# Prem Nath Yadava & Anr v. State of U.P

- **Citation:** (2022) 2 ILRA 633
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-01-06
- **Case number:** Criminal Appeal No.1114 of 2015
- **Bench:** Ramesh Sinha, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/prem-nath-yadava-anr-v-state-of-u-p-48143
- **Pages:** 31

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code, 1860-Sections 302/34, 504,
506
-
U.P.
Gangster
&
Anti-Social
Activities (Prevention) Act 1986-Section
3(1)-challenge
to-conviction-incident
took place on account of old rivalry-
motive stood proved -gun shot injury
according
to
injury
report-as
per
statement of PW-1 and other facts the
appellants
could
not
produce
any
evidence to show that they are entitled
to the benefit of alibi -Investigation
officer ought to have examined the
defence witness in relation to plea of
alibi-Moreso, the dying declaration was
recorded by the police personnel-no
cross-examination
conducted
by
the
defence
on
the
question
of
dying
declaration- defects in the investigation
cannot ipso facto be a ground to hold
that the appellants are not guilty-dying
declaration cannot be merely discarded
on the ground that the same has been
recorded by the police personnel or
certificate of fitness was not obtainedthere was no clinching evidence adduced
by the appellants to hold otherwisedefects in the investigation by itself
cannot be a ground for acquittal-Thus,
trial
court
rightly
appreciated
the
evidence and the findings do not suffer
from error.(Para 1 to 60)

B.
There
may
be
highly
defective
investigation in a case. However, it is to
be examined as to whether there is any
lapse by the I.O. and whether due to such
lapse any benefit should be given to the
accused. therefore, the investigation is
not the solitary area for judicial scrutiny in
a criminal trial.(56,57)
634 INDIAN LAW REPORTS ALLAHABAD SERIES
C. Nemo moriturus praesumitur mentireNo one at the time of death is presumed
to lie. there is no requirement of law that
a dying declaration must necessarily be
made to a magistrate and when such
statement is recorded by a magistrate
there is no specified statutory form for
such
recording.
Consequently,
what
evidential value or weight has to be
attached to such statement necessarily
depends on the facts and circumstances of
each particular case. What is essentially
required is that the person who records a
dying declaration must be satisfied that
the deceased was in a fit state of mind. A
certification by the doctor is essentially a
rule of caution.(Para 42 to 49)

D. Plea of alibi-When an accused takes
recourse to a defence line that when the
occurrence took place he was so far away
from the place of occurrence that it is
extremely improbable that he would have
participated in the crime, the burden would
not be lessened by the mere fact that the
accused has adopted the defence of alibi.
Such pleas need be considered only when
the burden has been discharged by the
prosecution satisfactorily. (Para 34 to 39)

The appeal is dismissed. (E-6)

List of Cases cited:

## Text

_Characters 0–39,940 of 106,761. This is a partial read: ask again with offset=39940 for what follows._

2 All. Prem Nath Yadava & Anr. Vs. State of U.P.
633
decomposed position. Thus, it can be safely
said here that the investigation of the case
appears to be tainted and not as per law.

(51) Pursuant to the aforesaid
discussion, we feel that the prosecution has
failed to bring home the guilt of the
appellant
no.2-Raj
Kumar
beyond
reasonable doubt and this is a fit case in
which he deserves the benefit of doubt.

(52) In the result, the instant criminal
appeal so far as it relates to appellant no.2Raj Kumar is allowed. The judgment and
order dated 02.12.1982 passed in Sessions
Trial No. 791 of 1981 so far as it relates to
the appellant no.2-Raj Kumar is hereby
set aside. The appellant no.2-Raj Kumar is
acquitted from the charges levelled against
him. The appellant is in jail. He shall be set
at liberty forthwith if no longer required in
any other criminal case.

(53) Appellant no.2-Raj Kumar is
directed to file personal bond and two
sureties each in the like amount to the
satisfaction of the Court concerned in
compliance with Section 437-A of the
Code of Criminal Procedure, 1973.

(54) Let a copy of this judgment and
the original record be transmitted to the
trial
court
concerned
forthwith
for
necessary information and compliance.
----------
(2022)02ILR A633
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 06.01.2022

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE VIKAS BUDHWAR, J.

Criminal Appeal No.1114 of 2015

Prem Nath Yadava & Anr. ...Appellants
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
H.S. Tiwari

Counsel for the Opposite Party:
G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973-Section 374(2) - Indian
Penal Code, 1860-Sections 302/34, 504,
506
-
U.P.
Gangster
&
Anti-Social
Activities (Prevention) Act 1986-Section
3(1)-challenge
to-conviction-incident
took place on account of old rivalry-
motive stood proved -gun shot injury
according
to
injury
report-as
per
statement of PW-1 and other facts the
appellants
could
not
produce
any
evidence to show that they are entitled
to the benefit of alibi -Investigation
officer ought to have examined the
defence witness in relation to plea of
alibi-Moreso, the dying declaration was
recorded by the police personnel-no
cross-examination
conducted
by
the
defence
on
the
question
of
dying
declaration- defects in the investigation
cannot ipso facto be a ground to hold
that the appellants are not guilty-dying
declaration cannot be merely discarded
on the ground that the same has been
recorded by the police personnel or
certificate of fitness was not obtainedthere was no clinching evidence adduced
by the appellants to hold otherwisedefects in the investigation by itself
cannot be a ground for acquittal-Thus,
trial
court
rightly
appreciated
the
evidence and the findings do not suffer
from error.(Para 1 to 60)

