Vijay Singh vs State Of Uttar Pradesh on 26 May, 2017

[Cites 50, Cited by 0]

Allahabad High Court

Vijay Singh vs State Of Uttar Pradesh on 26 May, 2017

(Delivered by Hon'ble Dr. Vijay Laxmi,J.) The challenge in these criminal appeals is to the judgment and order dated 17.07.2003 passed by Additional Sessions Judge, Court No.3, Lucknow convicting accused Vijay Singh A-1 and Sanjeev Maheshwari alias Doctor alias Jeeva A-2 under sections 302/34 & 307/34 IPC. A-1 and A-2 are found guilty of charge under section 302/34 and 307/34 IPC and each one of them is sentenced to life imprisonment under Section 302/34 IPC. Both of them are also found guilty of charge under Section 307/34 IPC and sentenced to rigorous imprisonment for five years.

2. The background facts as highlighted by the prosecution are as follows:

The complaint was lodged by Sudhansu Dutt Diwedi S/o Devdatt Diwedi, R/o 3/141 Senapati Road (Ex. Ka-19) at Police Station-Kotwali Farukabad on 10.02.1997 at 1.45 a.m. stating that he himself and his family members and his uncle Bramhadutt Diwedi, M.L.A of B.J.P. (Ex-Minister) had come to Lohai Road at the house of Shri Hitesh Chandra Agarwal, to join the Tilak ceremony of Lalit, his son of Hitesh Chandra Agarwal on 09.02.1997 at night. His younger cousin Prabhu Dutt Diwedi, his uncle Haridutt Diwedi (chacha), Smt. Kushla Diwedi (aunty) his Mama Vijay Kumar Dubey (Kunnu Mama) were also present there. Brahmadutt Diwedi (in short D-1) came out of the ceremonial house to go back at about 12.00 O'clock. He also followed him alongwith Prabhudutt Diwedi, Vijay Kumar Dubey alias Kunnu Mama and the family members of Hitesh Chandra Agarwal, viz. Anuj, Udit and others. Brahmadutt Diwedi came to his ambassador car parked on the road. All followed him to his car. Brahmadutt Diwedi got seated on the left rear seat of his car, his gunner (in short D-2) and driver also got seated on the front seat of the car. Anuj, brother of Lalit reminded and had gone again inside the house to take Laddoo of Tilak. When he returned with Laddoo in packets (Dibbe) and gave packets to Brahmadutt Diwedi at that time suddenly accused Vijay Singh reached there with revolver in his hand. He approached the window of Brahmadutt Diwedi and fired shots on Brahmadutt Diwedi from close range. His three associates surrounded the car and started indiscriminate firing on which his gunner immediately came out of car and he proceeded towards the window of the driver. Before he could retaliate, shots were fired on him by the accused. Driver Rinku also suffered fire arm injuries. Hue and cry was raised by them on which the murderers fled away making fire in air Vijay Singh A-1 fled away towards Nala Machratta and others three in opposite directions towards chowk waving their weapons in air. They could not be chased due to terror. There was old enmity between Bramha Dutt Diwedi and Vijay Singh on account of which D-1 and D-2 were murdered under planned conspiracy. The three associates were not known to the witnesses but they were identified. He witnessed the incident which was seen by him and Prabhudutt Diwedi, Vijay Kumar Dubey, Manoj, Udit and Lalit. Girish Chand Agarwal alias Ramji Agarwal was also present there. Brahmadutt Diwedi, his gunner and driver were taken to Jain Nursing Home by him alongwith Udit, Lalit and Manoj, Mama and other persons in vehicle. Brahmadutt Diwedi and gunner were declared dead by Dr. Jain PW-4 and the injured Rinku was referred to the Lohia Hospital for his treatment and examination. He was taken to Lohia Hospital by him. The dead bodies of Brahmadutt Diwedi (for short D-1) and B.K. Tiwari (for short D-2) were kept in the Jain Nurshing Home. The three unknown accused were of average height and age, who were seen by the complainant and other witnesses in the light of the electricity and generator and were identified by them. This incident was seen by the complainant and by his brother Prabhudutt Diwedi, Vijay Kumar Dubey, Girish Chandra Agarwal and Sher Singh alias Rinku and others.

3. Ext. Ka-19 is the complaint given by the complainant at the police station. Chik FIR Ex.Ka-26 was prepared and case was registered against Accused-Vijay Singh and three unknown persons against identification with Case Crime No.109 of 1997 under sections 302, 120-B and 307 of IPC. The investigation was conducted by Sri O.P. Sharma, SHO, P.S. Kotwali, District Farukhabad upto 19.02.1997. The inquest reports were prepared. The dead bodies were sent for postmortem and postmortem reports were prepared. The recoveries of the empty cartridges and lead pieces were made by the police and team of Forensic Science Laboratory on 10.02.1997 and 11.02.1997 respectively. The recovery memos are Ext. Ka-74 and Ext. Ka-9.

4. The investigation was transferred to Central Bureau of Investigation (for short 'C.B.I.') vide notification No.823 T/6-11-97-89 M/97 dated 10.02.1997 under Section 6 of Delhi Special Police Establishment Act, 1947 read with consent notification No.228/11/97-A.V.D.-II, dated 19.02.1997 of UP State Government. The Case Crime No.RC 3(s)/1997-SIC -IV-LKO was registered in the C.B.I. On 20.02.1997 and thereafter the investigation was conducted by the CBI.

5. After incident accused Vijay Singh and his associates absconded. Proceedings under Section 82 & 83 Cr.P.C. were initiated against Vijay Singh who was arrested from Delhi on 02.03.1997. The accused Sanjeev Maheshwari A-2 along with Vijay Singh and two associates visited many places and stayed in various hotels and filled up the reservation requisition forms in disguised names to conceal their actual identity. The documents relating to entry register and departure, reservation slips etc. were collected by the CBI. A-2 was arrested by CBI on 22.04.1997 from Himalaya Coffee House, Meerut from whom a pistol/mouser and cartridges were recovered. The investigation was concluded and the chargesheets were submitted by the CBI.

6. Three Sessions Trials were conducted in this case. In Sessions Trial No.22 of 1998, four persons, namely, Vijay Singh A-1, Sanjeev Maheshwari A-2, Smt. Urmila Rajput A-3 and Panch Sheel Rajput A-4, in Sessions Trial No.23 of 1998, Balwinder @ Billoo @ Vakil@ Pandit A-5, and in Sessions Trial No.748 of 1998, Ramesh Thakur @ Sanjay A-6, Shiv Pratap Singh Tomar Advocate @ Cheenu A-7 and Pankaj Mishra A-8 were tried.

7. All the three trials were consolidated by the trial court vide order dated 01.05.1999 where leading case was Sessions Trial No.22 of 1998.

8. The charges were framed against A-1, A-2, A-5 and A-6 under Section 302/34 and Section 307/34 I.P.C. against A-1 to A-8 under Section 120B IPC, against A-8 under Section 212 IPC for harbouring offenders of murder vide charge dated 23.7.2001. The accused pleaded not guilty and claimed trial.

9. All the above mentioned Sessions Trial cases were decided vide impugned judgement dated 17.07.2003. The accused persons A-3, A-5, A-7 and A-8 were acquitted of charges by the Trial Court. The prosecuting agency has not filed any appeal against acquittal.

10. Accused A-6 died during pendency of trial and the case was abated against him vide order dated 04.04.2003.

11. Before delving into the real controversy and various contentions raised by learned counsel for both the parties, we would like to record certain circumstances which are relevant.

12. Offence was committed at about 12 Mid night on the intervening night of 9.2.1997 and 10.2.1997. Purportedly, the F.I.R. was registered at 1.45 a.m. on 10.2.1997, the same night. Charges were framed vide order dated 23.7.2001 i.e. after four years and five months of the incident.

13. As many as 67 witnesses have been examined by the prosecution to bring out its case. The witnesses were examined w.e.f. 16.8.2001 (when the examination of P.W.-1 was commenced) till 29.5.2003 (when the examination of P.W.-67 was concluded). Thus, the evidence was recorded for more than one year and nine months.

14. In reference to the record, it is revealed that examination of P.W.-67 Shri V.P.Arya, Dy.S.P., C.B.I. was started on 18.12.2002, however, was not concluded till 26.3.2003. Order passed by the trial court on 26.3.2003 demonstrates that counsel for the prosecution was absent in the court. The trial court has recorded that on one pretext or the other, prosecution is not completing examination-in-chief of the investigating officer for several months. Adjournment application was filed by the prosecution which was rejected and prosecution evidence was closed.

15. It appears that prosecution filed an application under Section 311 Cr.P.C. for recall of Shri V.P.Arya, Dy.S.P., C.B.I., P.W.-67 for examination which was allowed vide order dated 17.4.2003. It is thereafter that the examination and cross examination of Shri V.P.Arya was concluded on 29.5.2003.

16. Only 67 witnesses have been examined, although 148 witnesses were cited in support of the prosecution case. Sudhansu Dutt Diwedi PW-17, Prabhu Dutt Diwedi PW-18 & Vijay Kumar Diwedi PW-23 have been examined as eye-witnesses.

17. It is required to be noted that the first witness who was present at the place of incident, P.W-3 Shri Udit Agarwal was examined on 20.8.2001 i.e. after more than three years and six months of the incident.

18. The trial Court recorded the conviction and imposed sentences primarily placing reliance on the evidence of PW-17, PW18, both nephews of D-1 and PW23, brother-in-law of D-1, other ocular and medical evidence, the conduct of the accused after incident, the result of handwriting expert report, Forensic Science Laboratory report and TI Parade report of A-2 and circumstantial evidence of the case. The conviction and the consequential sentences are challenged before this Court. The trial was conducted by the Trial Court on day to day basis as per the order of Hon'ble Supreme Court.

19. Shri I.B.Singh, learned Senior Advocate, assisted by Shri Ishan Baghel, Advocate and Shri Sajeet Kumar and Shri Nagendra Mohan have addressed arguments on behalf of appellant A-1. On behalf of appellant A-2, Shri Om Prakash Srivastava, Advocate and Shri K.S. Singh, Advocate have addressed arguments.

20. Shri Jyotindra Mishra, learned Senior Advocate assisted by Shri Kapil Mishra, Advocate and Shri S.P.Tiwari, Advocate has appeared on behalf of the complainant.

21. On behalf of C.B.I., Shri Rishad Murtaza, Advocate has addressed the court.

22. In support of the appeals, learned senior counsel for the appellant A-1 submitted that Vijay Singh appellant was innocent. He was falsely implicated in this case due to political rivalry. The evidence of alleged eye-witnesses PWs 17, 18 & 23 should not have been relied on because they are interested witnesses being related to the deceased D-1 and there are material contradictions in their statement and the FIR and post mortem reports and other evidence available on record. In any event, Section 34 has no application.

23. Learned Counsel for the respondent-State on the other hand supported the judgment of the trial Court.

Interested and Partisan and Related Witnesses

24. It is submitted by Mr. I.B. Singh, learned senior advocate, that the case against Vijay Singh is based on the testimony of 3 witnesses, namely, Sudhanshu Dutt Diwedi PW-17, Prabhu Dutt Diwedi PW-18 and Vijay Kumar Dubey alias Kunnu Mama PW-23. PW-17 and PW-18 are the real nephews of deceased Brahmadutt Diwedi D-1 and PW-23 is the real brother in law (Saala) of D-1 who are interested witnesses.

25. At the outset, it is necessary to mention that the principal witnesses are PW-17, 18 and PW-23 and the trial court has given credence to their evidence. PW-17, the author of the FIR, has testified that he got the FIR of the incident prepared in Lohia Hospital itself and then lodged it at Police Station - Kotwali, Farrukabad. Though there has been roving cross-examination with regard to him seeing the accused persons, nothing has been really elicited to make his testimony impeachable. PW-18 & 23, have also identified the accused person A-1 and supported the testimony of PW-17. That apart, the said witnesses have lent support to the case of the prosecution and corroborated the case in each necessary particulars.

26. The complainant Sudhanshu Dutt Diwedi PW-17 stated that on 09.02.1997 he was invited to the function of Tilak ceremony. At about 9.30 p.m. Brahmadutt Diwedi had reached there by his car. He reached later on. His younger cousin Prabhu Dutt Diwedi, his uncle Haridutt Diwedi (chacha), Smt. Kushla Diwedi (aunty) his Mama Vijay Kumar Dubey (Kunnu Mama) were also present there. Brahmadutt Diwedi came out of the ceremonial house to go back at about 12.00 O'clock. He also followed him alongwith Prabhudutt Diwedi, Vijay Kumar Dubey alias Kunnu Mama and the family members of Hitesh Chand Agarwal, Anuj, Udit and others. Brahmadutt Diwedi came to his ambassador car and got seated on the left rear seat of his car. Anuj had gone again inside the house who brought Laddoos. He gave packets to Brahmadutt Diwedi at that time suddenly accused Vijay Singh reached there with revolver in his hand. He approached the window of Brahmadutt Diwedi and fired shots on Brahmadutt Diwedi. His three associates surrounded the car and started indiscriminate firing on persons inside the car. The gunner came to the side of driver, and before he could retaliate, shots were fired on him by the accused. Driver Rinku also suffered fire arm injuries. Hue and cry was raised on the spot on which Vijay Singh fled away towards the Nala Machratta and the three associates fled away towards Chowk. The three associates were unknown at the time of incident but they were identified by the witnesses. He witnessed the incident which was seen by him and Prabhudutt Diwedi, Vijay Kumar Dubey, Manoj, Udit, Lalit and Girish Chand Agarwal alias Ramji Agarwal. The injured were taken to Jain Nursing Home by him and other family members in vehicle. Brahmadutt Diwedi and gunner were declared dead by Dr. Jain PW-4 and the injured Rinku was referred to Lohia Hospital for his treatment and examination. He was taken to Lohia Hospital by him. To quote the relevant extract:

mlus yM~Mw ds fMCcs f}osnh th dks fn;s] rHkh ;dk;d vfHk;qDr fot; flag vius gkFk esa fjokYoj ysdj dkj esa cSBs f}osnh th ds ikl f[kM+dh ds ikl igqapk vkSj fjokYoj ls czgenRr f}osnh th dks xksyh ekj nhA buds lkFk rhu lkFkh vkSj FksA lHkh us dkj dks ?ksj fy;k vkSj rM+krM+ xksfy;ka pykus yxsA

