# Kale v. State of U.P

- **Citation:** (2025) 12 ILRA 839
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-12-19
- **Case number:** Criminal Appeal No. 1345 of 2015
- **Bench:** J.J. Munir, Nalin Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kale-v-state-of-u-p-54855
- **Pages:** 27

## Text

_Characters 0–39,461 of 86,617. This is a partial read: ask again with offset=39461 for what follows._

12 All. Kale Vs. State of U.P.
839
liberty to prosecute under the
NDPS Act along with the Drugs and
Cosmetics Act.

46. The question thus which
throughout was raised by the learned
counsel for the petitioners that the drug
phensedyl which has codeine as an
ingredient could not be considered as a
manufactured drug and that action
could not be taken under the NDPS Act and
other enactments, is thus suitably answered
herein above in the judgment. The answer
to this question is also readily available in
the judgment of the Supreme Court in
Directorate
of
Revenue
Intelligence
(supra). The enormity of the entire matter
has to be investigated and, therefore, no
question for interference in the FIRs arises.

47. Having observed as above, we
part with the case by observing that even
though we have not interfered with the
case, the investigating agencies would with
all sagaciousness, investigate the case and
would not in any manner at any point of
time indulge in any malicious activity.

48. With these observations, all the
writ petitions stand dismissed.
----------
(2025) 12 ILRA 839
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.12.2025

BEFORE

THE HON'BLE J.J. MUNIR, J.
THE HON'BLE NALIN KUMAR SRIVASTAVA, J.

Criminal Appeal No. 1345 of 2015
Alongwith
Criminal Appeal No. 3888 of 2014
And
Criminal Appeal No. 4448 of 2014

Kale ...Appellant
Versus
State of U.P. ...Respondent

Issue for consideration
Consequences of an ante-timed FIR for the
prosecution and in which cases are they
attracted.

Headnotes
Section 304 read with Section 34 of the
Indian Penal Code , 1860-FIR in this case to
be ante-timed- not a case where the first
informant was chasing or begging the police to
lodge his FIR- unreliable dock evidence-
witnesses speaking contradictory, inconsistent
and inherently unreliable- identity of the
assailants- and the manner of assault- do not
inspire confidence - prosecution have not been
able to prove the case against the appellants
beyond all reasonable doubt.
Appeal allowed.(E-9)

Case Law Cited
1. Vadivelu Thevar v. State of Madras, AIR 1957
SC 614
2. Tahir and others v. State of U.P., 2019:AHCLKO:27021-DB
3. Anand Mohan v. State of Bihar, (2012) 7 SCC
225
4. State of M.P. v. Mansingh, (2003) 10 SCC
414
5. Kaushal Kumar Upadhyay v. State of U.P.,
(2020) 6 All LJ 266
6. Raju alias Balachandran and others v. State of
Tamil Nadu, (2012) 12 SCC 701
7. Edakkandi Dineshan alias P. Dineshan and
others v. State of Kerala, (2025) 3 SCC 273

List of Acts
Indian Penal Code, 1860

List of Keywords
Ante-timed FIR, major contradictions, bear
some animosity or grudge

Appearances of parties
Counsel for Appellant : Kundan Rai, Mohammad
Zakir, P.S. Pundir, Rakesh Kumar Singh, Rakesh
Ojha, Sunil Kumar Counsel for Respondent :
Govt. Advocate
840 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble J.J. Munir, J.)

1. This judgment will decide the
present Criminal Appeal and the two
connected Criminal Appeals Nos.3888 of
2014 and 4448 of 2014. All the appeals
arise out of the same crime, where the three
appellants stood their trial jointly. They
were convicted and sentenced to varying
terms for the same offences. All the appeals
have been heard together with Criminal
Appeal No.1345 of 2015 being formally
treated as the leading case. The appellants
were tried before Mr. Musharraf Hussain,
the then Additional Sessions Judge, Court
No.1, Bulandshahr vide Sessions Trial
No.1316 of 2010 (arising out of Crime
No.157 of 2010), under Section 326 read
with Section 34 and Section 304 read with
Section 34 of the Indian Penal Code (for
short, 'IPC'), Police Station Khurja Dehat,
District Bulandshahr. They were convicted
and sentenced by the learned Trial Judge
vide judgment and order dated 04.09.2014,
passed in the sessions trial aforesaid, in the
following manner:

Sr
.
N
o.

