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Court No. -48

[RESERVED]

[AFR]

Case :- CRIMINAL APPEAL No. - 5584 of 2004

Appellant :- Narendra Singh @ Nanga

Respondent :- State Of U.P.

Counsel for Appellant :- Jagdish Singh Sengar,A.K.S.

Solanki,Ashutosh Dwivedi,Rahul Raghav,Yogesh Srivastava

Counsel for Respondent :- Govt. Advocate

CONNECTED WITH

Case :- CRIMINAL APPEAL No. - 5412 of 2004

Appellant :- Sant Kumar @ Nannu And Another

Respondent :- State Of U.P.

Counsel for Appellant :- P. Dikshit

Counsel for Respondent :- Govt. Advocate

Hon'ble Vinod Prasad, J.

Hon'ble Anjani Kumar Mishra,J.

(Delivered by Hon. Anjani Kumar Mishra, J.)

1.These two connected criminal appeals are directed against the

impugned judgment and order dated 15.10.2004 passed by the

Additional Sessions Judge (F.T.C. Second), Hathras in S.T. No.

62 of 2003.

2.Narendra @ Nannu, appellant in Crl. Appeal No. 5584 of 2004,

has been convicted under section 307 IPC and sentenced to 10

years' imprisonment, along with a fine of Rs. 5,000/-, and to

serve a further 3 months' imprisonment in default of payment of

fine. He has also been convicted under section 302 IPC and

sentenced to life imprisonment, along with a fine of Rs.

10,000/- and to undergo 6 months' further imprisonment in case

of default in payment of fine.

3.Sant Kumar @ Nannu and Achchi @ Gajendra, appellants in

Crl. Appeal No. 5412 of 2004, have been convicted under

sections 307/34 IPC and sentenced to 7 years' imprisonment,

with a fine of Rs. 4,000/- and to serve a further 2 months'

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imprisonment in case of default in payment of fine.

4.The FIR of the present incident was lodged on 7.5.2001, at

about 7.45 A.M., at police outpost Bisawar, Police Station

Sadabad, District Hathras under section 307 / 504 IPC regarding

an incident said to have taken place at 7.15 A.M. in village Garh

Tisanga, situated at a distance of about 3 km from the police

outpost. Later, on the death of Komal Prasad, the case was

converted into one under section 302 IPC.

5.The allegations as per the first information report (FIR) are that

Jai Prakash, accompanied by Dhanna and Bunty, while

returning from the house of Prem Singh Kachi, was stopped by

the appellant Narendra in front of his house. Jai Prakash was

questioned as to why he was not closing down his shop, which

was causing pecuniary loss to Narendra. On Jai Prakash

refusing to shut down his shop, appellants Sant Kumar and

Achchi are alleged to have caught hold of Jai Prakash by his

waist ('jeth bhar li') and appellant Narendra brought his licensed

gun from his house and shot at Jai Prakash, who, thereafter,

freed himself and ran back in the direction he had come from.

On receiving this information, Komal Prasad, father of Jai

Prakash, the first informant, Chandra Shekhar @ Guddu and

one Mathura Prasad rushed towards the site of the shooting.

When they reached near the house of one Vishnu Dutt Rai,

Narendra (the appellant), who was standing on his roof-top,

fired at Komal Prasad, who was hit and he fell down. On hue

and cry being raised, the three accused ran away firing shots in

the air. The first informant thereafter took his father and lodged

the FIR at the aforementioned police outpost. It was also stated

that Jai Prakash had been taken by other family members to

Agra for treatment.

6.The prosecution examined as many as 11 witnesses, to prove

the charges against the appellants. Of these, Jai Prakash @

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Oopo, PW-2, is the injured, while PW-3 Brijesh Kumar @

Bunty, is the maternal cousin of Jaipraksh. These two are said to

be the eye-witnesses to the incident. PW-1, Chandra Shekhar @

Guddu, the first informant, is an eye-witness of the second

shooting only.

7.Apart from the above three witnesses of fact, the remaining

witnesses namely PW-4 to PW-11 are formal witnesses. PW-4,

Kehri Singh is the constable moharrir who had recorded and

registered the FIR. PW-5, Dr. V. S. Agnihotri, had conducted

postmortem examination on the cadaver of the deceased, Komal

Prasad. PW-8, Harishchandra Singh is the first investigating

officer, who had prepared the site-plan, recovered the gun said

to have been used in the incident and who collected the blood-

stained earth from the site of the incident. PW-9, Surjan Singh,

is the second investigating officer, who took over the

investigation on 20.5.2001 and who had recorded the statements

of Dhanna, Shiv Charan Badhai and Brijesh Kumar @ Bunty on

21.5.2001 under section 161 Cr.P.C. and the statements of

Sanjay Kumar and Mathura Prasad on 26.5.2001. On his

transfer, the investigation was taken over by PW-6, Vidya

Raman Sharma on 5.6.2001. PW-7, Dr. Arvind Kumar Singh is

the Emergency Medical Officer, S.N. Medical College, Agra

who had examined Jai Prakash on 7.5.2001. PW-10, Harpal

Singh, a constable posted at Bisawar Outpost on the day of the

incident, is alleged to have accompanied Komal Prasad to the

police station Sadabad, then C.H.C., Sadabad, on to G.G.

Nursing Home, Agra and then back to his residence in village

Garh Tisanga. PW-11, Bankey Lal is the scribe of the FIR.

