# Janaki Prasad & Ors v. State Of U.P

- **Citation:** (2016) 5 ILRA 476
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2016-05-13
- **Bench:** Arvind Kumar Tripathi, Arvind Kumar Mishra-I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/janaki-prasad-ors-v-state-of-u-p-43857
- **Pages:** 14

## Headnote

(SC/ST Act), Kannauj under Sections 302/34 IPC and Section 3(2)(V) SC/ST Act for murder of Mahadev on
22.01.2000; prosecution case rested on two eyewitnesses (PW-1 Gendawati, mother of deceased, and PW-2
Rajbeti, daughter of deceased) whose versions were found materially contradictory and mutually destructive
- PW-1 stated incident was witnessed by Rajbeti and Ashok as well, whereas PW-2 claimed she alone
witnessed it and further disclosed in cross-examination that she reached the spot only the next morning and
that FIR was lodged only after preparation of inquest report; prosecution could not be depended upon solely
on the interested testimony of such unreliable witnesses. (Paras 1-3, 15-17)
FIR Ante-timed - Investigation Defective - No blood stains found at alleged place of occurrence despite
multiple pellet wounds on chest of deceased; alleged motive (prior FIR by deceased against Janaki Prasad)
not proved on record; post-mortem report not duly proved as Pharmacist PW-5 was unfamiliar with
handwriting/signature of the examining doctor Dr. B.G. Tiwari; unexplained delay of about 8 hours between
police arrival at spot and preparation of inquest report; changes in GD entries made without initials; copy of
FIR dispatched to court only on 27.01.2000 despite registration on 22.01.2000 - all circumstances
cumulatively established ante-timing of FIR and false implication of appellants on account of enmity; findings
of Trial Court held perverse. (Paras 18-35)

Appeal Allowed - Appellants Acquitted

Case Law Discussed:

## Text

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476 INDIAN LAW REPORTS ALLAHABAD SERIES
17. In view of the above discussion, this appeal is dismissed with cost of Rs.10,000/- which
the plaintiff-appellant shall pay to the defendant-respondent within 30 days from today.
----------
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.05.2016

BEFORE

THE HON'BLE ARVIND KUMAR TRIPATHI, J.
THE HON'BLE ARVIND KUMAR MISHRA-I, J.

Criminal Appeal No.- 245 Of 2006

Janaki Prasad & Ors. ...Appellants
Versus
State Of U.P. ...Respondent

Counsel for the Appellants:
Brij Raj, K.S. Misra, S.V. Singh, Sushil Dubey, U.C. Mishra

Counsel for the Respondent:
G.A.
.................................
Conviction Set Aside - Eyewitness Testimony Unreliable - Appellants convicted by Special Judge
(SC/ST Act), Kannauj under Sections 302/34 IPC and Section 3(2)(V) SC/ST Act for murder of Mahadev on
22.01.2000; prosecution case rested on two eyewitnesses (PW-1 Gendawati, mother of deceased, and PW-2
Rajbeti, daughter of deceased) whose versions were found materially contradictory and mutually destructive
- PW-1 stated incident was witnessed by Rajbeti and Ashok as well, whereas PW-2 claimed she alone
witnessed it and further disclosed in cross-examination that she reached the spot only the next morning and
that FIR was lodged only after preparation of inquest report; prosecution could not be depended upon solely
on the interested testimony of such unreliable witnesses. (Paras 1-3, 15-17)
FIR Ante-timed - Investigation Defective - No blood stains found at alleged place of occurrence despite
multiple pellet wounds on chest of deceased; alleged motive (prior FIR by deceased against Janaki Prasad)
not proved on record; post-mortem report not duly proved as Pharmacist PW-5 was unfamiliar with
handwriting/signature of the examining doctor Dr. B.G. Tiwari; unexplained delay of about 8 hours between
police arrival at spot and preparation of inquest report; changes in GD entries made without initials; copy of
FIR dispatched to court only on 27.01.2000 despite registration on 22.01.2000 - all circumstances
cumulatively established ante-timing of FIR and false implication of appellants on account of enmity; findings
of Trial Court held perverse. (Paras 18-35)

Appeal Allowed - Appellants Acquitted

Case Law Discussed:
1. Sharad Birdhichand Sarda v. State of Maharashtra, AIR 1984 SC 1622
2. State of U.P. v. Ram Sagar Yadav, AIR 1985 SC 416
3. Rameshwar v. State of Rajasthan, AIR 1952 SC 54

(Delivered by Hon'ble Arvind Kumar Mishra-I, J.)
5 All. Janaki Prasad & Ors. Vs State Of U.P.

