Shiv Kumar Fauji vs State Of U.P. on 4 October, 2016

[Cites 5, Cited by 0]

Allahabad High Court

Shiv Kumar Fauji vs State Of U.P. on 4 October, 2016

(Delivered by Hon'ble Arvind Kumar Mishra-I, J.) Head Sri Siddharth Srivastava assisted by Satyaveer Singh and Dharmendra Pratap Singh, learned counsels for the appellant and Sri Saghir Ahmad, Kumari Meena and Hasan Abidi, learned AGA in opposition and perused the record.

This Criminal Appeal is directed against judgment and order of conviction dated 11.10.2004 passed by the Court of Additional Sessions Judge, court no.8, Aligarh in Sessions Trial No.913 of 2003, State Vs. Shiv Kumar Fauji and another under Sections 302, 307, 120B IPC arising out of Case Crime No.153 of 2003, Police Station- Banna Devi, District Aligarh. Appellant Shiv Kumar Fauji has been sentenced to 7 years R.I. coupled with fine Rs.5000/- with default stipulation for additional three months imprisonment, under Section 307 IPC, also sentenced to life imprisonment and fine of Rs.10,000/- and in the event of default, six months additional imprisonment under Section 302 IPC. By the same judgment another co-accused Usha (wife of appellant) has been exonerated of charges under Sections 302, 120-B IPC.

Sketch of prosecution case, as unfolded by the first information report indicates that first informant Rishi Kumar Bhardwaj P.W.1 lodged written report at Police Station Banna Devi on 1.6.2003 at about 4.30 P.M. against the appellant Shiv Kumar Fauji and his wife Usha with averments that informant's brother Shiv Kumar Bhardwaj runs medical store in front of Purna Giri Temple on ITI Road. Accused Shiv Kumar Sharma resides in Ram Nagar locality near the aforesaid medical shop as tenant in the house of Deshraj Singh. He is employed in the army. About 15 days prior to the incident there was some altercation between informant's brother (Shiv Kumar Bhadwaj) and Usha (wife of appellant), whereupon matter was settled by intervention of the other people. After few days of settlement, son of Shiv Kumar Sharma Fauji had disappeared and the appellant and his wife Usha had apprehension that informant's brother had a hand behind disappearance of his son Rahul. Shiv Kumar Sharma had come home on leave. Today on 1.6.2003 some idol installation ceremony was to be held in the Purna Giri Temple and informant's brother (Shiv Kumar Sharma) was present at the ITI Gate, in the meanwhile, informant along with Sunil Kumar Sharma, (brother-in-law of Shiv Kumar Bhardwaj) were coming from Jakrabad side Crossing towards Purna Giri Temple for participating in the ceremony. As soon as they reached in front of ITI Gate when Shiv Kumar Fauji was seen saying to him (informant's brother) that he has caused disappearance of his son. As the first informant proceeded towards the bridge then Shiv Kumar Fauji Possessing DBBL gun with intention to kill his brother fired on him, which fire incidentally deflected after hitting on his hand and hit rickshaw puller Dinesh son of Tarachand. Rickshaw Puller fell down and cry was raised on the spot. Assailant immediately fired on first informant's brother then he also fell down. The assailant after extending threat to the first informant made his escape good from the place of occurrence. At that point of time Veer Pal Singh son of Mohan Singh, Ramesh Chandra son of Yadram Kasyap and Bunty son of Gaden Singh etc. had also arrived and they witnessed the incident. The incident took place around 4 P.M. Because of offence panic was created in and around the area and people ran helter-skelter. Usha wife of appellant had also threatened 15 days prior to the incident on the medical store of informant's brother that he has caused disappearance of his son, she will take revenge. It was requested that Smt. Usha has also conspired with the accused. Report be lodged and action be taken. This written report is Exhibit Ka-1.

