State v. Counsel for

1. Heard Sri Arun Kumar Shukla, learned Amicus Curiae appearing on behalf of the sole surviving appellant Amar Singh and learned AGA for the State.

2. Present criminal appeal arises from the judgement and order dated 13.09.1985 passed by Sri Ramji Lal learned Ist Additional Sessions Judge, Etawah, in Sessions Trial No. 330 of 1984 (State vs. Mauji Lal, Amar Singh and Lajja Ram). By that judgement and order, the learned court below has convicted all the three accused for offence under Section 148 I.P.C. and sentenced them three years rigorous imprisonment and also it has convicted all the three accused for offence under Section 302 read with 149 I.P.C. and sentenced them for life. Both sentences are to run concurrently.

3. Briefly, the appellants have been convicted for offence of committing murder of the deceased Gaya Prasad on 21.09.1984. All the appellants were enlarged on bail in this appeal. During its pendency, the appellant nos. 1 and 3, namely, Mauji Lal and Lajja Ram have expired. The appeal filed on behalf of appellant nos. 1 and 3 has abated. The appeal is amongst the oldest pending before this Court. Accordingly, we appointed Amicus Curiae to assist the Court on behalf of the sole surviving appellant Amar Singh.

4. The prosecution story emerged on the strength of a Written Report submitted by Virendra Singh (P.W.-1) (who is the son of the deceased Gaya Prasad), made to the Police Station Ajitmal, Etawah on 21.09.1984 reporting that his father Gaya Prasad had been murdered by five persons i.e. three accused persons Mauji Lal, Amar Singh and Lajja Ram and two unknown persons who assaulted the deceased at about 6:30 p.m. near the agricultural 2 CRLA No. 2507 of 1985 field of Ram Sanehi, in village Muhaddinpur. They caused that occurrence by surrounding the deceased and assaulting him with Knife, Axe, Kanta / sharp edged weapon, Spear / 'Bhala'.

5. At the time of occurrence, the first informant Virendra Singh (P.W.-1) was following the deceased (both on bicycle) a little behind. On alarm raised by the said witness, his step brother Radhey Shyam (P.W.-2) and Brahmadin (not examined) arrived. On their challenging the assailants, the latter fled. In that regard, it was further stated, both the deceased and the said witness Virendra Singh (P.W.-1), were returning from Atsu where they had gone in connection with pending consolidation proceedings.

6. As to motive, it was narrated - the deceased was experiencing bad relations with accused Mauji Lal and others for the last many days. On such Written Report, the F.I.R. was registered at Police Station Ajitmal situated at a distance of about 3 miles from the place of occurrence, at 8:15 p.m. on 21.09.1984. It is Ex.Ka-3 at the trial.

7. On that date itself, the S.I. Ram Pal Singh, the Investigation Officer recovered samples of plain and blood stained earth from the place of occurrence. That Recovery Memo is Ex. Ka.-13 at the trial. He also recovered the bicycle of the deceased and handed over its custody to Virendra Singh (P.W.-1). That Recovery Memo is Ex. Ka.-2 at the trial.

8. Thereafter, (according to the prosecution story) Inquest Report was prepared by S.I. Devendra Kumar (not examined at the trial), between 9:30 p.m. - 10:30 p.m. Relevant to the present appeal, two aspects have been highlighted by learned Amicus Curiae. First, Section description "147 / 148 / 149" has been written on the header of the first page and also in the body of the Inquest Report, exactly above Section 302 I.P.C., by way of a separate line drawn over the, words "धारा 302 I.P.C." Second, as to weapon, the word "बल्लम" has been clearly added to the original text, later i.e. after preparation of the original text. Then, different weapon, "कु ल्हाड़ी व चाकू " and "कु ल्हाड़ी वगैरा " has been disclosed on the first and second pages of that Inquest Report. That is not consistent to the weapon description mentioned in the F.I.R. or on the last page of the Inquest Report wherein following weapon description has been given - "कु ल्हाड़ी, चाकू , कांता, बल्लम वगैरा ". Third, it has been pointed out, absolutely no description of the accused has been given in the Inquest Report. The Inquest Report is Ex.Ka-8 at the trial.

9. Thereafter, at 3:30 p.m. on 22.09.1984 autopsy examination on the dead body of the deceased was conducted by Dr. M. Ali (P.W.-5). In that he noted the following ante-mortem injuries :- 3 CRLA No. 2507 of 1985

1. Incised wound 3.5 cms x 1 cm x bone deep on the top of x Scalp 13 cms above the right ear directing obliquely. 2. Incised wound 12 cms x 2.5 cm x brain cavity deep on the forehead, left eye and nose pleura vertically oblique. 3. Incised wound 10 cms x 2 cms x none deep on the front of neck in the middle cutting trachea, and ossophagus and cut mack of body of vartibra. 4. Multiple abrasions on an area of 10 cms x 2 cms on the external surface left forearm in the middle. 5. Abrasion 2 cms x 1 cm on outer surface of left elbow joint. 6. Abrasion 3.5 cms x 1.5 cms on the lateral side upper part of left thigh. 7. Abrasion 7 cms x 1.5 cms on the outer surface of right upper arm in the middle. 8. Incised Wound 6.5 cms x 1 cm x muscle deep on the right ingeuinal region directing horizontolly. 9. Punctured wound 3 cms x 2 cms x 6 cms on the left ingeuinal. region directing backward and upward. 10. Incised wound 2.5 cms x 1 cm x muscle deep on the left ingeuinal region 1 cm below the injury No. 9.

11. Abrasion 2 cms x 2 cms on the front of right knee joint.

10. Serology Report was also obtained from the Forensic Science Laboratory, Agra. It is dated 18.06.1985. It reported presence of human blood on various items such as sample of soil and clothing of the deceased.

11. Upon completion of investigation, charge sheet was submitted by S.I. Ram Pal Singh (P.W.-6). On the case being committed for trial to the Court of Sessions, the following charge came to be framed against the appellant Amar Singh :- "That you with your other 4 associates on 21.9.84 at about 2.30 p.m. at Atsu Mohaddinpur Road situated in village Mohaddinpur P.S. Ajitmal District Etawah were members of an unlawful assembly and in prosecution of the common object of such assembly i.e. did commit the murder of Gya Prasad, committed the offence of riot and at that time you were armed with an axe which is a deadly weapon and you thereby committed an offence punishable under section 148 I.P.C. and within my cognigence."

