Paragraph numbers below are the court’s original numbering, recovered from the source text.
9. Dr. M.L. Tandon, Autopsy Surgeon who was examined c before the learned trial judge as PW-6 stated that there were three wounds of entry, whose size and direction were same. He furthermore opined that injuries caused to the deceased was only possible if shots had been fired from his right side. He furthermore was of the opinion that the duration of time of death may vary by about 6 hours. We have noticed hereinbefore that according to the post-mortem report, Blister was found to …. be present at places and skin was also peeled off at places . Rigor Mortis passed off from both upper extremities but slightly present in lower extremities.
10. On the date of occurrence, according to the prosecution witnesses, it was raining and the dead body was kept under the Chappar. The prosecution failed to obtain an explanation from the Autopsy Surgeon as to how he had opined that death had taken place 3-4 days prior to his post-mortem examination although he examined the dead body within 41 hours from the t- time of occurrence.
11. It is furthermore evident that all the prosecution witnesses stated that all the accused persons had fired from the respective firearms. According to them at least 7 shots were fired; 3 shots had hit the person of the deceased. If that be so, more than one gun must have been used. Appellant, as noticed hereinbefore, is said to have been fired a shot from his licensed gun. Its use, however, has not been established by the r"" prosecution as the report of the ballistic expert is silent in that regard. The empties which were found at the spot had not been examined by any ballistic expert. The empties which were e SUPREME COURT REPGRTS [2008) 17 S.C.R. A recovered from the dead body wer~ not matched with the gun allegedly used. We may notice that two metallic pellets were recovered from the dead body. Empties had ndt been shown to the expert; even the attention of the Autopsy Surgeon was. not drawn B thereto. Although shots were said 1to have been fired from a distance of 2-3 paces, no blackening or charring was found to be present. If the shots were fired from a close range, it was expected that blackening and charring would have been noticed ~-… by the Autopsy Surgeon at the entry point. c
12. Learned Sessions Judge and the High Court, with respect, failed to apply their mind aslregards the time of lodging .,_ of the FIR. Hirdey Narain Shukla, the Head Constable attached with Police Station who was examined as PW-3 before the learr:ied trial judge stated that the FIR was lodged at 4.45 a.m. D and he had recorded the same immediately. According to him, the special reports were sent by 6.00 a.m. through a constable. However, the Investigating Officer did not say so. As we have ')I. noticed hereinbefore, he, in his evidence, categorically stated _.. that he had recorded the FIR at 9.~0 p.m. No evidence had been brought on records to show that investigation had started on 16.8.1979. A site plan was prepared but it does not bear any date. The prosecution has not ef plained as to why the FIR was sent to the court of Chief Judicial Magistrate on 17.8.1979 and why the dead body was not sent for post-mortem on 16.8.1979 itself.
13. The High Court, in our opinion, committed a serious -1 error insofar as it proceeded on the basis that shots fired by the appellant caused the fatal injufy. The High Court did not analyze the evidence on record as to who caused the other firearm injuries. If the prosecution witnesses, who were said to G be the eye-witnesses, were to be believed, 6 out of 7 accused could not have been acquitted and particularly those who had direct enmity with Mewa Ram and his sons. Although Suraj Pal (PW-2) son of Ganga Singh denied the suggestion that scribe of the FIR who was admittedly a resident of different village -.ii H (said to be at a distance of 1 O kilometers) from the place of OM PRAKASH v. STATE OF U.P. [S.S. SINHA, J.] occurrence, the prosecution had not explained as to why he was not examined. If he was present in the village it was expected that he also had witnessed the occurrence, as his son was said to be an eye-witness. It is difficult to believe that in a case of this nature the investigation did not start immediately. Inquest report, preparation of seizure memo etc. which were to be carried routinely, and as such there was no reason as to why they were not brought on record. -… ""-"' ~'>J
14. While examining the original records of the case, we have noticj:id that some interpolations have made in the records ma·int~ined at the police station. The High Court, in our c opinion, committed a serious error in drawing an inference that appellant had rightly been held guilty for commission of offence of murder of Ram Rakshpal as animosity between the parties was proved. It failed to notice that there is nothing on record to show that the appellant had been bearing any animosity against the deceased. On the other hand, other accused were having animosity towards the deceased, Mewa Ram and his family . . .>f Furthermore, the High Court did not pose unto itself the correct question, namely, the time of lodging the FIR, i.e., whether it had in fact been lodged at 4.45 a.m. or 4.45 p.m .. If it was lodged at 4.45 p.m., the entire edifice of the prosecution case would fall to the ground.
15. Delay in lodging the First Information Report has a great importance in a case of this nature. Enmity between the parties stands admitted. The prosecution case proceeded on the basis that immediately after occurrence and after shifting …. the dead body under a shed, the informant got the First Information Report scribed by Ganga Sahai and immediately thereafter proceeded on foot to the Police Station. If this part of the story is correct, the prosecution's case would not be subject to much doubt. But if the scribe of the First Information Report was residing in a separate village which is 10 kms. away from the place of occurrence, and it was at that place the FIR …. was scribed whereafter PW1 arrived at the Police Station, it would impossible for him to reach by 4.30 in the morning. The prosecution did not examine the scribe of the First Information [2008] 17 S.C.R. e A Report although his son has been· examined as an eye-witness. If he was residing at the relevant time in the village where the incident had taken place, it was expected that either he had witnessed the occurrence or had reached the place of occurrence immediately after the accused fled away. The B prosecution, therefore, should have made attempts to clarify this anomaly. Indisputably, there exists a disbrepancy as regards timing of the lodging of the First Information Report. P.W.3, Head -t\._…,.– Constable Hriday Narain Shukla, testified that it was lodged at c 4.45 a.m. Records, however ~how otherwise. In the FIR, it is shown to have been lod ed. at 4.45 p.m. As noticed hereinbefore, there are some ·nterpolations but accord~ng to the Investigating Officer, he reco~ded the First Information Report at 9.30 p.m. on 16.8.1979. ·
16. Moreover, if the First Information Report was lodged early in the morning, there was absolutely no reason as to why the investigation did not start immediately thereafter. If Head );._ Constable Hriday Narain Shukla iJ correct that the copies of the First Information Report had been sent to all. concerned including the court, there was absolutely no reason as to why the same would reach the court on the next date. We also fail to comprehend as to why the dead body was sent for post mortem only on 17th instead of 15th itself. The seizure memo does not contain any date. The original inquest report is not on record.
17. Furthermore, except the appellant all other accused have been acquitted. The High Court, therefore, did not rely -t upon the prosecution case in its entirety. While doing so, unfortunately, the High Court did not ~onsider these vital aspects …. of the matter which were crucial for idetermination of the issue.
18. For the aforementioned: reasons, the impugned judgment of the High Court cannot be sustained and it is set aside accordingly. The appeal is allowed. The Appellant who_ is in custody is directed to be set ?t liberty unless wanted in connection with any other case. H N.J. Appeal allowed.