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

- **Citation:** (2022) 3 ILRA 1010
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-03-04
- **Case number:** Criminal Appeal No. 1921 of 2011
- **Bench:** Anjani Kumar Mishra, Chandra Kumar Rai
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramswaroop-in-jail-v-state-of-u-p-48166
- **Pages:** 14

## Text

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1010 INDIAN LAW REPORTS ALLAHABAD SERIES
certain orders preserving the stamp, court
fees, original documents, papers forming
part of the record, certified copy of each
documents and papers with regard to list of
notes of fact.

iv. In terms of the Rules framed
under the General Rule (Criminal), if any
record, which is purported to be weeded
out, the District Judge shall enquire the
pendency of the proceedings before this
Court before directing the office concerned
to weed out the record.

v. While transmitting the original
Trial Court Record to Appellate Court as
called upon by Appellate Court the Trial
Court shall ensure to retain duplicate copy
of entire records in two sets and shall
ensure the retention/upkeep of duplicate
copy.

vi. Trial Court shall maintain a
register in which the details of Trial Court
Records transmitted to the Appellate Court
shall be entered.

vii. District Judge shall, on
regular basis, supervise the up keep and
retention of duplicate copies of Lower
Court Records transmitted to Appellate
Court.

viii. The investigating agency
shall procure/retain the duplicate copy of
the police report filed before the Court U/s
173 (2) Cr.PC for a period of 50 years and
shall transmit the same to the Court
concerned whenever called for.

ix. The prosecuting agency shall
maintain a data of the duplicate police
report retained after filing the original
before Court.

x. As far as possible now the
records shall be digitized before sending
notice so that it may be retrieved, if needed.

38. The Registrar General of this
Court is directed to circulate a copy of this
order to all District Judges subordinate to
High Court of Allahabad and to Chief
Secretary to the State of U.P for its
necessary compliance.
----------
(2022)03ILR A1010
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.03.2022

BEFORE

THE HON'BLE ANJANI KUMAR MISHRA, J.
THE HON'BLE CHANDRA KUMAR RAI, J.

Criminal Appeal No. 1921 of 2011
with
Criminal Appeal No. 1922 of 2011
with
Criminal Appeal No. 1920 of 2011
with
Criminal Appeal No. 2439 of 2011

Ramswaroop ...Appellant (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Rajiv Lochan Shukla, Sri K.K. Pandey,
Sri K.K. Mishra, Sri Manvendra Singh, Sri
Amit Daga, Sri Sandeep Kumar Srivastava,
Sri Pradeep Kumar Srivatava

Counsel for the Respondent:
Smt. Manju Thakur, A.G.A.

101. Special Report cases - the delay in
sending special report to the concerned
Magistrate is not explained-after preparation of
inquest, report of the incident was written and
lodged. All these facts fully demonstrate that
FIR is ante-timed.
3 All. Ramswaroop Vs. State of U.P.
1011
no independent witness was produced by the
prosecution specially when the eye-witnesses
totally failed to prove the prosecution case
which casts a doubt on the prosecution case

in the postmortem report it is mentioned that
stomach contained semi-digested food, small
intestine was empty and large intestine filled
with fecal matter and gases. P.W.-6 Doctor in
his cross-examination stated that deceased
must have taken food 2-3 hour before but from
the FIR and statement of P.W.-2 and P.W.-3, it
has come that deceased was going to take food
in the Tilak ceremony. So prosecution case is
false and cannot be believed.

that plea of alibi set up with respect to accused
Ram Swaroop @ Chotka and Dashrath has been
proved from the examination-in-chief and crossexamination of D.W.-1, as no question was
asked by prosecution on this point, hence plea
of alibi is proved.

the evidence of the alleged eye witnesses
produced by prosecution does not inspire
confidence. There exists a doubt whether they
are eye-witnesses of the incident. Oral evidence
is also not consistent with the medical evidence,
FIR is ante-timed and there are no independent
witness of the incident. Prosecution has failed to
prove the charges against the appellantsaccused beyond reasonable doubt.

(Delivered by Hon'ble Chandra Kumar
Rai, J. )

Heard Sri Rajiv Lochan Shukla
assisted by Sri K.K. Pandey and Sri K.K.
Mishra, learned counsels for the appellants
and Smt. Manju Thakur, the learned AGA
for theState.

1. These criminal appeals have been
preferred against the judgment and order
dated 18.3.2011 passed by the Additional
Sessions Judge, Court No.8, Fatehpur in
Sessions Trial No. 309 of 2006, arising out
of Case Crime No.50/2006, State vs.
Darshrath and others, under Sections
302/34 IPC and Section 7 of the Criminal
Law Amendment Act, P.S. Ashothar,
District
Fatehpur,
convicting
and
sentencing
the
accused-
appellants
Dashrath @ Badka, Ramswaroop @
Chotka, Suresh and Shivpersona @ Bantwa
for life imprisonment and fine of Rs.7000/-
and in default of payment of fine, they have
to further undergo imprisonment of 1 year
and sentencing them under Section 7 of the
Criminal
Law
Amendment
Act
for
imprisonment of 3 months and all the
sentences will run concurrently. Further
accused-appellant Ramswaroop @ Chotka
was also convicted under Section 25 of the
Arms Act in S.T. No.312 of 2006, arising
out of Case Crime No.64/2006, State vs.
Ramswaroop,
P.S.
Ashothar,
District
Fatehpur and sentenced for rigorous
imprisonment of 3 years and a fine of
Rs.2000/- and in default of payment of fine,
he has to further undergo imprisonment of
3 months and all the sentences will run
concurrently. Further accused appellant
Suresh was also convicted under Section 25
of the Arms Act in S.T. No. 313/2006,
arising out of Case Crime No.56/2006, P.S.
Ashothar, District Fatehpur and sentenced
for rigorous imprisonment of 3 years and a
fine of Rs.2000/- and default of payment of
fine, he has to undergo imprisonment of 3
months and all the sentences will run
concurrently.