Na
me
of
con
vict

Cha
rge

Sentenc
e
Fine
(in
Rs.)
Defa
ult
sente
nce
1

1
Kale

326/
34
IPC
10 years
RI
10,0
00/-
Six
mont
hs
304/
34
IPC

Life
Impriso
nment
10,0
00/-
Six
mont
hs
2
Babl
u
326/
34
IPC

10 years
RI
10,0
00/-
Six
mont
hs
304/
Life
10,0
Six
34
IPC

Impriso
nment

00/-
mont
hs
3
Anil

326/
34
IPC

07 years
RI

10,0
00/-
Six
mont
hs
304/
34
IPC

10 years
RI

10,0
00/-
Six
mont
hs

2. Nanak Chand, a resident of
Village Dharpa, Police Station Khurja
Dehat, District Bulandshahr, lodged a First
Information Report (for short, 'FIR') at 6.30
a.m. with Police Station Khurja Dehat,
District Bulandshahr saying that in the
night intervening 13/ 14.08.2010, his wife
Smt. Ram Kumari, sons Rupesh and
Chandra Mohan, were asleep in the
verandah outside his house. The informant,
Nanak Chand was asleep in the barnyard
(Gher), where his animals are housed. At
1.00 o'clock in the wee hours, residents of
his village, Bablu son of Bhule, Anil son of
Ram Charan Jatav and Kale son of Chhote
Lal, a resident of Village Achchheja Khurd,
District Bulandshahr, assaulted his sleeping
wife and children, throwing acid from a
bucket, in consequence of which the
victims, who had received severe acid
burns, wailed and raised a commotion.
Upon hearing all these sounds, he woke up.
His daughter, Babita, who was already
awake in order to attend the call of nature,
told him that she had seen and identified
the appellants, Bablu, Anil and Kale clearly
committing the crime. A lot of natives of
the village gathered. The informant and
other residents of the village conveyed his
injured
wife
and
children
to
the
Government
Hospital,
District
Bulandshahr, where he got them admitted
for treatment. The informant's wife, Ram
12 All. Kale Vs. State of U.P.
841
Kumari and Rupesh, his son, were referred
by the District Hospital to a higher centre
in Delhi.

3. It is said in the FIR that in the
year 2006, two of the appellants, Bablu and
Kale, had ravished his daughter 'A', in
connection whereof they were convicted
and sentenced by the Court to ten years
imprisonment. It was just a few months
back that they had come out of prison. It is
on this account that they harboured
animosity against the informant and for the
said reason assaulted his wife and children,
employing acid.

4. The aforesaid FIR was registered
as Crime No.157 of 2010, under Section
326 IPC. Later on, during treatment at the
Guru Teg Bahadur Hospital, Delhi (for
short, 'the GTB Hospital'), the informant's
wife
succumbed
to
her
injuries
on
20.08.2010. The informant through a report
dated 25.09.2010 informed the Police about
the development. This led the Police to add
the offence punishable under Section 304
IPC to the crime vide G.D. No.21 dated
25.09.2010 at 5.30 p.m.

5. Immediately after the crime was
registered and the victims conveyed to the
District Hospital, Bulandshahr, they were
medically examined there on 14.08.2010 at
2.40 a.m.

6. The Doctor found on the person
of Ram Kumari @ Raj Kumari, the
informant's wife, 55% burns, caused by
some chemical. These were opined to be of
fresh duration and advised to be kept under
observation.

7. The other injured, Rupesh, the
informant's son was examined by the
Doctor
at
the
District
Hospital
on
14.08.2010 and his injuries too were opined
to be caused by some chemical burns of
fresh duration. These injuries were also
advised to be kept under observation.

8. The third injured and the other
son of the informant, Chandra Mohan, was
examined at the District Hospital on
14.08.2010. In his case too, the injuries
were opined to be caused by some
chemical, which were of fresh duration.
These were opined to be kept under
observation.

9. It may be noticed that while the
burns sustained by Smt. Ram Kumari @
Raj Kumari were opined by the District
Hospital Doctor to be 55% and the injuries
of the other victim, Rupesh, as 50% burns,
the burn percentage in the case of the
informant's other son, Chandra Mohan, was
found to be 10%.

10. After the informant's wife and
the deceased victim, Ram Kumari @ Raj
Kumari, passed away on 20.08.2010, her
cadaver was subjected to autopsy at the
University College of Medical Sciences &
GTB Hospital, Shahdara, Delhi, where she
had died during treatment. The autopsy was
held on 21.08.2010. There are very detailed
observations of the Autopsy Doctor in the
postmortem report about the nature of
injuries sustained and other matters. The
cause of death opined is "Shock as a result
of antemortem infected corrosion burns
(chemical) involving fifty percent of total
body surface area".

11. The Police, after investigating
the case, filed a charge sheet against the
three
appellants
on
17.11.2010.
The
Magistrate took cognizance on 18.11.2010.
In due course, the case was committed to
the Sessions on 01.12.2010. The learned
842 INDIAN LAW REPORTS ALLAHABAD SERIES
Additional Sessions Judge, Court No.1,
Bulandshahr, before whom the case came
up for framing of charge, framed two
charges against the appellant, Kale and the
two other convicts, Bablu and Anil jointly,
charging them on the first count under
Section 326 read with Section 34 IPC, and,
on the second, under Section 304 read with
Section 34 IPC.

12. Eight witnesses were examined
by the prosecution in support of their case,
three of fact and five formal. PW-1 is
Nanak Chand, the first informant; PW-2 is
Rupesh, a victim and an injured witness of
the occurrence; and, PW-3 is Babita, an eye
witness, who is the deceaseds daughter
and the two injured victims sister. PW-4,
Dr. Rajiv Verma is the doctor, who
examined the victims, when they were
brought in at the District Hospital,
Bulandshahr
for
necessary
medical
attention; PW-5 is Dr. Meghali Kelkar.
She is a doctor at the G.T.B. Hospital,
Delhi and has carried out the autopsy;
PW-6 is Om Singh, a Sub-Inspector of
Police, who was posted at Police Station
Mansarovar Park, Delhi at the relevant
time, when the deceased Raj Kumari
passed away during treatment at G.T.B.
Hospital, Delhi; PW-7, Satyapal Singh,
was a Sub-Inspetor of Police, posted at
the relevant time at Police Station
Khurja Dehat. He is the Investigating
Officer of the case, who filed the chargesheet. PW-8, Jai Prakash, is a Constable
Clerk, posted at the relevant time at P.S.
Khurja Dehat, who got the check FIR
drawn up on his dictation and made the
relevant G.D. entry upon registering the
FIR.

