# Hakim v. State of U.P

- **Citation:** (2024) 10 ILRA 803
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-10-24
- **Bench:** Ashwani Kumar Mishra, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hakim-v-state-of-u-p-51116
- **Pages:** 15

## Headnote

Criminal Law -Indian Penal Code,1860 -
Sections 147, 148 & 302 read with Section
149 IPC awarding imprisonment for life
with a fine of Rs. 25,000/- and a default
sentence of one year three months-
whether the first information report is
anti-timed or not- possibility of F.I.R.
having been lodged after deliberation and
consultation
cannot
be
ruled
outdeposition of star witnesses doubtful- it is
nothing
but
a
classic
case
of
improvement- various shortcomings not
only in the investigation- prosecution
theory itself appears doubtful for holding
appellant's guilty of commission of the
charged offence- material contradictions
not only in the oral testimony of the
prosecution witnesses- entire prosecution
theory is botched up sans any credibility-
prosecution has failed to establish the
commission of the crime by the accused
beyond reasonable doubt-conviction set
aside-appeal allowed. (Paras 36, 38, 42,
43 and 45)

HELD:
Certainly, a defective investigation may not
demolish the prosecution theory but overall
circumstances
needs
to
be
considered
depending upon the facts and circumstances in
order to weigh the import and the impact of the
defective investigation. We find that there are
various
shortcomings
not
only
in
the
investigation conducted by the investigating
officer but also the fact that the prosecution
theory itself appears doubtful for holding
appellant's guilty of commission of the charged
offence. What is required is a threadbare
analysis of the prosecution theory in light of the
oral and documentary evidence on record. (Para
38)
804 INDIAN LAW REPORTS ALLAHABAD SERIES
Plainly and simply, right from the inception,
there appears to be material contradictions not
only in the oral testimony of the prosecution
witnesses but also the first information report
and inquest, which goes to suggest that the
entire prosecution theory is botched up sans any
credibility. (Para 42)

As regards the theory propounded by the
prosecution that since the accused bore enmity
with the deceased and the same became the
basis of commission of the offence is concerned,
the law is well settled in this regard that enmity
is a double-edged weapon. (Para 43)

In the present case, we find that though the
prosecution has pressed into service the motive
for commission of the crime, but looking into
the overall circumstances emanating from the
depositions of the prosecution witnesses as well
as from the FIR, we find that the prosecution
has failed to establish the commission of the
crime by the accused beyond reasonable doubt.
(Para 45)

Appeal allowed. (E-14)

List of Cases cited:

## Text

_Characters 0–39,977 of 49,352. This is a partial read: ask again with offset=39977 for what follows._

10 All. Hakim Vs. State of U.P.
803
Act, 1995, the impugned F.I.R. dated
29.08.2024 registered at Case Crime No.
0293 of 2024; Police Station-Shahganj,
District-Jaunpur; to the extent it relates to
Section 419, 420, 467, 468, 471 of the
Indian Penal Code is liable to be quashed
and is hereby quashed to that extent. So far
as the rest of the alleged offence under
Sections 323, 504, 506 and 120B of the
Indian Penal Code as mentioned in the
F.I.R. dated 29.08.2024 are concerned, it is
pertinent to note that since these offences
are non-cognizable, therefore, prosecution
is
at
liberty
to
proceed
with
the
investigation only after seeking required
permission in terms of the provisions of
Section 155(2) of Code of Criminal
Procedure.

18. However it is made clear that this
order shall not prevent the concerned Waqf
Board or any officer duly authorized by the
State Government to institute Complaint in
terms of Section 52A of The Waqf Act,
1995.

19. As a fall out and consequence of
the above deliberation, this Writ Petition is
allowed
with
the
observations
and
directions set forth herein above.

20. Parties to this writ petition shall
bear their respective costs.
----------
(2024) 10 ILRA 803
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.10.2024

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE VIKAS BUDHWAR, J.

Criminal Appeal Nos. 6632 of 2019, 6501 of
2019, 3104 of 2021 & 151 of 2019
Hakim ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Araf Khan, Lihizur Rahman Khan, Pankaj Kumar
Shukla, Sanjay Kumar Dwivedi

Counsel for the Respondent:
Anil Kumar Pandey, G.A.