477
1. We have heard at length Sri S.V. Singh, learned counsel for the appellant Janaki Prasad,
Sri Dilip Kumar, Sri Rajarshi Gupta, learned counsels for the appellants Shivnath and Lallu Yadav,
Sri Vinod Kumar Singh, learned counsel for appellant Harnath, and Km. Meena and Sri A.N.
Mulla, learned AGAs appearing for the State and perused the record.

2.The instant criminal appeal has been preferred against the judgment and order of
conviction dated 16.01.2006 passed by the Special Judge (SC/ST Act), Kannauj in Special Session
Trial No. 345 of 2000 (State Vs. Janaki Prasad and others), under Section 302 IPC and under
Section 3(2) (V) SC/ST Act arising out of Case Crime No. 13 of 2000, Police Station Thathiya,
District Kannauj. By the impugned order of the trial court, appellant Janaki Prasad has been
convicted under Section 302 IPC and sentenced to life imprisonment with fine of Rs. 10,000/-, in
case of default, he will have to suffer additional imprisonment (simple imprisonment) for six
months. Appellant Harnath, Shivnath and Lallu Yadav have been convicted and sentenced to life
imprisonment under Section 302 read with Section 34 IPC with a fine of Rs.5,000/- each and in
case of default the concerned convict will have to suffer additional four months' simple
imprisonment. Further, they have been convicted and sentenced to life imprisonment with a fine of
Rs.5,000/- each under Section 3(2) (V) of ST/SC Act and in case of default the concerned convict
will have to suffer additional simple imprisonment for four months.

3. Gravamen of the charge has its genesis in the first information report (Exhibit Ka-1)
which was lodged at Police Station Thathiya, District Kannauj on 22.01.2000 at 10.05 p.m. by Smt.
Gendawati wife of late Ram Sahai Jatav resident of Harauli, P.S. Thathiya, District Kannauj against
the aforesaid appellants under Section 302 IPC and 3(2) (V) SC/ST Act with averments that the
complainant was sleeping in her house on 22.01.2000 along with her son Mahadev and grand
daughter Rajbeti after taking night meal. It was around 8.15 p.m. when they heard some noise and
came out of the house where they saw the aforesaid appellants, in front of them, possessing country
made pistol. The appellant Janaki Prasad said to complainant's son 'you have lodged report against
me, therefore, we will not spare you'. At this, complainant's son ran away from his house, he was
chased by the appellants. As soon as the complainant's son (Mahadev) reached in front of house of
Jairam, appellant Janaki Prasad fired on him with his country made pistol which fire hit him on his
chest, due to which his son fell down and expired.

4. The other miscreants fired in the air. In the meanwhile, the complainant and her grand
daughter raised alarm whereupon Naresh son of Baldev, Sarvesh son of Kali Charan and various
other villagers arrived on the spot. They challenged the accused whereupon the accused persons
made their escape good towards fields. While the appellants were in the process of fleeing away,
one photograph of accused Janaki Prasad was found lying on the spot. The incident terrorized the
inhabitants of the area. They closed their doors and closed themselves inside their houses. It was
requested that report be lodged and proper action be taken. This written report is exhibit Ka-1.
Contents of the aforesaid written report were taken down in the check FIR registered at Crime no.
13 of 2000 under Section 302 IPC and Section 3(2) (V) SC/ST Act at P.S. Thathiya, district
Kannauj which check FIR is Exhibit Ka-9 on record. Record reflects that constable Shri Chand
478 INDIAN LAW REPORTS ALLAHABAD SERIES
Verma (PW-6) entered relevant note at serial no.44 in the concerned General Diary at 22.05 hours
on 22.01.2000 and registered the case against the appellants, which GD is Exhibit Ka-10 on record.

5. Thereafter, investigation of the case followed and inquest report of deceased Mahadev
was prepared by the Investigating Officer, Ramesh Chand Tiwari PW-3 on 23.01.2000. The
preparation of inquest report commenced at 7:15 am and the same was completed at 8.30 am. In the
opinion of Panchan/ witnesses of inquest, it was thought proper to send the body for post mortem
examination for ascertaining real cause of death. This inquest report is Exhibit Ka-2 on record.
Thereafter, Sri Ramesh Chand Tiwari, Investigation Officer also prepared relevant papers for
sending the dead body for post mortem examination. These relevant papers are police form-13,
challan of dead body Exhibit Ka-3, Photonash Exhibit Ka-4 and Letter to C.M.O. Fatehgarh for
facilitating post mortem examination Exhibit Ka-5. Thereafter, post mortem examination on the
dead body of the deceased was conducted by Dr. B.G. Tiwari on 24.01.2000 at 2.15 pm at mortuary
/ district Hospital, Fatehgarh wherein the age of the deceased was stated to be 40 years and three
ante-mortem injuries were noted which are being referred as hereinunder:

