High Court · 2025

beside them. During this time, the mother of the first informant, Harpyari, in order to call Girand Singh to their house for having food, reached the hut of Baba Sukhe Singh and while at the hut of Baba Sukhe Singh, Girand Singh, Rishipal Singh, Arjun Singh and the mother of the first informant were sitting, Govind Singh with his licensed gun, his brother Pratap Singh and his son Rajesh with countrymade pistols in their hand reached on the spot. It has been stated that in the hearing of the first informant, Govind Singh had asked Girand Singh that he had got himself acquitted in the law court but on that particular day he would not leave him and therefore he fired on Girand Singh from his licensed gun with an intention to kill him. When Girand was fired at, he had fallen down but he got up from the place and started running and when he fell down while getting entangled in a certain rope, the accused Pratap Singh and Rajesh Singh from their country made pistols fired upon him. It has been stated that the first informant along with Rishipal Singh and Arjun Singh tried to catch hold of the 2 accused persons but they all ran away and while they were running away, they also flaunted their firearms and had also fired in the air. It has further been stated in the first information report that upon hearing the sound of firing, many villagers had also collected on the spot. It was stated in the first information report that Girand Singh because of the injuries sustained died on the spot. In the first information report itself it was stated that after leaving the place of incident the first informant had gone to the police station to get the first information report lodged. After the first information report was lodged at 8:30 p.m., the investigation commenced and the Investigating Officer collected from the spot plain soil and soil laden with blood. When the accused had run away, the Investigating Officer had reached their house and had tried to search them out. After the first information report was lodged Panchayatnama was conducted and thereafter the dead body was sent for postmortem which was conducted on 09.08.1982 at around 3:00 p.m. in the district of Bareilly. After completion of the investigation, charge-sheet was submitted by the police which was taken cognizance of and the Court charged the three accused persons namely Bal Govind Singh, Pratap Singh and Rajendar Pal Singh under Section 302 read with Section 34 of the I.P.C. on 01.07.1983. During trial from the side of the prosecution as many as six prosecution witnesses appeared in the witness box to give their testimony. From the side of the defence, two witnesses appeared. The 3 eyewitnesses, namely Rishipal Singh, the mother of the first informant, Smt. Harpyari and Baba Sukhe Singh, of course, though they were named in the charge-sheet forwarded by the police, did not appear in the witness box.

3. The P.W.-1, namely Suraj Pal Singh, the first informant, in his statement-in-chief had proved the contents of the first information report and had verified all that was stated in the first information report. He had stated that the moment he had reached the hut of Baba Sukhe Singh, from the western side Bal Govind, Pratap Singh and Rajesh Pal Singh along with their firearms, as was mentioned in the first information report, came towards Girand Singh and after making the utterances as was stated in the first information report, fired upon Girand Singh from a distance of around two yards and this shot was aimed at the buttock of the deceased. However, it has been stated that the Girand Singh got up from the place where he had fallen down and ran towards the eastern direction and thereafter he ran towards the northern direction and then thereafter he again ran towards the western direction but because he got entangled in a rope which was hanging from a Jamun tree, he fell down and thereafter Pratap and Rajesh, the brother of Bal Govind and the son of Bal Govind respectively, shot at him from their country- made pistols. It has been stated in the examination-in-chief that thereafter the first informant got the report written by Arjun Singh, who was also present on the spot. He had stated that it was that very report which was exhibited as 4 Exhibit Ka-1. He had stated that Baba Sukhe Singh was actually the grandfather of P.W.-1 and that though he was not directly related but he was considered a grandfather of the first informant. He had stated that Baba Sukhe Singh and he himself both were of the same caste, that is, Chauhan/Thakur. On the date when the testimony was being recorded of the P.W.-1, he had stated that around five to six months back Baba Sukhe Singh had died but he had not participated in the last rites as he was angry with Baba Sukhe Singh on account of the fact that the latter had given some affidavit against the Girand Singh, the deceased. In the cross-examination, the P.W.-1 had stated that Baba Sukhe Singh had been ill for the past two months before the incident had occurred and that he could barely eat his food and he had also stated that Baba Sukhe Singh's brother was also staying with him, who was also looking after him. When there was a certain discrepancy with regard to the statement which the P.W.-1 had given to the police under Section 161 Cr.P.C. and when question with regard to that was put, he had stated that he had no idea as to how that statement got recorded. Upon being cross-examined, he once again mentioned that after the accused had run away and 10 to 15 minutes have elapsed, he had got the first information report scribed by Arjun. He has thereafter stated that before the sun had set at around 4:30 p.m., he had started off for the police station on foot and when the Daroga Ji was not available at the police station, he had got the report lodged in 5 the office and thereafter when the Daroga Ji had called him, he had gone again. He had thereafter again stated that he started his journey backward home and reached at around 2- 3:00 a.m., the next day. Upon being cross-examined as to what was the status of the rains, he had stated that there was no rain on that day but 2 or 3 days earlier, there was heavy rain and in between the village and the police station, he had to cross a river which was in full spate and which he had to cross by swimming. Again upon being questioned as to where he had put the F.I.R. which was written on a piece of paper, he had stated that while he was swimming, he had held the paper in his hand. He emphatically denied the fact that infact the first information report was got lodged on the next day.