Criminal Law -Indian Penal Code,1860 -
Sections 147, 148 & 302 read with Section
149 IPC awarding imprisonment for life
with a fine of Rs. 25,000/- and a default
sentence of one year three months-
whether the first information report is
anti-timed or not- possibility of F.I.R.
having been lodged after deliberation and
consultation
cannot
be
ruled
outdeposition of star witnesses doubtful- it is
nothing
but
a
classic
case
of
improvement- various shortcomings not
only in the investigation- prosecution
theory itself appears doubtful for holding
appellant's guilty of commission of the
charged offence- material contradictions
not only in the oral testimony of the
prosecution witnesses- entire prosecution
theory is botched up sans any credibility-
prosecution has failed to establish the
commission of the crime by the accused
beyond reasonable doubt-conviction set
aside-appeal allowed. (Paras 36, 38, 42,
43 and 45)

HELD:
Certainly, a defective investigation may not
demolish the prosecution theory but overall
circumstances
needs
to
be
considered
depending upon the facts and circumstances in
order to weigh the import and the impact of the
defective investigation. We find that there are
various
shortcomings
not
only
in
the
investigation conducted by the investigating
officer but also the fact that the prosecution
theory itself appears doubtful for holding
appellant's guilty of commission of the charged
offence. What is required is a threadbare
analysis of the prosecution theory in light of the
oral and documentary evidence on record. (Para
38)
804 INDIAN LAW REPORTS ALLAHABAD SERIES
Plainly and simply, right from the inception,
there appears to be material contradictions not
only in the oral testimony of the prosecution
witnesses but also the first information report
and inquest, which goes to suggest that the
entire prosecution theory is botched up sans any
credibility. (Para 42)

As regards the theory propounded by the
prosecution that since the accused bore enmity
with the deceased and the same became the
basis of commission of the offence is concerned,
the law is well settled in this regard that enmity
is a double-edged weapon. (Para 43)

In the present case, we find that though the
prosecution has pressed into service the motive
for commission of the crime, but looking into
the overall circumstances emanating from the
depositions of the prosecution witnesses as well
as from the FIR, we find that the prosecution
has failed to establish the commission of the
crime by the accused beyond reasonable doubt.
(Para 45)

Appeal allowed. (E-14)

List of Cases cited:

1. Meharaj Singh Vs St. of U.P. 1994 (5) SCC
188

2. Mohd. Muslim Vs St. of U.P., 2023 (7) SCC
350

3. Balvir Singh Vs St. of M.P., 2019 (15) SCC 599

4. Yudhishtir Vs The St. of M.P., 1971 (3) SCC 436

5. Balram Vs St. of M.P., 2023 Live Law (SC) 960

6. Nand Lal Vs St. of Chhattisgarh, AIR 2023 SC

(Delivered by Hon'ble Vikas Budhwar, J.)

1. As these four appeals arise out of a
common
judgment
and
order
dated
25.07.2019 passed by the Addl. Sessions
Judge, Court No.3, Mathura, they are being
heard together and are being decided by a
composite order.
2. Criminal Appeal Nos. 6632 of
2019, 6501/2019 and 3104 of 2019 and Jail
Appeal No.151 of 2019 are against the
judgment and order dated 25.07.2019
passed by the Addl. Sessions Judge, Court
No.3, Mathura in Sessions Trial nos.
803/2013 and 344/2014, by which the
appellants have been convicted under
Sections 147, 148, 302 IPC read with
Section 149 IPC awarding imprisonment
for life with a fine of Rs. 25,000/- and a
default sentence of one year three months.

FACTS

3. The prosecution story in brief is
that on 06.01.2013, Bacchu Singh (PW-1)
lodged a First Information Report in the
Police Station- Refinery, Mathura against
the appellants and one Ravi son of Kishani
alleging that on 06.01.2013, when his
brother Suresh Chandra had gone in the
morning hours to answer the nature's call,
he was followed by the PW-1 Bacchu
Singh, brother of the deceased, Vikram
(PW-2) son of the deceased and Lauki, the
father of the deceased and when the
deceased reached the agricultural field,
where mustard (sarson) was sown, then
with
the
pre-determined
mind
the
accused Hakim Singh son of Girraj (A1), Lauki son of Girraj (A-2), Ajay @
Ajju son of Pooran (A-3), Kishani son of
Patiram @ Patti (A-4), Hakim son of
Niranjan Singh (A-5) and Ravi son of
Kishani (A-6) and who were hiding
behind the mustard crop at 08:30 in the
morning resorted to gun-shot firing and
also by using Farsa and knife, they
inflicted injuries on account whereof
Suresh Chandra (deceased) succumbed
to the injuries and died. The case was
registered by the police as Case Crime
no.6 of 2013, under Sections 147, 148,
149 IPC read with Section 302 IPC.
10 All. Hakim Vs. State of U.P.
805
4. Post lodging of the FIR, the
Investigating
Officer
was
appointed,
inquest report was prepared, post mortem
was done and after investigation, charge
sheet came to be filed against the accused
A1, A2, A3, A4 and A5 under Section 147,
148, 149 and 302 IPC on 12.04.2013.
However, it has been reported that after
filing of the Crimial Appeal No.5907 of
2019, Kishani (A-4) has died. With respect
to accused A-5 Kishani, he was found to be
juvenile. After taking cognizance of the
charge sheet, the case was committed to the
Court
of
Sessions
on
18.05.2013,
29.11.2013 and 04.04.2014 and the charges
were framed against the appellants under
Sections 147, 148, 302 IPC read with
Section 149 IPC.