Relevant entries were made in the concerned Check FIR at Crime No. 153 of 2003, under section 307 I.P.C. at Police Station Banna Devi, district Aligarh. On the basis of entry made in the Check FIR, a case was registered in the relevant G.D. under the aforesaid crime number and aforesaid section of I.P.C. against the accused. Relevant G.D. entry is Ext.C-3. Thereafter, investigation ensued and Investigating Offier R.K. Singh P.W.6 took over investigation and proceeded to the spot and prepared site plan of the incident, which is Ext. Ka-4 and collected blood stained clay Roll and simple clay Roll and prepared memo of the same, which is Ext. Ka.-6. Besides, he also recorded statement of various witnesses and also seized the D.B.B.L. Gun from the Office of Commanding Officer, Cross Regiment Signal Mathura under intimation to the concerned army authority. He also seized 14 live cartridges and deposited the same at Banna Devi Police Station. Memo of D.B.B.L. Gun is material Ext. 1 and live cartridges 14 in number are material Ext. 2 to 15. It is also reflected from the record and particularly from testimony of CW-2. Vinod Kumar Sharma that both the injured Dinesh and Shiv Kumar died in the hospital in the evening of 1.6.2003 and they were declared brought dead and their respective bodies were sent to mortuary and dead bodies were obtained by the police for completing police formalities for preparing inquest reports and various other papers, which were also completed. Information of death was entered in the concerned register copies of register are Ext. C- 4 and C-5, respectively.

Record further reveals that very same day i.e. on 1.6.2003, information of death of both the injured Dinesh Kumar and Shiv Kumar Bhardwaj, was received at the concerned police station, therefore, on the basis of information, the case was converted under section 302 I.P.C. This G.D. Entry is Ext.C-3 on record.

Investigation followed and in the process, Investigating Officer proceeded to the spot and prepared memo of simple and blood stained clay roll from the spot which is Ext. Ka.-6. Record further takes us to the medical examination of injured Prem conducted at the district hospital Aligarh on 1.6.2003 at 11.55 P.M. wherein Dr. L.K. Saxena noted following injuries on the person of Prem.

1. L. W. 0.8 cm x 0.8 cm x depth not proved on lateral aspects right side chest in inner part.

Cause and nature of injury kept under observation Advised X-Ray. Duration fresh.

This medical examination report is Ext. Ka.-3.

On receipt of information concerning death of Dinesh Kumar and Shiv Kumar Bhardwaj, process was drawn for holding inquest examination of both the deceased and the same was got executed by S.I. Attar Singh at the mortuary Aligarh where he held inquest of Dinesh Kumar between 5.45 P.M. to 6.45 P.M. Inquest report of Dinesh Kumar is Ext. Ka.-7. The inquest witnesses opined that the dead body should be sent for post-mortem examination for ascertaining cause of death.

In the process, relevant papers were also prepared and the dead body was sent for post mortem examination. Relevant papers are Ext. Ka.-8 to Ext. Ka.-12. Similarly, inquest on dead body of Shiv Kumar Bhardwaj was held from 5.45 to 6.45. This inquest report is Ext. Ka.-13. Here also the opinion of inquest witnesses prevailed that dead body should be sent for post mortem examination for ascertaining real cause of death. Relevant papers were prepared for sending the dead body for post mortem examination which is Ext. Ka.-14 to Ka.-16.

Thereafter, post mortem examination on the cadaver of aforesaid two deceased was conducted by Dr. Arjun Singh- P.W.-7 on 1.6.2003 at 10.30 P.M. at the mortuary Aligarh. The following ante mortem injuries were found on examination of cadaver of Shiv Kumar Bhardwaj:

Ante-mortem injuries (1) Gun shot wound of entry 1-1/2 cm x 1-1/2 cm on right front of chest, 5 cm above the right nipple at 2 o'clock position into chest cavity deep, margin everted. On stem right lung mid lobe showing through and through. One metalic piece recovered from back side chest cavity. Direction- front to back.

(2) G.S.W. of entry 1 cm x 1 cm on mid chest, 11 cm above right nipple at 2 o'clock position. Margin inverted, into chest cavity deep. Direction- front to back. On sec- Heart sharing through and through injury. One metallic piece recovered from chest cavity.

(3) G.S.W. Of entry 5 cm x 3 cm on left side upper chest into chest cavity deep. Margins inverted, clotted blood. 7 cm above left nipple 11 o'clock position. Right lung sharing through and through injury. One metallic piece recovered from left chest cavity.

(4) Gutter shaped injury on left side chest inner 1/3rd - margins inverted, outer 2/3 side margin everted into muscle deep.