i. Multiple pellet wounds of entry (fire arm) in an area 30 cm x 24 cm front of
chest both sides measuring 0.5 x 0.3 cm to 0.3 x 0.2 cm muscle and cavity deep, margins inverted
and lacerated ecchymosed. On dissection, 3rd, 4th and 5th ribs fractured from right side along
sternum fractured, both pleura lung pericardium heart lacerated. Cavity full of blood.

ii. Abraded contusion 4.5 cm x 3 cm over right cheek.

iii. Contusion 6 x 3 cm on posterior medial aspect right arm upper 1/3rd.

6. In the opinion of doctor, the cause of death was due to shock and haemorrhage and
duration of death was stated to be 1 & Â1⁄2 days (old). This post mortem examination report is
Exhibit Ka-8 on record.

7. Thereafter, another Investigating Officer, Surendra Pratap Singh (PW-4) is stated to have
taken over the investigation the very same day i.e. on 22.01.2000. He recorded statements of
various witnesses, prepared site plan and proved the same as Exhibit Ka-6 and he has also filed
charge sheet against the appellant as Exhibit Ka-7.

8. Thereafter case of the appellants was committed to the court of Session from where it
was made over to the concerned Trial Court, where it was numbered as Special Session Trial No.
345 of 2000 (State Vs. Janaki Prasad and others).

9. The case was opened by the prosecution by stating the charge brought against the
accused and also the evidence by which the prosecution proposed to prove the guilt. Appellants
were also heard on the point of charge and prima-facie ground was found existing for framing
charge under Sections 302, 302/34 IPC and Section 3(2)(V) SC/ST Act against the appellants. The
5 All. Janaki Prasad & Ors. Vs State Of U.P.

479
charges were read over and explained to the accused appellants, who denied the charges and opted
for trial.

10. In turn, the prosecution was asked to adduce its testimony in order to prove charges,
whereupon the prosecution got examined as many as six witnesses. A brief reference of the same is
being sketched herein below:

11. Smt. Vindawati (Gendawati) is PW-1. [Noteworthy to mention that actual name of this
witness is Gendawati wife of late Ram Sahai Jatav, whereas, she has clarified the position before
the trial court at later stage during the course of her cross-examination that her name was wrongly
spelled as Smt. Vindawati earlier when she for the first time deposed before the trial court. She has
claimed that her real name is Gendawati. Therefore, her name shall be taken to be Gendawati PW-1
wife of Ram Sahai Jatav, as and when the context so requires]. She has proved the fact of lodging
of the FIR and has claimed to be an eye witness of the incident. Rajbeti wife of Amar Singh,
daughter of Mahadev, is PW-2. She is stated to be an eye witness of the incident and she appears to
have supported initially the prosecution version. However, in her cross examination, she has
claimed that she did not witness any incident but she reached on the spot only on the next morning
and saw her father (Mahadev) lying dead. It is noteworthy that prosecution has not claimed this
witness to be hostile (witness).

12. Ramesh Chand Tiwari is PW-3. He has prepared the inquest report and the relevant
papers for sending the dead body of Mahadev for post mortem examination. Surendra Pratap Singh
is PW-4. He is the second / subsequent Investigating Officer who also took over investigation on
22.01.2000 and completed rest of the investigation by recording statements of witnesses, preparing
site plan and filing the charge sheet. Virendra Kumar Verma, Pharmacist is PW-5. He has brought
with him the register kept for purpose of entering post mortem examination reports wherein, he has
verified signature of Dr. B.G. Tiwari who in fact conducted post mortem examination on
24.01.2000 on the dead body of the deceased Mahadev. It is obvious from his testimony that Dr.
B.G. Tiwari has since expired, therefore, he appeared before the trial court to prove his signature on
the post mortem report. Constable Shri Chand Verma is PW-6. He has proved the relevant entries
made in the check FIR and the concerned GD and has proved the same as Exhibit Ka-9 and Ka-10,
respectively.

13. Thereafter, evidence for the prosecution was closed and the statement of accused
persons was recorded under Section 313 Cr.P.C. wherein they have claimed that they have been
falsely implicated on account of enmity. The defence did not lead any evidence, whatsoever -
ocular or documentary, therefore, the matter was posted for advancing arguments by the trial court.
The trial court after hearing both the sides and after appraisal of evidence and after considering
merit of the case passed aforesaid order of conviction dated 16.01.2000 and thereby imposed
aforesaid sentence against the appellants which gave rise to this appeal.