8.The statements of the three accused were recorded under section

313 Cr.P.C. Appellant Narendra, in his statement under section

313 Cr.P.C. had stated that the deceased and his family members

used to deal in stolen property and on his complaining to the

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police in this regard, they were taken into custody but later on

were released by the police without registering any case, in

connivance with the brothers of Komal Prasad, who were

serving and retired Sub-Inspectors of Police. It was on account

of this fact that the family members of the deceased nursed a

grudge against the appellant and this is the primary reason for

his false implication in the case.

9.Appellant Sant Kumar, in his statement under section 313

Cr.P.C. stated that on 7.5.2001, the investigating officer, along

with two constables, came to the house of appellant Narendra

and asked his mother for him and took away his licensed DBBL

gun and the bandolier. He also took the appellant Sant Kumar

to the police station at 11 A.M., where he was detained till

8.5.2001 then chalaned and sent to the Court. He further stated

that the investigating officer had fired four shots from his gun.

10.Gajendra Prasad @ Achchi has stated that he was working as a

clerk in SPL Industries Ltd., Faridabad, and was on duty on the

date of the incident. He claimed to have been falsely implicated

as he is the brother of accused Narendra.

11.Four witnesses have been examined in support of the defence

version. DW-1, Saheb Singh, appeared under orders of the

Court along with General Diary of police station Sadabad dated

8.5.2001. DW-2, Manish Kumar, the Deputy Jailer, District Jail,

Aligarh, also entered in the witness-box on the orders of the

Court, along with the relevant jail records to show that the first

informant and his brothers were men of criminal antecedents

and had been lodged in District Jail, Aligarh in connection with

different criminal offenses. DW- 3, D.C. Kushwaha, is a Senior

Assistant in the S.N. Medical College, Agra, while DW-4,

Neeraj Agarwal, was the Medical Officer posted at Community

Health Centre, Sadabad, District Hathras, on the date of the

incident.

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12.We have heard Sri Rajul Bhargava and Sri Yogesh Srivastava,

learned counsel for the appellants in the two connected appeals

and Sri R.S. Yadav, learned AGA, for the State.

13.Briefly stated prosecution charge is that Jai Prakash

accompanied by two others while returning from the house of

Prem Singh Kachi, was stopped by Narendra in front of his

house, and questioned as to why he was not shutting down his

shop which was effecting his (Narendras') business and on his

refusal to do so, Sant Kumar and Acchi caught hold of him and

Narendra brought out his gun from his house and shot at Jai

Prakash who after being hit, freed himself and fled from the

spot in the direction from which he had come. On getting

information of the shooting, his father, Komal Prasad, first

informant Guddu and one Mathura Prasad rushed towards the

spot of shooting and as they approached, Narendra who was

standing on his roof top, fired at Komal Prasad who was hit and

fell down, where after the accused ran away firing in the air. Jai

Prakash was taken to Agra for treatment while the first

informant carried his critically injured father to the Police Out

Post Bisawar for lodging the first information report.

14.Besides recapitulating prosecution case described in the FIR it

has further come in the evidence that after lodging the report the

injured Komal Prasad was taken to Police Station Sadabad and

from there to the Community Health Center, Sadabad, which is

said to very close by, where the doctor on duty declared him

dead but the family members took him to Agra for a second

confirmatory opinion. It is also said, that constable Harpal

Singh also accompanied Komal Prasad right upto Agra. After

receiving confirmation of death at G.G. Nursing Home Agra,

the dead body was brought back in village Garh Tisanga where

the panchnama was prepared and the body sent for post mortem,

which was performed the next day.

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15.Thus, from the above narration of facts, the entire incident can

be split into two sequence of events. The first part involved the

verbal altercation between Jai Prakash @ Ooppo and his being

shot at by Narendra and the second part involved only appellant

Narendra, firing upon Komal Prasad, father of Jai Prakash, as he

was approaching the site of the first shooting on getting

information of the same.

16.The first informant, PW1, Chandra Shekhar @ Guddu is not an

eyewitness of the first shooting. He is alleged to be the

eyewitness of the second shooting which resulted in the death of

Komal Prasad. However, it is the first part of the incident

which, as per the prosecution case, is the genesis of the second

part. Of the witnesses examined, Jai Prakash, PW-2 and Bunti

@ Brijesh Kumar, PW-3, are the eye witnesses of both the parts.

Jai Prakash is the injured witness and as such his testimony is

most crucial for the purposes of the case.

17.Counsel for the appellants have submitted that the appellants

have been falsely implicated on account of enmity; the incident

took place elsewhere and at some other point of time over some

dispute with criminal elements with whom the deceased and his

family members had dealings in stolen properties; the manner of

assault is false and concocted; the entire case and evidences

against the accused are false and have been fabricated with the

active participation and connivance with three brothers of the

deceased, two of whom are retired Sub-Inspectors and the third

is still in service as an Inspector in the Police Department. The

prosecution case is full of improvements, embellishments with

material contradictions. The conduct of the family members is

contrary to normal human behavior and this unusual conduct

has not been explained. Though the two shootings are said to

have taken place five minutes apart, yet one person was taken to

Agra by one jeep and the other who sustained extensive firearm

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injuries and died as a result thereof, was taken to the police

station and then to the Community Health Center at Sadabad

about 10 kms away by another jeep. It is further submitted that

the investigation itself is tainted and wholly unreliable.

