Allahabad High Court
Raman Pal vs State Of U.P. on 2 September, 2025
Author: Saumitra Dayal Singh
Bench: Saumitra Dayal Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD HIGH COURT OF JUDICATURE AT ALLAHABAD CRIMINAL APPEAL No. - 939 of 2008 Raman Pal ..Appellant(s) Versus State of U.P. ..Respondent(s) Counsel for Appellant(s) : Hari Nrayan Signh, H.R. Singh, Indra Jit Singh, O.P. Singh, S.K.Mishra, S.N.Singh, Shesh Narain Mishra, Somesh Khare Counsel for Respondent(s) : Govt. Advocate, J.P. Singh, Kameshwar Singh, Rajul Bhargava, Rakesh Kumar Srivastava WITH CRIMINAL APPEAL No. - 1210 of 2008 Devesh Pal @ Sonu Pal ..Appellant(s) Versus State of U.P. ..Respondent(s) Counsel for Appellant(s) : Shishir Prakash, P.P. Srivastava, Rajrshi Gupta, S.N.Singh Counsel for Respondent(s) : Govt. Advocate, R.K.Srivastava, Shishir Prakash WITH CRIMINAL REVISION No. - 1189 of 2008 Ravindra Pratap Shahi ..Revisionist(s) Versus State of U.P. & Anr. ..Opposite Party(s) Counsel for Revisionist(s) : Rajul Bhargava, Prateek Kumar, Rakesh Kumar Srivastava Counsel for Opposite Party(s) : Govt.Advocate, A.K.Singh, Abhai Kumar Singh, Sachchidanand Singh AND GOVERNMENT APPEAL No. - 1917 of 2008 State of U.P. ..Appellant(s) Versus Brijesh Pal ..Respondents(s) Counsel for Appellant(s) : Govt Advocate, R.K. Srivastava, Rajesh Bhargava, Rajul Bhargava, Rakesh Kumar Singh Counsel for Respondent(s) : Rajrshi Gupta, A.K. Singh, J.S.Sengar, Prateek Kumar Court No. - 44 HON'BLE SAUMITRA DAYAL SINGH, J.
HON'BLE SANDEEP JAIN, J.
(Delivered by Saumitra Dayal Singh, J.)
1. Heard Sri Dilip Kumar, learned Senior Advocate assisted by Sri Sudhanshu Kumar and Sri O.P. Singh, learned Senior Advocate assisted by Sri Indra Jit Singh, learned counsel for the appellants, Sri Patanjali Mishra, learned A.G.A.-I for the State and Sri Dharmendra Singhal, learned Senior Advocate assisted by Sri Rakesh Kumar Srivastava, Sri Rakesh Kumar Singh and Sri Shivendra Singhal, learned counsel for the informant.
2. Present batch of appeals (two filed by the convicted accused); one Government Appeal (filed by the State against the acquitted accused) and a Criminal Revision filed by informant arise from the judgment and order dated 15.2.2008 passed by Shri Devi Shanker Prasad Srivastava, Additional Sessions Judge, F.T.C.-3 Basti, in Sessions Trial No. 24 of 2007 (State vs Brijesh Pal, Devesh Pal and Raman Pal). By that order, the learned court below has acquitted the accused Brijesh Pal for offences under Section 302/34, 307/34, 325/34, 504 and 506 IPC, on a benefit of doubt. It has convicted the accused persons Devesh Pal and Raman Pal under Sections 302/34, 307/34 I.P.C. Also, it has convicted the accused Raman Pal under Section 25/27 Arms Act. The convicted accused persons have been sentenced for life under Section 302/34 I.P.C., together with fine INR 8000/- each, with default sentence three months. Further, against conviction under section 307/34 I.P.C., those two accused persons have been awarded punishment - imprisonment for seven years each together with fine INR 2,000/- each with default sentence one month. Further, the accused Raman Pal has been awarded five years rigorous imprisonment for offence under Section 25 Arms Act, together with fine Rs. 1,000/- and default sentence of 15 days.
3. The prosecution story emerged on the Written Report dated 24.10.2006, submitted by Ravindra Pratap Shahi alias Pappu Shahi (P.W.-1), to the Station House Officer, Police Station Mahuli, District Sant Kabir Nagar, narrating therein that he was contesting the election of Chairperson, Nagar Panchayat, Hariharpur. On 24.10.2006, he was returning from election campaigning along with his brother Dharmendra Pratap Shahi (P.W.-3 at the trial the injured), Pankaj Kumar Shahi the deceased, Hanuman Yadav alias Changu (P.W.-2 at the trial), Ravindra Singh, Arvind Pratap Shahi and others (both not examined at the trial). At about 10:30 P.M., as they reached near the house of one Shree Ram Gupta (not examined at the trial), they were confronted by Brijesh Pal (the acquitted accused), wielding a rifle; Devesh Pal alias Sonu Pal and, Raman Pal, both wielding country made pistols. Those persons first hurled expletives and uttered words to the effect that they would not let the first informant i.e. Ravindra Pratap Shahi win the election. Having thus threatened the informant side, those assailants ran towards them.
4. Thereupon, the accused Brijesh Pal fired with his rifle that hit the head of the deceased Pankaj Kumar Shahi. The accused Devesh Pal fired at the chest of Dharmendra Pratap Shahi. He tried to avoid that shot. In that process he was shot at on his right hand. That bullet pierced through and through. Thereafter, all three assailants fled towards their house, brandishing firearms. In that, they also fired many shots in the air, to create terror and chaos. The informant side recognized the assailants in the light of electric bulb at the adjoining house, as also torch light. Pankaj Kumar Shahi died on the spot while the injured Dharmendra Pratap Shahi (P.W.-3) was carried to the hospital by Santosh Pal (not examined at the trial).
5. In such circumstances, the Written Report further narrates that the first informant reached the police station to lodge the F.I.R. That Written Report is Ex.Ka-1 at the trial. The First Information Report was registered at 23:35 hours on 24.10.2006, at Police Station Mahuli, District Sant Kabir Nagar. It is Ex.Ka-4 at the trial.
6. Upon such FIR being registered, the then Station Officer, and the first Investigating Officer, Shashi Kant Mishra (examined as Court Witness, C.W.-1 at the trial), reached the place of occurrence on 25.10.2006 itself and recovered samples of plain and blood stained earth. That Recovery Memo is Ex.Ka-10 at the trial.
7. Ram Narain Singh, on 25.10.2006, the second Investigating Officer arrested the accused Brijesh Pal near Hanuman Gadhhi Temple, and recovered from him a rifle gun of 315 bore, bearing identification number ABO-1-007, together with two live cartridges. Also, he recovered an empty from the chamber of that gun. That Recovery Memo is Ex.Ka-11 at the trial.
8. Also, on 25.10.2006, the second Investigating Officer namely, Ram Narain Singh recovered a burnt revolver bearing identification no. J-O-18632 together with five empties found inside the cylinder of that firearm, from a burnt motor vehicle described as Gypsy bearing registration number UP58A 0964. The Recovery Memo records that there was no mark of the hammer at the base of any of those five empties. That Recovery Memo is Ex. Ka-14 at the trial.
9. On 25.10.2006, the injured Dharmendra Pratap Shahi (P.W.-3 at the trial) was medically examined by Dr. R.S. Singh (P.W.-5 at the trial), at 1:30 A.M. That Injury Report is Ex.Ka-3 at the trial. His observation as to the injury reads as below:
Gun-shot injury on the right upper arm. Charring and Tattooing are clearly marked. Size of entry = 1 cm x 1 cm x through & through. Size of exit = 2 cm x 2 cm x through & through. Profuse bleeding is present. Adv Xray Rt upper arm. Refer to Ortho surgeon for management and expert opinion.
10. His opinion furnished at that time reads as below:
Pt is referred to Orth-surgeon for expert opinion and management. Pt is referred to Ballistic expert for confirmation of any of Gun-shot or else.
11. Also, on 25.10.2006, the dead body of the deceased Pankaj Kumar Shahi was subjected to autopsy examination by Dr Om Prakash who was examined as P.W.-8 at the trial. The autopsy examination was conducted at about 1.00 P.M. The death was opined, caused half-day earlier. The cause of death was recorded as shock and haemorrhage due to ante-mortem injuries. Two pieces of a bullet were also recovered from inside that dead body - one from the brain tissue and the other from the occipital bone. The said autopsy report is Ex.Ka-2 at the trial. The following ante-mortem injury were noted in that report:
Firearm wound of external 4.0 cm x 3.5 cm x Bone Brain cavity deep on the Rt. Side forehead & eyebrow adjacent to Rt eye & joint lateral to root of nose on Rt side. Margin irregular & charred & inverted. Brain matter present in wound.
12. Thereafter, on 29.10.2006 the second Investigation Officer Ram Narain Singh (P.W.-9), arrested the accused Raman Pal from a tri-junction crossing on Nath Nagar Khalilabad road while he was riding a motorcycle. One country made pistol of 315 bore with one live cartridge was recovered from his person while one empty of 315 bore was recovered from inside the storage space of the motorcycle, described as diggy. Also, that motorcycle was recovered. That Recovery Memo is Ex.Ka-12 at the trial.
13. The said accused person namely Raman Pal was subjected to medical examination on 30.10.2006. That injury report was proven by the defence as Ex.Kha-1 at the trial. Therein, following simple injuries - opined to have been caused by hard and blunt object, about one day ago, were noted:
1. C/o Pain on the head.
2. Abrasion 5.0 x 1.0 cm on the front of left arm 3.0 cm above the left elbow joint.
3. Traumatic swelling around the base of left thumb.
4. Lacerated wound 1.0 cm x 0.5 cm on the back of tip of Rt. Middle finger.
5. Contusion 18.0 cm x 14.0 cm on the left buttock.
6. Contusion 15.0 cm x 13.0 cm on the back and upper portion left thigh blackish in colour.
7. Contusion 17.0 cm x 13.0 cm on the Rt buttock blackish in colour.
8. Contusion 19.0 cm x 13.0 cm on the back & upper portion Rt thigh blackish in colour.
9. Abrasion 1.0 cm x 1.0 cm on the Rt knee joint.
10. Abrasion 1.0 cm x 0.5 cm on the left knee joint.
C/o Pain the both foot.
OPINION All injuries are simple in nature. Caused by some hard & blunt object duration about one day old.
14. On 21.11.2006 i.e. after about one month from the date of occurrence, the second Investigating Officer Ram Narain Singh (P.W.-9) recovered a bloodstained jacket allegedly worn by the injured Dharmendra Pratap Shahi, at the time of the incident. That jacket was handed over to the said Investigating Officer by the first informant at the police station. That Recovery Memo is Ex.Ka-17.
15. On 22.11.2016, the rifle recovered from the accused Brijesh Pal together with live cartridge and an emply; one country made pistol recovered from the accused Raman Pal together with two live cartridges and one empty, clothing of the deceased recovered at the time of autopsy examination, two pieces of bullet recovered from inside the dead body of the deceased and samples of blood stained and plain earth drawn from the place of occurrence, were sent for forensic examination to the Forensic Science Laboratory, Lucknow. That document is Ex.Ka.-18 at the trial.