(5) G.S.W. Of entry 1 cm x 1 cm right ---margin inverted, muscle deep on top. One metallic piece recovered from muscle. Direction- front to back.

(6) G.S.W. Of entry 1 cm x 1 cm on medial side of mid arm left 10 cm above left elbow into muscle deep, margins inverted.

(7) G.S.W. Of entry 1-1/2 cm x 1 cm upper lateral part of left arm margin everted. Direction- from to back ad upwards, injury connecting to injury 6.

(8) G.S.W. Of entry 6 x 2 cm on dorsel of hand on base of thumb, margin inverted into bone deep.

(9) G.S.W. Of entry 7 x 4 cm on palm aspect of right hand, margin everted.

(10) Incised wound 3x1 cm deep back of scalp.

In the opinion of doctor, cause of death was shock and haemorrhage as result of ante mortem injuries. This post mortem report was proved by the Doctor as Ext. Ka.-21.

Similarly, post mortem examination on cadaver of Dinesh Kumar was done at 11.30 P.M. on 1.6.2003 by the same doctor (P.W.-7) who noted following ante mortem injuries :

(1) G.S. Wound of entry 5 x 2 cm on left poster medial part of upper part of arm into muscle deep, margins inverted. Axilla into chest side.

On Sect.- one metallic piece recovered from left front chest in the muscle 9 cm above the nipple 11 O' clock position.

Cause of death was stated to be due to Cardiogenic shock. This postmortem report is Ext. Ka. 22.

After completing investigation, charge sheet was filed by Investigating Officer Nawab Singh P.W. 4 which is Ext. Ka.-5.

Consequently, the case was committed to the court of Sessions from where it was made over for conduction of trial and disposal to the Additional Sessions Judge Court No. 8, Aligarh and it was numbered as S.T. No. 913 of 2003. Prosecution opened its case before the learned trial Judge who being satisfied of prima facie case, framed charges under section 302 I.P.C. and 307 I.P.C. against Shiv Kumar Fauji and and charge under section 302/120B I.P.C. framed against another co-accused Usha- wife of Shiv Kumar Fauji. The prosecution was required to produce its witnesses in order to prove guilt of the accused whereupon prosecution produced Rishi Kumar Bhardwaj P.W.1 who happens to be the first informant and claims himself to be an eye account witness of the incident. Prem Shanker Sharma P.W. 2 is stated to be injured eye witness of the incident. He has deposed about his injury . Dr. Laxmi Kant Saxena P.W. 3 has medically examined aforesaid witness P.W. 2 Prem on 1.6.2003 at 11.55 P.M. who was brought by constable Satish Kumar of Police Station Banna Devi. This doctor has proved medical examination report of Prem as Ext. Ka. 3. Nawab Singh, P.W. 4 is the Investigating Officer. He has described various steps he took in completing the investigation. He has stated that he recorded statement of witnesses besides preparing site plan and also completed ancillary proceedings of the case and filed of charge sheet Ext. Ka. 5. S.I. Atar Singh P.W. 5 is witness of fact of holding inquest of two deceased namely Dinesh Kumar and Shiv Kumar. Both inquest reports and ancillary papers have been proved as Ext. Ka.-7 to Ext. Ka.-12 and Ext. Ka. 12 to Ka.-16. He has also stated facts that he received information from the police out post Rasalganj on wireless that case has been converted under section 302 I.P.C. also therefore, he proceeded for holding inquest.

S.I. R.K. Singh is P.W. 6. He is also Investigating Officer and he prepared site plan Ext. Ka.-4 and took simple clay and blood stained clay roll from the spot and prepared memo of the same which is Ext. Ka.-6. He also sent two constables to Mathura to the concerned military authority for procuring D.B.B.L. Licensed gun of Shiv Kumar, which was obtained and 14 live cartridges were taken in custody from Mathura and this exercise has been proved by him before the Court.

