# Raju (In Jail) v. State of U.P

- **Citation:** (2023) 4 ILRA 993
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-19
- **Case number:** Criminal Appeal No. 4611 of 2013
- **Bench:** Arvind Kumar Mishra-I, Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/raju-in-jail-v-state-of-u-p-50064
- **Pages:** 12

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 302 & 201 - Murder - By
impugned order, sentenced to rigorous
imprisonment for life - The Code of
Criminal Procedure, 1973 - Section 313 -
Appeal
against
conviction
-
On
11.10.2012, informant (PW.1) was in his
house
along
with
his
brother
&
anr.person, accused came over there, and
asked his son to accompany him for
sharpening
edges
of
'daranti'
-
Informant's son departed along with
accused but he did not return whole night
- The next day accused was enquired
about whereabouts of deceased, he told
that deceased and he himself consumed
liquor and in order to commit theft of
motorcycle, cajoled him and cut his neck
and threw him away in the canal and
concealed motorcycle in sugar-cane field -
Charges
against
accused
beyond
all
reasonable doubt - Validity - Held, the
F.I.R. becomes doubtful regarding specific
timing of lodging of report, and as to who
dictated F.I.R. and person who wrote it -
Foundation of prosecution case loses
significance, thus rendering F.I.R. ante
time - In the instant case based upon
testimony and circumstance, prove that
F.I.R. is ante time - Factual aspect is
obvious as per testimony of P.W.-1 that
F.I.R. was lodged after preparation of
inquest report - Prior to lodging of report,
the interference and indulgence of police
personnel,
investigating
officer
is
apparent on record - All relevant aspects
and fact of writing of FIR, timing of
preparation of inquest report and factum
of point of false implication of accused
have not been properly appraised by lower
994 INDIAN LAW REPORTS ALLAHABAD SERIES
court vis-a-vis the testimony on record,
facts
and
circumstances
of
case
-
Impugned order set aside. (Para 2, 3, 24,
36, 44, 45, 47)

Appeal is allowed. (E-13)

## Text

_Characters 0–39,979 of 40,917. This is a partial read: ask again with offset=39979 for what follows._

4 All. Raju Vs. State of U.P.
993
and a reasonable compensation is awarded
to the victim, the ends of justice would be
served.

37. In view of above, the appeal is
partly allowed. In judgment and order dated
29.08.1995 passed by VIIIth Additional
Sessions Judge, Mathura, in Sessions Trial
No. 12 of 1992, State of U.P. Vs. Gopal
Dass and Others, the sentence is hereby
modified to the period already undergone
by the appellants and the fine imposed is
raised from Rs.2,000/- to Rs.15,000/- to be
paid by each accused, 50% of which shall
be paid to the injured, Chailbihari Sharma.

38. The appellants, Lala, Munna and
Ravi, each shall deposit the aforesaid
amount of fine within two months from the
date of this judgement. The trial court shall
pay 50% of the amount of fine deposited to
the injured Chailbihari Sharma and in case
of his death, to his successors after proper
identification. In case the appellants do not
deposit the fine within the aforesaid period,
they will have to undergo the sentence
awarded by the trial court.

39. Let a copy of the judgement along
with the record of the case be sent to the
court
concerned
for
execution
of
punishment as modified by the order
passed in this criminal appeal.
----------
(2023) 4 ILRA 993
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 19.01.2023

BEFORE

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

Criminal Appeal No. 4611 of 2013

Raju ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Rajendra Kr. Tripathi, Sri Anil Kumar
Dubey, Sri Narendra Kumar, Sri Rabindra
Bahadur Singh, Sri N.K. Singh

Counsel for the Opposite Party:
G.A.

Criminal Law - Indian Penal Code, 1860 -
Sections 302 & 201 - Murder - By
impugned order, sentenced to rigorous
imprisonment for life - The Code of
Criminal Procedure, 1973 - Section 313 -
Appeal
against
conviction
-
On
11.10.2012, informant (PW.1) was in his
house
along
with
his
brother
&
anr.person, accused came over there, and
asked his son to accompany him for
sharpening
edges
of
'daranti'
-
Informant's son departed along with
accused but he did not return whole night
- The next day accused was enquired
about whereabouts of deceased, he told
that deceased and he himself consumed
liquor and in order to commit theft of
motorcycle, cajoled him and cut his neck
and threw him away in the canal and
concealed motorcycle in sugar-cane field -
Charges
against
accused
beyond
all
reasonable doubt - Validity - Held, the
F.I.R. becomes doubtful regarding specific
timing of lodging of report, and as to who
dictated F.I.R. and person who wrote it -
Foundation of prosecution case loses
significance, thus rendering F.I.R. ante
time - In the instant case based upon
testimony and circumstance, prove that
F.I.R. is ante time - Factual aspect is
obvious as per testimony of P.W.-1 that
F.I.R. was lodged after preparation of
inquest report - Prior to lodging of report,
the interference and indulgence of police
personnel,
investigating
officer
is
apparent on record - All relevant aspects
and fact of writing of FIR, timing of
preparation of inquest report and factum
of point of false implication of accused
have not been properly appraised by lower
994 INDIAN LAW REPORTS ALLAHABAD SERIES
court vis-a-vis the testimony on record,
facts
and
circumstances
of
case
-
Impugned order set aside. (Para 2, 3, 24,
36, 44, 45, 47)

Appeal is allowed. (E-13)

(Delivered by Hon'ble Arvind Kumar
Mishra-I, J.
&
Hon'ble Saral Srivastava, J.)