16. The Forensic Science Laboratory, Lucknow vide its report dated 15.1.2007 reported, the empty cartridge EC-1 had been fired from the rifle recovered from the accused Brijesh Pal. Second empty cartridge EC-2 had been fired from the country made pistol recovered from the accused Raman Pal. It was also opined, two pieces of bullet recovered from inside the dead body of the deceased may be parts of the bullet fired from the recovered rifle. The said forensic report is Ex.Ka.-28 at the trial.
17. Another report was submitted by the Forensic Science Laboratory, Lucknow, dated 27.1.2007 wherein it was opined, the pant, shirt and metal pieces recovered from the dead body of the deceased, during the autopsy examination and samples of earth sent for forensic examination, contained absorbed blood of human origin. On the other samples, blood had disintegrated. That forensic report is Ex.Ka-30 at the trial.
18. Yet another forensic report dated 3.2.2007 was submitted by the Forensic Science Laboratory, Lucknow, wherein it was opined that the two samples of earth one plain and another blood stained, had similar earth contents. The said Forensic Science Laboratory Report is Ex.Ka.-29 at the trial.
19. Upon conclusion of the investigation, second Investigation Officer Ram Narain Singh (P.W.-9 at the trial) submitted the charge-sheet against the accused persons Brijesh Pal, Devesh Pal alias Sonu Pal and Raman Pal under Sections 302, 307, 504, 506, 394, 435, 325, 25/27 Arms Act. That document is Ex.Ka.-19.
20. Upon the case being committed for trial to the Court of sessions, following charges came to be framed against the appellant Brijesh Pal, Devesh Pal alias Sonu Pal and Raman Pal, on 8.3.2007:
"प्रथम- यह कि दिनाँक- 24.10.06 समय करीब 10-30 बजे रात बहद वार्ड नम्बर-10 कस्बा हरिहरपुर थाना महुली जिला संत कबीर नगर में आप लोग वादी मुकदमा रविन्दर प्रताप शाही के चचेरे भाई पंकज कुमार शाही तथा सगे भाई धर्मेन्द्र प्रताप शाही को जान से मारने की नियत से कट्टे से गोली मारी जिससे उन्हें सम्भीर चोटें आयी यदि इन चोटों से धर्मेन्द्र प्रताप शाही की मृत्यु कारित हो जाती तो आप हत्या के कोटि में आने वाले अपराध के लिए दोषी होते। इस प्रकार आप लोग ऐसा कार्य किये जो भा०दं०सं० की धारा-307/34 के तहत दण्डनीय अपराध है और इस न्यायालय के प्रसंज्ञान में है।
द्वितीय- यह कि उपरोक्त दिनांक समय व स्थान पर आप लोग अपने सामान्य उद्देश्य की पूर्ति में वादी मुकदमा के चचेरे भाई पंकज कुमार शाही को राइफल से गोली मार कर हत्या कर दी इस प्रकार आप लोग ऐसा कार्य किये जो भा०दं०सं० की धारा- 302/34 के तहत दण्डनीय अपराध है और इस न्यायालय की प्रसंज्ञान में है।
ततृीय- यह कि उपरोक्त दिनांक समय व स्थान पर आप लोग अपने सामान्य उद्देश्य की पूर्ति में वादी मुकदमा के सगे भाई धर्मेन्द्र प्रताप शाही को कट्टे से गोली मारी जिससे उसके दाहिने हाथ के बाहु से गोली बेधते हुए बाहर निकल गयी और उसके हड्डी में फ्रैक्चर हो गया। इस प्रकार आप लोग ऐसा कार्य किये जो भा०दं०सं० की धारा-325 के तहत दण्डनीय अपराध है और इस न्यायालय के प्रसंज्ञान में है।
चतुर्थ- यह कि उपरोक्त दिनांक समय व स्थान पर आप लोग वादी मुकदमा व उसके परिवार के लोगों को भद्दी भद्दी गालियाँ दे कर अपमानित कर प्रकोपित किया जिससे लोक परिशान्ति भंग होने की सम्भावना उत्तपन्न हो गयी। इस प्रकार आप लोग भा०दं०सं० की धारा-504 के तहत दण्डनीय अपराध किया जो इस न्यायालय के प्रसंज्ञान में है।
पंचम- यह कि उपरोक्त दिनांक समय व स्थान पर आप लोग वादी मुकदमा व उसके परिवार के लोगों को जान से मार देने की धमकी देकर अभित्रासित किया इस प्रकार आप लोग ऐसा कार्य किये जो भा०दं०सं० की धारा-506(2) के तहत दण्डनीय अपराध है और इस न्यायालय के प्रसंज्ञान में है।"
21. Further, vide another order dated 8.3.2007, following charge was framed against the accused Raman Pal:
"प्रथम- यह कि दिनांक 29.10.06 की 8.40 बजे नाथ नगर खलीलाबाद रोड पर गया तथा तिराहा बहद, थाना महुली जिला संत कबीर नगर में आप को पुलिस कर्मचारीगण ने पकड़ा और आप की जामा तलाशी लिया तो आप के कब्जे से एक अदद (अपठित) देशी कटा बरामद किया। जिसका प्रयोग आप ने सामान्य उद्देश्य की पूर्ति में पंकज कुमार शाही के हत्या में किया था। इस प्रकार आप ने ऐसा कार्य किया जो आयुध अधिनियम की धारा 25/27 के तहत दण्डनीय अपराध है इस न्यायालय के प्रसंज्ञान में है।"
22. At the trial, besides the above documentary evidence, the prosecution relied on oral evidence of eleven witnesses. In that, Ravindra Pratap Shahi alias Pappu Shahi (first informant) was examined as P.W.-1. He proved his maternal grand-father Kunwar Bal Mukund Pal had three daughters. He had lived with him for the last 25 years, at Hariharpur, District Sant Kabir Nagar. The accused Brijesh Pal is a relative of the said Kunwar Bal Mukund Pal. The accused party wanted to grab his properties. In that regard, civil proceedings were pending before the High Court, between his maternal grand-parents and Brijesh Pal and Satya Charan Pal.
23. Second, since early days of establishment of the Nagar Panchayat, the accused Brijesh Pal became its Chairman. He encroached and got registered - in the name of his family members properties of the Nagar Panchayat. Later, the mother of the first informant became the Chairperson of that Nagar Panchayat. At that time, the witness had checked the records and discovered that the accused Brijesh Pal had got recorded, the names of his family members, over certain Nagar Panchayat lands, in a farzi manner. He had lodged three reports with the police. In view of that action taken by the witness, rivalry/animosity arose between the parties.
24. Third, the witness proved that the election of the Nagar Panchayat was scheduled to be held on 3.11.2006. It was being contested, both by him and the accused Brijesh Pal, who did not want Ravindra Pratap Shahi alias Pappu Shahi (P.W.-1) to contest that election.
25. Fourth, the witness proved that the occurrence took place at about 10:00 PM when he along with his brother - Dharmendra Pratap Shahi, cousin Pankaj Kumar Shahi, Ravindra Singh, Hanuman Yadav alias Changu and Arvind Pratap Shahi were returning, after election campaigning. They were travelling from west to east towards their house. They caught up with the accused Brijesh Pal and his son Devesh Pal alias Sonu Pal, and Raman Pal, who were travelling on a Gypsy motor vehicle, in front of the gate/door of one Shree Ram Gupta. At that time, the accused Brijesh Pal uttered words to the effect that he would not allow the witness to contest the election and he exhorted others to kill the appellant.
26. Fifth, he proved, the accused Brijesh Pal shot at Pankaj Shahi with his rifle. The latter was hit. He fell and died.
27. Sixth, he proved, accused Devesh Pal alias Sonu Pal and Raman Pal were armed with country made pistols. Both fired at Dharmendra Pratap Shahi. The shot fired by Devesh Pal hit Dharmendra on his left forearm as he tried to evade the shot fired at his chest. On being hit, Dharmendra also fell. He left leaving the injured in the care of Santosh to be taken to the hospital.
28. Seventh, the witness went to his house, prepared the Written Report and got the F.I.R. registered thereagainst. He proved the Written Report Ex.Ka-1.
29. Eighth, he proved, after the F.I.R. had been lodged, he went back to the place of occurrence. The police followed. There, his statement was recorded by the police.
30. Last, he proved, the injured Dharmendra was admitted to the hospital, first at Khalilabad from where he was taken to Gorakhpur. Since his condition was not improving, he was taken to Nova Hospital, Lucknow where he was operated and remained in the hospital for a total period of one month.
31. Next, Hanuman Yadav was examined as P.W.-2. First, he proved that at the Nagar Panchayat Election he campaigned for Ravindra Pratap Shahi alias Pappu Shahi. Everyday, they would return around 10:30 in the night, from that campaign.
32. Second, he proved, on the date of the occurrence, he along with Ravindra Pratap Shahi alias Pappu Shahi, Dharmendra Pratap Shahi, Pankaj Shahi and Ravindra Singh were returning from campaigning, to the house of Ravindra Pratap Shahi. Near the house of one Shree Ram Gupta, there in the light source offered by Diwali lights, candles, lamps of the vehicles as also torch light, he saw the accused Brijesh Pal, Devesh Pal, Raman Pal in a Gypsy motor vehicle. Brijesh Pal was armed with a rifle while Raman Pal and Devesh Pal were armed with country made pistols. At that point, the accused Brijesh Pal exhorted others to kill the informant side. He further exhorted his companions to kill Papu Shahi. That exhortation offered by the accused Brijesh Pal was challenged by the deceased Pappu Shahi and Dharmendra Pratap Shahi, who were in the front.
33. Third, at that point, Brijesh Pal shot at the deceased Pankaj Shahi with his rifle. It hit the deceased on his head. He fell and died.
34. Fourth, he proved, Raman Pal and Devesh Pal fired at Dharmendra Pratap Shahi with their country made pistols, intending to kill him too. The shot fired at Devesh Pal hit Dharmendra Pratap Shahi on his left forearm. He fell in front of the house of Shree Ram Gupta.
35. Fifth, he proved, while Raman Pal snatched the licensed revolver of Dharmendra Pratap Shahi.
36. Sixth, Devesh Pal and Raman Pal fled towards their house, with the licensed revolver of Dharmendra Pratap Shahi, in the 'Gypsy' vehicle.
37. Seventh, he proved, a lot of people arrived at the seen. The accused Raman Pal and Devesh Pal tried to escape on the 'Gypsy' in the north direction.
38. Eighth, on call of Ravindra Pratap Shahi alias Pappu Shahi, Santosh Pal arrived and took Dharmendra Pratap Shahi to the hospital.
39. Ninth, according to that witness, accused Brijesh Pal ran towards the south.
40. Tenth, he proved that the jeep of Brijesh Pal was set on fire by unknown persons. When the witness moved towards the house of Ravindra Pratap Shahi alias Pappu Shahi, he found that the Gypsy' vehicle in which Raman Pal and Devesh Pal had fled, was ablaze. Later he accompanied Ravindra Pratap Shahi alias Pappu Shahi, Deepu and Amit in a Qualis vehicle to the police station where Ravindra Pratap Shahi alias Pappu Shahi submitted the Written Report.
41. Eleventh, he proved that after the FIR was lodged, the Inspector arrived with constables and asked them to accompany him to Hariharpur.