13. The following documents were
produced by the prosecution to establish
their case:
Sr.
No
Exhibit
No.
Exhibited documents
with brief particulars

1
Ex. Ka-1
Written
report
dated
14.08.2010 lodged with
the
Police
Station
Khurja Dehat, District
Bulandshahr
and
proved
by
PW-1,
Nanak
Chand

2
Ex. Ka-2
Written
report
dated
25.09.2010 lodged with
the
Police
Station
Khurja Dehat, District
Bulandshahr
and
proved
by
PW-1,
Nanak
Chand

3
Ex. Ka-3
Injury
report
of
Chandra Mohan dated
14.08.2010 proved by
PW-4, Dr. Rajiv Verma

4
Ex. Ka-4
Injury report of Rupesh
dated
14.08.2010
proved by PW-4, Dr.
Rajiv
Verma

5
Ex. Ka-5
Injury report of Ram
Kumari
dated
14.08.2010 proved by
PW-4, Dr. Rajiv Verma

6
Ex. Ka-6
Postmortem Report of
Ram
Kumari,
dated
21.08.2010, proved by
PW-5,
Dr.
Meghali
Kelkar

7
Ex. Ka-7
Information
regarding
death of Ram Kumari
dated
21.08.2010,
proved by PW-6, SI
Om Singh, then posted
12 All. Kale Vs. State of U.P.
843
at
Police
Station
Mansarovar Park, Delhi

8
Ex. Ka-8
Statement
of
the
informant,
Nanak
Chand regarding death
of
his
wife,
Ram
Kumari
at
G.T.B.
Hospital, Delhi, dated
21.08.2010, proved by
PW-6, SI Om Singh

9
Ex. Ka-9
Statement of Sanjiv,
identifying
the
deceased, Ram Kumari,
dated
21.08.2010,
proved by PW-6, SI
Om Singh
10
Ex. Ka-10
Statement of Kishan
Lal,
identifying
the
deceased, Ram Kumari,
dated
21.08.2010,
proved by PW-6, SI
Om
Singh

11
Ex. Ka-11
Order of the Station
House
Officer
dated
15.11.2010 transferring
the
investigation
to
PW-7,
SI
Satyapal
Singh

12
Ex. Ka-12
Charge sheet, proved
by PW-7, SI Satyapal
Singh

13
Ex. Ka-13
Check
FIR
dated
14.08.2010, proved by
PW-8, Jai Prakash, then
posted
as
Constable
Clerk at P.S. Khurja
Dehat

14
Ex. Ka-14
GD Entry No.7, proved
by PW-8, Jai Prakash,
then
posted
as
Constable Clerk at P.S.
Khurja Dehat
15
Ex. Ka-15
Site Plan of the place of
incident
dated
15.08.2010, proved by
PW-8, Jai Prakash, then
posted
as
Constable
Clerk at P.S. Khurja
Dehat

.
14. No witness was examined by
the defence or documentary evidence
produced.

15. Heard Mr. Rakesh Kumar
Singh along with Mr. Mohammad Zakir,
learned Counsel for the appellant in
Criminal Appeal Nos.1345 of 2015 and
3888 of 2014, Mr. Rakesh Kumar Pandey,
learned Counsel for the appellant in
Criminal Appeal No.4448 of 2014, and Mr.
Shashi Shekhar Tiwari and Mr. Anil Kumar
Mishra, learned Additional Government
Advocates along with Mr. K.K. Nishad,
learned State Law Officer appearing on
behalf of the State.

16. Upon hearing learned Counsel
for the parties, we find that the evidence on
record, relative to the charges, can be
conveniently considered in the following
manner.

The genesis of and the motive for
the crime

17. It is common ground between
parties
that
out
of
three
convicted
appellants, two, to wit, Kale and Bablu
were
charged,
tried,
convicted
and
sentenced for the offence of ravishing the
informants daughter A by the learned
844 INDIAN LAW REPORTS ALLAHABAD SERIES
Sessions
Judge.
This
offence
was
committed by the two appellants, Bablu
and Kale in the year 2006. Both the
appellants received a term sentence of ten
years each. They were out on bail pending
appeal, when the present offence was
committed.

18. It is argued on behalf of the
appellants by the learned Counsel that their
implication
in
the present
crime
is
motivated because despite being convicted
and sentenced on charges of ravishing the
informants daughter, which too were,
according to the appellants, false charges,
they have been admitted to bail by this
Court pending appeal. It is to spite the
appellants that they have now been framed
in the present case. The offence here is one
that is blind, committed in the dead of night
while the victims, the informant and all
family members were fast asleep. The
perpetrators are very different men than the
appellants, who committed the offence by
night for their own reasons, but the
informant, who harbours grudge and illwill against the appellants for their
perceived involvement in the rape of his
daughter, nominated them in the present
crime without the slightest of truth to the
allegations.

19. Mr. S.S. Tiwari, learned
A.G.A. has stoutly refuted this submission
and says that there is a prompt reporting of
the heinous crime, which excludes every
possibility of a false implication.

20. It is true that two, out of the three
appellants, Kale and Bablu, were indeed
involved in an earlier crime against the
informants family, where the latters
daughter was ravished by the two. They were
convicted and sentenced for the offence of
gang-rape with each of them, receiving a
term of ten years rigorous imprisonment
along with a fine of Rs.5000/- each. In
addition, they were ordered to suffer an
additional term of three months in the event
of default in payment of the fine imposed.

21. The involvement of the two
appellants in the case of gang-rape could be
thought of as the motive for the informant to
falsely implicate them, to wit, Kale and
Bablu, particularly as these two, after being
convicted by the learned Trial Judge, were
enlarged on bail by this Court pending
appeal. On the other hand, the motive to
commit the crime, could well emanate from
the appellants grudge, resulting from their
conviction. It is for this reason that the
relevant fact of motive is always regarded as
a matter, that may establish the prosecution or
work to probabilize the defence.

