# Birnami & Anr. (In Jail) v. State of U.P

- **Citation:** (2022) 4 ILRA 106
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-04-22
- **Case number:** Criminal Appeal No. 5803 of 2007
- **Bench:** Manoj Misra, Sameer Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/birnami-anr-in-jail-v-state-of-u-p-48368
- **Pages:** 18

## Headnote

Evidence Law - Indian Evidence Act,
1872- Section 3- The site plan does not
disclose PW-1's presence but shows him
to be emerging from the dwelling unit-
PW-2 is not reliable; firstly, because he
has a separate residence and is a chance
witness, secondly, his location is not
disclosed in the site plan and, thirdly, he
has faulted on directions. Rather, it
appears to us, PW-2 arrived at the spot,
as a neighbour and brother of the
deceased, after he heard the gunshot.

Where it is shown from the own evidence of the
prosecution that the witnesses of fact are
chance witnesses who had arrived after the
commission of the offence and their testimonies
stand contradicted by other material, then no
reliance can be placed upon the testimony of
such witnesses.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 154- FIR being
ante-timed- the FIR is being lodged at
00.30 hrs in a typed format by claiming
that it was got typed by about mid night
- the inquest was conducted after day
break at 10.30 hrs. even though the
body was at the chowki- lodging of a
typed report at 00.30 hours creates a
strong suspicion with regard to the FIR
being ante-timed-GD Entry/ Chik maker
not examined- the Diwan who, allegedly,
accompanied the informant to the police
station to lodge the FIR has not been
examined. This coupled with the delay
in conducting the inquest lends credence
to the defence suggestion that the FIR
was lodged in the morning after getting
it typed. Once this is the position, the
prosecution
case
gets
shrouded
in
suspicion throwing multiple possibilities
including a strong probability of the
incident being a hit and run kind of an
incident, witnessed by none, and the
prosecution story developing on guesswork based on strong suspicion with
implication of those with whom the
deceased had enmity. Probability of such
guess-work becomes stronger also from
the circumstance that as against a
solitary gunshot injury three persons
have been roped in, out of which, two
have not been assigned any major role
except that they came with weapons
and escaped with the assailant.
4 All. Birnami & Anr. Vs. State of U.P.
107
When the prosecution fails to give any credible
explanation for the suspicious circumstances
attending the lodging of the FIR and the same is
found to be ante-timed and ante- dated, then
the story of the prosecution cannot be relied.
(Para 26, 28, 29, 30)

Criminal Appeal allowed. (E-3)

## Text

_Characters 0–39,508 of 63,836. This is a partial read: ask again with offset=39508 for what follows._

106 INDIAN LAW REPORTS ALLAHABAD SERIES
others), Police Station Kotwali Nagar,
District
Saharanpur
convicting
and
sentencing the appellants to undergo life
imprisonment under Section 302/34 of
India Penal Code with a fine of Rs.10,000/-
each, in default thereof, to undergo three
months additional imprisonment, is hereby
confirmed.

59. During appeal, appellants Sunita,
Amit Chopra and Raju had remained in
judicial custody. They are directed to serve
out the remaining period of sentence.

60. The appeal under Section 302/34
is devoid of merits and accordingly
dismissed.
----------
(2022)04ILR A106
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.04.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SAMEER JAIN, J.

Criminal Appeal No. 5803 of 2007

Birnami & Anr. ...Appellants (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri R.C. Kandpal, Sri Krishna Gopal, Sri
Krishna Kant Shukla, Sri Lalit Kumar
Mishra, Sri P.R. Maurya, Sri Pradeep Kumar
Mishra, Sri S.M. Khan, Sri C.K. Jha, Sri
Vinay Saran

Counsel for the Respondent:
A.G.A.

Evidence Law - Indian Evidence Act,
1872- Section 3- The site plan does not
disclose PW-1's presence but shows him
to be emerging from the dwelling unit-
PW-2 is not reliable; firstly, because he
has a separate residence and is a chance
witness, secondly, his location is not
disclosed in the site plan and, thirdly, he
has faulted on directions. Rather, it
appears to us, PW-2 arrived at the spot,
as a neighbour and brother of the
deceased, after he heard the gunshot.