B.
There
may
be
highly
defective
investigation in a case. However, it is to
be examined as to whether there is any
lapse by the I.O. and whether due to such
lapse any benefit should be given to the
accused. therefore, the investigation is
not the solitary area for judicial scrutiny in
a criminal trial.(56,57)
634 INDIAN LAW REPORTS ALLAHABAD SERIES
C. Nemo moriturus praesumitur mentireNo one at the time of death is presumed
to lie. there is no requirement of law that
a dying declaration must necessarily be
made to a magistrate and when such
statement is recorded by a magistrate
there is no specified statutory form for
such
recording.
Consequently,
what
evidential value or weight has to be
attached to such statement necessarily
depends on the facts and circumstances of
each particular case. What is essentially
required is that the person who records a
dying declaration must be satisfied that
the deceased was in a fit state of mind. A
certification by the doctor is essentially a
rule of caution.(Para 42 to 49)

D. Plea of alibi-When an accused takes
recourse to a defence line that when the
occurrence took place he was so far away
from the place of occurrence that it is
extremely improbable that he would have
participated in the crime, the burden would
not be lessened by the mere fact that the
accused has adopted the defence of alibi.
Such pleas need be considered only when
the burden has been discharged by the
prosecution satisfactorily. (Para 34 to 39)

The appeal is dismissed. (E-6)

List of Cases cited:

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

2. Ram Sanjiwan Singh & ors. Vs St. of Bih.
(1996) 8 SCC 552

3. Kunwarpal @ Surajpal & ors. Vs St. of UK &
anr. (2014) 16 SCC 560

4. Inder Singh & ors. Vs St. of Raj. (2015) 2
SCC 734

5. Jagtar Singh Vs St. of Har. (2015) 7 SCC 675

6. Saddik @ Lalo Gulam Hussein Shaikh & ors.
Vs St. of Guj. (2016) 10 SCC 663

7. Raj Gopal Vs Muthupandi @ Thavakkalai &
ors. (2017) 11 SCC 120
8. Dudh Nath Pandey Vs St. of U.P. (1981) 2
SCC 166

9. Binay Kumar Singh Vs St. of Bih. (1997) 1
SCC 283

10. Jayantibhai Bhenkarbhai Vs St. of Guj.
(2002) 8 SCC 165

11. Shaikh Sattar Vs St. of Mah. (2010) 8 SCC
430

12. Jitendra Kumar Vs St. of Har. (2012) 6 SCC
204

13. Jumni & ors. Vs St. of Har. (2014) 11 SCC
355

14. Paras Yadav & ors. Vs St. of Bih. (1999) 2
SCC 126

15. Laxmi (Smt) Vs Om Prakash & ors. (2001) 6 SCC

16. Laxman Vs St. of Mah. (2002) 6 SCC 710

17. Kaliya Vs M.P. (2013) 10 SCC 758

18. St. of M.P. Vs Dal Singh & ors. (2013) 14
SCC 159

19. Gulzari Lal Vs St. of Har. (2016) 4 SCC 583

20. Amar Singh Vs Balwinder Singh & ors.
(2003) 2 SCC 518

21. C.Muniappan & ors. Vs St. of T. N. (2010) 9
SCC 567

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

1. This appeal has been preferred
against the judgment and order dated
11.09.2015 passed by Additional Sessions
Judge/Special Judge Gangster Court No. 5
Sultanpur, in Gangster Case No. 379 of
2012 (State Vs. Prem Nath and Another)
arising out of case crime no. 157/2002, u/s
302/34, 504, 506 IPC, and Section 3(1) of
the U.P. Gangster & Anti-Social Activities
(Prevention) Act 1986, P.S. Kotwali Dehat,
2 All. Prem Nath Yadava & Anr. Vs. State of U.P.
635
District Sultanpur whereby the appellants
have been convicted u/s 302 of IPC for life
imprisonment and a fine of Rs. 10,000/-
and in default of fine one year additional
imprisonment, u/s 506 IPC for 2 years
rigorous imprisonment and fine of Rs.
1,000/- each and in default of fine one
month additional imprisonment.