Dr. Argun Singh P.W. 7 has conducted post mortem examination on dead bodies of both the deceased and has proved the same as Ext. Ka.-21 and Ka. -22 respectively. H.C. P. Ramesh Pal Singh C.W. 1 has proved relevant entries made in the concerned check FIR and concerned G.D. and registration of the case against accused and has also proved conversion of case under section 302 I.P.C. and has proved the relevant G.D. Entry as Ext. C-3. Vinod Kumar Sharma C.W. 2 Pharmacist has proved relevant entries made in the register kept for the purpose of status of patients. He has proved Ext. C-4 whereby deceased Dinesh and Shiv Kumar Bhardwaj were reportedly brought at the Malkhan Singh Hospital Aligarh and thereafter memo was sent to the concerned police station for follow up action. Thereafter the evidence for the prosecution was closed and statement of accused recorded under section 313 Cr.P.C. It has been stated by them that due to some previous altercation the informant's side was nursing grudges against the accused and has falsely implicated them in this case. The learned trial Judge after hearing both the sides on merit and after marshalling of facts and appreciating evidence and circumstances of the case returned finding of conviction and imposed life imprisonment coupled with fine of Rs. 10,000/- and with default stipulation 6 months additional imprisonment under Section 302 IPC and seven years rigorous imprisonment coupled with fine Rs.5000 and default stipulation provided three months additional imprisonment, under Section 307 IPC. Both sentences were directed to run concurrently. By the same order the co-accused Usha (wife of appellant) was exonerated of the charge under section 302/120-B I.P.C.

We have been vigorously persuaded on behalf of the appellant that in fact incident was not witnessed by the so-called first informant Rishi Kumar Bhardwaj and he was not present on the spot. No such incident was ever caused by the appellants. Prosecution story on the face is untenable and does not conform to the ante-mortem injuries noted in the post-mortem report of Shiv Kumar Bhardwaj. Categorical assertion has been placed on story of two shots fired on the spot and this story has been consistently maintained by the prosecution and there is not the slightest deviation from that but in the post mortem examination of deceased Shiv Kumar Bharadwaj a number of pellets have been recovered from various parts of the body which exposes hollowness of claim of prosecution case that two shots were fired. This aspect expressly leads to conclusion that no one saw the incident.

Further accentuated that this case is infact a blind murder case and no one has seen the occurrence neither the first informant nor Prem- the so called injured witness- was present on the spot. That is why presence of Prem has not been disclosed in the first information report and injury caused to him can be artificially managed as testified by Dr. Laxmi Kant Saxena P.W.3. This fact has been supported by the testimony of doctor, who medically examined Prem. Had Prem been injured in the same incident around 4 P.M. on 1.6.2003 then his medical examination would have been promptly done at the hospital because the postmortem examination on the dead body of Shiv Kumar Bhardwaj was conducted at 10.30 P.M. on 1.6.2003 and thereafter around 11.30 P.M. postmortem examination on the dead body of another deceased Dinesh was also done. But the medical examination of Prem was done on the same day only at 11.55 P.M. at the same District Hospital while report (Exhibit ka-2) was given at concerned Police Station at 9.30 P.M., which aspect is beyond apprehension of an ordinary prudent man. The inquest witnesses do not include names of Prem and the first informant Rishi Kumar. In the post mortem examination as many as 10 ante mortem injuries have been noted by the doctor and out of 10, 9 wounds refer to gun shot wounds of which wound No.8 and 9 are result of one single shot being wound of entry and wound of exit. It means there are 8 gun shot wounds on the body of the deceased and the 10th ante-mortem wound is- 3 x 1 cm on back side of head on skull. Thus, the admitted version of two shots being fired on the spot is against the evidence on record at particularly the postmortem report of Shiv Kumar Bharadwaj. Thus circumstances of the case speak louder than the oral testimony of fact particularly of P.W.1 and P.W.2, respectively.

While refuting aforesaid argument, learned AGA replied that the case of the prosecution is consistently proved. The testimony of injured witness Prem cannot be brushed aside, merely, on ground that he has been not named in the first information report and examination of his injuries took place the same evening at 11.55 P.M. in the night. But his injury and testimony on the whole proves his presence on the spot, therefore, the version of incident described by this witness is trustworthy and his testimony is relevant and admissible. Similarly, presence of Rishi Kumar P.W.1 on the spot is very much proved. The trial court has based its finding on material on record and the conviction recorded against the appellant is justified.

We have carefully considered the above submissions as well. After hearing the aforesaid submissions and after considering the case of the appellant and the prosecution the core consideration that emerges for adjudication of this appeal relates to fact whether the prosecution witnesses of fact P.W.1 and P.W.2 are reliable and their presence on the spot is natural and the prosecution has been able to prove the occurrence as the sole act of the appellant?