2. Since all the four appeals have been
filed against the same judgment, hence all
the four appeals are being heard and
decided jointly by common judgment.

3. Briefly the facts of the case are as
follows:-

First informant Asha Devi, wife
of Shri Shiv Singh is resident of village-
Bensari, P.S. Asothar, District Fatehpur.
1012 INDIAN LAW REPORTS ALLAHABAD SERIES
On 4.5.2006, her husband, Shiv Singh aged
about 36 years along with son Ajeet and
Sujeet and Dewar Jai Singh went in the
Tilak Ceremony of Shiv Pratap, brother of
Ram Ashrey Gupta of the same village,
there was too much rush there and
everybody was sitting in order to take
dinner of Tilak Ceremony and it was 9.00
P.M. Dashrath @ Badka, Ramswaroop @
Chotka, sons of Ram Dularey, Shiv
Prakash Yadav, brother-in-law of Chotka,
resident of village- Ajhei and Suresh, son
of Sita Ram came to her husband from
whom dispute relating to house is going on,
they dragged the husband towards the hand
pipe of Hemchandra Yadav, thereafter,
Shiv Prakash and Badka catch hold her
husband and Ramswaroop @ Chotka and
Suresh who were armed with country-made
pistol in their hand, fired and murdered his
husband. Her son and Dewar rushed up to
escape him but accused pushed them so
they fell down. Due to dragging her
husband and open firing, resulting into
murder , stampede occurred on the spot and
people were running away, leaving the
dinner. Accused went in east direction with
country-made pistol in their hand, the dead
body of her husband is lying on spot.
Prayer was made to lodge the report and
legal action be taken.

4. On the basis of written report (Ext.
Ka-8), chik no. 36 of 2006, case crime no.
50 of 2006 under Section 302 IPC and
Section 7 of Criminal Law Amendment Act
was registered on 4.5.2006 at 22.30 with
P.S. Ashothar against accused Dashrath @
Badka, Ramswaroop @ Chotka, Shiv
Prakash Yadav and Suresh. chik FIR is on
record as Ext. Ka-15. The investigation of
the case was taken up by Sri Anand Kumar
Singh, S.O. Asothar and relevant entry was
made in general diary vide rapat no. 28 at
22.30 (Ext. Ka-6). On 5.5.2006 at 00.05
inquest was conducted on the dead body of
deceased Shiv Singh and prepared inquest
report (Ext. Ka-21). He also prepared letter
to C.M.O. (Ext. Ka-22), letter to R.I. (Ext.
Ka-23), challan nash (Ext. ka-24), photo
nash (Ext. Ka-25). He then sent the body
for postmortem by Constable Anil Kumar
Shukla and Constable Sarfaraz Haider.
Postmortem
report
is
(Ext.
Ka-7).
Investigating Officer inspected the place of
incident and prepared a site plan (Ext. Ka1). Statement of witnesses were recorded.
On 11.5.2016 accused Suresh was arrested
and on his pointing out the country-made
pistol was recovered from the place
situated in the eastern side of village, the
recovery memo is Ext. Ka-2, the spot plan
of recovery place is Ext. Ka-3.

5. On 12.5.2006, statement of
witnesses were recorded by Investigating
Officer.
On
19.5.2006,
accused
Ramswaroop was taken in police custody
remand in the court of Chief Judicial
Magistrate and at the pointing out of
accused Ramswaroop, country-made pistol
used in the murder was recovered, the
recovery memo is Ext. Ka-4, the site plan
of recovery place was prepared which is
Ext. Ka-5.

6. Chik FIR under Section 25 of the
Arms Act against accused Ramswaroop @
Chotka is Ext. Ka-19 and chik FIR under
Section 25 of the Arms Act against accused
Suresh is Ext. Ka-17. Investigation in
respect to incident under Section 25 of the
Arms Act was handed over to S.I. Shyam
Bihari
Singh
who
conducted
the
investigation, the charge-sheet (Ext. Ka14), under Section 25 of the Arms Act was
submitted against Ramswaroop @ Chotka
and charge-sheet (Ext. Ka-11), under
Section 25 of the Arms Act was submitted
against Suresh. I.O. Anand Kumar Singh
3 All. Ramswaroop Vs. State of U.P.
1013
submitted charge-sheet (Ext. Ka-6) against
accused Dashrath @ Badka, Ramswaroop
@ Chotka, Suresh and Shivperson @
Bachcha under Section 302 IPC and
Section 7 of the Criminal Law Amendment
Act. Cognizance was taken by the courts
below on the charge-sheet submitted by the
Investigating Officer and after summoning
the accused-appellants, committed the case
for the trial of the accused to the court of
Session.