4. P.W.-2 again is an eye-witness, Arjun Singh, who as per the first information report was sitting besides Girand Singh when he had reached the hut of Baba Sukhe Singh. P.W.-2, Arjun Singh had also stated exactly the same story as was told by P.W.-1. He had stated that when the deceased had fallen down after getting entangled in a rope, he had fallen down on his back and thereafter the accused had fired upon him. He had stated that the Daroga had come on the next day at around 7 a.m. and after reaching the spot, he had started off with the investigation there itself.

5. P.W.-3 is the doctor who had conducted the postmortem of the deceased and had prepared the postmortem report and he had very categorically stated that the pelvic bone had 6 multiple fractures and was broken into pieces. Looking at injury no.6 and 7, he had stated that it appeared that the assailants were coming from the back and left side of the deceased and he had also stated that there were at least four gunshots on the body of the deceased.

6. P.W.-4 is one Ram Bahadur who had prepared the chick and had also proven the same. He had stated that the copy of the first information report was sent to the Magistrate after it was lodged on 07.08.1982 only on 09.08.1982. This delay he had stated had occurred because 08.08.1982 was a Sunday. He had stated that he had also not remembered that a wireless message had been sent in regard to the lodging of the first information report.

7. P.W.-5 is the Constable Jagpal Singh who had taken the body for the postmortem. He had stated very categorically that he reached the hospital very late because there was heavy rainfall and that the river was flooded. He had also stated that the truck on which the dead body was being taken for postmortem had developed some technical problems and therefore he had reached the hospital late. He had also stated that in the river which he had to cross there was no boat etc. available.

8. P.W.-6 is the Investigating Officer, Sri P.K. Thapar. He has also stated in his examination-in-chief, the way he had conducted the investigation. He has, in his cross- examination, again testified to the effect that on the date of 7 the incident, the river which came in between the village and the police station was heavily flooded.

9. Thereafter, the statements of the accused were recorded under Section 313 of the Cr.P.C. They denied having committed the crime and had claimed to be innocent. The defence witness, D.W.-1, was a businessman who was running a gun shop and he had stated in his examination-in- chief that the licensed gun which was alleged to have been used in the murder was sent to his shop on 22.07.1982 and was only returned to the rightful owner, Sri Bal Govind Singh on 08.08.1982. He had, in his cross-examination, in fact affirmed that till 10.01.1982, the Register was looked into by some government official, but after 10.01.1982, it was not looked into by any government official. D.W.-2 is the Stenographer in the office of the District Magistrate who had stated that the report with regard to the lodging of the First Information Report was received in the office of the District Magistrate on 09.08.2008. Thereafter, when the trial concluded, the IVth Additional Sessions Judge, Bareilly, on the basis of the evidence available, concluded that the appellants were guilty of the charges framed against them and he punished Bal Govind Singh, his brother Pratap Singh and the third accused, Rajendar Pal Singh, who was the son of Bal Govind Singh, to undergo life imprisonment under Section 302 read with Section 34 of I.P.C.

