1

Reserved

A.F.R.

Criminal Appeal No.4641 of 2002

Avaneesh………… .................................. Appellant

Versus

State of U.P….....................................Respondent.

Hon'ble Vinod Prasad, J.

Hon'ble Surendra Kumar, J.

(Delivered by Hon'ble Vinod Prasad J.)

Avaneesh, the sole appellant in this appeal, has been convicted under

Section 302 IPC and 25 Arm’s Act by Additional Sessions Judge, Court no.9,

Muzaffarnagar vide impugned judgment and order dated 18.9.2002

recorded in S.T. No.522 of 2002, State Vs. Avaneesh, under section 302

I.P.C. connected with S.T. No.523 of 2000, State Vs. Avaneesh, under

Section 25 Arm's Act and has been sentenced to imprisonment for life with

Rs.10,000/- fine and in default in payment thereof to serve one year

additional imprisonment for the charge of murder and one year

imprisonment with Rs.1000/- fine and in default in payment of fine to serve

three months additional imprisonment under section 25 Arms Act. Out of an

amount of Rs. 10,000/- fine, Rs.7,500/- has been awarded as compensation

to the heirs of the deceased by the learned trial Judge. It is this judgment

and order of conviction and sentence, which is under challenged in the

instant appeal.

Narrated concisely the background facts, as are stated in the written

FIR Ext. Ka-1 and testified during the trial by the two fact witnesses

informant Padam Singh P.W.1 and eye-witness Pradeep Kumar P.W.2, are

that on 26.1.2000 at 7 A.M. while the informant and the deceased

(Rajendra) were proceeding towards their enclosure (gher) situated near

informant’s house and when they were passing through Teli Wala locality

Neutral Citation No. - 2013:AHC:74928-DB

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(Mohalla) near the house of Mazid in front of house of Noora, the appellant

carrying a country made pistol in his hand met them and by uttering that he

is going to repay, shot at Rajendra (deceased), who was the nephew of the

informant. Informant raised alarm that Rajendra has been shot at, which

attracted Vedpal and Pradeep P.W.2 at the spot. Sustaining gunshot injury

Rajendra tottered to some distance and fell down in front of the house of

Mazid. Appellant thereafter again shot at Rajendra at his head. On hue and

cry raised by the informant and witnesses many villagers collected at the

spot but the appellant escaped towards Chowdhrahan Patti in the east.

Rajendra was rushed to the Bohra Nursing Home in a rented car of Kalu Nai

and albeit he had expired en-route to the said Nursing Home, yet he was

brought to the Nursing Home where he was declared dead and hence his

corpse was brought back to the village and was put in the veranda.

Informant Padam Singh thereafter got the FIR Ext. Ka.1 penned

down through Paramjeet son of Udaiveer, a co-villager, and carried it to the

police station Bhorkala, district Muzaffarnagar at a distance of 5 kms, where

he lodged it the same day at 1.30 p.m. after six and a half hours of the

murder.

Head Moharrir Vijendra Singh P.W.4 registered the crime by preparing

Chik FIR of Crime No.6 of 2000 under Section 302 IPC, Ext. Ka-7, and

corresponding crime registration GD entry No.15, Ext. Ka-18.

Investigation into the murder crime was immediately commenced by

S.O. K.K. Vergoti P.W.5, who recorded the statement of Head Moharrir

Vijendra Singh P.W.4 and then came to the spot where the dead body of the

deceased was lying and there recorded statements of the informant Padam

Singh P.W.1, Pradeep P.W.2 and scribe of the FIR Paramjeet. A.S.I. Uma

Shankar Sharma P.W.3 was deputed by the I.O. P.W.5 to conduct inquest on

the cadaver of the deceased and Investigating Officer on his part,

accompanied with the informant and the witnesses, came to the incident

scene and conducted spot inspection and prepared site plan Ext. Ka-11.

From the murder spot, I.O. collected a fired empty cartridge, prepared its

recovery memo Ext. Ka-12 sealed it and attached the seal on it. I.O. also

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collected blood stained and plain earth and prepared its recovery memo Ext.

Ka-13.After copying recovery memos in the case diary, I.O. recorded the

statements of some of the inquest witnesses and of other persons of the

locality. On 28.1.2000, I.O. P.W.5,copied post-mortem examination report of

the deceased in the case diary. On 31.1.2000 I.O. forwarded a report u/s

82 Cr.P.C. and, after obtaining court’s order, executed 82 Cr.P.C. proceeding

on 1.2.2000. Following day, on 2.2.2000, statements of rest of the inquest

witnesses Uma Shankar Sharma, Nahar Singh, Maro Ram etc. were noted.

Accused appellant surrendered in the Court on 3.2.2000 and therefore, I.O.

recorded his statement in district Jail, Muzaffarnagar the same day. In his

statement to the I.O., appellant expressed his desire to get the weapon of

murder recovered and therefore, on 7.2.2000, I.O. forwarded a report for

appellant's remand. Under the orders of the Court, appellant was taken out

from jail on 10.2.2000 and was locked in police station penitentiary the

same day. On 11.2.2000, I.O. P.W.5, along with other police personnel and

the appellant started from police station at 8A.M. and came to the Alaverpur

hamlet where Jaiveer and Ravindra Singh P.W.7 were joined as witnesses.

The police party and the witnesses were brought by the appellant near his

shared tube well and from the north of the said tube well, from the field of

Sirdarey, appellant dug out a country made pistol used in the crime after

removing the soil, which was wrapped in a polythene and handed it over to

the I.O. On the basis of the said recovery, the weapon of assault, I.O.

prepared the recovery memo, Ext. Ka-14. Appellant thereafter was brought

to the police station where on the basis of Ext. Ka-14 Head Moharirr

Vijendra Singh, P.W.4 registered FIR of offence under Section 25 Arm’s Act

by preparing Chik FIR of Crime No.8 of 2007 dated 11.2.2000 at 10 A.M.

Investigation into this offence under Section 25 Arm's Act was conducted by

ASI Uma Shankar Sharma P.W.3 who concluding the investigation had

charge sheeted the appellant on 13.2.2000 vide charge sheet no. 9, on the

basis of which Criminal Case No.1627 of 2000 State versus Avaneesh, was

registered in the Court of C.J.M., Muzaffarnagar. In the main offence u/s

302 IPC, also Investigating Officer S.O. K.K. Vergoti wrapped up the

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investigation on 22.3.2000 and charge-sheeted the appellant for that

offence vide Ext. Ka-15. Sanction for appellant’s prosecution u/s 25 Arm’s

Act was applied for vide Ext. Ka-17 by P.W.3, which was accorded by the

then District Magistrate Dinesh Chandra Mishra on 14.3.2000, which

sanction order is Ext. Ka-18.