1. Heard Sri R.B. Singh and Sri N.K.
Singh, learned counsel for the appellant, Sri
A.N. Mullah, learned A.G.A. for the State
and perused the material brought on record.

2. The instant appeal has been
preferred against the judgement and order
dated 20.08.2013 passed by the Additional
Sessions Judge, Court No. 10, Bareilly, in
Session Trial No. 1143 of 2012 (State of
U.P. Vs. Raju), arising out of Case Crime
No.1092 of 2012, under Sections - 302, 201
I.P.C., Police Station - Baheri, District -
Bareilly whereby the appellant has been
sentenced
to
undergo
rigorous
imprisonment for life under Section 302
I.P.C., coupled with fine Rs. 20,000/-, in
default of payment of fine, one month
additional simple imprisonment and three
years rigorous imprisonment under Section
- 201 I.P.C. coupled with fine Rs.5,000/-, in
default of payment of fine, two months
additional simple imprisonment. All the
sentences were ordered to run concurrently.

Facts of this Appeal:-

3. Factual matrix of this case as
reflected from the record proceeds on line
that the informant of this case, Natthu Lal
(P.W.-1), father of deceased- Yashpal
lodged a written report at Police Station -
Bahedi on 12.10.2012 at 01:10 p.m. against
the appellant with description that the
informant is resident of Village - Bhurha
Bahadurpur within Police Station - Baheri
Bareilly. While he was sitting in his house
on 11.10.2012 along with his brother Prem
Shankar and Rakesh son of Vindravan
around 03:00 p.m., Raju son of Dori Lal
Gangwar came over there, called his son
Yashpal and asked to accompany him to
Bhurhiya for sharpening edges of ''daranti'
(sickle). Informant's son took four ''daranti'
(sickle) with him and departed along with
accused on motorcycle U.P. 25 AF 1284,
but he did not return whole night. Search
was made for the whereabouts of Yashpal
but to no avail. The next day at 10:00 a.m.,
Raju was seen coming towards the village,
when he was enquired about whereabouts
of Yashpal, he adopted dilly dallying
tactics and tried to avoid the query but
upon pressure being exerted by the
villagers, Raju told that Yashpal and he
himself consumed liquor during night at
Uganpur and in order to commit theft of
motorcycle cajoled him somewhere in
between Makroi and Dadyabojh and cut his
neck with the ''daranti' and threw him away
in the canal and concealed the motorcycle
in the sugar-cane field of Moti Ram.

4.

Upon
such
disclosure,
the
informant along with others took the
accused-appellant to the place where the
dead
body
of
Yashpal
was
lying.
Consequently, a report was written and got
lodged at the Police Station - Bahedi, the
same is Ext. Ka-1. Relevant entries
whereof were made in the concerned Check
F.I.R. (Ext. Ka-6) at Case Crime No. 1092
of 2012, under Sections - 302, 201 I.P.C. at
Police Station - Bahedi. On the basis of the
same, case was registered against the
accused-Raju at Serial No. 29 of the
General
Diary
concerned
of
date
12.10.2012 at 01:10 p.m. at aforesaid
police station. The copy of concerned G.D.
4 All. Raju Vs. State of U.P.
995
is Ext Ka-7. Both these papers have been
proved by Constable Jhajhan Lal (P.W.-5).
Consequently, the investigation ensued and
the same was entrusted to S.H.O. Sunil
Kumar Pachori (P.W.-6).

5. The Inspector Devendra Kumar
Tyagi PW-4 prepared the inquest report
under supervision of the investigating
officer on 12.10.2012 and has facilitated
for sending the dead body to the mortuary
at Bareilly and has proved the inquest
report (Ext. Ka-2). Bare perusal of the
inquest report is indicative of fact that
preparation of inquest report commenced at
02:05 p.m. on 12.10.2012 and completed at
04:00 p.m. on 12.10.2012.

6. The relevant papers were also prepared
for
sending
the
body
for
postmortem
examination and the relevant papers have been
proved by P.W.-6 as Ext. Ka-14, Ext. Ka-15,
Ext. Ka-16, Ext. Ka-17 and Ext. Ka-18, the same
are challan dead body, photonash/dead body,
letter to C.M.O., letter to R.I. and specimen seal,
respectively. As the investigation proceeded, the
prosecution witness Dr. T.S. Arya conducted
postmortem examination on the dead body of the
accused on 13.10.2012 at 01:00 p.m. He has
noted the following ante mortem injuries on the
dead body of Yashpal son of Naththu Lal:-

1. Incised wound 9 cm x 2 cm x
trachea deep, 6 cm below chin 9 cm below right
ear, 7 cm below left ear, margin sharp and
clean.