14. It has been vehemently urged by Sri S.V. Singh learned counsel for appellant Janaki
Prasad that the entire incident took place in the darkness of night and the very motive for
480 INDIAN LAW REPORTS ALLAHABAD SERIES
committing the offence is weak and unfounded one. The entire prosecution story commenced with
alleged exhortation of Janaki Prasad that Mahadev (deceased) had lodged report against Janaki
Prasad, whereas, no such report regarding any criminal case has been brought on record and if there
was any such report then the same ought to have been brought on record and proved by the
prosecution. The very description and manner of incident as narrated by the so called prosecution
witnesses does not support and fix in the circumstances instead it creates doubt in the prosecution
version. It is stated that the three accomplices of Janaki Prasad fired in the air but no such cartridge
was either collected or produced before the trial court by the Investigating Officer. Only pellets
injuries have been found on the body of the deceased. Rajbeti PW-2 propounds theory of two shots
being fired on the spot, whereas, Gendawati PW-1 makes different version regarding the shot fired
on the deceased. She is not specific as to how the fire was shot. More so, testimony of Rajbeti PW2 proves that the FIR is ante-timed, because she states that the same was lodged after inquest report
was prepared. The place of occurrence is doubtful. Even, post mortem report has not been duly
proved.

15. On behalf of appellants, Shivnath and Lallu Yadav, it has been vehemently contended
by Sri Dilip Kumar, learned counsel that the entire prosecution story is woefully silent about the
actual occurrence and the very manner of the incident appearing in testimony of eye witnesses, on
the face of it, is not natural. Appreciation of circumstances abundantly prove that the FIR is antetimed, nobody has seen the incidence and there is no source of light and the prosecution witnesses
of fact are interested witnesses. There is no corroborative evidence and there is no support to the
claim of the prosecution that the deceased ever lodged any FIR against Janki Prasad. Thus the very
foundation and cause of assault - the motivating instinct has not been proved. The site plan is
explanatory of fact that the incident cannot be witnessed from the house of Mahadeo. Place 'G'
marked in the site plan is not visible from the house of Mahadev. Investigating Officer has
concealed relevant and material facts. Record confirms that the Investigating Officer has not
detailed the entire investigation so as to give natural colour to the incident but he appears to have
been acting in most perfunctory manner hiding truth qua the circumstances and the evidence of the
case.

16. The version of two eye-witnesses PW-1 and PW-2 respectively, is diametrically
opposed and contradictory to each other and in case, either of the two testimonies is taken to be
correct one then, testimony of the other witness is negatived and contradicted in material particulars
and becomes wholly unreliable. Rajbeti - PW-2 - has gone to the extent that she did not witness any
incident. Consequently, the court is concerned with reliable truthful version only and the court
cannot hang on two parallel and contradictory versions of the incident as given by the witnesses of
fact. If entirety of the facts, circumstances and evidence is taken, as a whole, then the narration of
the prosecution version does not look natural, but renders entire case most dubious and unreliable.
The FIR was lodged only after inquest report was prepared.

17. The scribe of first information Ashok has been deliberately dragged-in, in the picture.
Ashok was scribe of the report but he was not produced as an eyewitness. Learned counsel summed
up that Shivnath and Lallu Yadav have no motive to commit the crime because they are by caste
5 All. Janaki Prasad & Ors. Vs State Of U.P.

481
'thakur' and they do not belong to the caste of Janaki Prasad-the another co-accused-and the
deceased Mahadev. The learned counsel has gone to the extent that there may be some interaction
and interest between accused Janaki Prasad and the deceased because they being members of
scheduled caste community, but appellant Shivnath, Lallu Yadav and Harnath may not be assigned
any such interest or motive for committing such crime.

18. Sri Vinod Kumar Singh, learned counsel appearing for the appellant Harnath virtually
adopted above arguments extended by both the learned counsels for other appellants and added that
the appellant Harnath has nothing to do with the present crime and he claims that his another
brother namely Harnam was in fact named in the FIR but he has been wrongly arrested by the
police and his name is Harnath, therefore, the prosecution has no case against appellant (Harnath).
He also assailed the judgment of the trial court on the ground that the learned trial Judge failed to
appreciate the evidence and circumstances of the case properly, while recording conviction in this
case.