2. The brief facts of the case is
worded in the present appeal are that the
FIR was registered on 15.02.2002 at 08:10
a.m. on the basis of the information
provided by the complainant Sri Haivat
Ram Yadav S/o Ramaudaan alleging that
on 15.02.2002 at 7 O' clock in the morning
Sri Haivat Ram along with his brother
Latheru Ram had gone to the field to
answer the nature's call and when they
reached the garden/field then besides the
tree the appellants who are two in number
being Prem Nath Yadav S/o Mahaveer
Yadav and Sanjay Yadav S/o Ram Niwas
were hiding who are resident of the same
village where the complainant is residing.
On account of old rivalry, they suddenly
came out from the place where they were
hiding behind the tree and hurled abuses
and threatened to kill the complainant and
his brother Latheru Ram S/o Ramaudaan
Yadav and thereafter, they took out their
country made pistol and with the intention
of killing the complainant and his brother
fired on account whereof the complainant
lie down on the surface but the brother of
the
complainant
being
Latheru
Ram
sustained bullet injuries on his stomach as
well as left hand and thereafter he became
totally
unconscious
and
fell
down.
Witnessing
the
said
incident,
the
complainant started screaming for help and
on that point of time Sher Bahadur S/o
Bhagirathi and one Sri Mahendra Pratap
S/o Ram Bahore who were coming on
motorcycle came there and by that time the
villagers also came at the place of
occurrence and thereafter, both the accused
had ran away from there while waving
country made pistol in air hurling abuses
and threatening to kill all of them.

3. Consequent to the same, FIR was
lodged being case crime no. 157/2002, u/s
504, 506, 307 IPC against the appellants in
P.S. Kotwali Dehat, District Sultanpur.

4. As per the records, it reveals that
the time of the incident was somewhere at
7 O' clock in the morning on 15.02.2002
and thereafter, the informant brought the
deceased who was in injured condition, in
his house whereat number of villagers got
assembled and he waited 20-25 minutes for
the police to come, however, as nobody has
come, so the complainant accompanied the
victim and proceeded for the police station
at 07:30 in the morning in a jeep and the
distance of the police station from the
house of the complainant/victim was 8
kms. Thereafter, the FIR was lodged and
the criminal case as referred to above was
registered. It has also come on record that
the victim/deceased was put to medical
examination
on
the
same
day
i.e.
15.02.2002 at 09:20 a.m. in the police
station itself wherein the Blood Pressure
was found to be not recordable, pulse found
not palpable and the cause of injury was
found to be fire arm injury, serious in
nature. Therefore, the deceased was sent to
District Hospital at Sultanpur as his
condition was quite critical wherein he
succumbed to the armed injuries at 09:45
a.m. As the victim died so section 302 of
the IPC was also added and during the
course of the investigation however,
Section 3(1) of the U.P. Gangsters and
Anti-Social Activities (Prevention) Act,
1986 was also put to motion. S.I. Indra
Prakash Singh was handed over the
636 INDIAN LAW REPORTS ALLAHABAD SERIES
investigation.
During
the
course
of
investigation he recorded the statement of
the witness, prepared the site plans and also
recorded the statement of the deceased and
also got recorded the victim's dying
declaration. After the death of the victim,
the inquest report was prepared and all the
formalities relating to postmortem also
conducted.

5. After concluding the investigation,
the investigating officer submitted a charge
sheet against the accused Prem Nath Yadav
and Sanjay Yadav being the appellants. The
file of the appellants was committed to the
court of Session being Gangster Case No.
379 of 2012 arising out of case crime no.
157 of 2002. The learned trial court framed
charges against the appellants u/s 302/34,
504, 506 IPC and Section 3(1) U.P.
Gangster Act and Anti Social (Prevention)
Act, 1986 accused denied the charges and
claimed to trial.

6. To bring home the charges, the
prosecution produced following witnesses,
namely:-

1.
Haivat Ram Yadav
PW1
2.
Sher Bahadur Singh
PW2
3.
Dr. M.J. Sharma
PW3
4.
Genda
Lal
Tiwari
Head Constable
PW4
5.
Dr. Anil Kumar Gupta PW5
6.
S.I. Sharafat Hussain
PW6
7.
S.
I.
Indraprakash
Singh
PW7
8.
Jagdamba
Prasad
Mishra
PW8
9.
Daljit Singh
PW9

7. Apart from the aforesaid witnesses
the
prosecution
submitted
following
documents which were proved by adducing
the evidence.

1
Recovery Memo of
blood stained sand
Ex.Ka 1
2
Recovery Memo of
plain sand
Ex.Ka 2
3
Postmortem Report
Ex.Ka 3
4
Document
Showing
Information
to
Hospital
Ex.Ka 4
5
Chik FIR
Ex.Ka 5
6
G.D.
Ex.Ka 6
7
G.D. (Gangster Act)
Ex.Ka 7
8
Letter of Victim
Ex.Ka 8
9
Report of Dr. Anil
Kumar
Gupta
examining the victim
Ex.Ka 9
10
Information about the
death of the victim in
G.D. Carbon Copy
Ex.Ka 10
11
Panchayatnama
Ex.Ka 11
1216
Photographs
Letters
Specimen Seal
Ex.Ka 1216
17
Site Plan
Ex.Ka 17
18
Gang Chart
Ex.Ka 18
19
Document pertaining
to
the
cases
so
litigated between the
parties
Ex.Ka 19
20
Papers of case crime
no. 331/1998
Ex.Ka 20
21
Chargesheet
Ex.Ka 21
22Document
of
case Ex.Ka 22-
2 All. Prem Nath Yadava & Anr. Vs. State of U.P.
637
28
crime no. 175/1995,
378/2001,
356/1996,
113/1996, 133A/1986,
206/2021
28

8. Heard Sri Arun Kumar Mishra,
learned counsel for the appellants and Sri
Dhananjay Kumar Singh, learned A.G.A.
for the State-respondents. However, none
appeared on behalf of the complainant to
oppose the present appeal.