Where it is shown from the own evidence of the
prosecution that the witnesses of fact are
chance witnesses who had arrived after the
commission of the offence and their testimonies
stand contradicted by other material, then no
reliance can be placed upon the testimony of
such witnesses.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 154- FIR being
ante-timed- the FIR is being lodged at
00.30 hrs in a typed format by claiming
that it was got typed by about mid night
- the inquest was conducted after day
break at 10.30 hrs. even though the
body was at the chowki- lodging of a
typed report at 00.30 hours creates a
strong suspicion with regard to the FIR
being ante-timed-GD Entry/ Chik maker
not examined- the Diwan who, allegedly,
accompanied the informant to the police
station to lodge the FIR has not been
examined. This coupled with the delay
in conducting the inquest lends credence
to the defence suggestion that the FIR
was lodged in the morning after getting
it typed. Once this is the position, the
prosecution
case
gets
shrouded
in
suspicion throwing multiple possibilities
including a strong probability of the
incident being a hit and run kind of an
incident, witnessed by none, and the
prosecution story developing on guesswork based on strong suspicion with
implication of those with whom the
deceased had enmity. Probability of such
guess-work becomes stronger also from
the circumstance that as against a
solitary gunshot injury three persons
have been roped in, out of which, two
have not been assigned any major role
except that they came with weapons
and escaped with the assailant.
4 All. Birnami & Anr. Vs. State of U.P.
107
When the prosecution fails to give any credible
explanation for the suspicious circumstances
attending the lodging of the FIR and the same is
found to be ante-timed and ante- dated, then
the story of the prosecution cannot be relied.
(Para 26, 28, 29, 30)

Criminal Appeal allowed. (E-3)

(Delivered by Hon'ble Manoj Misra, J.)

1. This appeal is preferred against the
judgment
and
order
dated
24.08.2007/25.08.2007 passed by Sessions
Judge, Rampur in Sessions Trial No. 496 of
2005 convicting the appellant no.2 (Tej Pal)
under Section 302 I.P.C. and appellant no.1
(Birnami) under Section 302 read with
Section 34 I.P.C., and sentencing them to
imprisonment for life and fine of Rs.
10,000/- each with a default sentence of
one year R.I.

INTRODUCTORY FACTS

2. On a typed written report (Exb. Ka1) submitted by PW-1 (son of the deceased
- Sitaram) at 00.30 hours, on 07.07.2005,
Case Crime No. 227 of 2005 was registered
at P.S. Milak, District Rampur of which
Chik FIR (Exb. Ka-15) was prepared. The
allegation in the FIR is that on 06.07.2005,
at about 9 pm, when PW-1's father (the
deceased) was sitting on a cot, smoking a
Beedi, the accused-appellants along with
one unknown person came and, before the
deceased could react, appellant no.2 (Tej
Pal) fired a shot at the deceased. Upon
which, PW-1, his brother- Sompal (not
examined) and his uncle Indraman (PW-2),
who were present there, and many others
who arrived on hearing gunshot, made an
attempt to apprehend the accused but they
ran away, brandishing their weapons. It was
alleged that the informant recognised the
two named accused in the light of lantern
and torch but could not recognise the third
person. It was also alleged that the
deceased was taken on a cart for medical
attention but by the time they could cross
the river the deceased expired therefore, he
was brought to Police Chowki Param.

3. Inquest was completed on 07.07.
2005 by about 10.30 hrs at Police Chowki
Param whilst the body of the deceased was
on a Dunlop cart (a bullock cart with tyres).
The inquest report (Exb. Ka-3) was
prepared by S.C. Tyagi (PW-4). The inquest
report notices that the body was wrapped in
a bed spread / mattress and was lying in a
supine position on that Dunlop cart.

4. Autopsy was conducted by Doctor
M.A. Ali (PW-3) on 07.07.2005 at about
4.30 pm. Autopsy report (Exb. Ka-2), in
respect of body condition and injuries,
recites:-

(i) External Examination:-

Rigor mortis passed off in neck
but present in both upper and lower
extremities. No sign of decomposition.

(ii) Ante-mortem injuries:

Firearm wound measuring 5.5 cm
x 4 cm x 16 cm situated over right side of
upper part of abdomen, 12.5 cm below
right
nipple.
Margins
abraded
and
blackening present (wound of entry). The
tract of wound directed inwards and
upwards. No wound of exit found.

(iii) Internal Examination:-

(a) Seventh and Eighth ribs, on
right side broken;

(b) Underlying pleura on right
side lacerated;

(c) Right lung lacerated. 10
pellets recovered from right lung. Two
litres of clotted blood present in right
pleural cavity. Six pellets and one cock
recovered from right pleural cavity. Left
108 INDIAN LAW REPORTS ALLAHABAD SERIES
lung -NAD and Pale. Pericardium- NAD
and pale.

(d) Heart - NAD and empty.

(e) Cavity- about 1 litre of clotted
blood present in abdominal cavity.

(f) Stomach: NAD, 150 ml of
semi-digested food matter present.

(g) Small intestine - NAD -
digested food matter and gases present.

(h) Large intestine - NAD, faecal
matter and gases are present.

(i) Liver - lacerated, 12 pellets
recovered from liver.

(j) In all 28 pellets recovered
from the body

(iv)
Cause
of
death:
Haemorrhage and shock due to antemortem firearm injury.