27. The statement of the complainant is supported by another witness Prabhudutt Diwedi PW-18, real nephew of D-1 who stated that on the intervening night of 09-10/02/1997 his uncle Brahmadutt Diwedi was killed. He had gone to house of Lalit Agarwal to attend Tilak ceremony of Lalit Agarwal on 09.02.1997. He himself, his uncle Haridutt Diwedi, Sudhanshu Dutt Diwedi, Bhaskardutt Diwedi, his aunty Kushla Diwedi, Vijay Kumar Dubey, his Mama also attended this Tilak ceremony. His uncle Brahmadutt Diwedi reached there in his ambassador car alongwith his gunner and driver. After the ceremony, D-1 came out of the house and got seated in his ambassador car for going back to his home. It was about 12.00 O'clock. At that time accused Vijay Singh came from the side of Chowk and he fired shots on his uncle Brahmadutt Diwedi from weapon in his hand. At the same time his three associates also fired shots on Brahmadutt Diwedi who were also standing near the car. Dwivediji suffered fire arm injuries during this incident alongwith his gunner and driver Sher Singh. This incident was seen by Sudhanshu Dutt Diwedi, Vijay Kumar Dubey, Ramji Agarwal, Manoj Agarwal and Udit Agarwal etc. Accused Vijay Singh fled away towards the Nala Machratta and his other three accomplices fled away towards chowk. The name of this witness is mentioned in the FIR. To quote the relevant extract:

mlh le; pkSd dh rjQ ls vfHk;qDr fot; flag ,dne ls ogka vk;sA ogka igqaprs gh mUgksaus esjs pkpk czgenRr f}osnh ds Åij vius gkFk esa fy;s vlygs ls xksfy;ka pyk nhaA mlh le; fot; flag ds rhu vksj lkfFk;ksa us Hkh dkj ds ikl [kM+s gksdj dkj esa cSBs czgenRr f}osnh th dh rjQ xksfy;ka pyk;hA

28. Vijay Kumar Dubey alias Kunnu Mama PW23 is also an eye witness whose name is mentioned in FIR. He is brother in law of Brahmadutt Diwedi who stated that on 09.02.1997 he attended Tilak ceremony of Lalit at his house. He was invited and thus he attended Tilak ceremony. Sudhanshu Dutt Diwedi, Prabhudutt Diwedi, Kushla Diwedi, Bhaskar Dutt Diwedi, Himanshu Dutt Diwedi and others also attended the Tilak ceremony. The incident occurred at about 12.00 O'clock in the intervening night of 9-10/02/1997. Brahmadutt Diwedi came out of the house and got seated in his car on the rear left seat. Gunner and driver also had taken their seats in the front seat of the car. At that time someone came from the house of Ramji Agarwal and reminded to bring Ladoos. He himself went to take Ladoos. He stated that to his remembrance Ladoos were brought by him on the spot and at that juncture Vijay Singh accused reached there and fired shots on Brahmadutt Diwedi from window of his car. The three associates also came there with Vijay Singh. They also fired shots from front, right and left side on the persons sitting in the car. He stated that they were equipped with firearms which were small either pistol or revolver. Due to firing serious injuries were suffered by Brahmadutt Diwedi and his driver and gunner. This incident was also seen by Prabhudutt Diwedi, Sudhanshu Dutt Diwedi, Ramji Agarwal. Vijay Singh fled away towards Nala Machratta and three associates fled away towards Chowk. To quote the relevant extract:

rHkh ,d ne ls fot; flag vk, vkSj dkj dh f[kM+dh ls fjokYoj ls czgenRr th ij Qk;j dj fn;kA fot; flag ds lkFk muds rhu lkFkh vkSj Fks mUgksaus vxy cxy o lkeus ls dkj esa cSBs yksxksa ij Qk;j dj fn;kA

29. As rightly contended by the Learned Counsel for the State, the ocular evidence is corroborated by medical evidence. The intention of the accused A-1 to eliminate the deceased and the injuries sustained by D-1, D-2 and Rinku substantially establishes the coordinated vengeance with which the assault was caused by the appellant A-1 and his associates in order to ensure that the deceased did not survive.

30. From the perusal of the post mortem report and the statement of the doctor it is evident that the firearm injuries on the deceased D-1 were found to be firstly on the left side of neck, chest cavity deep which was charred and secondly on left side of abdomen. These were on vital parts of the body. Third injury was on left forearm near elbow, it was also charred. The death was natural as the bullets had hit him from close range and on vital parts. The attack was made by A-1 from left rear window. According to the statement of Dr. Yogendra Pratap Singh PW-20, the cause of death was the shock and hemorrhage due to gun shot ante-mortem injuries. It stands proved that D-1 had suffered injuries from the gun shots fired within 6 feet and the same caused his near instant death.

31. It has come in evidence that the accused A-1 had harboured vengeance against D-1. There was no reason why the witnesses, who were close relations of the deceased, would falsely embroil the accused persons leaving the real culprits; that there is no reason to discard the testimonies of PWs 17, 18 and 23 singularly on the ground that they are related witnesses, for they have stood embedded in their version and there is no inconsistency to discredit them.

32. By now it is a well-established principle of law that testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as an interested witness. The term interested postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or the other either because of animosity or some other reasons.

33. In State of A.P. Vs. S. Rayappa and Ors. MANU/SC/1004/2006 the Supreme Court observed as under:

7. On the contrary it has now almost become a fashion that the public is reluctant to appear and depose before the Court especially in criminal case because of varied reasons. Criminal cases are kept dragging for years to come and the witnesses are a harassed lot. They are being threatened, intimidated and at the top of all they are subjected to lengthy cross-examination. In such a situation, the only natural witness available to the prosecution would be the relative witness. The relative witness is not necessarily an interested witness. On the other hand, being a close relation to the deceased they will try to prosecute the real culprit by stating the truth. There is no reason as to why a close relative will implicate and depose falsely against somebody and screen the real culprit to escape unpunished. The only requirement is that the testimony of the relative witnesses should be examined cautiously. The Trial Court has brushed aside the testimony of P.W.1 and P.W.2 on the ground that they are interested witnesses being relatives of the deceased and that they were not present on the place of occurence.

34. Merely because the eye-witnesses are family members their evidence cannot per se be discarded. When there is allegation of interestedness, the same has to be established. Mere statement that being relatives of the deceased they are likely to falsely implicate the accused cannot be a ground to discard the evidence which is otherwise cogent and credible. We shall also deal with the contention regarding interestedness of the witnesses for furthering prosecution version. Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent and credible.

35. In Dalip Singh and Ors. v. The State of Punjab MANU/SC/0031/1953 : [1954]1SCR145 Hon'ble Supreme Court of India has laid down as under:

27. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witnesshas cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts.

36. The above decision has since been followed in Guli Chand and Ors. v. State of Rajasthan MANU/SC/0107/1973 : 1974CriLJ331 in which Vadivelu Thevar v. State of Madras MANU/SC/0039/1957 : 1957CriLJ1000 was also relied upon.

37. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by the Supreme Court as early as in Dalip Singh's case (supra) in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed:

We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in - Rameshwar v. State of Rajasthan MANU/SC/0036/1951 : 1952CriLJ547 . We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel.

38. Again in Masalti and Ors. v. State of U.P. MANU/SC/0074/1964 : [1964]8SCR133 this Court observed: (p. 209-210 para 14):

But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses.... The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct.

39. To the same effect are the decisions in State of Punjab v. Jagir Singh MANU/SC/0193/1973 : 1973CriLJ1589 ; Lehna v. State of Haryana MANU/SC/0075/2002 : [2002]1SCR377 and Gangadhar Behera and Ors. v. State of Orissa MANU/SC/0875/2002 : 2003CriLJ41 .

40. The above position was also highlighted in Babulal Bhagwan Khandare and Anr. v. State of Maharashtra MANU/SC/1026/2004 : (2005)10SCC404 and in Salim Saheb v. State of M.P. 2007(1) SCC 699.

41. In this regard reference to a passage from Hari Obula Reddy and Ors. v. State of Andhra Pradesh MANU/SC/0128/1980 :(1981) 3 SCC 675 would be fruitful. In the said case, a three-Judge Bench has ruled that it cannot be laid down as an invariable Rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of the interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon. It is worthy to note that there is a distinction between a witness who is related and an interested witness. A relative is a natural witness. The Hon'ble Supreme Court in Kartik Malhar v. State of Bihar MANU/SC/1034/1996 : (1996) 1 SCC 614 has opined that a close relative who is a natural witness cannot be regarded as an interested witness, for the term "interested" postulates that the witness must have some interest in having the accused, somehow or the other, convicted for some animus or for some other reason.

42. In the instant case, the FIR was lodged in the police station promptly. There is no consultation with any other person in lodging FIR. The accused Vijay Singh was named in the FIR. The evidence of the complainant Sudhanshu Dutt Diwedi PW-17 has been fully supported by Prabhu Dutt Diwedi PW-18 and Vijay Kumar Dubey (Kunnu Mama) PW23. Apart from it Udit Agarwal PW3 cousin of Lalit and Manoj Kumar Agarwal PW10, nephew of Hitesh Chandra Agarwal have also proved the presence of complainant Prabhu Dutt Diwedi and Vijay Kumar Dubey on the spot.

43. The occurrence of the incident at about 12.00 O'clock, taking the injured Rinku alias Sher Singh from Jain Nursing Home to Ram Manohar Lohia Hospital and his medical examination by Dr. Ram Kumar PW21 at 12.50 am i.e. within 50 minutes, clearly shows the presence of Sudhanshu Dutt Diwedi on the spot, particularly when the place of occurrence is at a distance of about 3 kms from Jain Nursing Home.

44. Haridutt Diwedi PW15, cousin of D-1, Sushil Shakya PW-25, MLA of Kayamganj and Bagish Chandra PW-26, local advocate, all invitee in Tilak ceremony, in their statements have also corroborated the presence of Sudhanshu Dutt Diwedi, Prabhu Dutt Diwedi and Vijay Kumar Dubey in Tilak ceremony of Lalit.

45. Prabhu Dutt PW-18 and Sudhanshu Dutt PW-17 are the nephews of Brahma Dutt Diwedi and Vijay Kumar Dubey PW-23 is brother-in-law (Saala) of the deceased Brahmadutt Diwedi. Brahmadutt Diwedi was a tall personality and a prominent public figure. Thus, the presence of these witnesses at the spot appears to be very natural who stated that they could not leave the spot prior to Brahmadutt Diwedi.

46. Prabhudutt Diwedi PW-18 and Vijay Kumar Dubey PW-23 are the eye witnesses who have proved the presence of Sudhanshu Dutt Diwedi PW-17 on the spot and there is nothing in the cross-examination on the basis of which their statements may not be relied upon.

47. Sudhanshu Dutt PW-17 stated during cross-examination that the shot was fired by Vijay Singh by putting his hand inside the car from the left rear window of car. To quote:

ftl f[kM+dh ds ikl ¼dkj dh f[kM+dh½ eSa [kM+k Fkk ¼?kVuk ds le;½ ml f[kM+dh ds vUnj gkFk Mky dj fot; flag us f}osnh th ij Qk;j fd;k] mlus xksyh ekjhA

48. Thus, the fact that Vijay Singh alongwith his three associates fired shots on Brahmadutt Diwedi and his staff sitting in the car is proved.

The challenge to the presence of eye witnesses on the spot.

49. Learned senior counsel next contended that PW17, PW18 and PW23 were not present on the spot at the time of the incident. The house of PW17 and PW18 are hardly at a distance of 400 meters from the place of occurrence and they would have arrived at Jain Nursing Home after coming to know about the incident. In fact they were not present on the spot. There was no chance of their being present on the place of occurrence. There is no proof that these 3 witnesses were invited in tilak ceremony. The photographs which would have been taken in tilak ceremony are not produced which are obtained by the I.O. to show that these witnesses were present on the spot. The evidence has been concocted. It is argued that it was on account of political rivalry that Vijay Singh was falsely roped in this case. The site witnesses, Udit Agarwal PW3, Manoj Kumar Agarwal PW10, the owner and employee of nearby medical stores who saw the accused running from the spot, did not name PW17, PW18 and PW23 as persons present on the spot. They did not name Vijay Singh as accused.

50. It is argued that Udit Agarwal PW3 son of Umesh Chandra Agarwal is real cousin of Lalit Agarwal. Umesh Chandra Agarwal is the brother of Hitesh Chandra Agarwal. PW3 said that he himself and Lalit Agarwal both lived in the same house where ceremony was organised. B.K. Tiwari D-2 was brought to Jain Nursing Home by PW3. This fact was stated by Dr. Naresh Chandra Jain PW4. Thus the presence of this witness on the spot was natural. He stated that when Brahmadutt Diwedi was leaving the place after function Anuj, Vivek and Manoj had come to see off him. Immediately thereafter he heard sound of four fires. He could not understand as to who is being shot and by whom. The witness ran away towards North on the road and after running about 30 to 40 feet, he came back and saw the assailants. He could not identify any one of the assailants. He saw them running away. This witness did not name Vijay Singh as assailant. Learned senior counsel also cited the statements of PW-7, PW-8 and PW-10 in support of his case.

51. Pawan Agarwal PW7 is the owner of Mittal Medical Store situated on the same road nearby towards the South of the place of incident. At the time of the incident he was sitting in his shop. He heard someone shouting "Pakro Pakro" and saw young men going towards Chowk i.e. towards South who passed through his shop. They were aged about 20 to 25 years having weapons in their hands. They were unknown to him. This witness also did not name Vijay Singh as accused.

52. Anil Kumar Dubey PW8 was a salesman at the Singhal Medical Store which is also situated on the same road towards the South to the place of the incident. He stated that he heard the sound of fires and thought it to be celebrity firing in the Tilak ceremony. Within half a minute he saw 3 persons running away towards chowk i.e. towards south who passed through his shop. They were young persons aged about 20 to 25 having weapons in their hand. This witness also did not name Vijay Singh as accused. He stated in reply to a leading question put by prosecutor in examination-in-chief that someone was telling in the crowd that Vijay has fired shots. It is argued that statement was an improvement which he did not state in his statement under Section 161 Cr.P.C.. V.P. Arya PW-67, Investigating Officer stated that this statement was not made by PW-8 in his statement under Section 161 Cr.P.C. On the tutoring of prosecution PW8 made this major improvement in his statement and tried to state that Sudhanshu Dutt PW17 was present on the spot.

53. Manoj Kumar Agarwal PW10 is resident of 2/25 Lohai road, Farukhabad and is the nephew of Hitesh Chandra Agarwal. Lalit was his Mamera Bhai. The house of this witness is hardly 300 steps away from the place of occurrence. This witness stated that he knew Vijay Singh. Brahmadutt D-1 was taken to Jain Nursing Home by this witness. Dr. N.C. Jain PW4 stated that Brahmadutt Diwedi was brought to his hospital by PW-10. PW-10 stated that before leaving the ceremonial house, Brahmadutt Diwedi was sitting with his father V.C. Agarwal, Umesh Agarwal and Hitesh Agarwal in the courtyard on the first floor of the house. While leaving the house Brahmadutt Diwedi was accompanied by aforesaid persons. Anuj and Udit also joined them. PW10 also followed him up to the room adjacent to the platform. This room is known as 'Dukan ki Gaddiwala room'. There he started hearing the altercation which took place between Ramji and electrician. Suddenly he heard sound of four to five gunshots. He rushed to the platform and saw the broken glass of the Ambassador car and one person running towards chowk from the place of incident after firing. PW10 fired 3 shots from his revolver on that person. According to him the assailant was young man aged about 30 years. It is argued that this witness did not name Prabhu Dutt Diwedi, Sudhanshu Dutt Diwedi and Vijay Kumar Dubey that they also accompanied Brahmadutt Diwedi while departing from the ceremonial house. Further he stated that all these 3 persons were somewhere around the place of occurrence. It is further argued that there is much difference between the persons present on the spot and person around the spot. It is argued that if Prabhu Dutt Diwedi, Sudhanshu Dutt Diwedi and V.K. Dubey would had been present on the spot, they would have taken Brahmadutt Diwedi and Brij Kishore Tiwari to Jain Nursing Home.