9. Learned counsel for the appellants
had made manifold submissions namely:

(a) Appellants cannot be held to
be guilty of committing of offences u/s
302/34, 504, 506 IPC and section 3(1) of
U.P. Gangster & Anti-Social Activities
(Prevention) Act, 1986, as the very basis
for putting the proceedings into motion
culminating into conviction is an FIR,
which is admittedly ante-timed.

(b) As the prosecution has failed
to discharge its onus to prove that there was
motive attributable for commission of the
offences thus, the conviction of the
appellants is thoroughly unjustified and the
appellants are entitled to be acquitted.

(c) Even, if the version of the
prosecution is taken into its face value, then
the nature of the injuries vis-a-vis the site
of the occurrence pursuant to the gun shot,
does not in any manner, whatsoever, corelate with the offences so sought to be
alleged to have

(d) Once the appellants have
substantiated their defence with respect to
alibi that they were not present at the time
when the alleged occurrence took place
while discharging their burden then in
absence of proving it even otherwise there
was no occasion to convict the appellants.

(e) The theory so propounded by
the prosecution while relying the alleged
dying declaration cannot be made the basis
to convict the appellants particularly when
the certificate of fitness has not been
obtained from the doctor and the said
statement is alleged to have been taken by
the police, which makes it doubtful in
nature.

(f) Lastly, defective investigation
itself destroys the case of the prosecution
and thus in any eventuality the appellants
ought to have been acquitted in respect of
the charges in question.

10.

Learned
counsel
for
the
appellants, while elaborating his first
submission with regard to the fact that the
FIR so lodged by the complainant being
Haivat Ram S/o Ramaudaan is ante-timed,
has sought to argue that in any case, the
time of the occurrence of the incident dated
15.02.2002 cannot be 7 O' clock in the
morning, but it is between 4-5 O' clock in
the morning. Further submission has been
made that the real story is, that the
occurrence relating to the death of the
deceased was in between 4-5 O' clock in
the morning of the unlucky day dated
15.02.2002 whereon the deceased died and
at that point of time, there was nobody
present and thereafter, the FIR was being
sought to be lodged. In order to buttress the
said submission, learned counsel for the
appellants has tried to convince this Court
with regard to the fact that it is hardly
possible that once the case of the
prosecution, narrated in the FIR, is taken
into its face value, then the sequence of the
events would match so as to implicate the
appellants, particularly, in view of the fact
638 INDIAN LAW REPORTS ALLAHABAD SERIES
that the FIR is dated 15.02.2002 and in the
statement of PW-1/ informant, it has been
mentioned that at the time 7 O' clock in the
morning, the victim along with the
deceased had gone from their house to
answer the nature's call and when they were
in the garden/field, the appellants were
alleged to have been hiding behind the tree
and when the complainant and the deceased
came within the vicinity of the tree, then
suddenly armed with the country made
pistol, the appellants, who are two in
number, started firing and pursuant thereto,
the victim/deceased sustained gunshot
injuries in stomach and in the left hand and
he fell down. According to learned counsel
for the appellants, in the statement of PW1, this much has come that from the field,
the complainant brought his brother and he
was stationed in the main door of their
house and thereafter, they waited 20-25
minutes in anticipation that police would
come, but as it did not come, so the
complainant took the victim in a jeep at
about 07:30 a.m. to the police station,
which is approximately 8 Kms away from
the house and they reached there at 08:0008:10 a.m. and got the FIR registered. In
nutshell, the argument of the counsel for
the appellants is to the extent that the entire
story is cooked up story and the FIR in
question is ante-timed, as the death itself
has occurred between 4-5 a.m, but in order
to falsely implicate the appellants, it is
being shown to be at 7 O' clock.

11. Learned A.G.A. has drawn the
attention of the Court towards the statement
of PW 5 being Dr. Anil Kumar Gupta who
has conducted the medical examination of
the deceased and according to him, in his
statement so recorded on 18.10.2011, he
has specifically stated that the injuries so
sustained by the deceased was at 07:00
AM. According to learned AGA the chain
of event supports the prosecution case as
admittedly at 07:00 a.m. of 15.02.2002
injuries were sustained by the deceased
consequent thereto he was brought to his
house and after waiting for 20-25 minutes
the
complainant
proceeded
to
take
injured/victim to the police station which
was 8 Kms away, in a jeep and the FIR was
registered at 08:10 a.m. and the medical
examination being the injury report was
also prepared at 09:20 a.m. and at 09:45
a.m, the deceased died, which is mentioned
in the postmortem report. According to the
learned AGA, there is no inconsistency or
contradiction in the statement so as to
suggest that the FIR in question is antetimed
and
merely
making
the
said
allegation without proving the same the
appellants cannot absolve themselves.