(v) The estimated time of death
- About one day before.

5.

After
completion
of
the
investigation, two persons, namely, the
appellants, were charge-sheeted by PW-4
vide charge-sheet dated 22.07.2005 (Exb.
Ka-14) on which cognisance was taken on
11.08.2005 and the case was committed to
the Court of Session where, vide order
dated 02.01.2006, the appellants were
charged for offence punishable under
Section 302 read with Section 34 I.P.C. The
accused-appellants pleaded not guilty and
claimed to be tried.

PROSECUTION EVIDENCE

6. During the course of trial, the
prosecution examined four witnesses, their
testimony, in brief, is noticed below:-

(i) PW-1 - Surendra (informant -
son of the deceased). He stated that on
06.07.2005, at about 9 pm, while the
deceased was smoking Beedi at the Baithak
(sitting place) in front of his house and PW1 was returning to the house, after serving
water to the deceased, the accused -
Birnami and Tej Pal, along with an
unknown person, came and, before the
deceased could realise, Tej Pal (appellant
no.2) fired a shot at the deceased. All of
this was witnessed by Sompal (younger
brother of PW-1) and Indraman (PW-3 -
brother of the deceased) and they made an
effort to nab the accused but they ran away
brandishing their weapons. PW-1 stated
that he and the witnesses saw and
recognised the accused in the light of
lantern and torch though, they could not
recognise the third unknown person. PW-1
stated that thereafter the injured was taken
on a Dunlop cart for medical attention but,
by the time they could cross the river
Naurah, he expired. Therefore, they took
the body on that Dunlop Cart to the police
chowki Param. PW-1 stated that after
parking the Dunlop cart there, he went to
police station Milak where, on getting the
report typed, he lodged the report after
signing the same. The typed report was
exhibited as Exb. Ka-1. PW-1 stated that
accused were inimical to the deceased
because government tap was installed in
the premises of the deceased.

(ia) In his cross-examination,
PW-1 stated that his house and PW-2's
house are separate from each other. The
deceased and PW-1 stayed in one house.
The 'Baithak' where the deceased was
sitting at the time of occurrence is on the
outer side, below a shade (chhappar), open
from three sides and towards north of the
house. The distance between that 'Baithak'
and the house is 8-10 paces. When PW-1
was about 5 paces away from the deceased,
he heard gun shot, before that he could
sense someone coming and when he turned,
simultaneously, gun shot was heard and he
saw three persons holding pistols in their
hands. PW-1 stated that the shot was fired
4 All. Birnami & Anr. Vs. State of U.P.
109
in his presence; and that shot was fired
from a distance of about 1 feet and,
immediately thereafter, the accused ran
away. PW-1 stated that they chased the
accused for 2-4 paces but returned to attend
to the deceased who was lying injured. PW1 stated that upto the Chowki he was
accompanied by his brother (Sompal), his
mother and PW-2 but other villagers, due to
fear, did not accompany them though they
had arrived at the spot. They reached
Chowki at 10.30 pm where they informed
Diwan about the incident but the report was
not written. They stayed there for half an
hour, whereafter, PW-1 went to P.S. Milak
along with Diwan. They reached there by
quarter to twelve. By that time the Bazaar
was closed. At the police station, PW-1 met
Daroga (I.O.) and informed him about the
incident. Daroga told PW-1 to get the
report in writing. Next to the police station,
at the Tehsil, he found a man who got the
written report typed. Prior to that, he had
never seen that typist. That at that time
there was just one typist available. The
typist did not type his name in the report.
The typed report was given at the police
station at about 00.30 hrs. He denied the
suggestion that the report was typed in the
morning after sunrise and thereafter was
given at the police station. He stated that
the I.O. did not ask him as to from where
he got the report typed. At this stage, the
witness was confronted with his statement
under Section 161 Cr.P.C. where he had not
stated that the report was got typed at the
Tehsil.

(ib) In respect of position of the
deceased when the shot was fired, PW-1
stated that the shot had hit the deceased
while he was sitting on the cot; the shot
was fired from the right side. Blood had
dropped on the cot.

(ic) In respect of conveyance
used to lodge report, PW-1 stated that
from Chowki Param, he went on a cycle
with Diwan and returned back to the
chowki on the same cycle; and that night
they did not return back to the village.

(id) In respect of the time he
served food to the deceased- PW-1 stated
that that night he had served food to the
deceased about 15 minutes before 9 pm.
The deceased had consumed Roti and Sabji
(vegetable) and after that meal he had gone
to serve water to the deceased.

(ie) In respect of animosity-
PW-1 stated that though there was
animosity between the accused and his
family but there was no pending litigation.