42. Next, he proved, he got dropped on their way back, at his house.
43. Last, as to his own statement, he proved that it was recorded 18-19 days after the occurrence.
44. Next, the injured witness Dharmendra Pratap Shahi was examined as P.W.-3. He proved that the occurrence took place at about 10:30 in the night when he along with his cousin Pankaj Kumar Shahi, elder brother Ravindra Pratap Shahi alias Pappu Shahi, younger brother Arvind Pratap Shahi, party workers Hanuman Yadav and Ravindra Singh were returning from election meeting organised at the house of one Janardhan at Chaubey Tola. Since they were returning to their house, they were travelling from west to east.
45. Second, he proved, he was holding a torch but also there was light of lamps near the door/gate of the house of Shree Ram Gupta.
46. Third, he proved, there, that they met up the accused Brijesh Pal, his son Devesh Pal and Raman Pal who were travelling in a 'Gypsy' from east to west.
47. The accused Brijesh Pal got down holding his rifle in his hand. He hurled vulgar expletives at the witness and his brother and further proclaimed - he would not allow Ravindra Pratap Shahi alias Pappu Shahi to contest the election.
48. Fourth, he proved, on such occurrence, he and Pankaj Shahi challenged the accused person. They objected to his using expletives. At that point, the accused Brijesh Pal fired at the deceased Pankaj Shahi, with his rifle. The shot hit him. He fell and died in front of the gate of Ram Gupta.
49. Fifth, he proved, Devesh Pal and Raman Pal were armed with country made pistols fired at him. The shot fired by Devesh Pal at his chest hit on his hand. He fell.
50. Sixth, thereafter, the accused Brijesh Pal further exhorted his companions to snatch the licensed revolver of the witness. At that point, the accused Raman Pal ran and snatched the licensed revolver of the witness that was held in his waist band.
51. Seventh, he proved that after snatching his licensed revolver the accused fled. He heard 2-3 shots fired in the air but he could not see who caused that occurrence.
52. Next, he proved, Santosh Pal carried him to the hospital at Khalilabad where the doctor referred him to Gorakhpur Medical College. He reached that hospital the same night and was examined by the doctor but he was not admitted. In the same breath, he stated, he was not admitted to that hospital but was referred to Savitri Hospital, Gorakhpur from where he went to Nova Hospital, Lucknow, as his condition did not improve. At the Nova hospital, he was operated. Last, he proved, his statement was recorded during investigation.
53. Thereafter, Dr. Ram Prakash, the doctor on duty at the District Hospital, Basti on 25.10.2006 was examined as P.W.-4. He proved the Autopsy Report of the deceased Pankaj Kumar Shahi. In that, he proved the following ante-mortem injuries :
^^vkXus;kL= dk izos'k ?kko (Entrywound by fire Arms) 4 ls0eh0 x 3-5 ls0eh0 x efLr"d dh xgjkbZ rd xgjk nk;sa yykV ,oa HkkS ij Hkh Fkk tks nk;sa vka[k ls Bhd ij ,oa ukad dh tM+ ls Bhd nk;s Fkk] fdukjs bfjxqyj ;kfu vfu;fer o >qyls gq, pkMZ pksV dh ekjftu buoVZ Fkh efLr"d dk fgLlk pksV ls fudyrk gqvk Fkk FkkA pksV ds ikl QzkUVy cksu nksuksa rjQ dh iSjkbVy cksu o VsEiksjy cksu o vkDlhiVy cksu VwVh gqbZ FkhA foPNsnu ds le; pksV ls nks fiysV~l ftlesa ,d cqysV czsu fV'kw ls izkIr gqvk o nwljk vkDlhihVy cksu ls ;kfu lj ds ihNs gM~Mh ls izkIr gqvkA flj esa tSlk fd ij crk;k pksVs FkhA efLr"d dh fMfYy;ka rFkk efLr"d QVk gqvk FkkA vkek'k; [kkyh FkkA NksVh o cM+h vkarks esa fQdy eSVj o xSlst FkhA fiRrk'k; Hkjk FkkA^^ In his opinion, death was caused by shock and excessive bleeding as a result of ante-mortem injuries.
54. He also proved, during that examination, a bandi, shirt, pant, underwear, belt, kalava and pair of shoes, all worn by the deceased, were recovered from his person. Those were sealed and handed over to the police.
55. He also proved, two pieces of bullet were recovered from inside the brain cavity and occipital bone of the deceased. The same were sealed and handed over to the constable.
56. Thereafter, Dr. R.S. Singh, BRD Medical College, Gorakhpur was examined as P.W.-5. He proved, he had examined the injured Dharmendra Pratap Shahi at about 1:30 a.m. on 25.10.2006. He proved the injuries as below:
1 cm x 1 cm x through & through vkj ikj FkkA nwljh pksV xksyh ds ckgj fudyus dh (exit wound) FkhA ;g 2 cm x 2 cm x vkj ikj dh FkhA
57. With respect to the above injuries, he also proved presence of charring and tattooing on the entry wound. Further, he proved, excessive bleeding suffered by the injured. He also proved that the injured was referred to an Orthopaedic doctor and recommended X-ray examination.
58. He proved that the condition of the injured was grave. As to the time of the injury, he proved that the same may have been caused on 24.10.2006 at about 10:30 P.M.
59. Thereafter, Head Constable Harish Chand Prasad was examined as P.W.-6. He proved the registration of the F.I.R. in Case No. 799 of 2006 under Section 302, 307, 504, 506 I.P.C. (Ex.Ka.-4). He further proved GD entries with respect to the same.
60. Thereafter, Kamlesh Kumar Sharma, Clerk-cum-Store Keeper, Department of Radiology, B.R.D. Medical College, Gorakhpur, was examined as P.W.-7. He proved the X-ray report and X-ray plate of the injured Dharmendra Pratap Shahi (P.W.-3).
61. Next, Dr. Om Prakash, Professor, B.R.D. Medical College, Gorakhpur was examined as P.W.-8. He proved the X-ray report and X-ray plate dated 14.11.2006, of the injured Dharmendra Pratap Shahi (P.W.-3) and the fact that the injured was referred to Dr. R.S. Singh, E.M.O. who had advised X-ray, Upper Arm, A.P. and Lateral. He further proved fracture injury. Besides proving the X-ray report, he also proved presence of various radio opaque shadows in the X-ray image. As to the injury, he proved, it was through and through. He proved the medical documents pertaining to that examination.
62. Next, second Investigation Officer Sub-Inspector Ram Narayan Singh was examined as P.W.-9. He proved, the first Investigation Officer Shashi Kant Mishra had prepared copy of the Check report and recorded the statement of the first informant Ravindra Pratap Shahi alias Pappu Shahi (P.W.-1) and also prepared the site plan and made recoveries of samples of blood-stained and plain earth from the place of occurrence. He proved, part investigation conducted by the first Investigation Officer Shashi Kant Mishra.
63. Third, he proved the arrest of Brijesh Pal on 25.10.2006 and the recovery of his licensed fire-arm namely 314 bore rifle along with a live bullet and an empty.
64. Fourth, he proved the arrest of Devesh Pal alias Sonu Pal on 21.06.2006.
65. Fifth, he proved the arrest of accused Raman Pal on 29.10.2006 at Vishwanath Crossing at 8:40 A.M. in the morning and recovery of 315 bore country made pistol with two live cartridges and one empty.
66. Sixth, he proved recovery of one burnt revolver from the burnt Gypsy motor vehicle, on 25.10.2006. In that context, he proved that the empties found inside the cylinder of that fire-arm did not bear any hammer mark/s.
67. Seventh, he proved, on 12.11.2006, he recorded the statement of the eye witness Ravindra Pratap Shahi, Hanuman Yadav alias Changu Yadav and Arvind Pratap Shahi. On 14.11.2006, he recorded the further statement of the first informant Ravindra Pratap Shahi (P.W.-1) and statement of the injured Dharmendra Pratap Shahi (P.W.-3). He also copied the Injury Report in the Case Diary. As to the X-ray report of the injured, he entered the same in the Case Diary, on 15.11.2006. Later, on 21.11.2006, he recovered the blood-stained clothes of the injured. Thereafter, he proved the further facts pertaining to the investigation and submission of the charge-sheet.
68. Next, Constable Shrawan Kumar was examined as P.W.-10. He proved the facts with respect to arrest of Raman Pal and recovery made from him.
69. Next, Sub-Inspector Harcharan Prasad was examined as P.W.-11. He proved the preparation of the Inquest Report.
70. Thereafter, the court examined the first Investigation Officer Shashi Kant Mishra as C.W.-1. He proved the initial steps of investigation.
71. Thereafter, the statement of the accused were recorded under Section 313 Cr.P.C. Then opportunity was given to the defence to lead evidence. In that, the defence produced 15 witnesses. First, Raghvendra was examined as D.W.-1. He proved, four motor vehicles of Brijesh Pal had been set ablaze in the occurrence. He also proved that those were recovered by the police after a few days from the occurrence. Second, Dhruv Chandra was examined as D.W.-2. He described himself as Care Taker of Shree Ram Gupta. He was present at the house of Shree Ram Gupta on the date and time of occurrence. He was sleeping. He woke up to the noise of the gunshots. He saw three to four persons with rifles. One person related to Ravindra Pratap Shahi (P.W.-1), was lying on the ground. Pankaj Kumar Shahi was also present at that time and place. He also proved presence of three to four motor vehicles at that place. One of them was pushed to the north while others moved towards the south. He tried to prove Ramanand Yadav and Ramchet Yadav also received injuries. Then, he proved, unnamed persons drew fuel from the vehicles, sprinkled it over the vehicles and set them ablaze.
72. Next, Constable Brahm Singh was examined as D.W.-3. He proved certain facts with respect to the autopsy examination of the deceased Pankaj Kumar Shahi. However, no part of his testimony was referred to or is relied to by any party.
73. Next, Constable Balchand was examined as D.W.-4. He tried to prove that no money was recovered from the accused Brijesh Pal. Yet, he proved the recovery of the rifle by Sub-Inspector Ram Narayan Singh.
74. Next, Shri R.K. Pandey was examined as D.W.-5. He tried to prove the injuries received by Raman Pal as were examined on 30.10.2006, at 12:20 P.M.
75. Next, Dr. Anwar Jamal, Ballistic Expert, Forensic Science Laboratory, Lucknow was examined as D.W.-6. He had examined the licensed rifle of Brijesh Pal. He proved, his opinion had not been called as to the range of flame that may escape the barrel of the rifle, upon its use.
76. Next, Ahliya Pal, wife of the accused Brijesh Pal was examined as D.W.-7. She tried to prove - on the date of occurrence, the accused Brijesh Pal had returned home at 9-9:30 P.M.
77. Next, Ramvilas was examined as D.W.-8. He, an ex-serviceman tried to prove that flame from the rifle may extend to 6 inches.
78. Next, Avnish Kumar Srivastava was examined as D.W.-9. He proved that the accused Brijesh Pal was arrested by the police at about 11:30 P.M.
