JUDGMENT :

ATTAU RAHMAN MASOODI, J.

(A) Introduction

1. Both the State and the de-facto Complainant are before this court challenging the order of acquittal of all the four accused/ respondents by the Trial Court in Sessions Trial No. 518/2001, under section 302, 302/34 IPC, wherein the Trial Court, while acquitting these accused persons of all the charges concluded vide an order dated 29.03.2004, as inter-alia:

“123. On the basis of above attempted discussion, prosecution has utterly failed to prove its case and it does not inspire any confidence. Presence of the eye witnesses on the spot is not proved and prosecution story had been developed from stage to stage to give colour to the prosecutions story. Prosecution story is inconsistent to medical evidence and prosecution story which has come later, is not in support of the FIR and for these reasons, I am of the opinion that prosecution story and evidence led in this support at all not credible and all the accused persons in this case must be acquitted of all the charges levelled against them in this case.”

While the state has filed Criminal Appeal No. 1624 of 2004 under section 378 of the Criminal procedure Code, the de-facto complainant has preferred Criminal revision No. 221 of 2004 under section 397 r/w 401 of the Criminal procedure Code.

Since, both the proceedings engaging the attention of this court, arise out of the same impugned order and lead to the same facts & circumstances, they are being dealt and disposed of vide this common judgment.

(B) Facts of the case

2. The appeal at hand filed by the State under Section 378 CrPC relates to the murder of one Prabhat Gupta alias Raju of which FIR was lodged by one Santosh Gupta (father) at Tikonia Police Station, District Lakhimpur Kheri on 8.7.2000 at 3.30 pm. The hearsay information giving rise to the FIR shows presence of four culprits at the time of incident mentioned in the FIR who were identified by two eye witnesses named therein. The information states that the deceased had left from the house of the informant at 3 pm on 8.7.2000 for going to the shop. On reaching the main road, the deceased was done to death by the two named culprits and the death occurred on the spot.

3. The eye witnesses in the FIR were stated to have seen the occurrence in broad day light which according to the informant was probable in the background of some political rivalry and enmity. The registration of the FIR by the scribe Shri Krishna (HM-53) on 8.7.2000 at 3.30 pm had set the machinery of law in motion.

4. The action that followed immediately after lodging of the FIR was visiting the scene of occurrence by Investigating Officer and drawing up the site plan with reference to the dead body, noticing recovery of some articles inclusive of two empty cartridges, a pair of footwear and thereafter inquest report was prepared from 3.40 pm to 5 pm in presence of panchas. The inquest report significantly notices the injuries on the dead body and takes note of the site plan from where two empty cartridges etc were recovered. The oozing blood and the direction of fire arm injuries from right to left was also mentioned. The inquest report mentions handing over of the sealed dead body at 5 pm on 8.7.2000 to two police personnel for obtaining the postmortem report to definite the cause of death which according to the panchas had occurred due to fire arm injuries.

5. The postmortem was conducted on 9.7.2000 at 11 am and the report was accordingly drawn. The deceased had sustained two gunshot wounds of entry and only one exit wound. Besides the deceased, who lost his life, no one was injured.

6. According to the doctor, death occurred due to shock and haemorrhage as a result of ante mortem injuries and one bullet was recovered from the dead body.

7. The investigation was conducted in piecemeal by different officers. SI T.B. Singh conducted the investigation of the case from 8.7.2000 to 15.7.2000 and from 16.7.2000 to 18.7.2000 investigation was done by the team con