54. As against it, Mr. Murtaza, learned counsel for the CBI argued that the accused relied on testimony of PW3, PW7, PW8 and PW10, vis-a-vis PW17, 18 and 23 to prove that they were not present on the spot. If the statements of witnesses PW3, PW8 and PW10 are seen vis a vis PW17, 18 and 23 it is found that they have corroborated the presence of PW17, PW18 and PW23 in the house of Hitesh Chandra Aggarwal at the time of Tilak Ceremony and on the spot. To quote their versions:-

Udit Agarwal PW3, stated as follows:-

eSaus fryd lekjksg LFky vkaxu edku esa ftl le; igyh ckj ?kVuk okys fnu Jh czgenRr f}osnh dks cSBs gq;s ns[kk Fkk ml le; ogka muds lkFk lq/kk'kqa f}osnh] izHkqnRr f}osnh rFkk dqUuw ekek ugha FksA lq/kk'kqa f}osnh] izHkqnRr f}osnh o dqUuw ekek ls esjh eqykdkr gqbZ Fkh ijUrq eSa ;g ugha crk ldrk fd ftl le; igyh ckj Jh czgenRr f}osnh dks ns[kk Fkk mlls igys gqbZ Fkh ;k ckn esa D;ksafd eSa fryd lekjksg ds dk;Z esa O;Lr FkkA (P.No.132) Dr. Naresh Chandra Jain PW4, stated as follows:-

Jh czgenRr f}osnh o Jh c`tfd'kksj frokjh rFkk fjadw tSu uflZax gkse esa djhc 12-30 cts jkf= esa mijksDr esa yk;s x;s FksA mUgsa ykus okyksa esa eq[; yksx lq/kka'kq] mfnr o eukst FksA (P.No.136) ;g dguk xyr gS fd lq/kka'kq nRr f}osnh e`rdx.k o fjadw ds lkFk u rks esjs uflZax gkse vk;s Fks vkSj u gh izn'kZ d&14 ij mUgksaus esjs lkeus gLrk{kj cuk;s FksA (P.No.142) Anil Kumar Dubey PW8 corroborated the presence of Sudhanshu Dutt PW17 and others in the following words:-

jketh vxzoky ds ?kj dh rjQ ls idM+ks&idM+ks dk 'kksj vk jgk Fkk eSa muds ?kj dh rjQ x;kA ogka jke th vxzoky ds ?kj igqWapkA ogkWa eSaus ns[kk fd czgenRr th dks xksyh yxh Fkh mUgsa VkVk lweksa esa fyVk jgs FksA ogkWa HkhM+ yxh FkhA ogkWa jke th vxzoky] eukst vxzoky] mfnr vxzoky] lq/kka'kq f}osnh o vU; reke yksx FksA dkQh HkhM+ FkhA (P.No.177) PW8 further stated as follows:-

eSaus lh0ch0vkbZ0 dks ;g c;ku fn;k Fkk fd ekSds ij Þjke th vxzoky] eukst vxzoky] mfnr vxzoky] lq/kka'kq f}osnh o vU; cgqr ls yksx FksAÞ (P.No.181) Manoj Kumar Agarwal PW10 stated as follows:-

czgenRr f}osnh th] mudk xuj o MªkbZoj tSu uflZax gkse ys tk;s x;sA eSa muds lkFk mDr uflZax gkse x;k FkkA tSu uflZax gkse igqapus ds ckn Jh czgenRr f}osnh th ej x;sA tSu uflZax gkse igqapus ij og thfor FksA uflZax gkse esa xuj dks eSaus e`r gkyr esa ns[kkA (P.No.203) Haridutt Diwedi PW15, the cousin of D-1 stated as follows:-

ml fryd lekjksg esa lq/kka'kq nRr] izHkq nRr ,oa fot; dqekj nwcs vk;s FksA bl ckj eSa ogka ikSus X;kjg ;k X;kjg cts rd :dk Fkk fQj eSa vius ?kj pyk x;kA tc eSa jke th vxzoky ds ?kj ls x;k rks ogka czge nRr f}osnh] lq/kka'kq nRr] izHkq nRr o fot; dqekj nwcs jke th vxzoky ds ?kj ij FksA (P.No.266) Dr. Ram Kumar PW21 doctor of Ram Manohar Lohia Hospital stated as follows:-

ml et:c dks esjs le{k lq/kka'kq iq= nso nRr f}osnh fuoklh Q:Z[kkckn yk;s FksA (P.No.412) In the injury report of Sher Singh alias Rinku Exhibit Ka-22 it was noted by the doctor PW21 in the title portion that Sher Singh alias Rinku was brought to Ram Manohar Lohia Hospital by Sudhanshu Dutt PW17.

Sushil Shakya PW25 MLA from Kayam Ganj and one of invitee, stated as follows:-

eSa djhc 10 ;k 10 1@2 cts jkr jke th vxzoky ds ?kj fryd esa igqaWpk FkkA rc czgenRr th ogka igys ls gh ekStwn FksA muds ifjokj ds yksx ogka ekStwn FksA lq/kka'kq] izHkqnRr muds lkys fot; Hkh ogka FksA muds vykok gfjnRr Hkh ogka FksA rhu pkj yksx vkSj Hkh FksA (P.No.449) Bagish Chandra PW26, a local advocate and an invitee stated as follows:-

mlds ckn jke th vxzoky ds ?kj fryd esa x;kA ogka czgenRr f}osnh th eq>s ekStwn feysA eSa jkf= yxHkx 11 cts rd ogka jgk FkkA bl chp lq/kka'kq nRr f}osnh] fgeka'kq nRr f}osnh rFkk MkDVj gfjnRr f}osnh] izHkq nRr f}osnh rFkk fot; nqcs mQZ dqUuw ogka eq>s feysA 11-00 cts ds ckn eSa nwljs fryd lekjksg eksgYyk feUVw dwapk pyk x;kA (P.No.458)

55. Thus the presence of PW17, 18 and 23 in the tilak ceremony is proved. The versions of aforesaid witnesses and PW17, 18 and 23 leads to but one inference that they were present on the spot and they had gone to Jain Nursing Home for treatment of D-1, D-2 and driver Rinku except Prabhu Dutt PW18. The name of one person was required to be written on OPD cards who brought the injured to the nursing home. Thus the names of PW-10, PW-3, and PW-17 were noted on the OPD cards of Jain Nursing Home of D-1, D-2 and Rinku respectively as such persons. Thus as regards this submission made by learned senior counsel, we find that contention is not based on the accurate reading of the deposition of the witnesses.

56. The evidence, in each case, has to be considered from the point of trustworthiness and from the angle as to whether it inspires confidence in the mind of the Court to accept and that the question of credibility and reliability of a witness has to be decided with reference to the way he fared in cross-examination and the nature of impression created in the mind of the Court. There is no such universal rule as to warrant rejection of the evidence of a witness merely because he/she was related to or interested in the parties on either side. In such cases if the presence of such a witness at the time of occurrence is proved or considered to be natural and the evidence tendered by such witness is found in the light of the surrounding circumstances and probabilities of the case to be true, it can provide a good and sound basis for conviction of the accused. Where it is shown that there is enmity and the witnesses are near relatives too, the Court has a duty to scrutinize their evidence with great care, caution and circumspection; and very careful too in weighing such evidence.

57. All these aspects have been meticulously and elaborately considered by the learned Trial Judge in its proper perspective and convincing, cogent and sound reasons have been given to accept and act upon the evidence of PWs-17, 18 and 23 in this case. Nothing concrete has been pointed out or substantiated to oblige us to either discredit or reject their evidence in this case.

Joint liability in the commission of a criminal act under Section 34

58. Mr. Murtaza, learned Counsel for respondent submitted that the accused A-1 and A-2 have rightly been convicted and sentenced with the aid of Section 34 Indian Penal Code and in that regard he has placed reliance upon Arjun and another versus State of Chhatisgarh (2017) 2 SCC (Crl.) 53 and Yanab Sheikh versus State of West Bengal (2013) 6 SCC 428. Section 34 has been enacted on the principle of joint liability in the commission of a criminal act. The Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under Section 34 IPC if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of Section 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true contents of the Section are that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself.

59. The Supreme Court observed in Ashok Kumar v. State of Punjab MANU/SC/0089/1976 : 1977CriLJ164 that the existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision.

60. The Section does not say "the common intention of all", nor does it say "and intention common to all". Under the provisions of Section 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the commission of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in Section 34, when an accused is convicted under Section 302 read with Section 34, in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. As was observed in Ch. Pulla Reddy and Ors. v. State of Andhra Pradesh MANU/SC/0717/1993 : 1993CriLJ2246 , Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying Section 34 it is not necessary to show some overt act on the part of the accused.

61. In the instant case, the Trial Court has rightly held that the evidence is sufficient to bring in application of Section 34 IPC.

If there was Tampering of evidence and OPD Cards Manipulated

62. Learned senior counsel next contended that evidence was tampered to show that Sudhanshu Dutt Diwedi PW17, informant was present at the spot. OPD Card Exhibit Ka-14 of Jain Nursing Home has been prepared to show that Sher Singh alias Rinku was brought to Jain Nursing Home by PW17. This document was prepared subsequently and was manipulated later on. Sher Singh was never examined in Jain Nursing Home. Dr. N.C. Jain PW4 stated that perhaps Sher Singh had received injuries somewhere on hand etc. PW4 stated that loose OPD cards are got printed in his nursing home where number is put on them by the doctor himself and these were entered into consultation register. This consultation register was never produced to confirm that Exhibit Ka-14 was prepared during night of 10.02.1997. There is no mark of identification of the patient on Exhibit Ka-14. The OPD cards were never handed over to the police. These were directly handed over to CBI after 20.02.1997. It is argued that CBI got them manipulated later on to prove that Sher Singh alias Rinku was brought by Sudhanshu Dutt Diwedi and was examined in Jain Nursing Home. Similarly, Exhibit Ka-12 and Ka-13 are the OPD cards of Brahmadutt Diwedi and Brij Kishore Tiwari respectively. PW4 noted the names of Manoj Agarwal and Udit Agarwal in his own handwriting but PW4 did not write the name of Sudhanshu Dutt Diwedi below his signature on the OPD card of Sher Singh. The explanation given by PW4 that signature of Sudhanshu Dutt Diwedi was visible is challenged. PW4 made a reference endorsement of Sher Singh to Lohia Hospital. It is argued by learned senior counsel that no reference letter was prepared and the original card was written in the hospital.

63. It is further argued that Exhibit Ka-22 was prepared at Lohia Hospital at 12.50 am. It is a Government hospital. This document is also challenged as concocted in order to bring the presence of Sudhanshu Dutt Diwedi in Lohia Hospital. The perusal of these documents showed that the copy of this document was handed over to Sudhanshu Dutt Diwedi but it was not produced by him in the Court or not given to the I.O. In fact this paper was manipulated and the false entry was made in papers to prove the presence of Sudhanshu Dutt Diwedi on the spot. Dr. Ram Kumar PW21 of Lohia Hospital reported on Exhibit Ka-22 that the injuries were kept under observation. It is argued that no follow up action was done or if it was done no report was produced before the Court. It was not identified that in fact Sher Singh alias Rinku was examined at 12.50 am on 10.02.1997 in Lohia Hospital. Doctor PW21 stated that left and right thumb impression of Sher Singh were obtained on the register but they were not visible. The signature of Rinku was not there on Exhibit Ka-22. Moreover, no mark of identification of Rinku was recorded on Exhibit Ka-22. These documents could be proved by Rinku himself and none else.

64. Further, it is argued that the endorsement was made by Sudhanshu Dutt Diwedi on Exhibit Ka-22 that he received the copy of injury report. The ink of this endorsement is different which clearly showed that the carbon which might have been used at the time of preparation of documents for the first time would have been different than the carbon while making this entry. PW-21 failed to explain this fact. Dr. Ram Kumar PW-21 also failed to produce connecting documents prepared at the time of medical examination of Rinku which shows that Exhibit Ka-22 was manipulated subsequently and in fact Rinku alias Sher Singh was not examined in Lohia Hospital.

65. However, Dr. Naresh Chandra Jain PW-4 of Jain Nursing Home proved OPD card of D-1 on which it is written that D-1 was brought by Manoj PW-10, D-2 was brought by Udit PW-3 and driver Rinku was brought by Sudhanshu PW-17. It was stated by doctor PW4 that the case of Rinku was referred to Ram Manohar Lohia Hospital since it was a medico legal case otherwise he could have been treated in Jain Nursing Home. PW4 specifically stated that Rinku was brought to the hospital by Sudhanshu Dutt Diwedi. In the injury report Exhibit Ka-22 of Lohia Hospital it was also noted that the patient was brought to Lohia Hospital by PW17. Dr. Ram Kumar PW-21 proved the injury report Ext. Ka-22 of Rinku from original medico legal voluntary register of the Lohia Hospital and that he was brought to Lohia Hospital by Sudhanshu Dutt Diwedi. The two doctors are independent witnesses and there is no reason to disbelieve their testimony. The copy of this register is Ext. Ka-22. The firearm injury was found on left forearm on the outer side near elbow of Rinku. That being so, we find no substance in the contentions of learned Senior Counsel. The document exhibits Ka12, Ka-13, Ext.Ka-14 and Ka-22 are found to be genuine documents.

Discrepancies and Contradictions in the evidence

66. The other reason assigned by learned senior counsel is that there were "material discrepancies". As indicated above we have perused the evidence of PW17, 18 & 23. We have not found any "material discrepancies" in their evidence. The discrepancies referred to by the learned senior counsel are in our opinion, minor, insignificant, natural and not 'material'. One of the discrepancy is alleged to be with regard to mode and manner of the incident. According to the FIR, Brahmadutt Diwedi D-1 was fired when he was 'about to sit' in the car but contrary to it, the complainant PW-17 stated before the Court that Brahmadutt Diwedi was fired upon by A-1 when he got seated in the car. It is argued that the witness could not explain the major contradiction between these two statements.

