A.F.R.

Reserved on : 12.7.2022

Delivered on : 30.09.2022

Case :- CRIMINAL APPEAL No. - 7788 of 2010

Appellant :- Rambhajan And Others

Respondent :- State of U.P.

Counsel for Appellant :- P.N.Misra,Apul Mishra,Mridul

Tripathi,P.N.Misra

Counsel for Respondent :- Govt. Advocate

Hon'ble Suneet Kumar,J.

Hon'ble Vikram D. Chauhan,J.

Suneet Kumar,J.

1.Heard Ms. Mridul Tripathi, learned Amicus Curiae appearing

for the appellant, Shri Om Prakash Mishra, learned Additional

Government Advocate and perused the lower court record with

the assistance of the learned counsel for the parties.

2.The instant appeal has been filed against the judgment and

order dated 18 November 2010, passed by the Additional Sessions

Judge/F.T.C. No. 7, Shahjahanpur, in Session Trial No. 526 of

2004, along with Session Trial No. 527 of 2004, arising out of

Crime No. 283 of 2003 connected with Crime No. 287 of 2003,

P.S. Kanth, District Shahjahanpur, whereby, convicting the

appellant no.2 Ram Kishore under Section 302 IPC and further

convicting the appellant no. 1 Ram Bhajan and appellant no. 3

Udai Veer under Section 302/34 IPC and sentencing them to

imprisonment for life and fine of Rs. 5,000/- each, further

convicting the appellant no. 1 Ram Bhajan under Section 25/27

of Arms Act and sentencing him to 3 years rigorous imprisonment

and fine of Rs. 1,000/-. In case of the default of payment, the

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appellant will have to undergo further 1 month simple

imprisonment.

3.The prosecution case setup in the FIR is that on 5

November 2003, Mool Shankar, son of the complainant (P.W.-3)

had gone to Kanntha town to get the quilt stuffed. The

complainant had gone to the market, where he was informed by

Jagdish and Pratap, residents of his village, that his son Mool

Shankar (deceased) was caught by accused Rambhajan and

Udayveer at about 2 PM on Kurriya Road and their brother

Ramkishore shot his son in the stomach with a country-made

pistol. The injured Mool Shankar was taken to the Shahjahanpur

Hospital on a tempo by some persons. It is further stated that

complainant reached the Government Hospital and found his son

admitted. It is further alleged that injured Mool Shankar told the

complainant that accused Ramkishore shot with a country-made

pistol in his stomach while accused Udayveer and Rambhajan

caught him. It was further alleged that 5-6 months earlier a case

under Section 307 IPC was lodged by accused Rambhajan against

the son of the complainant and Tej Ram. It is due to this enmity

the accused have committed the crime. Mool Shankar (deceased)

succumbed to the injury in the hospital during treatment on 8

November 2003.

4.A report came to be lodged and registered on the written

complaint of the informant on 9 November 2003. The

Investigating Officer (IO) recorded the statement of the witnesses,

prepared the site plan on the pointing out of the complainant.

Postmortem on the dead-body of the deceased was conducted on

the same day at 3:30 PM. On the arrest of accused Rambhajan,

the country-made pistol of 315 bore, empty cartridge and one

live cartridge was recovered on the disclosure made by the

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accused on 15 November 2003. Recovery memo was prepared on

the spot. On the basis of recovery memo, Case Crime No. 287 of

2003 was registered against accused Rambhajan under Section

25/27 of Arms Act.

5.The Investigating Officer prepared the site plan after

investigating the spot. The blood stained clothes of the deceased,

the bullet recovered from the body of the deceased and the

country-made pistol, the empty cartridge and one live cartridge

recovered on pointing of accused Rambhajan was sent to the

Forensic Science Laboratory (for short ‘FSL’) for chemical

examination. The charge-sheet under Section 302 IPC came to be

filed against all the accused persons, whereas, charge-sheet under

Section 25/27 Arms Act was filed against accused Rambhajan.

