- (1.) WE have heard Sri P.K. Mishra, Advocate on the admission of the present appeal filed under Section 372 proviso Cr.P.C., which is directed against judgment of acquittal dated 20.7.2013, passed by the learned Additional Sessions Judge, Court No. 1, Rampur, by which the respondents were acquitted of charges under Sections 302, 302/34 IPC. For a motive, which was said to be an illicit relationship existing between the deceased Hari Om, who happened to be the son of the informant (PW -1) and Smt. Asha, who happened to be the wife of respondent Lazar, it was alleged that taking annoyance out of the illicit relationship, the two respondents shot the deceased dead, while he was dragging his bicycle on way from his village to another place. It was stated that they remonstrated the deceased and the two shots were fired from a point -blank range.
(2.) THERE is no dispute that the cause of death of Hari Om was the gun -shot injuries and that he was indeed murdered. The defence of the respondents was that for that particular suspicion, which was looming large in the mind of the informant, they had falsely been implicated.
(3.) THE F.I.R. cited two names as eye -witnesses. One was that of PW -2 Chhanga Lal and the other was Ram Bahadur (not examined). As regards the support to the prosecution charges, the informant of the case (PW -1) had supported his story, but Chhanga Lal, who was, admittedly, one of the relatives of the informant, did not support the prosecution story on any of its aspects. He flatly denied that there was any information or rumour making round in the village that the deceased Hari Om was carrying on an illicit relationship with the wife of respondent Lazar. He further denied that he was never told about the relationship and the annoyance, which was being entertained by respondent Lazar due to his wife carrying an illicit relationship with the deceased. Likewise, PW -2 also flatly negated the prosecution question that he had ever witnessed the two respondents having killed the deceased. FIR named Ram Bahadur was not examined, we have already noted it. As regards PW -1 and the fact of his report, the learned trial Judge has referred to some of the material evidence on the creation of the F.I.R. It was held by the learned trial Judge by referring to the evidence of D.W. -1 Babu Ram, who was, undisputedly, the scriber of the written report, that Babu Ram stated that the informant had never dictated any report to him, rather he was taken to the police station and the Officer -in -charge of the police station dictated the report, which was written by him and was signed by him and the informant Matroo Lal. Besides this important aspect of the case, what we find further is that the learned trial Judge found the very evidence that the dead body was sent to the mortuary for holding postmortem without any relevant papers, like, the inquest report or the copy of the F.I.R., as a result of which, the postmortem was not being conducted by the doctor, as a result of which, an application was filed before the District Magistrate on 19.11.2008, requesting him to facilitate the holding of the autopsy and accordingly, it was, lastly, held by the orders of the District Magistrate on 20.11.2008 by 6.30 P.M. Thus, the learned trial Judge appears perfectly reading the evidence when he was holding that till 6.30 P.M. on 20.11.2008, there was no existence of the F.I.R., as the copy thereof was not available with the dead body challan. The learned trial Judge also held that it was more prominently indicated by evidence that the C.J.M. had received the copy of the F.I.R. dated 19.11.2008 on 21.11.2008. Thus, the evidence of fabricating the written report given by D.W. -1 Babu Ram, gets further support from the above discussion of non -accompaniment by other documents of the dead body challan. These issues could not be side -lined and ignored.;