67. It will be appropriate here to mention the contents of FIR. As per the contents of the F.I.R., the incident took place on 09.02.1997 at 12 Midnight. The complainant (P.W.-17) stated in the F.I.R. that on 09.02.1997 at night he and his family members and uncle Brahma Dutt Dwivedi (Chacha), Member of Legislative Assembly, Bhartiya Janta Party (Former Minister), had gone to attend Tilak Ceremony of Lalit, son of Shri Hitesh Chandra Agarwal at his house on Lohai Road. His uncle was accompanied by his gunner, Brij Kishore Tiwari and Car Driver Sher Singh @ Rinku. After conclusion of Tilak ceremony at about 12 Midnight they were all ready to return. When his uncle was about to sit in his Ambassador bearing No.UP-76 A-5418 parked outside the house of Hitesh Chandra Agarwal, Vijay Singh, son of Prem Singh @ Prem Pahalwan, resident of Machhreta, Kotwali Farrukhabad armed with a revolver, and his three unknown associates also armed with revolvers, pistols and illicit weapons suddenly surrounded the car and all the four persons started indiscriminate firing with the weapons held by them on account of which uncle of the complainant Brahma Dutt Dwivedi, bodyguard Brij Kishore Tiwari were seriously injured. Driver Sher Singh @ Rinku also received firearm injury. All the three were taken in injured condition for treatment by the complainant, Manoj Agarwal, Udit Agarwal etc. to Jain Nursing Home, Badhpur. On the way, uncle of the complainant and the gunman succummbed to injuries. Injured Rinku was admitted to Ram Manohar Lohiya Hospital for treatment. The dead body of the uncle and the gunman are lying in Jain Hospital. Descriptions of the three unknown assailants is that they were of average built young people. All the accused had been seen by the complainant and witnesses in electricity and generator light and can be identified if they are brought in front of the witnesses. The incident has been witnessed by the cousin brother of the complainant, Prabhu Dutt Dwivedi, Mama/maternal uncle Vijay Kumar Dubey, Girish Chandra Agarwal and the injured driver etc., other than the complainant. On raising a hue and cry, the assailants fled. On account of fear they could not be chased. Uncle of the complainant and Vijay Singh had been inimical for quite some time on account of which he has been murdered as a result of conspiracy. Report be registered and appropriate action be taken.

68. In our opinion the alleged contradiction is of no consequence in view of the explanation given by PW-17. PW-17 stated that no different meaning could be assigned to the words given in the FIR. Actually PW-17 intended to write the same thing in the FIR. But on account of shock and horror of incident his mental condition was not fit, thus, he could not differentiate between "Baithe huye hai ki baith gaye." In the First Information Report, the facts were given in brief, so he could not differentiate and it was written by him in the F.I.R. that Bramha Dutt Diwedi was about to sit in the car at the time of the incident. The minor discrepancy was very natural in the circumstances of the case. The incident of double murder had occurred soon before registration of the FIR. The state of mind of the complainant at that time would explain the discrepancy, which in our opinion does not go to the root of the issue.

69. It is further contended that Sudhanshu Dutt Diwedi PW-17 was not present on the spot. He was a practising advocate on criminal side with the experience of 10 years on the date of incident. His statement was not reliable because he was a co-accused alongwith Brahmadutt Diwedi in a murder case of Shishu Pal and in so many other criminal cases. He started practice under Brahmadutt Diwedi. PW17 refuted this contention and stated that final report was filed in case of Shishupal and no other criminal case was pending against him. Moreover, there is no rule to disqualify an accused from being a witness.

70. It was further argued that when Brahmadutt Diwedi joined politics, he started looking after the cases of Brahmadutt Diwedi. When Smt. Damyanti, wife of accused Vijay Singh was Chairperson of Nagar Palika, Farukhabad, this witness was Sabhasad in Nagar Palika, Farukhabad and used to sit in opposition The malafide of this witness could be seen from his statement where he refused to accept that Smt. Damyanti Singh is the wife of the accused Vijay Singh.

71. Coming to this facet of the submission made by learned senior counsel, we find that the contention urged by the learned Counsel is not based on an accurate reading of the deposition of the witness. To quote the words of PW-17:

eSa ugha crk ldrk fd ne;Urh flag fot; flag dh iRuh gS vFkok ugha ijUrq og fot; flag ds lkFk gh jgrh gSA fot; flag dh ,d vU; iRuh ftls eSaus ns[kk ugha gS] lquk gSA (page 298) Statements in the Court vis-a-vis under Section 161 and Lapses on the part of Investigating Officer

72. Learned senior counsel contended that that PW-17, PW-18 and PW-23 changed their version in the Court and they made glaring improvements in their statements in Court. These improvements materially affect the creditworthiness of the prosecution case and it cannot be said that the prosecution has established its case beyond all reasonable doubt, hence it is not safe to base a conviction. Reliance is placed in the ruling of Ashok Vishnu Davare vs State of Maharashtra (2004) 9 SCC 431. Where the contradictions and discrepancies are material and omission(s) also amount to a contradiction, creating a serious doubt about the truthfulness of a witness and the other witness also makes material improvements before the court in order to make the evidence acceptable, it cannot be safe to rely upon such evidence. Reliance is placed on the ruling in State of Rajasthan vs Rajendra Singh (2009) 11 SCC 106.

73. It is further contended that if the complainant in the FIR or the witness in his statement under Section 161 Cr.P.C., has not disclosed certain facts but meets the prosecution case first time before the court, such version lacks credence and is liable to be discarded as has happened in this case. Reliance is placed on the rulings of State vs. Sait (2008) 15 SCC 440, Sunil Kumar Sambhudayal Gupta (Dr.) vs State of Maharashtra (2010) 13 SCC 657 and Ishwar Singh vs State of U.P. (1976) 4 SCC 355. It is argued by learned senior counsel that for the first time PW17 stated the fact about the incident in the Court that Vijay Singh came just opposite to him near the rear window of the car with the revolver. He put his hand inside the car and fired shots on Brahmadutt Diwedi. He also stated that accused Vijay Singh ran away towards Nala Machratta waving his revolver in the air. This statement was not given by him under Section 161 Cr.P.C.

74. Learned senior counsel also cited that PW-18 had given his statement to the CBI that Vijay Singh had ran away towards his house ie. Machratta alongwith his associates but in the Court he changed his version and stated that Vijay Singh ran towards the North and other three ran away towards South. It is argued that it is one of the major contradiction in his statement. PW-18 admitted that he knew Updesh Singh Chauhan whose nephew and 3 others were killed by same person. PW17 denied that he knew Updesh Singh Chauhan. PW18 did not state in his statement under Section 161 Cr.P.C. that the incident was witnessed by him, or by Sudhanshu Dutt Diwedi, Vijay Kumar Dubey, Ramji Agarwal, Manoj Agarwal, Udit Agarwal and others. He stated that his statement was never recorded by CBI. According to PW67 the statement of Prabhu Dutt Diwedi was recorded by CBI.

75. The learned Trial Judge after evaluating the evidence on record arrived at the opinion that the conduct of the Investigating Officer did not appear to be above board. The eye witnesses and other prosecution witnesses have made complaints during their statement that either their statements were not recorded by the Investigating Officer under Section 161 Cr.P.C. as stated by them or statements were not recorded at all. The complainant PW-17 named accused Vijay Singh in the FIR. PW-17 made complaint that the Chief Investigating Officer PW67 asked him that the accused Vijay Singh was not culprit in this case, hence the evidence should not be given against him. Though the Chief Investigating Officer denied from this fact but his conduct during investigation speaks volumes.

76. The first charge sheet Exhibit Ka-112 was submitted by PW-67 against Vijay Singh under Section 120-B I.P.C. only and not under substantive Section 302 and 307 IPC which fully supports the case of the complainant. It appears that the Investigating Officer PW-67 got swayed by the statement of accused taking it as a gospel truth. Later on he realized his mistake and the charge sheet was submitted against accused Vijay Singh under Section 302 and 307 I.P.C. The conduct of PW-67 becomes challengeable particularly when accused Vijay Singh in his statement under Section 313 Cr.P.C. did not take the plea of alibi. It is not the case of accused that at the time of incident he was present elsewhere.

77. In the instant case the accused Vijay Singh was named in the FIR and three accused were unknown at the time of incident. During investigation name of Sanjeev Maheshwari, Ramesh Thakur and Balwinder Singh came to light. TI Parade of accused Sanjeev Maheshwari and Ramesh Thakur were conducted by the Investigating Officer. But despite the fact that the letter was written to the District Magistrate for TIP of third accused Balwinder Singh, the TIP of Balwinder Singh was not conducted which again revealed the serious lapse on the part of the Investigating Officer PW-67 which proved gross negligence on his part during investigation. The statements under Section 161 Cr.P.C. have been written by the Investigating Officer. Under such circumstances no benefit of such lapses can be given to the accused nor the statements allegedly recorded under 161 Cr.P.C. by the Investigating Officer of various witnesses. No inference could be drawn against the prosecution on the basis of statements recorded under Section 161 Cr.P.C.

78. It is further argued by learned senior counsel that PW-18 was not present on the spot. PW18 was found at the residence of Brahmadutt Diwedi when Sub-Inspector S.K. Bhardwaj had gone to the house of Brahmadutt Diwedi after 12.05 AM prior to FIR was lodged on receiving information that the firing was made on Brahmadutt Diwedi. This fact is mentioned in GD report No. 3 time 1:40 a.m., dated 10.02.1997, Ext. Ka-25.

79. This contention is not acceptable since witness PW-18 has explained his presence at the house of Brahmadutt Diwedi by stating that after the incident he immediately rushed to the house of Brahmadutt Diwedi to inform about the incident and to collect some money for treatment of Brahmadutt Diwedi. It is argued that his conduct was not natural. The treatment of Brahmadutt Diwedi an ex-minister and a prominent leader of District Farukhabad was more important than collecting the money from the house.

80. We are unable to understand that when other equally responsible family members of D-1 were there to look after the injured why one of them in this case PW18 would not go to home and make arrangement of money for treatment of the injured. The conduct of PW18 was quite natural and in consonance with dignity and decorum of their family. It is also worth mentioning here that Om Prakash Sharma, SHO, PW-57 stated that the investigation was started by him after registration of FIR. Learned senior counsel has placed reliance on GD No.3 which was prepared prior to the registration of this criminal case. There is no reason to disbelieve the statement of PW18 about his presence at the house of D-1 who had gone there to make arrangement of money for the treatment of the injured after the incident.

81. It is further argued that PW-17 stated that when Brahmadutt Diwedi was taken to hospital, his clothes were also blood stained but he did not hand over clothes to the police. A person who was a criminal lawyer having such standing could not be expected to behave like this. This conduct was quite unnatural. Learned senior counsel also pointed out that lacunae in the site plan prepared by the police Ext. Ka-73 and prepared by CBI Ext. Ka-99.

82. However, no inference can be drawn against the prosecution on the basis that the blood stained clothes were not given by PW-17 to the police or there were lacunae in two site plans etc. which are lapses on the part of the Investigating Officer. In Paras Yadav and Ors. v. State of Bihar (1999 (2) SCC 126) it was held that if the lapse or omission is committed by the investigating agency or because of negligence there had been defective investigation the prosecution evidence is required to be examined de hors such omissions carefully to find out whether the said evidence is reliable or not and to what extent, such lapse affected the object of finding out the truth. The contaminated conduct of officials alone should not stand on the way of evaluating the evidence by the courts in finding out the truth, if the materials on record are otherwise credible and truthful; otherwise the designed mischief at the instance of biased or interested investigator would be perpetuated and justice would be denied to the complainant party, and in the process to the community at large.

83. It was observed by the Supreme Court in Ram Bihari Yadav v. State of Bihar and Ors. (1998 (4) SCC 517) that if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the Law enforcing agency but also in the administration of justice.

84. In the instant case, the lacuna in the investigation stands completely covered by the statements of witnesses. The evidence of the witnesses clearly establishes the story of the prosecution. In view of the clear statement of the prosecution witnesses, we have no hesitation in rejecting the arguments of the appellants.

85. Learned senior counsel further pointed out the other discrepancies in the evidence by stating that PW-18 stated that he reached Jain Nursing Home at 12.45 am and he was informed by Sudhanshu Dutt Diwedi PW-17 that Brahmadutt Diwedi and Brij Kishore Tiwari have died. The witness is telling a lie because according to the statement of Dr. Ram Kumar PW21 of Lohia Hospital injured Rinku was brought to him at 0.50 am in Lohia Hospital by Sudhanshu Dutt Diwedi. It is argued that neither PW-17 nor PW-18 were present on the spot. They reached the spot but after the incident had taken place and the story has been concocted by the prosecution.

86. It is further argued that PW23 is real brother in law of Brahmadutt Diwedi. He is a practising lawyer from Farukhabad doing practice in criminal side also. PW23 claims that he was invited to Tilak ceremony. He had gone there and saw the incident but his statement was cyclostyle type. He stated that the time of incident he was standing just behind PW17. But this fact was never said by Sudhanshu Dutt Diwedi PW17. This witness stated that there was no other car parked near the car in which incident took place. PW18 stated that Brahmadutt Diwedi was taken to Jain Nursing Home in Tata Sumo driven by Manoj Agarwal. Manoj Agarwal never said that car was driven by him. Tata Sumo was driven by driver Raj Singh who was the driver of Vishnu Chand Agarwal. Driver Raj Singh was not examined in this case who was an important witness. PW-18 did not state that where Tata Sumo was parked at the time of the incident. He left the spot alongwith Manoj Agarwal, Brahmadutt Diwedi and Sudhanshu Dutt Diwedi in Tata Sumo. Further PW-18 said that Armada vehicle had also come within 10-15 minutes. PW18 stated that injured Brij Kishore Tiwari was taken to hospital in Armada but on the way near chowk, Brij Kishore Tiwari was shifted to Tata Sumo. This fact has not been stated by any other witness, so he introduced a new fact. When again PW-18 was asked about the distance of parking of Tata Sumo, he said that it was parked at a distance of 15 to 20 meters away from the place of occurrence which was contrary to his earlier statement. PW-18 also could not tell whether Brahmadutt Diwedi was bleeding or not and whether blood was seen in Tata Sumo. He also could not tell who lifted the gunner into vehicle. PW-18 could not tell whether the driver received injuries inside the car or outside the car. Again he said that he could not see as to who took the driver to the hospital.

87. The alleged contradictions do not come within the category of material contradictions. The statements of PW-17, PW-18 and PW-23 are recorded with time lag of about 4 to 5 years from the date of incident. In the depositions of witnesses there are always some normal discrepancies however honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person. As indicated above we have not found any material discrepancies in the evidence of the PW17, 18 &23.

88. There is no dispute with regard to the place of commission of the crime. It was committed in front of house of Hitesh Chandra. If we critically examine the evidence of PW 17, there is nothing to doubt the correctness of the version given by him. PW-1, complainant in the present case has proved the FIR (Ext. Ka-19) lodged by him. He has stated the contents of Ext. Ka-19 in his statement and in cross examination also there is no material contradiction between the facts stated in the FIR and his evidence in the trial Court which has been corroborated by the evidence of PW-18 and PW-23.

89. Evidence of PW-17, PW-18 and PW-23 has been analysed with great care and caution by the Trial Court. The so-called improvements do not, in any way, introduce a new facet of the case. Every omission is not a contradiction. Minor details which are not indicated in the first information report are later on elaborated in court do not justify a criticism that the case originally presented has been abandoned to be substituted by another one. The evidence of PW17, 18 & 23 appears to be clear, cogent and trustworthy. Nothing substantial has been brought on record to disregard the testimony of these witnesses. Merely because of the fact that there were some minor omissions, which are but natural, considering the fact that the examination in court took place years after the occurrence the evidence does not become suspect. Necessarily there cannot be exact and precise reproduction in any mathematical manner. What needs to be seen is whether the version presented in the court was substantially similar to what was stated during investigation. It is only when exaggerations fundamentally change the nature of the case, the court has to consider whether the witness was telling the truth or not. As has been held by the Trial Court, the evidence of PW 17, 18 & 23 was truthful evidence. They have graphically described the assaults on the deceased. Section 34 of the Act is clearly attracted. This is not a case where anything substantial has been brought on record to disregard the evidence of three eye witnesses.