6.Upon committal of both the cases Sessions court framed

charges against the accused Ramkishore, Rambhajan and others

under Section 302, read with, Section 34 IPC. The Sessions court

framed charges against Rambhajan under Section 25/27 Arms Act.

The accused denied the charges and claimed trial.

7.In support of the charge prosecution examined the following

witnesses:

1.P.W.-1 Jagdish, eyewitness.

2P.W.-2 Pratap Singh, eyewitness.

3.P.W.-3 Kaptan, complainant, father of the deceased.

4.P.W.-4 Inspector-in-Charge, Sri Babu Ram Sagar (I.O.),

in the case of Section 302 IPC and complainant in the

case of Section25/27 Arms. Act.

5.P.W.-5 Dr. Prem Prakash, conducted post-mortem

6.P.W.-6 Sub-Inspector, Sri Hari Singh (I.O.),of case

under Section 25/27 of the Arms Act.

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7.P.W.-7 Constable Jitendra Kumar Singh, writer of the

chick FIR and G.D. of the registered case

8.P.W.-8 Sub-Inspector, Sri Tej Bahadur prepared

panchayatnama

9.P.W.-9 Constable Clerk Sri Mahesh Chandra, writer of

the chick and G.D. of the registered case Section

25/27 of Arms Act.

8.The details of the documents which was proved on behalf of

the prosecution are as follows:

1.Exhibit Ka-1, written report, which has been proved by

P.W.-3 complainant Kaptan.

2.Exhibit Ka-2, site plan, regarding case of Section302 of

I.P.C.

3.Exhibit Ka-3, recovery memo of country-made pistol

and cartridge.

4.Exhibit Ka-4, charge-sheet regarding case ofSection 302

of I.P.C.

5.Exhibit Ka-5, letter sent to forensic sciencelaboratory,

Exhibit Ka-2 to Exhibit Ka-5 hasbeen proved by Dr.

Prem Prakash.

6.Exhibit Ka-6, post-mortem report, which has been

proved by Dr. Prem Prakash.

7.Exhibit Ka-7, site plan regarding the case of

Section 25/27 of Arms Act.

8.Exhibit Ka-8, sanction for prosecuting, regarding

Section 25/27 of Arms Act.

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9.Exhibit Ka-9, charge-sheet regarding Section25/27 of

Arms Act. Exhibit Ka-7 to Exhibit Ka-9 have been

proved by P.W.-6 Sub-Inspector Hari Singh.

10.Exhibit Ka-10, chick F.I.R. regarding Section 302of

I.P.C.

11.Exhibit Ka-11, G.D. of the registered case regarding

Section 302 of I.P.C. Exhibit Ka-10 and Exhibit Ka-11

has been proved by P.W.-7 Jitendra Kumar.

12.Exhibit Ka-12, panchayatnama which has been proved

by P.W.-8 S.I. Tej Bahadur Singh.

13.Exhibit Ka-13, challan body.

14. Exhibit Ka-14, sealed samples.

15. Exhibit Ka-15, photo of the body.

16.Exhibit Ka-16, report of C.M.O. Exhibit Ka-12 to

Exhibit Ka-16 has been proved by P.W.-8 Tej Bahadur

Singh.

17.Exhibit Ka-17, chick F.I.R. regarding section25/27 of

Arms Act.

18.Exhibit Ka-18, G.D. of the registered caseregarding

Section 25/27 of Arms Act. Exhibit Ka-17 and Exhibit

Ka-18 have been proved by P.W.-9 Constable Mahesh

Chandra.

9.The accused persons on being confronted with the

prosecution evidence, denied of having committed the crime.

They further stated that they have been falsely implicated due to

enmity. In defence the accused persons did not produce any

evidence.

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10.The trial court upon scrutiny of the oral and documentary

evidence reached a finding that the prosecution has been able to

prove the charges beyond reasonable doubt against the accused

persons, accordingly, recorded conviction and sentence, hence,

the present appeal.