18.In the context of the aforesaid submissions, we have been taken

through the entire evidence on record and the important aspects

highlighted, shall be dealt with at the appropriate places.

19.Turning specifically to the evidences of all the fact witnesses, so

far as P.W.-1 is concerned, he has disclosed the pedigree of the

family, which revealed that Komal Prasad were four brothers

including him. Rest of the three brothers were Ramesh Chandra,

Mahendra Ji and Hari Om Prakash. Komal Prasad had two

wives. From one wife, Gopal Prasad, Guddu @ Chandra

Shekhar P.W. 1, Jai Prakash @ Opo injured-P.W.2 were issues.

The houses of both the wives were at the distance of 100-150

meters from each other and the deceased Komal Prasad used to

reside with both the wives. From another wife, Govind is the

sole issue and hence he is the step brother of P.W.-1 and P.W.-2.

It further becomes evident that brother of deceased Om Prakash,

Ramesh Chandra and Mahendra Ji were in police services.

While the former was still in service as police inspector, rest of

the two had retired as Sub Inspector from the police force.

Ramesh Chandra after retirement resided in the incident village

whereas Mahendra Ji after retirement had settled down in Agra

City. Scribe of the FIR, Bankey Lal is the cousin brother of the

informant. Reporting police chauki Bisawar is four kilometers

away from the informant's village and Sadabad Dispensary is

fourteen kilometers away from the reporting police out post

Bisawar. Agra is forty kilometers from Sadabad. It is further

revealed that after the incident, first of all the FIR was got

lodged at reporting police out post Bisawar and from there, the

deceased was taken to Sadabad Dispensary in a jeep driven by

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police constable Arjun Singh which took round about 10

minutes. Blood had trikkled down at the spot as well as in the

jeep from the injuries sustained by the deceased. Informant's

clothes were also stained with blood. It becomes further evident

that informant had not sent any of his brothers along with the

injured to Agra. It is further evident that both the injured and the

deceased were carried to Agra and to the police station in

separate jeeps and the injured deceased Komal Prasad was also

accompanied by Smt. Omwati, mother of informant and wife of

deceased and his brother SI Ramesh Chandra since retired.

Cadaver of the deceased was brought back from Agra at sunset

when police was already present at the house of the deceased

and the informant. Inquest was conducted in one and half hours

and thereafter the body was brought to the police out post and

from there was dispatched for autopsy report to Mathura. It is

categorical statement of the informant that when injured was

shot at he was not present at the spot and the incident occurred

10 or 15 minutes after injured had left the house for calling iron

smith Prem Singh Kachhi. The interval between both the

shooting incidents was 5 minutes and no other person other than

injured or the deceased had sustained any injury in both the

episodes. While injured was shot at when he was in between the

two houses of Naresh, Komal Prasad was shot at when he was

prior to the shop of Vishnu Dutt at the brick pavement. P.W.-1

has further evidenced that Durgesh Prasad, cousin brother of the

injured had accompanied him to Agra. After deceased was

declared dead and his cadaver was transported to Agra then his

wife Omwati, mother of informant, had also accompanied the

cadaver. It was in the jeep of Kunji Lal that the injured was

transported to Agra. It has also been stated by the informant that

the injured was admitted in S.R. Nurshing Home, Agra and,

therefore, he has gone to see him there. P.W.-1 has rejected the

defence suggestion that FIR Ext. Ka-1 was got lodged after due

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consultation and deliberation between the police and his uncle

retired SI Ramesh Chandra and he had not seen the incident and

the deceased and the injured were shot at different time and

different places by unknown persons and by falsely implicating

the accused, the case has been cooked up. Many criminal

history of his family members including the deceased was

asked from this witness but he had denied the same. P.W.1 has

further evidenced that when his father was shot at then the

barrel of the gun was diagonal to his father and the shot was

fired from a height of 10-12 feet from the roof of the appellant

Narendra's house. For injured, this witness has said that

sustaining gun fire injury he had fallen down in front of the

house of Kaptan Singh. Regarding the deceased, P.W.-1 has also

evidenced that after examining his pulse, doctor has said at

CHC, Sadabad that he has died. He was also examined by the

doctor with the help of a stethoscope. This witness expressed

his complete ignorance regarding the hospital in which his

deceased father was shown. Regarding inquest on the cadaver

of the deceased, P.W.-1 was unable to spell out the time of

conducting of the inquest.

20.First informant, Chandra Shekhar @ Guddu, PW-1, in his

examination-in-chief has also stated that his brother Jai Prakash,

who was sent to Agra for treatment by another jeep, was

admitted in S.R. Nursing Home, Namner crossing, Namner

Road, Agra, and that this information was given to him by his

cousin, Durgesh Prasad over the phone. However, as per the bed

head ticket produced, the injured was brought to the hospital by

one Sushil son of Netrapal whose identity is not clear and who

has not been produced by the prosecution. P.W.-1 has stated that

he visited his brother at this nursing home next day after the

incident and talked to him. He has also stated that Narendra had

only recently opened his shop. He has further stated that, in fact,

he took his father to Bisawar for lodging the FIR and after

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formalities were over, they proceeded to P.S. Sadabad and, from

there, to the CHC, Sadabad, where the doctor pronounced

Komal Prasad dead. He thereafter returned to his village, while

his uncle and mother proceeded to Agra to get confirmation

about the diagnosis made at the CHC, Sadabad. It emerges from

the sequence of the events, as made out by the prosecution, that

Komal Prasad was taken to the CHC, Sadabad, at about 9 A.M.