2. Multiple abrasion 6 cm x 1 cm on
left side face in front of left ear.

7. Cause of death was stated to be shock
and haemorrhage as a result of incised wound on
the neck.

8. Duration was described 1-1/2 to 2
days. The postmortem examination report
has been proved by the doctor witness as
Ext. Ka-13.

9. Since the investigation was
underway and the accused was in the
custody of the police, he was taken to the
place near side passage of the canal and a
motor cycle Bajaj Platina black colour
numbering U.P. 25 AF 1284 was recovered
on the pointing of the accused from the
sugar-cane field of Moti Ram, a recovery
memo was prepared on the spot, which has
been proved as Ext. Ka-3. Since the
investigation
proceeded
further,
the
Investigating
Officer
recovered
blood
stained ''daranti'/sickle on the pointing out
of the accused from the left side passage of
canal in the field of Gurmeet Singh from
the bushes under blueberry tree, the same
was
taken
into
possession
by
the
investigating officer and a memo of
recovery
of
daranti/sickle
was
also
prepared, which is Ext. Ka-4. Apart from
that, the investigating officer arrived at the
place of occurrence and collected simple
soil and blood stained soil from the spot
and kept it in two seperate containers and
sealed it up and prepared a memo of the
same, which memo is Ext. Ka-5. The
investigating officer has prepared site-plan
of the place of occurrence (Ext. Ka-8).
Apart from that, the site plan of the place of
recovery of ''daranti' was also made which
is Ext. Ka-9. Similarly, the site plan of the
place of recovery of motor cycle has been
proved as Ext. Ka-10 by the investigating
officer.

10. It is relevant to mention that once
again after preparation of the recovery
memo of motor cycle (Ext. Ka-10), the
investigating officer again proceeded to
that spot and prepared site-plan of place of
recovery of motor cycle as Ext. Ka-11.
Therefore, two site-plans pertaining to the
996 INDIAN LAW REPORTS ALLAHABAD SERIES
same
spot
appear
on
record.
The
investigating
officer
also
recorded
statement
of
various
witnesses.
The
daranti/sickle allegedly recovered at the
pointing out of the accused was sent for
'chemical examination' along with letter.
We neither come across any such report
submitted by any chemical analyst of the
forensic laboratory nor do any paper
purporting to be a report, as such, as been
brought and placed on record by the
prosecution.
After
completing
the
investigation, the investigating officer filed
the charge sheet (Ext. Ka-12) against the
accused at aforesaid case crime number.

11. Pursuant thereto, proceedings of
the case were committed to the court of
Sessions from where it was transferred for
conduction of the trial and disposal to the
aforesaid trial court of Additional Sessions
Judge, Court No.10, Bareilly who in turn
heard both the sides on point of charge and
was prima-facie satisfied with the case
against
the
accused-appellant,
consequently, he framed charges under
Sections 302 and 201 I.P.C.

12. Charges were read over and
explained to the accused-appellant in hindi,
who abjured charges and opted for trial.

13. Consequently, the prosecution
was required to adduce its testimony. The
prosecution produced in all 8 witnesses.
P.W.-1 is the informant- Natthu Lal. P.W.-
2 Prem Shankar and P.W.-3 Nand Ram are
the witnesses of fact. P.W.-4 is Inspector
Devendra Kumar Tyagi, who prepared the
inquest report under supervision of the
investigating officer and has proved the
same as Ext. Ka-2. He has also proved
memo of simple mud and clay mud and has
also
proved
recovery
memo
of
''daranti'/sickle. Constable Clerk Jhajhan
Lal (P.W.-5) has proved relevant entries of
the contents of the written report (Ext. Ka1) noted by him in the concerned check
F.I.R. and the relevant entry made in the
concerned
general
diary
of
date
12.10.2012. S.H.O. Sunil Kumar Pachori
(P.W.-6) has conducted investigation into
the matter and has narrated the entire length
of his investigation and has proved apart
from various papers filing of charge sheet
against the accused. P.W.-7 Dr. T.S. Arya
has conducted postmortem examination on
the body of the deceased and has proved
the same as Ext. Ka-13. P.W.-8 Pati Ram is
the scribe of the written report.

14. Thereafter, evidence for the
prosecution was closed and the statement
of accused was recorded under Section -
313 Cr.P.C., wherein he has stated that on
account of enmity, the village pradhan has
falsely implicated him in this case and he is
innocent. No evidence whatsoever was led
by the defence.