12.

We
have
considered
the
submissions so raised by the appellants
with relation to the theory, so propounded
by them relatable to FIR being ante-timed.
The learned counsel for the appellants has
also sought to argue the issue of FIR being
ante-timed, but he could not convince the
Court
as
to
how
and under
what
circumstances, the FIR is ante-timed,
merely on asking the same cannot said to
be ante-timed, as for that very purpose,
chain of events has to be proved so as to
contend that the FIR is ante-timed. This
Court while delving only the question of
ante-timed FIR finds that the chain of the
sequence of the events itself depicts that
there is no contradiction or inconsistency in
the statements of the prosecution witnesses
and the narration of the allegations in the
FIR so as to suggest that there is ante-timed
FIR as even otherwise this Court finds that
the allegation so made in the FIR itself
goes to show that at about 7 O' clock in the
morning,
on
15.02.2002,
the
victim
sustained gunshot injuries, thereafter, he
2 All. Prem Nath Yadava & Anr. Vs. State of U.P.
639
was brought to his house as already
discussed above and after waiting for 20-25
minutes, he was taken in a jeep to the
police station, wherein at 18:10 a.m. the
FIR was lodged. It is a matter of common
sense that whenever there happens any
causality or any emergent situation occurs
then, obviously, a distance of 8 Kms can
easily be covered within half an hour,
particularly in a rural area during early
morning hours. The Court further finds that
theory of the FIR being ante-timed has
been engineered by the appellants just in
order to save their skin as merely making
references to certain facts, there is nothing
on record to link anything, which could
suggest
that
the
FIR
is
ante-timed
particularly when the chain of events and
the sequence itself shows that the injures
were sustained by the injured/victim at 7 O'
clock in the morning and at 07:30, after
waiting for 20-25 minutes, he was
proceeded to police station and at 08:10
a.m, the FIR was lodged and the fact
regarding the death of the deceased at
07:00 a.m, also finds place in the statement
of PW 5, Dr. Anil Kumar Gupta. The Court
further finds that there is nothing to show
in the inquest report that the FIR is antetimed, however, rather to the contrary, the
inquest report supports the prosecution
version. Hence, there is no reason to
disbelieve or discard the conclusion drawn
by the trial court that the FIR is not antetimed.

13. The Hon'ble Apex Court in the
case of Mahraj Singh Vs. State of U.P.
reported in (1994) 5 SCC 188 in
paragraph no. 12 has observed as under:-

"12. 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 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 a
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 a 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. One of the checks is the
receipt of the copy of the FIR, called a
special report in a murder case, by the local
Magistrate. If this report is received by the
Magistrate late it can give rise to an
inference that the FIR was not lodged at the
time it is alleged to have been recorded,
unless, of course the prosecution can offer
a satisfactory explanation for the delay in
despatching or receipt of the copy of the
FIR by the local Magistrate. Prosecution
has led no evidence at all in this behalf.
The
second
external
check
equally
important is the sending of the copy of the
FIR along with the dead body and its
reference in the inquest report. Even though
the inquest report, prepared under Section
174 CrPC, is aimed at serving a statutory
function,
to
lend
credence
to
the
prosecution case, the details of the FIR and
the gist of statements recorded during
inquest proceedings get reflected in the
report. The absence of those details is
indicative of the fact that the prosecution
story was still in an embryo state and had
not been given any shape and that the FIR
came to be recorded later on after due
deliberations and consultations and was
640 INDIAN LAW REPORTS ALLAHABAD SERIES
then ante-timed to give it the colour of a
promptly lodged FIR. In our opinion, on
account of the infirmities as noticed above,
the FIR has lost its value and authenticity
and it appears to us that the same has been
'ante-timed and had not been recorded till
the inquest proceedings were over at the
spot by PW 8."