On 6.5.2000, Investigating Officer had dispatched through constable

the recovered country made pistol, blood stained and plain earth and

deceased cloths to Forensic Science Laboratory for examination. The report

of the Forensic Science Laboratory dated 7.6.2001 is Exhibit Ka-20. The

recovered articles have been proved by the Investigating Officer, as material

Exhibit1 (one country made pistol), material Exhibits 2 to 6 (recovered and

tested bullets), material Exhibits 7 and 8 (blood stained and plain earth),

material Exhibits 9 and 10 (containers of blood stained and plain earth),

material Exhibits 11, 12 and 13 (attires of the deceased) and material

Exhibit 14 ( wrapping packet).

A.S.I. Uma Shankar Sharma P.W.3,had conducted inquest on the

cadaver of the deceased and had prepared inquest memo (Exhibit Ka-2)

and other relevant documents photo lash (Exhibit Ka-3), letter to R.I.

(Exhibit Ka-4), letter to C.M.O. (Exhibit Ka-5) and Police Form No.13

(Exhibit Ka-6). Two G.D. entries registering the offences u/s 302 IPC and 25

Arm’s Act are Exhibits Ka-8 and Ka-10.

Autopsy examination on the cadaver of the deceased was performed

by Dr. Vipin Chand Gupta PW6, on 27.1.2000 at 11 a.m. and he had

prepared post mortem examination report Ext. ka-19. Constables 867 Som

Pal and 156 Bhopal Singh of P.S. Bhorkala, District Muzaffarnagar had

brought the cadaver of the deceased before the doctor and had identified it.

According to the facts slated in Exhibit Ka-19, deceased was 45 years of age

and 30 hours (1¼ days) had lapsed since he had demised. He had a well-

built body and rigor mortis had passed off from neck and was present in his

upper and lower extremities. No sign of decomposition was found in the

body. His both eyes were closed, pleura and lungs were lacerated, stomach

was empty, small intestine had chyme and gases and large intestine

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contained faecal matter and gases. Deceased death had occasioned due to

the sustained firearm injury to vital organ-lung. From the dead body, four

attires (kurta, pajama, sweater and white dhaga) were removed and were

handed over to the constables. Following ante mortem injuries were

detected on the corpse of the deceased as noted by the doctor in the

autopsy report:-

“(1) Firearm lacerated wound 0.5 cm x 0.5 cm x muscle deep

inverted margins and area of blackening …. it on back of left side

neck 3.5 cm above and outer C7 came out as wound of exit passed

through Lt. mandible” fractured as lacerated wound 2.5 cm x 2 cm

… on Lt. side face 5.5 cm medial to Lt. ear. Entry -muscle-left

mandible-left face exit.

(2) Firearm lacerated wound 2.5 cm x 2 cm. Lung deep on the left

side chest between 4-5 ribs 4.5 cm above left nipple medial left

nipple at 10 'O' clock position with inverted margins charred and

bullet at come out after passing through lung and scapula bone as

wound of exit lacerated wound 3 x 2 cm outer margin on left

scapular region 16 cm below the top of left shoulder region.

(3) Abrasion 3 cm x 2.5 cm on left lower eyelid.

(4) Abrasion 1 cm x 0.25 cm on bridge of nose.”

On the basis of submitted charge sheets Exhibit Ka-17., u/s 25 Arm’s

Act, case no.1627 of 2000, State versus Avaneesh, was registered in the

Court of C.J.M., Muzaffarnagar on 4.4.2000. Similarly on the basis of later

charge sheet u/s 302 IPC, case no.1234 of 2000, State vs. Avaneesh, was

registered on 21.4.2000 in the same court of C.J.M., Muzaffarnagar. Since,

the learned C.J.M., found the case u/s 302 IPC being exclusively triable by

Sessions Court and case u/s 25 Arm’s Act being offshoot of the former and

hence he committed both the cases to the Sessions Court for trial on

30.6.2000 and 14.3.2000. Committal order of 25 Arm's Act case is Exhibit

Ka-18.

Both the committal orders culminated in registration of S.T. No. 522

of 2000, State vs. Avaneesh u/s 302 IPC, on 30.6.2000 and S.T. No.523 of

2000, State Vs. Avaneesh u/s 25 Arm's Act. Learned trial court clubbed both

the Sessions trials and held a joint trial.

Learned trial Judge charged the appellant for the charge sheeted

offences u/s 302 IPC and 25 Arm's Act on 4.1.2001. Both the charges were

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read out and explained to the accused appellant who, after understanding

the same, denied both the charges and claimed to be tried and resultantly

to establish his guilt Sessions Trial procedure was resorted to by the learned

trial Judge to prosecute the appellant.

In the trial prosecution examined in all seven witnesses including

informant Padam Singh, P.W.1 and eye witness Pradeep Kumar P.W.2 as fact

witnesses to bring home the charges against the appellant. A.S.I. Uma

Shankar Sharma P.W.3, Head Moharirr Vipin Singh, P.W.4, Investigating

Officer S.O. K.K. Vergoti P.W.5, Dr. Vipin Chand Gupta, autopsy doctor P.W.6

and Ravindra Singh recovery witness P.W.7 were the formal witnesses

testified before the trial court.

In his statement before the Court Padam Singh P.W.1, besides

proving his FIR Exhibit Ka-1 and narrating the allegations levelled by him in

it has further deposed that the appellant is a co villager and a neighbour of

the deceased. Deceased enclosure (gher) was adjacent to that of

appellants. Some money was advanced by the deceased to the appellant

and the same was balanced which the deceased was repeatedly demanding

back and the same was causa causans (immediate motive) for the murder.

Because of demand being raised immediately prior to the shooting, that the

deceased was eliminated. Informant further deposed that the house of the

appellant is facing east and adjacent towards south of it is the house of one

Shukla and the same is also next to the enclosure of the informant. North of

the house of the appellant is the enclosure of the deceased Rajendra, but in

between the houses of the deceased and the informant are the enclosures/

houses of Baljeet, Nandram and Jagat Singh. In front of the house of

appellant there is a lane, which is blocked at the house of the deceased.

House of the deceased facing south is opened in the said lane. Informant’s

further cross-examination regarding topography are wholly irrelevant, not at

all affecting the merits of the appeal and therefore are being eschewed

from being referred to. While denying defence suggestion that Pradeep

P.W.2 and deceased had separate residences facing each other in the lane,

it was deposed by the informant PW1 that PW2 was the real nephew of the

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deceased and they both resides jointly in their ancestral house and both of

them were agriculturists. It was further disclosed by the informant that

Balwant was the grand-father of the deceased Rajendra and he had only a

son Elam Singh, father of the deceased. Elam Singh had two sons

Rajendra(deceased) and Anoop Singh. Pradeep P.W.2 is the son of Anoop

Singh. Appellant’s house is 15 yards away from the house of Pradeep.

