- (1.) WE have heard Susri Seema Pandey, learned AGA in support of the present government appeal, which is directed against the judgment of acquittal dated 21.7,2004, passed by the Addl. Sessions Judge, Fast Track Court No. 1, Basti in sessions trial no. 307 of 2001, by which respondents Harish Chandra Rai and Ram Chandra Rai have been acquitted of the charges under section 302/34 IPC. Put briefly the prosecution case was that at about 1.00 a.m. In the night intervening 5th/6th August, 2001, on remonstration given by Ram Chandra Rai, Harish Chandra Rai fired shots from the roof top of their house. The deceased was sleeping in the sahn of his house and succumbed to the injuries caused by the shots fired by respondent Harish Chandra Rai.
(2.) WE find from the record that in spite of opportunities being in their favour, the informant or other family members of the deceased were not lodging any report with the police. Not only that, the police had reached the place of occurrence out of its own and had also started investigating the case by inspecting the place of occurrence as also by making seizure of different incriminating articles, like empties of the cartridges and had also questioned PW2 Indu Devi, but in spite of these investigations no family members of the deceased was coming forward to lodge a report. The learned trial judge has held that ante timing of FIR might not have any impact on the prosecution case, as one judgment of the Supreme Court which has been mentioned at the foot of page no. 8 and top of page no. 9 of the judgment. While indicating the ultimate result of not lodging the report promptly, we regard the finding of learned trial judge a result of either inexperience or of lack of proper orientation of the officer in law. If the F.I.R. Is belated under the circumstances of the present case that in spite of the police having reached the place of occurrence, no one was coming out to lodge a report, orally or in writing and the police was forced to proceed to investigate the case, then in our opinion there could be two inferences. The first inference will be that no one had really seen and identified the actual perpetrators of the offence. As such the informant was in a mind of uncertainty as to how the report should be lodged, by putting down a particular story. The second inference which could be raised from such circumstance could be that the victim's family might be denying time to weave out a story for implicating some enemies and innocent persons by falsely putting their names as perpetrators of the offence. We are of the view that in the present case that two inferences can be rightly drawn out of the silence of the witnesses or the family members of the deceased in not lodging the report in spite of the fact that the investigating officer had proceeded with the investigation quite up to advance stage. Our above inference gets strength from other circumstance of the case. Learned trial judge at page 9 of the judgment discussed the evidence of the witnesses and thereby has put down the topographic details of the case that the roof top from which the accused persons were firing was situated on a wall, which was 12feet in height and the deceased was sleeping at a distance of 24 feet from the wall of that particular house. The learned trial judge has held that the distance between the assailants and the deceased could be around 30 feet. We do not do any mathematics and go by the inference raised by the learned trial judge. We do not find any explanation coming from the prosecution before the trial judge as to how the gun shot injuries found on the dead body of the deceased were bearing blackening and charring marks around them. It definitely indicated that the shots had not been fired from the roof top, neither the assailants could have stood on the same plain surface, where the deceased was lying in a cot and must have fired shots from a close range from the body of the deceased. We, as such, hold that the eye witnesses in fact had not seen as to in which manner and by whom the deceased was shot. If the report is lodged belatedly with a particular motive, specially of weaving of a story to implicate accused-respondents, then the same itself should be sufficient to hold that charges stood disapproved. After hearing learned counsel for both the parties, in our opinion the judgment of acquittal passed by the learned trial judge could not be faulted as perverse. As such, we dismiss the government appeal.;