(if) In respect of source of light,
PW-1 stated that he had a torch; and a
lantern was hanging from the Chhappar.
He had disclosed to the I.O. the spot where
the lantern was hanging from the Chhappar
but the I.O. had not taken the lantern into
custody. He stated that he had also shown
his torch to the I.O. but the torch was not
taken into custody by the I.O. He denied
the suggestion that he had not seen the
incident in the light of torch/lantern as they
were not there. He also denied the
suggestion that he had not shown the torch
and the lantern to the I.O.

(ig) In respect of the third
accused, PW-1 stated that he did not know
him. PW-1 also could not describe him by
his height and body structure. He stated
that all the three accused came together and
were standing together at one place when
they fired at the deceased. He denied the
suggestion that it was dark therefore, he
could not recognise the third person. He
also denied the suggestion that it was dark
at the place of occurrence. He also denied
the suggestion that it was dark and he could
not recognise any person. He denied the
suggestion that the accused were not
involved but have been falsely implicated
on account of enmity. He further denied the
110 INDIAN LAW REPORTS ALLAHABAD SERIES
suggestion that the accused-appellants
neither brandished their weapons nor
extended threats.

(ii) PW-2 - Indarman (younger
brother of the deceased and uncle of PW1). He stated that while he was standing on
the rasta, in front of his house, he saw the
accused-appellants and one another coming
out of their house and going towards the
house of the deceased. Seeing them
together, PW-2 also went towards the house
of the deceased when he saw accused (Tej
Pal-appellant no.2) firing a shot at the
deceased. Thereafter, PW-2, PW-1, PW-1's
brother (Sompal) and PW-1's mother
challenged the accused and tried to catch
them but the accused ran away brandishing
their weapons and extending threats. PW-2
stated that, at that time, there was a lantern
hanging from the Chhappar and he had a
torch in his hand and in the light thereof, he
saw the incident and could recognise the
accused. He stated that after the incident,
they took the deceased on a Dunlop cart for
medical attention at Milak but the deceased
died on way and, therefore, they took the
body to Param Chowki. From Chowki,
PW-1 went to the police station to lodge the
report.

(iia) In his cross-examination,
PW-2 stated that his house and the house of
the deceased are separate with separate
entrance. He stated that soon before the
incident, the deceased has had his food. At
the time of the incident, PW-2's wife and
children were inside the house. He stated
that, during investigation, he had informed
the I.O. that he was standing on the rasta at
the time of the incident but when
confronted with the omission in that regard,
he stated that if that was not written, he
cannot tell the reason for the same. He
denied the suggestion that he is lying that
he was standing on the rasta at the time of
the incident and therefore he had not made
disclosure of this fact to the I.O. He
admitted that he had not informed the I.O.
that there was lantern hanging from
Chhappar and that he had a torch in his
hand. He, however, denied the suggestion
that he did not make disclosure of the
lantern hanging from Chappar and about
the torch in his hand because they were not
there. Immediately, thereafter, he stated that
he had informed the I.O. about the lantern
and the torch. When PW-2 was confronted
with the omission in his statement in that
regard, he stated that if that was not
mentioned in his statement under Section
161 Cr.P.C., he cannot give its reason.

(iib)
On
further
crossexamination, he stated that at about 9 pm,
on the day of the incident, he had come out
to urinate, then he spotted the accused
roaming and by the time he could finish
urinating, he heard gun shot. As soon as
gun shot was fired by accused-appellant
(Tej Pal), he arrived at the spot where he
saw deceased's both sons and wife and
other than them there was no one else there.
PW-2 stated that after being hit by the gun
shot, the deceased fell there. Thereafter, the
deceased was taken on a Dunlop cart. He
stated that the distance between Param
Chowki and the spot is 3-4 kilometer. He
stated that he had accompanied the cart up
to police chowki Param. Thereafter, as the
body of his brother was kept at the Chowki,
he remained at the Chowki, whereas, PW-1
went to police station Milak to lodge the
report. He stated that from the spot to
Chowki Param, it took them about 45
minutes. He stated that from Milak, police
personnel had arrived in the night between
12.00- 1.00 pm and they were there at the
Chowki till day break. Thereafter, they
brought the body to the police station by
about noon. He stated that when PW-1 had
gone from Chowki Param to Police Station
Milak, a constable had accompanied him.
4 All. Birnami & Anr. Vs. State of U.P.
111

(iic) On being queried as to
whether the accused had covered their
faces, he stated that their faces were not
covered. He stated that since before the
incident there were disputes between the
deceased and accused-appellants (Tej Pal
and Birnami); and that a month before the
present incident, there was a fight though
no one had received any serious injury; that
incident had occurred at 8-9 am in the
morning but that incident was not reported
and no information of that incident was
given to the I.O. In respect of the present
incident, his statement was recorded next
day of the incident. He stated that he had
also informed the police personnel of the
police chowki about the incident but when
they were informed, the I.O. was not
present. He stated that he was not asked by
the I.O. to handover the batteries (should be
read as torch) therefore, he had not shown
the batteries to the I.O.