5. During trial, the prosecution
examined as many as 7 witnesses, namely
Bacchu Singh (informant-PW-1), Vikram
(PW-2, witness of fact), Bare Lal (PW3)
author of the inquest, Dr. K.K. Gupta (PW4), witness, who conducted post mortem,
Surendra Singh, Head Moharrir (PW-5),
who lodged the FIR and Ram Kishan
Yadav (PW-6), first Investigating Officer,
who conducted investigation for the period
from 06.01.2013 to 08.01.2013 and Ashok
Kumar
(PW-7),
second
Investigating
Officer, who conducted investigation from
12.01.2013 till the submission of charge
sheet. Bhagwan Singh son of Lacchi Ram
also stepped into the witness box as
Defence Witness (DW-1). After prosecution
evidence was closed, the Trial Court
recorded the statement of the appellant
under Section 313 CrPC.

6. All the appellants denied the
allegations leveled against them, and stated
that they were falsely implicated in the said
criminal case. The Trial Court found them
guilty and sentenced them under Section
147, 148, 302 IPC read with Section 149
IPC.

SUBMISSIONS ADVANCED ON
BEHALF OF APPELLANTS

7. Sri Araf Khan, learned counsel
for the appellants has sought to argue that
the appellants have been falsely implicated
in the criminal case, as they are innocent.
Elaborating the said submission, it is
submitted that even if the prosecution
theory is taken to its face-value, then too
the appellants cannot be said to be either
present at the place of the incident and
further the presence of the PW-1 is itself
doubtful. Submission is that as per the
deposition of Bacchu Singh (PW-1) and
PW-2 Vikram, the incident took place in the
morning hours at about 08:30 A.M. in the
month of January and the place, whereat
the incident took place, there was an
agricultural field, over which mustard crop
was sown and the crop was about 6 ft. and
the allegation is that the accused were
hiding themselves behind the mustard crop
and when the deceased, Suresh Chandra
entered the agricultural field, then they
resorted to gun-shot fire and inflicted
injuries with knife and Farsa. Contention is
that as per the deposition of the prosecution
witnesses, the PW-1, PW-2 and Lauki, who
happens to be the father of the deceased
and PW-1 and the grand-father of the PW-2
were about 20-30 steps behind the
deceased, thus it was not possible to
identify the assailants who were hiding
behind the mustard crop.

8. It is also contended that there
are material contradictions in the testimony
of the PW-1 and PW-2, which shows that
the FIR is ante-time, particularly when
during the cross-examination of Bacchu
Singh by the defence, it was deposed by the
806 INDIAN LAW REPORTS ALLAHABAD SERIES
PW-1 that he had gone to the Police Station
and thereafter along with Sub-Inspector and
the Police Force, they came to the place of
incident, where the dead body of the
deceased was lying in the agricultural field
and the police officials waited there for half
an hour and took the corpus to the Police
Station- Refinery, where PW-1 waited for
half an hour, whereafter the Sub-Inspector
procured the signature on the FIR and even
the inquest papers were prepared inside the
police station, whereas PW-2 Vikram in his
cross-examination by the defence deposed
that the Sub-Inspector sent the cadavers to
the post-mortem house from the place of
incident and at the same time, PW-2 was
taken to the Police Station and thereafter
the FIR was lodged. It is thus contended
that the FIR was lodged after post-mortem
and the said fact also stands fortified as the
details of the FIR are not mentioned in the
post-mortem report.

9. Learned counsel for the appellant
has also argued that PW-1 has also deposed in
the cross-examination that only blank papers for
the purpose of preparation of panchayatnama
were offered to him and he signed on the blank
papers. It is thus contended that the very basis
for holding the appellants to be guilty of
commission of the said offence is not borne out
from the record and it is a clear case of false
implication. With respect to the conduct of the
prosecution in not asking for any help from the
villagers, it is contended that as per the
deposition of the prosecution witnesses, they
waited for one and half hours at the place of the
incident and did not bother to call anybody for
help despite the fact that the place of incident
was just 100 meters away from the house of the
appellants which itself shows that a false
prosecution case has been cooked up.

10. Additionally, it has also been
argued
that
the
hollowness
of
the
prosecution story is further borne out of the
fact that though it is the case of the
prosecution that at the time of occurrence
of the said incident, the PW-1 and PW-2
and Lauki were about few steps away from
the deceased and they were attacked by
resorting to gunshot fire, but the said
allegation was at no point of time reported
to the police when the statements were
recorded under Section 161 CrPC and at
the time of the statement under Section 164
CrPC, improvements have been made just
in order to falsely implicate the appellants.
It is thus prayed that the judgment and
order of the Trial Court convicting the
appellants be set aside and the appeal be
allowed in toto.

SUBMISSIONS
OF
THE
COUNSEL FOR THE STATE (A.G.A.)
& INFORMANT

11.