79. Next, accused Brijesh Pal got himself examined as D.W.-10. He proved that he had returned home at 8:30 P.M. to 8:45 P.M. after finishing the days election campaigning. In that regard, he further claimed, he was on fast that day and therefore he had returned home early. He also proved, he had another meeting to attend on the same day at about 10 P.M. at Chaubey Tola.
80. Last, Head Constable Biral Kumar was examined as D.W.-11. He proved that the G.D. entry dated 25.10.2006 records that the same was received in the Office of the Circle Officer on 30.10.2006.
81. Next, Gorakh Prasad Narayan, a party worker of Bahujan Samaj Party was examined as D.W.-12. He tried to prove, Brijesh Pal had submitted a Written Report reporting a cross version of the same occurrence.
82. Next, Constable Ravikant Mani was examined as D.W.-13.
83. Next, Bhagwan Das was examined as D.W.-14. He also described himself as worker of the Bahujan Samaj Party and tried to prove that Brijesh Pal had given Written Report to the Superintendent of Police.
84. Last, Dr. B.K. Singh was examined as D.W.-15. He tried to prove the injuries of Raman Pal, as noted by him during his examination on 30.10.2006.
85. At oral hearing, Shri Dilip Kumar, learned Senior Counsel first referred to the fact that the occurrence took place in the backdrop of election for the Chairman of Nagar Panchyayat, scheduled in early November, 2006.
86. Admittedly, the accused Brijesh Pal and the first informant Ravindra Pratap Shahi alias Pappu Shahi were contesting that election. Both were known to each other from before. Their political rivalry is a well established fact to the extent Ravindra Pratap Shahi alias Pappu Shahi (P.W.-1) has himself narrated. Both parties were involved in property disputes from before. On formation of the Nagar Panchayat, Brijesh Pal became its Chairman for sometime. Thereafter, the mother of the first informant Ravindra Pratap Shahi alias Pappu Shahi became the Chairman.
87. Considering that, the fact that both sides were armed, is also narrated by the prosecution. While a rifle ascribed to the accused Brijesh Pal, the injured Dharmendra Pratap Shahi was also carrying a licensed revolver, as per the own case of the prosecution.
88. In the context of political rivalries, the very foundation of the prosecution story is doubtful to the extent it has been alleged that the appellant side opened fire on the informant side, without any provocation etc. It is also the prosecution story that both sides were scheduled to hold a meeting at Chaubey Tola, one after the other, on the date of the occurrence. Clearly, both sides were engaged in a political contest against the other with both belonging families with political background and both sides being known to each other from long before.
89. Seen in that light, it has been stressed, though many firearms are described to have been used in and after the occurrence - both to cause the assault and also to fire in the air to create terror, no recoveries of empties commensurate to that description, exist. Further, in the context of two firearm injuries suffered - one by the deceased and one by the injured Dharmendra Pratap Shahi, there exists a single recovery of blood stained and plain earth. No sample of blood stained earth was recovered from the place where the injured Dharmendra Pratap Shahi (P.W.-3) fell after suffering the firearm injury. In the nature of that injury described through & through, involving excessive loss of blood, as proven by Dr. R.S. Singh (P.W.-5), considering time was spent before the injured was carried to the hospital, it is remarkable that no second recovery of sample of blood stained earth was made. Therefore, that other injury is manufactured.
90. In such facts, it has been further pointed out, the learned court below has acquitted the accused Brijesh Pal on a finding that the presence of P.W.-1 and P.W.-2, was doubtful. Yet, it has convicted the appellants Devesh Pal and Raman Pal on the same evidence.
91. Referring to the recovery of burnt 'Gypsy' motor vehicle and recovery of burnt revolver from that vehicle with five empties in its cylinder, it has been stressed that recovery though made on 25.10.2006, was not recorded in the Case Diary for almost one week, till 31.10.2006. That fact was specifically admitted by the second Investigation Officer Ram Narayan Singh (P.W.-9) during his cross-examination.
92. In these facts, it has been submitted, the presence of Ravindra Pratap Shahi alias Pappu Shahi (P.W.-1) was highly improbable. His account of the occurrence has been doubted by the trial court itself. His conduct is wholly unnatural inasmuch as his first reaction after the occurrence was to go to his house where he prepared the Written Report and went to the Police Station thereafter, to lodge the FIR whereas Dharmendra Pratap Shahi was lying injured at the place of occurrence.
93. Then, Santosh Pal was deliberately withheld by the prosecution, though he is the person who carried the injured to the District Hospital, Khalilabad.
94. Second, the presence of Ravindra Pratap Shahi alias Pappu Shahi is wholly improbable as the description of the firearm used by Brijesh Pal as narrated by him, it is not possible [in view of the clear evidence of the ballistic expert Anwar Jamal (D.W.-6)]. To the extent, the said witness had prepared the forensic report relied by the prosecution, his opinion to the Court - by way of a defence evidence is wholly relevant. Clearly, the firearm injury suffered by the deceased was caused by a small firearm.
95. Third, the whole prosecution story falls flat as no injury was caused to Ravindra Pratap Shahi alias Pappu Shahi. Though the only dispute and motive assigned is against that person, yet, not a single firearm was fired at him or in his direction. Even as per the prosecution story, as to the deceased Pankaj Kumar Shahi and the injured Dharmendra Pratap Shahi, absolutely no motive could ever exist with the appellant side to cause any injury or harm to those persons.
96. Fourth, presence of Hanuman Yadav has also been doubted. Though not injured, he did nothing, either during the occurrence or after the occurrence. It is wholly unnatural that in an occurrence of this kind, though the said witness was present at close quarters to the deceased and the injured, he neither carried the deceased or the injured, to the hospital. The learned court below has rightly doubted his presence.
97. Fifth, coming to the injured witness, Dharmendra Pratap Shahi, it has been submitted, though the testimony of injured witness carries greater evidentiary weight, yet, in the present case, the said witness is not trustworthy. He resiled from the statement made under Section 161 Cr.P.C. There is no recovery of any blood-stained earth to prove his injury in the occurrence. At most, he may be partially reliable. Yet, it remains wholly unexplained or unproven how his licensed revolver with five empties in its cylinder came to be discovered in the Gypsy motor-vehicle that was set ablaze after the occurrence. By concealing that revolver and by not making it an exhibit at the trial, the prosecution has deliberately withheld material evidence from the Court.
98. In fact, presence of five and not six empties in the cylinder, clearly indicates that one had been fired - in all probability in the occurrence itself. In absence of any exit wound suffered by the deceased, the firearm injury suffered by him was caused with a small fire-arm. In view of the concealment practised by the prosecution, reasonable doubt exists - if that small firearm injury had been caused by the licensed revolver of this witness.
99. Referring to the Autopsy Report that makes mention that the piece of jacket of the bullet had also been lodged at the skull of the deceased and the dimension of the bullet being 8.33 mms, clearly it may equate to 0.32 bore bullet used in such revolver. How that bullet came to be fired from the revolver in the scuffle, or accidentally, was not explained at the trial. The defence was thus prevented from raising doubts based on the involvement of such weapon in the occurrence. The very fact that its recovery was not recorded in the Case Diary for almost one week, clearly indicates that the prosecution had made all efforts to hide his weapon.
100. Sixth, it has been submitted, the occurrence took place on the third night of the Diwali. In absence of moon light, there existed no source of light as may have allowed the prosecution witnesses to see the occurrence as it may have been caused. On the own showing of the prosecution, there was no street light and there were only earthen lamps/diyas. To say that the occurrence was seen by the witnesses in the manner disclosed is unbelievable, in the absence of source of light.
101. Referring to the injuries suffered by the deceased, it has been shown that the margins were charred. Such charring may be caused by the flame from the barrel of fire-arm. Such flame may never extend beyond 6-8 inches. Therefore, the injuries suffered by the deceased may never have been caused with the weapon such as the rifle fired from a distance. According to Ravindra Pratap Shahi (P.W.-1), the shot was fired from a distance of 4-5 feet. Hanuman Yadav alias Changu (P.W.-2) gave no description while the injured Dharmendra Pratap Shahi (P.W.-3) described that the occurrence was caused from a distance of 5-6 feet, whereas, the deceased was shot with a small firearm from a distance of 4-5 feet.
102. His presence has also been doubted on the strength of medical records. Though first examined on 25.10.2006, at about 1:30 A.M., photocopy of his further report dated 13.11.2006 was prepared and brought on the Case Diary one day prior to his statement recorded under Section 161 Cr.P.C. Though it is claimed that he remained admitted at a medical establishment for one month, his statement under Section 161 Cr.P.C. was recorded on 14.11.2006. That itself gives rise to a reasonable doubt both as to the nature of injuries suffered by him as also with respect to his presence at the time and place of occurrence. The Investigation Officer himself admitted that the report was copied in the Case Diary on 25.11.2006 and that the X-ray report was copied in the Case Diary on 21.11.2006
103. Dr. Om Prakash (P.W.-8) proved that the X-ray report was prepared on 14.11.2006 disclosing opaque shadows. Further, how the photo-stat documents, especially pertaining to the medical reports came on the Case Diary, is wholly doubtful.
104. In the first place, original documents pertaining to the treatment received by the injured witness Dharmendra Pratap Shahi were not proven. Second, it is equally unclear how photocopies of such documents could be read in evidence. The surgery described to have been conducted at Nova Hospital, Lucknow was also not proven.
105. Then, submission has been advanced as to bias. Here, it has been submitted, the deceased belonged to the ruling political party of the time the Samajvadi Party. To give a particular direction to the investigation, first Investigation Officer Shashi Kant Mishra was removed just after he had recorded the statement of first informant Ravindra Pratap Shahi (P.W.-1). This occurred during the night of 23/24.6.2010 itself. Thereafter, the officer appointed as the Investigation Officer, happened to be the Reader of the Superintendent of Police, Khalilabad. Clearly, by removing first Investigation Officer and by replacing him with an officer directly under his office, investigation came to be conducted at the dictate of Superintendent of Police, Khalilabad. Insfoar as the change of Investigation Officer is concerned, again, it is clear that the said change was made on the dictation of the Superintendent of Police, Khalilabad. This was proven by the first Investigation Officer Shashi Kant Mishra (C.W.-1). It is with that object that the recovery of the burnt revolver of the injured Dharmendra Pratap Shahi was deliberately concealed, to hide the true nature of the occurrence.
106. At the same time conclusion of oral hearing along with the compilation of precedents relied, learned counsel for the appellants, namely, Shri Rajrshi Gupta and Shri Sudhanshu Kumar, introduced Written Arguments as well. Thereafter, the Court went in summer recess. Since July different bench constitutions arose. The further submissions thus advanced by learned Senior Counsel may be summarized as below:
I. Attempt by prosecution to conceal and hide the revolver and its role in the incident.
(i) Prosecution did not consciously frame charge under Section 394 and 435 I.P.C. as the revolver and the cartridges were concealed from the trial court and no charge of robbery could be framed without making the robbed item (i.e. revolver) the court property.
(ii) However, the trial court observed that it is highly unnatural and improbable that after snatching the revolver, the accused would burn it by placing it in a burning vehicle. There may be various circumstances or situations in which the vehicles and the revolver may have been burnt.
(iii) Applications dated 03.08.2007 (91 kha) and 28.09.2007 (137 kha) made by the defence for sending the revolver for forensic examination was rejected by trial court vide orders dated 13.08.2007 and 28.09.2007 respectively.