Whether the FIR is anti timed

90. Learned senior counsel argued on behalf of accused A-1 that FIR was anti timed since the FIR and GD report were not in existence till the postmortem of D-1 was conducted. The postmortem of D-1 was conducted at 7.35 AM and that of D-2 was done at 8.20 AM. The inquest report of D-1 was prepared from 3.00 AM to 4.30 AM. It was having eight enclosures and nine pages. The inquest report of D-2 was prepared from 4.30 AM to 6.00 AM Dr. Yogendra PW-20 conducted postmortem on bodies of D-1 and D-2 who gave serial Nos. 9 and 10 to the FIR and GD report as part of postmortem as against the serial nos. 2 and 3 which were given to FIR and GD report as part of inquest report of D-1. The FIR and GD report were not signed by PW-20. It is argued that the doctor PW-20 could not explain why number of enclosures and pages mismatched in the inquest report and postmortem report and FIR and GD report were not signed by him.

91. As against it, Mr. Misra, learned senior counsel for the State submitted that FIR is not anti timed. The complete inquest reports were sent along with dead bodies of D-1 and D-2 for postmortem to PW-20. Jagbeer Singh PW-1 conducted and prepared the inquest report who proved that the inquest reports were sent to the doctor PW20 for postmortem along with complete papers. No question was put to PW-1 during cross-examination that FIR and GD report were missing from the inquest report. The FIR and GD, the enclosure of inquest report of D-2 were signed by the doctor PW-20. Thus, it was due to human error that FIR and the GD report of inquest report of D-1 could not be signed by PW-20.

92. Mr. Murtaza, learned counsel for the CBI vehemently argued and opposed this contention stating that the facts about crime number, the sections of IPC, the name of police station, the time and date of report in the case and the name of the person who made a complaint in the police station were mentioned in the inquest report. At the bottom of the first page of inquest report, there is stamp and signature of doctor PW-20 and on it the timings of inquest report of D-1 is mentioned as 3.00 AM to 4.30 AM. On the second page other necessary details of the incident are given. Photo lash exhibits Ka-6 and other documents upto Ext. Ka-8, all confirm the fact that the FIR in this case was registered at police station at 1.45 AM. The FIR was thus not anti timed.

93. The second reason given by learned senior counsel about the FIR being anti timed is that the special report was neither sent nor received in the office of the Magistrate concerned. In GD No.4, it was stated that special report was prepared. GD No.7 stated that it was sent through constable Kishan Lal but Kishan Lal was not examined. H.M. Hawaldar Singh PW-24 stated that Kishan Lal could explain that the special report was delivered by him in the office of Magistrate. PW-57 and PW-67 also could not throw light whether special report was received in the office of Magistrate.

94. The contention is not acceptable. Head Moharir Hawaldar Singh PW-24 proved that the special report was prepared, and was sent to the office of Magistrate through Kishan Lal. PW-24 proved relevant GD report nos. 4, 7 and 35 and that the special report was delivered in the office of Magistrate. GD No.4, time 1.45 AM, dated 10.02.1997 Ext. Ka-27 corroborated the fact that the special report was prepared in this case. GD report no.7, time 4.15 AM dated 10.02.1997, Ext. Ka-28 corroborated the fact that the special report was sent through constable Kishan Lal to the office of Magistrate. GD report No.35, time 18.35, dated 10.02.1997 Ext. Ka-29 further corroborated that constable Kishan Lal came back to the police station who delivered the dak of this case in the office of Magistrate. Thus, from the aforesaid discussion, it is found established that the dak which included special report was delivered to the office of Magistrate same day. There is thus no force in the contention of learned senior counsel and the FIR is not anti timed.

Handwriting and Signature of FIR Challenged

95. Mr. Singh, learned senior advocate also challenged the handwriting of FIR and signature therein alleging that the signature of Sudhanshu Dutt Diwedi on Exhibit Ka-19 FIR does not match with his signature on admitted document Exhibit Kha-1. PW17 stated that Kha-1 is a letter which would have been written and signed by him being a political and social worker.

96. The Trial Court compared the signatures of the complainant on the FIR Ext. Ka-19 and Ext. Kha-1 and signatures made by PW-17 on the various pages of his statement. It was observed by the Trial Court and rightly so that there was no substance in the contention of learned counsel for the accused for the following reasons:

Firstly, because Sudhanshu Dutt PW17 proved the FIR Exhibit Ka-19 that it was written by him and signed by him. Secondly, PW17 explained the difference by stating that the style of signature on the FIR was different from that of Kha-1. It was written by him in FIR in his hastlipi and not as signature usually done by him and as it was done by him on Exhibit Kha-1. When statement of PW-17 was recorded upto page 24, the question was put to him in Court challenging his handwriting and signature on FIR. PW17 then started making both types of signatures which were made from pages 25 to 44 of his statement. The trial Court compared these signatures. The signature on Ext. Kha-1 which tallied with signature on page 1 to 24 of statement of PW17 and signature on Ext. Ka-19 FIR tallied with one of the signatures on pages 25 to 44. It was observed by the Trial Court that the signatures made by this witness upto pages 1 to 24 were in different style and from page No.25 to 44 he made his signatures in both styles i.e. hastlipi and signature style. The one style matched with Exhibit Kha-1 and the other hastlipi signature matched with FIR Exhibit Ka-19. The signatures made on the FIR and made on the pages of the statement from 25 to 44 were found matching. The Courts are empowered under Section 73 of the Evidence Act to compare disputed writings/signatures with admitted or proved writings/signatures to ascertain whether a writing is that of the person by whom it purports to have been written.

97. In Murarilal v. State of M.P., AIR 1980 SC 531 the Supreme Court as under:-

The argument that the Court should not venture to compare writings itself, as it would thereby assume to itself the role of an expert is entirely without force. Section 73 of the Evidence Act expressly enables the Court to compare disputed writings with admitted or proved writings to ascertain whether a writing is that of the person by whom it purports to have been written. If it is hazardous to do so, as sometimes said, we are afraid it is one of the hazards to which judge and litigant must expose themselves whenever it becomes necessary. There may be cases where both sides call experts and the voices of science are heard there may be cases where neither side calls an expert, being ill able to afford him. In all such cases it becomes the plain duty of the Court to compare the writings and come to its own conclusion. The duty cannot be avoided by recourse to the statement that the court is no expert. Where there are expert opinions, they will aid the Court. Where there is none, the Court will have to seek guidance from some authoritative textbook and the Court's own experience and knowledge. But discharge it must, its plain duty, with or without expert, with or without other evidence. We may mention that Shashi Kumar v. Subodh Kumar and Fakruddin v. State of Madhya Pradesh were cases where the Court itself compared the writings.

98. Thus the argument challenging the handwriting and signature of the FIR is found baseless.

Non-examination of important witnesses

99. Learned senior counsel argued that Sher Singh alias Rinku was the driver of ambassador car in which Brahmadutt Diwedi was done to death. Sher Singh also suffered injuries during this incident, thus being an injured witness he was very material for stating the actual state of affairs. He has been deliberately withheld by the prosecution to conceal the truth. The host of the ceremony, Ramji Agarwal or Hitesh Chand Agarwal and other important witnesses have not been examined by the prosecution to prove the presence of these 3 witnesses in the Tilak ceremony. Thus, presumption would be drawn against them under Section 114 of Illustration (g) of Indian Evidence Act. Mr. Murtaza submitted that non-examination of certain witnesses in the backdrop of the present case does not affect the prosecution version inasmuch as the witnesses cited by the prosecution clearly established the charges against the accused persons.

100. With regard to the contention of learned senior Counsel that non-examination of important site witnesses viz., Sher Singh alias Rinku, Ramji and Hitesh Chandra Agarwal and others draws adverse inference against the prosecution, the Trial Court has rightly held that adverse inference against the prosecution can be drawn only if it withholds certain evidence and not merely on account of its failure to obtain certain evidence. We cannot lose sight of the fact that ghastly acts, of the nature and gravity as the present one, when committed in a public place may very well create a sense of fear and shock in the minds of the witnesses and thus prevent them from coming forward and deposing against the perpetrators of the crime. If the testimonies of those witnesses, who have deposed during the trial, are otherwise found to be reliable, trustworthy and cogent, the said evidence cannot be disbelieved or discarded merely because the prosecution has failed to examine other witnesses allegedly present on the spot.

101. It is not the number, the quantity, but the quality of evidence that is material. The time honoured principle is that evidence has to be weighed and, not counted. On this principle stands the edifice of Section 134 of the Evidence Act, 1872. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise. The Supreme Court observed in Manga alias Man Singh v. State of Uttarakhand MANU/SC/0464/2013 : (2013) 7 SCC 629, that it is the quality of the witness that matters and not the quantity, when the related witness was examined and found credible. In such a case non-examination of an independent witness would not be fatal to the prosecution case.

102. In the instant case, it has come in evidence of prosecution that driver Rinku got afraid of the incident where two persons were killed and he himself suffered fire arm injuries and thus he left the job. His whereabouts were not known to the prosecution who could not be produced in evidence. The submission was thus unacceptable that non-examination of a person like driver Rinku and other persons such as Ramji and Hitesh Chandra Agarwal, the host affected the prosecution version or created any doubt in the mind of the Court. Since the witnesses examined by the prosecution were trustworthy and the court can safely act on their testimony, there was no justification to draw any adverse inference against the prosecution.

Whether the conduct of PW-17 was not natural

103. It is next contended by learned senior counsel that Sudhanshu Dutt Diwedi was real nephew of Brahmadutt Diwedi. Brahmadutt Diwedi was declared dead in Jain Nursing Home. It was not natural conduct of PW17 that despite death of his uncle Brahmadutt Diwedi, he left Jain Nursing Home just for treatment of driver Rinku at Lohia Hospital.

104. We are unable to understand that how it can be laid down as a rule of universal application that when the employer and his gunner succumbed to fire arm injuries in a ghastly and brutal attack, his injured driver having suffered firearm injuries in the same incident should be left unattended to die. There were other members of the family to take care of the situation. Moreover, Sudhanshu Dutt Diwedi PW17 is also the complainant who prepared the FIR and lodged the report at the P.S. concerned. There is nothing unusual on the part of PW-17 to carry driver to Lohia Hospital for his treatment. Occasion cried out for such humanity. He also prepared the FIR there and lodged it promptly at the police station in time. His uncle (Mama) V.K. Dubey, Prabhu Dutt Diwedi and others were left there in Jain Nursing Home to look after the dead bodies of Brahmadutt Diwedi and his gunner.

Dying Declaration

105. Mr. Singh, learned senior counsel next contended that dying declaration was made by Brahama Dutt Diwedi to Manoj Kumar Agarwal P.W.10 who stated as under:-

**eS fnoosnh th dh xkM+h ds ikl tgka 'kh'kk VwVk Fkk] x;kA xkM+h esa ml le; Jh c`gEenRr fn~oosnh th ihNs okyh lhV ij FksA ge yksx tc ogka igqaps rks mUgksus dgk fd gesa xksyh yxh gSA xuj xkM+h ds ckgj MªkbZoj dh lhV dh rjQ fxjk gqvk FkkA MªkbZoj viuh lhV ij eq>s ugha fn[kkA**

106. It is argued that the said statement of Brahmadutt Diwedi amounts to his dying declaration. When a dying declaration is made by a person, he will definitely name the assailants if he is known to him. Vijay Singh was well known to Brahmadutt Diwedi but he did not name Vijay Singh in his dying declaration. Thus, Vijay Singh was not an accused in this case and was falsely implicated.

107. It has been appositely appreciated by the learned Trial Judge that the said statement was given by Manoj Kumar Agarwal during his cross-examination and the reply given by a witness during cross-examination depends upon the nature of the leading question put to him by the counsel of the accused. If the question had been put to Manoj Kumar Agarwal as to who fired shots on Brahmadutt Diwedi D-1, the name of Vijay Singh would have come in his statement. Thus there was no substance in the argument.

Motive

108. The next circumstance relates to the motive which is another crucial point regarding commission of the said offence by the appellants. The prosecution has proved the motive against the accused. It was stated in the FIR that the relations between Brahmadutt Dwivedi and Vijay Singh were inimical since long. The complainant proved the political enmity between Brahmadutt Dwivedi and the accused A-1. It has come in evidence that in 1996 Vijay Singh and Brahmadutt Dwivedi contested elections of MLA from Farukhabad where Vijay Singh was defeated and election was won by Brahmadutt Dwivedi. He was going to vote in primary pathshala Kanaujia. Sister of Brahmadutt Dwivedi, Smt. Madhurima Trivedi was there from his side. Smt. Damyanti Singh entered there for forged voting. She was resisted by Smt. Madhurima which resulted in a sccuffle between them. In the evening Brahmadutt Dwivedi had given a speech on the public place where he said that he would have hands of Vijay Singh cut and would get Damyanti dragged through her hairs. In his statement under Section 313 Cr.P.C. Vijay Singh stated that there was political rivalry between Brahmadutt Dwivedi and Vijay Singh. Vijay Singh was rising politician who was giving a lead to Brahmadutt Dwivedi, thus he was falsely implicated in this case so that his future may be blocked. His wife Damyanti Singh contested the election of Chairperson of Nagar Palika Parishad in 1995 and then again elected in 2000 as its Chairperson, thus Brahmadutt Dwivedi and his family were on inimical terms with him.

109. Accused Vijay Singh A-1 further stated that all witnesses of CBI and of the family of Brahmadutt had given their evidence under pressure of the family of Brahmadutt D-1. He did not commit murder of Brahmadutt Dwivedi or his gunner. In 2002 he contested elections for MLA against Prabha Devi wife of Brahmadutt in which Vijay Singh won and she was defeated. There were several enemies of D-1. Several criminal cases were pending against him. He was falsely implicated in this case. Thus it is established from evidence on record that political rivalry was there between two parties.

110. Even otherwise also as per the settled legal position where positive evidence against the accused is clear, cogent and reliable, it becomes immaterial whether motive on the part of the accused has been proved by the prosecution or not. If that is the correct position, the absence of motive, in this Court's opinion, is of little or no consequence. Here, it would be worthwhile to reproduce the following paragraph from the recent judgment of the Apex Court in the case of Amitava Banerjee @ Amit @ Bappa Banerjee Vs. State of West Bengal, reported in MANU/SC/0946/2011 : AIR 2011 SC 2913, as under:

"Motive for the commission of an offence no doubt assumes greater importance in cases resting on circumstantial evidence than those in which direct evidence regarding commission of the offence is available. And yet failure to prove motive in cases resting on circumstantial evidence is not fatal by itself. All that the absence of motive for the commission of the offence results in is that the court shall have to be more careful and circumspect in scrutinizing the evidence to ensure that suspicion does not take the place of proof while finding the accused guilty."

