- (1.) ONKARESHWAR Bhatt, J. Accused-respondent, Rajendra Singh, was tried and acquitted of the offence under Section 302 IPC and under Section 25/27, Arms Act. The judgment and order of acquittal were passed by the then District and Sessions Judge, Farrukhabad on 13-11-1998 in S. T. No. 195 of 1995, State of U. P. has come up in appeal.
(2.) SRI M. C. Joshi, learned A. G. A. , for the State and Smt. Raj Lakshmi Sinha, Amicus Curiae for the respondent have been heard and the record of the case has been carefully perused. The deceased of the case is Satyapal Singh Chauhan. He was a contractor of Tehbazari. His partners were Sushil Kumar Yadav, P. W. 1, and Sarvesh Kumar alias Bengali P. W. 2. On 1-12- 1994 at 1. 30 p. m. they were sitting at the readymade shop of Rajiv Kumar alias Billu P. W. 3 which was on the crossing of Central Jail, police station Kotwali, district Fatehgarh at Farrukhabad. At that time the accused came on rickshaw and parked it on the other side of the road near a push cart of groundnut. The deceased went there and caught hold the accused and both of them got entangled (guttham-guttha ). P. W. 4 constable Shyam Singh Chauhan was on petrol duty at the police out post Central Jail. He saw the entanglement of the deceased and the accused. In the meantime the accused fired at the deceased by a revolver which hit the deceased and he fell down. The accused was apprehended on the spot alongwith revolver, four five cartridges and one empty cartridge. Constable Shyam Singh Chauhan carried Satyapal Singh and the accused to the District Hospital, Fatehgarh on a jeep alongwith Sushil Kumar, Sarvesh Kumar alias Bengali and Rajiv Kumar alias Billu PWs 1, 2 and 3 respectively. Before reaching the hospital the deceased died. Thereafter Shyam Singh Chauhan and the three P. Ws. went to Kotwali Fatehgarh. A written report of the occurrence prepared by Sushil Kumar P. W. 1 was handed over at the police station where it was lodged on 1-12-1994 at 2. 15 p. m. The accused was handed over at the police station alongwith revolver and cartridges regarding which a recovery memo was prepared. Balram Singh P. W. 5 investigated the case. Besides other formalities of investigation, he obtained sanction of prosecution from the District Magistrate under Section 25/27 Arms Act. The defence of the accused is of denial. He stated that due to enmity and party factions, in consultation with the police he has been implicated in the case. He further stated that he was brought from his house and revolver, cartridges and empty cartridge were not recovered from his possession. It was suggested that some unknown person was involved in the incident who left his revolver on the spot and ran away and the accused was picked up from the crowd on suspicion.
(3.) THE trial Court found that the F. I. R. of the case was doubtful, witnesses were not reliable, no independent witness had been examined, investigation was not fair and recovery of arm was doubtful. For the above reasons the accused has been acquitted. Constable Shyam Singh Chauhan P. W. 4 stated that he was on petrol duty at police outpost, Central Jail on 1-12-1994. The crossing of Central Jail is about 100 yards from the outpost on the southern side. It has been suggested to the witness that he and the deceased are relatives but the suggestion has been denied. No evidence has been led to show that the witness is related to the deceased Satyapal Singh. The witness admits that the deceased and he are of the one Biradari. The witness has stated that the deceased had taken Theka of Tehbazari of Central Jail crossing and he knew him. The Investigating Officer has recorded the statement of the witnesses on 2-12-1994 i. e. on the next date of the occurrence. The mere fact that the statements of the witnesses were recorded on the next day of the occurrence by the Investigating Officer is not a feature to cast doubt on the fairness of the investigation as has been expressed by the trial Court. Sushil Kumar, Sarvesh Kumar alias Bengali and Rajiv Kumar alias Billu have turned hostile and were so declared by the prosecution. However, Sushil Kumar P. W. 1 corroborates the prosecution case that he and deceased were sitting at the readymade shop of Billu and when accused came on rickshaw deceased caught hold of him and both got entangled. Sushil Kumar stated that he heard the sound of fire but he could not say as to who fired. The witness stated that the accused was apprehended whereafter he also took the deceased to the District Hospital Fatehgarh. He stated that the written report was written by him. P. W. 2 Sarvesh alias Bengali does not support the prosecution case at all. P. W. 3 Rajiv Kumar alias Billu admits that his shop was at the crossing of Central Jail. He stated that the deceased was murdered at the Central Jail crossing. He stated that on the date of occurrence his shop was closed. P. W. 2 Sarvesh Kumar alias Bengali and P. W. 3 Rajiv Kumar alias Billu stated that the inquest report of the dead body of the deceased was made by the Investigating Officer at the hospital and they signed the same. The presence of Bengali and Billu at the hospital corroborates the statement of Shyam Singh Chauhan that they also accompanied the deceased and the accused to District Hospital. Shyam Singh Chauhan stated that Sushil Kumar P. W. 1 prepared the written report at police station Kotwali, Fatehgarh where they reached after the deceased was found dead in the hospital. Sushil Kumar P. W. 1 owns the written report and stated that it bears his signature. He, however, has stated that the written report was prepared by him on the dictation of Inspector. He further stated that the mention of the fact that he, Bengali and Shyam Singh Chauhan had brought the accused at the police station had not been written on his volition. Shyam Singh Chauhan has stated that it is wrong to say that the written report was dictated by the Inspector. He stated that Sushil Kumar himself wrote it out. The factum of written report being prepared by Sushil Kumar is proved from his own statement and also from the statement of Shyam Singh Chauhan. Balram Singh P. W. 5 is the Investigating Officer of the case in whose presence the case was registered at the police station. No suggestion has been made to him that the written report was prepared by Sushil Kumar on his dictation. In view of the above facts the hostility of the informant, Sushil Kumar, does not render the F. I. R. doubtful and it cannot be inferred that the F. I. R. is the out come of the consultation or was prepared on the dictation of the Inspector.;