14. Yet in the case of Ram Sanjiwan
Singh and Others Vs. State of Bihar
reported in (1996) 8 SCC 552 the Hon'ble
Apex Court in paragraph nos. 9 and 10 has
observed as under:-

"9.While referring to the main
features of the prosecution case in earlier
part of this judgment we have indicated how
the assault on deceased Ramchandra Singh is
said to have been mounted by the accused
and how the said incident was allegedly
witnessed
by
the
eye-witnesses.
To
recapitulate, the prosecution case hinges on
the eye-witness account of P.W.1 Rameshwar
Prasad, P.W.3 Gazraj Singh, P.W.4 Shankar
Singh and P.W.5 Sunil Singh. P.Ws.1 and 3
were the body guards of the deceased while
P.W.4 was his nephew and P.W.5, the first
informant, was his grandson. We have been
taken through the evidence of these witnesses.
We may state that evidence of these eyewitnesses has been relied upon by the Trial
Court as well as by the High Court by giving
cogent reasons. Having given our anxious
consideration to the said evidence once again
we find that their evidence has well stood the
test of cross examination and was rightly
accepted by both the aforesaid courts. These
witnesses have supported the prosecution
case in all material particulars. The picture
which has been projected from this eyewitness account is to the effect that on 24th
May 1972 at about 6.15 p.m. in front of the
co-operative
store
in
Sakchi
Bazar,
Jamshedpur while the deceased who was
looking after that store was sitting on the
western side of the verandah and was having
a shave from a barber, he became the target
of pistol shots and number of bullets were
pumped in his body and in this assault all the
present appellants are clearly indicted by the
eye-witness account. It is also shown that the
eye-witnesses who were standing on the
eastern side of the verandah rushed on spot
on witnessing this assault the accused who
had come in company with other accused
who were ultimately acquitted and for whose
involvement we may not say anything further.
Then the deceased in a profusely bleeding
condition was taken to the Tata Memorial
Hospital by P.W.4 Shankar Singh and
informant Sunil Singh P.W.5. The Police SubInspector incharge of Sakchi Police Station
who had already received information
regarding the firing in Sakchi Bazar had in
the meantime rushed to the hospital where
the deceased was removed and in the hospital
at the earliest opportunity by about 7.00 p.m.
he recorded the FIR given by the informant
P.W.5 Sunil Singh. It has to be kept in view
that the incident had taken place by about
6.15 in the evening and thereafter the
deceased profusely bleeding had to be taken
in a taxi after getting a taxi from the taxi
stand and on reaching the hospital the
deceased was examined by Dr. Saroj Kumar
Das P.W.33 at 6.42 p.m. and he was declared
'Brought dead'. The doctor had found nine
bullet injuries on the person of the deceased.
Under these circumstances the evidence of
P.W.44 Prayag Narain who was Office-Incharge of Sakchi Police Station has to be
appreciated. He had broadly supported the
prosecution version in connection with the
prompt recording of FIR at the hospital . His
evidence fully supports the version of
complainant P.W.5 Sunil Singh. Prayag
Narain P.W.44 stated that from April 1971 to
June 1973 he was Officer In-charge, Sakchi
Police Station and on 24th May 1972 at
2 All. Prem Nath Yadava & Anr. Vs. State of U.P.
641
about 6.20 p.m. at the Police Station he got a
telephonic message that there had been firing
in the Sakchi Bazar which had led to chaos.
He made a station diary about it and then left
the police station at about 6.30 p.m. and
reached near the TISCO Co-operative Store
which he found deserted although the store
was open. He found lot of blood on the
verandah and an upturned chair besmeared
with blood. He also found a small 'katori'
meant for shaving and a brush there. He left
Ranjit Singh, Sub-Inspector of Police to
guard that place and himself proceeded at
6.55 p.m. to the Tata Memorial Hospital
where he met Sunil Singh and got recorded
the 'fardbeyan' of Sunil Singh by Lala Prasad
Srivastava. It has to be appreciated that when
Dr. Das P.W.33 declared that the deceased
was brought dead in the hospital it was quite
natural on the part of the police witness
P.W.44 to enquire from the complainant
Sunil Singh P.W.5 as to how the incident bed
happened and as Sunil Singh had by that time
came to know that his grandfather was
already dead he would naturally give his
version about how the incident occurred
without being required to further atrend upon
the deceased. Under these circumstances
recording of the 'fardbeyan' at 7.00 p.m. is
rightly held by both the courts below a
prompt recording of the First Information
Report regarding the incident. In this
connection we may also note one strong
exception taken by learned senior counsel
Shri Rajender Singh about the recording of
FIR. He submitted that in fact FIR was
recorded two days' late, that is, on 26th May
1972 because by that time a copy of the said
FIR is said to have reached the Court of
Judicial Magistrate, 1st Class and, therefore,
the alleged recording of the FIR at 7.00 p.m.
in the hospital is a concocted version and an
attempt is made by the prosecution to antetime and ante-date the FIR. It is not possible
to agree with this contention for the simple
reason that nothing substantial could be
brought out in the cross examination either of
Sunil Singh P.W.5 or the witness Prayag
Narain P.W.44 to support such a contention.
That apart, there are available on record
positive checks by way of contemporaneous
record indicating that the FIR must have
been recorded by 7.00 p.m. in the hospital. It
is the evidence or Prayag Narain P.W.44 that
after the 'fardbeyan'was taken down at the
hospital at 7.00 p.m. a formal FIR was
registered immediately thereafter in the
Police station and it is in evidence that the
said case was registered as Crime Case
No.15/72. The evidence of witness Prayag
Narain P.W.44 further shows that after he
reached the hospital and after he recorded
the 'fardbeyan' he went to the morgue and he
got performed the inquest Exh.4 over the
dead body in presence of P.W.9 Bharat Singh
Mohan Singh P.W.10 and Saatan Mukhi
P.W.23. He found that the beard of the dead
body was partly shaved. So far as the inquest
report is concerned it is at Page 518 of the
Paper Book. It is in form No.38 and in the
reference column Sakhi Police Station Case
No.15 of 24.5.72 under Sections 148, 149 and
302 IPC and Sections 25(a) and 27 of the
Arms Act is clearly mentioned. This shows
that by the time the inquest report was
prepared in the morgue of the hospital itself
Criminal Case No.15 was already got
registered in the police station on the basis of
'fardbeyan' of P.W.5 Sunil Singh. This is one
positive check of contemporaneous nature
which shows that 'fardbeyan' had seen the
light of the day prior to the preparation of the
inquest report itself in the morgue of the
hospital on that night.