Countering
the
said
submissions, Sri Vikas Goswami, learned
A.G.A. as well as Shri Anil Kumar Pandey,
learned counsel for the informant have
submitted that the Trial Court has rightly
convicted the appellants. It is submitted
that there was ample evidence available on
record including the testimony of the
prosecution witnesses, which clearly proves
that the appellants had committed the
offence. Argument is that it is not a case,
wherein there was any fog in the morning
hours, when the incident took place, as it
has borne out from the record that the
prosecution witnesses have come up with
the stand that the weather was clear and the
distance between the place of incident and
the PW-1 and PW-2, who had witnessed the
said incident was 10-20 steps. Thus, it is
highly inconceivable that there can be any
mistake in identifying the assailants. They
further submit that there happens to be
motive behind commission of the offence
10 All. Hakim Vs. State of U.P.
807
as the accused bore enmity, particularly,
when the father of the accused A1 and A2
being Girraj was murdered by the deceased,
Suresh and FIR came to be lodged. Thus,
the same became the motive behind the
commission of offence.

12. Additionally, it has been
submitted that in case, there was any
inconsistency in the deposition or defect in
the investigation, the same would not
render
the
case
of
the
prosecution
unreliable as what is to be seen are the
evidences available on record, which even
otherwise in the facts of the present case
points out involvement of the accused in
the commission of the offence. It is thus
prayed that the appeals be dismissed.

13. In order to establish its case,
the prosecution has adduced documentary
and oral evidence.

DOCUMENTARY EVIDENCE

14. The documentary evidence
consists of: -

(i) Written Report (Exbt.
Ka.1),
(ii) Panchayatnama (Exbt.
Ka.2),
(iii) Police Form No.379
(Exbt. Ka.3),
(iv) Letter written to Chief
Medical Officer, Mathura (Exbt.
Ka.4),
(v) Police Form No.13
(Exbt. Ka.5),
(vi)
Letter
written
to
Reserve Inspector, Police Line,
Mathura (Exbt. Ka.6),
(vii) Post Mortem Report
of deceased Suresh Chand (Exbt.
Ka.7),
(viii)
Chik
FIR
(Exbt.
Ka.8),
(ix) Nakal Rapat No.20
Time: 9:40 A.M. (Exbt. Ka.9),
(x) Plain soil and blood
stained
paper
no.4A/7
(Exbt.
Ka.10),
(xi) Three empty cartridges
315 bore Paper no.4A/8 (Exbt.
Ka.11),
(xii)
Site-plan
Paper
no.4A/3 (Exbt. Ka.12),
(xiii)
Charge
Sheet
No.42/2013 (Exbt. Ka.13) and
(xiv)
Charge
Sheet
no.42A/13 (Exbt. Ka.14).

TESTIMONY OF PROSECUTION
WITNESSES:

15. PW-1: Bacchu Singh, the
informant has been examined as PW-1. He
is the brother of the deceased. PW-1 in his
examination stated that on 06.01.2023, his
brother, Suresh Chandra in order to answer
the nature's call left his house and the PW1 along with PW-2 Vikram and his father
Lauki left after few minutes and when the
deceased reached the agricultural field,
where the mustard crop was standing
owned by Girraj son of Lakshman Singh,
then the accused A-1 to A-6 resorted to
gunshot firing and also inflicted injuries by
knife
and
Farsa
and
the
deceased
succumbed. In the cross-examination by
the defence on 31.10.2014, he has stated
that the deceased had left the house for
answering the nature's call 1-2 minutes
earlier and when he along with PW-2 and
Lauki were going to answer nature's call,
then several villagers were also present
answering the nature's call. The distance
between the PW-1 and the deceased was 20
steps and the accused A-1 to A-6 were
hiding behind the mustard crop resorted to
808 INDIAN LAW REPORTS ALLAHABAD SERIES
gunshot firing and inflicted injuries. The
PW-1 also deposed that when after
receiving the injuries, deceased fell down,
then PW-2 Vikram and his father Lauki
caught hold of the deceased and their hand
and clothes got stained with blood.
However, the sample of the blood-stained
clothes was not taken by the police and the
clothes was thereafter washed. It is also
stated that the report was lodged in the
police station and the scribe to the said
report was Rajendra Singh who was the
brother-in-law of the deceased, he was not
called, however, he arrived a day prior to
the date of incident and he was staying in
the house and he owned a mobile phone,
but he did not come to the place of incident
and he remained in the house. The police
was not informed through the mobile phone
of Rajendra and so far as the mobile phone,
which was with the deceased, the same did
not have any balance. The accused were
armed with knife and the Pharsa, but it is
not known as to who was holding which
weapon. PW-1 stated that he had heard as
many as six gunshot fires simultaneously. It
was also stated that along with SubInspector, the police force reached the place
of incident. The Investigating Officer did
not prepare the site-plan in the presence of
the PW-1 and the Investigating Officer
waited at the place of incident for half an
hour and thereafter took the dead body to
the Police Station, Refinery where PW-1
along with others waited for one hour and
then the written report was signed by PW1. The inquest was prepared, which was
signed in the Police Station. PW-1 showed
his ignorance to the fact as to whether he
signed inquest or not at the time of sealing
the dead body and thereafter, the dead body
was sent for post mortem. PW-1 further
stated that about 3-4 gunshot fires were
made upon PW-1. PW-2 and his father
Lauki, who were about 30 steps away from
the deceased. However, the same was not
reported to the police and no statement to
the said effect was made under Section 161
CrPC. He also stated that when the inquest
report was forwarded to him, the same was
blank on which his signatures were taken.
Thereafter signatures of the witnesses to
the inquest report, Pooran, Bhoori, Banke
Bihari and Siyaram was also taken that too
on blank papers.

