LexOM PRAKASH versus STATE OF U.P.
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[2008] 17 5.C.R. 475 OM PRAKASH A r -1 \I. STATE OF U.P. (Criminal Appeal No. 1022 of 2204) DECEMBER 12, 2008 B [S.B. SINHA AND CYRIAC JOSEPH, JJ.] -~ Penal Code, 1860 - ss 148, 452, 302, rw 149 - Conviction under -'Appellant and other accused armed with deadly weapons trespassing house of father of deceased - c Shots fired resulting in death of deceased - Conviction by trial court - High Court upholding conviction of appellant only - Sustainability of - Held: Not sustainable - High Court erred in holding that shots fired by appellant caused fatal injuries - It did not analyse evidence on record as to who caused D other firearm injuries - There were discrepancies in the time ~ of lodging of FIR - Investigation did not start immediately - .. Scribe of FIR not examined - There is nothing to show that appellant had any animosity against deceased whereas other accused had direct enmity with deceased's father and his family - Thus, order of High Court set aside. E It is the prosecution case that DK, RR, RP and GK are sons of MR. On 15-8-1979 at 9.30 p.m. when RL-MR's wife, DK, GK, RR and his wife were offering puja, the appellant and others armed with weapons entered the house of MR. Appellant fired at RR. Other accused also F t- fired at RR. Members of the family saw them under the .._ torch light, lantern and kerosene box wick. The injuries inflicted resulted in the death of RR. GS-brother of MR who is not the resident of the village where the incident took place scribed the FIR. MR lodged FIR. He stated that G RS-son of accused no. 1 had lodged FIR u/s. 307 IPC against his sons. They were convicted and later released on bail. Also there was a property dispute between K· father of accused no. 7 and MR and his sons. 475 H 476 SUPREME COURT REPORTS [2008] 17 S.C.R. A Prosecution relied on evidenc~ of PW 1-MR, PW 2-SP son of GS and PW 4-DK. Trial court convicted all the accused persons for committing murder of RR. However, High Court found the appellant on~y guilty of firing of a shot at the deceased, holding that participation of other 8 accused in the commission of the said offence was not proved beyond doubt. It upheld the conviction of the appellant and acquitted others. Hence, the present appeal. Allowing the appeal, the Court C HELD:1.1. High Court committed a serious error insofar as it proceeded on the basis that shots fired by the appellant caused the fatal injury. The High Court did nof analyze the evidence on record as to who caused the other firearm injuries. It erred in 1 drawing an inference that 0 appellant had rightly·been held, guilty for commission of offence of murder of RR as anin:iosity between the parties was· proved. It failed to notice 1 th.at 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- E MR and his family. If the pros;ecution witnesses, who were said to be the eye-witnesses, were to be believed, 6 out of 7 accused could not liave been acquitted and particularly those who .had· direc~ enmity with MR and his sons. [Paras 13 and 14] [484-F-G] F 1.2. 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. were to be carried . I routinely, and as such there was no reason as to why they were not brought on recolid. While examining the G original records of the case, some interpolations made in the records maintained at the pblice station have been noticed. [Paras 13 and 14] [485-A-C] . 1.3. The prosecution case proceeded on the basis that immediately after occurrence and after shifting the H dead body under a shed, the informant got the FIR OM PRAKASH v. STATE OF U.P. 477 scribed by GS and immediately thereafter- proceeded on A 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 FIR 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 8 whereafter PW1 arrived at the Police Station, it would be impossible for him to reach by 4.30 in the morning. The -~ prosecution did not examine the scribe of the FIR although his son has been examined as an eye-witness. If he was residing at the relevant time in the vil
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