10. The second positive check for
lending
credence
to
the
'fardbeyan'
recorded at the hospital is supplied by
another evidence of contemporaneous
nature being seizure memo which is found
642 INDIAN LAW REPORTS ALLAHABAD SERIES
at page 538 Of the Paper book. Evidence of
witness prayag Narain P.W.44 shows that
from the hospital he had gone to the site
and had got the articles lying on the scene
of offence seized. That seizure list Exh.3
also clearly refers to Sakchi Police Station
Case No.15 dated 24.5.72 on the same lines
on which the inquest report refers to the
police case and the nature of the offences
for which the case was registered. The time
and date of seizure is shown to be 24th May
1972 at 12.30 o'clock at night. Nothing
could be alleged against the preparation of
the seizure list at that time. This also
indicates that investigation which was
triggered off pursuant to the recording of
the FIR had resulted in all these subsequent
steps during the course of investigation on
the night of 24th May itself and were taken
out pursuant to the recording of the FIR,
first 'fardbeyan' at the hospital and then the
formal FIR at Sakchi Police Station.
Consequently it could not be said that the
FIR was ante-timed or that it was not
recorded as it was tried to be suggested by
the prosecution. If it was registered only on
26th May, 1972 as suggested by the
learned senior counsel for the appellants
all the steps taken by the police pursuant to
the recording of the FIR in the evening and
night of 24th May, 1972 and which have
clearly referred to the recording of the FIR
and registering of the Criminal Case No.15
of 24.5.72 at the police station on the
evening of that day itself would not have
transpired at all. It was then submitted that
this FIR had reached the Magistrate's
Court only on 26th May 1972. It is easy to
visualize that after all necessary immediate
steps were taken after the recording of the
FIR on the evening of 24th May 1972 if the
FIR was sent on the next day to the
Magistrate's Court it could not be said that
it was in any way delayed. The fact that it
was placed before the Magistrate on 26th
May would only indicate that the clerk
concerned must have brought it to the
notice of the Magistrate on 26th May 1972
but that would not necessarily mean that
copy of the FIR had not reached the
Magistrate's office on the next day.
Consequently it must be held that the First
Information
Report
was
promptly
registered at the Police station hot on the
heels of the happening of the incident on
the evening of 24th May at Sakchi Bazar
and
that
FIR
reflected
almost
a
contemporaneous account of what had
taken place on spot. That recitals in this
FIR clearly indicate that an assault was
mounted on deceased Ramchandra Singh
by accused including the present appellants
nos.2 and 5 in Criminal Appeal No.348 of
1985. It had also indicate the involvement
of appellants in Criminal Appeal No.387 of
1985 original accused no.10 Ram Sanjiwan
Singh who is said to have fired pistol shot
in air to scare away the public. It is true
that FIR did not mention presence of
accused no.6 Ganesh Gwala. But this
circumstance which was heavily relied
upon by the learned senior counsel for the
appellants cannot advance the case of the
accused any further for the simple reason
that the FIR itself mentioned that there
were two other persons whose names the
first informant Sunil Singh did not know.
This version of his in the 'fardbeyan' was
fully supported by him at the stage of trial
and nothing substantial could be brought
out in his cross examination to shake this
version. Consequently it must be held that
the FIR fully corroborated the eye- witness
account deposed to by first informant Sunil
Singh P.W.5 and other eye-witnesses."

15. The Hon'ble Apex Court in the
above
noted
judgments
has
clearly
observed that in order to hold the FIR to be
ante-timed or not, it is to be proved beyond
2 All. Prem Nath Yadava & Anr. Vs. State of U.P.
643
doubt and merely on asking, the same
cannot
be
held
to
be
ante-timed,
particularly when the chain/sequence of the
events itself link so as to suggest that there
is no possibility of the FIR to be antetimed. As discussed above, the Court finds
its inability to subscribe the argument of
the counsel for the appellants that the FIR
is ante-timed.