II. High probability of death of Pankaj caused by the shot accidentally fired by Dharmendra from his licensed revolver.
(i) Admittedly, P.W.-3 had purchased the Revolver only two months before the incident. He had not used the revolver before the night of the incident.
(ii) P.W.-3 and Pankaj (deceased) were standing side by side at a distance of 1-2 feet. Post mortem report shows that there was charring on the margins of entry wound of Pankaj was from very close range.
(iii) As per the prosecution version, there was a distance of 4-5 feet between Pankaj and the barrel of the fire-arm of accused persons. Thus, charring could not be caused by the alleged fire arm shot of the accused.
(iv) P.W.-3 seems to have been on run after the incident. He allegedly first went to Khalilabad District Hospital but did not inform the doctor about the nature and cause of his injury. From there, he went to Gorakhpur Medical College but did not get admitted there. Then to Savitri Hospital, Gorakhpur and finally to Nova Hospital, Lucknow shows he did not want the doctor of Government Hospitals to inform the police about his gun shot injury.
(v) He did not know about the burning of the revolver.
(vi) He never made by complaint to concerned authorities that his licensed revolver had been snatched by Raman Pal. It creates further doubt about the story of snatching the revolver developed by prosecution after much delay.
(vii) After the suggestion in cross-examination that injury to Pankaj was caused by accidental shot fired by him from his revolver, Dharmendra claimed his revolver was unloaded.
III. Burden to proof and presumptions under Evidence Act.
(i) The burden of proving the circumstances in which the revolver with 5 empty cartridges was found on the site of incident was upon Dharmendra under Section 106 of the Evidence Act. The alleged explanation given by Dharmendra that the revolver was snatched/robbed from him by Raman Pal on exhortation of Brijesh Pal was disbelieved even by the prosecution as it consciously did not get charge under Section 394 I.P.C. framed and the same was not proved.
(ii) In case of bullets getting fired due to heat and not by pulling of trigger, the bullet would not leave/eject from the revolver and would be still there with the empty cartridge in the cylinder of the revolver. However, no bullet was found with the revolver in the gypsy and there were no holes or dents on the gypsy.
(iii) Since the prosecution withheld the revolver and the cartridges, there would be a presumption under Section 114(g) that if produced, it would have been unfavourable to the definite case of the prosecution.
IV. Credibility and reliability of Ravindra Pratap Shahi (P.W.-1); Hanuman Yadav (P.W.-2) and Dharmendra Pratap Shahi (P.W.-3) has been doubted in the above noted circumstancs.
V. By withholding Santosh Pal, the prosecution has prevented the true version of the occurrence by narrating before the Court.
VI. Report of the Forensic Science Laboratory has been doubted as inclusive and influenced by the prosecution making a loaded query without making any effort to match the bullet fired either with the rifle or country made pistol or the burnt revolver.
VII. The with respect to the appeal against acquittal of Brijesh, it has been submitted:
(i) Specific prosecution case that Pankaj was shot dead by Brijesh by his licensed rifle in FIR and P.W.-1, 2 and 3.
(ii) Charring on wound of deceased as per post mortem suggests firing from close range. However, as stated above, P.W-1 and P.W-3 stated that there was a distance of 4-5 ft from barrel of gun to deceased. Not possible.
(iii) Application 137Kha dated 28.09.2007 given by Brijesh Pal to send rife, revolver and pistol to ballistic for determination of flame etc. rejected by trial court vide order dated 28.09.2007. A482 No. 25865/2007 dismissed by High Court on 12.11.2007 observing that view of trial court that same can be determined by Book of Ballistic Science is correct.
(iv) Thus, various books and authorities on ballistic science were placed before trial court through a memorandum of arguments on 17.01.2008 which is treated to be part of record under Section 314 Cr.P.C.
(v) Some relevant portions of the written submissions, wherein Books of Ballistic Sciences have been quoted are being reproduced herein.
(vi) Modi's Medical Jurisprudence and Toxicology 16 Edition 1967, Page 233 under Heading "Distance of Fire Arm" states that "If the fire arm is discharged very close to the body, tissues over an area of 2 or 3 inches around the wound of entrance and surrounding skin is usually scorched. The clothes covering the part are burnt from the flame. No scorching is found if discharge is from distance of more than 5 feet."
(vii) S.N. Gaur's Medical Jurisprudence 6th Ed. 1997, states that "Scorching is known as burning and charring. Scorching is discoloration of skin and tissues from burning by flame or hot gases that issues from the fire arm barrel. Scorching is never caused by a hot projectile and is clear indication that the fire arm is discharged from a close range. The presence of scorching is almost proof that the fire arm was discharged within few inches".
(viii) Jhalla's Medical Jurisprudence, 6th Ed. 1997, Page 394 states "The effects of flame are invariably encountered in close proximity of the firearm. This distance does not extend beyond few inches. This may manifest in from of burning or scorching of skin. The presence of burning forms one of important feature of the wound of entry and absence of burning rules out close proximity of firing."
(ix) Moreover, DW6 who is a ballistic Science expert and posted at Government Forensic Science Laboratory gave his expert opinion that a rifle has 20-22 tonne pressure on firing and bullet travels upto 1000m (Page 207). In cross he has stated that his opinion is based on experience and all rifles have similar range. (page 208).
(x) Trial Court in pursuance to its earlier order affirmed by High Court as stated above, placed reliance upon above settled principles of Ballistic Science, expert opinion and nature of injury found on deceased and came to a conclusion that such injury could not be caused by a licensed rifle when shot at close range and thus, deceased could not be shot by rifle of Brijesh.
VIII. Last submission has been advanced on the strength of alibi and challenge as to genuineness of the police claim as to arrest of Brijesh Pal.
107. Then, by way of principle, reliance has been placed by learned counsel for the appellant on:
(i) Anand Ramachandra Chougule vs Sidarai Laxman Chougala & Ors., AIR 2019 SC 3871 to submit (a) the burden lies on the prosecution to prove the allegations beyond all reasonable doubt. In contradistinction to the same, the accused has only to create a doubt about the prosecution case and the probability of its defence; (b) The fact that a defence may not have been taken by an accused under Section 313 Cr.P.C. again cannot absolve the prosecution from proving its case beyond all reasonable doubt; (c) The fact that an F.I.R. was lodged by the accused with regard to the same occurrence, the failure of the police to explain why it was not investigated, coupled with the admitted fact that the accused were also admitted in the hospital for treatment with regard to injuries sustained in the same occurrence, but the injury was not brought on record and suppressed by the prosecution, creates sufficient doubts which the prosecution has been unable to answer.
(ii) Khema alias Khem Chandra Etc. vs State of Uttar Pradesh, AIR 2022 SC 3765 to submit, in the present case, the quality of evidence led by the prosecution is not wholly reliable. In absence of due corroboration, a benefit of doubt arises in favour of the defence.
(iii) Shahid Khan vs State of Rajasthan, (2016) 4 SCC 96 to submit delay in recording the statement of the injured witness leads to a reasonable doubt as to his credibility. In absence of due corroboration, it may be disbelieved.
(iv) Krishnegowda & Ors. vs State of Karnataka by Arkalgud Police, (2017) 13 SCC 98, to submit where medical evidence contradicts ocular account and contradictions exist, a benefit of doubt may be given to the defence.
(v) Hem Raj & Ors. vs State of Haryana, AIR 2005 SC 2110, to submit non-examination of independent witness, where available, may amount to serious infirmity.
(vi) H.D. Sundara & Ors. vs State of Karnataka, (2023) 9 SCC 581, to submit the order of acquittal may not be interfered with only in limited legal circumstances.
108. Shri O.P. Singh, learned Senior Advocate appearing for the accused Raman Pal would submit, he has been needlessly roped in. The admitted contest of election was between the first informant Ravindra Pratap Shahi and the accused Brijesh Pal. The appellant Raman Pal was only a simple party worker of Brijesh Pal. His house was about 3 kms from the place of occurrence. No specific role came to be assigned to him. As to source of light and the presence of witnesses, he has adopted the submissions advanced by Shri Dileep Kumar, learned Senior Advocate.
109. As to his arrest, it has been submitted, the occurrence took on the night of 24.10.2006. The appellant Raman Pal was arrested on 29.10.2006. He suffered physical torture while in police custody. The medico-legal report clearly establishes that fact. Therefore, the recoveries attributed to him are wholly bogus. There is no independent witness of such recovery. He has been wrongly convicted by applying Section 34 I.P.C. The only independent witness Santosh Pal named in the prosecution story, was not examined.
110. The whole story is fabricated. Considering the poor source of light, in the absence of any recovery of torch and in the absence of any motive assigned to the present appellant, there is no credible material or evidence to sustain his conviction. In any case, he was given the only role of brandishing a country made firearm while the role of firing was assigned to the accused Brijesh Pal and Devesh Pal. He has relied on Mahbub Shah vs Emperor, AIR 1945 PC 118; Pulukuri Kottaya vs King Emperor, AIR 1947 PC 67; Rambilas Singh and Ors. vs State of Bihar, AIR 1989 SC 1593; Kalicharan & Ors. vs State of Uttar Pradesh, (2023) 2 SCC 583 and, Babu Sahebagouda Rudragoudar & Ors. vs State of Karnataka, (2024) 8 SCC 149.
111. Replying to the above, Shri Patanjali Mishra, learned A.G.A.-I would submit, the occurrence is real. One person died and other was injured. Both suffered firearm injuries. Ocular evidence exists both in the shape of non-injured person who were naturally present at the place and time of the occurrence namely Ravindra Pratap Shahi alias Pappu Shahi (P.W.-1) and Hanuman Yadav (P.W.-2) and also an injured witness Dharmendra Pratap Shahi (P.W.-3). Minor inconsistencies and embellishments apart, basic nature of the pre-planned occurrence, is wholly proven. Once the defence itself claims that persons on its side had received injuries in the same occurrence and has made named accusation against the informant side, the source of light may never be doubted. Considering both sides were known from long before and they were political rivals, no doubt may exist, as to the identification of the accused persons. Both sides were known to the other well enough to recognise the other even if good source of light was not available.
112. As to the injury suffered by the deceased and the reliance placed on the evidence of Dr. Anwar Jamal (D.W.-6), it has been submitted, that expert did not prove that the injury suffered by the deceased may not have been caused with a rifle.
113. Besides the fact that Ahilya Pal (D.W.-7) and Brijesh Pal (D.W.-10) have made self-serving statements - those witnesses being husband and his wife with Brijesh Pal being the main accused, it is undisputed that their house was at a short distance of about 550 metres from the place of occurrence. The alibi set up that Brijesh Pal was sitting at his house, barely 500 metres from the place of occurrence, is wholly unbelievable in the context of the defence case that the election campaigning was continuing.
114. Then, it has been submitted, the testimony of P.W.-1 and P.W.-2, is wholly reliable. The learned court below has not disbelieved their presence. In any case the injured witness has clearly and fully described the occurrence. No material doubt arose despite a long and extensive cross-examination of that witness.