15. The learned Additional Sessions
Judge, Court No.10, Bareilly , after
appraisal of facts and merit of the case and
the evidence on record, vide his judgment
and order of conviction dated 28.08.2013
imposed sentence under Sections - 302, 201
I.P.C. and sentenced the accused to
rigorous imprisonment for life along with
fine under Section - 302 I.P.C. and three
years rigorous imprisonment along with
fine under Section - 201 I.P.C. In case of
default in payment of fine he was directed
to suffer additional imprisoment, as above.

16. Consequently, this appeal.

Argument by the Defence :-

17. Contention by the learned counsel
for the appellant proceeds on line that
4 All. Raju Vs. State of U.P.
997
appellant is an innocent young man and has
been falsely implicated on account of
village party bandi and due to mischief
played by the Village Pradhan, who
exploited the situation to his advantage in
collusion with the police personnel of the
concerned Police Station - Bahedi, District
- Bareilly and got scribed a false report. He
being Gram Pradhan of the village, the
report was in fact written at the dictation of
the police, which fact is admitted to the
prosecution witnesses of fact. On such
specific testimony emerging in cross
examination of the informant-P.W.-1, the
prosecution
neither
re-examined
the
witness, nor did it declare him hostile
witness.

18. Above particular testimony being
established and admitted position and part
of testimony of P.W.-1 Natthu Lal- the star
witness was-not appreciated, discussed and
taken into consideration by the trial court.
It being a case based upon circumstantial
evidence, all links in the chain of
circumstances are shattered and the chain
cannot be said to be complete and
conclusively established pointing to the
guilt of the accused. On the contrary, facts
and circumstances qua the testimony of the
prosecution witnesses are pointing to the
innocence of the accused.

19. Learned counsel for the appellant
read out various parts of the testimony of
P.W.-1, P.W.-2. P.W.-3 and P.W.-8 and
claimed that the village pradhan being
highly motivated and inimical, has master
minded involvement of the accused in this
case in collusion with the police, he had
specific reason and cause to settle score
against the accused because the accused
had supported candidature of another
person, who was contesting election of the
village pradhan.

20. It is established law that in cases
based upon circumstantial evidence, the
various links in the chain of circumstances
should be complete, consistent and not
leaving any room for doubt or for creating
any situation, which would work in favour
of hypothesis of innocence of the accused.
In this case, the various links in the chain
of circumstances are wholly inconsistent
and the chain of circumstances is not
complete.

21. Learned counsel concluded by
claiming that the testimony is full of
embellishment
and
improvement.
The
F.I.R. is ante time and the very fact has
been
disclosed
by
none
other
than
informant P.W.-1 himself and he has stated
in so many words that the report was
lodged after the inquest had been prepared
by the police. It is noticeable that inquest
report itself is reflective of fact that the
preparation of inquest commenced at 02:05
p.m. on 12.10.2012 and completed at 04:00
p.m. That being the case, the F.I.R. was
lodged after 04:00 p.m. after completion of
the inquest report. Once the F.I.R. becomes
ante time, the entire prosecution case
becomes highly doubtful and the whole
prosecution story falls flat and it would not
inspire confidence.

Reply by the State :-

22. While, replying to the aforesaid
contention, Sri A.N. Mulla, learned A.G.A.
has submitted that insofar as the factum of
last seen theory is concerned, the same has
been properly and duly proved and
established and on this point, the testimony
of the prosecution witnesses of fact is
unflinching. Insofar as the statement of
P.W.-1 on point of scribing the report (Ext.
Ka-1) is concerned, the same should be
under
circumstances
taken
as
stray
998 INDIAN LAW REPORTS ALLAHABAD SERIES
statement, which does not fall in queue
with the flow of testimony when read as a
whole. The factum of recovery of weapon
of assault has been duly and properly
proved by the prosecution witnesses and
there is no doubt regarding the recovery of
weapon of assault.

23. The recovery of ''daranti' / sickle
was made at the pointing out of accused and
the motorcycle bearing No. U.P. 25 AF
1214 was also recovered at the pointing out
of the accused. Apart from that, the dead
body was also recovered at the pointing out
of the accused. The very motive for
committing the offence was to the import
that the accused was greedy for grabbing
motorcycle of the deceased and for that
specific reason he caused the occurrence by
causing cut blow with daranti on the neck of
the deceased Yashpal. The doctor who
conducted postmortem examination on the
body of Yashpal has noted the injury as
incised wound 9 cm x 2 cm x trachea deep,
6 cm below chin 9 cm below right ear, 7 cm
below left ear, margin sharp and clean on
the neck of the deceased. Apart from that,
the investigation has been fair. There is no
reason as to why the police was interested in
falsely involving the appellant and the I.O.
had no bias against the accused. The report
was properly lodged at 01:10 p.m. on
12.10.2012 and has been proved by P.W.-5
Constable Jhajhan Lal. To claim that the
various links in the chain of circumstances
are not complete is not proper, however, the
evidence adduced by the prosecution shows
otherwise. The prosecution has proved its
case beyond reasonable doubt.