22. In every case, and so also here,
which side the weight of motive would tilt
scales, depends on the other facts established
in the case. Motive is, therefore, a relevant
fact, that has to be seen in the totality of other
facts proved by evidence to see which way it
really works in a given case. In this case, we
would consider the substantive evidence
about other relevant facts, more fundamental
to a prosecution based on an eye-witness
account before opining which way motive
has played its role, to wit, if it has led to the
crime or a false implication for the appellants.
Accordingly, this would be considered later
on in this judgment.

The FIR and the circumstances
attending its registration; if it is antetimed

23. According to the FIR, the crime
was
committed
at
1:00
a.m.
on
13/14.05.2010, that is to say, in the wee
hours at Village Dharpa, P.S. Khurja
12 All. Kale Vs. State of U.P.
845
Dehat, District Bulandshar. In the attack by
throwing of acid, said to have been
committed
by
the
appellants,
the
informants wife and two sons sustained
injuries. The injured were conveyed in a
commercial vehicle, popularly called a
TATA-407, to P.S. Khurja Dehat. The
policemen at the police station are said to
have advised the informant to rush the
injured to the Government Hospital,
Bulandshahr in order to save their life. The
doctors
of
the
District
Hospital,
Bulandshahr, finding the condition of Smt.
Raj Kumari and Rupesh to be serious,
referred them to the GTB Hospital. The
FIR is shown to have been registered at
6.30 a.m. in the morning upon being lodged
by the first informant, Nanak Chand.

24. It is submitted by the learned
Counsel for the appellants that the FIR is
clearly ante-timed and not at all a
spontaneous account of the occurrence.
Learned Counsel for the appellants have
invited the attention of the Court to the
testimony of Nanak Chand, PW-1, which
he says, clearly shows that the FIR was
lodged after the informant had got his wife
admitted to the GTB Hospital and returned
home to his village in Bulandshahr. It was
scribed by Sanjay Kumar at the police
station, where many people from the
informants village and elsewhere had
reached upon hearing the news. The FIR
was lodged after due consultation about
quarter to nine in the morning. It is, thus,
argued that the FIR, which is shown to be
registered at 6.30 a.m., is clearly an antetimed document, lodged after consultation
and premeditation; not a prompt and
spontaneous report of the crime.

25. Mr. Tiwari, the learned A.G.A.,
has submitted that the FIR was lodged at
6.30 in the morning by the informant, a fact
duly proved by PW-3, Jai Prakash, the
Constable Clerk, who drew up the check
FIR and made a G.D. Entry thereof in the
records of the police station at 6.30 a.m. on
14.08.2010. He submits that it is for the
said reason that the learned Trial Judge,
before whom the same argument about the
FIR being an ante-timed document was
advanced, rejected it.

26. There is nothing said in the
examination-in-chief by the first informant,
PW-1, about the time when the FIR was
lodged, though he proved the written
information by his testimony recorded in
the dock, which was marked as Ex. Ka-1.
In his cross-examination done by learned
Counsel appearing for the appellant, Bablu,
PW-1, Nanak Chand, has stated the fact
that he has passed his intermediate
examination. He is, therefore, a reasonably
educated man; certainly a literate and not a
rustic.

27. In his cross-examination on
behalf of the appellant, Anil, PW-1, Nanak
Chand, has stated:

 "मैं चुटैलो को लेकर पहले खुरजा-
िेहात र्थाने गर्ा र्था। र्थाना वालो ने हमें
बुलन्दशहर अस्पताल भेजा र्था। हमारे सार्थ कोई
धसपाही र्थाने से सार्थ नही आर्ा र्था। र्थाना वालो
ने हमें धचट्ठी धलखकर नहीं िी र्थी। बुलन्दशहर
अस्पताल मे र्थोड़ा बहुत इलाज हुआ र्था उसके
बाि रेफर कर धिर्ा र्था। बुलन्दशहर अस्पताल
वालो ने रेफर क्तिप िी र्थी। हम सुबह 9 बजे
धिल्ली अस्पताल में पहुुँच गर्े र्थे।"

(emphasis by Court)

 28.
Further,
in
his
crossexamination
at
the
instance
of
the
appellant, Anil, PW-1 has said:
846 INDIAN LAW REPORTS ALLAHABAD SERIES
 "जब मैं पहले धिन Admit के पिात
अपने गांव लौटकर आर्ा र्था तो F.I.R लेखक
संजर् मेरे गांव मे घर पर मौजूि धमला र्था। धफर
मैने व गांव के अन्य लोगो ने सलाह मशवरा
करके ररपोटा धलखाई र्थी।"

(emphasis by Court)

29. Further on, Nanak Chand, PW1, when cross-examined on behalf of the
appellant, Kale, stated:

 "मैं चुटैलों के सार्थ घटना के धिन उन्हें
लेकर अस्पताल गर्ा र्था। चुटैलों को बुलन्दशहर
की पुधलस ने अस्पताल में िाक्तखल धकर्ा र्था।
हमने पुधलस को ररपोटा की र्थी। ररपोटा राधत्र में 2
बजे की र्थी। मेरे पररवार मे संजीव का चधचर्ा
ससुर FIR लेखक संजर् कुमार धनवासी
धगरिरपुर है। इसको बुलाने के धलए हमने अपने
गांव िरपा से समर् करीब ड्ेढ बजे राधत्र मे फोन
धकर्ा र्था। लेखक संजर् कुमार समर् करीब 7
बजे सुबह अपने गांव धगरिरपुर से मेरे गांव
िरपा में आर्ा र्था। मैं धिल्ली अस्पताल से अपने
गांव लौटा र्था और करीब पौने 8 बजे मुझे संजर्
मेरे गांव िरपा मे धमला र्था। र्थाना खुरजा िेहात
मै, संजर् और गांव के बहुत सारे लोग इस घटना
की इत्तला में करीब पौने 9 बजे धिन पहुुँचे र्थे।"