7. On the basis of the material
available on record, learned Sessions Judge
framed charge on 28.7.2006 against all the
four accused Ramswaroop @ Chotka,
Suresh, Dashrath @ Badka and Shivperson
@ Bachcha under Section 302 IPC and
Section 7 of the Criminal Law Amendment
Act and on 28.7.2006, charges under Section
25 of the Arms Act were framed against
Ramswaroop @ Chotka and Suresh. The
accused pleaded not guilty and claimed trial.

8. The prosecution in order to prove
its case examined P.W.-1 Asha Devi (1st
informant and wife of deceased). P.W.2
Sujit (son of deceased who was minor on
the date of incident as well as on the date of
statement). P.W. 3 Jaisingh (younger
brother of deceased). P. W. 4 Ram Asrey,
P.W. 5 S.I. Anand Kumar Singh, P.W. 6
Dr. Vivek Nigam, P.W. 7 Shyam Singh,
P.W.-8. S.I. Shyam Bihari Singh, P.W. 9
Constable
Raghubar
Yadav,
P.W.10
Constable Sudhir Kumar Mishra.

9. The Accused - appellants in their
statements recorded under Section 313
Cr.P.C. denied the prosecution case and
disputed the veracity of the evidence
adduced by the prosecution.

10. PW-1 Asha has stated in her
examination-in-chief that Shiv Singh was
my husband. Incident is of 4.5.2006, time
was 9:00 P.M. My husband was murdered
when he went to attend the Tilak Ceremony
organised in the house of Ram Asrey
Gupta. Her sons Ajit and Sujit also went
there. The name of her brother in-law
(dewar) is Jai Singh who also went there.
Ram Swaroop, Shiv Parson, Dashrath
dragged him, Ram Swaroop and Suresh are
present in court today. Dashrath and
Shivperson are also present. They dragged
her husband and carried him towards hand
pipe of Hemchandra and thereafter Ram
Swaroop
and
Shivperson
fired
with
country-made pistol resulting into his
death. They tried to save him but they
murdered her husband and went in the
eastern side. She know Shyam Singh, who
had written the written report of the
incident. She thumb-marked the same and
went to the police station along with
application. She further stated that she
knows accused Suresh and he has not fired
at all.

11. P.W.2 Sujit has stated in his
examination-in-chief that Shiv Singh was
his father. He was murdered. Incident has
taken place about 2 year before. He went to
give water to the guest of Tilak Ceremony
organised in the house of Ram Asrey
Gupta. Apart from me, his uncle Jai Singh,
brother Ajit and his father went there. His
father Shiv Singh was ready to take food,
Dashrath and Shivperson caught hold him
and Ramawaroop fired and thereafter
Suresh
fired
near
the
handpipe
of
Hemchandra, the time was about 9.00 P.M.
His father died due to the fire received by
him. Accused are present in Court.

12. P.W.3 Jai Singh has stated in his
examination-in-chief that incident is of
4.5.2006. IInd year is going on and 2 year
will complete on 4th May of this year.
1014 INDIAN LAW REPORTS ALLAHABAD SERIES
They went in the Tilak invitation of Ram
Asrey Gupta on the date of incident. He,
his sister-in-law Asha Devi and his
nephews Ajit and Sujit also went there.
Several persons of the village also came
there. It was 9.00 PM. when the incident
has taken place. Two persons Dashrath and
Shivperson caught hold his elder brother
Shiv Singh before him, dragged him near
the
handpipe
of
Hemchandra
and
Ramswarop and Suresh fired him. After
receiving the fire shot, his elder brother
Shiv Singh fell down and died. Ajit and
Sujit, sons of deceased saw the incident.
Suresh and Ramswaroop are present in
Court. Dashrath and Shivperson are also
present.

13. P.W. 4 Ram Asrey in his
examination-in-chief has stated that there
was Tilak in his house on the day of
murder. Incident is of 2 and 2 1⁄2 years
before, time is of 10.00 P.M. He was inside
the house as Tilak Ceremony was going on
inside the house and nasta / dinner, etc was
going on outside the house. Having heard
the fire sound, everybody runaway. When
he came outside, nobody was present,
everybody runaway. He saw the dead body
of Shiv Singh is lying near the handpipe of
Hemchandra.

14. PW 5 S.I. Anand Kumar Singh
in his examination-in-chief has stated that
from 4.12.2005 to 15.7.2006, he was
posted as Station Officer, Asothar. On 4
5.2006 when he received the information
with respect to murder of Shiv Singh of
Village - Besari, they reached on spot
along with force. After completing the
necessary legal formalities, investigation
of the case was started, statements were
recorded and he prepared the inquest
report and other documents, dead body
challan,
letters
addressed
to
the
authorities for conducting postmortem of
the dead body of the deceased, thereafter,
he sealed the dead body of the deceased
and
dispatched
it
for
postmortem.
Country-made pistol was recovered at the
pointing out of accused Suresh, the site
plan was prepared in respect of recovery
place of country-made pistol, the fard
was
accordingly
prepared.
Another
country-made pistol was recovered at the
pointing out of accused Ramswaroop
from the cow-dung manure pit. The site
plan and fard was accordingly prepared in
respect of the same.