Moot point for determination of
Appeal :-

24. In the light of rival submission
and the claim raised, the following question
crops up for our consideration, as to
whether the prosecution has been able to
prove satisfactorily the charges against the
accused-appellants beyond all reasonable
doubt ?

Discussion on merit of the case :-

25. We gather from the perusal of the
contents
of
that
F.I.R.,
the
alleged
departure of the deceased- Yashpal from
his house in company with the accused and
the consequent recovery of his dead body
on the very next date (12.10.2012). It
proceeds
with
allegation
that
on
11.10.2012, the informant Natthu Lal
(P.W.-1) was sitting along with Prem
Shankar and Rakesh son of Vrindavan at
his home. It was around 03:00 p.m., when
Raju son of Dori Lal Gangwar of his
village came over there, called his son
Yashpal and asked to accompany him to
Bhurhiya (a place for marketing) for
sharpening the edges of ''daranti'/sickle.
The informant's son (deceased-Yashpal)
took with him four sickles/'daranti' and
drove away along with the accused on his
motorcycle U.P. 25 A.F. 1284, however his
son did not return at the fall of night. The
informant made search for his son, but to
no avail.

26. On 12.10.2012, Raju (the
accused) was seen coming towards the
village, when he was intercepted and asked
about whereabouts of his son, a number of
villagers had gathered on the spot. They
exerted pressure upon Raju, when Raju told
them that he and Yashpal both consumed
liquor at Uganpur in the night and he
nurtured greed for motorcycle of Yashpal
and wanted to grab it. Therefore, after
cajoling Yashpal, he took him to some
place in between 'Makroi' and 'Dadyabojh'
and
cut
his
(Yashpal)
neck
with
4 All. Raju Vs. State of U.P.
999
''daranti'/sickle and threw away him in the
canal and concealed the motorcycle in the
sugar-cane field of Moti Ram.

27. Upon such disclosure, the
informant along with the accused and
others went upto the spot as told by Raju,
where the informant saw the dead body of
his son lying by the side of canal. The
F.I.R. proceeds on to say that the informant
went to the police station leaving behind
several persons on the spot and made
request for report being lodged and action
taken. Insofar as this description in the first
information
report
(Ext.
Ka-6)
is
concerned, the same primarily discloses
two specific facts, one being that in the
evening of 11.10.2012 at about 03:00 p.m.,
accused Raju accompanied the deceased-
Yashpal on his motorcycle U.P. 25 AF
1284 but he did not return back home in the
night. The very next day (i.e. 12.10.2012)
upon disclosure being made regarding the
occurrence that the dead body had been
thrown away in the canal, the dead body
was recovered by the side of the canal. This
report was lodged at the police station at
01:10 p.m. on 12.10.2012, the same was
registered at Case Crime No. 1092 of 2012,
under Sections - 302, 201 I.P.C. at Police
Station - Bahedi, District - Bareilly. The
description so made in the F.I.R. requires
our
appraisal
and
scrutiny
qua
the
testimony on record and the attendant facts
and circumstances of the case.

28. Argument advanced by the
defence is to the import that the entire
case is false. The ''pradhan' of the village,
who incidentally is Pati Ram (P.W.-8) is
the scribe of the report and he has
managed the things by falsely involving
the appellant in this case need be
examined as such. Several arguments
have been advanced and piece of
evidence has been read out in support of
the claim.

29. Now we may proceed with the
testimony of prosecution witnesses of
fact as has been produced by the
prosecution and cross examined by the
defence. The testimony of Natthu Lal
(P.W.-1) is in tune with the description of
the occurrence as contained in the F.I.R.
in his examination-in-chief to the ambit
that the accused came to his house on
11.10.2012, took away his son Yashpal
with him on the motorcycle, but his son
did not return back home in the night. On
enquiry being made with Raju, he tried to
avoid the query regarding whereabouts of
informant's son, in this regard testimony
of Natthu Lal is suggestive of fact that on
the next morning at around 10:00 a.m.,
the informant along with others exerted
pressure upon him, when the accusedRaju disclosed fact that after consuming
liquor in the village Uganpur, the accused
became greedy of the motorcycle of
Yashpal, therefore, the accused cut his
neck with daranti/sickle and threw away
his
body
somewhere
in
between
Daiyamorh and Makroi by the side of the
canal and the motorcycle was concealed
in the sugar-cane field of Moti Ram.
Thereafter,
the
informant
and
the
villagers arrived on the spot where the
dead body was stated to have been
thrown away by the accused.