(iid) In respect of the direction
in which the deceased was sitting at the
time of the incident, he stated that the
deceased at the time of the incident was
sitting on a cot smoking a Beedi;
deceased's face was towards East and
deceased's house was towards West;
whereas, the Chhappar was overhead.
PW-2 stated that deceased was shot from
the Galliyara (lane) located towards East
of
that
Chhappar.
When
he
was
questioned as to whether he is aware
about directions, PW-2 stated that he is
aware of the directions. He denied the
suggestion that there is no Galliyara
towards the East of the Chhappar of the
deceased. He stated that Chhappar of the
deceased joins his house towards North.
He stated that in between his and
deceased's house there is Kothri and near
the Chhappar, apart from his house, there
is no other house. He denied the
suggestion that he did not witness the
incident and as the incident involved the
murder of his brother, he has told lies.

(iii) PW-3- Dr. M.A. Ali. He
proved the autopsy report which was
marked as Exhibit Ka-2. He stated that
death of the deceased could have
occurred in between 9 pm to 11 pm on
06.07.2005.

(iiia) In his cross-examination,
he stated that the position from where the
shot was fired at the deceased must have
been lower than the position at which the
deceased was when he was hit by the
shot. He stated that if shot is fired from a
distance less than 2 feet blackening
would be noticed though it depends upon
the nature of the gun powder in the bullet
as also the clothes worn by the deceased.
He stated that scorching and tattooing
would be noticed if the shot is fired from
a distance between 1 to 2 feet but it all
depends upon the nature of the firearm.

(iiib)
In
respect
of
his
estimation with regard to the time of
death, he stated that there could be a
variation of plus-minus 4 to 6 hours.

(iiic) In respect of presence of
semi-digested food material in the stomach
of the deceased, he stated that this suggests
that the deceased might have had his meal
4-6 hours before. He stated that if the
deceased had died about 10 pm, he might
have had his meal at around 4.30 pm and if
he had died at about 4.30 pm then he might
have had his meal between 10-10.30 am.

(iv)
PW-4-S.I.
S.C.
Tyagi
(Investigating Officer). He stated that on
the date of lodging the first information
report he was posted at P.S. Milak as SubInspector and he took over the investigation
of the case under the direction of the
Station House Officer. After taking over the
investigation of the case, he recorded the
statement of Chatrapal Singh, who had
prepared the Chik FIR and the GD Entry of
112 INDIAN LAW REPORTS ALLAHABAD SERIES
the receipt of the written report; thereafter,
he recorded the statement of the informant.
Vide GD Report No. 2, he left for police
chowki Param along with other police
personnel where he saw the body of the
deceased. The body of the deceased was
inspected but as it was late night, the
inquest was deferred to morning and was,
accordingly, conducted in the morning. He
proved the inquest report. He stated that
after the inquest, the body was sealed and
papers in respect of autopsy were prepared.
At the time of sealing the body, pieces of
bed-sheets
and
mattress
were
taken
whereafter, he proceeded to the spot. At the
spot, the site plan was prepared on the
instructions of PW-2. The site plan was
exhibited as Exb. Ka-10. PW-4 stated that
he took blood stained pieces of the cot
where the deceased was sitting and
prepared a memorandum thereof, which
was marked Exhibit Ka-11. He stated that
in that cot there was bed sheet and mattress
which were blood stained and he took their
pieces of which seizure memo (Exb.Ka-12)
was prepared. He also proved lifting of
blood stained and plain earth from the spot
of which seizure memo prepared was
exhibited as Exb. Ka-13. He stated that the
accused - Birnami was arrested on
09.07.2005; whereas, the accused-Tej Pal
was arrested in PW-4's absence on
16.07.2005. He stated that after he recorded
the
statement
of
the
eye-witnesses
including Sompal (other son of the
deceased) and Premwati (wife of the
deceased), charge-sheet was prepared and
submitted, which was exhibited as Exb.
Ka-14. He stated that the articles seized
were sent for forensic examination. He
stated that at the time of inquest, the
deceased was wearing a Kurta, Aangocha
and an underwear which were sealed and
sent for forensic examination. He produced
plain earth/blood stained earth, clothes etc.
which were made material exhibits. He
proved the signature of Chhatrapal -
constable, who prepared the Chik FIR, and
stated that Chhatrapal could not be
produced as a witness because he is on VIP
duty and there is no possibility of him
being available. On PW-4 recognizing the
signature of Chahtrapal, the Chik FIR and
the GD entry of the report were exhibited
as
Exb.
Ka-15
and
Exb.
Ka-16,
respectively.