19. Kumari Meena and Sri A.N. Mulla, learned AGAs have supported the impugned
judgment and order of conviction dated 16.1.2006 and have submitted that two prosecution
witnesses have innocuously supported the prosecution version and they have stated categorically to
have seen the incident. It has been proved by Shri Chand Verma PW-6 that the FIR was lodged at
the time when it was presented by Smt. Gendawati and the relevant entries of the same were made
in the Check FIR and the relevant G.D. at report No.44 on 22.1.2006 at 22.05 hours and he has
proved the same as Exhibit Ka-9 and Ka-10, respectively. Therefore, claim of defence that the FIR
is ante-timed stands dispelled.

20. Whatever contradictions appeared in the testimony of eyewitnesses of fact regarding
happening of the incident are minor contradictions and the same do not hit at the root of the
prosecution case. Motive for committing the crime has been proved and in the face of eye account
testimony, motive does not assume much importance. The place of occurrence has been very much
proved by the Investigating Officer and the prosecution witnesses and the site plan Exhibit Ka-6
also substantiates the place of occurrence. There was no motive for false implication. The finding
of the trial Judge is based on proper appreciation of facts and circumstances of the case and the
charge has been consistently proved beyond reasonable doubt against the appellants.

21. We have considered the rival submissions.

22. After considering the submission so made on behalf of both the sides and after going
through the FIR and the charge framed against the appellants, the moot point that arises for
consideration of this appeal relates to fact as to whether the prosecution has been able to establish
its case successfully against the appellants and the eyewitnesses of fact particularly Gendawati and
Rajbeti PW-1 and PW-2, respectively have given consistent version of the incident and have
proved the same beyond reasonable doubt and conviction of the appellant can be upheld on their
testimony vis-a-vis the attendant circumstances of the case?
482 INDIAN LAW REPORTS ALLAHABAD SERIES
23. Before we enter into appraisal of other facts, it would be proper and convenient to have
a dip into testimony of the two eyewitnesses produced on behalf of the prosecution in support of
the incident. The scrutiny of testimony of Gendawati PW-1 reflects that she has narrated the very
inception and commencement of the incident around 8.00 pm when she was lying on her cot along
with her son and grand daughter Rambeti inside her house while Janaki Prasad, Harnam, Lallu
Yadav and Shivnath possessing country made pistol in their hands knocked at the door then
Mahadev came out of the house, this witness also followed him, she saw their face in the
illuminated light of lantern. The appellant Janaki Prasad said to Mahadev (deceased) that Mahadev
had lodged report against him therefore, he (Mahadev) will be killed. The moment it was stated,
Mahadev ran away from the spot. He was chased by the appellants. When he reached in front of the
house of Jairam, Janaki Prasad fired on him and the other appellants exhorted him. The incident
was witnessed by Rajbeti and Ashok apart from this witness.

24. After the incident of shooting was caused by Janaki Prasad, the three other coassailants opened fire in the air and made their escape good towards fields, out of village. Smt.
Gendawati PW-1 has testified that her son (Mahadev) did not vote for Janaki Prasad, therefore, he
was killed. Prior to this incident, the miscreants had also abused her daughter-in-law and a case was
registered regarding the same. Report of this incident was written by one Ashok on the dictation of
this witness (PW-1 Smt.Gendawati). Thereafter, she affixed thumb impression on the report after
the contents were read over to her. Thereafter, she went to the police station Thathiya and lodged
the report. Rajbeti PW-2 has virtually supported the prosecution case in her examination in chief
but she has come out with version that two shots were fired on the spot by Janaki Prasad. Strangely
enough she has also stated (in examination in chief) that the incident was witnessed by her alone
and none else.

25. Now we may scrutinize the cross examination of both the eye witnesses PW-1 and PW2. In the very examination in chief of Smt. Gendawati PW-1, it has been stated that the incident
was witnessed by Rajbeti PW-2 and Ashok apart from herself and in the examination in chief of
Rajbeti PW-2, she claims that she alone saw the incident and none else. This is material
contradiction on the point of presence of both the witnesses at the time of occurrence on the spot,
because, in case, the version of Gendawati PW-1 in respect of witnessing the incident is taken to be
correct one then the version of incident as witnessed by PW-2 becomes wholly unreliable. In case
the version of PW-2 regarding her claim that she alone saw the incident and none else is taken to be
correct one, then the version of Gendawati PW-1 that the incident was witnesses by Rajbeti, Ashok
and herself stands negated.

26. Most surprising feature of the case is that the prosecution did not get declared Rajbeti -
PW-2 hostile and did not cross examine her on this relevant and crucial aspect. Therefore, before
we analyze various circumstances of the case, we would have to keep in mind this varying
description/ claim regarding fact of witnessing the incident by the above two witnesses.