30. The examination-in-chief of P.W.-
1 (Natthu Lal) proceeds on to state that the
informant went to the police station along
with Raju and handed over the report after
it was scribed by village pradhan Pati Ram
son of Noni Ram. The testimony proceeds
with description that the report was written
at his dictation and he appended his
signature on it after hearing contents of it
1000 INDIAN LAW REPORTS ALLAHABAD SERIES
and has accordingly proved his signature
on the report which is marked Ext. Ka-1.
He has stated in the very last line of his
examination-in-chief that from the police
station he went to the postmortem house. In
his cross examination, he has made certain
disclosures, which adversely affect the
prosecution case on point of lodging of the
F.I.R. at 01:10 p.m. on 12.10.2012 at Police
Station - Baheri. In his cross examination,
on Page Nos. 21 and 22 of the paper book,
he has testified to the ambit that he, after
reaching to the spot (where dead body of
Yashpal was lying), remained there till the
inquest report was completed / prepared.
However, he has stated that he went to the
police station for information after the
inquest had been completed. Further, his
cross examination proceeds on to disclose
fact that he had informed the police at that
point of time. When the accused evaded
reply to the query posed to him by the
informant asking about the whereabouts of
the deceased the police had arrived in the
village prior to his departure from the
village to the spot (where dead body of the
deceased
was
lying).
The
cross
examination proceeds on to state about the
specific time that the police had arrived in
the village around 10:30 a.m.

31. We notice from testimony of
P.W.-1 that it was on 12.10.2012, in his
cross examination that he went to the police
station after the inquest report had been
prepared.
He
further
says
that
''Panchayatnama' was prepared after 12:00
noon. After the inquest report was
prepared, he got the report written at the
police station and went to the postmortem
house from the police station. The dead
body was first taken to the police station,
when the report was lodged by the
informant. Thereafter, the dead body was
taken to the postmortem house. He has
further stated that after the report had been
lodged, the investigating officer did not
make any inquiry about the incident from
him. However, he enquired about the
incident prior to the lodging of the report.
He has stated categorically on page no. 22
of the paper book in his cross-examination
that Daroga Ji had got prepared the written
report (Exhibit Ka-1). "The report was
written by Pradhan Ji of his village" and
"Daroga Ji had dictated it to Pradhan Ji".

32. Bare perusal of the inquest report
(Ext. Ka-2) is indicative of fact that
preparation of inquest began at 02:05 p.m.
on 12.10.2012 and was completed at 04:00
p.m., the same day. As per the description
contained in the inquest report, it has been
described in it that on 12.10.2012 after the
information was received at Case Crime
No. 1092 of 2012, the police party
proceeded to the spot, the dead body was
found lying in waters of canal. The head of
the dead body was towards western side,
whereas, the leg was facing towards eastern
side. The dead body was taken out of canal
waters and kept by the side of the canal and
inquest was prepared. This description by
itself is indicative of fact that the inquest
was prepared by the side of canal after the
dead body was recovered from the waters
of canal and the inquest report was
completed at 04:00 p.m. It is not the case of
the prosecution that the inquest report was
prepared either at the police station or at
the hospital but it is proved that inquest
was prepared and completed by the side of
the canal. If the report was as claimed to
have been lodged at 01:10 p.m. on
12.10.2012, then how is it possible to
believe the testimony of Natthu Ram as
emerging in his cross examination that the
report was lodged after preparation of the
inquest report. If the report had been
lodged at 01:10 p.m. on 12.10.2012 at
4 All. Raju Vs. State of U.P.
1001
Police Station - Baheri, then there was no
point that the informant proceeded from the
police station to the postmortem house,
whereas, under natural circumstances, he
would have proceeded to the spot where the
proceeding was under way for preparation
of the inquest report (which place is the
patari side of the canal) along with the
police party or singly, as the case may be,
but it was not so, whereas, it is admitted
position that the inquest report was
prepared from 02:05 p.m. to 04:00 p.m. on
12.10.2012.

33. Another peculiar feature of the
testimony of P.W.-1 is reflective of fact
that the police had arrived in the village
prior
to
the
informant
and
others
proceeding to the spot on 12.10.2012 at
10:30 a.m., whereas, the entire F.I.R. is
woefully silent and does not make any
whisper about that aspect. There appears
concealment of vital facts of the incident by
the prosecution. Facts alleged do not fall in
line with the actual happening regarding
the lodging of the report, arrival of the
police in the village. More surprising is the
fact that the report was got scribed on the
dictation of Daroga Ji and it was scribed by
Pati Ram, the village pradhan (P.W.-8).
The testimony (of P.W.-1 Natthu Lal) is
clinching on the point that "Daroga Ji
dictated and Pradhan Ji wrote the report".

34. In the light of above, we also
notice in the testimony of P.W.-8 Pati Ram,
who has confirmed to the fact of report
being written by him on the dictation of
Natthu Lal on the ''nahar patri' (side of
canal) itself. Thus, testimony of P.W.-8 in
his examination-in-chief generates lots of
doubt and raises serious question on the
reliability of both the witnesses say P.W.1
and P.W.-8. Both of them cannot be
believed to be trustworthy witness on the
point of lodging of the report and it being
dictated and scribed as such.