111. In the facts of the present case, the positive evidence is sufficient enough to convict the accused.

112. Now we shall deal with the appeal filed by the appellant Sanjeev Maheshwari A-2 who was not named in FIR. He is one of three accused persons who were unknown at the time of occurrence but he was identified by witnesses in Test Identification Parade and in the court. During investigation name of Sanjeev Maheshwari A-2, Ramesh Thakur and Balwinder Singh came to light. Ramesh Thakur died during pendency of case and case abated against him vide order dated 04.04.2003. Balwinder Singh was acquitted for want of evidence. A-2 was arrested by CBI on 22.04.1997. He was kept baparda till his TI Parade on 01.05.1997. He was correctly identified by PW-17 in TI Parade and in the Court. The pistol and cartridges were recovered from him at the time of his arrest. The empties were recovered from the spot on 10.02.1997 and 11.02.1997. It was found on forensic examination that the crime empties were fired from crime weapon.

113. There is evidence to prove that A-2 absconded with A-1 and two other accused after the incident. They moved to various places and stayed in hotels and travelled through various trains. They concealed their identity by making entries in registers etc. of hotels under fictitious names. The specimen handwriting/signatures of A-2 matched with the disputed handwriting collected by the CBI from various hotels, railway station etc. on forensic examination.

Test Identification Parade (TIP) of Sanjeev Maheshwari and His Identification in the Court:

114. The validity of TI Parade of appellant A-2 and his identification in the court by PW-17 is one of the important matter in issue.

115. It is fairly well-settled that identification of the accused in the Court by the witness constitutes the substantive evidence in a case and that the prior identification in a test identification parade is used only to corroborate the identification in Court. Such a TIP then provides corroboration to the witness in the Court who claims to identify the accused persons otherwise unknown to him. Test Identification parades, therefore, remain in the realm of investigation. The Code of Criminal Procedure does not oblige the investigating agency to necessarily hold a test identification parade nor is there any provision under which the accused may claim a right to the holding of a test identification parade. The failure of the investigating agency to hold a test identification parade does not, in that view, have the effect of weakening the evidence of identification in the Court. Holding of test identification parade is not the rule of law but rule of prudence. Normally identification of the accused in a test identification parade lends assurance so that the subsequent identification in Court during trial can be safely relied upon. However, even in the absence of such test identification parade, the identification in Court can, in given circumstances, be relied upon, if the witness is otherwise trustworthy and reliable. The law on the point is well-settled and succinctly laid down in Ashok Debbarma (supra).

116. Following observations were made by Supreme Court in Malkhansingh and Ors. v. State of M.P. MANU/SC/0445/2003 : (2003) 5 SCC 746 in this regard:

It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even without insisting on corroboration. (See Kanta Prashad v. Delhi Admn. MANU/SC/0043/1958 : AIR 1958 SC 350, Vaikuntam Chandrappa v. State of A.P. MANU/SC/0224/1959 : AIR 1960 SC 1340, Budhsen v. State of U.P. MANU/SC/0103/1970 : (1970) 2 SCC 128 and Rameshwar Singh v. State of J and K.MANU/SC/0174/1971 : (1971) 2 SCC 715)

117. As was observed by Supreme Court in Matru v. State of U.P. MANU/SC/0141/1971 : 1971CriLJ913 identification tests do not constitute substantive evidence. They are primarily meant for the purpose of helping the investigating agency with an assurance that their progress with the investigation into the offence is proceeding on the right lines. The identification can only be used as corroborative of the statement in court. To the same effect is the decision in Santokh Singh v. Izhar Hussain MANU/SC/0165/1973 : 1973CriLJ1176. The necessity for holding an identification parade can arise only when the accused are not previously known to the witnesses. The whole idea of a test identification parade is that witnesses who claim to have seen the culprits at the time of occurrence are to identify them from the midst of other persons without any aid or any other source. The test is done to check upon their veracity. In other words, the main object of holding an identification parade, during the investigation stage, is to test the memory of the witnesses based upon first impression and also to enable the prosecution to decide whether all or any of them could be cited as eyewitnesses of the crime. The identification proceedings are in the nature of tests and significantly, therefore, there is no provision for it in the Code and the Indian Evidence Act, 1872 (in short the 'Evidence Act'). It is desirable that a test identification parade should be conducted as soon as possible after the arrest of the accused. This becomes necessary to eliminate the possibility of the accused being shown to the witnesses prior to the test identification parade. This is a very common plea of the accused and, therefore, the prosecution has to be cautious to ensure that there is no scope for making such allegation. If, however, circumstances are beyond control and there is some delay, it cannot be said to be fatal to the prosecution.

118. In Jadunath Singh and Anr. v. The State of Uttar Pradesh MANU/SC/0132/1970 : 1971CriLJ305 , the submission that absence of test identification parade in all cases is fatal, was repelled by this Court after exhaustive considerations of the authorities on the subject. That was a case where the witnesses had seen the accused over a period of time. The High Court had found that the witnesses were independent witnesses having no affinity with deceased and entertained no animosity towards the appellant. They had claimed to have known the appellants for the last 6-7 years as they had been frequently visiting the town of Bewar. The Supreme Court noticed the observations in an earlier unreported decision of this Court in Parkash Chand Sogani v. The State of Rajasthan Criminal Appeal No. 92 of 1956 decided on January 15, 1957,

119. Similar opinion was held by the Supreme Court in Harbhajan Singh v. State of Jammu and Kashmir MANU/SC/0127/1975 : 1975CriLJ1553, where though a test identification parade was not held, the Supreme Court upheld the conviction on the basis of the identification in Court corroborated by other circumstantial evidence. In that case it was found that the appellant and one Gurmukh Singh were absent at the time of roll call and when they were arrested on the night of 16th December, 1971 their rifles smelt of fresh gunpowder and that the empty cartridge case which was found at the scene of offence bore distinctive markings showing that the bullet which killed the deceased was fired from the rifle of the appellant.

120. In Suresh Chandra Bahri v. State of Bihar MANU/SC/0500/1994 : 1994CriLJ3271, the Supreme Court held that it is well settled that substantive evidence of the witness is his evidence in the Court but when the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after his arrest is of great importance because it furnishes an assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witness later in Court at the trial. From this point of view it is a matter of great importance, both for the investigating agency and for the accused and a fortiori for the proper administration of justice that such identification is held without avoidable and unreasonable delay after the arrest of the accused. It is in adopting this course alone that justice and fair play can be assured both to the accused as well as to the prosecution.

121. We may also refer to the decision of Supreme Court in Pramod Mandal v. State of Bihar (2004) 13 SCC 150 where Supreme Court observed as under:

20. It is neither possible nor prudent to lay down any invariable rule as to the period within which a test identification parade must be held, or the number of witnesses who must correctly identify the accused, to sustain his conviction. These matters must be left to the courts of fact to decide in the facts and circumstances of each case. If a rule is laid down prescribing a period within which the test identification parade must be held, it would only benefit the professional criminals in whose cases the arrests are delayed as the police have no clear clue about their identity, they being persons unknown to the victims. They, therefore, have only to avoid their arrest for the prescribed period to avoid conviction. Similarly, there may be offences which by their very nature may be witnessed by a single witness, such as rape. The offender may be unknown to the victim and the case depends solely on the identification by the victim, who is otherwise found to be truthful and reliable. What justification can be pleaded to contend that such cases must necessarily result in acquittal because of there being only one identifying witness? Prudence therefore demands that these matters must be left to the wisdom of the courts of fact which must consider all aspects of the matter in the light of the evidence on record before pronouncing upon the acceptability or rejection of such identification.

122. In the instant case, PW-17 correctly identified the appellant A-2 in TI Parade on 01.05.1997. Subsequently PW-17 identified A-2 during his statement before the court.

123. It is argued by learned counsel for appellant A-2 that he was shown to PW-17 prior to TIP and thus it was of no consequence. It is further argued that accused A-2 was identified by only one witness.

It is argued that it is unsafe to convict the accused for a serious offence as happened in this case on the testimony of a single witness to TIP. Reliance is placed on the ruling of Wakil Singh and others versus State of Bihar AIR 1981 SC 1392. It is also argued that TIP was conducted with inordinate delay of 10 days, thus it would not help the prosecution. It is further argued that the delay in TI Parade has to be viewed seriously, particularly when the witness had only a fleeting glimpse of the accused at the time of occurrence. Reliance is placed on the rulings of MD. Sajjad @ Raju @ Salim versus State of West Bengal 2017 (1) JCC 531, Suresh Chandra Bahri versus State of Bihar 1995 SCC (Cri) 60 and State of Maharashtra versus Syed Umar Sayed Abbas and others 2016 Cri.L.J. 1445.

124. The request for TIP was made only on 29.04.1997 when accused A-2 was produced before Special Magistrate CBI, Lucknow. The complaint was made by accused A-2 to the Magistrate prior to TIP that he had been shown to Sudhansu Dutt PW-17 during CBI custody. Similar statement was made by accused A-2 in his statement under Section 313 CrPC.

125. It is further argued that PW-17 admitted before the Court that at the time of the incident he became motionless for 2 to 4 seconds. Given the recovery of empties etc. from the place of occurance, number of shots fired and heard by PW-10 , the incident could have been over within seconds. It was impossile for witness PW-17 to notice the details of accused A-2, unknown to him at the time of the incident. No mention as to the identification marks such as complexion, face appearance and moustache etc. of the accused was made by the eye witnesses or in the FIR. No role was assigned to the accused A-2 by the eye witnesses.

126. The arguments taken on behalf of the accused does not dilute the evidentiary value of the statement of PW17 and identification of A-2 by him in Court. Moreover, it is proved by evidence on record that A-2 was kept baparda till T.I. Parade. Dhirendra Kumar Rai, PW22, Inspector, CBI arrested A-2 on 22.04.1997 who stated the A-2 was kept baparda till he was produced before the competent Court in Lucknow on 24.04.1997. To quote his statement:-

eqfYteku dks tc ls fxjQ~rkj fd;k rc ls yxk;r vc rd y[kuÅ l{ke U;k;ky; esa mUgsa is'k fd;k mUgsa cjkcj ckinkZ j[kkA mUgsa fdlh dks ns[kus dk ekSdk ugha fn;k x;kA eqfYteku dks Hkh fgnk;r dh fd os Lo;a dks fdlh dks ns[kus u nsa D;ksafd xokgku }kjk mudh dk;Zokgh f'kuk[r gksuh gSA (P.No.420)

127. Sri V.P. Arya PW67, Deputy SP, CBI, Chief Investigating Officer in this case further confirmed that A-2 was kept baparda till his TI Parade. To quote his words:-

fxjQ~rkjh ds oDr ls 29-04-1997 dks U;kf;d fgjklr esa tsy nkf[kys ds le; rd eqfYte latho egs'ojh cjkcj ckinkZ jgk dksbZ mls ns[k lds bldk ekSdk fdlh dks ugha fn;kA fnukad 29-04-1997 dks Special Magistrate CBI us ;g Hkh vkns'k fn;k Fkk fd eqfYte latho egs'ojh dks ftyk dkjkxkj esa Hkh ckinkZ j[kk tk,A (P.No.659)

128. Sri Jagdish Prasad Srivastava, PW53, Sub Divisional Magistrate, Lucknow, Sadar who conducted the TIP of accused A-2 proved its memo which is Ext.Ka-69 on record. It was stated by this witness that prior to TIP one statement was made by A-2 which was noted down by him on the TI Parade memo column 1. To quote the relevant extract:-

vfHk;qDr latho egs'ojh us c;ku fn;k FkkA f'kuk[r ls iwoZ mldk fooj.k eSaus eseks ds dkye ua01 esa fy[kk tks bl izdkj gSA "fd mls lhchvkbZ dk;kZy; ds ckgj nks rhu ckj fn[kk;k vkSj xokg dk uke lEHkork lq/kka'kq crk;k] ftls eSa vkilh ppkZ ls tku ik;k" foospd dk uke Hkh oh-ih- vk;kZ crk;kA c;ku esa ;g Hkh dgk fd eq>s ,d xokg dks fn[kk;k ftldk uke lEHkork lq/kka'kq crk;k ftls eSa vkilh ppkZ ls tku ik;kA vkilh ppkZ ds lanHkZ esa eq>s dksbZ O;fDrxr tkudkjh ugha gS tks mlus eq>s crk;k ogh eSaus fy[kkA (P.No.570)

129. The complaint of the accused A-2 that he was shown to witness PW17 prior to Test Identification Parade outside CBI office will not ipso jure prove fatal to the case of the prosecution. The witness PW-17 claimed during his statement that he did not see the accused after the incident and it was only during Test Identification Parade that he has seen the accused after the incident. The complaint so made does not, in our opinion, affect the credibility of identification of the said appellant by Sudhanshu Dutt PW17 in the Court particularly when the complaint was vague and it was not supported by cogent evidence. PW17 clearly stated that prior to identification parade, he had not seen the appellant A-2 or his photographs. The statement of this witness has been corroborated by the arresting officer PW22 and investigating officer PW67 as stated above. The testimony of the witnesses could not be shattered in the cross examination.

130. Thus, from the statement of witness PW-22, PW-17, PW-53 & PW-67 and other circumstantial evidence on record it is clear that there was no possibility of the appellant having been shown to the witness PW-17. There was absolutely no reason to rely on the contention of learned counsel for the accused. We find no force in the submission of Learned Counsel for A-2. The contention is of no consequence that Ext. Ka-69 did not reveal that A-2 was sent to jail Baparda.

131. As regards the delay of 10 days in conducting Test Identification Parade we find that in the facts and circumstances of the instant case, it is not fatal. The appellant, as already noticed, was arrested on 22.04.1997 in Meerut who was brought to Lucknow on transit remand and produced in Court in Lucknow on 24.04.1997. The remand was given by the Magistrate concerned on 23.04.1997. A-2 was then taken in police custody with the permission of the Magistrate from 24.02.1997 to 03.05.1997. He was given in judicial custody on 29.03.1997 and thereafter application was moved for the Test Identification Parade on 29.04.1997 which was conducted on 01.05.1997. The TI Parade was justified and legal.

132. Moreover, the witness PW17 identifying the accused A-2 in the Court has to be accepted because the witness has no grudge or axe to grind against the accused. Even if the evidence of identification parade of accused A-2 is not accepted, his identification by PW17 in the Court, and the nature of evidence given by him as discussed above, inspires full confidence about his testimony.

133. Sudhanshu Dutt PW17 saw the accused Vijay Singh and his three associates surrounding the car and making indiscriminate firing and A-1 shooting the deceased D-1 from close range causing serious injuries to D-1, D-2 and Rinku. All this was sufficient to create an impression that would remain imprinted in the memory of anyone who would go through such a traumatic experience. It is a case where the nightmare of the occurrence would stay in the memory of and indeed haunt the person who has undergone that experience. Thus, there being only one identifying witness; or the ground that there was delay of about 10 days in conducting the Test Identification Parade after the arrest of the accused, do not make any material difference in the instant case.