(iva) In his cross-examination,
he stated that the FIR was registered in his
presence. At the time of registration of the
first information report, 2-3 persons had
come for lodging the first information
report. He, however, could not tell the
conveyance used by the informant to reach
the police station. He stated that the FIR
was
scribed
at
the
police
station.
Immediately thereafter, he stated that it was
already written. He stated that from village
Koop (place of occurrence) if one comes to
the police station, Param Chowki falls in
between. PW-4 stated that the informant
had informed that the body of the deceased
was lying at Param Chowki. He stated that
he left the police station at 12.30 am (0030
hours) to reach Param Chowki; the
informant had accompanied them; and
police personnel had gone on a Jeep. He
stated that the statement of Chik maker and
the informant was recorded at the police
station. He stated that the distance between
Param Chowki and the police station would
be 8-10 kms. PW-4 took about an hour to
reach Param Chowki as the road was very
bad. On reaching Chowki, the body of the
deceased was seen and PW-4 stayed
overnight at the Chowki where family
members of the deceased were also present.
Amongst villagers, Kripal and others were
also there; that there must have 10-15
people there. He stated that though PW-2
was present at the Chowki but his statement
4 All. Birnami & Anr. Vs. State of U.P.
113
was not recorded then, and no step in
furtherance of investigation was taken
there. He stated that no separate order was
passed for him to investigate the case, in
fact the SHO (Amrit Lal) was also present
at the time of lodging the FIR and the order
in respect of investigation of the case by
PW-4 was written in the Chik FIR itself.

(ivb)
In
respect
of
the
investigation being assigned to him, PW-4
stated that the investigation was assigned
to him because the incident occurred
within his Halka (circle). He stated that he
does not remain at the Chowki during
night but is either on round or at the
Thana. He stated that, that entire night the
body remained on Dunlop Cart and the
proceedings commenced in the morning
between 8 and 9 am. He stated that sun
rise must have occurred between 6.00 and
6.15 am. He stated that at the time of
inspection of the body, the body was on a
mattress and a bed-sheet, which were
soaked with blood, but there was no blood
on the dunlop cart. He could not tell as to
what mode of transport was used for
carrying the body from the Chowki to
Sadar Hospital. He stated that uncle of the
informant, namely, PW-2, took him from
police chowki to village Koop i.e. the
place of occurrence.

(ivc)
In
respect
of
the
description of the spot i.e. the place of
occurrence, PW-4 stated that a cot was seen
at the Baithak. The Baithak was covered by
Chappar. He could not tell whether
mattress/ bedcover was there on the cot but
the cot had blood stains. He could not tell
the exact portion of the cot in which blood
stain was present but stated that there was
blood also on the floor in a dimension of 23 inches as was on the cot. He stated that
the informant did not have a separate room
but the entire family used to reside at one
place in the house.

(ivd) In respect of various other
steps during investigation, he stated that
eye-witnesses
of
the
incident
were
informant (PW-1), his brother Sompal, his
uncle (PW-2) and informant's mother and
no other. He stated that the statement of
deceased's
wife
was
recorded
on
22.07.2005 because earlier, when he visited
the spot, she was not found. He denied the
suggestion that on the day of the incident,
wife of the deceased was not present. He
stated that he had prepared the site plan on
the instruction of (PW-2). He stated that on
09.07.2005, he had arrested Brijmani from
his house. He denied the suggestion that he
completed the investigation while sitting in
his office. He reiterated that he recorded the
statement of the informant in the night of
the incident itself at the police station but
the time of its recording was not entered in
the general diary. He stated that at the time
of recording statement of the informant,
PW-2 was not present.

(ive) In respect of typed report of
the written report (FIR), PW-4 stated that
when the informant had come to lodge the
report he had a written report with him
which was seen by him. PW-4 stated that
copy of the report and the copy of the Chik
was provided to him. He stated that he does
not know from where the informant got the
report typed. He also stated that he does not
know whether the typed report was given at
police station Milak in the morning. He
stated that he did not record the statement
of the person who typed the first
information report and he cannot tell the
reason for the same. He stated that he did
not ask the informant as to from where he
could get the written report typed in the
night. He also did not ask any question as
to the name of the typist.

(iv f) In respect of the time
when he left the police station for
investigation,
he
stated
that
after
114 INDIAN LAW REPORTS ALLAHABAD SERIES
completing the formalities, he left at 1.30
hours for Chowki Param.

(iv g) In respect of the time
when he reached village-Koop (the place
of occurrence), he stated that he reached
there at 10.30 hrs in the morning but before
that he had reached Param Chowki. He
stated when he had reached village-Koop
then PW-2 was with him.