10. The learned counsel for the appellant, Sri Rahul Mishra, has made the following submissions: 8 (I) When the First Information Report was lodged, it was given out that there were five eyewitnesses, namely, Rishipal Singh, Baba Sukhe Singh, the mother of the first informant Smt. Harpyari Devi, Arjun Singh, and the first informant, Suraj Pal himself, but neither did Rishipal appear in the witness box nor did the mother of the first informant, Smt. Harpyari, appear in the witness box. The learned counsel has argued that even though Sukhe Singh had not appeared in the witness box as he was probably very old, but as per him, he had given an affidavit against the prosecution and, therefore, probably he was never produced in the witness box. He submits that the entire prosecution story, therefore, becomes unbelievable. (II) Learned counsel for the appellant states that the prosecution witnesses, P.W.-1 and P.W.-2, were in fact never there at the spot and that they had cooked up the entire story. To bolster his argument, learned counsel for the appellant states that as the P.W.-1 and P.W.-2 were never there on the place of incident, they were also not reliable witnesses. He states that if the prosecution story is taken into account, then it becomes highly unbelievable that if a person who had been shot at in the pelvis and his pelvic bone had been fractured into pieces then he would definitely not been able to run in the manner the P.W.-1 and P.W.-2 had stated. They had stated that he had, to begin with, ran in the eastern direction and thereafter he ran towards the northern direction and thereafter again he ran towards the western direction and 9 there he got entangled in a rope hanging from a Jamun tree and because of that he fell down and then he was shot at by the assailants. Learned counsel for the appellant states that the presence of the appellant and the truthfulness of the prosecution witnesses further become doubtful when the P.W.-1 stated that he got the First Information Report written by the P.W.2-, Arjun Singh, and thereafter he had commenced his 18 km journey towards the police station on foot and in between he had to swim across a river which was flooded to the brim. Learned counsel for the appellant further states that the river was, in fact, flooded, was also clear from the statement of the Investigating Officer, who had stated that the river, in fact, was extremely flooded. He thereafter also relies upon the statement of P.W.-2 to state that the Investigating Officer, in fact, had come on the next day i.e. on 09.08.1982 and not on 07.08.1982 because he had remembered that the Investigating Officer could not cross the river, which was extremely flooded on 07.08.1982. Learned counsel for the appellant, therefore, states that it was absolutely impossible for the first informant to have taken the First Information Report in his hand while he swam down the river, carrying the paper in his hand. He states that the paper would have become absolutely wet and would not have been in a position to be presented before the police station. He, therefore, submits that the entire story of the prosecution witnesses, who claim to be eyewitnesses, becomes unbelievable. Relying upon the judgment of the 10 Supreme Court in Vadivelu Thevar vs. The State of Madras reported in AIR 1957 SC 614, he submitted that there are three kinds of witnesses: (a) wholly reliable; (b) wholly unreliable unbelievable and (c) neither wholly reliable nor wholly unreliable. In the instant case, he states that both P.W.-1 and P.W.-2 came under the category of “wholly unbelievable”, and he, therefore, states that the entire prosecution story becomes a humbug. (III) Learned counsel for the appellant states that as per the Code of Criminal Procedure, when a First Information Report is lodged, it should be immediately transmitted to the Magistrate. In the instant case, he states that the police report was, in fact, transmitted to the office of the District Magistrate on 09.08.1982, and the excuse the Investigating Officer was taking that the office was closed on 08.08.1982, being Sunday was unbelievable. Learned counsel for the appellant further submitted that the appellant no.1 had died during the pendency of the appeal and the appeal vis-vis appellant no.1 had abated on 31.01.2024. Learned counsel for the appellant further, relying upon the decision of the Supreme Court in Abdul Razaq vs. State of Uttar Pradesh, (2015) 15 SCC 637, stated that the appellant no.3 had been declared a juvenile by the J.J. Board, Bareilly on 01.07.2024. He states that the appellant no.3 must have been given the benefits which a juvenile would have got, had it been 11 discovered at the time of trial that he was juvenile at the time of offence.

11. Learned A.G.A., Sri C.B. Dhar Dubey, however, has supported the judgment of conviction and has submitted that the appeal deserves to be dismissed inasmuch as there were two reliable eyewitnesses in the form of P.W.-1 and P.W.-2, and their evidence could not be lightly brushed aside. He submitted that non-appearance of the mother and other persons who were available on the day of the incident, namely Rishipal and Sukhe Singh, did not in any manner prejudice the prosecution case. Learned counsel for the State further states that it was just possible that while the P.W.-1 had swum down the river, he had held his hand in such a way that the paper was in the air. He submits that there was no question put to the P.W.-1 as to how good a swimmer he was, and therefore, it had to be presumed that he must have taken the paper in such a manner that it did not get wet. Learned A.G.A. has further submitted that it also did not matter much if the police report, as was required to be sent after the First Information Report was got lodged, was sent a little late to the office of the District Magistrate.