Describing about the actual incident informant had stated that he had gone

to the deceased's house without any special reason in a routine manner and

the deceased at that time had consumed two glasses of milk. It was further

evidenced that post assault injured Rajendra was carried to Bohra Nursing

Home in the rented car of Kalu Nai, who had a rented car business. Car

was brought to a distance of500 meters from the spot of shooting and was

parked in front of the house of Dhramveer, a grocer. Injured/deceased

Rajendra was lifted in the laps up to the car by the informant, Raju, Om

Prakash, Rajpal and Chintu and P.W.2 had accompanied them and in

between two places deceased's blood had trickled down. Cloths of the

informant were also soaked with blood while lifting the deceased up to the

car. Rajpal, Vedpal, Bittu and Pradeep had accompanied the informant and

the injured up to Shamli Hospital/ Bohra Nursing Home. They had started

for the hospital at quarter past seven and they had taken the route of

Saharanpur trisection. It was at that road trisection, which was 15 kms

prior to Bohra Nursing Home, that the informant had sensed that injured

Rajendra had lost his life, but even then he was brought to the Nursing

Home, at 8-8.30 A.M., where he was pronounced dead and consequently

his cadaver was brought back to his village and was placed on a cot in the

enclosure (gher), where the blood had dripped down. He has further

testified that he had returned to his village after the autopsy examination

on the following day at 12 in the noon and so long as the deceased was not

cremated, he had not changed his cloths. He had further stated that no

certificate was issued by Bohra Nursing Home. Informant has expressed his

inability to divulge topographical situation of the district hospital

Muzaffarnagar, while admitting the fact that in his village there is a

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Government Hospital. On further being probed informant PW 1 has further

deposed that the police had arrived in the village at about 2 or 2¼ P.M. and

it remained there till 3.30 – 4 P.M. and corpse of the deceased was

removed only after documentary formalities for further actions were

completed near the cadaver of the deceased. Informant and scribe

Paramjeet had accompanied hearse of the deceased on a motorcycle to the

police lines Muzzafarnagar and then to the mortuary. Some insignificant

omissions have been asked from P.W.1 to which he had expressed his

ignorance. Informant has further disclosed that he had sprinted towards

west raising hue and cry and from that direction only the two witnesses

Vedpal and Pradeep Kumar P.W. 2 had arrived at the incident scene. He had

further deposed that first fire on the chest of the deceased from a distance

of 1 or 1 ½ paces west was made when he was in front of the house of Mir

Hasan and second fire was made at him when the informant and the

witnesses had arrived at the house of Sukhbir. Deceased had not squatted

on the ground receiving first fire arm injury. It was also testified that the

shot had entered in the head and had exited from the nose and the shot

was fired from a distance of 2-4 inches. Deceased had fallen down at a

distance of one yard away from where he was shot at first. Informant P.W.

1 has also deposed that the appellant use to realize the market fees but he

has denied the defence suggestion that he has also applied for allotment of

market fees tender and because he failed to get it that he has falsely

implicated the appellant. Regarding his relationships with the deceased,

PW1 has stated that the deceased was not his real nephew but by the

genealogy pedigree he was a distant nephew, which ancestral pedigree he

could not recollect. He has emphatically declined the defence suggestion

that the incident had not taken place as and when alleged by him and the

deceased was shot at in the jungle at an unknown time by unknown

assailants. He also denied the defence case that he had not witnessed the

murder nor he had carried the deceased to the Bohra Nursing Home. He

had also refuted the defence suggestion that the FIR was not prepared at

the date and time alleged by him and it was made ante dated and ante

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timed and because of enmity of market fees that he has falsely implicated

the appellant. Informant was recalled for further cross examination after a

month when he was asked regarding ration card etc., which are wholly

insignificant and trivial aspects having no bearing on the outcome of the

appeal and, therefore, do not require any mention.

Pradeep Kumar P.W.2 supported the prosecution case and the

informant P.W. 1 in all its material aspects of the matter. He has stated that

at the date and time of the incident, he together with Vedpal were going to

the forge of Bashir black smith for getting his spade fixed, starting from his

house at quarter to seven hours in the morning, and when they reached

near the house of Yaseen in Teli Wala locality, they had heard the gun fire

shot and shrieks of Padam Singh that Rajendra has been shot at.PW2

further disclosed that deceased Rajendra was fired at his head from the

country made pistol from point blank range and after the shooting accused

appellant had escaped towards Chawdharan Patti. Deceased had lost his

life en-route to the Nursing Home. P.W.2 has stood the test of searching

and lengthy cross examinations and had not budged at all. His initial cross

examinations were peripheral regarding another witness Vedpal having no

effect at all on the veracity of the prosecution case. He has stated that he

and Vedpal had come from their own houses and they had met in the way

to the blacksmith forge, which was a tenanted shop of an Inn and was

situated 300 meters west to the house of Bashir. He has further testified

that Vedpal had to get his chain fixed for which purpose he was going to

the blacksmith. On being questioned P.W.2 had stated that he had two

enclosures and in the other enclosure, deceased Rajendra and the servant

Sanjay used to sleep for looking 5-6 live stocks. He has further deposed

that early in morning when he had gone to feed those live stocks then he

had found deceased and servant Sanjay present in the enclosure and

Sanjay was already feeding the live stocks. He has further stated that the

appellant Padam Singh had met him at the incident spot and not prior to it.

Regarding the place of the incident, this witness was also tested searchingly

but he has corroborated PW1. He has admitted that when he had seen the

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injured deceased for the first time he was in front of Hamid's house and

when he had heard the shrieks then he was one or two paces towards

north of the house of the Yaseen. Second fire was made when he had

stepped up to ten paces. The face of the deceased was towards west and

appellant was half a pace away from him. He has further deposed that the

appellant had shot the decease just beneath the left ear from point blank

range and the deceased had squatted on the ground. At the time of the

incident deceased was wearing a sweater and a kurta. He has further

deposed that he remained at the incident scene for about five minutes and

the car was brought to the spot by Devendra, who had arrived at the

incident scene 2 or 3 minutes after the murder from his house. He has

further disclosed that the house of Kalu Nai, in whose car the deceased was

transported to Bohra Nursing Home, was 600-650 meters away from the

incident spot. PW2 has denied that he had gone to Shamli along with the

deceased. He further corroborated the informant by testifying that they had

left for Bohra Nursing Home at quarter past seven after the incident. This

witness had informed the in-laws of the deceased and his maternal uncle.