16. In the cross-examination of the
PW-1 by the defence on 26.11.2014, he has
stated that Rajendra Singh son of Udai
Singh, Scribe of the written report resides
in Barsane, which is 50-55 kilometers from
the police station and the distance of police
station from the place of incident is 10
kilometers. He further stated that PW-1
along with his younger brother Than Singh,
Banke Bihari had gone to Police Station on
a motorcycle and when the police came to
the place of incident, then the dead body
was taken to the Police Station. He further
deposed that Siyaram had gone to the
police station twice, firstly at the time of
the loding of the First Information Report
and secondly, for signing the inquest report
in the police station. PW-1 while answering
a question posed to him deposed that after
post-mortem, the Investigating Officer
asked the alleged witnesses to the inquest
to sign the inquest report. He further stated
that place of the incident where the accused
had hidden themselves, 5-6 feet of mustard
crop was standing. PW-1 also stated that
another motive for enmity is that Kishan
Dei mother of PW-1 had entered into an
agreement on 07.12.2010 with the accused
Hakim S/o Niranjan, however, the sale
deed could not be executed and on account
of non-payment of interest, seeds of enmity
stood sown. PW-1 in his cross-examination
by the defence on 27.11.2015 deposed that
the place of incident is about 100 meters
10 All. Hakim Vs. State of U.P.
809
from the house wherein they reside and at
the time when the incident took place
accused Kishani was holding Farsa and
Ravi
knife.
Further
in
his
crossexamination, he has come up with the stand
that when he had gone for answering the
nature's call, no villager was found and
they were about 20-25 steps away from the
deceased when the incident took place.

17. PW-2:- Vikram son of Suresh
got himself examined as PW-2. He in his
examination-in-chief on 03.09.2016 had
deposed that the accused A1-A6 had
murdered his father and he also with PW-1
and his grandfather Lauki were behind the
deceased, who had gone to answer the
nature's call. In his cross-examination by
the defence on 23.09.2016, he deposed that
at the place of incident, there existed 3 and
1/2 feet mustard crop and his father had
gone to answer nature's call 1 to 2 minutes
earlier and he was 20-25 steps behind the
deceased. He in his cross-examination
further deposed that the Investigating
Officer had sent the cadevers to the postmortem house, directly from the place of
incident and thereafter PW-2 along with
others had gone to the police station and
thereafter the FIR was lodged. Further in
his cross-examination by the defence, PW2 deposed that his maternal uncle Rajendra
Singh lives about 50-60 kilometers away
and police arrived after a period of 1 to 1
and half hours at the place of incident and
they waited for the said period. He also
deposed that certain blank papers were
provided to him and he was required to
sign them, which he signed.

18. PW-3:- Bare Lal is the author
of the inquest. He in his examination-inchief has stated that he had prepared the
inquest report on 06.01.2013 at the place of
incident. Information was received about
the commission of crime at 09:40 A.M. and
the proceeding for making the inquest
report started at 10:45 A.M. and it
concluded at 11:40 A.M. In his crossexamination, he deposed that name of the
accused does not find mention in the
inquest report. He in his cross-examination
dated 06.09.2017 submitted that he had not
drawn the samples of blood stained soil and
he does not remember that at the place of
incident or near the dead body any
cartridge or bullets were found and he also
does not remember that he had taken
photos of the footsteps of the accused.

19. PW-4:- Dr. K.K. Gupta had
conducted the post mortem. According to
him, as many as six injuries were sustained
by the deceased about 8 hours earlier and
the cause of death is gunshot injuries as
well as injuries by hard and blunt object.
The autopsy surgeon found following antimortem injuries to be the cause of death:

"1. Firearm entry wound
2.5 cm x 1.5 cm on the chest in the
front portion. Contusion 2 cm x 1
cm in the right armpit in which the
bullet was found stuck inside.
2. Firearm entry wound 1
cm x 0.5 cm deep on the left side of
the chest.
3. Incised wound 1 cm x 2
cm deep to bone and incised wound
1 cm x 1 cm deep to bone in the
back of the skull.
4. Incised wound 1 cm x 1
cm deep to bone on left tample.
5. Incised wound 6 cm x 2 cm
deep to bone on the top of the skull.
6. Lacerated wound 1 cm x
0.5 cm on the right ring finger."