12. Having heard the learned counsel for the appellant, Sri Rahul Mishra and learned A.G.A., Sri C.B. Dhar Dubey, we are of the view that the appeal deserves to be allowed. The P.W.-1 and P.W.-2 definitely do not appear to be very reliable witnesses. They have stated the story in such a manner which definitely could not be believed. A person who had 12 been shot at the pelvic bone and whose pelvic bone had been fractured into pieces, could not have run in the manner it had been stated in the statement of the two witnesses. It, therefore, appears that either the P.W.-1 and P.W.-2 were not there on the spot or they were concocting the entire story. For a person to run, having multiple pelvic fractures, is against all logic and therefore, we definitely feel that the story with regard to the manner in which the incident had occurred is not believable. Further, when the P.W.-1 states that he had gone to the police station with the F.I.R. in his hand while the river which he had to cross was absolutely flooded, also is not believable. From the statement of P.W.-1, P.W.-2 and that of the Investigating Officer, we have been made to see that the river was in full flood and there was no boat available. The river was so much flooded that even the Investigating Officer did not come to the place of incident on

08.08.1982 after hearing about the incident and that he came on the next day, when there was daylight and he could cross the river by himself or by some means, and therefore, the story of the P.W.-1 that he had taken the First Information Report in his hand and had crossed the river swimming also appears to be absolutely unbelievable. Further, the Court is of the view that as per the established law, the police report ought to have been sent as soon as possible and no tangible and believable reason has been given as to why the report reached the police station after 48 hours. 13

13. Thus, for all the reasons which we have given, we are of the view that the appeal deserves to be allowed and is, accordingly, allowed. The judgment and order dated

30.08.1983 passed in Sessions Trial No. 580 of 1982 is quashed and is set aside. The appellants are acquitted of the charges which were levelled against them. If they are on bail, the bail bonds and the sureties stand discharged.

14. The appeal stands accordingly allowed. Order Date :- 8.5.2025 Abhishek Gupta (Siddhartha Varma,J.) (Syed Qamar Hasan Rizvi,J.) 14 ABHISHEK GUPTA High Court of Judicature at Allahabad

beside them. During this time, the mother of the first informant, Harpyari, in order to call Girand Singh to their house for having food, reached the hut of Baba Sukhe Singh and while at the hut of Baba Sukhe Singh, Girand Singh, Rishipal Singh, Arjun Singh and the mother of the first informant were sitting, Govind Singh with his licensed gun, his brother Pratap Singh and his son Rajesh with countrymade pistols in their hand reached on the spot. It has been stated that in the hearing of the first informant, Govind Singh had asked Girand Singh that he had got himself acquitted in the law court but on that particular day he would not leave him and therefore he fired on Girand Singh from his licensed gun with an intention to kill him. When Girand was fired at, he had fallen down but he got up from the place and started running and when he fell down while getting entangled in a certain rope, the accused Pratap Singh and Rajesh Singh from their country made pistols fired upon him. It has been stated that the first informant along with Rishipal Singh and Arjun Singh tried to catch hold of the 2 accused persons but they all ran away and while they were running away, they also flaunted their firearms and had also fired in the air. It has further been stated in the first information report that upon hearing the sound of firing, many villagers had also collected on the spot. It was stated in the first information report that Girand Singh because of the injuries sustained died on the spot. In the first information report itself it was stated that after leaving the place of incident the first informant had gone to the police station to get the first information report lodged. After the first information report was lodged at 8:30 p.m., the investigation commenced and the Investigating Officer collected from the spot plain soil and soil laden with blood. When the accused had run away, the Investigating Officer had reached their house and had tried to search them out. After the first information report was lodged Panchayatnama was conducted and thereafter the dead body was sent for postmortem which was conducted on 09.08.1982 at around 3:00 p.m. in the district of Bareilly. After completion of the investigation, charge-sheet was submitted by the police which was taken cognizance of and the Court charged the three accused persons namely Bal Govind Singh, Pratap Singh and Rajendar Pal Singh under Section 302 read with Section 34 of the I.P.C. on 01.07.1983. During trial from the side of the prosecution as many as six prosecution witnesses appeared in the witness box to give their testimony. From the side of the defence, two witnesses appeared. The 3 eyewitnesses, namely Rishipal Singh, the mother of the first informant, Smt. Harpyari and Baba Sukhe Singh, of course, though they were named in the charge-sheet forwarded by the police, did not appear in the witness box.