11.Learned Amicus Curiae appearing for the appellants submits

that the witnesses of fact P.W.-1 and P.W.-2 claim to be eye-

witnesses of the incident, but have not supported the prosecution

case and stated that they had not seen the accused either

catching hold the deceased or being shot by the accused

Ramkishore. The witnesses were declared hostile. The conviction

of the appellants rests on the testimony of P.W.-3

complainant/father of the deceased who admittedly is not an eye-

witness and his testimony rests of the information given by the

deceased during treatment that the accused-appellants had

committed the crime.

12.Learned counsel submits that the testimony of P.W.-3 is not

corroborated by any independent evidence, therefore, is merely a

hearsay evidence. He further submits that recovery of the assault

weapon from accused Rambhajan is planted and the weapon has

not been connected with commission of the offence. It is urged

that the finding reached by the trial court is per se perverse and

the conviction is not based on credible evidence, but merely on

the uncorroborated confessional statement of the accused.

13.As per prosecution case, complainant (P.W.-3) is not the

eye-witness of the incident. At the market he received

information from Jagdish (P.W.-1) and Pratap Singh (P.W.-2) that

his son has been shot by accused Ramkishore while the other

accused held him. It is further stated by P.W.-3 that during

treatment deceased informed him that the accused persons had

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committed the crime. The eye-witness i.e. P.W.-1 and P.W.-2

have not supported the prosecution case and were declared

hostile. P.W.-3 in examination-in-chief reiterates the prosecution

version and further states that injured was taken to the hospital

by some police personnel. He further states that he first directly

went to the thana where his son was not found and was

informed that his son is admitted in the hospital. From thana

complainant went to the hospital where his son informed him

that accused had committed the offence.

14.He further stated that a civil case is pending against

accused persons, therefore, are inimical, and 4-5 months earlier a

report was lodged against his son by accused Udayveer. He

further stated that his son succumbed to the injury in the

hospital after three days (08.11.2003). Complainant got the report

transcribed by Chhavi Nath and was submitted to the thana on

the following day i.e. 9 November 2003, the report came to be

registered at 12:45 PM. In cross-examination, he admitted that he

first visited the thana and then the spot of the incident where

Ramavtar a shop owner told him about the incident of firing on

his son. He reached the hospital at about 4-5 PM and found his

son admitted. He further stated that his son had informed him

about the incident being committed by the accused. He further

admitted that he alone was attending his son in the hospital.

P.W.-3 further admitted that he is one of the witnesses to the

Panchayatnama and further stated that he had informed the

police officer preparing the Panchayatnama about the accused

persons who had committed the crime.

15.He further stated that he had got arrested the accused

Rambhajan from a sugarcane field.

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16.P.W.-4 Babu Ram Sagar the Investigating Officer stated that

the FIR came to be registered on the written complaint of the

complainant on 9 November 2003, the statement of the

complainant was taken on the same day and that of Jagdish

(P.W.-1). The site of the incident was inspected in the presence

of the complainant and the witnesses; the site map (exhibit-Ka-2)

was prepared. Accused Rambhajan came to be arrested on 14

November 2003 (7:30 AM) on the information of Mukhbir. The

assault weapon, country-made pistol of 315 bore, an empty

cartridge and live cartridge was recovered on the disclosure and

at the pointing out of the accused. The accused confessed of

committing the crime with the recovered weapon.

17.P.W.-5 Dr. Prem Prakash Srivastava conducted autopsy on

the body of the deceased on 9 November 2003 at 3:30 PM. The

following injuries were found on the body of the deceased:

“1. Gunshot wound of entry was 0.9 cm x 0.8 cm

(illegible) abdominal cavity deep. The said wound was present

on the left side of the chest and was 10 cm below the left

nipple. It was from inside to outside. There was blackening and

tattooing around the wound. The left lung was lacerated. The

diaphragm was lacerated. The horizontal collar was lacerated.

The stomach was also lacerated. The right side of the liver was

lacerated. The direction of the wound was from left to right and

downwards.