Arrest and Recoveries :

134. Sanjeev Maheshwari, appellant was arrested on 22.04.1997. One pistol/mouser and 13 cartridges were recovered from him. The recovery memo is Ext. Ka 23. Dhirendra Kumar Rai PW22, Inspector, CBI, arrested appellant A-2 from Meerut who stated that under the instructions of Chief Investigating Officer V.P. Arya PW-67, Deputy S.P., CBI and other senior officers he was patrolling in Muzzafarnagar area for the accused Sanjeev Maheshwari and other co-accused. He was accompanied by S.I. J.P. Singh and S.I. A.K. Rawat. On 22.04.1997 when they reached from Daurala to Modipuram during patrolling, they received the information near Modipuram hospital on Meerut Muzzafarnagar road that the wanted accused Sanjeev Maheshwari alias Jeeva alias doctor and accused Sahzad alias Mulla alias Gucha were going on black Yamaha motorcycle to Meerut who were having .30 bore side filler revolver and foreign pistol which were loaded. It was informed that they were good shooters having the cartridges in large numbers who will retaliate at the time of arrest. Thus, they proceeded towards Meerut. They also took one C.P. Ram Parikha Prasad from check post Pallavpuram. When they reached Himalaya Coffee House they saw black Yamaha motorcycle UP 7 D-5385 parked there. They got down there on the pointing out of informer (Mukhbir). They took the idea of the geographical situation of the coffee house. Two people were sitting in the coffee house on the table towards side of the counter. They got shocked and tried to take out their weapons, but before they could succeed they were arrested by the CBI at about 4.20 pm. One of them was Sanjeev Maheshwari alias Jeeva alias doctor S/o Om Prakash R/o 206/3 Prempuri, P.S. Kotwali Muzzafarnagar and other Shehzad alias Gucha alias Mulla S/o Gulfam R/o Chauhanan, P.S. Jawalapur, District Haridwar.

135. The search of Sanjeev Maheshwari was taken in the coffee house in front of all persons present there. One foreign pistol loaded was recovered from left pocket of his trouser. It was unloaded on the spot. There were 7 cartridges in the magazine and one in chamber which were all taken out. The number of the pistol was 21936 which could be read with naked eyes. It appeared that attempt was made to rub this number. The pistol was in working condition. GFL 7.3 Mouser was written on the 6 cartridges and on the other 2 cartridges 21 RPR 63 was written at the bottom. In the right pocket of the trouser 5 live cartridges were recovered of 455 bore. The mark of firing pin was present on the bottom of the cartridges. The recovery memo Ext. Ka-23 was prepared on the spot. The accused were arrested after informing them the reason of their arrest.

136. Dhirendra Kumar Rai PW22, proved that the pistol, cartridges and the motorcycle recovered from the accused were deposited in P.S. Kankarkhera, District Meerut and the case was got registered against them.

137. The incident occurred on the intervening night of 9/10.02.1997. Om Prakash Sharma, PW57, SHO stated that he did investigation of the Case Crime No.109/97 uptill 19.02.1997. He went to the place of occurrence on 10.02.1997 and inspected the spot. Ambassador car No.UP76 A5418 was present on the spot. The site plan is Exhibit Ka-73 on record. The recovery of 3 empty cartridges of brass, 7.63 Mouser where GFL was written at the bottom was made by him from near the right front wheel of the car. One lead piece was recovered from within the bonut and 1 lead piece from the rear seat of the car. Recovery memo Ext. Ka-74 was prepared by S.I. Mahendra Singh on instructions of PW57.

138. PW57 further stated that next day, on 11.02.1997, the team of Forensic Science Laboratory, Agra including O.P. Taneja, Joint Director and R.A. Pandey, Assistant Director, visited the spot and nearby area and made inspection. One bullet and 2 empty cartridges of 7.63 Mouser and 1 empty cartridge of 7.65 mm KF of brass were recovered from the drain in front of the house of the Hitesh Chandra Agarwal. The recovery memo is Exhibit Ka-9. The 3 cartridges of recovery memo Exhibit Ka-74 were exhibited as M.E. 83, 84 and 85. The lead pieces which were recovered under recovery memo Ext.Ka-74 are M.E. 78 and 79. The 2 cartridges which were recovered from the drain are M.E. 80 and 81 and the third one is M.E.86.

139. Shri K S Singh, learned counsel for appellant A-2 contended that the appellant was falsely implicated in this case. Accused A-2 had no motive nor he was associated in any way with any of the accused. He was picked up by the CBI from his house and incriminating articles were planted upon him. Manminder Singh PW-9 is the witness to recovery memo Ext. Ka-9 but he did not support the recovery. The independent witnesses did not prove the arrest of A-2, the recovery of the pistol from him on 22.04.1997. The recoveries were affected after two days of the incident from a place accessible to all. The recoveries were fake and unreliable. The said articles were sent to Forensic Science Laboratory belatedly in July 1997 without any justification.

140. Learned counsel for the accused A-2 further argued that the investigating agency should send the bullet, the recovered article to the Forensic Science Laboratory soon after its recovery and the fact that they chose to wait for the weapon of offence to be recovered, casts serious doubt on the prosecution story. Reliance is placed on the rulings of Surender @ Babli versus State (NCT of Delhi) 2011 (15) SCC 546 and Baldev Singh versus State of Punjab 1990 Cri.L.J. 2604.

141. The recovery of dated 19.5.1997 is also challenged on the ground that it was highly belated which related to recovery of empty cartridge from the car. There was no recovery memo of it on record and the recovery is sham and effected to the prejudice of the accused A-2. It is also argued by the learned counsel for the accused that Sushil/Sunil Kumar Choudhary, the Manager of the coffee house was not examined by the prosecution. No independent witness of arrest and recovery was produced. Thus, it was not proved that in fact Sanjeev Maheshwari was arrested from coffee house.

142. However, there is no reason to disbelieve the statement of PW22. He is a responsible police officer and no suggestion was given by the accused to PW22 that he was having any enmity against the accused. The witness withstood the testimony during cross-examination. There is no ground to reject the evidence of this witness which is fully reliable.

143. The recoveries made under Ext. Ka-9 and Ka-74 etc. were sent to FSL, Agra on 11.02.1997. Appellant A-2 was arrested on 22.04.1997. The articles, which were sent to FSL, Agra were therefore summoned back and were sent to Forensic Science Laboratory, New Delhi alongwith the pistol and cartridges recovered from appellant A-2 on 02.07.1997 for forensic examination. Thus we find no substance in the argument of learned counsel for the appellant A-2 that there was a delay in sending the said articles to FSL, New Delhi. Rather the delay stands explained satisfactorily. The pistol recovered from A-2 was required to be scientifically examined to match the empties. This was possible only after recovery of the pistol, which happened on 22.04.1997.

144. Sri Abhijeet Dey PW48, Senior Scientific Officer, CFSL, CBI, New Delhi stated that the pistol number 21936 was marked as W/1 by him and 8 cartridges were marked as C- 1 to C-8 and 5 cartridges of 455 bore were marked as C-9 to C-13. The cartridges C-2, C-3, C-7, C-8 were used for test firing. The empty cartridges which were recovered on dated 10.02.1997 and 11.02.1997 were sent to FSL, New Delhi through parcel No.3 and pistol and cartridges recovered from A-2 in parcel No. 1. Said 6 empty cartridges which were recovered from near front wheel of the car and also from the drain were marked as C/47 to C/52 out of which C/47, C/48, C/49, C/51 and C/52 were after forensic examination found to be fired from pistol W/1.

145. Thus, it is found established that the empty cartridges which were recovered from the place of occurrence on 10.02.1997 and 11.02.1997 and marked as C/47, C/48, C/49, C/51, C/52 were fired from pistol/mouser No.21936 marked as W-1 recovered from Sanjeev Maheshwari A-2. This proves that accused Sanjeev Maheshwari was present on the spot alongwith Vijay Singh and fired shots indiscriminately which resulted in death of Brahmadutt Dwivedi and Brij Kishore Tiwari and also injured driver Rinku alias Sher Singh.

Conduct of Sanjeev Maheshwari A-2 after incident

146. Chief Investigating Officer, V.P. Arya, PW67 stated that accused Sanjeev Maheshwari absconded alongwith Vijay Singh and two other accused after the incident who had gone to various places and stayed in hotels where they concealed their actual identity. A-2 disclosed his fictitious name as Rajendra Jain. His other three associates were named as Virendra Jain, Arun Jain and Rahul Tyagi.

147. There is sufficient evidence on record to prove that accused A-2 stayed at hotel Kumkum, Mumbai alongwith his three associates from 15.02.1997 to 17.02.1997. There he made forged entry of their names. Mahadev Laxman Golambadi, PW-33 Receptionist cum Manager of hotel proved entry register as MO-39 and the relevant entries are depicted as Exhibit Ka-50 which are marked as Q-17 and Q-18.

148. There is evidence that on 19.02.1997 the reservation was taken by the appellant A-2 in train No.6101 for dated 19.02.1997 from Madras to Rameshwaram where the names were mentioned by accused A-2 as R. Jain and other associates were named as B.Jain, K. Singh and Rahul Tyagi. J. Selvraj PW-36, Chief Supervisor, Railway Station, Chennai proved the railway requisition form which is Exhibit Ka-45 on record marked as Q-8. In the requisition form, the address of Rajendra Jain was mentioned as 1/22, Amer, Jaipur telephone No.530006. In the reservation list R. Jain and his 3 associates were allotted berth No.25, 26, 27, 30.

149. The accused A-2 and his three associates stayed at Gujarat Bhawan, Rameshwaram, Tamilnadu from 20.02.1997 to 22.02.1997. The entry was made by A-2 in the arrival register No.7505 which is proved by P. Nagrajan PW-41 receptionist of the hotel and Kamal Kant Joshi PW-42. The entries made by the accused A-2 were proved from the entry register, cash bill book signature which are Exhibit Ka-50 and Ka-51 respectively on record. These are marked as Q-11 and Q-12.

150. The accused A-2 and three associates stayed at hotel Sukhwas, Tiruvanatpuram on 23.02.1997 where guest entry register No.64 was proved by S. Sibunath PW-30 receptionist and S. Shivkumaran Nayar PW-31 receptionist. The relevant entries are Exhibit Ka-35 and Exhibit Ka-36 and guest register is ME31 (Q-13). Sample of handwriting/signature taken by the CBI from Sanjeev Maheshwari A-2 during police custody remand were marked as S-1 to S-28.

151. Now the question for consideration is whether the Appellant A-2 is the scribe of the disputed notes Ext.Ka-45, Ext.Ka-50, Ext.Ka-51, Ext.Ka-35, Ext.Ka-39, which were marked by handwriting expert as Q-11, Q-12, Q13, Q-17 & 18 respectively. Dr. M.A. Ali PW45, the Senior Scientific Officer-cum Assistant Chemical Examiner, Central Forensic Science Laboratory, CBI compared the specimen handwriting and signature of A-2 with disputed handwriting/signature obtained from aforesaid hotels and railway station. The report is Ext. Ka-58 and Ka-58-A to 58-F. According to handwriting expert the specimen handwriting and signatures accorded with the disputed handwritings and signatures. There cannot be the slightest doubt that the disputed handwriting and signatures were not made by the Sanjeev Maheshwari under disguised name as Rajendra Jain in various registers of hotels/reception slip etc.

152. Viewed in the background of all the circumstances and facts emerging from scientific examination of documents, it will be clear that Sanjeev Maheshwari absconded along with Vijay Singh and other two accused after the incident and travelled to several cities using fictitious names. During this period he concealed his identity by mentioning his name as Rajendra Jain. He stayed in various hotels alongwith his 3 associates. He filled the railway reservation requisition form for himself and for his 3 associates representing himself as Rajendra Jain. There was no reason or occasion for anyone to bring into existence forged handwriting and signature of Sanjeev Maheshwari A-2 in the aforesaid registers/reservation slips.

153. It is argued by learned Counsel for the Appellant A-2 that the handwriting expert's report Ex. Ka-58 & Ka-58A to Ka-58F are not admissible in evidence as Shri M.A. Ali was only a Senior Scientific Officer as far as his qualification as a handwriting expert is concerned. As per Section 293 Cr.P.C. any document purported to be a report under the hand of a Government Scientific Expert is per se admissible in evidence, provided he (Scientific Expert) falls under any of the categories A to G given in Sub-Section 4 to Section 293 Cr.P.C. A Chemical Examiner or an Assistant Chemical Examiner is one such designated Govt. Scientific Expert. Shri M.A. Ali who is a Scientific Expert in this case is also designated as Assistant Chemical Examiner to the Government of India and, therefore, his report is per se admissible in evidence. Of course, the Appellant A-2 had a right to summon such an expert but they did not prefer to avail it. The Appellant A-2, therefore, cannot be permitted now to say that the report of a handwriting expert required a specific proof and inadmissible in evidence. The value to be attached to this report shall be dealt with by us a little later.

154. It is further urged that the police did not have any power to take an accused's handwriting without permission of the Court under Section 73 of the Evidence Act; the Appellants rely on Section 311-A Code of Criminal Procedure (Cr.P.C.) which empowers a Magistrate of the First Class to order an accused person to give his specimen signatures or handwriting.

155. We do not agree with this submission. Section 311-A was incorporated in the statute book only w.e.f. 23.06.2006 and is not retrospective in its application. Section 311-A merely empowered the Court to order an accused to give his handwriting/signatures for the purpose of investigation of his questioned handwriting / signatures which power was not available to the Court as according to Section 73, the Court can order for comparison of signatures/handwriting etc. of any person whose signatures / handwriting is in dispute before the Court. Section 311-A will not relate back to an offence alleged to have been committed in the year 1997 and since Section 73 of the Evidence Act is not applicable, the police had authority to take Appellant's handwriting during investigation.

156. It is true that under Section 73 of the Evidence Act, the Court can direct a handwriting sample of any person only during inquiry or trial to be taken. The law is well settled that obtaining the handwriting of an accused during investigation is not hit by Article 20(3) of the Constitution of India as an accused cannot be said to be a witness against himself, if he is asked to give his handwriting for the purpose of verification of any document purported to be in his handwriting.

157. In the State of Bombay Vs. Kathi Kalu Oghad and Ors. MANU/SC/0134/1961, the eleven judges bench of the Supreme Court came to the following conclusions :-

18. In view of these consideration, we have come to the following conclusion:-

(1) An accused person cannot be said to have been compelled to be a witness against himself simply because he made a statement while in police custody, without anything more. In other words, the mere fact of being in police custody at the time when the statement in question was made would not, by itself, as a proposition of law, lend itself to the inference that the accused was compelled to make the statement, though that fact, in conjunction with other circumstances disclosed in evidence in a particular case, would be a relevant consideration in an enquiry whether or not the accused person had been compelled to make the impugned statement.

(2) The mere questioning of an accused person by a police officer, resulting in a voluntary statement, which may ultimately turn out to be incriminatory, is not 'compulsion'.

(3) 'To be a witness' is not equivalent to 'furnishing evidence' in its widest significance; that is to say, as including not merely making of oral or written Dagduas but also production of documents or giving materials which may be relevant at a trial to determine the guilt innocence of the accused.

(4) Giving thumb impressions or impressions of foot or palm or fingers or specimen writings or showing parts of the body by way of identification are not included in the expression 'to be a witness'.

(5) 'To be a witness' means imparting knowledge in respect of relevant facts by an oral statement or a statement in writing, made or given in Court or otherwise.

(6) 'To be a witness' in its ordinary grammatical sense means giving oral testimony in Court. Case law has gone beyond this strict literal interpretation of the expression which may now bear a wider meaning, namely, bearing testimony in Court or out of Court by a person accused of an offence, orally or in writing.