12. At the trial, besides the above documentary evidence, the prosecution relied on oral evidence led by six witnesses. In that two sons of the deceased Gaya Prasad were examined as eye witness account. The first informant Virendra Singh was examined as P.W.-1 while Radhey Shyam was examined as P.W.-2. P.W.-1 tried to prove that he was accompanying the deceased on his bicycle, returning home from Atsu, where they had gone in 4 CRLA No. 2507 of 1985 connection with pending consolidation proceedings.

13. At about 6:30 p.m., the occurrence was caused - by the three named accused persons and two unknown assailants. In that, the present surviving appellant Amar Singh was assigned the weapon axe, Mauji Lal was assigned knife and Lajja Ram was assigned kanta / heavy sharp edged weapon. The unknown assailants were assigned the weapon kanta / heavy sharp edged weapon / Spear / 'बल्लम'. On alarm being raised, Radhey Shyam (P.W.-2) and Brahmadin (not examined), arrived. On challenge raised, the assailants fled.

14. By way of motive, he tried to prove that the deceased was the village Pradhan. He did not have good relations with the accused persons. In that Lajja Ram (since deceased) had encroached on Gaon Sabha land for which he was fined while the deceased was the Gram Pradhan. He also narrated, there was another dispute with Lajja Ram pertaining to Sheesham tree. Second, he narrated, the present surviving appellant Amar Singh was a dacoit facing many cases. Whenever, he was arrested, he suspected that the deceased had got him arrested. Only 15 - 20 days prior to the occurrence, he had been released on bail. The accused Mauji Lal was the real brother of Amar Singh. Virendra Singh proved the Written Report as also the blood stained clothes of the deceased.

15. The step brother of Virendra Singh (P.W.-1) was examined as P.W.-2. He too was aged about 30 years. He supported the story narrated by Virendra Singh (P.W.-1). However, he had not accompanied the deceased, at the time of the occurrence. He heard cries for help of Virendra Singh (P.W.-1), from a distance of about 500 paces. He ran to the place of occurrence and saw all five accused, three named and the other two were persons from his village. He ascribed an axe to Amar Singh, kanta / heavy sharp edged weapon to the accused Lajja Ram and knife to the accused Mauji Lal. The unknown assailants were assigned Spear and kanta / heavy sharp edged weapon. At that time, Brahmadin (not examined) also arrived. On being challenged by them, the assailants fled.

16. Thereafter, Head Constable Balvir Singh was examined as P.W-3. He proved the preparation of the check report and the relevant G.D. entry. Thereafter, Constable Vijay Shanker was examined as P.W-4. He proved the transportation of the dead body of the deceased from the place of the occurrence to the mortuary. Thereafter, Dr. M. Ali was examined as P.W-5. He proved the ante mortem injuries suffered by the deceased. Last, S.I. Ram Pal Singh, was examined as P.W-6. He proved the recovery and investigation. He also proved that charge-sheet had been submitted by the second Investigation Officer Gaya Pal (not examined). 5 CRLA No. 2507 of 1985

17. Thereafter the statement of the accused persons was recorded under Section 313 Cr.P.C. The appellants Amar Singh claimed false prosecution. In that state of the evidence, the learned Court below has convicted the appellants and sentenced them as above.

18. Submissions of learned Amicus Curiae are - in the first place, no one saw the occurrence. The presence of Virendra Singh (P.W-1) and Radhey Shyam (P.W-2) is wholly doubtful. Brahmadin who was working on an adjoining or nearby agricultural field was deliberately not produced by the prosecution, to prove the narration of the occurrence. During his cross-examination, Virendra Singh (P.W-1) could not establish his presence, beyond reasonable doubt. He could neither recall the name of the Consolidation Officials, who he had met and talked to for more than an hour before the occurrence nor he could establish any particular work / discussion in that meeting. Admittedly, neither the deceased nor the said witnesses were carrying any documents pertaining to consolidation. Further doubt emerged that the Consolidation Office was not at Atsu but at Babarpur. Though, he denied the suggestion that the deceased had gone to Babarpur, during his cross-examination, the Investigation Officer, S.I. Ram Pal Singh, did admit that Subedar, a charge- sheet witness, who was later discharged, had made statement under Section 161 Cr.P.C., that the deceased visited Babarpur and met the Consolidation Officials on the date of occurrence, at about 04.00 pm. That part of the story was completely and deliberately hidden from the Court. For that reason itself, a reasonable doubt exists as to the truthfulness of the story narrated to the Court. Radhey Shyam (P.W-2) has offered, a completely different version to the extent he claims he was going to bring his father back, while Virendra Singh (P.W-1) states that he was accompanying his father. There are inherent contradictions in the prosecution story, to that extent.

19. Second, the presence of Virendra Singh (P.W-1) and Radhey Shyam (P.W-2) - both highly interested witnesses, has been doubted on the strength of discrepancies existing in the Inquest Report and the First Information Report. If facts were proved, in the first place, the Inquest Report would have reflected the facts disclosed to the Investigation Officer and, therefore, in the FIR lodged, more than an hour prior in time. The discrepancies in the Inquest Report as noted above are therefore, material. They clearly suggest that the dead body of the deceased Gaya Prasad was first found lying in the agricultural field. The Inquest Report was thus prepared treating a case to be one under Section 302 IPC only. Later, the story emerged as claimed to be recorded in the FIR, which in turn, compelled the police authorities to make changes in the Inquest Report to make it consistent to the FIR narration. Though section addition and weapon description was made to the extent it 6 CRLA No. 2507 of 1985 was possible and in the manner narrated above, still the names of the accused persons did not find mention in the Inquest Report. That was not possible, except by changing the entire document. That was impossible.

20. Further doubt has been raised for the reason that there is long delay of time between the discovery of the body and the movement of the same to the mortuary. Though, the Inquest Report was completed at 10.30 pm and the dead body moved to the police lines on a tractor trolley at around 11.00 p.m. Prima facie, the Form-13, Challan Nash, indicates that, that movement was completed around 2:15 pm, next day. The distance between the place of occurrence and the district headquarters being three miles, that itself indicates that the prosecution had a large margin of time to manufacture the false narration.

21. Fourth, absolutely no motive existed with the present appellant to cause the occurrence. In the first place, during his cross-examination, Virendra Singh (P.W-1) could not establish existence of a single police case against the present appellant, less so of dacoity.

22. Fifth, it came to be firmly established during his cross-examination that Virendra Singh (P.W-1) was a named accused in a rape case, wherein the father of the present appellant was a witness. Also, the suggestion that the deceased had managed to get the Case Diary of that case (rape case) misplaced or lost, was not effectively denied. Therefore, while the motive for false implication was clearly shown to exist, the motive cited by the informant side (in this case) was not established, beyond reasonable doubt.

23. Last, it has been submitted, if such motive exists, even otherwise, it is wholly improbable to accept that on challenge raised by three persons (two witnesses and one Bramhdeen), five assailants armed with deadly weapons would have fled without causing any injury to Virendra Singh (P.W-1) against whom motive may have existed in the context of the pending rape case.

24. Facts are otherwise. While no one saw the present appellant, the appellant and his brother Mauji Lal came to be named only to put undue pressure on their father Bharat Singh, to withdraw from the rape case. He has relied on Manohar Vs. State, 1983 ACC 64 and Balaka Singh and Others Vs. State of Punjab, AIR 1975 SC 1962.

25. On the other hand, learned AGA would submit, this is a case of direct evidence. The FIR was lodged wholly promptly within two hours of the occurrence. The ocular evidence is undoubtable. The first informant and the other eye witnesses are sons of the deceased. They had no reason to hide the 7 CRLA No. 2507 of 1985 real assailants and make false accusations. The medical evidence wholly corroborates the ocular evidence. All other deficiencies being pointed out by learned Amicus Curiae may not lead to any reasonable doubt in the prosecution story.

26. Having heard learned counsel for the parties and having perused the record, first, though the prosecution witnesses appear to have narrated that the occurrence was caused in the agricultural field, perusal of the undisputed site plan prepared by the Investigation Officer, S.I. Ram Pal Singh (P.W.-6) the place marked as "B" (on the site plan) as the place fromwhere the dead body of the deceased was recovered that point "B" is described as a drain. None of the prosecution witness - either fact or formal witnesses, have made any narration before the Court, about that fact. Virendra Singh (P.W.-1) and Radhey Shyam (P.W.-2) claimed, they were present at the time of occurrence, yet they did not make any disclosure of the fact that the occurrence was caused in that drain or that dead body of the deceased was thrown in the drain.

27. That apart, the presence of P.W.-1 is not free from doubt. Though during his examination-in-chief, he maintained, he was following his father the deceased Gaya Prasad a little behind him - on a separate bicycle, while both were returning from Atsu (where they had gone for some work with the Consolidation Authorities), during his cross-examination, he admitted that the office of the Consolidation Officer was at Babarpur. At the same time, he admitted that there was no office of Consolidation Authority at Atsu. On query, he tried to assert, they had gone to Atsu to meet the Lekhpal and Kanoongo and that they had conversation with those persons for about one hour. Yet, he could not disclose the names of that Lekhpal and Kanoongo. He also admitted that the victim side had not carried any papers with them, for that meeting.

28. In such facts, it becomes doubtful if the deceased and witness Virendra Singh (PW-1) had any occasion to travel to Atsu as may have allowed Virendra Singh (PW-1) an occasion to accompany the deceased upto the place where the occurrence was caused. Neither the description of the agricultural holding with respect to which (correction was required in the records), was disclosed nor any further disclosure was made in the record. Suggestion was also thrown at the witness Virendra Singh (PW-1) that he was actually not aware why deceased had travelled to Atsu. Further, the witness - Virendra Singh (PW-1) admitted, he knew Subedar Singh (a witness of the Inquest Report, from before), but that he had not met him earlier. In that regard, the Investigation Officer Ram Pal Singh (P.W.-6) (during his cross-examination), clearly admitted that the inspector had 8 CRLA No. 2507 of 1985 mentioned, upon investigation that the deceased was present at Babrpur with Chakbandi Officer at about 4:00 p.m. on the date of occurrence. It was further admitted that the said Subedar Singh was a charge-sheet witness but he was not examined.

29. In such circumstances, it requires careful consideration if the conduct of the said witness is consistent to natural course of events. In that, he has narrated that on the assault being caused, he called out for help wherein Radhey Shyam (P.W.-2), his step brother and Brahmadin (not examined at the trail) arrived. He further proved, on verbal challenge offered, the assailants fled. No injury whatsoever was received or attempted to be caused to the eye witnesses, in that occurrence. No word was spoken and no threat was hurled to the witnesses. Both Virendra Singh and Radhey Shyam described themselves to be about 30 years of age on the date of occurrence. No incapacity or disability remained with them as may have forced them to remain mute spectators of the occurrence.

30. Seen in that light, it is further remarkable that the motive attributed in the FIR is mainly against Lajja Ram. Insofar as the accused Maujji Lal (since deceased) and Amar Singh are concerned, they are sons of Bharat Singh who is witness in the rape case instituted against Virendra Singh (PW-1). That was clearly admitted by the said witness, during his cross-examination. Coupled with that, it further requires consideration that the allegation made by Virendra Singh (PW-1) against the present appellant Amar Singh that he was a man of criminal antecedents wherein many cases of dacoity committed by him had been lodged, was not established. During his cross- examination, other than that witness merely referring to that occurrence, no detail of any criminal case lodged against the appellant Amar Singh, was disclosed.

31. Additionally, it is relevant, on the face of the record, it is admitted that the place of occurrence was about 3 miles from the Police Station. The F.I.R. is disclosed to have been lodged at 8:15 p.m. on 21.09.1984, whereas the Inquest Report was prepared between 9:30 p.m. to 10.30 p.m. Strangely then, though the F.I.R. contains full description of Sections 147, 148, 149, 302 I.P.C. and also it contains full description of the three named accused persons namely Mauji Lal, Amar Singh and Lajja Ram besides two unnamed persons as the assailants, and also description of the weapons used namely knife, axe, kanta/heavy sharp edged weapon and 'Bhala' / spear, the Inquest Report was prepared more than an hour later, is not in line with those F.I.R. allegation. It appears to describe a general nature of occurrence. That is highly improbable inasmuch as once the eye witness account existed at the stage of F.I.R. and the three of the five accused had been named, it is wholly 9 CRLA No. 2507 of 1985 such names have not found mention in the Inquest Report. We are mindful that the Inquest Report is not a piece of substantial evidence. At the same time, in view of the serious doubts raised by the defence as to the presence of Virendra Singh (P.W.-1) and Radhey Shyam (P.W.-2), that incongruity may simply not be brushed aside. Also, there is clear over writing on the Inquest Report to the extent of section description - 148/149 I.P.C appear not in continuation with section description Section 302 I.P.C., but by way of an addition made on top of words - "धारा 302 I.P.C.", apparently, with different pen/hand writing. Similarly, the description of the weapons used is also not consistent in the Inquest Report, on all pages.

32. Further, it also requires consideration that Radhey Shyam (PW-2) specifically stated that he knew the two unknown assailants as well, as they were also residents of the same village. At the same time, those two other accused were never named. That itself leads to a doubt. Once Radhey Shyam (P.W.-2) took a stand that other two assailants were also residents of the same village, it is difficult to accept that though he maintained, he would identify them if they came in his presence, yet, he did not choose to name them.

33. Further, though recoveries are not decisive of the occurrence, at the same time they offer corroboration to a prosecution story which may not be wholly free from doubt. Here, four deadly weapons are described to have been used – (i) knife attributed to Mauji Lal; (ii) kanta - sharp edged weapon attributed to Lajja Ram and (iii) axe attributed to present appellant Amar Singh. However, no recovery whatsoever was made as may allow us to test the prosecution story on the strength of corroboration.

34. It is also a fact borne out from the record that the dead body of the deceased was discovered around 6:30 p.m.. It led to the F.I.R. being lodged at 8:15 p.m. and preparation of Inquest Report between 9:30-10:30 p.m. whereafter the dead body was moved on tractor trolley around 11:00 p.m., to the Police Lines. At the same time, the document Challan-Nash / Form-13 does not corroborate such movement. It only indicates that FIR was lodged at 8:15 p.m. whereas the stamp of the Reserve Inspector, Police Lines is of the date 22.09.1984 with time stamp against G.D entry no. 34, at 2:15 p.m. That leads to another doubt as to when the dead body of the deceased was moved to the Police Lines. However, the Check FIR was prepared against G.D entry no. 33 at 8:15 p.m. on 21.09.1984. Though the Investigation Officer claimed to have recorded the statement of the first informant - Virendra Singh (P.W.-1) at that time, there is no corresponding date entry in the G.D before preparation of the Challan-Nash. We say so because the Challan-Nash has been entered against G.D. entry no. 34. It clearly indicates 10 CRLA No. 2507 of 1985 to the Court that no investigation or proceeding was evidenced between the registration of the FIR at 8:15 p.m. on 21.09.1984 and the dispatch of the dead body of the deceased and the receipt of the dead body by the Reserve Inspector on 22.09.1984. The oral statements to the contrary rendered by the formal witnesses fall in the shadow of that doubt. In Manohar (supra), similar doubt had been entertained by a co-ordinate bench on a slightly different facts situation. Though the FIR and the Inquest Report were described to have been prepared in accordance with law, the difference of 5 kms. was noted in the two documents against the column provided to mention the distance of the place of occurrence from the Police Station. Also, other doubts were noted with respect to the time of death. Further, in Balaka Singh (supra), doubt entertained by the High Court was observed to be well founded to the extent, the Inquest Report did not contain the names of the accused named in the FIR.

35. For the reasons noted above, we find more than reasonable doubts exist in the prosecution story to hold the present appellant - Amar Singh, guilty.

36. Also, the prosecution story is not free from doubt, on its own strength. Here, we note that Radhey Shyam (PW-2) narrated that he was going towards Atsu to bring back his father as he felt that his father's life was under threat, at the same time, he was not carrying the gun that was lying at his house. That version is irreconcilable in many ways, with the version offered by Virendra Singh (P.W.-1) who was accompanying the deceased ostensibly having travelled with him to Atsu. Being brothers, Radhe Shaym (P.W.-2) would know the whereabouts of the deceased and Virendra Singh (P.W.-1), from before.

37. Therefore, he had no reason to be present at the place of occurrence. He appears to be a planted witness, set up only to add to the quantity of witnesses but not to the quality. Here, we note Brahmadin, the independent witness described in the FIR was never examined. Also, Subedar Singh who was an independent witness as to the presence of the deceased at Babarpur, was also not examined.

38. Besides, the lack of motive, we also note that Virendra Singh (P.W.-1) had criminal antecedents and also had reason to implicate both the present appellant Amar Singh and his brother Mauji Lal as the father of these accused persons - Bharat Singh was a witness in a rape case registered against the said witness Virendra Singh (P.W.-1).

39. For all the reasons noted above, we find the prosecution story wholly doubtful as may not allow us to uphold the order of conviction. 11 CRLA No. 2507 of 1985

40. Consequently, this appeal succeeds and is allowed. The judgement and order dated 13.09.1985 passed by learned Ist Additional Sessions Judge, Etawah, in Sessions Trial No. 330 of 1984 (State vs. Mauji Lal, Amar Singh and Lajja Ram under Section 148, 302 read with 149 I.P.C. against the appellant Amar Singh is set aside on a benefit of doubt. The sole appellant Amar Singh on bail. He need not surrender. His bail bonds are cancelled and sureties discharged. However, the appellant is directed to furnish bail bonds in compliance of Section 437-A Cr.P.C. to the satisfaction of the Court concerned within two months from today.

41. A copy of this judgment alongwith the trial court record be transmitted to the Court concerned for necessary compliance. Compliance report be submitted to this Court, at the earliest. Office is directed to keep the compliance report on record.

42. Learned Amicus Curiae appearing on behalf of the appellant has rendered his valuable assistance to the Court. He be paid Rs.25,000/-, towards his fee for the able assistance provided by him in hearing of the present appeal. September 15, 2025 Manoj (Tej Pratap Tiwari,J.) (Saumitra Dayal Singh,J.) MANOJ KUMAR YADAV High Court of Judicature at Allahabad

1. Heard Sri Arun Kumar Shukla, learned Amicus Curiae appearing on behalf of the sole surviving appellant Amar Singh and learned AGA for the State.

2. Present criminal appeal arises from the judgement and order dated 13.09.1985 passed by Sri Ramji Lal learned Ist Additional Sessions Judge, Etawah, in Sessions Trial No. 330 of 1984 (State vs. Mauji Lal, Amar Singh and Lajja Ram). By that judgement and order, the learned court below has convicted all the three accused for offence under Section 148 I.P.C. and sentenced them three years rigorous imprisonment and also it has convicted all the three accused for offence under Section 302 read with 149 I.P.C. and sentenced them for life. Both sentences are to run concurrently.

3. Briefly, the appellants have been convicted for offence of committing murder of the deceased Gaya Prasad on 21.09.1984. All the appellants were enlarged on bail in this appeal. During its pendency, the appellant nos. 1 and 3, namely, Mauji Lal and Lajja Ram have expired. The appeal filed on behalf of appellant nos. 1 and 3 has abated. The appeal is amongst the oldest pending before this Court. Accordingly, we appointed Amicus Curiae to assist the Court on behalf of the sole surviving appellant Amar Singh.

4. The prosecution story emerged on the strength of a Written Report submitted by Virendra Singh (P.W.-1) (who is the son of the deceased Gaya Prasad), made to the Police Station Ajitmal, Etawah on 21.09.1984 reporting that his father Gaya Prasad had been murdered by five persons i.e. three accused persons Mauji Lal, Amar Singh and Lajja Ram and two unknown persons who assaulted the deceased at about 6:30 p.m. near the agricultural 2 CRLA No. 2507 of 1985 field of Ram Sanehi, in village Muhaddinpur. They caused that occurrence by surrounding the deceased and assaulting him with Knife, Axe, Kanta / sharp edged weapon, Spear / 'Bhala'.

5. At the time of occurrence, the first informant Virendra Singh (P.W.-1) was following the deceased (both on bicycle) a little behind. On alarm raised by the said witness, his step brother Radhey Shyam (P.W.-2) and Brahmadin (not examined) arrived. On their challenging the assailants, the latter fled. In that regard, it was further stated, both the deceased and the said witness Virendra Singh (P.W.-1), were returning from Atsu where they had gone in connection with pending consolidation proceedings.

6. As to motive, it was narrated - the deceased was experiencing bad relations with accused Mauji Lal and others for the last many days. On such Written Report, the F.I.R. was registered at Police Station Ajitmal situated at a distance of about 3 miles from the place of occurrence, at 8:15 p.m. on 21.09.1984. It is Ex.Ka-3 at the trial.

7. On that date itself, the S.I. Ram Pal Singh, the Investigation Officer recovered samples of plain and blood stained earth from the place of occurrence. That Recovery Memo is Ex. Ka.-13 at the trial. He also recovered the bicycle of the deceased and handed over its custody to Virendra Singh (P.W.-1). That Recovery Memo is Ex. Ka.-2 at the trial.

8. Thereafter, (according to the prosecution story) Inquest Report was prepared by S.I. Devendra Kumar (not examined at the trial), between 9:30 p.m. - 10:30 p.m. Relevant to the present appeal, two aspects have been highlighted by learned Amicus Curiae. First, Section description "147 / 148 / 149" has been written on the header of the first page and also in the body of the Inquest Report, exactly above Section 302 I.P.C., by way of a separate line drawn over the, words "धारा 302 I.P.C." Second, as to weapon, the word "बल्लम" has been clearly added to the original text, later i.e. after preparation of the original text. Then, different weapon, "कु ल्हाड़ी व चाकू " and "कु ल्हाड़ी वगैरा " has been disclosed on the first and second pages of that Inquest Report. That is not consistent to the weapon description mentioned in the F.I.R. or on the last page of the Inquest Report wherein following weapon description has been given - "कु ल्हाड़ी, चाकू , कांता, बल्लम वगैरा ". Third, it has been pointed out, absolutely no description of the accused has been given in the Inquest Report. The Inquest Report is Ex.Ka-8 at the trial.

9. Thereafter, at 3:30 p.m. on 22.09.1984 autopsy examination on the dead body of the deceased was conducted by Dr. M. Ali (P.W.-5). In that he noted the following ante-mortem injuries :- 3 CRLA No. 2507 of 1985

1. Incised wound 3.5 cms x 1 cm x bone deep on the top of x Scalp 13 cms above the right ear directing obliquely. 2. Incised wound 12 cms x 2.5 cm x brain cavity deep on the forehead, left eye and nose pleura vertically oblique. 3. Incised wound 10 cms x 2 cms x none deep on the front of neck in the middle cutting trachea, and ossophagus and cut mack of body of vartibra. 4. Multiple abrasions on an area of 10 cms x 2 cms on the external surface left forearm in the middle. 5. Abrasion 2 cms x 1 cm on outer surface of left elbow joint. 6. Abrasion 3.5 cms x 1.5 cms on the lateral side upper part of left thigh. 7. Abrasion 7 cms x 1.5 cms on the outer surface of right upper arm in the middle. 8. Incised Wound 6.5 cms x 1 cm x muscle deep on the right ingeuinal region directing horizontolly. 9. Punctured wound 3 cms x 2 cms x 6 cms on the left ingeuinal. region directing backward and upward. 10. Incised wound 2.5 cms x 1 cm x muscle deep on the left ingeuinal region 1 cm below the injury No. 9.

11. Abrasion 2 cms x 2 cms on the front of right knee joint.

10. Serology Report was also obtained from the Forensic Science Laboratory, Agra. It is dated 18.06.1985. It reported presence of human blood on various items such as sample of soil and clothing of the deceased.

11. Upon completion of investigation, charge sheet was submitted by S.I. Ram Pal Singh (P.W.-6). On the case being committed for trial to the Court of Sessions, the following charge came to be framed against the appellant Amar Singh :- "That you with your other 4 associates on 21.9.84 at about 2.30 p.m. at Atsu Mohaddinpur Road situated in village Mohaddinpur P.S. Ajitmal District Etawah were members of an unlawful assembly and in prosecution of the common object of such assembly i.e. did commit the murder of Gya Prasad, committed the offence of riot and at that time you were armed with an axe which is a deadly weapon and you thereby committed an offence punishable under section 148 I.P.C. and within my cognigence."

12. At the trial, besides the above documentary evidence, the prosecution relied on oral evidence led by six witnesses. In that two sons of the deceased Gaya Prasad were examined as eye witness account. The first informant Virendra Singh was examined as P.W.-1 while Radhey Shyam was examined as P.W.-2. P.W.-1 tried to prove that he was accompanying the deceased on his bicycle, returning home from Atsu, where they had gone in 4 CRLA No. 2507 of 1985 connection with pending consolidation proceedings.

13. At about 6:30 p.m., the occurrence was caused - by the three named accused persons and two unknown assailants. In that, the present surviving appellant Amar Singh was assigned the weapon axe, Mauji Lal was assigned knife and Lajja Ram was assigned kanta / heavy sharp edged weapon. The unknown assailants were assigned the weapon kanta / heavy sharp edged weapon / Spear / 'बल्लम'. On alarm being raised, Radhey Shyam (P.W.-2) and Brahmadin (not examined), arrived. On challenge raised, the assailants fled.

14. By way of motive, he tried to prove that the deceased was the village Pradhan. He did not have good relations with the accused persons. In that Lajja Ram (since deceased) had encroached on Gaon Sabha land for which he was fined while the deceased was the Gram Pradhan. He also narrated, there was another dispute with Lajja Ram pertaining to Sheesham tree. Second, he narrated, the present surviving appellant Amar Singh was a dacoit facing many cases. Whenever, he was arrested, he suspected that the deceased had got him arrested. Only 15 - 20 days prior to the occurrence, he had been released on bail. The accused Mauji Lal was the real brother of Amar Singh. Virendra Singh proved the Written Report as also the blood stained clothes of the deceased.

15. The step brother of Virendra Singh (P.W.-1) was examined as P.W.-2. He too was aged about 30 years. He supported the story narrated by Virendra Singh (P.W.-1). However, he had not accompanied the deceased, at the time of the occurrence. He heard cries for help of Virendra Singh (P.W.-1), from a distance of about 500 paces. He ran to the place of occurrence and saw all five accused, three named and the other two were persons from his village. He ascribed an axe to Amar Singh, kanta / heavy sharp edged weapon to the accused Lajja Ram and knife to the accused Mauji Lal. The unknown assailants were assigned Spear and kanta / heavy sharp edged weapon. At that time, Brahmadin (not examined) also arrived. On being challenged by them, the assailants fled.

16. Thereafter, Head Constable Balvir Singh was examined as P.W-3. He proved the preparation of the check report and the relevant G.D. entry. Thereafter, Constable Vijay Shanker was examined as P.W-4. He proved the transportation of the dead body of the deceased from the place of the occurrence to the mortuary. Thereafter, Dr. M. Ali was examined as P.W-5. He proved the ante mortem injuries suffered by the deceased. Last, S.I. Ram Pal Singh, was examined as P.W-6. He proved the recovery and investigation. He also proved that charge-sheet had been submitted by the second Investigation Officer Gaya Pal (not examined). 5 CRLA No. 2507 of 1985

17. Thereafter the statement of the accused persons was recorded under Section 313 Cr.P.C. The appellants Amar Singh claimed false prosecution. In that state of the evidence, the learned Court below has convicted the appellants and sentenced them as above.

18. Submissions of learned Amicus Curiae are - in the first place, no one saw the occurrence. The presence of Virendra Singh (P.W-1) and Radhey Shyam (P.W-2) is wholly doubtful. Brahmadin who was working on an adjoining or nearby agricultural field was deliberately not produced by the prosecution, to prove the narration of the occurrence. During his cross-examination, Virendra Singh (P.W-1) could not establish his presence, beyond reasonable doubt. He could neither recall the name of the Consolidation Officials, who he had met and talked to for more than an hour before the occurrence nor he could establish any particular work / discussion in that meeting. Admittedly, neither the deceased nor the said witnesses were carrying any documents pertaining to consolidation. Further doubt emerged that the Consolidation Office was not at Atsu but at Babarpur. Though, he denied the suggestion that the deceased had gone to Babarpur, during his cross-examination, the Investigation Officer, S.I. Ram Pal Singh, did admit that Subedar, a charge- sheet witness, who was later discharged, had made statement under Section 161 Cr.P.C., that the deceased visited Babarpur and met the Consolidation Officials on the date of occurrence, at about 04.00 pm. That part of the story was completely and deliberately hidden from the Court. For that reason itself, a reasonable doubt exists as to the truthfulness of the story narrated to the Court. Radhey Shyam (P.W-2) has offered, a completely different version to the extent he claims he was going to bring his father back, while Virendra Singh (P.W-1) states that he was accompanying his father. There are inherent contradictions in the prosecution story, to that extent.

19. Second, the presence of Virendra Singh (P.W-1) and Radhey Shyam (P.W-2) - both highly interested witnesses, has been doubted on the strength of discrepancies existing in the Inquest Report and the First Information Report. If facts were proved, in the first place, the Inquest Report would have reflected the facts disclosed to the Investigation Officer and, therefore, in the FIR lodged, more than an hour prior in time. The discrepancies in the Inquest Report as noted above are therefore, material. They clearly suggest that the dead body of the deceased Gaya Prasad was first found lying in the agricultural field. The Inquest Report was thus prepared treating a case to be one under Section 302 IPC only. Later, the story emerged as claimed to be recorded in the FIR, which in turn, compelled the police authorities to make changes in the Inquest Report to make it consistent to the FIR narration. Though section addition and weapon description was made to the extent it 6 CRLA No. 2507 of 1985 was possible and in the manner narrated above, still the names of the accused persons did not find mention in the Inquest Report. That was not possible, except by changing the entire document. That was impossible.

20. Further doubt has been raised for the reason that there is long delay of time between the discovery of the body and the movement of the same to the mortuary. Though, the Inquest Report was completed at 10.30 pm and the dead body moved to the police lines on a tractor trolley at around 11.00 p.m. Prima facie, the Form-13, Challan Nash, indicates that, that movement was completed around 2:15 pm, next day. The distance between the place of occurrence and the district headquarters being three miles, that itself indicates that the prosecution had a large margin of time to manufacture the false narration.

21. Fourth, absolutely no motive existed with the present appellant to cause the occurrence. In the first place, during his cross-examination, Virendra Singh (P.W-1) could not establish existence of a single police case against the present appellant, less so of dacoity.

22. Fifth, it came to be firmly established during his cross-examination that Virendra Singh (P.W-1) was a named accused in a rape case, wherein the father of the present appellant was a witness. Also, the suggestion that the deceased had managed to get the Case Diary of that case (rape case) misplaced or lost, was not effectively denied. Therefore, while the motive for false implication was clearly shown to exist, the motive cited by the informant side (in this case) was not established, beyond reasonable doubt.

23. Last, it has been submitted, if such motive exists, even otherwise, it is wholly improbable to accept that on challenge raised by three persons (two witnesses and one Bramhdeen), five assailants armed with deadly weapons would have fled without causing any injury to Virendra Singh (P.W-1) against whom motive may have existed in the context of the pending rape case.

24. Facts are otherwise. While no one saw the present appellant, the appellant and his brother Mauji Lal came to be named only to put undue pressure on their father Bharat Singh, to withdraw from the rape case. He has relied on Manohar Vs. State, 1983 ACC 64 and Balaka Singh and Others Vs. State of Punjab, AIR 1975 SC 1962.

25. On the other hand, learned AGA would submit, this is a case of direct evidence. The FIR was lodged wholly promptly within two hours of the occurrence. The ocular evidence is undoubtable. The first informant and the other eye witnesses are sons of the deceased. They had no reason to hide the 7 CRLA No. 2507 of 1985 real assailants and make false accusations. The medical evidence wholly corroborates the ocular evidence. All other deficiencies being pointed out by learned Amicus Curiae may not lead to any reasonable doubt in the prosecution story.

26. Having heard learned counsel for the parties and having perused the record, first, though the prosecution witnesses appear to have narrated that the occurrence was caused in the agricultural field, perusal of the undisputed site plan prepared by the Investigation Officer, S.I. Ram Pal Singh (P.W.-6) the place marked as "B" (on the site plan) as the place fromwhere the dead body of the deceased was recovered that point "B" is described as a drain. None of the prosecution witness - either fact or formal witnesses, have made any narration before the Court, about that fact. Virendra Singh (P.W.-1) and Radhey Shyam (P.W.-2) claimed, they were present at the time of occurrence, yet they did not make any disclosure of the fact that the occurrence was caused in that drain or that dead body of the deceased was thrown in the drain.

27. That apart, the presence of P.W.-1 is not free from doubt. Though during his examination-in-chief, he maintained, he was following his father the deceased Gaya Prasad a little behind him - on a separate bicycle, while both were returning from Atsu (where they had gone for some work with the Consolidation Authorities), during his cross-examination, he admitted that the office of the Consolidation Officer was at Babarpur. At the same time, he admitted that there was no office of Consolidation Authority at Atsu. On query, he tried to assert, they had gone to Atsu to meet the Lekhpal and Kanoongo and that they had conversation with those persons for about one hour. Yet, he could not disclose the names of that Lekhpal and Kanoongo. He also admitted that the victim side had not carried any papers with them, for that meeting.

28. In such facts, it becomes doubtful if the deceased and witness Virendra Singh (PW-1) had any occasion to travel to Atsu as may have allowed Virendra Singh (PW-1) an occasion to accompany the deceased upto the place where the occurrence was caused. Neither the description of the agricultural holding with respect to which (correction was required in the records), was disclosed nor any further disclosure was made in the record. Suggestion was also thrown at the witness Virendra Singh (PW-1) that he was actually not aware why deceased had travelled to Atsu. Further, the witness - Virendra Singh (PW-1) admitted, he knew Subedar Singh (a witness of the Inquest Report, from before), but that he had not met him earlier. In that regard, the Investigation Officer Ram Pal Singh (P.W.-6) (during his cross-examination), clearly admitted that the inspector had 8 CRLA No. 2507 of 1985 mentioned, upon investigation that the deceased was present at Babrpur with Chakbandi Officer at about 4:00 p.m. on the date of occurrence. It was further admitted that the said Subedar Singh was a charge-sheet witness but he was not examined.

29. In such circumstances, it requires careful consideration if the conduct of the said witness is consistent to natural course of events. In that, he has narrated that on the assault being caused, he called out for help wherein Radhey Shyam (P.W.-2), his step brother and Brahmadin (not examined at the trail) arrived. He further proved, on verbal challenge offered, the assailants fled. No injury whatsoever was received or attempted to be caused to the eye witnesses, in that occurrence. No word was spoken and no threat was hurled to the witnesses. Both Virendra Singh and Radhey Shyam described themselves to be about 30 years of age on the date of occurrence. No incapacity or disability remained with them as may have forced them to remain mute spectators of the occurrence.

30. Seen in that light, it is further remarkable that the motive attributed in the FIR is mainly against Lajja Ram. Insofar as the accused Maujji Lal (since deceased) and Amar Singh are concerned, they are sons of Bharat Singh who is witness in the rape case instituted against Virendra Singh (PW-1). That was clearly admitted by the said witness, during his cross-examination. Coupled with that, it further requires consideration that the allegation made by Virendra Singh (PW-1) against the present appellant Amar Singh that he was a man of criminal antecedents wherein many cases of dacoity committed by him had been lodged, was not established. During his cross- examination, other than that witness merely referring to that occurrence, no detail of any criminal case lodged against the appellant Amar Singh, was disclosed.

31. Additionally, it is relevant, on the face of the record, it is admitted that the place of occurrence was about 3 miles from the Police Station. The F.I.R. is disclosed to have been lodged at 8:15 p.m. on 21.09.1984, whereas the Inquest Report was prepared between 9:30 p.m. to 10.30 p.m. Strangely then, though the F.I.R. contains full description of Sections 147, 148, 149, 302 I.P.C. and also it contains full description of the three named accused persons namely Mauji Lal, Amar Singh and Lajja Ram besides two unnamed persons as the assailants, and also description of the weapons used namely knife, axe, kanta/heavy sharp edged weapon and 'Bhala' / spear, the Inquest Report was prepared more than an hour later, is not in line with those F.I.R. allegation. It appears to describe a general nature of occurrence. That is highly improbable inasmuch as once the eye witness account existed at the stage of F.I.R. and the three of the five accused had been named, it is wholly 9 CRLA No. 2507 of 1985 such names have not found mention in the Inquest Report. We are mindful that the Inquest Report is not a piece of substantial evidence. At the same time, in view of the serious doubts raised by the defence as to the presence of Virendra Singh (P.W.-1) and Radhey Shyam (P.W.-2), that incongruity may simply not be brushed aside. Also, there is clear over writing on the Inquest Report to the extent of section description - 148/149 I.P.C appear not in continuation with section description Section 302 I.P.C., but by way of an addition made on top of words - "धारा 302 I.P.C.", apparently, with different pen/hand writing. Similarly, the description of the weapons used is also not consistent in the Inquest Report, on all pages.

32. Further, it also requires consideration that Radhey Shyam (PW-2) specifically stated that he knew the two unknown assailants as well, as they were also residents of the same village. At the same time, those two other accused were never named. That itself leads to a doubt. Once Radhey Shyam (P.W.-2) took a stand that other two assailants were also residents of the same village, it is difficult to accept that though he maintained, he would identify them if they came in his presence, yet, he did not choose to name them.

33. Further, though recoveries are not decisive of the occurrence, at the same time they offer corroboration to a prosecution story which may not be wholly free from doubt. Here, four deadly weapons are described to have been used – (i) knife attributed to Mauji Lal; (ii) kanta - sharp edged weapon attributed to Lajja Ram and (iii) axe attributed to present appellant Amar Singh. However, no recovery whatsoever was made as may allow us to test the prosecution story on the strength of corroboration.

34. It is also a fact borne out from the record that the dead body of the deceased was discovered around 6:30 p.m.. It led to the F.I.R. being lodged at 8:15 p.m. and preparation of Inquest Report between 9:30-10:30 p.m. whereafter the dead body was moved on tractor trolley around 11:00 p.m., to the Police Lines. At the same time, the document Challan-Nash / Form-13 does not corroborate such movement. It only indicates that FIR was lodged at 8:15 p.m. whereas the stamp of the Reserve Inspector, Police Lines is of the date 22.09.1984 with time stamp against G.D entry no. 34, at 2:15 p.m. That leads to another doubt as to when the dead body of the deceased was moved to the Police Lines. However, the Check FIR was prepared against G.D entry no. 33 at 8:15 p.m. on 21.09.1984. Though the Investigation Officer claimed to have recorded the statement of the first informant - Virendra Singh (P.W.-1) at that time, there is no corresponding date entry in the G.D before preparation of the Challan-Nash. We say so because the Challan-Nash has been entered against G.D. entry no. 34. It clearly indicates 10 CRLA No. 2507 of 1985 to the Court that no investigation or proceeding was evidenced between the registration of the FIR at 8:15 p.m. on 21.09.1984 and the dispatch of the dead body of the deceased and the receipt of the dead body by the Reserve Inspector on 22.09.1984. The oral statements to the contrary rendered by the formal witnesses fall in the shadow of that doubt. In Manohar (supra), similar doubt had been entertained by a co-ordinate bench on a slightly different facts situation. Though the FIR and the Inquest Report were described to have been prepared in accordance with law, the difference of 5 kms. was noted in the two documents against the column provided to mention the distance of the place of occurrence from the Police Station. Also, other doubts were noted with respect to the time of death. Further, in Balaka Singh (supra), doubt entertained by the High Court was observed to be well founded to the extent, the Inquest Report did not contain the names of the accused named in the FIR.

35. For the reasons noted above, we find more than reasonable doubts exist in the prosecution story to hold the present appellant - Amar Singh, guilty.

36. Also, the prosecution story is not free from doubt, on its own strength. Here, we note that Radhey Shyam (PW-2) narrated that he was going towards Atsu to bring back his father as he felt that his father's life was under threat, at the same time, he was not carrying the gun that was lying at his house. That version is irreconcilable in many ways, with the version offered by Virendra Singh (P.W.-1) who was accompanying the deceased ostensibly having travelled with him to Atsu. Being brothers, Radhe Shaym (P.W.-2) would know the whereabouts of the deceased and Virendra Singh (P.W.-1), from before.

37. Therefore, he had no reason to be present at the place of occurrence. He appears to be a planted witness, set up only to add to the quantity of witnesses but not to the quality. Here, we note Brahmadin, the independent witness described in the FIR was never examined. Also, Subedar Singh who was an independent witness as to the presence of the deceased at Babarpur, was also not examined.

38. Besides, the lack of motive, we also note that Virendra Singh (P.W.-1) had criminal antecedents and also had reason to implicate both the present appellant Amar Singh and his brother Mauji Lal as the father of these accused persons - Bharat Singh was a witness in a rape case registered against the said witness Virendra Singh (P.W.-1).

39. For all the reasons noted above, we find the prosecution story wholly doubtful as may not allow us to uphold the order of conviction. 11 CRLA No. 2507 of 1985

40. Consequently, this appeal succeeds and is allowed. The judgement and order dated 13.09.1985 passed by learned Ist Additional Sessions Judge, Etawah, in Sessions Trial No. 330 of 1984 (State vs. Mauji Lal, Amar Singh and Lajja Ram under Section 148, 302 read with 149 I.P.C. against the appellant Amar Singh is set aside on a benefit of doubt. The sole appellant Amar Singh on bail. He need not surrender. His bail bonds are cancelled and sureties discharged. However, the appellant is directed to furnish bail bonds in compliance of Section 437-A Cr.P.C. to the satisfaction of the Court concerned within two months from today.

41. A copy of this judgment alongwith the trial court record be transmitted to the Court concerned for necessary compliance. Compliance report be submitted to this Court, at the earliest. Office is directed to keep the compliance report on record.

42. Learned Amicus Curiae appearing on behalf of the appellant has rendered his valuable assistance to the Court. He be paid Rs.25,000/-, towards his fee for the able assistance provided by him in hearing of the present appeal. September 15, 2025 Manoj (Tej Pratap Tiwari,J.) (Saumitra Dayal Singh,J.) MANOJ KUMAR YADAV High Court of Judicature at Allahabad