JUDGMENT

Dr. Arijit Pasayat, J. —

1. Challenge in this appeal is to the judgment of a Division Bench of the Madhya Pradesh High Court directing the acquittal of the respondents who faced trial for alleged commission of offences punishable under Section 302 of the Indian Penal Code, 1860 (in short the ‘IPC’) so far as respondents Ramesh(A1)andGurudayal(A3) are concerned and Section 302 read with Section 34 IPC so far as the respondents Kailash (A2) and Pappu (A4) respectively are concerned. Additionally respondent Gurudayal was charged for alleged commission of offence punishable under Section 25(1-B)(a) of the Indian Arms Act, 1959 (in short the ‘Arms Act’).

2. Prosecution Version in a nutshell are as follows:

On 21.5.1993 at about 9 A.M. near village Kurthara all the respondents caused murder of Ramavtar s/o Buddhasingh and attempted on the life of Rajesh alias Raje and Manik Singh. On 21.5.1993 in the morning Manik Singh was required to attend court for hearing at Bhind. For attending the Court he left village Kurthara alongwith his brother Ramavtar, his wife’s brother and his uncle-in-law Prahlad and Rajesh proceeding towards Court on bicycles. Prahlad was riding the first cycle and Manik was sitting on the carrier of the cycle behind him. Just behind Prahlad, Rajesh alongwith Ramavtar was following in another bicycle. When they were near the agricultural field of Ramkishan, then Gurudayal armed with .315 bore rifle, Kailash armed with single barrel .12 bore riffle, Pappu Yadav armed with single .12 bore rifle and Ramesh alias Chhinge armed with farsa were chasing them. When they reached near the complainant party Kailash fired from his .12 bore rifle. On hearing the gun shot Ramavtar fell from the bicycle of Rajesh. As he got up, Gurudayal shot at him with .315 bore rifle. The bullet pierced through the body on the right side of chest and Kailash and Pappu Yadav also fired with an intention to ause death, but bullet had not hurt anyone. FIR is said to be lodged at 9.30 A.M. by Man Singh. Spot map (Ex.P-11) was drawn and one empty cartridge of .12 bore rifle and blood stained earth were seized vide Ex.P.13. Trial court after framing charges and on analyzing the evidence tendered, convicted the appellants.

Before the High Court it was stated that the incident allegedly took place in the early morning and the time of incident is mentioned as 9 AM. It was submitted that the FIR was prepared with deliberation and there was non-compliance of the requirements of Section 157 of the Code of Criminal Procedure, 1973 (in short the ‘Code’). It was pointed out with reference to the evidence of Dr. K.N. Sharma (PW 14) that Prahlad and Manik Singh had identified the dead body and they informed him that they had seen the dead body for the first time at 7.30 A.M. In the post mortem report Exh.P9 the doctor found that the stomach of the deceased was empty and there was no digested or semi-digested food in the stomach. The period necessary for digestion and semi digestion food was indicated by the doctor. It was therefore submitted before the High Court that the incident took place around 7.30 AM and the deceased was murdered by some unknown person and because of enmity the accused persons were falsely implicated.

With reference to Exh. P3 it was submitted that the time of preparation of the spot map was earlier mentioned at 10.55 A.M. which was scored out and the time was changed to 9 AM. Additionally it was submitted that when Safina form was prepared at 10.45 A.M. question of preparation of map at 9 AM appears to be doubtful. Time earlier mentioned i.e. 10.55 A.M. was the correct time mentioned in the inquest report. It was pointed out that the FIR was prepared in the police station whereas witnesses have deposed that the complaint was recorded on the spot. Later on FIR was lodged at the police station. In that view of the matter it was submitted that the FIR was suppressed by the prosecution. PW3’s evidence was highlighted to show that