He has further disclosed that police station Bhorkala was at a distance of 2

¾ or 3 Kms and he had not made any phone calls to P.S. Bhorkala. He has

lend credence to the statement of P.W.1 when he has deposed that police

had arrived at the spot at 2 P.M. and the corpse of the deceased was

removed by the police at 3 ¾ P.M. and he had also accompanied the

hearse. It was also evidenced by PW2 that the I.O., before conducting the

spot inspection, had waited in the enclosure where the deceased cadaver

was lying for half an hour. He has further testified that the I.O. had

prepared the site plan and had recovered the blood stained earth and he

had also prepared the recovery documents inside the enclosure and had

sealed the recovered articles and his statement was penned down by the

I.O. before he had left the spot. PW2 has also testified that his signature

was not obtained on his recorded statement or on the inquest memo. He

has further stated that the inquest was concluded by half past three and

after post-mortem examination the corpse of the deceased was received in

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the village at 12 in the noon and previous day, the same was taken to the

mortuary in a Maruti van (hearse). He has further deposed that they had

reached Muzaffarnagar mortuary at half past 5 or 6 p.m. and first of all

the dead body was brought to the police lines and after staying there for

about 5 or 10 minutes it was taken to the mortuary. He has denied the

defence suggestion regarding realization of market fees and the fact that

the appellant was realizing the market fees. He has further stated that the

lane in which the incident had occurred was 1 ½ meter wide having houses

of muslims on both the sides. He has denied the defence suggestion that he

was not present in the village on the incident date nor the incident had

occurred in Teli Wali Gali as well as that the deceased was murdered at

some other place by an unknown assailant and the deceased was never

transported to Shamli. He has also negated the defence suggestion that the

cadaver of the deceased was brought from somewhere else and was put in

the enclosure. Rest of the cross-examination of this witness PW2 are wholly

irrelevant, unconcerned having no bearing or relation with the present

appeal and hence are not being referred to. P.W.2 has also denied the

defence case that the deceased was murdered because of realization of

market fees and village animosity and the appellant has been falsely

implicated. This witness was also recalled for further cross-examination and

the statements regarding ration card etc. was put to him to which all he had

denied.

A.S.I. Uma Shankar Sharma, who had conducted the inquest on the

cadaver of the deceased has testified those very facts which have been

recorded herein above and has proved the inquest memo and other

documents exhibited as Exhibit Ka-3 to Ka-6. He too has been cross-

examined searchingly at a great length. Some insignificant omissions

regarding crime number etc. has been admitted by him. He has deposed

that he was with the Investigating Officer S.O. and had reached at the spot

along with him. He has also deposed that they had reached at the enclosure

where the dead body was lying at 2 P.M. and at quarter past 3 the cadaver

was removed from the enclosure through the police constables for

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mortuary. He has rejected the defence suggestion that he had prepared all

the papers ante-timed and ante- dated and that the FIR was not registered

at 1.30 p.m. He has also denied the defence case that till the inquest was

over no FIR was in existence and that he had not gone to the deceased

enclosures. He has further denied that he had testified falsely.

Head Constable Vijendra Singh P.W.4 has given evidences regarding

registration of crime, preparation of chik FIRs and GD entries. He has also

stated that the I.O. S.O. K.K. Vergoti had deposited recovered country made

pistol at the police station on 11.2.2000 and on the basis of the said

recovery memo he had registered the case u/s 25 Arm’s Act and had

prepared the Chik FIR of crime number 8 of 2000, under Section 25 Arm's

Act and corresponding GD entry, which are Exhibits Ka-9 and Ka-10. He has

further deposed that information regarding the murder was sent to the

higher officers orally and not on letter head. He has further stated that

constable Ashok Kumar Singh was dispatched to the higher officers along

with the special report. He has admitted that in Ext. Ka-7, C.J.M. had noted

the date 29.1.2000. He has further admitted that the chik FIRs are prepared

in triplicates and thumb impression and the signature of the informant are

taken on the third copy and not on the first two copies. He has denied the

defence suggestion that no special report was dispatched on the day of the

incident and all the papers were prepared ante timed. He has admitted that

he had not mentioned regarding the blood stained attires of the informant.

He has rejected the defence suggestion that the FIR was not registered on

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th

and was registered subsequently ante dated and ante timed and all the

entries regarding the movement of the I.O. dated 11.2.2000 were

fabricated.

I.O. P.W. 5 evidenced regarding the various investigatory steps

already slated herein above. He too was cross examined at a great length

by the defence counsel wherein he has deposed that he had recorded the

accused statement on the second floor in the room where the Deputy Jailer

used to sit and he had not got the signature of the appellant on his

recorded statement. I.O. has further deposed that the place from where the

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country made pistol was recovered was three and half kilometres North

West of the police station and the witnesses had met him at Alaverpur

culvert, which was at a distance of half a kilometre west to the place from

where the recovery was made. He has further deposed that they had gone

to the recovery spot in a jeep. He further disclosed that the statement of

the informant could not be recorded at the police station because he had

already left the police station. He has further corroborated his predecessor

witnesses regarding the time of his arrival at the informant’s enclosure

(gher) where the cadaver of the deceased was lying and the duration of his

stay there. He has further deposed that he had recorded the statement of

the inquest witnesses in the enclosure itself. After the dead body was sent

for post mortem examination, he had conducted the spot inspection at the

pointing out of the informant and the witnesses. He has further evidenced

that he had stayed at the spot till 6.30 P.M. and thereafter had started the

search for the accused for which purpose he had gone to the house of the

accused. He had further deposed that the recovery proceedings consumed

one and half hours and all the recovery memos were prepared in his hand

writing. He has denied all the defence suggestions regarding the recovery

and the fact that he had prepared all the documents sitting at the police

station.

Dr. Vipin Chand Gupta P.W.6, who had conducted post mortem

examination on the dead body of the deceased has stated those very facts

already mentioned herein above. He has further deposed that the milk after

entering into the stomach turns into lactose and then in glucose and then is

absorbed in the body. He has further deposed that there can be a difference

of 3 to 6 hours either way in the time of death of the deceased and the

rigor mortis starts from head and passes off from head.

Ravindra Singh P.W.7, the recovery witness has mentioned regarding

recovery of the country made pistol at the pointing out of the appellant. He

has further deposed that prior to joining the police party, he was searched

regarding the possession of any illegal weapon etc. and only after that he

was joined as a witness. In the wheat field of Sirdarey, appellant had

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stepped up to 18 paces and then had taken out the country made pistol

of .315 bore, wrapped in a polythene and had informed the I.O. that it was

with it that he had shot at the deceased. He has further deposed that the

recovery memo was prepared in his presence by the I.O. He has also

identified the recovered country made pistol. He has further stated that at

the time when he had met the police party, he was going to look for a

buffalo along with Jaiveer son of Mahendra and he had met the police party

at quarter past eight in the morning. He has further stated that he knew

Sirdarey, the owner of the agricultural field, as he was a co-villager and the

agricultural plots of Sirdarey and the appellants were adjoining. He (PW7)

has expressed his ignorance regarding his relationship with the deceased.