30. PW-8, who is the Constable
Clerk at Police Station Khurja Dehat at the
relevant time and drew up the check FIR,
besides making the relative G.D. Entry in
the
Station
House
Diary
regarding
registration of the case, has testified in his
examination-in-chief
to
the
following
effect:

 "धिनांक 14.8.10 को मैं र्थाना
खुरजा िेहात पर बतौर कान्सटेधबल क्लका
तैनात र्था। उस धिन मैने मुकिमा अ० स०
157/2010 अन्तगात िारा 326 IPC बनाम
बबलू आधि की धचक FIR इस मुकिमे के
वािी नानक चन्द की तहरीर के आिार पर
धसपाही क्लका सुिामा से कम्पर्ूटर पर बोलबोल कर टाईप करार्ी र्थी असल धचक FIR
आज मेरे सामने है। जो पत्रावली पर कागज
संख्या 4A/ 1 व 4A/2 है इस पर प्रिशा क-9
ड्ाला गर्ा।

 इस मुकिमे का खुलासा मैने उसी
धिन एक ही Process मे G.D. No 7 समर् 6.30
AM पर असल G.D. के सार्थ तैर्ार धकर्ा र्था
असल G.D. आज सार्थ लार्ा हुँ। जो मेरे
हस्तलेख व हस्ताक्षर में है असल G.D से धमलान
करके प्रमाधणत करता ह। इस पर प्रिशा क-10
ड्ाला गर्ा।"

31. In his cross-examination, PW8, Constable Clerk, Jai Prakash, has stated:

 "र्ह कहना सही है धक इस तहरीर से
पहले उस धिन कोई अपराि िजा नहीं धकर्ा
गर्ा है और ना वाि मे हुआ र्ह कहना भी गलत
है धक मुकिमा की िजागी धवरोिाभाशी समर् में
की गर्ी है G.D संख्या 7, 6.30 AM मेरे
हस्तलेख मे है और GD सख्या 8 समर् 7.00
AM बजे सुबह मेरे सार्थ तैनात रहे CC
मुरसलीन के हस्तलेख मे है।"

32. Upon a perusal of all this
testimony, what is apparent is that Nanak
Chand, PW-1, who is the first informant, is
by no means an illiterate man. It cannot be
said that he has no understanding of the
clock or that he could not understand the
hour of the day, when he lodged the FIR. It
cannot also be said that he would not be
able to read the time of registration shown
on the check FIR. In fact, he has correctly
read the time of registration of the FIR,
and, therefore, never mentioned it in his
examination-in-chief.
In
his
crossexamination
at
the
instance
of
the
12 All. Kale Vs. State of U.P.
847
appellant, Anil, it has come out that PW-1
proceeded with the victims first to the P.S.
Khurja Dehat, where looking to the critical
condition of the injured, the policemen
asked him to rush them to the District
Hospital, Bulandshahr. The doctors at the
District Hospital, Bulandshahr, assessing
the critical condition of the victims,
referred them to a higher centre in Delhi.
They gave a referral slip as well. It has
further figured in his cross-examination
that travelling from the District Hospital,
Bulandshahr, he reached the hospital in
Delhi at 9.00 a.m. It has then further on
come in PW-1s testimony during crossexamination on behalf of Anil that after he
got the victims admitted, he returned back
to his village, where the scribe of the FIR,
Sanjay, was waiting at his home. He then,
in consultation with other residents of the
village, got the FIR scribed.

33. It has further on come in PW1s cross-examination, also done at the
instance of the appellant, Kale, that the
witness had gone along with the victims to
the hospital. The victims were got admitted
by the Bulandshahr Police to the hospital.
He had reported the matter to the Police.
Here, he has said that the report was lodged
at 2.00 a.m. It is next said that a relative of
his, Sanjay Kumar, a resident of Village
Gurdharpur, is the scribe of the FIR. This
scribe was informed over telephone by
PW-1 at 1.30 a.m. The scribe, Sanjay
Kumar, reached Village Dharpa from his
Village Girdharpur at 7.00 oclock in the
morning. PW-1, who had by then gone to
Delhi with the victims, returned to his
village at about 7.45 in the morning, where
he met Sanjay. PW-1, along with Sanjay
and many other residents of the village,
proceeded to P.S. Khurja Dehat, where they
reached to lodge the FIR at about 9.00
oclock in the morning.
34. PW-1 is the first informant and
his testimony, apart from being wayward
about the time, when the FIR was
registered, is certain about one fact that the
FIR was not lodged, or for that matter
registered, at 6.30 in the morning. A
wholesome reading of his testimony would
place the registration of the FIR some time
about 9.00 a.m., or may be a little later.
PW-1 is categorical that from the police
station, where he had initially gone along
with the patients, he proceeded to the
District Hospital, Bulandshahr. After some
superficial management, the victims were
referred
to
the
GTB
Hospital.
The
informant
went
to
Delhi.
He
has
categorically said that he reached his
village back at about quarter to eight in the
morning, where the Scribe, Sanjay Kumar
was waiting for him. It is but obvious that
the FIR must have been scribed after
quarter
to
eight.
PW-1
has
also
categorically said that the first informant, in
the company of the scribe and others,
reached P.S. Khurja Dehat at 9.00 oclock.
Elsewhere, it has figured that the FIR was
written outside the police station. This
would lead to an inference about the time
of lodging the FIR being anything after
9.00 a.m. on 14.08.2010.