As per the statement of this witness, he was present at the CHC,

Sadabad, at the said time while, on the other hand, it emerges

from the record that the investigating officer has prepared the

site-plan at the pointing out of this witness PW1 at about 8:45

A.M. in village Tisanga. It is admitted that the CHC, Sadabad,

is situate at a distance of 12 km from the village Tisanga. If, as

alleged by this witness, he had taken his father to police station

Sadabad and thereafter to the CHC, Sadabad, after lodging the

FIR, at 7.45 A.M., it is impossible for him to BE present in his

village at 8:45 A.M. when the investigating officer is alleged to

have prepared the site-plan at his pointing out. For the same

reason, it is not possible that his statement under section 161

Cr.P.C.could have been recorded by the I.O. at 8.30 AM.

21.The above anomaly further highlights another rather unnatural

conduct of P.W.-1 who on the one hand states that he loved his

father very much and was his favourite and after his father

being shot, carried him in his lap in the jeep to the Bisawar

chowki and thereafter to Police Station Sadabad and from there

to the Community Health Center where he was pronounced

dead but he did not accompany his father while he was taken to

Agra to obtain confirmation of his death and in fact very

quickly he returned to his village by bus. This unnatural conduct

not only casts a doubt upon the statement of this witness, but it

also renders the investigation and the timings as recorded in the

case diary etc highly doubtful.

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22. PW-2, Jai Prakash @ Oopo, is the central figure in the entire

prosecution case, and is also the injured. P.W.-2, has reiterated

the same facts as P.W.1. When cross examined, he expressed

ignorance regarding treatment of his father and has stated that

he himself was medically treated in S.N. Hospital, Agra where

he was admitted for 20/22 days. He further stated that two

persons who were accompanying him namely, Dhanna and

Bunti had met him in the way and from his house, he had

started all alone to call Prem Singh Kachi, whose house was 2-3

furlongs away from his house. He further evidenced that he was

interrogated by the I.O. on 30.6.2001. It has been evidenced by

P.W.2 that the appellant Narendra were four brothers and his

brother Lomus is a constable in P.A.C. P.W.-2 further evidenced

that appellant Narendra had threatened 15 days prior to the

incident and no assault took place concerning shop dispute prior

to this incident. He further evidenced that only once there was

heated exchange of words for closing of the shop between him

and Narendra and no complaint was made prior to the present

incident regarding the said threatening. He denied that appellant

Narendra has not done anything as alleged against him

concerning the shop and for falsely implicating the appellants

the case was fabricated and no such incident as alleged by him

ever occurred. P.W. 2. Further evidenced that Bunti too is

related with him, being his maternal cousin brother and he

resided in Alvar, Rajasthan, Dhanna is his classmate and

neighbour and was known to him since last 12 or 14 years. This

witness further stated that heated exchange took place with

appellant Narendra for 2 or 3 minutes and then Narendra had

entered into his house uttering to wait and he will return with

gun. P.W.2 further disclosed that after being injured by first shot

he ran away whereupon the second shot was fired at him from

behind from a distance of six yards. He further evidenced that in

between both the shots only one minute had lapsed. P.W.-2

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further disclosed that the place at which he was shot at was 100-

150 yards from his house and he had not fainted after sustaining

both the gun shot injuries. From the first gun shot injury, blood

had oozed out and had stained his clothes. He further said that

he could not tell as to whether the blood had trickled down on

the earth or not? He further disclosed that he had regained

consciousness in Agra after three or four days which statement

contradicts the claim of PW 1 of having conversed with him on

the following day. He further evidenced that after squatting on

the ground, he has no re-collection and had fainted. Many

omissions has been asked from this witness to which he had

denied. On being questioned by the Court, he informed that

after regaining consciousness after four days, he had inquired

about his father and he was informed that he had died and,

therefore, he came to know that after sustaining gun shot injury

his father had died instantaneously. He was unable to disclose in

which ward and on which bed he was admitted in the hospital

nor he could correctly disclose the name of the doctor, who had

treated him, although he stated that he was admitted in the

hospital for 22-23 days during which period, no police

personnel visited him. He further stated that he had not left the

hospital for all this period, which statement is totally incorrect

as he had eloped from the hospital. He was also unable to

disclose at what point of time last rites of his father (tervi) was

performed. He denied the defence suggestion that he and his

father were shot at different time at different place and the

entire prosecution story has been cooked up. He further denied

the defense case that he and his father and other family

members indulged in business of stolen ornaments and because

of that reason, they were fired upon and because the appellant

had made a complaint against them in the police and therefore

the appellants have been falsely implicated. Regarding his

hospitalisation also the contradiction was put to this witness that

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he was treated in S.R. Nurshing Home, Nammer Road and not

in S.N. Medical College to which he has denied. He was

suggested that he could not have seen the injury being inflicted

on the deceased as the place from where he was hiding himself,

the said spot where his father was shot at is not visible. This

witness has clearly stated that he was not taken to C.H.C.,

Sadabad because it has not such good medical facility as that of

Agra. He also denied the defence suggestion that he had not

gone to the house of Prem Singh Kachi nor the incident had

occurred on the brick pavement.

