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In an interesting case, allowing a criminal appeal the Allahabad High Court at Lucknow has reversed the conviction under Section 302 of the Indian Penal Code, observing that under the facts and circumstances of the case, "Lodging of an FIR within twenty-five minutes of murder was highly improbable. 

A Division Bench of Justice A R Masoodi and Justice Manish Kumar noted that lodging of an FIR within 25 minutes was also doubtful for the reasons that as per the prosecution story, the alleged incident had happened at around 5.00 P.M., then the injured were taken to a hospital which was 2 km away and then from there the author of the complaint went to a Police Station police station 4 km away where he took 10-15 minutes to write down his complaint. 

The Court pointed out that some time would also have been taken in arranging the vehicle for taking the deceased to the hospital, therefore, the Court held that all this could not have been done within a short period of 25 minutes, which made the prosecution case doubtful.

Additionally, it also noted that the non-forwarding of the Special Report/Crime Report forthwith by the Police to the Magistrate, as mandated by Section 157 Cr.P.C, also deprived the Magistrate of the chance to supervise the investigation and created credibility about the FIR.

Therefore, stating that "the prosecution case must stand on its own legs, it cannot sustain on the weakness, if any, in the defense case", the Court allowed the appeal and set aside the conviction under Section 302 and 120B IPC.

Incident and the FIR

In 2004, an FIR was lodged under Section 302/120B IPC by the complainant, who was the father of the deceased girl that on August 29 at about 5 pm, the appellants/convicts along with one unknown person had barged into his house having "tamancha" in their hands. The complainant/father had stated that at that time he and his 5 children were there in the house.

The complainant/father had alleged that the appellants then started firing on one of his 4 daughters with the intention to kill her while she was sitting with her sisters in another room. He had added that when he and his children started shouting, the culprits ran away. 

Thereafter, the complainant/father had taken her injured daughter to the hospital which was 1.5-2 km away from his house, where the doctor had declared her brought dead. 

Defense counsel's argument 

Arguing against the allegations made in the FIR, the defense counsel had contended that apart from the FIR being anti-time, the crime report/special report was not enclosed with the inquest report, which is mandatory under Section 157 Cr.P.C.

He had also averred that in the enclosures with the inquest report, two pages were shown for the FIR and one page for General Diary, whereas the FIR was of three pages. Therefore, he had further contended that neither any FIR was in existence at the time of inquest nor any special report/ crime report was there till then.

He had also argued that when the prosecution witnesses are near relative/interested witnesses, then their statement needs corroboration and close scrutiny by the Court and in this case, all witnesses were members of the deceased girl's immediate family. 

He had also put on record that no blood-stained clothes of the appellants were ever recovered, which made the presence of the appellant at the time of the incident doubtful.

Court's conclusion

Taking note of the facts and circumstances of the case, the Court concluded that the case of the prosecution had no legs to stand on. Court said that the trial court while dealing with the evidence of the father (Witness-1) has drawn overreaching conclusions.

Accordingly, the Court held that the Trial Court's judgment which heavily relied upon the direct evidence of the father was erroneous, perverse, and shocking to the conscience of justice. 

The Court, therefore, concluded that the prosecution case was not proved and the conviction of the appellants and the sentence awarded by the trial court was not sustainable.

Cause Title: Vishal Gupta vs State of UP