15. PW 6 Dr Vivek Nigam in his
examination-in-chief has stated that on
5.5.2006, he was posted as Senior
Medical Officer at District Medical
Hospital, Fatehpur and on that day, his
duty was on postmortem. He Conducted
the post-mortem of deceased Shiv Singh
at 2:30 PM on the aforementioned date.

External Examination:-

Deceased was of average height.
Regor mortis was present on both upper
arm and in both the legs. Mouth was
closed.

Ante-Mortem injuries:-

1. Fire-arm wound of entry 4cm
x 3cm x cavity deep on the back of head.
7cm behind the right ear. Blackening
present over the wound.

2. Fire-arm wound of exit 10
cm x 8 cm x cavity deep on the left side
of head just above the left ear.

3. Fire-arm wound of entry 4
cm x 3cm x cavity deep on the left side of
3 All. Ramswaroop Vs. State of U.P.
1015
back of head, 5 cm above and behind the
left ear. Blackening present.

4. Fire-arm wound of exit 7cm
x 5cm in the upper part of right side of
face including the right eye.

5. Fire-arm wound of entry 5cm
x 3cm on the back of left forearm, 4 cm
below the left elbow. Blackening present.
Underlying bones fractured.

6. Firearm wound of exit 6cm x
4cm on the left forearm just below the
left elbow and this is connecting with the
injury no. 5.

7. Abrasion 3cm x 2cmon the
left arm, 4cm below the left shoulder.

8. Abrasion 6cm x 4cm on the
back of the left side, 8 cm below the left
shoulder.

Internal Examination:-

In Injury No. 1, 2, 3, 4, the
underlying bones were broken. Heart was
empty while both the lungs were pale,
stomach contained about 40 ml. semi
digested food. Small intestine was empty
and large intestine was filled with fecal
matter and gasses, Liver, spleen and
Kidney were pale, Gall blader was half
filled and urinary bladder was empty.

16. P.W.7, Shyam Singh has stated
in his examination-in- chief that paper
No- 3 Ka/2 is written in his hand writing,
this was written on the dictation of Asha
Devi wife of deceased, document was
signed by him and thumb marked by
Asha Devi, written report was marked as
Ext. Ka-8.

17. P.W. 8 Sub Inspector Shyam
Bihari Singh has stated in his examinationin-chief that he was posted as SubInspector at PS- Asolhar District Fatehpur
in the year 2006. Station Officer Anand
Kumar Singh who was Investigating
Officer of Case Crime No. 50 of 2006,
under section - 302 IPC and Section- 7
Criminal Law Amendment Act, arrested
accused Suresh Yadav on 4.5.2006 and on
his pointing out, weapon was recovered
whereupon Case Crime No- 56 of 2006,
(State vs. Suresh Yadav), under Section 25
of the Arms Act was registered and
investigation was conducted by him.
Statements of Constable Raghubar Yadav
(FIR writer) and accused Suresh Yadav
were recorded on 11.5.2006. On 12.5.2006,
statement of Om Prakash Yadav was
recorded. On his pointing out, site plan was
prepared after inspection which are paper
no. Ext. Ka-9. Ext. Ka-12, the charge-sheet
in case no. 56 of 2006 and 64 of 2006 were
filed
by
him
after
completion
of
investigation, under Section 25 of the Arms
Act, which are paper no. Ext. Ka-11 and
Ext. Ka-14.

18. P.W.9 Constable Raghubar Yadav
has stated in his examination-in-chief that
he registered the chik FIR on the basis of
written report of Asha Devi which was
written by Shyam Singh. He proved chik
F.I.R. Ext. ka-1. He identified Ext. Ka-17
and Ext. Ka-18

19. P.W.10 Constable Sudhir Kumar
Singh has stated in his examination-in-chief
that on 19.5.2006, he was posted as
Constable at P.S. - Asolhar, on that day he
prepared chik F.I.R. in his handwriting on
the basis of Ext. Ka-5. GD is Ext. Ka-20.

20. DW-1 Bisun Dayal has stated in
his examination-in-chief that he knows
1016 INDIAN LAW REPORTS ALLAHABAD SERIES
Ramswaroop @ chhotka and Dashrath @
Badka who are sons of Ram Dularey. On
4.5.2006 he came to their village. He came
to house of Ram Sumer on that day for the
Tilak ceremony of Komal, son of Ram
Sumer. He reached at 4-5 P.M. He stayed
there for whole night and in the morning
upto 8 A.M. Ramswaroop @ Chhotka and
Dashrath @ Badka met him in the Tilak,
both the persons were with him from 4-5
PM to 8.00 AM next morning. They were
with him and did not go anywhere else. He
further said that the day he went in the
Tilak he heard about the murder of Shiv
Singh.

21. The learned Sessions Judge, Court
No.8, Fatehpur, after hearing the parties
and perusal of the record, passed the
impugned judgment. Hence this appeal.