Obviously, we gather from perusal of first information report that the occurrence took place around 4 P.M. and the place was in front of gate of ITI within the police station Banna Devi. Bare perusal of first information report lead us to allegations to the extent that two shots were fired from the DBBL gun of Shiv Kumar Sharma Fauji, the accused. The motive behind the crime is stated to be fact that 15 to 20 days prior to the occurrence son of Shiv Kumar Sharma- say- Rahul had gone missing and the appellant apprehended hand of deceased in such disappearance. As per version in the FIR the incident took place in front of ITI Gate and at that point of time some religious ceremony in the Purna Giri temple for installation of idol was scheduled to take place in the evening on 1.6.2003. Informant's brother Shiv Kumar had gone to the temple to attend the ceremony and in the meanwhile, the informant and one Sunil Kumar Sharma- brother-in-law of deceased Shiv Kumar also arrived at the place of occurrence by scooter for participating in the aforesaid ceremony. As soon as they arrived at the ITI gate when the accused was seen admonishing Shiv Kumar that he had caused disappearance of his son (Rahul). When denied such charge, Shiv Kumar fired with his DBBL gun on the informant's brother, which fire after touching informant's brother on his hand deflected and hit one rickshaw puller- Dinesh son of Tara Chandra- due to which he fell down. Alarm was raised by the people present over there when the accused fired another shot on informant's brother, which hit him (on his chest) and he fell on the ground. The accused after threatening the first informant fled away from the scene. Incident was witnessed by Veer Pal son of Mohan Singh, Ramesh Chandra Son of Yad Ram Kashyap and Bunti. The incident took place around 4 P.M. It is no denying fact that the FIR does not whisper about any injury being caused to any other person except Dinesh and Shiv Kumar; both Dinesh and Shiv Kumar were taken to the Hospital. In this factual backdrop as described in the first information report it would be appropriate for us to make appraisal of facts and the ocular testimony of the occurrence given by the prosecution witnesses of fact P.W.1 and P.W.2.

The most relevant testimony on point of occurrence is that of P.W.1 and in his examination-in-chief, he has deposed that the date and time of occurrence was 1st June, 2003 at 4 P.M. Ceremony for idol installation was fixed in the evening of 01.06.2003 at Purna Giri Temple. Informant's brother had also gone to the temple for participation in the ceremony and this witness- along with brother-in-law of Shiv Kumar Sunil- was coming from Jafrabad side to the Purna Giri Temple. As soon as both reached in front of ITI gate, they saw accused Shiv Kumar Fauzi abusing his brother Shiv Kumar Bhardwaj and was saying to him that he has caused disappearance of his son. The first informant stopped there when he saw that Shiv Kumar Fauji fired on his brother, which fire after touching his hand deflected and hit one rickshaw puller Dinesh, who was standing nearby. Alarm was raised and in the meanwhile, accused fired second shot, which shot hit informant's brother on his chest due to which he fell down. Both the injured were taken to the hospital where they were declared dead. The assailant after threatening to kill secured his escape from the spot. It has been further stated that some time prior to the incident some altercation had taken place between informant's brother Shiv Kumar Bharadwaj and wife of accused Usha. This matter was however settled by intervention of local public. After few days of aforesaid episode accused's son Rahul had gone missing and appellant apprehended hand of Shiv Kumar Bhardwaj in such disappearance. Shiv Kumar Bharadwaj was threatened by Usha that her husband is an army-man and whenever he comes on leave she will see him. P.W.2 Prem, the injured witness has supported the version of P.W.1 regarding firing of two shots by accused on the spot and added that some pellets from first shot also hit him on the right side and the accused when fired second shot it hit him on his chest. Both Shiv Kumar and Dinesh fell down on the ground. Prem P.W.2- has also stated that he got scribed report with one Gyanendra and handed over the same at the police station at 9.30 P.M. and then his medical examination was done at the hospital at the instance of police. He has proved his written report as Exhibit ka-2. He has also stated that he gave the written report at the instance of daroga ji. He further stated that as soon as he was hit by pellets he escaped from the place of occurrence. When the first fire was shot it hit deceased on his hand deflected and hit Dinesh. He has been suggested that his injuries are fabricated only for being a witness, which suggestion he has denied. We may also discuss testimony of P.W.3 (Dr. Laxmi Kant Saxena), who medically examined P.W.2 Prem. This medical examination was conducted at 11.55 P.M. on 1.6.2003. This witness at that point of time was aged about 15 years, who was brought by Constable Satish Kumar to the hospital. Injury report indicates injury in the nature of lacerated wound 0.8 cm x 0.8 cm. Depth not proved on lateral aspect right side chest in lower part. Advised X-ray and kept under observation. Blood clots present. Cause and nature of injury was kept under observation. Duration was stated to be fresh. This injury report is Exhibit ka-3. Doctor witness (P.W.3) in his cross-examination testified to the ambit that this sort of injury can be fabricated by use of knife. This witness has further submitted that this injury can be caused one to two hours prior to the medical examination and it can be caused even 8 hours prior to the medical examination. Upon perusal of testimony of P.W.2, we discover that no plausible reason has been given in lodging the report at the police station by this witness P.W.2 only at 9.30 P.M. when injury was caused to him around 4.30 P.M. on 1.6.2003 and no cogent reason has been assigned for lodging such belated report. This witness has himself stated that people raised alarm on the spot due to which he went to his home but we do not come across either any fact or circumstances as to why he lodged the report at the police station only at 9.30 P.M. In view of the nature of injury and its time ranging between one to two hours and upto 8 hours prior to medical examination there is possibility of injury being artificially suffered. It is most probable that these injuries could have been fabricated by him (P.W.2) in order to give colour to his presence on the spot. There is no whisper either in the ocular testimony of this witness or in his written report Exhibit ka-2 about the inordinate delay in lodging the FIR. P.W.-12 admittedly was 15 years of age on 1.6.2003 but there is no whisper or inkling in his report about any other member of his family whether his family members were in the knowledge of things or not.