3. The P.W.-1, namely Suraj Pal Singh, the first informant, in his statement-in-chief had proved the contents of the first information report and had verified all that was stated in the first information report. He had stated that the moment he had reached the hut of Baba Sukhe Singh, from the western side Bal Govind, Pratap Singh and Rajesh Pal Singh along with their firearms, as was mentioned in the first information report, came towards Girand Singh and after making the utterances as was stated in the first information report, fired upon Girand Singh from a distance of around two yards and this shot was aimed at the buttock of the deceased. However, it has been stated that the Girand Singh got up from the place where he had fallen down and ran towards the eastern direction and thereafter he ran towards the northern direction and then thereafter he again ran towards the western direction but because he got entangled in a rope which was hanging from a Jamun tree, he fell down and thereafter Pratap and Rajesh, the brother of Bal Govind and the son of Bal Govind respectively, shot at him from their country- made pistols. It has been stated in the examination-in-chief that thereafter the first informant got the report written by Arjun Singh, who was also present on the spot. He had stated that it was that very report which was exhibited as 4 Exhibit Ka-1. He had stated that Baba Sukhe Singh was actually the grandfather of P.W.-1 and that though he was not directly related but he was considered a grandfather of the first informant. He had stated that Baba Sukhe Singh and he himself both were of the same caste, that is, Chauhan/Thakur. On the date when the testimony was being recorded of the P.W.-1, he had stated that around five to six months back Baba Sukhe Singh had died but he had not participated in the last rites as he was angry with Baba Sukhe Singh on account of the fact that the latter had given some affidavit against the Girand Singh, the deceased. In the cross-examination, the P.W.-1 had stated that Baba Sukhe Singh had been ill for the past two months before the incident had occurred and that he could barely eat his food and he had also stated that Baba Sukhe Singh's brother was also staying with him, who was also looking after him. When there was a certain discrepancy with regard to the statement which the P.W.-1 had given to the police under Section 161 Cr.P.C. and when question with regard to that was put, he had stated that he had no idea as to how that statement got recorded. Upon being cross-examined, he once again mentioned that after the accused had run away and 10 to 15 minutes have elapsed, he had got the first information report scribed by Arjun. He has thereafter stated that before the sun had set at around 4:30 p.m., he had started off for the police station on foot and when the Daroga Ji was not available at the police station, he had got the report lodged in 5 the office and thereafter when the Daroga Ji had called him, he had gone again. He had thereafter again stated that he started his journey backward home and reached at around 2- 3:00 a.m., the next day. Upon being cross-examined as to what was the status of the rains, he had stated that there was no rain on that day but 2 or 3 days earlier, there was heavy rain and in between the village and the police station, he had to cross a river which was in full spate and which he had to cross by swimming. Again upon being questioned as to where he had put the F.I.R. which was written on a piece of paper, he had stated that while he was swimming, he had held the paper in his hand. He emphatically denied the fact that infact the first information report was got lodged on the next day.

4. P.W.-2 again is an eye-witness, Arjun Singh, who as per the first information report was sitting besides Girand Singh when he had reached the hut of Baba Sukhe Singh. P.W.-2, Arjun Singh had also stated exactly the same story as was told by P.W.-1. He had stated that when the deceased had fallen down after getting entangled in a rope, he had fallen down on his back and thereafter the accused had fired upon him. He had stated that the Daroga had come on the next day at around 7 a.m. and after reaching the spot, he had started off with the investigation there itself.

5. P.W.-3 is the doctor who had conducted the postmortem of the deceased and had prepared the postmortem report and he had very categorically stated that the pelvic bone had 6 multiple fractures and was broken into pieces. Looking at injury no.6 and 7, he had stated that it appeared that the assailants were coming from the back and left side of the deceased and he had also stated that there were at least four gunshots on the body of the deceased.

6. P.W.-4 is one Ram Bahadur who had prepared the chick and had also proven the same. He had stated that the copy of the first information report was sent to the Magistrate after it was lodged on 07.08.1982 only on 09.08.1982. This delay he had stated had occurred because 08.08.1982 was a Sunday. He had stated that he had also not remembered that a wireless message had been sent in regard to the lodging of the first information report.

