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2012 Supreme(All) 749
[2012(4) ADJ 125 (DB)]
ALLAHABAD HIGH COURT
BEFORE : IMTIYAZ MURTAZA AND S.V.S. RATHORE, JJ.
SHIV KUMAR AND OTHERS ....Appellants
Versus
STATE OF U.P. ....Respondent
(Criminal Appeal No. 2617 of 2004, decided on 21st March, 2012)
Counsel :
S.A. Siddiqui, A.K. Awasthi and R.K. Singh for the Appellants; A.G.A. for the Respondent.
Headnote:(A) (Indian) Penal Code, 1860—Sections 147, 148, 307, 149 and 302/149—Arms Act, 1959—Section 25—Criminal Procedure Code, 1973—Section 157—Murder—Common intention—Sustainability of—Delayed FIR—Absence of plausible explanation—Testimony of injured witness and other eye-witnesses—Contradictory—Statement of informant falsified that there was no terror of accused persons in mind of victim—That he was alone—However, prosecution cannot be thrownout only on basis of FIR—But, extra caution required—Important fact, that where dead body was lying missing—Improvement of witnesses during trial—Presence of so-called eye-witness highly doubtful—Testimony of injured witness makes entire prosecution story doubtful—No several round fired but no blood, empty cartridge recovered—Incident took place inside house, but not even single inmate made witness—Word "Forthwith" used in Section 157 of Cr.P.C.—But, Delayed receiving of report under Section 157 of Cr.P.C.—Adverse inference may be drawn on basis of attending circumstances—No consistency in evidence of all three eye-witnesses—FIR suspicious—No independent witness to support case under Section 25 of Act—Conviction set aside. [Paras 18, 20,22, 23, 34 and 35]
(B) Criminal Trial—FIR—Object of—That it acts as a safeguard against embellishment, exaggeration and forgetfulness. [Para 16]
(C) Criminal Trial—FIR—Contents of—It is not requirement of law—That every minute detail of occurrence needs to be recorded—But, it must disclose commission of an offence. [Para 16]
(D) Criminal Trial—FIR—Evidentiary value of—Does not constitute substantive evidence—Can only be used as a previous statement—For purpose of either corroborating or contradicting its maker—However, omission of material facts in FIR pertaining to incident—Undoubtedly relevant in Judging veracity of prosecution case. [Para 16]
Hon’ble S.V.S. Rathore, J.—This criminal appeal is directed against the common judgment dated 20.11.2004 passed by Additional Sessions Judge , Fast Track Court No. 3, Sitapur in S.T. No. 152 of 2002, under Sections 147, 148, 307, 149, 302/149 IPC and S.T.No. 199 of 2003 State v. Prakash under Section 25 (1(b) Arms Act relating to P.S. Sandana, district Sitapur,whereby the appellants were convicted for the offence under Sections 147, 148, 307/149 and 302/149 IPC and accused Prakash was further convicted under Section 25 (1) (b) of the Arms Act. For the offence, under Section 147 IPC all the accused appellants were directed to under go R.I. for a period of 6 months, for the offence under Section 148 IPC all the accused/appellants were sentenced to under go R.I. for a period of one year, for the offence under Section 307 /149 IPC all the appellants were sentenced to R.I. for a period of 10 years and under Section 302/149 IPC they were sentenced to life imprisonment. Accused Prakash was also sentenced for the offence under Section 25 (1) (b) of the arms Act with R.I. for a period of one year. For the offence under Section 307/149 and 302/149 and Section 25 (1) (b) of the Arms Act the sentences were coupled with fine with default stipulation. All the sentences were to run concurrently.
2. In brief ,the prosecution case, as per the FIR, is that the complainant Yogendra Singh S/o Hari Nath Singh was resident of village Maheshpur P.S. Sandna, district,Sitapur and about three years, prior to this occurrence, Radhey accused (not appellant), had borrowed three thousand rupees from Hari Nath. When Hari Nath Singh asked for this loan amount, Radhey felt annoyed and nursed grudged against Hari Nath .On 16.7.2002, in the evening Hari Nath Singh had gone to the village Anurudh Khera to meet Putan Pradhan. Complainant and his brother in law (Sister’s husband) Munna Singh S/o Samrendra Singh of village Ismailganj had also gone with them. When, all the three persons were returning from the house of Pradhanji and when they reached in front of the house of Parashuram at about 9.30 p.m. All of a sudden, Radhey, Mannu , Shiv Kumar , Prakash Raidas , Rizwan, Daya Shanker , Ramesh came there with common intention, armed with country made guns and pistols. Radhey challenged abusively ‘kill these bastards’ and all the accused persons started firing on Hari Nath Singh. Niece of Parashuram named Chandni,aged about 6 years and Chhotey Lal, father of Parashuram also received injuries. Hari Nath Singh and Chandni died due to the fire-arm injuries sustained by them. Parashuram and Ramu Pandit saw the occurrence and identified the accused persons in the light of torches and the lantern, glowing at the door of Parashuram.
3. FIR of this case was lodged by Yogendra Singh on 17.7.2002 at 10.00 a.m. at P.S.Sandana, district Sitapur.
4. I.O. Sri Bansh Raj P.W-8 took the investigation, went to the place of occurrence, conducted the inquest proceedings of the dead bodies and sent the dead bodies for post mortem. Prepared site plan and recorded some statements. Subsequently the investigation of this case was handed over to Sri V.K.Saxena P.W-9 on 18.7.2002.
5. In order to prove its case the prosecution has examined P.W.-1 Sri Yogendra Singh complainant, P.W.-2 Chhotey Lal and P.W.-3 Munna Singh as witnesses of fact. Dr. S. S. Negi P.W.-4 has proved the post mortem report of the two deceased persons. P.W.-5 is constable Virendra Singh who has proved the chick report and G.D of registration of this case. P.W-6 is Dr. Zeta Singh who has medically examined P.W-2 and has proved his injury report. P.W-7 is constable Raj Kumar who is the witness of recovery of country made gun on the pointing out of appellant Prakash.P.W.-8 is S.I.Bansh Raj, he is the initial I.O. who conducted the investigation till 18.7.2002.P.W-9 is S.I. V.K.Saxena who is the subsequent I.O. of this case. P.W.-10 is constable Dinesh Yadav who has proved chick report and G.D of case under Section 2