16. Learned counsel for the appellants
has next contended that there was no
motive behind commission of the offence
culminating into conviction and thus, the
appellants are entitled to be acquitted.
Learned counsel for the appellants have
though made an argument on the said issue
but nothing has been brought on record to
substantiate the same. On the other hand,
learned AGA has invited the attention of
this Court towards the discussion made by
the trial court while giving specific finding
that there was enmity and rivalry between
the parties, which became the basis of
commission of offence.

17. We have heard the argument of
the appellants as well as learned AGA and
perused the record in question and we find
that it has come on record that the father of
the complainant and the deceased had been
inherited certain properties from the
maternal side of his mother as per the
statements available on record of the
appellant no. 1 being Prem Nath Yadava,
who was related to the father of the
complainant from the maternal side as
complainant's grandfather (maternal) were
5 brothers, one of them, whose son was the
applicant no. 1 and when certain landed
property was inherited by father of the
complainant, then the same became eyesore
of Prem Nath Yadav being appellant no. 1.
It has also come on record that the father of
the appellant no. 1 being Sri Mahaveer, was
murdered and criminal proceedings for the
offence of murder was lodged and
prosecuted against the deceased, Ram
Sumiran and the complainant and others,
which was pending at that point of time and
thereafter, the conviction was made while
punishing
with
7
years
rigorous
imprisonment. One of the issues, which
also assumes much importance, is relatable
to the fact that the murder of the father of
the appellant no. 1 being Mahaveer was
committed in the year 2001 and the
incident relatable to lodging of the FIR for
committing offence against the appellants
is of the year 2002, meaning thereby, it is a
clear cut case of motive being attributed to
the appellants, as it is a matter of common
knowledge that whenever a person receives
a blow on account of death of his blood
relative, then obviously enmity starts
residing
in
the
heart.
Meticulously
analyzing the said issue, the trial court has
come to the conclusion that merely because
conviction was done in the year 2008 and
the same will not matter at all, as what is to
be seen is the fact that the father of the
appellant was murdered in the year 2001
and the brother of the complainant was
murdered in the year 2002, which is within
a period of one year approximately.

18. In the statement, so made u/s 233
(2) Cr.P.C, the appellants themself have
come up with the stand that there is a
rivalry with the victim/complainant and
once the same being the position coupled
with the surrounding factors, the entire
theory so sought to be propounded by the
learned counsel for the appellants that
there were no motive assigned behind the
said offence, is patently misconceived, as
this Court has no hesitation to accept the
view taken by the court below and there is
no reason to disbelieve or discard the
same.
644 INDIAN LAW REPORTS ALLAHABAD SERIES

19. The Hon'ble Apex Court in the
case of Kunwarpal @ Surajpal And Ors.
Vs. State of Uttarakhand And Anr.
reported in 2014 (16) SCC 560 in
paragraph no. 16 has observed as under:-

"According to the complainant
there was litigation between them and the
accused persons leading to enmity. PW3
Atmaram has also stated that there was
litigation between them and it culminated
in the occurrence. Animosity is a double
edged sword. While it can be a basis for
false implication, it can also be a basis for
the crime [Ruli Ram & Anr. Vs. State of
Haryana (2002) 7 SCC 691; State of
Punjab Vs. Sucha Singh & Ors. (2003) 3
SCC 153]. In the instant case there is no
foundation established for the plea of false
implication advanced by the accused and
on the other hand evidence shows that
enmity has led to the occurrence. The
conviction and sentence imposed on the
appellants is based on proper appreciation
of evidence on record and does not call for
any interference."

20 . In the case of Inder Singh And
Ors. Vs. State of Rajasthan reported in
2015 2 SCC 734 the Hon'ble Apex Court in
paragraph no. 19 has observed as under:-

"In that view of settled law, the
facts of the present case as alleged in the
FIR and as proved in the court leave no
manner of doubt that the group of persons
who chased deceased no.1-Inder Singh and
caused his death and thereafter chased,
surrounded and caused death of three more
persons besides causing grievous injuries
to the informant-Amar Singh was an
assembly of five or more persons rightfully
deserving to be designated as an unlawful
assembly because by its action it showed
that its common object was to commit
offence. The subsequent acts clearly show
that the unlawful assembly carried out its
common object of committing serious
offence of murder of four persons and
grievous injuries to the informant. This
Court, therefore, finds that the courts
below committed no error in applying
Section 149 of the IPC and convicting the
members of the unlawful assembly for
offences under Sections 302 and 307 of the
IPC (with the aid of Section 149 IPC).
Some argument was advanced on there
being lack of any clear motive but that is
not at all necessary or material when the
offences have been proved by clear and
cogent evidence including eye-witnesses."

21. In the case of Jagtar Singh Vs.
State of Haryana reported in 2015 7 SCC
675 the Hon'ble Apex Court in paragraph
nos. 17 and 20 has observed as under:-

"17.Now so far as the issue
relating
to
existence
of
motive
is
concerned, we consider it apposite to
reproduce the finding of the High Court on
this issue.

"There
also,
Jagtar
Singh
appellant is not on firmer footing.