkling kerosene oil thereon. Tika Ram, brother of the deceased, Kali Charan, orally lodged the F.I.R. on 22.2.1985 at about 3.15 p.m. at P.S. Bhongaon, District Mainpuri. On the basis of the report lodged by Tika Ram, a case was registered at General Diary No. 28 under Sections 147, 148, 307/149, 302/149 and 201 IPC, against the accused Malkhan, Sher Singh, Bhagwan Singh, Murari, Shri Krishan, Indra Pal, Bhim Sen and Netra Pal. Senior Sub Inspector of Police, Sukhvir Singh, who started investigation of the incident, on reaching the spot, saw the dead bodies which were still burning. The Investigating Officer with the help of villagers who were collected at the place, managed to extinguish the fire by pouring water on it and the bodies of Kali Charan and his wife Smt. Laungshri were recovered. Thereafter, the inquest report and plan were prepared and the dead-bodies were sent for post-mortem, by Shri Sukhbir Singh. At this stage, Senior Inspector (Police) Bhogaon undertook the investigation of the case in his hand. Since the age and time of death of the deceased could not be ascertained by Dr. Gulecha, Medical Officer, S.N.M. Hospital, Firozabad, who conducted the post mortem, the case was referred to the State Medico-Legal Expert, for his opinion. Dr. B.K. Saxena, Superintendent Balrampur Hospital, Lucknow, conducted the second post mortem examination of both the bodies on 28.2.1985 According to him, cause of death was due to the injuries caused by fire arm ante mortem, and the time of death was around 2.30 p.m. on 22.2.1985.

3. The learned Sessions Judge, after recording the

Click Here to Read the rest of this document

1997 Supreme(SC) 1083

IMPORTANT POINT Non-recording of statement of witnesses named in F.I.R. on the day of occurrence despite sufficient opportunity, raises doubt about authenticity of contents of F.I.R. and also testimony of eye witnesses.

IMPORTANT POINT
Non-recording of statement of witnesses named in F.I.R. on the day of occurrence despite sufficient opportunity, raises doubt about authenticity of contents of F.I.R. and also testimony of eye witnesses.