35.
If
every
other
detail
is
discounted, in the face of the Constable
Clerks grand authority justifying entries
made by him in public records, it cannot be
accepted that PW-1, who had come back
from Delhi, reaching his village at about
quarter to eight in the morning hours of
14.08.2010, could, by any means, have got
the FIR lodged at P.S. Khurja Dehat at 6.30
in the morning. That time of the day would
not be supported by the time taken in the
onward
journey
reckoned
from
the
victims house to P.S. Khurja Dehat, and
then to the District Hospital, Bulandshahr,
848 INDIAN LAW REPORTS ALLAHABAD SERIES
the time spent there in the administration of
some superficial treatment, the onward
journey
from
District
Hospital,
Bulandshahr to the GTB Hospital, located
in Delhi, and the return journey that PW-1
undertook to reach his village in District
Bulandshahr. The time, that PW-1 has
indicated of his arrival back home in his
village as 7:45 a.m., is apparently realistic
and correct, given the distances involved,
of which judicial notice may be taken.

36. There is no way that PW-1,
undertaking all this journey and the steps
involved in consulting doctors at the
District Hospital, Bulandshahr, then at
Delhi getting the victims admitted to the
GTB Hospital and returning back home to
his village in Bulandshahr, from where he
proceeded to the police station, could ever
have lodged the FIR at 6.30 in the morning
of 14.08.2010.

37. We are convinced that by any
stretch of human capability, the FIR in this
case could never have been lodged by the
first informant at 6.30 in the morning of
14.08.2010.

38. The testimony of PW-8, the
Constable Clerk, Jai Prakash, is untruthful
about the time of registration of the FIR
and is nothing more than an affirmation of
false official record about the time of
registration. The fact that no earlier FIR,
other than the one giving rise to Crime
No.157 of 2010, was registered on
14.08.2010, G.D. Entry No.7 made at 6.30
a.m., relating to the said crime, was a
matter of no difficulty for the Police. The
next crime was registered, or so to speak
the next G.D. Entry of the day was made at
7.00 a.m. vide G.D. Entry No.8. Therefore,
the affirmation of time of registration of the
FIR and the relative G.D. Entry by the
Constable Clerk, will be of little help to the
State in justifying the time of registration of
the FIR. The FIR in this case is clearly
ante-timed. And, we hold accordingly.

If the ocular testimony of PW-1,
PW-2
and
PW-3
is
relevant
and
consistent

39. In order to bring home the
charge, the prosecution have examined
three witnesses of fact, to wit, Nanak
Chand, PW-1, Rupesh, PW-2 and Kumari
Babita, PW-3. Nanak Chand is the first
informant and claimed himself to be a
witness of res gestae. In his examinationin-chief, he has stated:

 "घटना धिनांक 13/14.8.2010 को
लगभग रात के एक बजे की है। मैं अपने पशुओं
के पास सो रहा र्था। मैनें घर से चीख पुकार सुनी,
मेरी लड्की बबीता भगी हुई आई, मुझसे बोली
धक रूपेश, राजकुमारी व चन्द्रमोहन तेजाब से
जले हुर्े पड्े है। बबलू s/o भूले, अधनल s/o
रामचरन व काले s/o छोटे लाल ने तेजाब बाल्टी
से रूपेश, राजकुमार व चन्द्रमोहन के ऊपर
ड्ाला है। र्ह बात मुझे बबीता ने बताई र्थी। मैने
रूपेश राजकुमारी व चन्द्रमोहन को तेजाब से
जले हुर्े िेखा र्था।"

40. In his cross-examination done
on behalf of the appellant, Bablu, PW-1 has
said:

 "र्ह कहना गलत है धक मैनें घटना ना
िेखी हो। घटना की बात मुझे सबसे पहले बधबता
ने बताई र्थी। बधबता ने घटना में तुरन्त बाि ही
मुझे बतार्ा र्था। बधबता पेशाब करने आई र्थी।
रात में सड़क ही पर नाली में पेशाब करते है।
घटना के समर् रात को लगभग 1 बजे का समर्
र्था। मेरे शोर पर मोहल्ले के धकशन लाल, संिीप,
जर्पाल, ड्ागू आधि आ गर्े र्थे। उपरोक्त लोगों
12 All. Kale Vs. State of U.P.
849
के नाम मैनें िरोगाजी को नही बतार्े र्थे। मैं
घार्लों के लेकर सबसे पहले खुरजा िेहात र्थाने
गर्ा र्था। TATA 407 वाहन से गर्े र्थे। र्थाने
वालों ने इलाज कराने के धलए धचट्ठी नही िी र्थी।
र्थाने से धसपाही सार्थ नहीं गर्ा र्था। र्थाने में
धसपाधहर्ों ने कहा र्था धक इन्हे बचाना है तो तुरन्द
बुलन्दशहर अस्पताल चले जाओ।

 मैनें मुक्तिमान को तेजाब ड्ालते हुए
नही िेखा, मुक्तिमान को मैंनें भागते हुए
पहचाना र्था।"

 (emphasis by Court)