20. PW-5:- Surendra Singh,
Head Moharrir in his cross-examination
810 INDIAN LAW REPORTS ALLAHABAD SERIES
stated that he had recorded the contents of
the written report in the G.D. and has
proved the Chik report. He is a formal
witness.

21. PW-6:- Ram Kishan Yadav,
the first Investigating Officer, in his
examination-in-chief on 06.07.2018 has
deposed that on the pointing out of the PW1 the first informant, he prepared the siteplan. He in his cross-examination by the
defence submitted that it is true that for
lodging the FIR no person by the name of
Vikram or the Scribe, Rajendra had come
to the police station, as their name does not
find place in the G.D. However, Bacchu
(PW-1) had come to lodge the FIR. He in
his cross-examination further deposed that
while recording of statement under Section
161 CrPC, the PW-1 and PW-2 did not
make any disclosure that they also
confronted gunshot fires from the accused
at the time of the incident. He further
deposed that during the investigation he
had not perused the inquest report. He
further deposed that while preparing the
site-plan, he had not marked the places
where on the pointing of the PW-1, the
accused are stated to have been stationed
while committing crime. He also deposed
that he has not recorded the statement of
any independent witnesses, who had
witnessed the said incident.

22. PW-7:- Ashok Kumar, the
second
Investigating
Officer,
in
his
examination-in-chief has stated that he had
taken the statement of PW-2 Vikram on
19.03.2013, prior to it he was not available.
He further deposed that he has not taken
any statement of any other person, as
nobody had witnessed the said incident.

TESTIMONY
OF
DEFENCE
WITNESS
23. DW-1:- Bhagwan Singh son
of Lacchi Singh appeared as DW-1.
According to him, on 06.01.2013 at about
6:00 A.M. to 07:00 A.M. in the morning, he
along with Ajju after hearing noises of
firing came out of the house. He further
stated that Ajay @ Ajju, A-2 has been
falsely implicated. He in his crossexamination stated that it is wrong to say
that the accused had committed the crime.

ANALYSIS

24. We have given a thoughtful
consideration to the arguments of the rival
parties and have perused the record
carefully including the trial court records.

25. The First Information Report
alleges that the accused- A1 to A6 resorted
to gunshot firing and extended injuries to
the deceased by Knife and Farsa resulting
in the death of the deceased. The PW1,
Bachchu Singh and PW2, Vikram claim
themselves to be the eyewitness of the said
incident. Though it is alleged that along
with them, Lauki, who happened to be the
father of the deceased and PW1 and
grandfather of PW 2 was also present and
he too witnessed the said incident but he
did not enter into the witness box on behalf
of the prosecution. The incident is stated to
have occurred at about 8:30 AM in the
morning on 06.01.2023 when the deceased
had gone to answer nature's call and when
he reached the agriculture field of Girraj
son of Lakshman Singh then the accused
A1 to A6 who were hiding behind the
mustard crop, came out of the bushes and
resorted to gunshot fires and also inflicted
injuries by Farsa and Knife. As per the
deposition of the PW1 and PW2, they
identified the accused- A1 to A6 as the
distance between the accused and PW1PW2 was just 20-30. These witnesses had
10 All. Hakim Vs. State of U.P.
811
also gone to answer nature's call after a gap
of 1-2 minutes.

26. The first and foremost question
which arises for determination is as to
whether the first information report is antitimed or not. In order to address the said
issue, it would be apposite to have a bird's
eye view of testimony of PW1 and PW2
who are the star witnesses of prosecution
and have witnessed the incident. PW1 in
his cross-examination dated 31.10.2014 has
deposed that he had gone to the police
station whereafter the investigating officer
along with police force came to the place of
the incident where the dead body was lying
in the field. As per his deposition, the
police waited for half an hour at the place
of the incident and took away the body of
the deceased to the Police Station, Refinery
where the PW1 waited for an hour and the
first information report was lodged and
thereafter inquest was conducted and his
signatures were taken on the blank papers
and thereafter the dead body was sent for
the postmortem. PW2- Vikram in his crossexamination by the defence on 23.09.2016
has however deposed that the dead body of
the deceased was sent directly from the
place of the incident by the police for
postmortem and thereafter when the PW2
along with PW1 came to the police station
then the first information report was
lodged. The depositions of PW1 and PW2
clearly go to show that the first information
report was lodged after the dead body was
taken from the place of incident and
brought to the Police Station. The aforesaid
circumstances leads to the inference that
only after noticing the injuries and
postmortem that the first information report
came to be lodged on the written report
made by the PW1, scribed by Rajendra
who happens to be the brother-in-law of the
deceased. The F.I.R. however reveals that
the written report was made first, by then
other processes had not commenced i.e.
inquest and postmortem had not taken
place. The manner and stage at which F.I.R.
came to be lodged is clearly contradicted
by the prosecution witnesses of fact. The
possibility of F.I.R. having been lodged
after deliberation and consultation cannot
be ruled out. The argument that the F.I.R. is
anti-timed cannot be brushed aside.