(iv h) In respect of describing
the surroundings of the spot - He stated
that the house of the informant (PW-1),
PW-1's brother (Sompal) and PW-1's wife
(Premwati) was common; whereas, the
house of PW-2 is separate and PW-2
resides separately. He stated that though the
two houses are separate but there is no
boundary in between. He stated that in the
house of the deceased, there are 2 or 3
rooms facing North. All three rooms are
Pakka.
At
the
time
of
occurrence,
informant (PW-1) and the deceased used to
stay in the same house but in different
rooms. He stated that in the site plan the
house of the accused is across the road. He
stated that towards north of the house of the
deceased there is Chappar and there is a
gap between the Chhappar and the house
(where the deceased and other members of
his family resided). PW-4 stated that in the
site plan he had not shown the three rooms
separately but has shown the location of the
entire house. On being shown the site plan
prepared by him, he stated that in the site
plan he has shown the direction from where
the informant (PW-1) and PW-1's mother
(Premwati) and PW-1's brother (Sompal)
had come out of their house to the spot. He
stated that the place where the incident
occurred (Point 'A') is about 7-8 paces from
the house of the informant.

(Iv i) In respect of the presence
of lantern and torch, when PW-4 was
questioned, he stated that at point 'A' where
the cot was laid on which the deceased was
present at the time of the incident there was
no lantern shown in the map and that no
such lantern was recovered. The informant
(PW-1) and his uncle (PW-2) had also not
given their torches to the custody of the
police. The informant had also not
disclosed the presence of lantern at the
spot. He admitted that at Point 'A' he had
not shown presence of blood. He stated that
neither PW-1 nor PW-2 in their statement
recorded under Section 161 Cr.P.C. had
disclosed to him the distance from where
the deceased was shot at. That he had not
noticed any bullet at the spot nor he could
notice any pellet marks. He also stated that
the two eye-witnesses had also not
disclosed to him as to how they could
recognise the assailants. He stated that at
the spot he did not notice any empty
cartridge. He denied the suggestion that
investigation was completed sitting at one
place. He stated that he had collected
pieces of the cot from the spot but he had
not mentioned the length of those pieces
and he had also not mentioned in the case
diary as to how many pieces were sent to
the forensic laboratory. He denied the
suggestion that the recovered articles were
not properly kept and entered in the records
before being sent for forensic examination.
He stated that recovered articles were sent
for forensic examination after submission
of charge-sheet. He denied the suggestion
that the forensic report is bogus.

7. The incriminating circumstances
appearing in the prosecution evidence were
put to the accused-appellants. They denied
the
incriminating
circumstances
and
claimed that they have been falsely
implicated on account of land dispute.

8. The trial court found that the FIR
was promptly lodged, the ocular account of
PW-1 and PW-2 was reliable and consistent
4 All. Birnami & Anr. Vs. State of U.P.
115
with the medical evidence, accordingly,
convicted the appellant no.2-Tej Pal under
Section 302 I.P.C. and appellant no.1
Birnami under Section 302 read with
Section 34 I.P.C.

9. We have heard Sri Vinay Saran,
learned senior counsel, assisted by Sri
Pradeep Kumar Mishra, for the appellants
and Sri H.M.B. Sinha, learned A.G.A., for
the State and have perused the record.

 SUBMISSIONS ON BEHALF
OF THE APPELLANT

10. Learned counsel for the appellants
submitted that the incident is of late night;
existence of electricity light is neither
alleged nor proved; incident is stated to
have been witnessed in the light of lantern
and torch whereas, neither lantern nor torch
was shown to the I.O. and their existence
was not confirmed during investigation
therefore, in the darkness of night no one
could identify the assailant; whereas, the
FIR was lodged by guess-work, implicating
three suspects against one injury; that the
FIR was ante-timed; and that the trial court
failed to properly test the prosecution
evidence,
particularly,
when
a
close
scrutiny was required as the ocular account
was coming through interested witnesses.

11. It was contended that the place of
incident, as per the site plan, was adjoining
Aam Rasta (public lane). Admittedly, the
deceased
was
seated
underneath
a
Chhappar which was open from three sides
including
lane/
road-side,
therefore,
anybody from the road could have fired a
shot at the deceased from close range and
run away. It is thus a case of hit and run,
giving no opportunity to the witnesses to
identify the assailants. Moreover, the
incident occurred without altercation or
dialogue. It was a split second affair. When
the testimony of PW-1 is carefully
scrutinised, it would appear that he rushed
out from his room on hearing gun shot and,
therefore, possibility of his witnessing the
actual firing is not there. Notably, the site
plan discloses arrows/ directions from
where the witnesses arrived and not the
spot from where they witnessed the
incident.