22. Counsel for the appellants submits
that recovery and place of incident is
doubtful. The recovery of country-made
pistol from the ditch and another from the
manure pit filled with cow-dung, cannot be
said to be in working condition unless there
is satisfaction that weapon were in working
condition,
the
country-made
pistol
recovered on 19.5.2016 from the manure
pit filled with cow-dung, cannot give smell
of gun powder. In forensic examination,
only one country-made pistol matched. So
far as place of incident is concerned in site
plan, place of blood stains are not
mentioned as such the place of incident is
doubtful. P.W.-1 in the First Information
Report says that she saw the incident while
in the statement under Section 161 Cr.P.C.,
she says that she came to place of incident
when her sons and brother-in-law informed
her about the incident. In the same manner,
in the FIR, name of accused Suresh is
mentioned but in examination-in-chief as
well as in cross-examination, P.W.-1 says
that Suresh has not fired at all, only rest of
the three accused were involved in the
incident, P.W.-7 Shyam Singh, scribe of
FIR in his cross-examination states that
after Panchayatnama, report was written on
the dictation of Daroga ji but later on says
that report was written on the dictation of
Asha Devi. Similarly, there are so many
contradictions in the statement of P.W.-2.
Counsel for the appellant further submits
that P.W.-1, P.W.-2 and P.W.-3 are
unreliable witnesses as all the three were
not present nor they have seen the incident.
P.W-3 in his cross-examination has stated
that in dinner only, he went from his house.
P.W.-3 in his examination-in-chief states
that he, his nephew Sujit and Ajit as well as
his sister-in-law Asha Devi went in Tilak
ceremony. In the same manner, P.W.'s- 1
and 2 were unreliable witnesses, they say
one thing at one place and some thing at
another place. P.W.-2 is tutored witness as
he stated that he is 16 year of age and he is
giving statement as told by the counsel so
P.W.-2 is also unreliable witness. It is
further submitted that medical evidence
also belies the prosecution case. Counsel
for the appellants submitted that in the
postmortem report, it is mentioned that
stomach contained semi-digested food,
small intestine was empty and large
intestine filled with fecal matter and gases.
P.W.-6 Doctor in his cross-examination
stated that deceased must have taken food
2-3 hours before death. However, from the
FIR and statements of P.W.-2 and P.W.-3,
it has come that deceased was going to take
food in the Tilak ceremony so prosecution
case is false and cannot be believed. It is
further submitted that the First Information
Report is anti-timed. This argument is
pressed on the ground that P.W.-9 in his
cross-examination stated that he is not
aware about sending of special report of
this case by whom and when, in G.D. there
3 All. Ramswaroop Vs. State of U.P.
1017
is no reference of sending the special report
of this case, in the chik FIR (Ext. ka-15),
there is signature of C.O. but no date is
mentioned. The same was sent before
Magistrate on 11.5.2016. P.W.-9 further
stated that in coloumn no. 3 of chik FIR no
time and date is mentioned. No signature
and thumb impression of first informant is
mentioned in the relevant coloum of chik
FIR. In inquest only crime number is
mentioned, nothing else is mentioned on
the top of inquest. P.W.-7 Shyam Singh,
scribe of FIR in his cross-examination,
states that after the inquest, report of the
incident was written. All these facts
indicate that prosecution case is false.

23. Counsel for the appellant placed
reliance upon paragraph-101 of the police
regulation which is as follows:-

"101. Special Report cases.-
Whenever the occurrence of an offence
of any of the following kinds is reported-

(1) dacoity, (2) robbery except
unimportant cases such as snatching earrings, (3) torture by police, (4) escape
from police custody, (5) forging of
currency notes (6) manufacture of
counterfeit coin, (7) serious defalcations
of public money including theft of notes
or hundis from letters, (8) important
cases of murder, rioting, burglary and
theft, breaches of the peace between
different
classes,
communities
or
political groups and other cases of
special interest, copies of the report will
be sent immediately in red envelopes to
the
Superintendent,
the
District
Magistrate,
the
Sub-Divisional
Magistrate and the Circle Inspector by
post or hand whichever may be the
quicker method of conveyance. The
telephone or telegraph when available,
and the department telegraphic code,
copies of which have been supplied to all
police stations near telegraph offices
should
also
be used
to give
the
Superintendent early news of such
offences."

24. Counsel for the appellant further
submitted that independent witnesses of the
incident have not been examined although
in the Tilak ceremony, there were number
of people of the village which also falsifies
the prosecution case. The counsel for the
appellant further submitted that plea of
alibi set up with respect to accused
Dashrath has been proved from the
examination-in-chief
and
crossexamination of D.W-1.

25. Counsel for the appellants cited
judgment of the Apex Court and submitted
that appeals filed by accused appellants be
allowed, particulars of the judgments are as
follows:-

(1994) 5 SCC 188, Mehraj
Singh vs. State of U.P., (2006) 2 SCC 450,
Radha Mohan Singh @ Lal Saheb and
Others vs. State of U.P., (2006) 9 SCC
731, Budh Singh and Others vs. State of
U.P.