27. The very cross examination of Smt. Gendawati PW-1 reflects that she is trying to
improve her version. She claims that she went to the police station along with Ashok, the scribe of
5 All. Janaki Prasad & Ors. Vs State Of U.P.

483
the FIR and she was not accompanied by Ram Autar, Raja Ram, Mewa Ram and Amar Singh. As
per her own version, she reached at the police station around 9.00 pm and she came back from
police station to village around 10.00 pm and police personnel also accompanied her. On her return
to village, Daroga Ji had prepared the inquest report and obtained her thumb impression on the
inquest report; but the inquest report Exhibit Ka-2 neither bears such thumb impression nor does it
establish that PW-1 was ever appointed any 'Panchan' in the inquest report. Inquest report was
admittedly prepared in the morning of 23.01.2000 and not in the night of 22.01.2000.

28. It is obvious that as per the claim of prosecution, the FIR was lodged at P.S. Thathiya at
22.05 hours on 22.01.2000 but this witness (PW-1) claims to have returned to the village around
10.00 pm which fact is fair enough to lead us to conclude that either the witness is tutored one or
she is deliberately concealing the truth and in either situation, it is obvious that her testimony is
sketchy and aimed at improving the story at will and as such not reliable until corroborated from
independent testimony, circumstances and the testimony of another eye witness-i.e.-PW-2. She has
admitted that the scribe of FIR is her son in law ('Damad') but he has not been produced as witness.
If he was an eye witness of the occurrence, he could have been produced in court and he would
have corroborated PW-1 in material particulars. This witness (PW-1) has testified in her cross
examination that Ashok witnessed the incident, if name of Ashok has not been described in the FIR
then she cannot assign any plausible reason for the same. She further says that Daroga Ji recorded
her statement only on the next morning. Here under the circumstance factual testimony
forthcoming establishes that the police arrived at the spot after the lodging of the FIR but how and
why the statement of complainant, who happened to be mother of the deceased, was not recorded
on the spot by the police/ Investigating Officer when both were present at the police station at the
relevant time, but the same was adjourned to be recorded on the next morning. The reasonable
explanation to unfold such anomaly has not been given by the prosecution.

29. It has been suggested by the defence that in fact the deceased was killed by some
unknown persons in the night but the appellants have been implicated on account of enmity. This
witness has further stated that Mahadev (deceased) was never tried for any case. But in the very
cross-examination, she has accepted this fact while she states that Janaki Prasad had lodged first
information report under Section 307 IPC in the year 1997 against deceased Mahadev, who was
sent to jail in that case. This testimonial disclosure further reflects that P.W.1 is clever enough not
to give correct version even on extraneous factual aspects which do not have direct bearing on the
merit of the case.

30. Regarding actual occurrence she has stated that she also accompanied her son Mahadev
while Mahadev ran towards western side of his house. She states that she cannot tell as to in which
direction Mahadev proceeded/ran after the shot hit him, but the two natural queries engage our
attention; firstly while P.W.1 accompanied her son and she ran parallel to him, secondly; then four
persons (all accused) who also were chasing her son neither threatened this witness nor caused any
physical harm to her. This testimonial factual aspect, under circumstances of the case, does not
appear to be proper one and can not be accepted as such. She has stated in her cross-examination
that 'Daroga Ji arrived at the spot at later stage'. She stated that she cannot state as to when she
484 INDIAN LAW REPORTS ALLAHABAD SERIES
returned to village after lodging of the FIR, whereas, in the previous part of her cross-examination,
she has already stated that she returned to village after lodging of the FIR around 10:00 p.m.

31. She has further stated that Daroga ji arrived at the spot within one hour of the lodging
of the FIR. Here we may notice at ease that the incident is stated to have been witnessed in the
illumination of lantern light and Daroga ji also arrived on the spot, meaning thereby that source of
light was very much there then how and for what sanguine reasons, the inquest report was prepared
only on the next morning from 7.15 a.m. to 8.30 p.m. on 23.1.2000. The intervening time gap from
11:00 p.m. On 22.1.2000, when the police personnel might have arrived at the spot, up to 7.15 a.m.
the next day on 23.01.2000 when the preparation of inquest report commenced has not been
explained by any of the prosecution witnesses and particularly Ramesh Chand Tiwari, SubInspector P.W.3 who prepared the inquest report. We also do not come across any such
circumstance which may justify non preparation of inquest report in the night of 22.01.2000. PW-3
has not whispered about his inaction between this intervening time gap (from 11.00 pm on
22.01.2000 upto 7.15 am on 23.01.2000), lasting for about 8 hours and this intriguing silence on the
part of prosecution regarding late preparation of inquest report raises genuine question mark
regarding bonafides and creditworthiness of the prosecution witnesses and creates a situation which
smacks of consultation and deliberation before lodging of the FIR. Ramesh Chand Tiwari PW-3
has stated that he arrived on the spot and prepared the inquest report. He is such a clever witness
that he has not given the very time and date as to when he reached on the spot and as to when he
started preparing inquest report and when he completed the inquest report. He has denied
suggestion that any thumb impression of Gendawati was taken on the inquest report. This version
also goes to show hollowness of statement of Gendawati that she impressed thumb impression on
the inquest report.