35. We further notice that the Village
Pradhan has also testified certain memo
Ext. Ka-5, simple soil and mud clay, memo
of recovery of motorcycle and memo of
recovery of daranti/sickle (Ext. Ka-4). Even
in his cross examination on Page No. 47 of
the paper book, P.W.-8 has stated that he
wrote the report on the dictation of Natthu
Lal, whereas, the police arrived around
09:00 a.m. to 09:30 a.m. The inquest report
was prepared before him around 09-10 a.m.
This specific testimony by itself is
reflective of fact that this witness is neither
believable nor reliable, even on facts
regarding the time when the inquest report
was prepared, whereas, testimony of P.W.-
1 regarding writing of the report on the
dictation of ''Daroga Ji' by Pati Ram (P.W.-
8) makes the first information report ante
time and outcome of involvement and
deliberation of the police, in particular, the
investigating officer.

36. It is settled principle of criminal
jurisprudence that in case the F.I.R.
becomes doubtful regarding specific timing
of lodging of the report, and to fact as to
who dictated the F.I.R. and the person who
wrote it, then the very foundation of the
prosecution case loses significance, thus
rendering the F.I.R. ante time. Here it is a
fit
case
based
upon
testimony
and
circumstance which exorbitantly prove fact
that the F.I.R. is ante time, which factual
aspect is obvious as per testimony of the
informant-P.W.-1 itself that the F.I.R. was
lodged after preparation of the inquest
report which was completed at 04:00 p.m.
on 12.10.2012.

37. We would like to discuss
testimony of Constable clerk Jhajhan Lal
1002 INDIAN LAW REPORTS ALLAHABAD SERIES
(P.W.-5), who claims to have noted down
the contents of the written report (Ext. Ka1) on the Check F.I.R. No.344 of 2012 at
Case Crime No. 1092 of 2012, under
Sections - 302, 201 I.P.C. and a case was
registered at 01:10 p.m. at Serial No. 29 of
the General Diary of Police Station -
Bahedi and has proved the check F.I.R. and
the concerned general diary entry Ext. Ka-6
and Ext. Ka-7, respectively, whereas he has
stated in his cross examination that the
written report was produced by the
informant (P.W.-1), whereas the informant
(P.W.-1)
has
stated
in
his
cross
examination that the report was written by
P.W.-8 Pati Ram on the dictation of Daroga
Ji and that took place after preparation of
the inquest report (Ext. Ka-2). Thus, P.W.-
5- is hiding the truth and he is not coming
with true facts.

38. In view of above, it is obvious
that the prosecution witnesses both P.W.-8
and P.W.-1 are not believable. They are not
trustworthy and veracity of their version
has
been
exposed
in
their
cross
examination. The circumstance also show,
as per testimony of P.W.-1 on page no.21
of the paper book, that after the inquest
report had been prepared, the report was
got scribed at the police station, then he
(P.W.-1) went to the postmortem house.
This specific piece of testimony unravel the
truth that the things have been tried to be
managed, deliberated and fixed, for the
reasons best known to the prosecution.

39. The testimony of P.W.-1 evinces
fact to the import that after the inquiry was
made from Raju on 12th October, 2012,
about whereabouts of the deceased Raju
went to his home. He states that Daroga Ji
did not record his statement as such. He
further states that the dead body of Yashpal
was lying in the canal waters. The water
was knee deep in the canal. However, this
witness has categorically stated that Raju
had no enmity with the deceased.

40. Insofar as the testimony of Nand
Ram- P.W.-3 is concerned, it is in line with
that of P.W.-2 Prem Shankar regarding the
''last seen' and the preparation of the
inquest report. However, in view of the
testimony of P.W.-1, lot of suspicion works
in the story of prosecution and gives rise to
a number of possibilities. Now, insofar as
the testimony of the investigating officer
Sunil Kumar Pachori P.W.-6 is concerned,
obviously he claims to have proceeded to
the spot after the report had been lodged,
whereas, his testimony is in material
contrast to the fact of lodging of the first
information report at the time (01:10 p.m.
on
12.10.2012),
as
claimed
by
the
prosecution. He claims that spot map was
prepared by him which is Ext. Ka-8. The
Place-A earmarked in the site plan by the
investigating officer appears to be the
canal. Thereafter, place-B is earmarked on
the foot path / patri of the canal, where the
dead body was allegedly lying and was
taken out from the canal. Obviously, there
was water in the canal and the body must
have been lying in the canal for few hours
in the night intervening 11/12.10.2012.
However, he has proved recovery of
''daranti'/sickle and preparation of its
recovery memo (Ext. Ka-7) and preparation
of site plan of the place of aforesaid
recovery (Ext. Ka-9) and has also proved
recovery of motorcycle from the sugar-cane
field of Moti Ram and has proved the
recovery memo and the site plan of the
recovery of motorcycle, which is marked
Ext. Ka-10.