41. PW-1 was also cross-examined
on behalf of the appellant, Anil, where he
has stated:

 "जब मैने मुक्तिमान को िेखा र्था,
मुलधजमान के मुंह पर ड्ाढा नही बन्धा र्था।

 मैने मुलधजमान को पीछे से भागते हुए
िेखा र्था। मुलधजमान चारों तरफ को िेखते हुए
भागे र्थे तभी मैने उन्हें पहचाना र्था। रात उजाली
र्थी।"

42. PW-1 has also been crossexamined on behalf of the appellant, Kale.
There, he has stated:

 "जब घटना के बाि रोवा-रात मची र्थी
तब मेरी लड़की ने बतार्ा र्था धक पड़ोधसर्ों ने
तेजाब ड्ाल धिर्ा है।"

43. The aforesaid testimony places
it beyond cavil that this witness, by no
means, is a witness of the occurrence,
though he claims to have seen happenings,
that are relevant as res gestae under Section
6 of the Indian Evidence Act, 1872 (for
short, the Evidence Act). The testimony
of PW-1 in his examination-in-chief to the
effect that it was the appellants, who had
thrown acid on the deceased and the two
other victims, and, he was told of the fact
by Babita, is hearsay. The assertion of the
witness in his cross-examination to the
effect that it is incorrect to say that he had
not seen the occurrence and that he was
informed about it by Babita, is again not
relevant. But, later on, in his crossexamination, he has said explicitly that
though he did not see the appellants throw
acid upon the victims, he saw them run
away and recognized them. The fact that
PW-1 saw the appellants run away from the
scene of crime and also saw the three
victims with acid burn injuries, put
together, is relevant, if proved. Elsewhere,
during his cross-examination extracted
hereinabove, PW-1 has said that he saw the
backside of the appellants as they ran away.
He has further said that the appellants were
looking on all sides as they escaped, and,
therefore, he could recognize them in the
moonlit night. The testimony of this
witness, who was sleeping in the yard with
his animals, and woken up by his daughter,
Babita, after the event, does not inspire
confidence about the fact that he saw
anything of the occurrence or the assailants
as they escaped. The victims had already
sustained injuries and were writhing in
pain.

44. According to this witness,
Babita, his daughter, who had woken up
and gone to answer the call of nature, using
an open drain next to their house as a privy,
if it can be called that, came over running
to him and apprised him of the incident.
PW-1 had woken up, hearing the cries for
help coming from his house, when Babita,
as already said, told him of the incident and
the fact that the perpetrators were Bablu,
Anil and Kale, who had thrown acid on
Rupesh, Raj Kumari and Chandra Mohan.
850 INDIAN LAW REPORTS ALLAHABAD SERIES
He would have taken, if not minutes, a few
seconds, to come out of his slumber. There
were his wife and sons, wailing in pain.
That is the first thing, which would have
caught his attention and, in fact, that is
what happened too. The assailants made a
quick get away. There is no case of any
further
aggression
or
assault.
It
is,
therefore, very unlikely that this witness
saw anything of the assailants as they ran
away. The description that the assailants
were looking around, while making good
their escape, virtually as if inviting PW-1 to
identify them in the moonlit night, is a fact
hard to believe. This witness, therefore,
saw nothing of the occurrence or anything
relevant as res gestae. He just saw the trail
of injury and agony left behind by the
perpetrators.

45. The second witness, PW-2,
Rupesh, is the most relevant witness. He is
a survivor of the dastardly attack and a
fortiori an injured witness. He has testified
in his examination-in-chief on 21.03.2013,
thus:

 "घटना धिनांक 13/14.8.2010 रात्री
के एक बजे की है मै व मेरी मम्मी राजकुमारी @
रामकुमारी मेरा भाई चन्द्रमोहन बहन बबीता घर
के अन्दर बरामिे मे सो रहे र्थे बब्लू पुत्र भूले
अधनल पुत्र राम चरन धनवासी गांव िरपा के
धनवासी है काले पुत्र छोटे लाल धनवासी गांव
अच्छेजा खुिा के धनवासी है इन तीनो ने एक
बाल्टी तेजाब मेरे उपर ड्ाला र्था मेरे शरीर मे
एक िम आग सी जल गर्ी र्थी जैसे मैने खीची
मारी तो मेरी मम्मी एक सार्थ खड़ी हो गर्ी तो
काले के हार्थ से बाल्टी पकड़ी तो बब्लू ने लात
मारकर खाट पर धगरा कर मम्मी पर िो बाल्टी
तेजाब ड्ाल धिर्ा धजसमे मै मेरे भाई चन्दर
मोहन पर छीटे आर्े र्थे धजससे वह जांघे पर जला
है। उसके बाि मै अपने घर मेरे पापा श्री नानक
चन्द पुत्र सचेड़ू धसंह घर के सामने भैसो के पास
घेर मे सो रहे र्थे इन तीनो को भागते हुर्े मेरे
पापा ने िेखा तीनो के हार्थ में तेजाब की
वालधटर्ो र्थी मैने व मेरी मम्मी व मेरे भाई चन्द्र
मोहन, बहन बबीता और मेरे पापा ने अच्छी तरह
से पहचान धलर्ा र्था।

46.
There
is
then
a
Court
observation, recorded about this witness, to
the following effect:

 कोटा ओबजावेशन- साक्षी के चेहरे की
बार्ी भाग पूरी गिान बार्ी ओर का कान सम्पूणा
छाती बार्े हार्थ की कोहनी से लेकर गिान तक
का भाग िाधहना हार्थ तर्था छाती के पीछे गिान
से लेकर कमर पर िोनो पुटठो के बीच उसकी
त्वचा बूरी तरह जली हुई है। वािी आंखे की िोनो
पलके तर्था भौ जल जाने के कारण सफेि हो
गर्ी है तर्था आंखे की पुतली आधि पूरी तरह जल
चुकी है। साक्षी ने बतार्ा धक उसकी ऑखे से
धिखार्ी नही पड़ता है। और पेट के नीचे िोनो
जांघो पर भी जलने के सूखे हुर्े घाव है।"