32. In this factual scenario of this case, now it would be proper at this stage to have a
discussion on the testimony of Rambeti P.W.2. As discussed above, at the cost of repetition, we
may note that she has almost supported the prosecution version in her examination-in-chief except
for the fact that she claims to have witnessed the incident all alone to the exclusion of all others.
She has further stated that accused Janki Prasad belongs to scheduled caste community and the rest
three accused persons are Thakur by caste. On careful perusal of her cross-examination, we come
across testimony that she arrived at the place / spot where her father was lying dead all alone. There
was no other person present on the spot at that point of time. She has further testified that she went
to the police station, she met with Divan ji, Divan ji enquired about the incident. Whatever was
asked by Divan ji was replied by her and which was taken down by Divan Ji in black and white and
he obtained her thumb impression on it.

33. At this stage, she has denied suggestion that she is giving false testimony. Her
testimony also raises question mark on the report (FIR) written by scribe Ashok. On page 2 of her
testimony, the last paragraph is quite relevant and material. She claims to have seen wound caused
to her father, but she saw the same on the very next day (i.e. 23.01.2000) and she saw lacerated and
fire-arm wound. As per her version, Daroga Ji prepared inquest report on the very next day and the
FIR was written only after the inquest report was prepared and she goes on deposing that she is
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485
deposing what was told to her by villagers, although she claimed that she saw the occurrence and
she has denied suggestion that she did not witness the incident. Again we may observe that on
certain material and vital points, where aberration is fatal, the prosecution did not declare her
hostile witness and did not cross-examine her. If her testimony is believed to be correct one, then it
is obvious that she alone witnessed the incident but as per her version in cross-examination she
arrived at the spot near dead body of her father all alone. None else was present. She also went to
the police station and she narrated about the incident which was taken down at the police station by
Diwan Ji who also obtained her thumb impression on it and she has denied suggestion that any
report was written by Ashok and lodged at the police station and she has categorically stated that
she saw wound on the body of her father only the very next day and the FIR was taken down after
preparation of the inquest report and she is deposing what has been told to her by the villagers. In
view of such contradictory and vacillating testimony of both the eyewitnesses of fact, we are
unable to make either head or tail of the actual occurrence as to what these witnesses wished to
prove and in what direction? We do not find ourselves in a position even to depend wholly on
testimony of the either of the two eye witnesses because the same is neither clinching nor inspiring
confidence.

34. For the the time being we leave aside the factual testimony of the above two witnesses
(P.W.1 and P.W.2) for aforesaid specific discussion. Now, we may embark on certain other factual
aspects of the case by careful scrutiny of testimony of formal witnesses and the attendant
circumstances of the case. Here we may discuss testimony of Ramesh Chand Tiwari P.W.3 who
claims to have started investigation of the case. He only testified to the fact that he arrived at the
place of occurrence and prepared the inquest report, but he has not detailed about his arrival on the
spot and about the very time when he commenced the inquest report and completed the same.
Although he has denied suggestion that the FIR was written only after the inquest report was
prepared.