Rigor mortis was present on the upper part and lower part

of the body i.e. on the whole body. In the internal examination

of the deceased, he found that the brain, spleen and both

kidneys were dry. There was no blood. The left pleura was

lacerated. Semi-digested food was present in the small intestine.

The urine bag and heart were empty. Feces were present at

many place in the large intestine. The right side of the liver was

lacerated and dry. A metallic bullet was found on the right side

of the cavity. About 2 liters of blood mixed with feces were

present in the abdominal cavity. In his opinion, the death of the

deceased Mool Shankar was due to the bleeding caused by the

bullet and the shock caused by it. The injuries of the deceased

was possible to come on the date of 5.11.2003 at 2:00 pm.

Injuries were possible to come from firearms such as country-

made pistols.

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The deceased died on 8.11.2003 at around 6:10 pm in the

district hospital.”

18.The trial court on the evidence of P.W.-3-complainant and

the confessional statement recorded by the accused-Ram Bhajan

and recovery of the assault weapon on his pointing out recorded

conviction. The relevant portion of the trial court order is

extracted:

“The son of the complainant i.e., the deceased Mool

Shankar had told the complainant about the incident. The

complainant says that there was no one there at that time.

There is no reason not to believe his statement. When the

complainant’s son narrated the incident to the complainant, no

one else was present there.

The complainant also states that deceased Mool Shankar

did not have any other attendant other than the complainant.

The complainant has got his report written from Chhavinath

Singh. It is true that Chhavinath Singh is not an eyewitness to

the incident. The non-appearance of Chhavinath Singh in

evidence does not adversely affect the prosecution story.

Before lodging the report in police station, Kanth, Sub-

Inspector P.W.-8 Tej Bahadur Singh of police station Kotwali,

District Shahjahanpur has filled the panchayatnama of deceased

Mool Shankar in District Hosapital, Shahjahanpur, and the dead

body was sealed there. At that time complainant himself was

present there. If the complainant has stated the names of the

accused to the witness filling the Panchayatnama i.e. P.W.-8 Tej

Bahadur Singh and he has not written the names of the accused

on the Panchayatnama, then it does not adversely affect the

prosecution story because the case was not investigated by Sub-

Inspector Tej Bahadur nor this witness recorded the statement

under Section 161 Code of Criminal Procedure.

xxxxxxxxx

Recovery memo was made by the police on the spot and

the pistol and cartridges was sealed. It is recorded in the

recovery memo Exhibit Ka-3 that on 15.11.2003, S.H.O. Babu

Ram Sagar, along with other police personnel, arrested accused,

Rambhajan S/o Ramdulare, resident of Bhudhia police station,

Shahjahanpur, at present in lock-up, after handcuffing, in the

hope of recovery of murder weapon [country made pistol]

regarding the main crime number 283/03 under Section 302

Indian Penal Code, Police Station Kanth, in a government jeep,

No. UP 27 B/ 6000, left from police station with constable

driver Shrikrishna, and handing over report number 6, at 6:45

A.M., before the saw machine of Munshilal Lohar R/o Rawatpur,

on Kurriya road, accused asked to stop the vehicle and the

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accused got out of the jeep, the persons commuting were asked

to testify stating the purpose of arrest, but everyone went away

without revealing their names and addresses. That after

searching each other’s clothes and on being assured that no one

has any firearm, cartridge, then the accused Rambhajan went

ahead and recovered a country made pistol 315 bore, wherein,

a empty cartridge was stuck in the barrel and a live cartridge

315 bore, from the bunch of patail and the accused stated that

this is the same country made pistol that I had given to my

brother Ramkishore on the day of the incident, all three of us

shot Mool Shankar in front of the agency of Ram Avatar at 2:00

P.M. All three of us had run away after shooting. The police

station was nearby from the spot, so out of fear, the pistol with

empty cartridge and the cartridge was hidden in this patail.

Mool Shankar shot my brother. All three of us have avenged his

killing. This pistol belongs to him. Therefore, the crime of

accused Rambhajan reaches the extent of Section 25/27 Arms

Act. The police took possession of the country made pistol,

cartridges at 7:30 A.M., on the spot, the signatures of fellow

officials were made after reading aloud the recovery memo

written by HCP Shri Krishna Yadav. The country made pistol

and cartridge was sealed. Samples were sealed.

The evidence collected by the investigator under Section

27, Evidence Act, is credible.

To prove a criminal incident, it is not necessary that the

eyewitnesses should be available on the spot, because the

accused wants to execute any criminal incident in such a way

that no one can see or recognize them at the time of causing

the incident and are able to escape safely after causing the

incident. As happened in this case. Those who are said to be

eye-witness of the incident have not supported the incident. In

this case, the deceased Mool Shankar did not die on the spot

and he told his father in the hospital about the incident caused

by the accused.

Thus, in the opinion of the Court, the prosecution has

proved its case beyond doubt.”

(English Translation by the Court)

19.In the given facts, prosecution case rests upon motive; the

testimony of PW-3, father of the deceased, and confession of the

accused made in the disclosure statement before the police that

the accused committed the offence with the recovered assault

weapon.

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20.The question that arises is as to whether the dying

declaration made by the deceased to his father during treatment

in secrecy is reliable and credit worthy. PW-3 is not the eye

witness. PW-1 and PW-2 setup as eyewitnesses in the FIR did not

support the prosecution case. They flatly denied their presence on

the spot and at the time of the incident. As per PW-3 he was

informed by PW-1 and PW-2, while he was in the market that

his son was shot by Ramkishore while other accused were

catching hold the deceased. In cross examination PW-3 admits

that first he went to the thana, where he was informed that his

son has been hospitalised. He, thereafter, went to the hospital.

PW-3 reached the hospital between 4 to 5 PM, whereas, the

incident is of 2 PM. He further, deposed that his son succumbed

to the injuries after three days of the incident on 8 Nov 2013. He

(PW-3) further stated that he was the lone person attending to

his son in the hospital; the deceased during treatment informed

him that the accused had committed the offence. Ramkishore shot

him while others held him. PW-3 further clarifies in cross

examination that he was alone, Medical Officer or staff of the

hospital was not present at the moment deceased informed him

the names of the accused persons.

21.The dying declaration is generally accepted, but has to be

accepted with caution. The declarant is not available for cross

examination. It is not the case of the prosecution that after

receiving gunshot injury deceased was in a position to speak. Had

it been so, the Medical Officer or the hospital staff would have

said so or informed the police or the magistrate to record the

statement of the deceased. Further, the prosecution has not

produced any evidence to corroborate the testimony of dying

declaration. The eye witnesses setup in the FIR (PW-1 and PW-2)

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have not supported the prosecution case. PW-3 being an

interested witness and his statement is without corroboration from

independent witness, is not sufficient to prove the prosecution

case.

22.There is no requirement of law that such a statement must

necessarily be made to a Magistrate. What evidentiary value or

weight has to be attached to such statement, must necessarily

depend on the facts and circumstances of each particular case. In

a proper case, it may be permissible to convict a person only on

the basis of a dying declaration in the light of the facts and

circumstances of the case.

23.In the case of Laxman Vs. State of Maharashtra

1

, at para 3,

it was observed as follows :-

The juristic theory regarding acceptability of a dying declaration is

that such declaration is made in extremity, when the party is at the

point of death and when every hope of this world is gone, when every

motive to falsehood is silenced, and the man is induced by the most

powerful consideration to speak only the truth. Notwithstanding the

same, great caution must be exercised in considering the weight to be

given to this species of evidence on account of the existence of many

circumstances which may affect their truth. Since the accused has no

power of cross-examination, the courts insist that the dying

declaration should be of such a nature as to inspire full confidence of

the court in its truthfulness and correctness.

24.In Arun Bhanudas Pawar Versus State of Maharashtra

2

,

Supreme Court declined to accept the testimony of the mother of

the deceased that deceased upon regaining consciousness disclosed

the name of the accused to her. The mother of the deceased

categorically deposed that when she went to civil hospital she

found her son in unconsciousness condition, however, later on,

deceased regaining consciousness informed her the names of

accused who assaulted him with knife. She further stated that

1. ((2002) 6 SCC, 710)

2. MANU/SC/7056/2008, (2008) 11 SCC 232

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doctor was present when the deceased made oral dying

declaration to her. The Court declined to accept her testimony

being an interested witness and her testimony was not without

corroboration from independent witness, including, medical

officer. The court observed as follows:

“21.…It is well-settled law that the oral dying declaration

made by the deceased ought to be treated with care and

caution since the maker of the statement cannot be

subjected to any cross-examination. In the present case,

admittedly, the alleged dying declaration had not been

made to any doctor or to any independent witness, but only

to the mother…The prosecution has not brought on record

any medical certification to prove that after operation the

deceased was in a fit condition to make the declaration

before his mother.”

26.Similarly Heikrujam Chaoba Singh vs. State of Manipur

3

,

Supreme Court declined to accept the testimony of the brother of

the injured made to him in the ambulance by the

injured/deceased. The relevant portion of the report is extracted:

We are, therefore, called upon to examine the evidence of PW 2 and 5

to find out whether the Courts below were justified in relying upon

their testimony and in believing the statements alleged to have been

made by the deceased while being carried to the hospital in

ambulance and thereafter while he was an indoor patient in the

hospital itself. So far as the statement in the ambulance is concerned,

it was made to PW 2 who is the brother of the deceased. He stated in

his evidence that on inquiry about the injuries sustained by his

brother, Hera Singh the injured told him that he had been given blows

by Heikrujam Chaoba Singh with a dao, Yumlembam Paka Singh with

a hockey stick and another person with a lathi. In his cross-

examination, he candidly admitted that there were three or four

persons inside the ambulance when his brother told him the names of

his assailants but none of those disinterested persons have been

examined by the prosecution to corroborate said PW 2. He also

admitted in his cross-examination that those persons who were in the

ambulance were present near him when his brother stated the words

and yet the prosecution has not offered any explanation as to why

3. AIR 2000 SC 59

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none of those persons were examined who could have been

disinterested persons deposing about the dying declaration said to

have been made by the deceased inside the ambulance while he was

being carried to the hospital. ……. In the aforesaid premise, we do

not think it safe to hold the evidence of PW 2 to be reliable and,

therefore, the oral dying declaration as deposed to him by him cannot

be pressed into service for bringing home the charges leveled against

the accused/appellant.

27.Further, no suggestion was given to the doctor (PW-5), as

to whether the deceased was conscious or able to communicate

verbally or by gestures. The postmortem report notes blackening

and tattooing, meaning thereby, that the deceased was shot from

a close range. The wound is abdominal cavity deep. Left lung

lacerated; diaphram lacerated; stomach lacerated, right side of the

liver lacerated. In internal examination PW-5 noted that brain,

spleen and kidneys were dry. There was no blood. About two

litre blood was present in the abdominal cavity. The condition of

the deceased was not such to suggest he was conscious, his vital

organs were dry and blood had drained and collected in the

abdomen. The prosecution had not produced the Bed-Head ticket

of the deceased. The Investigating Officer PW-4 had stated that

he had not recorded the statement of the treating doctor or

medical staff. In the circumstances, the trial court committed an

error in resting conviction of the accused on the dying

declaration of the deceased alleged to have made to his father

(PW-3). The finding reached by the trial court is perse perverse.

28.Further, the conviction of the accused rests upon the

disclosure/confession made to the police. The trial court found

the evidence collected by the Investing Officer under Section 27

of the Evidence Act credible. Investigating Officer PW-4, arrested

accused Rambhajan after five days of lodging of the FIR

(14.11.2013); on his pointing out a 315 bore country made pistol,

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one empty cartridge and live cartridge was recovered. The

accused confessed of committing the crime with the other accused

with the recovered weapon. The prosecution miserably failed to

establish the link of the assault weapon with the crime. The

recovery of the assault weapon is one circumstance in the chain

of circumstances. The statement of the accused during arrest that

he shot the deceased cannot be read in evidence.

29.Section 27 of Evidence Act reads thus:-

‘27.How much of information received from accused may be proved.

—Provided that, when any fact is deposed to as discovered in

consequence of information received from a person accused of any

offence, in the custody of a police officer, so much of such

information, whether it amounts to a confession or not, as relates

distinctly to the fact thereby discovered, may be proved.’

30. The expression ‘provided’ that together with the phrase

‘whether it amounts to a confession or not’ show that the section

is in the nature of an exception to the preceding provisions

particularly Sections 25 and 26. It is not necessary in this case to

consider if this section qualifies, to any extent, Section 24, also.

It will be seen that the first condition necessary for bringing this

section into operation is the discovery of a fact, albeit a relevant

fact, in consequence of the information received from a person

accused of an offence. The second is that the discovery of such

fact must be deposed to. The third is that at the time of the

receipt of the information the accused must be in police custody.

The last but the most important condition is that only ‘so much

of the information’ as relates distinctly to the fact thereby

discovered is admissible. The rest of the information has to be

excluded. The word ‘distinctly’ means ‘directly’, ‘indubitably’,

‘strictly’, ‘unmistakably’. The word has been advisedly used to

limit and define the scope of the provable information. The

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phrase ‘distinctly relates to the fact thereby discovered’ is the

linchpin of the provision. This phrase refers to that part of the

information supplied by the accused which is the direct and

immediate cause of the discovery.

31.The testimony of P.W.-3 having been found to be

unreliable, doubtful and fails to inspire confidence of the Court,

in the circumstances the prosecution case stands demolished. The

independent witnesses P.W.-1 and P.W.-2 claiming to have

witnessed the incident have turned hostile. They decline their

presence on the spot. Ram Avtar, before whose shop the incident

is alleged to have occurred was not examined. Chabinath, scribe

of the complaint, visited P.W.-3 at the hospital and was informed

of the incident by P.W.-3 was not examined by the prosecution

to support the version of P.W.-3 that the injured was in a state

of consciousness and was in a position to speak. The police

personnel that carried the injured and admitted him to the

hospital was not examined. It is not the case of the prosecution

that initially FIR was lodged under Section 307 IPC. The medical

officer/staff of the hospital was not examined, nor, their

statement taken of the I.O.

32.Having regard to the postmortem report and the testimony

of the doctor P.W.-5 it appears in all probability the injured was

not in a position to speak. The FSL report was not produced by

the I.O. In this backdrop, the trial court committed gross error in

resting the conviction on the disclosure statement of the accused,

that they committed the crime with the recovered weapon which

is not admissible in evidence. The recovery of the alleged assault

weapon has not been connected with the commission of the

crime by the prosecution.

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33.Having regard to the facts and circumstances of the case we

are unable to persuade ourselves to uphold the impugned

judgment and order of conviction and sentence, therefore, appeal

is liable to be allowed and the impugned judgment and order of

conviction and sentence is liable to be set aside.

34. The criminal appeal is, accordingly, allowed. The impugned

judgment and order of conviction and sentence is set aside. The

appellants are directed to be released forthwith, if not required in

any other offence.

34. The appellants on being released the mandate of Section 437-

A Cr.P.C. to be complied.

35. Let the lower court record be sent back to court below along

with a copy of this judgment, for ascertaining necessary

compliance.

36.It is provided that fees assessed at Rs. 20,000/- shall be

released in favour of Amicus Curiae.

Order Date :- 30.09.2022

S.Prakash

(V.D. Chauhan,J.) (Suneet Kumar,J.)

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