27. The Hon'ble Apex Court in the
case of Meharaj Singh v. State of U.P.
1994 (5) SCC 188 in para 12 has observed
as under:

"FIR in a criminal case and
particularly in a murder case is a
vital and valuable piece of evidence
for the purpose of appreciating the
evidence led at h the trial. The object
of insisting upon prompt lodging of
the FIR is to obtain the earliest
information
regarding
the
circumstance in which the crime was
committed, including the names of
the actual culprits and the parts
played by them, the weapons, if any,
used, as also the names of the
eyewitnesses if any. Delay in lodging
the
FIR
often
results
in
embellishment, which is aa creature
of an afterthought. On account of
delay, the FIR not only gets bereft of
the advantage of spontaneity, danger
also creeps in of the introduction of
coloured version or exaggerated
story. With a view to determine
whether the FIR was lodged at the
time it is alleged to have been
recorded the courts generally look
for certain external checks."

28. Recently in Mohd. Muslim v.
State of Uttar Pradesh, 2023(7) SCC 350,
812 INDIAN LAW REPORTS ALLAHABAD SERIES
the issue of anti-timing of the FIR was also
discussed and it was held as under:

"In Meharaj Singh v. State
of U.P., it has been opined that on
account of the infirmities such an
ante-timing of the FIR loses its
evidentiary
value.
Thus,
this
entitles the accused to be given the
benefit of doubt."

29. Apparently, we also find that
there is no reference to the first information
report in the Postmortem report. This fact
also supports the inference that F.I.R. came
into existence, later. Reliance has also been
placed upon decision in the case of Balvir
Singh v. State of Madhya Pradesh, 2019
(15) SCC 599 that mere non-mention of the
credentials of the FIR in the inquest report
will not make the prosecution theory
doubtful. It has been observed as under:

"FIR is a printed format
which
contains
Column
11-
"Inquest Report". Column 11 of the
FIR, of course, contains Inquest
No. 10/98. Merely because the FIR
contains inquest number, it cannot
be said that the FIR was registered
subsequent to the inquest. In State
of U.P. v. Ram Kumar, the Supreme
Court held that: (SCC p. 619, para
13.4)
"13.4. ... The mere
fact that on the inquest
report FIR number was
written by different ink
cannot be the basis for
observing that the FIR was
ante-timed or antedated."
On
being
questioned,
Investigating Officer S.D. Khan
(PW 14) has stated that he has
registered Inquest Report No. 10/98
with regard to the death of
deceased Mohan under Section 174
CrPC. As seen from the evidence of
PW 2, after the occurrence, dead
body of Mohan was lying twenty
yards away from the road and he
went to the police station to lodge
the complaint via Lallu fourway
and Sarvodya fourway. The inquest
being done at the spot and FIR
being registered at the police
station under Sections 302, 506-B,
341, 294, 323, 34 IPC and Section
3(2)(v) of the Scheduled Castes and
Scheduled Tribes (Prevention of
Atrocities) Act, mention of inquest
number in the FIR does not affect
the prosecution case nor does it
affect
the
credibility
of
the
eyewitnesses."

30. There is no quarrel to the
proposition of law as laid down in the
above-noted decision but what is to be seen
in
the
present
case
is
the
overall
surrounding circumstances which makes
the prosecution theory doubtful regarding
the timing of lodging F.I.R. for variety of
reasons. Firstly, the depositions of PW1
and PW2, as noticed above shows that the
first information report had been lodged
after the dead body was picked up from the
place of the incident and brought to the
police station and after noticing the injuries
during inquest and the postmortem the first
information report came to be lodged,
whereas the prosecution case is otherwise,
secondly, absence of any reference of the
FIR in the postmortem, thirdly, the fact that
the inquest was prepared in the police
station and, fourthly, the fact that the PW1
in his cross-examination dated 31.10.2014
had deposed that in the police station blank
papers were offered to him for signing the
inquest report and further at that time when
10 All. Hakim Vs. State of U.P.
813
the PW1 was required to sign the inquest
report, it did not bare the signatures of the
eye-witnesses
to
the
inquest
report.
Likewise, PW2 in his cross-examination
dated 23.09.2016 had also deposed that he
was required by the police to sign on
certain blank papers in the police station.
The overall circumstances only leads to a
conclusion that the story set up by the
prosecution implicating the accused is not
only doubtful but also sans credibiity.