He has denied the defence suggestion that because he belonged to the

same family therefore, he was testifying falsely and he had not gone to the

place from where the country made pistol was recovered. Besides above

statement nothing material has come out in the depositions of this witness.

In his statement under section 313 Cr.P.C. appellant has pleaded that

he has been falsely implicated due to village party factionalism and enmity.

As is mentioned in the opening paragraph of this judgment, learned

trial Judge, after looking into the evidences tendered before it, opined that

the prosecution has successfully anointed appellant's guilt and, therefore,

convicted him for both the charges and has sentenced him to life

imprisonment for the murder and one year imprisonment for offence under

section 25 Arm's Act with fines on both the counts and compensation to the

victims family vide impugned judgment order, which decision is now under

challenge in the instant appeal.

In the above background facts, that we have heard Sri Brijesh Sahai,

learned amicus curiae for the appellant and learned AGA for the State. We

would like to mention at this place that initially appellant had engaged many

counsel to defend him but when his appeal was called out for hearing all

the above counsel made statements before us that they do not defend the

appellant any more. Appellant was noticed by us to engage another counsel

but he was found absconding. Resultantly we directed for his arrest and

15

production before us. Under our direction when appellant was brought

before us in custody he requested us to provide him an amicus curiae and

that is how Sri Brijesh Sahai was appointed as amicus curiae, to which

appellant had agreed.

Assailing the impugned judgement and order learned amicus curie

argued that entire prosecution version is false, fabricated and feigned and

only after discovery of the cadaver of the deceased that a false story was

cooked up to implicate the appellant as the real assailant was not known to

the prosecution. It was further harangued that informant and PW2 were not

present at the spot nor the incident had occurred in their witnessing and

they are all planted witnesses. Next, it was urged that the two fact

witnesses examined during the trial are not only interested, related,

partisan but their testimonies suffers from inherent improbabilities and un-

naturalities and hence cannot be attached with any credence. Next, it is

submitted that the deceased had a criminal background and therefore had

many enemies ready to eliminate him and since he was murdered at a

lonely place, therefore, his death was taken to be a chance to implicate the

appellant. Sri Sahai further harangued that though the country-made pistol

and the empty cartridge found at the spot were sent for tallying to the

ballistic expert but the same were never got tallied and therefore recovered

country made pistol could not be connected with the empty cartridge found

at the spot and hence there is no link evidence against the appellant. Next,

it was urged that P.W.7, the sole recovery witness was neither a witness of

locality nor he had agricultural field near the spot of the recovery and since

he was a distant relative of the deceased therefore he was planted as a

recovery witness to nail-in the appellant in a fabricated case. Since the

place of the incident was not known, therefore, columns relating to time in

the papers were left blank and there are too many fill in the gaps to lend

any credence to the prosecution story. In the soil no human blood was

found and therefore place of the murder is also not fixed. No trail of blood

was found by the I.O. and therefore, also the place of the incident and the

prosecution version of lifting of the injured up to the car is not supported by

16

any link evidence. It is further submitted that the deceased was never

brought to Bohra Nursing Home nor any document was tendered by the

prosecution to substantiate such an allegation. Learned counsel further

submitted that the entire investigation is not only inept but was dishonest

with an intention to frame-in the appellant in a false and fabricated case.

On these submissions Sri Sahai urged that the appeal of the appellant

deserved to be allowed and he be acquitted of all the charges as the

prosecution has miserably failed to anoint his guilt successfully and

convincingly.

Submitting conversely learned AGA contended that the occurrence is

a day light incident with an eye witness account and consistent medical

evidence. As narrated incident must have taken some time as it is a case of

two shots. Castigation of prosecution case of it being a case of hit and run

at a lonely place is totally out of context bereft of any credible evidence to

authenticate such a case. Appellant has miserably failed to bring on record

any material indicating that eye witnesses had any motive, howsoever

scanty and remote it may be, to depose against the appellant by cooking up

a feigned story. It is a case of absence of any animus for the witnesses to

nail-in the appellant as the solitary culprit. It is unthinkable that

disinterested, related witnesses will spare the real assailant and will falsely

implicate innocent person in the murder of their close relative. Medical

report is consistent with the ocular testimony which further lend credence to

the veracity of the prosecution version. Although defence has searchingly

cross-examined the witnesses in depth yet it has failed to surface any

damaging evidence which may even slightly cast a doubt on the

genuineness of the prosecution story. The pitfalls and latches on the part of

the I.O. are trivial and insignificant and do not affect or demolish the core

of the prosecution case. The mistakes committed by the I.O. are no reasons

to discard the entire prosecution version submitted learned AGA. It was

further urged that the FIR was lodged with promptness and whatever time

was consumed was explained convincingly and satisfactorily by the fact

witnesses and therefore, there is no reason to doubt tendered testimonies

17

of witnesses. Appellant's appeal is meritless and his conviction is infallible

and well merited and hence does not call for any interference by this Court.

Concludingly, it was argued that the impugned judgment be concurred and

appellant's conviction and sentence be affirmed.

We have considered the rival submissions and have gone through the

entire trial court record and have summated in depth the evidences

ourselves.

From our examination of record and entire evidences, it is emerges

that some of the facts are admitted and/or are not in dispute and hence, so

far as those facts are concerned prosecution allegations in those respects

stands fully established. To take stock of those facts and register them we

find that informant, deceased and appellants all are/were the resident of

same locality Chawdharan Patti and their houses were by the side of a lane

which was blocked at the house of the deceased. The enclosure of the

appellant is adjoining enclosure of the deceased and thus they both were

next door neighbours. Thus acquaintances and closeness between them is a

natural outcome. Hence is cannot be a case of mistaken identity. In such

fact scenario lending advance money by the deceased to the appellant is

not something very unusual. What is of significance is that the defence has

not challenged the motive for committing the crime which, according to the

prosecution case, was the money advanced by the deceased to the

appellant which was not being repaid by the appellant and the deceased

was repeatedly demanding the same. In that respect, there is evidence of

the informant P.W.1 on the record. Defence in its wisdom and for the

reasons best known to it has not challenged this part of the prosecution

story specifically from the two fact witnesses. Thus, there is little doubt that

there was a motive for the appellant to commit the crime as he was

repeatedly coerced by the deceased to return his advanced money.

Resultantly motive alleged by the prosecution cannot be adjudged as

farfetched or feigned and we find it to be well established by the

prosecution. It is recapitulated here that demand by the deceased to repay

the advanced money was the immediate cause of the incident in which the

18

deceased had lost his life.