Now, we move on to core consideration of presence of P.W.1 on the spot which alone becomes a decider. We have already discussed ocular testimony of P.W.1 regarding the fact of occurrence. It is admitted case of prosecution that only two shots were fired. Here on perusal of the postmortem report of Shiv Kumar we notice that as many as 10 ante-mortem injuries were noticed on examination of which 8 wounds are stated to be gunshot wounds, out of which injury nos.8 and 9 have been suggested result of one fire- with entry wound and exit wound. It means as many as 8 gunshot wounds have been caused on the deceased Shiv Kumar Bhardwaj. A precise description of these ante mortem gunshot wounds is worthy of reference. Injury no.1 is wound of gunshot entry 1-1/2 cm x 1-1/2 cm on the chest. 5 cm above right nipple in 2 O'clock position chest cavity deep margins inverted. One metallic piece was recovered from the chest cavity. This injury as per ocular version of P.W.1 connects to theory of second fire by accused, which hit the deceased on his chest. But the other injuries on the deceased- say- injury nos.2, 3, 5, 6, 7, 8 and 9 are again gunshot wounds and from injury no.2 also same metallic pieces were taken out and injury no.3 is gunshot entry measuring 5 cm x 3 cm on the left side of the chest. Injury no.4 is gutter shaped injury on the left side of chest. Then injury no.5 is in form of gunshot wound of entry 1 cm x 1 cm upper side stomach. Injury no.6 again is gunshot wound of entry 1 cm x 1 cm on the left arm and injury no.7 was gunshot wound of entry 1-1/2 cm x 1 cm upper lateral part of left arm margin everted. Direction front of back. Similarly injury no.8 is gunshot wound of entry measuring 6 cm x 2 cm at the base of right thumb and injury no.9 gunshot wound of exit 7 cm x 4 cm, thumb bone fractured. It resembled with injury no.8 and injury no.10 is incised wound measuring 3 cm x 1 cm on the back of head. The point crops up, if only two shots were admittedly fired on the spot then how such gunshot wounds exceeding two in number were caused on the body of Shiv Kumar. One cannot comprehend such a peculiar situation. No worthy answer has been elicited from the prosecution witnesses of fact particularly from the first informant Rishi Kumar Bharadwaj. The ocular testimony and story of two shots fired on the spot stands negated by the postmortem report of Shiv Kumar Bhardwaj.