35. We may discuss this factual aspect after we go through the testimony of other formal
witnesses on the point of FIR being ante-timed. Surendra Pratap Singh P.W.4 is the another
Investigating Officer who also took over the investigation on 22.1.2000 itself. It appears that P.W.3
only prepared inquest report and upto that extent, he carried out the investigation and thereafter it
was taken over by Surendra Pratap Singh P.W.4. His testimony on the whole does not explain the
various lacunae created and appeared in the testimony of eye-witnesses P.W.1 and P.W.2. He has
merely stated that he recorded statement of witnesses and prepared the site plan. This is obvious
that either the Investigating Officer is trying to conceal material facts or he is not well trained to
testify properly as an investigating officer before the trial court about his own act/investigation. He
is also silent on the point that when the information was received at the police station regarding the
occurrence on 22.1.2000 at 22.05 hours then as to why the inquest report was prepared on
23.1.2000 between 7.15 to 8.30 a.m. only and not at once after he arrived on the spot in the very
night. Further he has stated to have prepared memo of cartridge and photograph which he
recovered from the spot, but the very material which was taken into possession (cartridge and
photograph) were not produced in the court, therefore, probative force of such version loses
significance. One vital and prime situation of this case is that the deceased was hit by gun shot and
486 INDIAN LAW REPORTS ALLAHABAD SERIES
as per post-mortem report pellets have been found in an area of 30 cm x 24 cm front of chest and in
and around area, both sides measuring 0.5 cm x 0.3 cm and the same is at cavity deep and as per
testimony of both the eye witnesses, they also saw wound on the body of deceased, but the
Investigating Officer (PW-4) has stated that he did not find any blood stains on the spot. This
special aspect and circumstances is self-speaking about actual place of occurrence and assumes
crucial importance. This is most abnormal and unnatural that the deceased sustained gun shot
wound on the chest covering comprehensive area of the chest and he ran few steps staggering and
fell down and died. But surprisingly enough no blood stain was found on the spot. This factual
aspect regarding absence of blood stains/ mark on the spot, speaks about uncertainty of place of
occurrence. That is why no blood stained soil or simple soil has been collected by the Investigating
Officer from the spot. Thus the place of occurrence becomes doubtful. Further PW-1 has
categorically stated in her cross examination on page 4 that she is unable to tell as to in what
direction her son proceeded/ ran away after the shot hit him. If PW-1 was present on the spot and
she virtually accompanied her son when he was running away from the scene of occurrence, then it
is most natural and obvious that she must have seen the direction in which her son ran a little
distance and fell down. This ignorance on part of P.W.1 shows that she is not telling the truth in
court and she in fact did not witness the incident. Her testimony as a whole does not inspire
confidence. She is trying to defend her deceased son on several counts and as per her version, her
son was never involved in any criminal case and no report was lodged against him but in her cross
examination, she has admitted that her son was sent to jail in such case involving Section 307 IPC.

36. Similarly, when we scrutinize testimony of another eyewitness PW-2 Rajbeti then the
entirety of the evidence suggests that she even did not witness the incident. She arrived at the spot
the very next day in the morning and saw wounds on the body of his father and Daroga Ji prepared
inquest report the very next day and only then the first information report was written and she is
deposing at the instance of the villagers. She also went to the police station. She narrated about the
incident. Whatever she stated to Diwan Ji was taken down in writing and thumb impression was
obtained on it. If all these combined facts and circumstances are taken together then the same
establish in unambiguous terms only fact that even Rajbeti (PW-2) cannot be said to have
witnessed the incident as claimed by the prosecution. In this way, testimony of Gendawati (PW-1)
that she along with Rajbeti (PW-2) witnessed the incident stands negated. Their testimonial version
is found to be improving gradually and appears to be aimed at concealing real facts and
contradicting each other in material particulars. We, therefore, hold the two eyewitnesses highly
interested (witnesses) and wholly unreliable.

37. In such a situation, normally the convenient and better course would be to separate the
grain from chaff but here grain and chaff are so inextricably intermixed that it is not only difficult
to separate the same from grains, but virtually impossible to recognize and distinguish as to where
is the grain. Therefore, we have before us strong reason to believe suggestion of the defence to be
correct one that the deceased was killed by some unknown person/persons in the night and it was
only after discovery of the dead body of the deceased that the police came into action and guess
work was done and the accused persons were falsely implicated in this case on account of enmity.
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487
38. At this stage, it would be proper to take into account one more peculiar aspect of
this case. We have discussed about the post mortem report Ext Ka-8, ante mortem injuries
and the very cause of death mentioned therein. The prosecution adopted such unthinkable
lackadaisical approach (in proving post mortem report) and it failed to produce a competent
witness in the absence of the doctor who infact conducted post-mortem examination.
Prosecution tried to prove post-mortem report by a pharmacist who is not acquainted even
with the hand writing and signature of the doctor who actually conducted the postmortem
examination. Things could have been clarified by a competent doctor witness but by such
inaction things have been put into abysmal oblivion by producing a Pharmacist who was not
acquainted with the nature and magnitude of ante mortem injuries and regarding their details
say duration, time of death and the very cause of death.

39. Surprisingly enough Virendra Kumar Verma PW-5, Pharmacist has not worked
with Dr. B.G. Tiwari, who conducted post mortem report. He never saw him writing before
him.