47. PW-2, Rupesh, has said in his
cross-examination:

 "तेजाब हमारे ऊपर सोते समर् हमारे
चारपाइर्ो के ऊपर ही ड्ाल धिर्ा र्था तेजाब भरी
बाल्टी लोहे की र्थी धजस समर् मेरे ऊपर तेजाब
ड्ाल धिर्ा र्था उसी वक्त मुझे काफी जलन हुर्ी
मेरी एक आंख से धिखना बन्द हो गर्ा और कान
से सुनना बन्द हो गर्ा।"

48. Again, PW-2 in his crossexamination done on behalf of the
appellant, Bablu, has said:

 "घटना के समर् लाईटे आ रही र्थी
बरामिे में भी लाईट जल रही र्थी। घटना के
समर् मैने मुक्तिमान को तेजाब ड्ालते िेखा र्था।
घटना के समर् हम लोग सो रहे र्थे घटना के
समर् सो रहे र्थे मुझे कुछ पता नहीं।"
12 All. Kale Vs. State of U.P.
851
 (emphasis by Court)

49. Although, this witness has
given
a
graphic
description
of
the
occurrence, describing it in minute detail, it
has to be borne in mind that he is a person,
who woke up in consequence of the
burning sensation, resulting from the splash
of acid on his body attributed to the
appellants. It led him to shriek in pain,
which caused the deceased, Raj Kumari,
his mother, to suddenly wake up, stand
straight and hold back the bucket carrying
the active agent. Thereupon, the appellant,
Bablu, kicked her, which made her fall
back on the bed. The said appellant then
emptied two buckets of acid on the
deceaseds body. It is asserted in the
examination-in-chief that the assailants
were seen by this witness, his brother,
Chandra Mohan, and sister, Babita, besides
their father, the first informant.

50. It is said in his cross-examination
that a bucket, full of acid, was thrown on him,
which caused him a strong burning sensation,
loss of vision in one eye and loss of hearing.
It is rather unlikely that with impairment of
his vital sensory organs, including loss of
vision in one eye and hearing, he could, in the
distress and turmoil of the moment, identify
the appellants with certainty. In the later part
of his cross-examination, the witness has
reiterated that he had seen the appellants
throw acid on the victims, including himself.
At the tail-end of the thoroughly done crossexamination, he has said that at the time of
occurrence, the place was well-lit with an
electric light and he had seen the appellants
throw acid on the victims (including himself).
He has then said that they were asleep and he
did not know anything. The last noted words
in his cross-examination cast the die for his
testimony, rendering it entirely unreliable, the
inherent
worth
of
this
witness
notwithstanding.

51. PW-3 is the last witness of fact,
and, of immense importance. She is the sole
witness, whose testimony cannot be held
vitiated by sleep or slumber. She was fully
awake and had gone over to an open drain,
adjacent to the victims, to ease herself.

52. This witness in her examinationin-chief has given a graphic account of the
occurrence in the following words:

 "घटना धिनांक 13/14-8-2010 समर्
लगभग एक बजे की है। मैं अपने घर के बरामिे में
सो रही र्थी उसी बरामिे मेरे सार्थ मेरा चन्द्रमोहन
रूपेश, माुँ राजकुमारी @ रामकुमारी भी सो रहे र्थे
मैं पैशाब करने के धलए उठी तो मैंने िेखा धक
बब्लु, अधनल काले मेरे भाई रूपेश व मेरी मां और
चन्द्रमोहन के ऊपर बाल्टी से तेजाब ड्ाल रहे र्थे
मेरे भाई रूपेश ने शोर मचार्ा मैं पेशाब कर रही
र्थी। तो मैं उठी मेरा भाई अधनल से धचपट गर्ा मेरे
भाई ने अधनल की नाक में घुस्सा मारा र्था मेरी मां
बब्लू से धलपट गर्ी र्थी मेरा भाई नल पर भाग गर्ा
र्था। अधनल ने वाल्टी लेकर तेजाब मेरी मां के
ऊपर गेर धिर्ा (ड्ाल धिर्ा) धजसकी छीटे मेरे
छोटे भाई चन्द्रमोहन पर भी आर्ी र्थी मैं भागकर
अपने पापा जो सड़क के पल्ली ओर सो रहे गर्ी
मैंने उन्हें हल्ला मचा कर उठार्ा वह आर्े उन्होंने
िेखा धक तेजाब में झुलस गर्े र्थे मैंने भागते हुर्े
बब्लु, अधनल व काले को िेखा र्था र्ह भूले के घर
में भाग गर्े र्थे।"

53. This witness in her crossexamination on behalf of the appellants,
Anil and Kale, has stated:

 "मैं पेशाब के धलए उठी र्थी पेशाब से
अपनी चारपाई को लौटत. समर् मेरे भाई
रूपेश, धफर मेरी मां राजकुमारी की चीख आर्ी
852 INDIAN LAW REPORTS ALLAHABAD SERIES
र्थी। इस चीख के धकतने धमनट बाि में मैं अपने
धपता नानक के पास पहुंची र्थी र्ह मैं नहीं
जानती। मैं व मेरे धपता जी घटना के बाि अपने
घर में एक सार्थ ही आर्े र्थे।"

54. This witness has further on said
in her cross-examination: