Daya Ram Shikarvar vs State Of U.P.
2017 Latest Caselaw 4006 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved								A.F.R.
 

 
Case :- CRIMINAL APPEAL No. - 2237 of 2004
 

 
Appellant :- Daya Ram Shikarvar
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Suresh Chandra Verma,A.K.Tiwari,Anil Raghav,Murtuza Ali,Radhey Shyam,Rajiv Lochan Shukla,S.P.S. Raghav
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Bharat Bhushan,J.

Hon'ble Dr. Kaushal Jayendra Thaker,J.

(Delivered by Hon'ble Bharat Bhushan, J.)

1. Appellant Daya Ram Shikarvar was charged, tried and convicted under sections 302, 504 Indian Penal Code (in short, IPC) in Sessions Trial No. 164 of 2002 arising out of Case case no. 178 of 2002 whereby he was sentenced to life imprisonment under sections 302 IPC with a fine of Rs. 2,000/- with default stipulation and six months imprisonment under section 504 IPC by impugned judgment and order dated 16.4.2004 passed by the then Additional Sessions Judge (F.T.C. Court No. 1), Farrukhabad.

2. Prosecution case, in brief, is that on 12.3.2002 at about 8:15pm. informant and his partially blind brother Kunwar Singh were having conversation at the western door of his house. PW-1 Baiju Singh, PW-2 Prema Devi, PW-4 Rukmani Devi were also standing with them. Suddenly, appellant Daya Ram Shikarvar crossed his lane. Finding partially blind Kunwar Singh in his sight expressed his displeasure by saying that the presence of this partially blind boy Kunwar Singh did not augur well for him, disrupting his normal routine. Deceased Kunwar Singh objected to this abuse by appellant whereupon appellant Daya Ram Shikarvar whipped out a pistol and shot Kunwar Singh. Informant Ram Chandra Singh Bhadauria (PW-1) and his companions raised alarm whereupon appellant Daya Ram Shikarvar rant away.

3. The First Information Report (in short, FIR) claims that there was sufficient light at the time of this incident facilitating identification of the assailant. The FIR claims that informant Ram Chandra Singh Bhadauria (PW-1) and his family members took the injured Kunwar Singh to the hospital of Dr. Hari Dutt where the injured was declared dead. The corpse of deceased was taken to his house and thereafter, FIR was lodged at 9:30pm at Kotwali, Farrukhabad which was located almost within 2 kms. from the place of occurrence. The chik report (Ex.Ka-3) was carved out. A report was entered into General Diary (in short, G.D.) of the Police Station, an extract of which is available on record as Ex. Ka.-4.

4. PW-8 Radha Krishna Sharma, Investigating Officer (in short I.O.) the then Station House Officer (in short, S.H.O.) Police Station Kotwali commenced investigation and Inquest Report (Ex.Ka.-5) as well as other relevant documents were prepared; cadaver of deceased was sent with Constables Lakhan Singh and Ram Prakash; statements of witnesses were recorded; samples of blood stained earth and simple earth were taken; site-plan (Ex.Ka.-11) was prepared on 16.3.2002; postmortem report was received. I.O. on completion of investigation, submitted charge-sheet (Ex.Ka.-12) under sections 302, 504 IPC against the appellant. The case was committed to the Court of Sessions as it was exclusively triable by the Sessions Court.

5. Learned trial Judge framed charges under sections 302, 504 IPC against appellant Daya Ram Shikarvar on 17.9.2002. Accused-appellant denied all the allegations and claimed trial.

6. Prosecution adduced evidence of PW-1 Baiju Singh (stated eyewitness), PW-2 Smt. Prema Devi (stated eyewitness), PW-3 Ram Chandra Singh Bhadauria (informant/stated eyewitness), PW-4 Smt. Rukmani Devi (stated eyewitness/mother of deceased), PW-5 Dr. Umesh Chandra Saxena (conducted postmortem), PW-6 Constable Ravindra Kumar (recorded the FIR), PW-7 Om Prakash Singh (witness of inquest and documentation) and PW-8 Sub Inspector Radha Krishna Sharma (I.O.). The statement of accused-appellant was recorded under section 313 Cr.P.C. wherein he denied all the allegations and claimed false implication due to previous enmity. On conclusion of trial, learned Additional Sessions Judge held appellant guilty under sections 302, 504 IPC and sentenced him aforesaid by impugned judgment and order dated 16.4.2004. This judgment is under challenge before this Court.

7. Heard Sri Rajiv Lochan Shukla, learned counsel for the appellant and Sri Rajiv Sharma, learned Additional Government Advocate (in short, AGA) and perused the record.

8. Learned counsel for the appellant has argued that the FIR is ante-timed and that witnesses were not present on the spot. Submission of learned counsel for the appellant is that there was no light on the spot and that the place of occurrence is uncertain.

9. To the contrary, learned AGA has submitted that although there are minor contradictions in the prosecution evidence but that would not render it untrustworthy. He has claimed that even testimony of hostile witnesses namely, PW-1 Baiju Singh and PW-2 Smt. Prema Devi can be taken into consideration for establishing the contours of prosecution story. Learned AGA has argued that there is no reason for the parents of deceased to implicate the appellant falsely. Learned AGA has also pointed out that the fact that FIR was lodged promptly obviates any possibility of false implication.

10. The prosecution story is very simple. It alleges that informant Ram Chandra Singh Bhadauria (PW-3), his wife Smt. Rukmani Devi (PW-4)and members of his family Baiju Singh (PW-1) and Smt. Prema Singh wife of Baiju Singh (PW-2) along with deceased Kunwar Singh were having conversation at the western side door of his house when appellant came there and shot Kunwar Singh after brief verbal altercation. The prosecution says that as many as 4 persons witnessed the incident occurred at 8:15pm and FIR was lodged at about 9:35pm i.e. within 80 minutes of incident.

11. Unfortunately, this simple story subsequently is found vitiated because of untrustworthy evidence. PW-1 Baiju Singh and his wife PW-2 Prema Devi did not support the prosecution story. PW-1 Baiju Singh did not indicate even the presence of informant Ram Chandra Singh Bhadauria (PW-3) and his wife PW-4 Smt. Rukmani Devi at the spot. It is pertinent to point out that FIR (Ex.Ka.-1) claims that both Baiju Singh and Smt. Prema Devi belong to the family of deceased yet both of them have absolved appellant Daya Ram Shikarvar from his stated involvement in the murder of deceased Kunwar Singh. Both of them admitted that Kunwar Singh was shot some time around 8:00pm-8:15pm. They claimed that they came out of their house after hearing the gun shot noise. They found Kunwar Singh in the pool of blood. They immediately requisitioned a Charpai (cot) and took the deceased first to the Government Hospital, and thereafter, they took deceased to the hospital of Dr. Hari Dutt where the deceased was declared dead. The cadaver of deceased was thereafter brought back to his house.

12. It is, therefore, apparent that out of 4 eyewitnesses, two have completely absolved appellant from any criminal act and this was done by the family members of deceased himself. Remaining two witnesses, namely, PW-3 Ram Chandra Singh Bhadauria (father of deceased) and PW-4 Smt. Rukmani Devi (mother of deceased) have reiterated their allegations but close scrutiny of their testimonies create doubt about their presence at the time of occurrence.

13. Learned AGA has laid emphasis on the promptness of the FIR. He says that incident occurred on 12.3.2002 at about 8:15pm while FIR was lodged at 9:35pm i.e. within 80 minutes of incident at the Police Station which was almost 2 kms. away from the place of occurrence. We believe that this claim should be examined minutely.

14. FIR (Ex.Ka-1) does not disclose any prior information to the Police. It simply says that as soon as cadaver of Kunwar Singh was brought back to his house, informant Ram Chandra Singh Bhadauria lodged the FIR (Ex. Ka-1) which was scribed by one Ramesh Singh. Incidentally, Ramesh Singh was not produced in evidence. But, PW-3 Ram Chandra Singh Bhadauria in his testimony claims that police personnel came to the place of occurrence prior to lodging of the FIR. He claims that corpse of deceased Kunwar Singh was brought back from the hospital of Dr. Hari Dutt which was placed on northern platform (Chabutra) of his house and suddenly, police came at his residence within 10 minutes on some telephonic information. PW-3 Ram Chandra Singh Bhadauria did not declare identity of the person who had rang up police.

15. The Police personnel took the informant to Police Station Kotwali. No other person accompanied him. He was questioned about this incident but no written information was lodged at this time. Police personnel took the informant back to the place of occurrence and this time they took scribe Ramesh Singh alongwith complainant to the Police Station. Ramesh Singh scribed the report at the Police Station and handed over to Constable-clerk. The scribe Ramesh Singh left Kotwali Police Station, Farrukhabad. However, complainant remained at the Police Station till 12:00pm.

16. If we carefully examine the events in chronological order, it would reveal that first deceased was shot at 8:15pm, then he was taken to Government Hospital as per PW-1 Baiju Singh. No doctor was available at Government Hospital, therefore, injured was again taken to the hospital of Dr. Hari Dutt where the injured was declared dead. Then dead body of deceased was taken back to his residence, thereafter, police personnel came at their own there after 10 minutes. and yet the FIR was not in existence till this juncture.

17. First PW-3 Ram Chandra Singh Bhadauria was taken to Police Station Kotwali, Farrukhabad where he was questioned but no FIR was lodged even at this stage. The informant was taken back to the place of occurrence by the police personnel and at this time scribed Ramesh was also taken to the Police Station along with informant. This time scribe Ramesh scribed the report, which was handed over to Constable-clerk. We do not think that all these stages would be over within 80 minutes. Collection of family members, neighbours and transportation of deceased on foot, first to Government Hospital, then to hospital of Dr. Hari Dutt and then to back home would have taken considerable time.

18. The arrival of Police after 10 minutes and then questioning of PW-3 Ram Chandra Singh Bhadauria at the Police Station would have been time consuming process. The return of PW-3 Ram Chandra Singh Bhadauria at the place of occurrence, taking back scribe Ramesh Singh to the Police Station and scribing the report at the Police Station would have been all time consuming process, therefore, argument of learned counsel for the appellant that FIR was ante-timed can not be ignored.

19. It is pertinent to point out that neither any personnel from the Government Hospital or hospital of Dr. Hari Dutt have been produced in the court of law. Scribe Ramesh Singh has also been withheld without any logical reason. The people from Government Hospital as well as hospital of Dr. Hari Dutt and scribe Ramesh Singh could have explained the several discrepancies. Unfortunately, none of them have been produced in evidence.

20. The claim of some telephonic information given to the Police Station itself is doubtful. PW-6 Constable-clerk Ravindra Kumar has disputed this claim. He has specifically asserted that police did not receive any information of incident prior to lodging of the FIR. He has debunked the story of telephonic information. No such record was available at the Police Station. No relevant entry was made in the G.D. of the Police Station. Not only that, PW-6 Constable Ravindra Kumar has also refused to accept the presence of scribe Ramesh Singh at the Police Station. He has asserted that complainant Ram Chandra Singh Bhadauria came to the Police Station in the company of one Mahesh Singh to lodge the report. He has testified that Ramesh Singh did not come to Police Station. His testimony is supported by extract of G.D. (Ex.Ka.-4) as well, which says that report was lodged at 9:35pm by informant PW-3 Ram Chandra Singh Bhadauria in the company of one Mahesh Singh. Neither Ramesh Singh, scribe, nor Mahesh Singh, stated companion of informant at the time of lodging of the FIR, have been produced in evidence. There is no dispute regarding the identity of Mahesh Chandra as well, for the simple reason that Ex. Ka.-4 specifically says that FIR was lodged by informant PW-3 Ram Chandra Singh Bhadauria who came in the company of one Mahesh Singh and handed over the report written by Ramesh Singh.

21. We have carefully perused the testimony of PW-6 Constable-clerk Ravindra Kumar and I.O. Radha Krishna Sharma (PW-8), who have completely debunked the details given by PW-3 Ram Chandra Singh Bhadauria. There is no mention of visit of police at the place of occurrence on telephonic information. There is no disclosure about two consequent visits to Police Station. There is no mention that informant was taken by the Police on official Jeep to Police Station, then Ramesh Singh was brought along with informant on this Jeep back to the Police Station. We believe that testimony of Mahesh, a companion of informant, and of Ramesh scribe, would have explained the circumstances surrounding the lodging of the FIR as well as discrepancies enshrined in the deposition of PW-3 Ram Chandra Singh Bhadauria.

22. There are other circumstances, which create doubt regarding the time of lodging of FIR. The inquest report (Ex.Ka.-5) was prepared by 11:30pm on 12.3.2002. According to prosecution, inquest proceedings were commenced subsequent to lodging of the FIR at 9:35pm and yet name of accused-appellant is missing from this inquest report. Interestingly, on the second page of this inquest report, time of lodging of FIR has been written in different ink than that of other entries. PW-3 Ram Chandra Singh Bhadauria also claimed that Kotwal Saheb came to the place of occurrence at 9:00pm. This is strange assertion as till then, even the FIR had not been written. Complainant has admitted that copy of report was handed over to him after completion of postmortem. It is pertinent to point out that postmortem was done on 13.3.2002 at about 2:00pm, there was no reason for police to refuse to give copy of the FIR to the complainant immediately. A suspicious fact has also been disclosed by the Constable-clerk Ravindra Kumar (PW-6) as he has admitted that signatures of complainant were not obtained on the original chik report.

23. PW-4 Smt. Rukmani Devi, wife of informant PW-3 Ram Chandra Singh Bhadauria has further complicated the circumstances surrounding the FIR. She has claimed that FIR was got scribed by her which was then taken to the Police Station by her husband PW-3 Ram Chandra Singh Bhadauria but contradicting herself, she has again said that FIR was not scribed at her residence. She has further asserted that her husband went to Police Station of his own, meaning thereby that no one had accompanied her husband to the Police Station disputing the entries of Ex. Ka.-4 that one Mahesh Singh had accompanied the informant. She has also contradicted the claim of her husband Ram Chandra Singh Bhadauria that scribe Ramesh Singh accompanied him to the Police Station. The question is that if all witnesses were present on the spot as per claim of prosecution, then why are so many discrepancies are discernible from the record.

24. We have carefully examined all the evidence regarding lodging of the FIR and we do believe that there are significant amount of evidence which indicates that FIR was ante-timed. The very fact that there are suspicious circumstances surrounding the lodging of the FIR, knocks the bottom of prosecution case.

25. Similarly, there are contradictory evidence regarding sufficiency of light and source of light at the place of occurrence. The FIR blandly says that there was light at the time of occurrence. However, PW-3 has testified from the very beginning of his cross-examination that his residence did not have electricity connection. He has also claimed that a lane towards the western side of his house had houses of Baiju Singh, Om Prakash and Mahohar Singh etc. but Baiju Singh, Manohar Singh and Om Prakash also did not have electricity connection. He did say that a 'Devi Mandir' (temple) located towards the northern side of their house had an electric bulb but perusal of site-plan (Ex.Ka-11) would immediately reveal that single electricity bulb of temple would not give any light towards western lane of his house because temple located at northern side is completely surrounded by walls. Even the site-plan discloses that temple is inside a room. Even if, it is assumed that this temple did had an electric bulb, but it would not be able to provide any light at the place described with word 'B' in site plan (Ex.Ka-11) There are other houses in this lane but PW-3 Ram Chandra Singh Bhadauria has specifically said that none of them had any electricity connection at the time of incident.

26. The aforesaid submission was made by the informant at the initial stage of his cross-examination but suddenly, in the later part of his cross-examination, which was recorded after lunch brake of the court, he asserted that there was an electric bulb at the door of one Om Prakash which gave light to the lane. He has also improved the source of light by saying that there was an electricity bulb even in his courtyard. The way these assertions are made has reinforced the argument of learned counsel for the appellant that these improvements were made subsequently after receiving the legal advice during recess of the court. The complainant continued to insist upon the availability of electricity bulbs not only in his house but also in the house of Om Prakash though he admitted that he did not communicate this information to the I.O. He also reluctantly conceded that he was giving this information for the first time in the court.

27. It is pertinent to point out that PW-4 Smt. Rukmani Devi, wife of informant, has given another spin to this story. She has claimed that Om Prakash did have an electric bulb but it was not lit but she has also said that there was another bulb in the lane installed at her house. She claims to had drawn attention of the I.O. towards this bulb. We believe that an attempt to create and manufacture evidence is palpable. Site plan (Ex.Ka-11) does not disclose electricity connection at the residence of any person in the vicinity. We believe that initial statement of informant is correct that there was no electricity connection in the house of any person in the lane.

28. The prosecution story, in essence, says that five persons, including deceased Kunwar Singh, were having conversation at the western door of their house but going through testimony of PW-4 Smt. Rukmani Devi, it is apparent that she has not mentioned the presence of PW-1 Baij Nath and PW-2 Smt. Prema Devi. She has claimed that she was sitting inside of her house with her son Dilip and daughter Pinki and her husband was also sitting inside her house. They were having conversation. She has specifically asserted that no one else was present there at that time. She did not mention the presence of PW-1 Baiju Singh which is contrary to the original prosecution story and also against the testimony of informant Ram Chandra Singh Bhadauria (PW-3). This also demolishes the prosecution case that five persons were standing at the western door step of his house. She did not disclose the presence of deceased Kunwar Singh either at the door steps or inside the house. The site-plan (Ex. Ka-11) also indicates that there was no clear line of sight available if the testimony of Smt. Rukmani Devi (PW-4) is accepted. If we carefully examine the prosecution story, it would reveal that deceased Kunwar Singh was outside his house and other persons were sitting inside the house and having conversation. There was darkness. The testimony of PW-4 Smt. Rukmani Devi also supports the story of PW-1 Baiju Singh and PW-2 Smt. Prema Devi that they were not present at the time of incident and they came there subsequently after hearing noise of gun-shot. If, story given by PW-4 Smt. Rukmani Devi is correct, then edifice of whole prosecution case is demolished.

29. PW-4 Smt. Rukmani Devi has again given vital information during trial which is contrary to the basic prosecution story. She has said that Police personnel came next day to her house while prosecution claims that police personnel came on the spot immediately after incident. PW-4 has also not mentioned the presence of PW-1 Baiju Singh and PW-2 Smt. Prema Devi at the time of incident reinforcing the claim of these witnesses. She has completely demolished the theory of conversation of family members while standing at the door steps of their house. Even the story of transportation of injured Kunwar Singh to various hospitals is also discrepancy ridden.

30. The FIR says that injured was taken to hospital of Dr. Hari Dutt where he was declared dead. PW-1 Baiju Singh claimed that injured was taken to the hospital on Charpai (cot) with the help of one Pappu. PW-3 Ram Chandra Singh Bhadauria says that injured Kunwar Singh was taken to the hospital by Ganesh, Pappu, Baiju Singh (PW-1) and some other boys to the nursing home of Dr. Hari Dutt. PW-3 Ram Chandra Singh Bhadauria says that he too went to the nursing home but he was left behind and he met them at Ganj Crossing (Chauraha) while those persons were returning from nursing home. He has specifically asserted that he could not reach the nursing home of Dr. Hari Dutt.

31. The evidence of PW-1 Baiju Singh and PW-3 Ram Chandra Singh Bhadauria does not indicate the presence of PW-4 Smt. Rukmani Devi but PW-4 Smt. Rukmani Devi has clearly disputed it. She has said that she went to the nursing home of Dr. Hari Dutt along with her husband. She has also said that Dr. Hari Dutt declared his injured son Kunwar Singh dead and she brought her deceased son back to her residence. Subsequently, in her statement, she claimed that only four persons took the injured Kunwar Singh to the nursing home of Dr. Hari Dutt.

32. She has also claimed that PW-1 Baiju Singh, Pappu, Ram Chandra Singh Bhadauria (PW-3) and she herself took the injured Kunwar Singh to the hospital of Dr. Hari Dutt. She has not mentioned the presence of Ganesh and other persons, who were referred by PW-3 Ram Chandra Singh Bhadauria. These contradictions have not been explained by prosecution. The testimony regarding presence of PW-1 Baiju Singh and PW-2 Smt. Prema Devi also indicates that there was an attempt of someone to manufacture the evidence.

33. Surprisingly even preparation of site-plan is full of contradictory evidence. PW-3 Ram Chandra Singh Bhadauria has testified that said site-plan was prepared at the instance of Pinki, his daughter. He has said that his wife was not questioned by police. His wife PW-4 Smt. Rukmani Devi does not agree with her husband. She claims that she showed the place of incident to the police personnel herself and that time her husband was with her. She has claimed that she was questioned by police in presence of her husband. But PW-8 Radha Krishna Sharma, I.O. has also complicated the story in this regard. He has claimed that he prepared site-plan at the instance of informant Ram Chandra Singh Bhadauria at 4:00am in the morning. He has denied that the said site-plan was prepared either at the instance of Pinki or PW-4 Smt. Rukmani Devi. Pinki has not been produced in evidence. These contradictions have not been explained by the prosecution.

34. The prosecution evidence is discrepancy ridden. The I.O. says that he prepared site-plan at the instance of PW-3 Ram Chand Singh Bhadauria at 4:00am in the morning while PW-3 Ram Chandra Singh Bhadauria says that he did not come back to his house from 12:00pm in night till cremation of his son. The cremation was done on 6:00pm on 13.3.2002. Question is as to under what circumstances I.O. prepared site-plan at the instance of PW-3 Ram Chandra Singh Bhadauria at 4:00am in the morning when according to PW-3 Ram Chandra Singh Bhadauria he was not available at his residence. PW-3 Ram Chandra Singh Bhadauria has also not made any mention about taking of deceased Kunwar Singh to Government Hospital despite specific allegation that injured was first taken to Government Hospital.

35. We believe that prosecution evidence is full of discrepancies and is not reliable but most fatal part of the story is given by the mother of the deceased Smt. Rukmani Devi (PW-4). The prosecution story is that deceased Kunwar Singh was shot by appellant in presence of four witnesses at the western door of informant. Appellant ran away thereafter towards his house. But Smt. Rukmani Devi (PW-4) says that injured Kunwar Singh was lifted from lane by appellant-accused Daya Ram Shikarvar himself and placed at her door. Then, she has also testified that accused-appellant Daya Ram Shikarvar brought deceased Kunwar Singh from the corner (eksM+) of the lane. Then, she says that she called her husband, meaning thereby that her husband was not present. Though she instantly corrected herself by saying that her husband was present.

36. Now, this assertion of PW-4 Smt. Rukmani Devi should be seen in the context of claim of defence that deceased was done to death at the ruins of Manohar Singh. The evidence reveals that in the west side of the complainant, there is a north-south lane leading towards the ruins of Manohar. The site-plan (Ex.Ka.-11) also demonstrates this fact. The evidence further reveals that most of time, these ruins remained abandoned.

37. The defence claims that deceased Kunwar Singh was killed in this ruins by some unknown persons and subsequently, accused-appellant Daya Ram Shikarvar was implicated on account of enmity. Now, the testimony of PW-4 Smt. Rukmani Devi clearly suggests that claim of defence is not without some merit. She has specifically asserted that accused-appellant Daya Ram Shikarvar brought injured Kunwar Singh from corner of lane to the house of informant. The original testimony as well as site-plan suggest that ruins of Manohar Singh was located towards the corner of lane. If this evidence of Smt. Rukmani Devi (PW-4) is correct, then defence story appears to be consistent with the available evidence. The testimony of Smt. Rukmani Devi (PW-4) in this regard is not slip of tongue because she has mentioned this fact twice. We believe that it would be appropriate to reproduce the relevant portion of her evidence thus :

** oStw flag ds if'pe rjQ euksgj flag dk [k.Mgj iM+k gSA esjs njokts ij dqWvj flag xksyh yxh FkhA xyh es ls mBkdj eqfYte n;kjke us dqWvj flag dks esjs njokts ij j[k fn;k FkkA

xyh dh eksM+ ls dqWvj flag dks mBkdj yk;k Fkk ml le; dqWvj flag ds [kwu fudy jgk Fkk eSus lhus ls yxk fy;k Fkk esjh lkM+h [kwu ls yky gks x;h dqWvj flag cksy ugh jgk FkkA FkksM+h lh lkWl py jgh FkhA fQj eSus ifr dks cqyk;k Fkk fQj dgk fd ifr ekStwn FksA **

38. The testimony of Smt. Rukmani Devi (PW-4) also finds support from her subsequent testimony wherein she has said that police personnel lifted blood stains from three places. Relevant part of her testimony is reproduced as under :-

** tgkW&2 [kwu iM+k Fkk og txg ?kVuk ds ckn tSls gh iqfyl vk x;h Fkh rqjUr gh fn[kk fn;k FkkA rhuksa txg tgkW ij dqWvj flag dk [kwu iM+k Fkk og fn[kkbZ Fkh vkSj rhuks txg es iqfyl okyks us [kjkSp dj [kwu fy;k FkkA **

39. Now the question is what were those three places ? PW-7 Om Prakash Singh has clarified these three places. He is witness of lifting of blood stained earth as well as of inquest. He says that blood stained earth was lifted from three places. One from ruins of Manohar Singh; second from west side of lane of informant; and third from the place where the cot of deceased was placed after return from the hospital. The evidence suggests that after deceased Kunwar Singh was brought to the house, he was first placed on the cot at the west side of his door and naturally some blood dribbled down on the earth. Subsequently, when the dead body was brought from the hospital of Dr. Hari Dutt, the cadaver was placed at the platform (Chabutra) located at the northern side of their house, therefore, it was also natural for the I.O. to lift blood stained scrapping from the spot shown by letter 'B' in the site-plan (Ex.Ka-11) and from Chabutra shown towards north side of their house.

40. But the question is why was blood stained earth was lifted from the ruins of Manohar Singh ? The original prosecution story indicates that Kunwar Singh was shot at the western side of door steps of house and subsequently his dead body was placed towards the northern side of his house. The prosecution story does not disclose or mention even once the ruins of Manohar Singh from where the blood stained earth was taken by the police.

41. This fact is mentioned by the mother of deceased PW-4 Smt. Rukmani Devi as well as by witness of vicinity PW-7 Om Prakash Singh, yet no explanation has been put forward by the prosecution regarding availability of blood in the ruins of Manohar Singh. Evidence of lifting of blood stained earth from the ruins of Manohar Singh is fatal to the prosecution story in absence of any satisfactory explanation.

42. It is pertinent to point out that I.O. Radha Krishna Sharma (PW-8) has admitted the fact that he did not see any blood stain on the door, wall or earth near the designated place of occurrence which is surprising because police claims that they reached at the place of occurrence before 10:00pm in the night i.e. within two hours of the incident. The I.O. has further clarified that no pellets or empties were found at the designated place of occurrence. The absence of blood stain on the wall and door demolishes the prosecution story. No fire-arm weapon was recovered from the accused-appellant even subsequently.

43. We have carefully examined all the materials on record. We find that the prosecution has miserably failed to establish the prosecution case beyond reasonable doubt. The availability of blood in the ruins of Manohar Singh and subsequent lifting of deceased towards the house of informant have completely demolished the prosecution case. If accused-appellant Daya Ram Shikarvar brought the dead body of Kunwar Singh at the residence of informant, as stated by mother of deceased Smt. Rukmani Devi (PW-4), then that conduct would be most unusual as well as it would be against the stated story of PW-3 Ram Chandra Singh Bhadauria as well as original prosecution story. Entire prosecution story is full of holes. The place of occurrence is uncertain; eyewitness account of PW-3 Ram Chandra Singh Bhadauria and PW-4 Smt. Rukmani Devi is not trustworthy at all. The evidence of PW-1 Baiju Singh and PW-2 Smt. Prema Devi appears to be trustworthy. An attempt to create, invent and manufacture the evidence is apparent. We do not find that accused-appellant can be convicted on the basis of this tainted evidence.

44. In the result, the appeal is allowed. The impugned judgment and order dated 16.4.2004 passed by the then Additional Sessions Judge (F.T.C. Court No. 1), Farrukhabad in Sessions Trial No. 164 of 2002 (State versus Daya Ram Shikarvar) arising out of Case case no. 178 of 2002, is set aside. The appellant is acquitted. The appellant is stated to be in jail. He be released forthwith if not required in any other case.

45. Let a copy of this judgment be sent to the court concerned through the Sessions Judge, Farrukhabad within ten days. The court concerned shall report compliance within one month thereafter.

Order Date :- 6.9.2017

SU.