41. However, it is noticeable that the
''daranti' which was allegedly recovered at
the instance of the accused by the
4 All. Raju Vs. State of U.P.
1003
investigating officer has claimed to have
been sent for forensic examination at Vidhi
Vigyan
Prayogshala,
Lucknow
on
31.10.2012 but no report worth its sort has
been obtained and placed on record, so as
to give credence to the fact that the
recovered sickle was blood stained with
human blood. Since the point has been
pressed by the prosecution itself that the
recovered ''daranti'/sickle was sent for
forensic
examination,
then
it
was
obligatory on the part of the prosecution to
have obtained the forensic examination
report, regarding the blood stains found on
the sickle and would have been brought
before the trial court, but the same has not
been done. Non production of the report
would cast serious doubt upon the claim of
the prosecution that any blood stained
daranti/sickle was so recovered and sent for
forensic examination, as such.

42. The investigating officer claims
that the report was lodged at 01:10 p.m.,
which aspect has been rendered dubious by
the testimony of P.W.-1 in his cross
examiantion. The investigating officer has
also stated that the written report had been
got prepared and was produced at the
police station. He also stated about the
inquest report, which was prepared under
his supervision by Devendra Kumar TyagiP.W.-4. He has been suggested that he has
performed his duties at the police station
itself
and
has
not
conducted
fair
investigation, which suggestion has been
denied.

43. It is surprising that the doctor
witness Dr. T.S. Arya P.W.-7 has stated
innocuously in his cross examination that
the investigating officer did not make any
inquiry from him. In the very last line of
his examination-in-chief, Dr. T.S. Arya
(P.W.-7) has testified to the ambit that the
injury (Injury No.1) cannot be caused with
weapon daranti/sickle but it could be
caused by sharp edged weapon. However,
on this point, it was incumbent and
obligatory on the part of the prosecution to
have re-examined this witness and would
have clarified the factual aspect about
injury being caused by use of ''daranti' or so
but the same aspect has been let go by the
prosecution for the reasons best known to
it.

44. It is obvious that prior to the
lodging of the report, the interference and
indulgence of the police personnel and, in
particular, the investigating officer of this
case is apparent on record, deliberation of
the investigating officer with the village
Pradhan is innocuously established against
the prosecution prior to the lodging of the
F.I.R. that renders the first information
report manipulated and deliberated upon by
the police and it gives credence to fact that
the F.I.R. has not been lodged at the time,
when it is claimed to have been lodged by
the informant. Instead, the testimony of
P.W.-1 emerging in his cross examination
renders the first information report ante
time. The defence has also come out with
the factum of enmity that accused has been
roped- in, in this case at the instance of
Village Pradhan, Pati Ram since the
accused had supported the candidature of
the person, who had contested election for
Village Pradhan against Pati Ram. We may
observe
with
convenience
that
the
testimony of prosecution witnesses of fact
as well as Constable Jhajhan Lal and the
investigating officer P.W.-6 is apparently
and inherently contradictory in material
particulars
and
it
does
not
inspire
confidence. The testimony of prosecution
witnesses of fact on the face does not
inspire confidence, for the reason that the
manipulation of the entire things has
1004 INDIAN LAW REPORTS ALLAHABAD SERIES
emanated from the active participation of
the
police
and
in
particular
the
investigating officer in collusion with the
Village Pradhan of the village-Pati Ram-
(P.W.-8). There is no denying fact that on
account of supporting candidature of one
Dharmendra
Gangwar,
who
contested
village pradhan election against the sitting
Village Pradhan, Pati Ram was supported
by the accused, therefore, Pati Ram had got
a cause against the accused and the
testimony of P.W.-1 itself is indicative of
fact that the F.I.R. was dictated by Daroga
Ji to Pati Ram at the police station that by
itself is sufficient for creating lot of
material
loopholes
and
dent
in
the
prosecution story, which for the aforesaid
obvious reasons would create strong case
of benefit of doubt in favour of accused.

45. Discussion made by us on all
relevant aspects and in particular fact of
writing of the first information report,
timing of preparation of the inquest report
and the factum of point of false implication
of the accused have not been properly
appreciated and appraised by the lower
court vis-a-vis the testimony on record and
the attendant facts and circumstances of
this case. The material available on record
tilts in favour of accused and advantage of
the same should go to him.

46. For all the reasons stated above,
the appellant is entitled to the benefit of
doubt, accordingly he is entitled to
acquittal.

47. Consequently, the judgement and
order of conviction dated 20.08.2013,
passed by the Additional Sessions Judge,
Court No. 10, Bareilly, in Session Trial No.
1143 of 2012 (State of U.P. Vs. Raju),
arising out of Case Crime No.1092 of 2012,
under Sections - 302, 201 I.P.C., Police
Station - Baheri, District - Bareilly, is
hereby set aside.

48. The appeal is allowed.

49. In this case, the appellant is
languishing in jail for over 10 years, if he is
not wanted in connection with any other
case he may be released forthwith.

50.