23. According to the testimony of PW-2, Jai Prakash, he was

accosted by Narendra for not shutting down his business, which

was resulting in financial losses to Narendra; and, on his

refusal, the brothers of Narendra had caught hold of him while

Narendra brought out his gun and fired at him. It emerges from

his cross-examination that his statement under section 161

Cr.P.C. was recorded by the investigating officer on 30.6.2001.

In this statement he has not mentioned that at the time of

shooting he was accompanied by Dhanna and Bunty, whose

names find mention in the FIR. It also emerges that the shop of

this injured witness was 10-15 years old while the appellant

Narendra, had opened his shop only about 6 months back. He

has also stated that prior to the incident Narendra had only once

asked him to shut down his shop. On this occasion only a verbal

altercation had taken place. Thereafter the dispute had been

settled in a panchayat. It also emerges from the perusal of his

cross-examination that this witness had not stated anything in

his statement under section 161 Cr.P.C. about the second shot

alleged to have been fired at his father, which is therefore an

improvement. As regards the injuries he himself had sustained,

he has stated that the first shot fired at him was a chest shot,

which went through and through but at a later stage he has

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stated that the second shot was fired at him while he was

running away hitting him on the back, and the same exited from

his chest. This material contradiction has also been noticed by

the court below. Lastly, he has stated that Narendra fled from

the spot firing from his gun and that he was informed by his

mother that his father had died at the spot. Initially, in his cross-

examination he had stated that he was treated entirely at the

S.N. Medical College and that he was never treated at S.R.

Nursing Home, Namneer Road, Agra, but after a pause he states

that he was treated at both the places. In this connection it is

relevant to refer to his cross-examination, at page 25 of his

statement, wherein this witness has stated that he never left his

bed in S.N. Medical College, during the 22 days he was under

treatment there. But, later on, on pages 29-30 of his statement,

he has stated that he was often taken to S.R. Nursing Home for

specialised treatment. The interesting fact which emerges from

the perusal of the record is that there exists no documentary

proof of any treatment having been given to this witness at S.N.

Medical College, Agra. The only evidence in this regard has

been furnished by PW-7, Dr. Arvind Kumar Singh, who is the

Emergency Medical Officer, SN Medical College, Agra. He is

stated to have examined Jai Prakash on 7.5.2001 at about 10:30

A.M. The injuries of Jai Prakash are reproduced below :

1. Lacerated wound size 3cm x 2.5cm x not probed due to

surgical reasons over left lateral side & left chest wall, margin

irregular & inverted, profuse bleeding present. KUO. Ad. X-ray

chest- P.A. view, left chest, left/ oblique & left lateral view

wound is entry.

2. Lacerated wound size 2.5cm x 2cm x not probed due to

surgical region over left middle 1/3 back latterly margin

irregular because of profuse bleeding margins inverted or

everted can not be --- out that is why surgeon opinion require.

KUO.

pt.- conscious, in shock, GC- poor. Pt.- admitted, police inform,

KUO

Opinion- Injury No. 1 caused by firearm, Injury No. 2 caused by

KUO, both injuries KUO.

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Duration fresh.

24.According to P.W.-7, Jai Prakash was brought by Sushil, son of

Netrapal. As noted above on examination, it was revealed that

there was a wound on the left side of the chest, about 3 cm x 2.5

cm in size and the same was bleeding profusely. This injury was

not probed to ascertain its depth for surgical reasons and was

kept under observation and an X-ray was advised. He has

categorically stated that the injured was conscious, though in

shock. He further opined that injury no. 1 was a firearm injury.

Doctor, PW 7, has also categorically stated that he does not

have any Nursing Home at Namneer Road, nor he has any

private clinic nor he referred the injured to any private hospital

for treatment as all the facilities and experts are available in his

hospital [S.N. Medical College, Agra]. He has further opined

that the injuries on the person of Jai Prakash were bleeding

profusely and there was little likelihood of his surviving, if he

had covered a distance 45 km from his village Garh Tisanga to

Agra. In this connection, it would be relevant to refer to the

testimony of D.W.-3, D.C. Kushwaha, who has appeared before

the Court along with the original bed head ticket of the injured

Jai Prakash. In this document, it is recorded that the injured was

admitted at 10:30 A.M. on 7.5.2001 and was medically

examined by Dr. A.K. Singh. The bed head ticket no. is 10532.

There is an entry on the bed head ticket made at 11 A.M. on

7.5.2001, that the patient was found to have absconded. PW-7

has further stated that it is not clear from this bed head ticket as

to whether any X-ray was done before the injured eloped.

25.From the narration of the facts above, it is clear that the injuries

alleged to have been inflicted upon Jai Prakash are not proved

in the absence of any documentary evidence as regards the

treatment given to him. There is apparent contradiction as to the

place/places of treatment. There is no further record of any

treatment given to the injured witness at any place even though

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he states that he was admitted in S.N. Hospital for 22 days

continuously. Even though an x-ray was advised, there is

nothing on record to show that any x-ray was actually done.

26.In so far as the alleged eye-witness-account of this injured, Jai

Prakash, as regards the shooting of Komal Prasad is concerned,

the witness has stated that after the first shot hit Komal Prasad,

he sat down and the second shot hit him thereafter. This version

does not appear to be correct, because, according to the

postmortem report of the deceased, Komal Prasad, there is a

contusion 2 cm x 2 cm in size on the front of the chin. This

injury, to our mind, could have been caused by the deceased

falling face-wards after being shot at. There is greater likelihood

of this injury being caused if a man standing erect, falls face

forward than one who is sitting down.