31. Apart from the same, another
question which arises for consideration is
that by whom and by which mode the
police was informed about the occurrence
of the incident. The first information report
is stated to have been lodged in the police
station on 06.01.2023 at 9:40 AM by PW1,
Bachchu Singh on a dictation being made
to Rajendra who happened to be the
brother-in-law of the deceased. PW1,
Bachchu Singh in his cross-examination
dated 31.10.2014 had deposed that at the
time of the incident on the fateful day only
the deceased was having a mobile phone,
however, there was no balance available in
the mobile phone. The scribe of the first
information report, Rajendra Singh was not
present at the place of the incident,
however, he was at that point of time in the
house of the PW1 which is 100 meters
from the distance of the place of the
incident. He specifically deposed that he
had not called the police through the
mobile phone of Rajendra. PW2 in his
cross-examination
dated
13.04.2017
deposed that he is not aware as to who
informed the police and he was also present
at the place of incident and he had gone to
the police station only when the dead body
had been sent for postmortem. Besides, the
same, the statement of PW1 or PW2 does
not spell out that the police was informed
through the mobile phone of any third
person. Thus, in view of the depositions of
the prosecution witnesses, it becomes a
mystery as to how and by which mode, the
police officials were informed about the
incident.

32. It is, thus, not emerging from
the deposition of the prosecution witnesses
as to how the scriber to the FIR, Rajendra
Singh was informed to be present in the
police station for taking dictation for
lodging of the first information report.
Interestingly, the PW6, Ram Kishan Yadav
who was the (first) investigating officer
who had conducted investigation from
06.01.2013 to 08.01.2013 in his crossexamination
dated
06.07.2018,
after
perusing the GD report had deposed that
neither name of PW2 nor Rajendra was
mentioned in the GD which may suggest
that they had come for the purposes of
lodging of the first information report. Not
only this, the prosecution for the reasons
best known to them, did not produce
Rajendra to enter into the witness box to
support their prosecution theory. Rajendra
could
have
been
confronted
with
inconvenient
questions,
which
the
prosecution apparently wanted to avoid.

33. Notably, PW1 in his crossexamination dated 26.11.2014 in response
to a question being posed to him by the
defence deposed that after postmortem, the
investigating officer asked the alleged
witness to the inquest to sign the inquest
report. The overall circumstances
as
apparent from the testimony of the PW1
and PW2 creates a serious doubt upon the
prosecution theory and the manner in
which the things have been tailored so as to
create evidence against the accused.

34. Nonetheless, what is relevant is
also the conduct of the PW1 and PW2 in
814 INDIAN LAW REPORTS ALLAHABAD SERIES
depicting their presence, which is hard to
believe. It is the consistent stand of the
PW1 and PW2 that they had witnessed the
said incident. The distance between the
deceased and the PW1 and PW2 is hardly
20-30 steps. The PW1 and PW2 are also
consistant in their stand that they had
identified the assailants. Though according
to them, gunshots were fired not only on
the deceased but they too were confronted
with gunshot firings. The said fact came to
be deposed by the PW1 in his crossexamination dated 31.10.2014 alleging that
when they tried to save the deceased then
firing was made upon them. This fact was
not either reported in the first information
report nor in the statements under Section
161 CrPC. The only excuse taken for not
reporting the said fact either in the FIR or
in the statement under Section 161 of the
CrPC was that they did not remember the
said incident. In the opinion of the Court, it
is highly inconceivable and improbable that
such a vital fact would not be disclosed to
the police, particularly, when the PW1 and
PW2 could identify the assailants and they
were few steps away from the deceased and
on account of firing on them, they could
not help or save the deceased, who
happened to be a blood relative. The said
conduct of the prosecution witnesses, PW1
and PW2 itself creates a doubt upon the
prosecution theory with regard to their
presence at the place of incident and the
manner of incident reported by them.

35. In Mohammad Mulsim
(supra), the Hon'ble Apex Court while
examininig the conduct and behaviour of
the son and the nephew of the deceased
victim, who were eye-witnesses to the
incident, observed as under:-

"17. The deposition of
Salim Ahmad (PW-1) reveals that
he was at a distance of 20 steps
from his father but even then he
could not rush to save his father
from the assault and could not even
caught- hold of any of the accused
appellants
who
conveniently
escaped through the jungle. ..."

36. To be precise, it is nothing but
a classic case of improvement. The Hon'ble
Apex Court in Yudhishtir v. The State of
Madhya Pradesh, 1971 (3) SCC 436 in
para 11 observed as under:

"The evidence given by
P.Ws. 1 and 6 before the Court was
sub-stantially in variance with the
version given by them in the
statements given to the police at the
earliest occasion. Before the Court
they have considerably improved
their statements. Omissions in the
statements to the police were of a of
a very serious nature making their
evidence before the Court false and
unacceptable."

37. Another issue which is of
primary importance is that PW-1 in his
cross-examination dated 31.10.2014 stated
that as soon as the assailants/ accused left
the place of incident, they ran towards the
deceased who was lying in the agriculture
field. PW-2 Vikram and his father Lauki
caught hold of the deceased on account
whereof their hands and clothes were
stained
with
blood.
However,
the
investigating officer did not draw the
samples of the blood-stained clothes and
the clothes were thereafter washed. Nondrawing of the samples of blood-stained
clothes and allowing them to be washed
itself indicates that the manner in which the
investigation took place is not only
suffering from infirmity but also actuated
10 All. Hakim Vs. State of U.P.
815
by flaws.