115. To that extent, the learned court below has completely erred in disbelieving the evidence led by Ravindra Pratap Shahi (P.W.-1), Hanuman Yadav (P.W.-2) and the injured witness Dharmendra Pratap Shahi (P.W.-3), that the firearm injury suffered by the deceased was caused by Brijesh Pal with his licensed rifle and to the extent there is no evidence received at the trial to disbelieve the prosecution claim that the injury suffered by the deceased had been caused by that rifle, the Government Appeal itself deserves to be allowed.
116. To the extent, all the charged accused had participated in the occurrence with pre-planning and common intent, they all must be convicted and sentenced accordingly. He has relied on Chandrappa & Ors. vs State of Karnataka, (2007) 4 SCC 415 and Jarnail Singh & Ors. vs State of Punjab, (2009) 9 SCC 719.
117. Shri Dharmendra Pratap Singhal, learned Senior Counsel appearing for the informant would submit that the defence submission to doubt the presence of Ravindra Pratap Shahi alias Pappu Shahi (P.W.-1) and Hanuman Yadav (P.W.-2), is wholly misconceived. The defence theory overlooks and ignores the basic assertion made by those witnesses that Pankaj Kumar Shahi, the deceased and Dharmendra Pratap Shahi (P.W.-3/injured) were shot at for two reasons - first, they were near relatives of Ravindra Pratap Shahi alias Pappu Shahi; second, on the exhortation offered by Brijesh Pal to kill Ravindra Pratap Shahi alias Pappu Shahi (P.W.-1), the said Pankaj Kumar Shahi and Dharmendra Pratap Shahi (who were in the front), had challenged the assailants. It is that challenge and their presence with the deceased at the front, led to them being fired at, first. Thus, the deceased Pankaj Kumar Shahi suffered the first gunshot injury caused by Brijesh Pal and the injured Dharmendra Pratap Shahi suffered the second injury caused by Dinesh Pal.
118. Second, it has been submitted, the lack of recovery of blood stained earth by the police may remain a blemish or error on the part of Investigation Officer. Perhaps reason of change of the Investigation Officer, may have forced that error. At the same time, referring to the medical papers of injury suffered by Dharmendra Pratap Shahi and more adequate clinching proof of such injury arising through evidence led by the doctors, the existence of that injury suffered by the injured Dharmendra Pratap Shahi, may never be doubted.
119. Third, referring to the FIR relied by the defence side, it has been submitted, the issue of source of light is wholly non-existent. Merely because that FIR allegations have been found not proven, it cannot therefore become open to the appellant side to claim that there was poor or no source of light.
120. Referring to the recovery of the burnt revolver, it has been stressed that no effective cross-examination was conducted to doubt the prosecution story on the strength of a simple recovery of such burnt firearm. While the prosecution witnesses had clearly disclosed the loss of that licensed firearm, the suggestion thrown at the prosecution witnesses that the firearm may have caused the injury in commotion/'aapa dhapi', is wholly vague. No specific suggestion was thrown at the witness Dharmendra Pratap Shahi that the accidental was occurrence caused by him.
121. What mistake the Investigation Officer may have committed in not immediately recording the recovery of the burnt revolver, is inconsequential. The fact that it was Case Diary material and therefore known to the defence from before, in absence of any doubt during the cross-examination conducted by the defence, the submission as has been advanced in these proceedings, may remain irrelevant.
122. The issue of distance from where the firearm may have been shot at the deceased and the injured, may also remain non-material. The issue of burning and charring, may remain non-conclusive as to the basic occurrence proved by the prosecution. Though issues involving ballistic/forensic opinion are matters that may be seen as corroborative criteria, at the same time, ocular evidence enjoys higher status - as substantive evidence. Such opinions may not be used to discard or disbelieve the otherwise credible ocular account. In the nature of opinions, the occurrence as described by a witness (to the best of his memory), may be relied over such opinion. Merely because some inaccuracy may exist or arise in the manner and extent to which an individual witness may be able to recall such traumatic experiences, the expert opinions may not be cited as a reason to doubt the truthfulness of such accounts. The ring of truth test may be sufficient to establish guilt beyond reasonable doubt.
123. To the extent, Dharmendra Pratap Shahi had established his presence at the place of occurrence, no real doubt exists to disbelieve his account of the occurrence.
124. Further, it has been submitted, once the defence chose to examine Brijesh Pal as a defence witness (herein D.W.-10), it was for the defence to lead evidence as to how the occurrence was caused. Without leading any evidence to that effect and without making any suggestion either during the cross-examination of Dharmendra Pratap Shahi (P.W.-3) or in his statement recorded under Section 313 Cr.P.C., such submission may not be advanced, at this stage.
125. Even in the cross case that was registered by the appellant side, there was no description of firearm injury caused by Dharmendra Pratap Shahi or with his licensed revolver. Therefore, that claim is bogus.
126. As to the absence of Santosh Pal, it has been submitted, there was no disability with the defence to examine him as a witness when the defence chose to examine not less than 15 witnesses.
127. He has relied on Saddiq & Ors. vs State, 1980 SCC OnLine All 614; Jasbir & Ors. vs State of Haryana, AIR 2003 SC 554; State of U.P. vs Sheo Sanchi & Ors., AIR 2004 SC 4974; Shamsher Singh Verma vs State of Haryana, (2016) 15 SCC 485; Shyam Narayan Ram vs State of U.P. & Anr., (2025) 1 All LJ 61 and, Naveen Panchal vs State of NCT of Delhi & Ors., (2025) 316 DLT 315.
128. Having heard learned counsel for the parties and having perused the record, in the first place, the occurrence took place on 24.10.2006 at about 10:30 p.m. To that extent, there is no doubt expressed by the defence. Even, as to the place of occurrence where Pankaj Kumar Shahi was killed, there is no doubt. That occurrence took place outside the house of Shree Ram Gupta. There is also no doubt that the occurrence took place on the third night of Diwali. Doubt has been expressed only if Dharmendra Pratap Shahi (P.W.-3) was injured in that occurrence and at that place.
129. Second, it is also undisputed to the defence that the occurrence took place in the backdrop of an election for the Chairperson, Nagar Panchayat, Hariharpur, contested by the first informant Ravindra Pratap Shahi alias Pappu Shahi and the acquitted accused Brijesh Pal. It is also undisputed to the defence that both sides were related (though not very closely) and in any case, they were known to each other long before. In that, it is further not disputed, upon the formation of Nagar Panchayat, Hariharpur, the acquitted accused Brijesh Pal was elected its Chairman. Later, the mother of the first informant Ravindra Pratap Shahi alias Pappu Shahi, was elected as the Chairperson of that Nagar Panchayat. Existence of civil dispute between the parties coupled with pre-existing political rivalry is also not disputed.
130. Seen in that light, it is difficult to accept the first premise the submission advanced by learned Senior Counsel for the accused persons that the victim side had no opportunity to identify the assailants side as it was very dark and there was no source of light available. Both sides being known from before (to the other) and being involved in a local election contest, their identification by the other may not be doubted. The victim side was returning from an election campaign at Chaubey Tola when they meet up with the assailant side at a place described in front of the house of Shree Ram Gupta (while the accused side was going to Chaubey Tola). Both sides were travelling in motorcycles. The suggestion by the defence that there were no street lamps or other strong source of light inheres in it the natural occurrence that motorcars used by both sides therefore would have their head lamps on, from before. Since it is not disputed to the defence that both sides were travelling in motorcars of which ample evidence otherwise exists - in the shape of admission of four motorcars of accused side burnt after the occurrence, at the same place, it is safe to accept the prosecution version that the assailants were identified in the light of the head lamps of such motor vehicles. To the extent parties were known to each other from before and to the extent heated altercation is described to have preceded the assault wherein both sides were standing close to each other, the basic premise of lack of source of light does not impress us, in facts such as these.
131. Then, it is equally true, the defence side also lodged the FIR against the victim side, with respect to the same occurrence. In that, clear narration exists of parallel identification of members of the victim side. That fact being not disputed to the defence and rather it having been relied in the course of hearing of this appeal itself, the issue of lack of source of light is decided against the accused persons.
132. Second, as to lack of recoveries of samples of blood stained earth and empties from the place where Dharmendra Pratap Shahi fell, we note, the occurrence is described to have been caused between two sides who were engaged in election campaigning. Both sides were accompanied by their supporters. In that, the prosecution has narrated upon the occurrence being caused, commotion arose and people ran. At least four motor vehicles were set ablaze. It is not difficult to imagine that in that situation, the integrity of the crime scene was not preserved. Also, we are mindful that the occurrence is of 10:30 P.M.
133. Third, it is a settled principle in law that deficiencies of Investigation Officer in making such recoveries may not give rise to any reasonable doubt in favour of the accused persons. Therefore, the reasonable doubt sought to be raised on that strength, is found not existing.
134. Fourth, as to the presence of Ravindra Pratap Shahi alias Pappu Shahi (P.W.-1) and Hanuman Yadav (P.W.-2), they clearly established their presence at the place of occurrence before it was caused. As noted above, Ravindra Pratap Shahi alias Pappu Shahi was contesting the election whereas Hanuman Yadav (P.W.-2) was supporting him in that election. The occurrence was caused upon clash between the two during that election campaign conducted by them. Ravindra Pratap Shahi alias Pappu Shahi (P.W.-1) described, he was returning from an election campaign with his supporters. That description itself makes the presence of Ravindra Pratap Shahi alias Pappu Shahi (P.W.-1) wholly natural. The candidate contesting the election leads the campaign helped by his supporters. During his cross-examination, Ravindra Pratap Shahi alias Pappu Shahi (P.W.-1) stated, he was returning from an election rally at Chaubey Tola. Therefore, no reasonable doubt exists as to the presence of Ravindra Pratap Shahi alias Pappu Shahi at the time of occurrence.
135. His presence cannot be doubted for reason of his first rushing to his house, after the occurrence and proceeding to the police station therefrom. In the occurrence as narrated by the said Ravindra Pratap Shahi alias Pappu Shahi (P.W.-1) wherein the assault with firearm was actually initiated to eliminate him from the election contest, the first effort of his supporters and well wishers and even himself may have been to rush to a place of safety to escape the ambush. Therefore, the fact he rushed to his house for safety after the occurrence wherein Pankaj Kumar Shahi was killed and Dharmendra Pratap Shahi was injured, is also natural.
136. We also found no reasonable doubt his presence or his conduct in rushing for his personal safety, leaving the dead and the injured no the spot. Chivalry is not the test of prudent behaviour. The fact that Ravindra Pratap Shahi alias Pappu Shahi (P.W.-1) first cared for his personal safety and therefore rushed to his house where he may have felt safe, may not be doubted. A chivalrous person may opt to resist the assault or to save his own family members, friends and supporters, while a not so brave or courageous person may panic and first try to save his own life. That, the witness Ravindra Pratap Shahi alias Pappu Shahi appears to have done. We may not judge his lack of courage or chivalry to stand ground to doubt his presence, for that reason.