Next it is also not disputed that the death of the deceased was the

outcome of sustained fire arm injuries. What has been challenged by the

defence is the identity of the shooter and not the cause of death. Post

mortem examination report vis-a-vis with ocular testimonies of the two

independent fact witnesses, having no reason to falsely implicate the

appellant, leaves no room for doubt that the deceased was shot dead. Thus

prosecution allegation that deceased was fired upon and was shot dead also

stands established.

It is also not disputed that the first informant P.W.1 and P.W.2 were

the relatives of the deceased. For them to implicate an innocent person in

an incident witnessed by them seems to be a very gibberish submission

especially when it could not be fathomed out that they had any reason to

falsely implicate the appellant.

Taking note of above admitted facts when castigation by the

appellant through amicus curie are analysed it cannot but be said that those

castigations are unfounded. Firstly we deal with the submission that neither

the informant nor PW2 were present at the scene of the incident and no

independent witness has come forward to support their case and hence

entire prosecution version is cooked up. In this respect critical examination

of evidences on record indicates that none of two fact witnesses could be

dislodged for the presence of the other. Both of them have confirmed each -

others presence at the spot. Defence could not muster the courage to

question them specifically on the said aspect. From neither of them it was

suggested as such. Attour, by introducing PW 1 & 2 as eye witnesses

prosecution could not have gained any mileage. It would have been easy

for the prosecution to introduce other more close relatives and it could have

changed incident spot making it more assessable for the witness to arrive at

and to be present but it never endeavoured for that. Hence it is

incomprehensible that to implicate the appellant prosecution will rely only

upon PW1 & 2 and not on any other relatives or persons. Informant PW1

was truthful enough to testify that he had no especial reason to visit the

19

deceased and it was in usual course. He had not attempted to fabricate a

reason for that. If prosecution would have to create a false story it would

have been much more graphic and fuller in details. Since there is complete

absence of any understandable reasons to plant both the fact witnesses as

eye witnesses of the incident we find learned amicus curie’s snipping of

prosecution version for the presence of PW 1 and PW 2 wholly untenable

and hence repel the said criticism by opining that presence of both of them

at the time of the incident is well established. Presence of informant PW1

was doubted by the learned amicus curiae for the reasons that his blood

stained cloths were not seized by the I.O. and the conduct of the informant

in wearing those blood stained cloths for two days is wholly unconvincing.

He has also castigated the presence of the informant for the reason that he

could not mention any reason for his visiting the deceased at the early

hours of the morning without any purpose. Another supplementary reason

was that the FIR was lodged very belatedly and time taken to go to the

police station was too long and that scribed was also not examined by the

prosecution. All these factors were pressed into consideration to dislodge

the presence of the informant PW1 at the spot. However, we find the

converse to be true because of our aforementioned reasons as well as for

the fact that defence has not been able to shatter the testimonies of P.W.

1& P.W. 2 at all. From P.W. 1, they have failed to elicit that he was not

present at the spot and had not witnessed the incident and from P.W.2 no

question was put at all regarding the presence of the informant P.W.1 at the

spot during the incident. Graphic description about the incident was made

by the informant P.W.1, which has been corroborated not only by P.W.2 but

also by the Investigating Officer on the basis of recoveries made by him

from the incident scene. No doubt the informant had not disclosed the

purpose of his visiting the deceased at his house in the early hours of the

morning but that does not create any dent in the prosecution version

inasmuch as, both were co-villagers very well known to each other and

were distant relatives. In villages, normally people do visit each other

before going to their agricultural fields. There is nothing un-natural in the

20

conduct of the informant. Deceased had also accompanied the informant

when the incident had occurred and this shows their companionship and

proves the fact that the informant had in fact visited the deceased. Another

submission of Sri Sahai that the blood stained clothes of the informant were

not seized and his conduct of wearing it for two days is not convincing and

his clothes were not blood soaked as he was not present are such hollow

submissions that they do not require any lengthy deliberations. It was for

the Investigating Officer to have seized those clothes. The informant had

worn them for two days is also not something which was very unusual

because there had been a demise in the family and in the villages, people

take thirteen days to be the days to mourn a death. In those days even

shaving of the beard etc. are not being done. Further, the time consumed

by the informant for reaching at the police station has been explained

satisfactorily. In an incident, which had occurred all of a sudden out of the

blue, frailties of human mind cannot be lost sight of. No person can act like

a computerised Windows 8 in a given fact situation, where suddenly

murder had taken place nor can he be expected to produce the outcome at

the pressing of a key. Howsoever, alacritic a person may be, he naturally

takes some time to settle down and compose himself and regain his normal

senses, more so when such an incident happens unexpectedly all of a

sudden. Terrified mind in such a fact situation further takes time to calm

down. It will be puerile to expect from any person to act robotically in such

fact situation. It is a matter of common heuristic experience that when an

incident happens suddenly even the most prudent mind fails to act diligently

without wasting time, which also flies by. What is alarming to note is that

defence has not been able to cull out any motive for the two fact witnesses

to depose falsely and nail-in the appellant after fabricating the feigned

story. No suggestion whatsoever worth in name has been given to both the

witnesses that they were inimical to the appellant and had a motive,

howsoever trivial it may be, too falsely implicate him. We would like to

mention that on the premium trivialities the entire prosecution version

cannot be thrown over- board. Thus the argument of learned amicus

21

curiae, though not out of context, but is too fragile to be accepted and lend

any credence to the defence plea. We therefore repel castigation regarding

presence of the informant P.W.1 at the spot.

Coming to the testimony of P.W.2, we find him also to be a truthful

witness who seems to have narrated the true incident witnessed by him. His

evidence is clear and cogent that he was proceeding to the forge of Bashir

black smith to get his spade fixed when the incident had occurred. Spade is

an agricultural implement and normally in villages, in the morning the shops

of black smiths are opened so that prior to the going to the fields

agricultural implants are fixed and repaired. This is normal behaviour and in

villages it is a common phenomenon. Further, P.W.2 has been well

corroborated by the informant P.W.1 in all respects. They have not vacillated

or budged from the main substratum of the prosecution story and,

therefore, there is no difficulty in concluding that P.W.2 was also present at

the spot and had witnessed the incident. Learned amicus curiae had

castigated the evidence of P.W.2 for the reason that he had not seen the

first shot fired at the deceased and the narration of the incident made by

him does not fit in well with the fact situation found at the spot especially in

respect of directions of causing wounds. He has further castigated the

testimony of P.W.2 by arguing that he and the deceased both were

agriculturalist and were partners and hence he is an interested and a

partisan witness besides being related. After going through the testimony of

P.W.2, we have not been able to assume any reason for such castigations.