26. Learned AGA, Smt. Manju
Thakur on the other hand supported the
impugned
judgment
and
orders
of
conviction by contending that no delay has
been caused in lodging the FIR. Recovery
memo and recovery of country-made pistol
from accused Ramswaroop @ Chotka and
Suresh fully make out the case against
accused / appellants. Prosecution case is
fully proved from the statement of P.W.-1,
P.W.-2 and P.W.-3. The appeals filed by
accused - appellants have no merit and are
liable to be dismissed.
1018 INDIAN LAW REPORTS ALLAHABAD SERIES

27. Upon hearing learned counsel for
the parties and perusal of record, first of all
we are considering the argument raised on
the point of contradictions in the statement
of P.W.-1, P.W.-2 and P.W.-3, unreliable
witnesses and tutored witness. P.W.-1 in
the First Information Report says that she
saw the incident while in the statement
under Section 161 Cr.P.C., she says that
she came to place of incident when her
sons and brother-in-law informed her about
the incident. In the same manner, in the
FIR, name of accused Suresh is mentioned
but in examination-in-chief as well as in
cross-examination, P.W.-1 says that Suresh
has not fired at all, only rest of the three
accused were involved in the incident,
P.W.-7 Shyam Singh, scribe of FIR in his
cross-examination
states
that
after
Panchayatnama report was written on the
dictation of Daroga ji but later on says that
report was written on the dictation of Asha
Devi. In the same manner, there are so
many contradiction in the statement of
P.W.-2. The counsel for the appellant
further submits that P.W.-1, P.W.-2 and
P.W.-3 are unreliable witnesses as all the
three were not present nor they have seen
the
incident.
P.W-3
in
his
crossexamination has stated that he was the sole
member of his family who went to the
Tilak. But in his examination-in-chief
states that he, his nephew Sujit and Ajit as
well as his sister-in-law Asha Devi went in
Tilak ceremony. In the same manner,
P.W.'s- 1 and 2 were unreliable witnesses,
they say same thing at one place and some
thing at another place.

28. P.W.-4 in his cross-examination
states that from every house of the village,
only one person of the house was given an
oral invitation of Tilak. He further stated that
he invited Shiv Singh. Therefore, from the
statements of P.W.-1, P.W.-2, P.W.-3 and
P.W.-4, the presence of eye-witnesses P.W.-
1, P.W.-2 and P.W.-3 at the time and place of
incident is doubtful and due to contradiction
in their statements, P.W.'s- 1 to 3 do not
inspire confidence.

29. The next argument advanced by
learned counsel for the appellants is that the
F.I.R. is ante-timed. In support of this
argument, counsel placed the statement of
P.W.-9 which is as follows:-

** ih0MCyw0and9 dka0 2416 j?kqoj ;kno
Fkkuk f'koiqj tuin okjk.klh ''"'kiFk iwoZd c;ku fd;k
fd and

fnukad 4-5-06 dks Fkkuk vlksFkj tuin
Qrsgiqj Fkkuk dk;kZy; esa rSukr FkkA ml fnu eSus
okfnuh vk'kk nsoh dh rgjhj tks ';ke flag ds }kjk
fy[kh FkhA ds vk/kkj ij eqdnes dh fpd ,Q0vkbZ0vkj0
rS;kj Fkkus ij dh FkhA fpd ,Q0vkbZ0vkj0 isij ua0
3v@1 dks ns[kdj xokg us dgk fd ;g ogh fpd
,Q0vkbZ0vkj0 gS vius ys[k o glrk{kj dh f'kuk[r
fd;kA eSus dk;eh eqdnek dk bUnzkt th0Mh0 dh jiV
la[;kand28 le; 22-30 ftlesa 4-5-06 dks esjs }kjk fd;k
x;k FkkA vly th0Mh0 eS yk;k gWwA esjs leus gSA vly
th0Mh0 dh QksVks dkih eS lR;izfrfyfi izekf.kr fy[kdj
nkf[ky dj jgk gWwA QksVks dkih ij izn'kZ dand16 Mkyk
x;kA

11-5-06 dks Hkh eS cgSfl;r lh0 DydZ
fu;qDr FkkA ml fnu eSus QnZ cjkenxh ds vk/kkj ij
eqyfte lqjs'k ds fo:) 25 vkElZ ,sDV dk eqdnek
dk;e fd;k Fkk fpd ,Q0vkbZ0vkj0 '''kkfey i=koyh
isij ua0 3v@1 dks ns[kdj dgk fd ;g esjs ys[k o
gLrk{kj esa gs ftl ij izn'kZ dand17 Mkyk x;kA

dk;eh eqdnek dk bUnzkt th0Mh0 dh
jiV la[;k 23 le; 16-30 ij esjs }kjk fnukad 11-506 dks fd;k x;k Fkk vly th0Mh0 eS yk;k gWwA esjs
lkeus gSA ewy ds lkFk dkoZu yxkdj rS;kj dh x;h
dkoZu dkih i=koyh esa miyC/k gSA vly ds lkFk
izekf.kr i= fy[kkdj gLrk{kj cuuk dgk gSA th0Mh0
dh dkoZu dkih ij izn'kZ dand18 Mkyk x;kA

x x x x dzkl ckbZ fMQsal Qkj ,DT;wM
Qkj n'kjFk ,.M jke Lo:i
3 All. Ramswaroop Vs. State of U.P.
1019