137. Similarly, Hanuman Yadav (P.W.-2) established his presence as a supporter of Ravindra Pratap Shahi alias Pappu Shahi (P.W.-1). No doubt emerged during his cross-examination that he was not present. No cross-examination exists to doubt his presence at the place of occurrence as a supporter of Ravindra Pratap Shahi alias Pappu Shahi (P.W.-1). Besides his presence at the beginning of the occurrence, in front of the house of Shree Ram Gupta, he further proved Brijesh Pal was armed with a rifle, while Raman Pal and Devesh Pal were armed with country made pistols. Brijesh Pal, the acquitted accused first hurled expletives at Ravindra Pratap Shahi alias Pappu Shahi, Pankaj Kumar Shahi being supporter of the said Ravindra Pratap Shahi alias Pappu Shahi. Pankaj Kumar Shahi and Dharmendra Kumar Shahi challenged the aggressor (Brijesh Pal). At that moment, Brijesh Pal fired his rifle at Pankaj Kumar Shahi. The bullet hit him on his head and he died. Raman Pal and Devesh Pal fired at Dharmendra Pratap Shahi (P.W.-3), with their countrymade pistols. The shot fired by Devesh Pal hit Dharmendra Pratap Shahi (P.W.-3) on his arm. He fell in front of the gate of Shree Ram Gupta. Thereafter, at the instigation of Brijesh Pal, Raman Pal snatched the revolver of the injured Dharmendra Pratap Shahi (P.W.-3) and he alongwith Devesh Pal drove in their Gypsy vehicle towards their house.
138. Thereafter on the instruction given by Ravindra Pratap Shahi alias Pappu Shahi (P.W.-1), Santosh Pal arrived and took Dharmendra Pratap Shahi (P.W.-3) to the hospital. At the same time, the vehicles had been set ablaze.
139. During his cross examination, no real doubt emerged either as to his presence or as to the narration of the occurrence made by him. It was not doubted that the said witness was a supported/party worker of Ravindra Pratap Shahi alias Pappu Shahi, in his election campaign. Thus, as with Ravindra Pratap Shahi alias Pappu Shahi, his presence is natural. As to the exact occurrence and the sequence in which it is described, no over emphasis may be laid to trivialities doubt his version. It is undoubted that the victim side was unprepared for the occurrence. It is proved that they were returning from the day's election campaign. It is also proved that they were suddenly caught up in a situation where Pankaj Kumar Shahi died on being shot at with a fire arm. To the extent presence of Hanuman Yadav (P.W.-2) is fully established, the minor inconsistencies, if at all in his narration may not break the 'ring of truth' spoken by the witness, to the Court. His account of the occurrence is wholly consistent to that offered by Ravindra Pratap Shahi alias Pappu Shahi (P.W.-1)-as discussed above. For the same reasons, we have no reason to doubt his version either.
140. In State of U.P. v. M.K. Anthony, (1985) 1 SCC 505, the Supreme Court observed as under:
"10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross-examination is an unequal duel between a rustic and refined lawyer."
(emphasis supplied)
141. As to the presence of Dharmendra Pratap Shahi (P.W.-3), it may first be noted that he was presented by the prosecution as an injured witness. He too is a near relative and close associate of Ravindra Pratap Shahi alias Pappu Shahi (P.W.-1) who was contesting the election against Brijesh Pal. In fact, he is the brother of Ravindra Pratap Shahi alias Pappu Shahi (P.W.-1) and cousin brother of the deceased Pankaj Kumar Shahi. For the reasons discussed, in the context of presence of Ravindra Pratap Shahi alias Pappu Shahi (P.W.-1) and Hanuman Yadav (P.W.-2), presence of those witnesses at the time and place of occurrence is natural. Again for reasons discussed above, the identification of the accused made by this witness may not be doubted. He proved that upon Brijesh Pal got down from his vehicle with a rifle to abuse his brother Ravindra Pratap Shahi alias Pappu Shahi. He hurled expletives and words to the effect that he would not allow Ravindra Pratap Shahi alias Pappu Shahi to contest the election. Said behaviour of Brijesh Pal was challenged by the said witness and the deceased Pankaj Kumar Shahi. On that challenge, Brijesh Pal shot at Pankaj Kumar Shahi, with his rifle. At that time, Devesh Pal and Raman Pal armed with countrymade pistol fired at that witness. The fire arm shot by Devesh Pal hit him on his hand, as he moved. Thereafter, on the instigation of Brijesh Pal, Raman Pal snatched his revolver from the waist band and fled - firing 2-3 more shots fired in the air.
142. Thereafter, he was taken to Khalilabad hospital by Santosh Pal and from there he was referred to Gorakhpur Medical College where, after his medical examination he was sent to Savitri hospital and from there he went to Nova Hospital, Lucknow for surgical treatment.
143. During his cross-examination, no grave doubt appeared as to his presence. Insofar as his injuries are concerned, Dr. R.S. Singh (P.W.-5) proved that he had examined the injured Dharmendra Pratap Shahi (P.W.-3) at about 1.30 a.m. on 25.10.2006 i.e. during the night of the occurrence itself. He proved that the injury suffered by the witness had charring and tattooing. There were two fire arm injuries - 1 through and through being 1 cm x1 cm at entry and 2 cm x 2 cm at exit. He also proved that the injured was brought to him by Santosh Pal son of Gajendra Pal and that the injured was bleeding profusely, at that time. That Injury Report was proven as Ex.Ka-3. During cross-examination of that doctor, no reasonable doubt appeared as may discredit the opinion of that medical expert either that the injured was shown to him on 25.10.2006 at 1.30 a.m. or to doubt the nature of injuries proved by him or that the injured was taken to the said doctor by Santosh Pal.
144. Thus, as to the presence of the prosecution witnesses, including the injured witness, we find no reason to doubt the same. What then survives for our consideration is, if those witnesses have spoken the complete truth, as to the occurrence being caused by the accused side. Here we are mindful, once the presence of the injured witness Dharmendra Pratap Shahi (P.W.-3) is established, heavy burden lies on the defence to dislodge his testimony. In that regard, on the issue of the revolver of Dharmendra Pratap Shahi (P.W.-3), it is true that the presence of that revolver with the injured up to the point when he was injured, is established. However, he maintained that he never used or brandished that revolver at any time. On the contrary, he had retained it in his waist band. That itself does not create any doubt. At no point any doubt emerged that the said witness was holding that revolver in his hand. Then, through defence cross-examination, it stood established that the said Dharmendra Pratap Shahi (P.W.-3) had purchased that revolver, a few months earlier. He had no training to use that fire arm. Therefore, merely because he was carrying the fire arm with him during conduct of the election campaigning of his real brother Ravindra Pratap Shahi alias Pappu Shahi, it may not be readily accepted that he had used the same.
145. Remarkably, the defence has not doubted that an altercation was caused (wherein the deceased suffered the fatal injury). In that it has not been doubted that the altercation emerged at the instance of the defence party. No doubt was created through any question put to any witness, during their respective cross-examinations that the altercation was caused in any other manner. Thus, altercation and therefore, the occurrence was initiated by the accused side wherein Brijesh Pal first hurled vulgar expletives at Ravindra Pratap Shahi alias Pappu Shahi and proclaimed, he would not allow the latter to contest the election. It has also been effectively proven by the prosecution that the deceased Pankaj Kumar Shahi and the injured Dharmendra Pratap Shahi (P.W.-3) challenged Brijesh Pal, at that time. Being at the front, that challenge was met with a fire arm injury caused to the deceased Pankaj Kumar Shahi on his head and to Dharmendra Pratap Shahi (P.W.-3) that landed on his hand. After that occurrence, the fire arm of Dharmendra Pratap Shahi (P.W.-3) was snatched from his waist band, by Raman Pal and Devesh Pal who rushed to their Gypsy vehicle, to make good their escape.
146. Though, the Investigation Officer may have acted with some delay in recording recovery of the burnt Gypsy vehicle and the burnt revolver of Dharmendra Pratap Shahi (P.W.-3) (recovered from that burnt motor vehicle), no reasonable doubt may emerge in the prosecution story, on that count. Five empty cartridges found lodged in the cylinder of the revolver, may not prove that a sixth bullet in that cylinder had been fired in the occurrence. There is no basis to introduce that doubt. The evidence led by Dharmendra Pratap Shahi (P.W.-3) to the extent that he never used fire arm during the occurrence, remained unshaken. We may be reminded, even in the cross case lodged by the accused side, did not contain that narration.
147. What then survives is a deficiency on part of the Investigation Officer in promptly accounting for the burnt revolver of the injured Dharmendra Pratap Shahi (P.W.-3). It may only be a deficiency of investigation but not a contradiction in the prosecution story. In view of the above, no reasonable doubt is seen to arise for reason of burnt revolver of Dharmendra Pratap Shahi (P.W.-3) not promptly account for by the Investigation Officer or for reason of it not produced as a material exhibit, at the trial.
148. As to non-examination of Santosh Pal, we find no reasonable doubt in the prosecution story. The prosecution remains at liberty to seek discharge of a witness or to produce only such witnesses as it deems sufficient to prove its case. To the extent, there is no doubt arising from the deposition made by the three eye witnesses namely Ravindra Pratap Shahi alias Pappu Shahi (P.W.-1), Hanuman Yadav (P.W.-2) and Dharmendra Pratap Shahi (P.W.-3), non-examination of Santosh Pal is of no consequence. Suffice to note, inasmuch as the defence has relied on atleast 15 defence witnesses including police officials, ballistic expert of FSL and others, it also chose not to examine Santosh Pal as a defence witness.
149. Insofar as the forensic/ballistic evidence is concerned, it may remain secondary to the issue, in the proven facts of this case. In the first place, medical evidence did not totally disprove or contradict the ocular account. Similarly, the forensic evidence also did not contradict the ocular account. Mere expression of a possibility contained in such expert opinions may not create a reasonable doubt in the otherwise reliable ocular evidence, once that found free from reasonable doubt. To the extent, the presence of the ocular witnesses is proven beyond reasonable doubt and to the extent that presence was wholly natural and further to the extent those natural witnesses have proven the occurrence which narration has not been directly contradicted by the medical opinion and the ballistic opinion, we may not look at that issue any deeper. For the purposes of a reasonable doubt, expert opinion should be of such high credibility and conviction as may dislodge the ocular version or render it unsustainable or irreconciliable. Short of that, such opinions may not be over relied to disbelieve the otherwise truthful prosecution story, narrated by the ocular witnesses.
150. To the extent, it is not established that the single fire arm injury suffered by the deceased Pankaj Kumar Shahi may never have been caused by a rifle shot and to the extent the medical opinion read with ballistic report does not rule out the possibility that such injury may have been caused by the licensed rifle of Brijesh Pal, the ocular evidence that such injury was caused by Brijesh Pal with his rifle, must find acceptance to the Court inasmuch as that ocular evidence has been led by the witnesses whose presence has been found to be natural and who may had no motive to make false accusation against the accused persons including Brijesh Pal.
151. The plea of alibi set up by Brijesh Pal is of very low, if not of no evidentiary value. His house being at walking distance from the place of occurrence, it is equally probable that he would have reached that place after causing the occurrence. We are also mindful that the occurrence was caused not by way of a stray incident that may have been witnessed between the parties but pre-planned, in the course of hotly contested election campaign between Brijesh Pal and Ravindra Pratap Shahi alias Pappu Shahi. The election itself was scheduled for 3rd November 2006 whereas the occurrence took pace at the night of 24.10.2006, where the assailant side was going to attend an election rally, while the other was returning therefrom. Quite naturally the election campaigning of both sides would have been at a high pitch if not at its peak. Also, there is corroborative material to indicate that not only Brijesh Pal and his close associates but other supporters were present as was the case with the informant side led by its candidate for that election Ravindra Pratap Shahi alias Pappu Shahi. In that setting of facts clearly proven by the prosecution, further corroborative material exists in the shape of vehicles burnt after the occurrence. In such facts, it is difficult if not impossible to admit of the defence suggestion that Brijesh Pal for whom the election campaign was being conducted (by the assailant side), was not present.