Since the incident occurred on the way passers- by like P.W.2 is a natural

witness whose presence at the spot is very probable and, therefore, his

evidence cannot be discarded on insignificant trivialities. No doubt, he is the

nephew of the deceased but that is no reason to discard his evidences as till

date too well settled trite law is that merely because of relationships

between the victims and the witnesses otherwise convincing testimonies of

the witnesses cannot be discarded. We would not like to burden this

judgment by referring to the plethora of Apex Court decisions on this

aspect, but at the same time could not resist the temptation of referring to

22

some of those decisions countenancing our view which are as follows:-

In Ram Anup Singh versus State Of Bihar: (2002)6 SCC 686 it has

been held by the apex court as under:-

“18. We find that as many as six eyewitnesses have been examined

by the prosecution. Nothing has been elicited in their cross-examination

which may lead us to doubt their reliability or truthfulness. The only

criticism levelled against them is that three of them are relatives of the

informant and all the six belong to Village Jamunia Jasauli. It was faintly

suggested that their evidence is too consistent to be true. It is no doubt

true that PWs 8, 9 and 10 are related. PWs 9 and 10 are brothers and PW 8

is the son of PW 10, the informant. However, having regard to the facts of

this case their evidence cannot be discarded merely on the ground that

they are related to each other. There is abundant evidence on record to

establish that on 27-3-1997 a panchayati was to be held concerning the

disputes between Madan Singh (deceased) and Ram Anup Singh, accused.

The dispute related to the lands gifted by Madan Singh to his daughter and

son-in-law. PW 10, the informant being the father of Shambhu Sharan

Dubey, son-in-law of Madan Singh, was naturally interested in attending the

panchayati. In fact Madan Singh had requested him to attend the

panchayati. His brother and son had accompanied him to Village Dilman

Chapra. Having regard to these facts, their evidence cannot be thrown out

merely on the ground that they are related and interested witnesses. The

eyewitness account given by these witnesses is natural as well as

consistent. Their presence at the scene of occurrence cannot be doubted in

view of the overwhelming evidence on record. They are not only named in

the FIR but their presence is confirmed by the other eyewitnesses.”

In Ranjit Singh and Ors. v. State of M. P.:AIR 2011 SC 255

it has been held by the apex court as under:-

“32. Undoubtedly, all the eye-witnesses including the injured witnesses are

closely related to the deceased. Thus, in such a fact-situation, the law

requires the court to examine their evidence with care and caution. Such

close relatives and injured witnesses would definitely not shield the real

culprits of the crime, and name somebody else because of enmity. The

defence did not ask the injured witnesses as to how they received the

injuries mentioned in the medical reports.”

In Dinesh Kumar v. State of Rajasthan:AIR 2008 SC 3259

it has been held by the apex court as under:-

“6. It is to be noted that PWs-7 and 13 were the injured witnesses and

PW-10 was another eye-witness and was the informant. Law is fairly well

settled that even if acquittal is recorded in respect of co-accused on the

ground that there were exaggerations and embellishments, yet conviction

23

can be recorded if the evidence is found cogent, credible and truthful in

respect of another accused. The mere fact that the witnesses were related

to the deceased cannot be a ground to discard their evidence. In law

testimony of an injured witness is given importance. When the eye-

witnesses are stated to be interested and inimically deposed towards the

accused, it has to be noted that it would not be proper to conclude that

they would shield the real culprit and rope in innocent persons. The truth or

otherwise of the evidence has to be weighed pragmatically. The Court

would be required to analyse the evidence of related witnesses and those

witnesses who are inimically de posed towards the accused. But if after

careful analysis and scrutiny of their evidence, the version given by the

witness appears to be clear, cogent and credible, there is no reason to

discard the same. Conviction can be made on the basis of such evidence. In

the instant case, the Trial Court and the High Court have analysed the

testimony of PWs-7, 10 and 13 in great detail. It is revealed that the

appellant had inflicted the first sword blow to the deceased in his abdomen

and he fell on the ground. The High Court, however, found that the role

ascribed to the others was not fully satisfied. The sword used in the offence

was recovered at the instance of the appellant and the same was found to

be stained with same group of human blood, as that of the deceased, as

per the FSL report, Exh.P-28. PW-7 stated that when he tried to save his

father, the accused also inflicted blows on him and he sustained injury by

sharp edged weapon i.e. the sword. According to him, the accused inflicted

the blow by the sword on his neck and he fell down. Though, the appellant

stated that he had suffered injuries at the hands of the deceased and his

sons, as rightly noted by the Trial Court and the High Court, they were

superficial injuries and as the doctor opined, could be self-inflicted.”

In Akhtar and Others versus State of Uttaranchal: (2009)

13 SCC 722) it has been observed by the apex court as under:-

“19. It was contended by the appellant that the testimony of Jamil

Ahmad (PW 2) and Mobin (PW 3) cannot be relied on as these two

eyewitnesses were allegedly highly interested witnesses and were related to

the deceased. In our considered view, merely because the witnesses in

question were related to the deceased cannot be a ground for non-

acceptance of their evidence, which otherwise was found to be trustworthy.

It is true that these two witnesses are related to the deceased but at the

same time one cannot lose sight of the fact that these two witnesses were

also injured witnesses. It is extremely difficult to believe that the injured

witnesses who themselves got injured and whose close relatives lost their

lives would shield the real culprits and name somebody else only due to

some enmity. The defence had ample opportunity to cross-examine these

two injured eyewitnesses but records show that no suggestions were put to

them as to how they received the injuries, mentioned in the medical

reports. In fact, various documents filed by the defence with respect to

24

litigation among themselves itself give the unmistakable impression that

there was indeed motive to attack the deceased and the injured witnesses.”

In Arjun Mahto versus State of Bihar: AIR 2008 SC 3270 it

has been held by the apex court as under:-

“5. Merely because the eye-witnesses are family members their evid-

ence cannot per se be discarded. When there is allegation of interested-

ness, the same has to be established. Mere statement that being relatives

of the deceased they are likely to falsely implicate the accused cannot be a

ground to discard the evidence which is otherwise co gent and credible. We

shall also deal with the contention regarding interestedness of the wit-

nesses for furthering prosecution version. Relationship is not a factor to af-

fect credibility of a witness. It is more often than not that a relation would

not conceal actual culprit and make allegations against an innocent person.

Foundation has to be laid if plea of false implication is made. In such cases,

the court has to adopt a careful approach and analyse evidence to find out

whether it is cogent and credible.