;g dguk xyr gS fd Fkkuk v/;{k
vkUkUn dqekj flag ds v/khuLFk gksus ds dkj.k nckc
o'k ,aVh Vkbe dk;Zokgh dh gksA

;g Hkh dguk xyr gS fd foHkkxh; gksus
ds dkj.k xyr c;ku ns jgk gWwA

x x x x dzkl ckbZ fMQsal Qkj ,DT;wM
lqjs'k

;g eqdnek 4-05-06 dks 22-30 cts dk;e
gqvkA bl eqdnes ds dk;eh ds iwoZ ml fnu Fkkus esa
dksbZ nLrukth fjiksVZ ntZ ugh gq;h FkhA bl eqdnes
ds dk;eh ds ckn Hkh ml fnu ;kfu 4-5-06 dks dksbZ
nLrUnkth fjiksVZ Fkkus ij dk;e ugh gq;hA

eS ;g ugh crk ldrk fd bl eqdnes dh
dk;eh ds ckn 5-5-06 dks dksbZ nLrkUnkth Fkkusa esa
dk;e gqbZ fd ughA

fnukad 4-5-06 dks eS th0Mh0 esa bl
eqdnes dh Lis'ky fjiksVZ Hksts tkus dk dksbZ
mYys[k th0Mh0 esa ugh gSA bl eqdnes dh Lis'ky
fjiksVZ fdlds }kjk vkSj dc Hksth x;h eq>s ugh
ekywe gSA

fpd ,Q0vkbZ0vkj0 /kkjk 302 izn'kZ
dand15 es lh0vks0 ds gLrk{kj gS ysfdu dksbZ rkjh[k
ugh gSA eft0 ds ;gkW izi= dand15 eft0 ds ;gkW
11-5-06 dks izkIr gksus dk mYys[k gSA

ml dkye eas dksbZ rkjh[k o le; ugh
fy[kk Mkd nwljs fnu Hksth tkrh gSa fpd esa oknh ds
fu'kku vaxwBk o gLrk{kj dk dkye gSA ysfdu fpd o
izn'kZ and15 esa u rks oknh dk fu'kku vaxwBk gS vkSj u
gLrk{kj ghA

;g dguk xyr gS fd eqdnes dh
,Q0vkbZ0vkj0 o rgjhj ,aVh VkbZe o ,aVh MsV djus
lykg e'kfojk ds ckn esa rS;kj dh x;h gSA

th0Mh0 ds vuqlkj ,l0vks0 vkUkUn dqekj
flag ds jokuxh Fkkus esa fnukad 4-5-06 dks fd'kuiqj
{ks= ds fy, 12-30 cts jokuxh ntZ gSA ogkW ls muds
okilh dk dksbZ mYys[k lh0Mh0 esa ugh gSA ml
th0Mh0 vkSj ,l0vks0 dh jokuxh ftl dk;Z ds fy,
Fkkus ls gqbZ o fdl LFkku ds fy, gqbZ mldk mYys[k
ugh gSA

;g dguk xyr gS fd th0Mh0 dh baVah
,aVh VkbZe ,oa ,aVh MsV djds fy[kh x;h gksA

fnukad 11-5-06 dks dzkbe ua0 50@06
vUrxZr /kkjk 25 vkElZ ,sDV 16-30 cts dk;e fd;k
x;k FkkA ml eqdnesa dh dk;eh ls iwoZ le; 12-10
ij eqdnek dk;e gqvk FkkA

;g dguk xyr gS fd eq0ua0 50@06
/kkjk 25 vkElZ ,sDV rFkk lqjs'k dk eqdnek ,l0vks0
vkUkUn flag ds dgus o izHkko esa gksus ds dkj.k QthZ
,aVh VkbZe o ,aVh MsV djds fy[kk x;k gSA

x x x x dzkl ckbZ fMQsal Qkj ,DT;wM
f'ko ijlu

fpd ,Q0vkbZ0vkj0 esa fjiksVZ esa fnukad o
le; dk dkye gSaA mlesa fnukad 4-5-06 ds uhps
le; iMk gS ftlesa vksoj jkbZfVax dh x;h gSA ;g
djsaD'ku fjiksVZ fy[kus ds ckn fd;k x;k gSA gkFk ls
fy[k jgs Fks lgou xyrh gks ldrh gSA

;g dguk xyr gS fd igys le; nwljk
Mkyk Fkk vkSj lykg e'kfojk ds ckn nwljk le;
Mkyk x;k gSA tc eS fjiksVZ dj jgk Fkk ml le;
,l0vks0 lkgc Hkh FksA

;g dguk xyr ugh gS fd okfnuh dks
,l0vks0 lkgc igys ekSdk ns[kus ds fy, ysdj x;s
mlds ckn okil vkdj igys dk le; Mkydj
okfnuh dks cksy dj ;g rgjhj fy[kokbZ FkhA

esjs cksyus ij okpd }kjk fy[kk x;kA

c;ku lqudj rLnhd fd;kA

17-2-010 **

30. From a reading of the entire
statement of P.W.-9, the delay in sending
special report to the concerned Magistrate
is not explained. The statement of P.W.-7
will be also relevant which is as follows:-