27.According to the prosecution case, the motive for commission

of the crime was refusal on the part of Jai Prakash to shut down

his business. To our mind, this motive does not sound logical in

view of the fact that the shop of Jai Prakash was over a decade

old while the accused Narendra had only recently started a

similar business. On the contrary, this fact could be a potent

reason for false implication of the appellant so as to eliminate a

business rival.

28.Another glaring contradiction, which emerges from the

testimony of this witness, Jai Prakash, is that he has

categorically stated that his statement under section 161 Cr.P.C.

was recorded on 30.6.2001 at his house. On the other hand, the

investigating officer, PW-6, Vidya Raman Sharma, at page 7 of

his cross-examination (page 65 of the paper-book) states that Jai

Prakash had come to the police station on 30.6.2001 on being

summoned by him, when his statement was recorded.

29.On page 19 (page 32 of the paperbook) of his statement, witness

Jai Prakash has stated that Narendra had loaded both barrels at

17

the same time and he did not reload after firing the first shot.

This must necessarily mean that the second shot was fired from

the second barrel of the DBBL gun. This statement is not borne

out from the ballistic report, which states that the empties sent

for ballistic examination along with the gun were fired only

from the right barrel of the gun. This defies logic because it is

the categorical case of the prosecution that at the time of

recovery of the weapon, empty cartridges were found in both

the barrels of the gun. This could be possible only if the shooter

fired a shot from one barrel and then reloaded after taking out

the spent cartridge and placing it is the second barrel. This

however is not the case of the prosecution. The recovery memo

prepared by the investigating officer states that he recovered the

gun containing two spent cartridges from the house of the

appellant and further two spent cartridges were recovered from

the cupboard nearby. This prosecution version of the recovery

does not sound plausible and is not consistent with the

categorical and consistent prosecution version that the appellant

fled from the spot while firing in the air i.e. he fled with the gun

used in the incident. How, in the given scenario, was the gun

recovered from the house of the appellant, only an hour and a

half after the incident? In this connection it would be relevant to

refer to the statement of the first informant on page 13 of his

statement (page 26 of the paper book) which indicates that the

I.O. lifted the empty cartridges from the kharanja, at the site of

the shooting, and the gun was brought from the roof top from

where the appellant is alleged to have fired upon Komal Prasad.

On an appraisal of the entire evidence on this issue, the

statement of appellant Sant Kumar under section 313 Cr.P.C

that the I.O. collected the gun from the mother of the Narendra

and thereafter fired four shots with it becomes very significant

and in view of the contradictions and probabilities it cannot be

said with any degree of certainty that the prosecution case that

18

the accused fired two shots each upon the injured and the

deceased is established beyond reasonable doubt or that the

weapon was in fact used, as alleged. There is another fact which

belies the prosecution case that Komal Prasad was fired at by

the appellant Narendra from his roof top, about 12 feet above

the ground level. For the said purpose the injuries mentioned in

the post-mortem report are reproduced below:

1. Multiple firearm wounds of entry on front of chest and

abdomen both shoulders, Rt. upper limb, neck and face.

Uncountable ----- Rt. side than left side. No blackening &

tattooing. Size 0.3cm x 0.3cm x muscle to cavity deep.

Contusion 2cm x 2cm on front of chin.

The size of the wounds of entry as recorded above show that

they were round in shape which was possible only in the case of

a parallel shot. If, as alleged by the prosecution, the shot was

fired from a height, the wounds of entry would have been oval

in shape. Thus the prosecution case and the ocular testimony of

the shot or shots fired at Komal Prasad, having been fired from

a height is not supported by the medical evidence.

30.This witness has also stated that after seeing his father being

shot, he got up and ran to some distance and thereafter fell

down, fainted and regained consciousness after about four days.

This statement is again contrary to what is recorded in the bed-

head ticket and the statement of PW-7 according to whom he

was conscious and talking. Even PW-1 has stated that he visited

this witness at S.R. Nursing Home, Namneer Road, Agra on the

day after the incident and had talked to him. This variance in the

statements of the witness and the documentary evidence

indicates that Jai Prakash, PW-1 is not telling the truth and is in

fact hiding something. This coupled with the total lack of any

documentary evidence regarding the treatment provided to him

and the varying statements regarding the place of treatment,

raises serious doubts about the credibility of this injured witness

and he cannot therefore be relied upon to confirm the conviction

19

of the appellants.

31.The other glaring inconsistency in the statement of this witness,

Jai Prakash, emerges from his statement at page 28 where he

has stated that Bunty @ Brijesh Kumar, was not present on the

spot when the first shot was fired by appellant Narendra and

that he came to the spot later on. This statement is contrary to

the allegations in the first information report and is also

contrary to the statement of Bunty himself. Not only does this

statement create a serious doubt as regards the first version of

the prosecution case itself, it also casts serious doubt upon the

oral testimony of PW-3, Bunty @ Brijesh Kumar himself, who,

according to the prosecution, is made out to be an eye-witness

of both parts of the incident.

32. Turning to another witness, P.W.-3, Brijesh Kumar, he had to

support the prosecution version in his examination-in-chief.