Admittedly, one metallic object has been recovered from chest of another deceased Dinesh. This is admittedly the first gunshot wound, which was allegedly fired by the accused Shiv Kumar then the second fire was opened on deceased Shiv Kumar Bhardwaj which as per testimony hit him on his chest. It means Shiv Kumar received only one gunshot wound on his chest, but there are as many as five to six more gunshot wounds of various dimensions on his body than the one on the chest. This is ample proof of non-presence of the first informant on the spot. It shows that he did not witness the incident. Had he been present no such variation in the nature of injuries caused to the deceased would have been occasioned, if only two shots were fired.

Neither informant Rishi Kumar Bhardwaj nor Sunil Kumar Sharma (brother-in-law of Shiv Kumar Bhardwaj) were witness of inquest. This particular circumstance has connotation specific regarding their absence on the spot. Therefore, the manner of incident and style of incident as suggested in the FIR and emerging as ocular version of P.W.1 and P.W.2 is on the face contradictory to the number of gunshot injuries caused to deceased Shiv Kumar Bhardwaj because the number of gunshot wounds have exceeded many times than that stated to have been received by him in the incident. Here we categorically observe that the ocular testimony does not support medical testimony and each aspect are diametrically opposed to each other.

Further, though of little importance the Investigating Officer also did not recover any cartridges from the spot when a number of gunshots were fired on the spot and deceased sustained at least 7 separate gunshots and the FIR was prompt and police arrived on the spot early then a suspicion is created how and why no empty cartridges were found on the spot. Doctor has also stated that these injuries could have been caused by use of at least two firearms. This also raises question mark on number of weapons used in the incident.

Moreso, the DBBL gun so seized by the police was never sent for any chemical examination or ballistic report whether the fire was shot by this gun or not? Only on such varying contradictions in the prosecution version of two fires being opened on the spot and as many as 10 ante-mortem injuries found on the body of Shiv Kumar Bhardwaj the prosecution story in essence is rendered a case of blind murder and this way presence of P.W.1 and P.W.2 at the time of occurrence automatically stands ruled out and this leads us to conclude that both the wittiness of fact are not worthy of credit and as such their testimony more or less is rated as testimony of interested witness, who is keenly interested in ensuring that the appellant is somehow convicted on the ground of animosity. We can conveniently observe that presence of P.W.2 is ruled out for various reasons, we have already discussed and particularly on account of his medical report Exhibit Ka-3, which injury as per testimony of doctor (P.W.-3) can be easily fabricated within one or two hours of the medical examination and may be even 8 hours prior to the medical examination. Thus the phase which favours case of accused would be accorded priority by us.

It is cardinal principle of criminal jurisprudence that 99 accused persons may escape than one innocent be punished for the offence. We may observe that in case the prosecution wishes to prove its case beyond reasonable doubt then testimony of prosecution witnesses must have glitter of confidence and it should be consistent with the prosecution version of occurrence. If the same (prosecution version) is found to be at great variance with the prosecution assertion of the occurrence then the same cannot be believed as inspiring confidence and in such a situation benefit of doubt accrues in favour of the accused.

Learned trial court while marshalling facts and appraising evidence on record failed to take note of above particular aspects of the cases and particularly fact that the story of two fire being shot on the spot stands negated by the postmortem examination of Shiv Kumar Bhardwaj. Still, the trial court recorded finding of conviction against the accused, which finding of conviction being perverse on the face is disapproved by us.

Consequently, the contention raised by the learned counsel for the appellant holds good and the appeal is allowed and judgment and order of the trial court dated 11.10.2004 passed by the Court of Additional Sessions Judge, court no.8, Aligarh in Sessions Trial No.913 of 2003, State Vs. Shiv Kumar Fauji and others under Sections 302, 307 IPC arising out of Case Crime No.153 of 2003, Police Station- Banna Devi, District Aligarh is hereby set aside.

Appellant is in jail. He be set free forthwith, if not wanted in connection with any other case after complying with the provisions of Section 437-A Cr.P.C.

Let a copy of this order be certified to the concerned trial court for its intimation and follow up action.

Dt.4.10.2016 Iss/RK

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