152. As to his presence and causing of the fatal injury to Pankaj Kumar Shahi the issue has already been discussed above. All three witnesses of fact have spoken in the same tongue. They have proven that Brijesh Pal led the charge by hurling expletives at his opponent Ravindra Pratap Shahi alias Pappu Shahi and threatening to kill him. Quite naturally, the supporters of Ravindra Pratap Shahi alias Pappu Shahi who were at the front, namely the deceased Pankaj Kumar Shahi and the injured Dharmendra Pratap Shahi, challenged Brijesh Pal. On that challenge, the first shot came to be fired at Pankaj Kumar Shahi, by Brijesh Pal. Preceding that transaction, it was clearly proven that as the two convoys met up, Brijesh Pal got down from his vehicle wielding his rifle. That clearly establishes his intent to cause the occurrence. What transpired thereafter leading to the assailants fleeing from the spot when at least four of their vehicles were set ablaze, corroborates that the accused persons were the assailants who may have suffered the wrath/reaction from the victim side and the general public, to the occurrence caused by them.
153. As to the injuries claimed by Raman Pal and Devesh Pal, no undue benefit may be given for reason of such injuries. It is settled law that minor injuries even if not explained by the prosecution may not be relied to doubt the prosecution story. That principle commends to us to not look at that issue beyond this point. Suffice to note, none of the injuries set up by the defence was serious or one caused with use of fire arm.
154. Coming to the Government Appeal, as to the findings returned by the learned court below to doubt the presence of Ravindra Pratap Shahi alias Pappu Shahi (P.W.-1) and Hanuman Yadav (P.W.-2), we may note, the learned court below may have erred in principle in doubting the presence of those witnesses without any cogent material to base its conclusions. It has evolved and applied a wholly subjective criteria that their presence was not natural. In doing that it has completely overlooked the fact that the election campaign in which the occurrence was caused was in support of the candidature of Ravindra Pratap Shahi alias Pappu Shahi who was returning from a rally at Chaubey Tola. No doubt was expressed by the defence to that basic fact assertion by the prosecution. Neither as to that rally being organised for the benefit of Ravindra Pratap Shahi alias Pappu Shahi nor his attendance at the same nor the fact that he was returning therefrom, were doubted. In fact the defence theory, even today, appears to be of accidental firing caused by the injured Dharmendra Pratap Shahi. The plea of alibi set up by Brijesh Pal apart (which may find no credence in the eyes of law), the presence of those witnesses may not have been doubted on imagined facts.
155. The learned court below has erred in doubting the presence of the witnesses for the reason of other conclusions drawn on the strength of medical opinion. We feel that a fundamental error has crept in the order of the learned court below, on that count. The rule of evidence would commend to first ascertain the presence of the witnesses and to test if the medical opinion negates the ocular account. To the extent, the learned court below may have inverted that process, a patent error of law has crept in its reasoning.
156. Also, to the extent there was an unbroken ring of truth in the evidence led by Ravindra Pratap Shahi alias Pappu Shahi (P.W.-1), Hanuman Yadav (P.W.-2) and Dharmendra Pratap Shahi (P.W.-3), their presence may not have been doubted on simple inconsistencies or certain facts that may not have been wholly explained by those witnesses. A witness of fact may only be required to prove the occurrence beyond the element of reasonable doubt on the anvil of well established tests in law. To the extent their presence is established and they proved the occurrence without material contradictions or improvements or omissions, their depositions may not be doubted on each and every inconsistency or doubt. Reasonable doubt must be shown to exist with respect to the basic narration of the occurrence and not with respect to peripheral issues such as how many bullets may have remained in the cylinder of the revolver of Dharmendra Pratap Shahi (P.W.-3) or how he came to be sent to the hospital or how Hanuman Yadav (P.W.-2) got dropped after the FIR was lodged.
157. In Dhanna v. State of M.P., 1996 VOL 10 SCC 79, it was observed as under:
Though the Code does not make any distinction between an appeal from acquittal and an appeal from conviction so far as powers of the appellate court are concerned, certain unwritten rules of adjudication have consistently been followed by Judges while dealing with appeals against acquittal. No doubt, the High Court has full power to review the evidence and to arrive at its own independent conclusion whether the appeal is against conviction or acquittal. But while dealing with an appeal against acquittal the appellate court has to bear in mind: first, that there is a general presumption in favour of the ignorance of the person accused in criminal cases that presumption is only strengthened by the acquittal. The second is, every accused is entitled to the benefit of reasonable doubt regarding his guilt and when the trial court acquitted him. He would retain that benefit in the appellate court also. Thus, appellate court in appeals against acquittals has to proceed more cautiously and only if there is absolute assurance of the guilt of the accused, upon the evidence on record, that the order of acquittal is liable to the interfered with or disturbed. (Durgacharan Naik and ors. v. State of Orissa, AIR 1966 SC 1775, Caetand Piedade Fernandes & Anr. v. Union Terriroty of Goa, Daman & Diu, Panaji. Goa, AIR 1977 SC 135, Tota Singh and Anr. v. State of Punjab, AIR 1987 SC 1083, Awadhesh and Anr. v. State of M.P., AIR 1988 SC 1158, Ashok Kumar v. State of Rajasthan, AIR 1990 SC 2134)
158. In Constable 907 Surendra Singh and another, 2025 SCC Online SC 176, the Supreme Court observed as under:
11. Recently, in the case of Babu Sahebagouda Rudragoudar v. State of Karnataka, (2024) 8 SCC 149 a Bench of this Court to which one of us was a Member (B.R. Gavai, J.) had an occasion to consider the legal position with regard to the scope of interference in an appeal against acquittal. It was observed thus:
38. First of all, we would like to reiterate the principles laid down by this Court governing the scope of interference by the High Court in an appeal filed by the State for challenging acquittal of the accused recorded by the trial court.
39. This Court in Rajesh Prasad v. State of Bihar [Rajesh Prasad v. State of Bihar, (2022) 3 SCC 471 : (2022) 2 SCC (Cri) 31] encapsulated the legal position covering the field after considering various earlier judgments and held as below : (SCC pp. 482-83, para 29)
29. After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words : (Chandrappa case [Chandrappa v. State of Karnataka, (2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325], SCC p. 432, para 42)
42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Criminal Procedure Code, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, substantial and compelling reasons, good and sufficient grounds, very strong circumstances, distorted conclusions, glaring mistakes, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of flourishes of language to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.
40. Further, in H.D. Sundara v. State of Karnataka [H.D. Sundara v. State of Karnataka, (2023) 9 SCC 581 : (2023) 3 SCC (Cri) 748] this Court summarised the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378CrPC as follows : (SCC p. 584, para 8)
8...8.1. The acquittal of the accused further strengthens the presumption of innocence;
8.2. The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence;
8.3. The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record;
8.4. If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and 8.5. The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.
41. Thus, it is beyond the pale of doubt that the scope of interference by an appellate court for reversing the judgment of acquittal recorded by the trial court in favour of the accused has to be exercised within the four corners of the following principles:
41.1. That the judgment of acquittal suffers from patent perversity;
41.2. That the same is based on a misreading/omission to consider material evidence on record; and 41.3. That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.
12. It could thus be seen that it is a settled legal position that the interference with the finding of acquittal recorded by the learned trial judge would be warranted by the High Court only if the judgment of acquittal suffers from patent perversity; that the same is based on a misreading/omission to consider material evidence on record; and that no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.
159. Tested on that principle, we find, the learned court below has committed a fatal error in the appreciation of evidence. To the extent, it has first made a subjective appreciation of the narration made by the key fact witnesses, namely, Ravindra Pratap Shahi alias Pappu Shahi (P.W.-1), Hanuman Yadav alias Changu (P.W.-2) and Dharmendra Pratap Shahi (P.W.-3) and thereafter examined the reliability of their testimony. In doing that, the learned court below may have lost sight of primacy that may be attached to the presence of such witnesses, especially an injured witness. If the presence of the injured witness is established, as in the present case, the other aspects or doubts arising from some inconsistencies or embellishments or omissions, etc. may be considered with a pinch of salt, as the testimony of such a witness may not be lightly disbelieved. As noted above, the learned court below may have inverted the process of making that enquiry by doubting the substantive evidence led by such injured witness on its subjective evaluation of the attending circumstances. To that extent, the reasoning offered by the learned court below may safely be described as perverse, being against the settled principles of law, applicable to appreciation of evidence.
160. Accordingly, Criminal Appeal Nos. 939 of 2008 and 1210 of 2008 fail and are dismissed. The impugned judgement and order of conviction of the appellants Raman Pal and Devesh Pal alias Sonu Pal, is confirmed. Government Appeal No. 1917 of 2008 succeeds and is allowed. The impugned judgment and order dated 15.2.2008 so far as it has acquitted the accused Brijesh Pal, is set aside. The said accused person is convicted for the offence under Sections 302 and 307/34 I.P.C.
161. However, it is doubtful if Criminal Revision No. 1189 of 2008 may be maintained. Yet, we have heard learned counsel for the informant in the Government Appeal as we recognise that in any case the victim had a right to be heard, both in the Government Appeal as also by way of filing a victim appeal. Accordingly, Criminal Revision No. 1189 of 2008 is consigned to records.
162. As to sentencing, since the appellants - Raman Pal and Devesh Pal alias Sonu Pal are on bail, their bail stands cancelled. They shall surrender before the trial court concerned forthwith to serve the remaining sentence awarded to them. Failing that, trial court concerned may adopt coercive measures to secure their arrest and send them to jail. Upon the appellants Raman Pal and Devesh Pal alias Sonu Pal surrendering before the trial court, their bail bonds and sureties shall stand discharged.
163. Further, in view of the Government Appeal being allowed, the convicted accused Brijesh Pal is sentenced for life under Section 302 I.P.C., together with fine INR 8000/-, with default sentence three months. Further, against conviction under section 307/34 I.P.C., he is awarded imprisonment for seven years together with fine INR 2,000/-, with default sentence one month. He shall surrender forthwith before the trial court concerned and shall be lodged in jail to serve the sentence. Both the sentences shall run concurrently.
164. A copy of this judgment be transmitted to the Court concerned for necessary compliance. Compliance report be submitted to this Court, at the earliest. Office is directed to keep the compliance report on record. Pending application/s, if any, stand disposed of.
To Conclude:
(i) Criminal Appeal Nos. 939 of 2008 and 1210 of 2008 are dismissed.
(ii) Criminal Revision No. 1189 of 2008 is consigned to records.
(iii) Government Appeal No. 1917 of 2008 is allowed.
(Sandeep Jain,J.) (Saumitra Dayal Singh,J.)
September 2, 2025
Prakhar/Faraz