This witness however was interrogated by the I.O. on 21.5.2001

after an ordinate delay of two weeks' for which prosecution has

not offered any explanation. He had expressed his ignorance

regarding the fact where injured was taken away after the

incident and stated that the deceased had died instantaneously

sustaining gun shot injury in front of the shop of Vishnu Dutt at

brick pavement. He has also stated that the police never came

to question him, and yet it is alleged by the prosecution that his

statement under section 161 Cr.P.C. was recorded by the

investigating officer on 21.05.2012. This witness is a chance

witness as he is a resident of Alwar, Rajasthan, and has not been

able to explain or assign any reason for his visit to the residence

of his phupha (Komal Prasad, the deceased) in Tasinga. His

alleged statement under section 161 Cr.P.C. does not talk of any

second shot having been fired either at the deceased Komal

Prasad or the injured Jai Prakash. Although he is alleged to be

an eye-witness of both the shootings and he states that he was

20

on the spot till the time his phupha, Komal Prasad, was taken

away by jeep and then he came back to the house of the

deceased to inform his bua, whereafter he alleges that he had

fainted. This testimony of Bunty is in direct contradiction with

the statement of PW-11, Bankey Lal, who has stated that when

he reached the spot where Komal Prasad had fallen down, both

his wives were present. Under the circumstances, the statement

of Bunty that he went back to his bua's house to inform her,

cannot be believed. His statement is further under a cloud

because it is the categorical case of the prosecution that after

Komal Prasad was shot, both his wives arrived at the spot and

one of them, Omwati, accompanied him for lodging of the FIR,

and, thereafter, to CHC, Sadabad, and then to Agra and back.

Thus, in view of the statement of Jai Prakash himself, that

Bunty was not present when the first shot was fired, coupled

with the other discrepancies pointed out above, it cannot be

stated with any degree of certainty that Bunty was, in fact,

present at the scene of the occurrence. Moreover, his statement

cannot be believed also because he states that he remained in

village Garh Tisanga in the house of the deceased till the

“terahi” and did not go anywhere while the I.O. has recorded in

the case diary that on 8.5.2001 he went to village Garh Tisanga

to record the statement of Bunty but was informed that Bunty

was not available as he had gone to Agra and was with Jai

Prakash who was undergoing treatment at Agra. This witness in

his statement under section 161 has not stated anything about

any second shot having being fired at the deceased nor has he

stated that Komal Prasad fell down after the first shot. In fact,

his statement before the Court is that Komal Prasad was still

standing when the second shot hit him. In his 161 Cr.P.C.

statement, he has not informed the I.O. that he had informed the

deceased and other family members regarding sustaining of gun

shot injury by the injured P.W.2. This fact, makes this witness a

21

wholly unreliable and got up witness. He seems to have stated a

parrot like statement. Significant contradiction was asked from

him regarding sustaining of injury by the deceased to which this

witness had denied and was unable to inform how that

significant aspect is missing from his interrogatory statement

recorded by the I.O. after a fortnight.

33.Coming to the argument that the investigation itself is tainted, it

has been pointed out that even though the investigation has been

carried out by three investigating officers, none of them made

any attempt to contact Jai Prakash or record his statement at

Agra even though he was the most crucial witness in the case.

There exists no entry in the G.D. of 21.05.2001 whereby the S.I.

Harishchandra Singh was directed by the Inspector Sadabad to

obtain the clothes worn by the injured at the time of the

incident. There is no documentary evidence to show that the

deceased Komal Prasad was in fact taken to the C.H.C.,

Sadabad and the 'chitthi majroobi' issued from the Police Station

Sadabad with which Komal Prasad was sent to the C.H.C,

Sadabad has not been tendered in evidence. The doctor on duty

at the C.H.C. on the date of the incident, Neeraj Agrawal,

Medical Officer, DW-4 has stated on the basis of the Registers

brought by him, that three is no record of any injured having

been examined at the Community Health Center on 7.05.2001

as per the M.L.B.C. Register. This C.H.C. is the only

government Hospital in Sadabad. He has elaborated that in case

Komal Prasad had been brought with the letter, it would contain

some endorsement either that he was brought dead or that in

view of his serious condition the patient was being referred for

treatment elsewhere. On the strength of the above, it has been

submitted that Komal Prasad, in fact, died at the spot and the

entire story of his being taken to the Bisawar outpost and to

Sadabad Police Station and C.H.C and then to Agra has been

22

fabricated to show him to be alive till long after his death,

possibly with the motive of subsequently fabricating a dying

declaration. The submission that Komal Prasad died at the spot

is not easy to ignore. The post mortem report shows that the

heart was lacerated as were the lungs. Two pellets each were

recovered from each lung while two pellets were recovered

from the heart. It appears highly unlikely that a person with a

punctured heart and punctured lungs would have remained alive

for any length of time after sustaining such injuries. If the

deceased died at the spot, as is our inference, only then it could

explain the conduct of the family members of the deceased of

the injured being sent to Agra as there was no logic in carting a

dead body to Agra. However, the fact that a lot of fabrication

and concoction has been resorted to, to show the deceased to be

alive till at least 11 A.M., lends credence to the defense plea that

the injured and deceased sustained injuries elsewhere at some

other point of time and appellants were falsely implicated on

account of enmity and / or business rivalry.