*ih0MCyw0and7 ';ke flag iq= Jh jke
jru flag mez 45 o"kZ yxHkx is'kk fdlkuh fuoklh
fo"Bh Fkkuk vlks0 ftyk QrsgiqjA

'kiFkiwoZd c;ku fd;k fdand
1020 INDIAN LAW REPORTS ALLAHABAD SERIES

dkxt la[;k 3v@2 esjs gkFk dk fy[kk
gqvk gS ;g esus e`rd dh iRuh vk'kk nsoh ds cksyus
ij fy[kh FkhA tks vk'kk nsoh us eq>s cksyk Fkk mlh ds
vk/kkj ij eSus fy[kk Fkk D;ksafd eSa ekSds ij ugha FkkA
rgjhj fy[k tkus ckn eSaus vius gLrk{kj fd;s Fks vkSj
vk'k nsoh dk vaxwBk fu'kku yxok;k FkkA vaxwBk
fu'kku yxokus ls igys eSaus vk'kk nsoh dks rgjhj i

dkxt la[;k 3v@2 esjs gkFk dk fy[kk
gqvk gS ;g esus e`rd dh iRuh vk'kk nsoh ds cksyus
ij fy[kh FkhA tks vk'kk nsoh us eq>s cksyk Fkk mlh ds
vk/kkj ij eSus fy[kk Fkk D;ksafd eSa ekSds ij ugha FkkA
rgjhj fy[k tkus ckn eSaus vius gLrk{kj fd;s Fks vkSj
vk'k nsoh dk vaxwBk fu'kku yxok;k FkkA vaxwBk
fu'kku yxokus ls igys eSaus vk'kk nsoh dks rgjhj
पढ़कर सुनई गई थी। तहरीर पर आदशट कुंदक8 डाला
गया।

Cross by Defence for accused
Shiv Parsan

;g rgjhj eSaus jkf= es yxHkx 12 cts
fy[kh FkhA Fkkus es ;g rgjhj fy[kh xbZ FkhA 11-30 ;k
12 cts ds chp es vk'kk nsoh ds lkFk Fkkus igWqpk FkkA

;g dguk lgh gS fd eSaus rgjhj ij yxs
fu'kkuh vaxwBk ij uke ugha [kksyk gSA

eq>s vk'kk nsoh us ftrus eqfYteku ds uke
cryk;s Fks mu lHkh ds uke eSaus rgjhj es fy[k fn;s
FksA eSaus fdlh O;fDr dk uke vius rjQ ls ugha
fy[kk Fkk vk'kk nsoh ds rgjhj esa f'koijlu dk uke
ugha fy[kok;k FkkA

Cross by Defence for Accused
Suresh

eq>ls njksxk th us Fkkus esa iapk;rukek
Hkjus ds ckn cksy cksy dj rgjhj fy[kok;h FkhA fQj
dgk fd e`rd fd iRuh vk'kk nsoh us cksy cksy dj
fy[kokbZ FkhA njksxk th e`rd dh iRuh dks vius lkFk
Fkkus ys x;s Fks eSa ?kVuk ds le; ekSds ij ekStwn ugh
Fkk njksxk th us esjk dksbZ c;ku ugha fy;kA

Cross by Defence for Accused
Dasrath and Ram Swaroop

ftjg dk volj fn;k x;kA ftjg ugha fd;kA
ftjg dk volj lekIr fd;k x;kA

esjs cksyus ij gLrfyfi }kjk fy[kk x;kA

c;ku lqudj rLnhd fd;kA

g0 vLi"V

30-10-2009 **

31. The abovementioned statement of
P.W.-7 fully reveals that after preparation
of inquest, report of the incident was
written and lodged. All these facts fully
demonstrate that FIR is ante-timed.

32. The case law cited by counsel for
the appellant on the point of ante-timed
FIR, reported in (1994) 5 SCC 188,
Mehraj Singh vs. State of U.P. will be
relevant. Paragraph No. 12 of the judgment
is as follows:-

"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
3 All. Ramswaroop Vs. State of U.P.
1021
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
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."

33. The other judgment cited by
counsel for the appellant on the point of
ante-timed FIR is reported in (2006) 9 SCC
731, Budh Singh and Others vs. State of
U.P. Paragraph nos. 20 to 22 of the
judgment is as follows:-

"20. Yet again, to P.W. 8,
Shailesh Tyagi, clear suggestion was given
that "writing of diary was stopped" and FIR
was recorded when Investigating Officer
returned in the afternoon on 13.4.1992
from the place of occurrence and thereafter
the special report was sent. The FIR,
according to the said witness, was sent by
post. He merely stated that the Constable
who went to the police station, which was
at a distance of 50 kms. from the
Headquarter, took with him the FIR also
but no date or case number had been
mentioned in the prescribed column.

21. He accepted that the FIR was
produced before the Court of Chief Judicial
Magistrate on 18.4.1992.This Court in
Meharaj Singh v. State of U.P., as regards
the requirement of sending of the FIR to
the Court, the inquest report as also the
requirements
to
comply
with
other
formalities provided for external checks,
categorically held:

"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 of 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
1022 INDIAN LAW REPORTS ALLAHABAD SERIES
time it is alleged to have bee 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.