7. P.W.-5 is the Constable Jagpal Singh who had taken the body for the postmortem. He had stated very categorically that he reached the hospital very late because there was heavy rainfall and that the river was flooded. He had also stated that the truck on which the dead body was being taken for postmortem had developed some technical problems and therefore he had reached the hospital late. He had also stated that in the river which he had to cross there was no boat etc. available.

8. P.W.-6 is the Investigating Officer, Sri P.K. Thapar. He has also stated in his examination-in-chief, the way he had conducted the investigation. He has, in his cross- examination, again testified to the effect that on the date of 7 the incident, the river which came in between the village and the police station was heavily flooded.

9. Thereafter, the statements of the accused were recorded under Section 313 of the Cr.P.C. They denied having committed the crime and had claimed to be innocent. The defence witness, D.W.-1, was a businessman who was running a gun shop and he had stated in his examination-in- chief that the licensed gun which was alleged to have been used in the murder was sent to his shop on 22.07.1982 and was only returned to the rightful owner, Sri Bal Govind Singh on 08.08.1982. He had, in his cross-examination, in fact affirmed that till 10.01.1982, the Register was looked into by some government official, but after 10.01.1982, it was not looked into by any government official. D.W.-2 is the Stenographer in the office of the District Magistrate who had stated that the report with regard to the lodging of the First Information Report was received in the office of the District Magistrate on 09.08.2008. Thereafter, when the trial concluded, the IVth Additional Sessions Judge, Bareilly, on the basis of the evidence available, concluded that the appellants were guilty of the charges framed against them and he punished Bal Govind Singh, his brother Pratap Singh and the third accused, Rajendar Pal Singh, who was the son of Bal Govind Singh, to undergo life imprisonment under Section 302 read with Section 34 of I.P.C.

10. The learned counsel for the appellant, Sri Rahul Mishra, has made the following submissions: 8 (I) When the First Information Report was lodged, it was given out that there were five eyewitnesses, namely, Rishipal Singh, Baba Sukhe Singh, the mother of the first informant Smt. Harpyari Devi, Arjun Singh, and the first informant, Suraj Pal himself, but neither did Rishipal appear in the witness box nor did the mother of the first informant, Smt. Harpyari, appear in the witness box. The learned counsel has argued that even though Sukhe Singh had not appeared in the witness box as he was probably very old, but as per him, he had given an affidavit against the prosecution and, therefore, probably he was never produced in the witness box. He submits that the entire prosecution story, therefore, becomes unbelievable. (II) Learned counsel for the appellant states that the prosecution witnesses, P.W.-1 and P.W.-2, were in fact never there at the spot and that they had cooked up the entire story. To bolster his argument, learned counsel for the appellant states that as the P.W.-1 and P.W.-2 were never there on the place of incident, they were also not reliable witnesses. He states that if the prosecution story is taken into account, then it becomes highly unbelievable that if a person who had been shot at in the pelvis and his pelvic bone had been fractured into pieces then he would definitely not been able to run in the manner the P.W.-1 and P.W.-2 had stated. They had stated that he had, to begin with, ran in the eastern direction and thereafter he ran towards the northern direction and thereafter again he ran towards the western direction and 9 there he got entangled in a rope hanging from a Jamun tree and because of that he fell down and then he was shot at by the assailants. Learned counsel for the appellant states that the presence of the appellant and the truthfulness of the prosecution witnesses further become doubtful when the P.W.-1 stated that he got the First Information Report written by the P.W.2-, Arjun Singh, and thereafter he had commenced his 18 km journey towards the police station on foot and in between he had to swim across a river which was flooded to the brim. Learned counsel for the appellant further states that the river was, in fact, flooded, was also clear from the statement of the Investigating Officer, who had stated that the river, in fact, was extremely flooded. He thereafter also relies upon the statement of P.W.-2 to state that the Investigating Officer, in fact, had come on the next day i.e. on 09.08.1982 and not on 07.08.1982 because he had remembered that the Investigating Officer could not cross the river, which was extremely flooded on 07.08.1982. Learned counsel for the appellant, therefore, states that it was absolutely impossible for the first informant to have taken the First Information Report in his hand while he swam down the river, carrying the paper in his hand. He states that the paper would have become absolutely wet and would not have been in a position to be presented before the police station. He, therefore, submits that the entire story of the prosecution witnesses, who claim to be eyewitnesses, becomes unbelievable. Relying upon the judgment of the 10 Supreme Court in Vadivelu Thevar vs. The State of Madras reported in AIR 1957 SC 614, he submitted that there are three kinds of witnesses: (a) wholly reliable; (b) wholly unreliable unbelievable and (c) neither wholly reliable nor wholly unreliable. In the instant case, he states that both P.W.-1 and P.W.-2 came under the category of “wholly unbelievable”, and he, therefore, states that the entire prosecution story becomes a humbug. (III) Learned counsel for the appellant states that as per the Code of Criminal Procedure, when a First Information Report is lodged, it should be immediately transmitted to the Magistrate. In the instant case, he states that the police report was, in fact, transmitted to the office of the District Magistrate on 09.08.1982, and the excuse the Investigating Officer was taking that the office was closed on 08.08.1982, being Sunday was unbelievable. Learned counsel for the appellant further submitted that the appellant no.1 had died during the pendency of the appeal and the appeal vis-vis appellant no.1 had abated on 31.01.2024. Learned counsel for the appellant further, relying upon the decision of the Supreme Court in Abdul Razaq vs. State of Uttar Pradesh, (2015) 15 SCC 637, stated that the appellant no.3 had been declared a juvenile by the J.J. Board, Bareilly on 01.07.2024. He states that the appellant no.3 must have been given the benefits which a juvenile would have got, had it been 11 discovered at the time of trial that he was juvenile at the time of offence.