12. There is a strong suspicion with
regard to the FIR being ante-timed as it is
not at all probable that at 12 midnight a
typist would be available to type the report.
This suspicion has not been dispelled by
examination of the scribe / typist of the
written report or the constable who
prepared the Chik FIR/ GD Entry in respect
of its receipt. Rather, the suspicion gets
amplified by non-disclosure of the identity
of that typist despite questioning. It is
therefore a case where the report was
lodged on guess-work and suspicion in the
morning by ante-timing the same. This is
corroborated by the inordinate delay in
conducting the inquest. All of this raise a
strong suspicion with regard to the
truthfulness
of
the
prosecution
case
entitling the accused to the benefit of
doubt.

13. It was next argued that in so far as
PW-2 is concerned, he appears to be a
chance witness whose presence at the spot,
at the time of the incident, appears doubtful
because1-33 the reason that he discloses for
his presence is that he had been out to
urinate. This reason is not disclosed by him
in his statement recorded under section 161
CrPC. Other than that his presence is not
natural because he has a separate house.
Moreover, the site plan, which is prepared
at his instance, does not disclose his
location from where he witnessed the
116 INDIAN LAW REPORTS ALLAHABAD SERIES
incident. Further, the disclosure by him
with regard to the direction in which the
deceased was sitting i.e. with his face
towards east, is at variance with the spot
position including the site plan because, if
the deceased was facing east then had the
shot been fired from lane, which is towards
north, as shown in the site plan, the
deceased would have been hit on the left
side, whereas the shot had hit the deceased
on the right side.

14. In so far as PW-1 is concerned,
it appears, he rushed out of the house on
hearing the gun shot. Further, PW-1 is
not reliable because, according to him,
he had served dinner to the deceased just
15 minutes before the incident; whereas,
semi-digested
food was noticed
in
deceased's stomach, which, according to
the doctor, might have been eaten about
4 hours before. This also suggests that
the incident might have occurred late
night and not as suggested by the
prosecution.

15. Further, it is a case where there is
no corroboration to the ocular account from
recovery of the murder weapon or from any
independent witness, hence, conviction of
the appellants, under the circumstances,
would not be safe and, therefore, it is a fit
case where the benefit of doubt be extended
to the appellants.

16. Lastly, there existed no strong
motive for the crime. If there was any, there
appeared no motive for three persons to
join hand. Even the two named persons
belong to different families though they
both reside near the house of the deceased
across the road.

SUBMISSIONS ON BEHALF
OF THE STATE

17. Per contra, the learned A.G.A.
stated that PW-1 was a co-resident with the
deceased and PW-2 resided next door, thus,
their presence at the spot is natural. Their
ocular account is consistent with medical
evidence and the first information report
was promptly lodged in the night itself; that
source of light has been disclosed in the
FIR as well as in the testimony. Therefore,
merely because the investigating officer
was not vigilant in effecting recovery of
lantern and torches, non production of
lantern/ torch would not prove fatal to the
prosecution case.

18. Absence of a strong motive for the
crime would not be material as the case is
based on ocular account which is consistent
with medical evidence. Importantly, the
place and time of occurrence has not been
challenged by putting suggestions to the
eye-witnesses
therefore,
once
it
is
established that the incident occurred in
close proximity to the dwelling unit of the
witnesses, their presence becomes natural
on the spot and their testimony cannot be
discarded merely because they are not
independent witnesses.

19. No presumption can be drawn that
a typed report cannot be prepared late in
the night. Similarly, if the inquest was
deferred till day break, an inference cannot
be drawn that the FIR was not in existence
by then because in villages where there is
no facility of electric light, inquest usually
awaits day break. Thus, there is no logical
reason to assume that the first information
report is ante-timed.

20. Presence of semi-digested food in
the stomach of the deceased does not
render the ocular account of PW-1 in
respect of the incident doubtful because his
presence in the house at the time of the
4 All. Birnami & Anr. Vs. State of U.P.
117
incident has not been challenged. The
learned AGA thus prayed that the appeal be
dismissed.

ANALYSIS

21. Having considered the entire
prosecution
evidence
and
the
rival
submissions, we are of the view that the
prosecution has been able to prove beyond
doubt the following:

(i) The place of incident i.e.
where the deceased was shot at. The place
of occurrence is the Baithak of deceased's
house, just in front of the house of the
deceased, adjoining public lane, covered by
a Chhappar (a shade), which is open from
three sides including the lane side, and is 7-
8 paces north of the dwelling units of
deceased's house. Notably, there is no
suggestion to the eyewitnesses to dispute
the spot. Further, there is no serious
challenge to the deceased sitting on a cot,
placed on that Baithak, at the time he was
shot. This is also confirmed by collection
and production of blood stained pieces of
cot etc found on that 'Baithak'.