6. In Dalip Singh and Ors. v. The State of Punjab (AIR 1953 SC 364) it has

been laid down as under :-

"A witness is normally to be considered independent unless he or she

springs from sources which are likely to be tainted and that usually means

unless the witness has cause, such as enmity against the accused, to wish

to implicate him falsely. Ordinarily a close relation would be the last to

screen the real culprit and falsely implicate an innocent person. It is true,

when feelings run high and there is personal cause for enimity, that there is

a tendency to drag in innocent person against whom a witness has a

grudge along with the guilty, but foundation must be laid for such a criti-

cism and the mere fact of relationship far from being a foundation is often a

sure guarantee of truth. However, we are not attempting any sweeping

generalization. Each case must be judged on its own facts. Our observa-

tions are only made to combat what is so often put forward in cases before

us as a general rule of prudence. There is no such general rule. Each case

must be limited to and be governed by its own facts."

7. The above decision has since been followed in Guli Chand and Ors. v.

State of Rajasthan (1974 (3) SCC 698) in which Vadivelu Thevar v. State of

Madras (AIR 1957 SC 614) was also relied upon.

8. We may also observe that the ground that the witness being a close rel-

ative and consequently being a partisan witness, should not be relied upon,

has no substance. This theory was repelled by this Court as early as in

Dalip Singh's case (supra) in which surprise was expressed over the impres-

sion which prevailed in the minds of the Members of the Bar that relatives

were not independent witnesses. Speaking through Vivian Bose, J. it was

observed :

"We are unable to agree with the learned Judges of the High Court that the

testimony of the two eyewitnesses requires corroboration. If the foundation

for such an observation is based on the fact that the witnesses are women

25

and that the fate of seven men hangs on their testimony, we know of no

such rule. If it is grounded on the reason that they are closely related to the

deceased we are unable to concur. This is a fallacy common to many crim-

inal cases and one which another Bench of this Court endeavoured to dispel

in, 'Rameshwar v. State of Rajasthan' (AIR 1952 SC 54 at p.59). We find,

however, that it unfortunately still persists, if not in the judgments of the

Courts, at any rate in the arguments of counsel."

9. Again in Masalti and Ors. v. State of U.P. (AIR 1965 SC 202) this Court

observed : (p. 209-210 para 14) :

"But it would, we think, be unreasonable to contend that evidence given by

witnesses should be discarded only on the ground that it is evidence of par-

tisan or interested witnesses.......The mechanical rejection of such evidence

on the sole ground that it is partisan would invariably lead to failure of

justice. No hard and fast rule can be laid down as to how much evidence

should be appreciated. Judicial approach has to be cautious in dealing with

such evidence; but the plea that such evidence should be rejected because

it is partisan cannot be accepted as correct."

Next contention by learned amicus curie that the incident had

occurred at a lonely place in the wee hours of the morning without

witnessing of it by anybody, we do not find any force in this submission

also. The reasons harangued for the aforesaid submission by Sri Sahai,

learned amicus curiae, is that it was stated by the informant P.W.1 that

when he had gone to the house of the deceased, he was having his meal

but no meal was found in his stomach and on the contrary, in the autopsy

examination, the doctor had found deceased stomach empty, chime and

gasses in the small intestine and faecal matter and gasses in the large

intestine. On the strength of the aforesaid findings noted by the doctor, it

was argued that deceased was murdered sometimes in the wee hours of

the morning and not as alleged by the prosecution. In that respect, learned

amicus curiae also relied upon the statement of the doctor according to

whom, if the deceased had taken meal soon after his death, the same

should have been found in his stomach. However, the defence is to be

blamed for such a fallacious criticism. In it’s endeavour to bring

contradictions in the ocular version vis-à-vis with the medical evidence

defence went on to ask questions from the informant P.W.1 who utilised the

offered opportunity to explain that by meal he meant only two glasses of

26

milk which was only consumed by the deceased. Thus, the favourable

evidence gained by the defence in the previous sentence was lost in the

second question. Doctor has categorically stated that if the deceased had

taken milk then it would have been absorbed in the stomach. No other

factor was brought to our notice to doubt the time of the incident and

hence it has to be concluded that the criticism levelled by learned amicus

curiae regarding different time of the incident cannot be accepted and is

hereby repelled.

So far as place of the incident is concerned, the prosecution version

right from the very beginning is centred at the place alleged by it i.e. Teli

Wala locality. None of the two fact witnesses vacillated in their narrations

about the incident having occurred at the said place. They have

corroborated each other convincingly. I.O., during investigation, had also

collected the blood from the same spot where the deceased had fallen

down sustaining both the firearm injuries. PW1 un-ambiguously stated that

when he and the deceased had reached near the house of Mazid on the

turning in front of the house of Noora in Teli Wala locality they had met the

appellant who was armed with a country made pistol. It was further

deposed that first fire at the deceased was made when he was in front of

the house of Mir Hasan. In the site plan also place B + is the place where

the deceased was shot at first and this place is right in front of the house of

Mir Hasan. Place A+ is the place where deceased sustained the second

gunshot fire and he had fallen down at the same place. It was from place

A+ that I.O. had collected the blood. Defence has not suggested any

specific place where the deceased was murdered and hence the contention

that the incident had not occurred at the place alleged by the prosecution

lies in a realm pure hypothesis without any concrete material. Otherwise

also, the prosecution would not have gained any point by changing place of

the incident.

So far as the testimony of the doctor is concerned, we find it to

corroborates the prosecution case in it's entirety and lend credence to it.

Defence has not been able to fathom out even an iota of evidence on the

27

strength of which it can be said that medical version is inconsistent with the

ocular testimony. Deceased was shot at from point blank range and the

injury sustained by him as is recorded in his autopsy report affirms it. He

died an unnatural death because of sustained gunshot injuries. F.I.R. was

lodged without any delay and whatever delay had occasioned was explained

well by the informant and both these factors goes a long way is establishing

veracity of the prosecution story.

All the formal witnesses supported prosecution case convincingly and

it is not decipherable from their evidences that prosecution story is not true.

No doubt some insignificant omissions have cropped up in the depositions

of two fact witnesses and the investigating officer also left some aspects to

be probed into but on an overall analysis they do not, cumulatively or

singularly, have enough potential to dislodge the core issue, genuineness

prosecution story and credibility of both the fact witnesses. In essence we

find it and them reliable and truthful having a ring of affirmative opinion.

On an overall analysis we find that prosecution has successfully

brought home both the charges against the appellant and the impugned

judgement of conviction and sentence is infallible and has to be affirmed

and this appeal by the appellant lacks merit.

Appellant’s present appeal is dismissed. His conviction and sentence

recorded in the impugned judgment is hereby affirmed. Presently appellant

is confined in Central Jail, Naini, Allahabad. He is directed to be transferred

to the district jail Muzzafarnagar forthwith from where he was brought

before us. He shall remain in jail to serve out remaining part of his

sentence.

Let this order be intimated to the learned trial court.

Dt.17.5.2013

Rk/Arvind/Tamang/-