34.The incident is said to have taken place in a heavily populated

area with houses on both sides and yet no independent witness

has been produced to support the prosecution case. All the three

witnesses of fact are close relatives of the deceased and we are

not convinced by their testimony for the reasons already

recorded above. Even the independent witness mentioned in the

first information report, namely Dhanna who is stated to be a

friend and class-mate of Jai Prakash has not been produced by

the prosecution. The wife of the deceased who is said to have

accompanied him upto Agra has also not been produced. It is

not disputed that two of the brothers of the deceased are retired

Sub-Inspectors of Police and the third was still in service as an

Inspector on the date of the incident. One of the retired brothers

was residing in the village and is said to have been present at

23

the time of lodging of the FIR and accompanied the deceased

upto G.G.Nursing Home Agra and then back to his house in

Tisanga. In these circumstances the contradictions, omissions

and most importantly the improvements in the version as

contained in the first information report fail to establish the

prosecution case beyond reasonable doubt and on the contrary

lead to the inevitable conclusion of false implication of the

appellants.

35.The time of death of Komal Prasad in the inquest report is 11

AM. This appears to be without any basis. According to P.W.-3,

Komal Prasad died instantaneously. P.W.-2, the injured witness

has stated that he was informed by his mother that Komal

Prasad had died at the spot. There is no logical reason why the

wife of the deceased would state that her husband died

instantaneously, if this was not true. A wife would be the last

person to want her husband dead. All three brothers of the

deceased were police personnel and the police was at all stages

helping the family of the deceased. A police constable

accompanied the cadaver of Komal Prasad upto Agra and then

back to his residence in village Tisanga. In fact he was with the

first informant and the other family members accompanying

Komal Prasad right from the time the first information report

was lodged at Bisawar outpost. The jeep in which the entire

distance from the village to Agra and back has been travelled

was driven by a police constable. Even the injured is stated to

have been taken to Agra for treatment in a jeep belonging to a

police constable.

36.It, therefore, emerges from the facts stated above that persons

from the police department have been in attendance at all times

and have been more than willing to render assistance at every

juncture. A retired Sub-Inspector, the brother of the deceased

accompanied him from the village up to Agra where another

24

brother, also a retired Sub-Inspector, was settled. These

circumstances, coupled with the statement of two fact witnesses

(P.W.-2 and P.W.-3) that the deceased died at the spot leads to

an inevitable conclusion that the time of death has been

manipulated so as to buy time and to use the time so bought to

fabricate a case against the appellants after consultations and

deliberations. Another fact leading to the same conclusion is

that the case was initially registered under section 307. It should

have been under section 302, because as stated by the fact

witnesses, Komal Prasad died instantaneously. This also casts a

serious doubt upon the case set up by the prosecution at its very

inception. Moreover, Bisawar being a reporting outpost, it

possessed all powers of a regular Police Station. The Majroobi

chitthi could and should have been issued immediately after the

case was registered from this Police out post itself, but the case

of the prosecution is that the first informant and other persons

carried Komal Prasad to Sadabad Police Station where the

majroobi chitthi is said to have been issued but even more

interestingly, this majroobi chitthi has not been tendered in

evidence. This story of the majroobi chitthi being issued from

the Sadabad Police Station also appears to be a ploy to buy

time. The fact that the said majroobi chitthi was not issued at

the Bisawar Out Post would also indicate that it was not issued

because there was no need to issue the same as Komal Prasad

was already dead.

37.As regards the appellants Sant Lal and Acchi, appellants in

Criminal Appeal no:5412 of 2004, the only allegation against

them is that they caught hold of the injured, Jai Prakash @

Oppo while Narendra went inside his house to fetch the gun

with which he is alleged to have fired the shots. There is

contradiction as regards the manner in which Jai Prakash was

restrained by these two appellants. The F.I.R. records that he

was caught hold by the waist ('jeth bhar li') while the injured

25

himself has deposed that the appellants Sant Kumar and Acchi

caught his arms and pulled in opposite directions to restrain

him. These two different descriptions also cannot be reconciled.

38.Learned AGA has, while supporting the judgment of conviction,

urged that it is a daylight incident. The FIR has been lodged

without any delay and there is an injured witness who has

supported the prosecution version to the hilt. The discrepancies,

if any, in the testimonies of the witnesses could be attributed to

the fact that their statements were recorded three years after the

incident.

39.Upon due consideration of the submissions of the parties and

after examining the evidence on record, we are not convinced

by the testimonies of the fact witnesses for the reasons already

given above. The prosecution has not been able to establish the

guilt of the accused beyond doubt.

40.The impugned judgment of the trial Court has failed to notice

and take into account the probabilities, material contradictions

and the embellishments that have been highlighted above and

therefore, in our opinion, the impugned order of conviction and

sentence cannot be sustained and is liable to be reversed.

41.Under the the circumstances and for the reasons given above,

both the above appeals are allowed. The impugned judgment of

conviction is set aside and the appellants are acquitted of all the

charges leveled against them. Narendra @ Nanga, the sole

appellant in Criminal Appeal no:5584 of 2001 is in jail. He is

directed to be released forthwith unless required in some other

case. Sant Kumar and Acchi, appellant nos:1 and 2 in Criminal

Appeal no:5412 of 2001 are on bail. Their bail bonds are

canceled and their sureties are discharged. They need not

surrender.

42.Let a copy of this judgement be certified to the trial court for its

26

intimation.

Order Date :- 13th September, 2013.

sks-grade iv