(7) To bring the statement in question within the prohibition of Article 20(3), the person accused must have stood in the character of an accused person at the time he made the statement. It is not enough that he should become an accused, any time after the statement has been made.

158. In Selvi v. State of Karnataka, MANU/SC/0325/2010 : (2010) 7 SCC 263, a Five Judges Bench of the Supreme Court held that some forms of testimonial acts lie outside the scope of Article 20(3). Certain acts like compulsorily obtaining specimen signatures and handwriting samples are testimonial in nature, they are not incriminatory by themselves if they are used for the purpose of identification or corroboration of the facts that are already in prosecuting agency's knowledge. It was held that obtaining handwriting of an accused for corroboration of the facts already known is thus not barred under Article 20(3) of the Constitution of India.

159. The validity of opinion of handwriting expert is also challenged by learned counsel of appellant A-2 on the ground that the report cannot be acted upon unless substantially corroborated.

160. The question was dealt in detail by the Supreme Court in Murarilal v. State of M.P., AIR 1980 SC 531 where it was observed that handwriting expert is not an accomplice and there is no justification for condemning his opinion evidence. It was held that if the Court is convinced from the report of an expert that the questioned handwriting was of the accused, there is no difficulty in relying upon the expert's opinion without any corroboration. We would like to extract relevant para from the judgment in Murarilal (supra) hereunder:

4. We will first consider the argument, a State arguments often heard particularly in criminal courts, that the opinion-evidence of a handwriting expert should not be acted upon without substantial corroboration. We shall presently point out how the argument cannot be justified on principle or precedent. We begin with the observation that the expert is no accomplice. There is no justification for condemning his opinion-evidence to the same class of evidence as that of an accomplice and insist upon corroboration. True, it has occasionally been said on very high authority that it would be hazardous to base a conviction solely on the opinion of a handwriting expert. But, the hazard in accepting the opinion of any expert, handwriting expert or any other kind of expert, is not because experts, in general, are unreliable witnesses- the equality of credibility or incredibility being one which an expert shares with all other witnesses-but because all human judgment is fallible and an expert may go wrong because of some defect of observation, some error of premises or honest mistake of conclusion. The more developed and the more perfect a science, the less the chance of an incorrect opinion and the converse if the science is less developed and imperfect. The science of identification of finger-prints has attained near perfection and the risk of an incorrect opinion is practically non-existent. On the other hand, the science of identification of handwriting isnot nearly so perfect and the risk is, therefore, higher. But that is far cry from doubting the opinion of a handwriting expert as an invariable rule and insisting upon substantial corroboration in every case, howsoever the opinion may be backed by the soundest of reasons. It is hardly fair to an expert to view his opinion with an initial suspicion and to treat him as an inferior sort of witness. His opinion has to be tested by the acceptability of the reasons given by him. An expert deposes and not decides. His duty "is to furnish the judge with the necessary scientific criteria for testing the accuracy of his conclusion, so as to enable the judge to form his own independent judgment by the application of these criteria to the facts proved in evidence'. (Vide Lord President Cooper in Decie v. Edinburgh Magistrate, 1953 SC 34 quoted by Professor Cross in his Evidence).

6. Expert testimony is made relevant by Section 45 of the Evidence Act and where the court has to form an opinion upon a point as to identity of handwriting, the opinion of a person "specially skilled" "in questions as to identity of handwriting" is expressly made a relevant fact. There is nothing in the Evidence Act, as for example like Illustration (b) to Section 114 which entitles the Court to presume that an accomplice is unworthy of credit, unless he is corroborated in material particulars, which justifies the court in assuming that a handwriting expert's opinion is unworthy of credit unless corroborated. The Evidence Act itself (S.3) tells us that "a fact is said to be proved when, after considering the matters before it, the Court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists'. It is necessary to occasionally remind ourselves of this interpretation clause in the Evidence Act lest we act on artificial standard of proof not warranted by the provisions of the Act. Further, under Section 114 of the Evidence Act, the Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct, and public and private business, in their relation to facts of the particular case. It is also to be noticed that Section 46 of the Evidence Act makes facts, not otherwise relevant, relevant if they support or are inconsistent with the opinion of experts, when such opinions are relevant. So, corroboration may not invariably be insisted upon before acting on the opinion of an handwriting expert and there need be no initial suspicion. But, on the facts of a particular case, a court may require corroboration of a varying degree. There can be no hard and fast rule, but nothing will justify the rejection of the opinion of an expert supported by unchallenged reasons on the sole ground that it is not corroborated. The approach of a court while dealing with the opinion of a handwriting expert, should be to proceed cautiously, probe the reasons for the opinion, consider all other relevant evidence and decide finally to accept or reject it.

11. We are firmly of the opinion that there is no rule of law, nor any rule of prudence which has crystallized into a rule of law, that opinion evidence of a handwriting expert must never be acted upon, unless substantially corroborated. But, having due regard to the imperfect nature of the science of identification of handwriting, the approach, as we indicated earlier, should be one of caution. Reasons for the opinion must be carefully proved and examined. All other relevant evidence must be considered. In appropriate cases, corroboration may be sought. In cases where the reasons for the opinion are convincing and there is no reliable evidence throwing a doubt, the uncorroborated testimony of an handwriting expert may be accepted. There cannot be any inflexible rule on a matter which, in the ultimate analysis, is no more than a question of testimonial weight. We have said so much because this is an argument frequently met with in subordinate courts and sentences torn out of context from the judgments of this Court are often flaunted.

161. Similar view has been expressed by the Supreme Court in SPS Rathore vs CBI and Ors. MANU/SC/1096/2006.

162. We have carefully gone though the disputed notes Q-8,11,12,13,17 & 18 respectively and the specimen handwriting given on sheets S-1 to S-28 and have also examined the report Ex.Ka-58, Ka-58A to F of the expert Shri M.A. Ali, the Senior Scientific Officer-cum-Assistant Chemical Examiner to the Government of India. He has given detailed reasons why he concluded that the questioned handwriting matched with the specimen handwriting of Appellant A-2. Thus, we have no hesitation to conclude that the questioned notes Q-8,11,12,13,17 & 18 are in Appellant A-2's handwriting.

163. The recovery of the pistol from accused A-2 and the matching of the crime empties with crime pistol, the conduct of the accused soon after the incident coupled with his identification by PW-17 are sufficient to hold accused A-2 guilty. In view of said discussion, we are of the view that the evidences against A-2 are of conclusive in nature. The circumstances taken together unerringly point to the guilt of accused A-2. The circumstances proved on record are incompatible with the innocence of accused A-2 and form the complete chain of circumstances. It is proved that in all probabilities the offence was committed by accused A-2.

164. After giving our anxious consideration to the respective contentions of the learned Counsel for the parties and considering the facts and circumstances of the case, we are of the view that Criminal Appeal No. 1219 of 2013 and Criminal Appeal No.1397 of 2003 are liable to be dismissed. The factual situation that emerges from the evidence on record may be summarised thus:

1. The FIR is prompt. The incident took place at 12 midnight, on the intervening night of 9/10.02.1997. The FIR (Ext. Ka-19) was registered at 1.45 a.m. on 10.02.1997. Accused A-1 was named in it. His three associates were unknown at the time of the incident but they were identified by witnesses.

2. The FIR is not anti timed. The complete inquest reports were sent by SI, Jagveer Singh PW-1, who prepared these reports Ext. Ka-1 and Ext. Ka-5 for D-1 and D-2 respectively. No question was put to PW-1 during cross-examination that the FIR and GD report were missing from these reports.

3. The particulars of FIR viz. crime number, date, sections of IPCs etc. were mentioned in inquest reports. It is not acceptable that inquest reports were not in existence till postmortem of D-1 was conducted.

4. The special report was sent through constable Kishan Lal. Head Muharir Hawaldar Singh PW-24 proved that special report was prepared and was sent through Kishan Lal, who delivered it to the office of Magistrate. It is corroborated by GD No. 4, time 1.45 a.m., dated 10.02.1997 Ext. Ka-27, GD report no.7, time 4.15 a.m., dated 10.02.1997, Ext. Ka-28 and GD report no. 35, time 18.35, dated 10.02.1997, Ext. Ka-29.

5. Learned Trial Court compared the handwriting and signature of PW-17 on FIR with his admitted handwriting and signature and found it to be genuine. The argument challenging its genuineness is without substance.

6. The case against Vijay Singh is based on the testimony of three eye witnesses, namely, Sudhanshu Dutt Diwedi PW-17, Prabhu Dutt Diwedi PW-18 and Vijay Kumar Dubey alias Kunnu Mama PW-23. The deposition of the witnesses is trustworthy.

7. The eye witnesses proved that Brahmadutt diwedi, his gunner and driver were subjected to indiscriminate firing by Vijay Singh and his three associates. The fact that D-1, D-2 and driver were so subjected at the time and in the manner stated by eye witnesses, stands proved. Three eye witnesses stated that they had seen the incident on the place of occurrence.

8. The immediate reporting and the consequential medical examination further support their testimony. At the time of incident D-1 was sitting on the left rear seat of the car. Firearm injuries were caused to him from close range, firstly on the left side of neck, chest cavity deep which was charred and secondly on left side of abdomen. These were on vital parts of the body. Third injury was on left forearm near elbow, it was also charred.

9. The presence of eye witnesses PW-17, PW-18 and PW-23 at the place where Tilak ceremony took place is proved by Udit Agarwal PW-3, the cousin brother of Lalit, Manoj Kumar Agarwal PW-10, nephew of Hitesh Chandra Agarwal, Pawan Agarwal, the owner of Mittal Medical Store situated nearby the place of incident, Haridutt Diwedi PW-15, the cousin brother of D-1, Sushil Shakya PW-25 MLA from Kayam Ganj an invitee, Bagish Chandra PW-26, a local advocate and an invitee in the Tilak ceremony.

10. D-1, D-2 and driver Rinku were taken to Jain Nursing Home for treatment immediately after the incident. Dr. Naresh Chandra Jain PW-4 confirmed that driver was brought by PW-17. PW-4 declared D-1 and D-2 as dead and referred the case of driver to Lohiya Hospital. It is proved that OPD cards no. Ext. Ka-12, Ext. Ka-13 and Ext. Ka-14 are genuine documents.

11. Driver Rinku was examined by Dr. Ram Kumar PW-21 in Ram Manohar Lohiya Hospital. He was taken to Lohiya Hospital by PW-17. The OPD card Ext. Ka-22 of Rinku is proved by PW-21 from Original Medico Legal Register of Lohiya Hospital. He confirmed that the injured was brought to the Lohiya Hospital by PW-17.

12. Dr. Naresh Jain PW-4 and Dr. Ram Kumar PW-21 are independent witnesses. It cannot be said that they were colluding with prosecution. The presence of PW-17 on the spot is thus proved.

13. In the instant case, the Trial Court has rightly held that the evidence is sufficient to bring in application of Section 34 IPC.

14. The conduct of investigating agency was not above board. V.P. Arya, Deputy Superintendent of Police, PW-67 submitted first charge sheet Ext. Ka-112 against Vijay Singh only under Section 120-B IPC and not under Section 302 and 307 IPC accepting the statement of accused A-1 as gospel truth. Later on third charge sheet was submitted where A-1 was charged under Sections 302 and 307 IPC. The identification parade of accused Balvindar Singh was not conducted. No justification is given for these lapses. No adverse inference thus can be drawn against the prosecution on the ground that improvements have been made by witnesses before the Court from the statements given under Section 161 Cr.PC.

15. The Trial Court has rightly concluded that the prosecution has not withheld the best evidence by not producing driver Sher Singh alias Rinku, the host Ramji and Hitesh Chandra Agarwal and others. No adverse inference could be drawn against the prosecution on this ground since the evidence was not withheld but witnesses could not be produced on account of non-availability. There was nothing to create any doubt in the mind of the Court since the witnesses examined by the prosecution were trustworthy.

16. There is long string of enmity due to political rivalry between the complainant party and the accused party.

17. Sanjeev Maheshwari A-2 was not named in the FIR. During investigation his name came to light as one of the accused. He was arrested on 22.04.1997 by the CBI in Meerut. He was identified by PW-17 in Test Identification Parade on 01.05.1997 and also before the Court.

18. The empties were recovered from all around the ambassador car on 10.02.1997 and 11.02.1997. The recovery memos are Ext. Ka-74 and Ext. Ka-9. The pistol was recovered from A-2 at the time of his arrest. It was found on forensic examination that crime empties were fired from crime weapon. This establishes presence of A-2 at the place of incident and his culpability.

19. A-2 absconded with A-1 and other accused after the incident. The handwriting of A-2 has been compared with questioned documents taken from various hotels where A-2 stayed in fictitious names evading process of law. The specimen handwriting / signature of A-2 matched with the disputed handwriting which shows the conduct of A-2 after the incident.

165. On going through the totality of the evidence, we have no hesitation to affirm the well-merited findings recorded by the court below. The two accused Vijay Singh A-1 and Sanjeev Maheshwari A-2 were found to have acted in concert and attacked the deceased and injured armed with deadly weapons likely to cause death. The charges are sufficiently proved by substantive and acceptable evidence. The murder, though of a person alleged to be of a mixed record, his gunner and attempt to commit murder of his driver seem to be a calculated one and the manner in which it was got executed by the accused acting in unison in a pre-planned manner to achieve their design, has been rightly held to answer the definition of murder and attempt to commit murder by the trial court, punishable under Section 302 of the IPC read with Section 34, IPC and Section 307 of the IPC read with 34, IPC respectively. The appeals are accordingly dismissed.

166. Appellant Vijay Singh A-1 is directed to surrender before the learned Additional Sessions Judge, Court No.3, Lucknow on 05.06.2017, failing which learned Additional Sessions Judge, Court No.3, Lucknow is directed to take necessary steps to get him arrested for serving the sentence.

167. The Court has been informed that Sanjeev Maheshwai A-2 is in custody in connection with other case(s). We hereby direct that he be taken in custody to undergo sentence, as imposed in this case.

168. Copy of the judgment alongwith Trial Court record be sent back.

169. Before parting with the case we would like to place on record our deep sense of appreciation for the eminent lawyers who assisted us at the hearing. Mr. I.B. Singh, learned senior counsel and Mr. Jyotindra Mishra, learned senior counsel canvassed before us interpreting the relevant provisions of the Constitution of India and other enactments such as Code of Criminal Procedure, 1973, Evidence Act, 1872 and the Indian Penal Code, 1860, and in marshalling the facts and evidences of the case. Mr. Rishad Murtaza Advocate rendered valuable assistance. We place on record our appreciation for Mr. K.S. Singh Advocate and Mr. O.P. Srivastava Advocate. The arguments were advanced by learned counsel on both sides in a non-contentious atmosphere during hearings which took 27 dates. The assistance given by the lawyers enabled us in appreciating and adjudicating the complicated, voluminous and delicate matter involved in this case.

 
Order Date :- 26.05.2017
 
Sarika
 
	 	(Dr.Vijay Laxmi, J.)		  (Ajai Lamba, J.)

Unlock Advanced Research with PRISMAI

Allahabad High Court