11. Learned A.G.A., Sri C.B. Dhar Dubey, however, has supported the judgment of conviction and has submitted that the appeal deserves to be dismissed inasmuch as there were two reliable eyewitnesses in the form of P.W.-1 and P.W.-2, and their evidence could not be lightly brushed aside. He submitted that non-appearance of the mother and other persons who were available on the day of the incident, namely Rishipal and Sukhe Singh, did not in any manner prejudice the prosecution case. Learned counsel for the State further states that it was just possible that while the P.W.-1 had swum down the river, he had held his hand in such a way that the paper was in the air. He submits that there was no question put to the P.W.-1 as to how good a swimmer he was, and therefore, it had to be presumed that he must have taken the paper in such a manner that it did not get wet. Learned A.G.A. has further submitted that it also did not matter much if the police report, as was required to be sent after the First Information Report was got lodged, was sent a little late to the office of the District Magistrate.

12. Having heard the learned counsel for the appellant, Sri Rahul Mishra and learned A.G.A., Sri C.B. Dhar Dubey, we are of the view that the appeal deserves to be allowed. The P.W.-1 and P.W.-2 definitely do not appear to be very reliable witnesses. They have stated the story in such a manner which definitely could not be believed. A person who had 12 been shot at the pelvic bone and whose pelvic bone had been fractured into pieces, could not have run in the manner it had been stated in the statement of the two witnesses. It, therefore, appears that either the P.W.-1 and P.W.-2 were not there on the spot or they were concocting the entire story. For a person to run, having multiple pelvic fractures, is against all logic and therefore, we definitely feel that the story with regard to the manner in which the incident had occurred is not believable. Further, when the P.W.-1 states that he had gone to the police station with the F.I.R. in his hand while the river which he had to cross was absolutely flooded, also is not believable. From the statement of P.W.-1, P.W.-2 and that of the Investigating Officer, we have been made to see that the river was in full flood and there was no boat available. The river was so much flooded that even the Investigating Officer did not come to the place of incident on

08.08.1982 after hearing about the incident and that he came on the next day, when there was daylight and he could cross the river by himself or by some means, and therefore, the story of the P.W.-1 that he had taken the First Information Report in his hand and had crossed the river swimming also appears to be absolutely unbelievable. Further, the Court is of the view that as per the established law, the police report ought to have been sent as soon as possible and no tangible and believable reason has been given as to why the report reached the police station after 48 hours. 13

13. Thus, for all the reasons which we have given, we are of the view that the appeal deserves to be allowed and is, accordingly, allowed. The judgment and order dated

30.08.1983 passed in Sessions Trial No. 580 of 1982 is quashed and is set aside. The appellants are acquitted of the charges which were levelled against them. If they are on bail, the bail bonds and the sureties stand discharged.

14. The appeal stands accordingly allowed. Order Date :- 8.5.2025 Abhishek Gupta (Siddhartha Varma,J.) (Syed Qamar Hasan Rizvi,J.) 14 ABHISHEK GUPTA High Court of Judicature at Allahabad