Allahabad High Court
Nishu @ Brijesh Dixit And 2 Others vs State Of U.P. on 22 April, 2020
Equivalent citations: AIRONLINE 2020 ALL 818
Bench: Ramesh Sinha, Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 25.02.2020 Delivered on 22.04.2020 In Chamber Case :- CRIMINAL APPEAL No. - 5194 of 2013 Appellant :- Nishu @ Brijesh Dixit And 2 Others Respondent :- State of U.P. Counsel for Appellant :- Apul Misra,Amit Tripathi,Anees Ahmad,Arvendra Singh,Pradeep Saxena, Pravin Kumar,Rakesh Kumar Rathore Counsel for Respondent :- Govt. Advocate, N.K.Maurya,Vinay Saran Hon'ble Ramesh Sinha,J.
Hon'ble Ajit Kumar,J.
(Per Sinha 'J.' for the Bench)
1. The present Criminal Appeal has been preferred against the judgment and order dated 30.10.2013 passed by the Additional Sessions Judge/Special Judge (S.C./S.T. P.A. Act), Mainpuri in Crime No.541 of 2006, Police Station Bewar, District Mainpuri giving rise to S.T. No.332 of 2007 (State Vs. Nishu @ Brijesh Dixit and others) convicting the appellant no.1 Nishu @ Brijesh Dixit and appellant no.3 Chandan Kumar under Sections 302/120B I.P.C. and sentencing both of them to imprisonment for life along with fine of Rs.10,000/- and in default of the payment of fine to further undergo six months' Simple Imprisonment. Further convicting appellant no.2 Lalit Dixit under Sections 302/120-B I.P.C. and sentencing him to imprisonment for life along with fine of Rs.20,000/- and in default of the payment of fine to further undergo one year's Simple Imprisonment. Further convicting the appellant no.2 Lalit Dixit under Section 504 I.P.C. and sentenced to one year's Rigorous Imprisonment. Further convicting all the three appellants under Sections 384/120-B I.P.C. and sentencing each of them to three years Rigorous Imprisonment. All the sentences were directed to run congruently.
2. The prosecution case as has come up in the FIR lodged by PW1-Ghurai Lal who submitted a written report on 13.12.2006 (Ext. Ka.1) narrating therein that he is a permanent resident of Quazi Tola West, Kasba and Police Station Bewar,District Mainpuri. On 12.12.2006 at about 4.35 p.m. in the evening he along with his wife Smt. Ram Khushi and his son Ambarish Kumar Gupta alias Guddu was returning after taking medicine on his car from Mainpuri to their house. As soon as his car had come down to District Hospital and entered in the Kasba, Nishu, son of Lalit Dixit, Lalit Dixit son of Bal Kishan Dixit, resident of Mohalla Markichiya, Kasba and Thana Bewar, Chandan Kumar son of Nand Kishore Gupta, resident of Mohalla Brahmnand, Kasba and Thana Bewar, District Mainpuri, who were armed with country-made pistols stopped his car by giving a call. As soon as the car stopped, the aforesaid three accused came to the window of the car and after opening the window, Nishu Dixit and Chandan Kumar forcibly took out Ambarish Kumar from the car and by hurling abuses uttered that he poses himself to be a big ration dealer, he will have to give them ration and kerosene oil without any ration card and further have to pay Rs.5,000/- per month to them. On which, Ambarish told that he will distribute the ration as per the rules and he will not pay any form of Chauth (Gunda Tax). On this, Lalit Dixit while hurling abuses stated that since he is becoming a leader, he will not concede and exhorted to kill him and then Nishu Dixit and Chandan Kumar fired shot with their respective country-made pistols with an intention to kill Ambarish, on account of which Ambarish was seriously injured. Thereafter the informant raised alarm to save his son and the aforesaid three accused persons had fled away by displaying their firearms which they were carrying in their hands and by firing shot in the air and because of the terror of the accused persons, all the shop keepers fled away by closing down the shutter of their shops. The informant and his wife took his seriously injured son to the District Hospital, Mainpuri on their own car from where his son was referred to Agra as his condition was critical and in Kamayani Hospital, Agra his son died during treatment. After bringing back the dead body he has come to report.
3. On the basis of the written report submitted to the police station concerned, the First Information Report of the incident was lodged on 13.12.2006 (Ext. Ka.3) by PW1 Ghurai Lal which was registered as Case Crime No.541 of 2006, under Sections 302, 384, 504, 506 I.P.C. and under Section 7 Criminal Law Amendment Act which was registered as Police Station Bewar, District Mainpuri. The relevant entries were made in G.D.No.4 at 4 a.m. on the same day being Ext. Ka.4. The investigation was entrusted to the Station Officer Sri Udai Bhan Singh Yadav (PW5).
4. The panchayatnama of the deceased was conducted at the house of the informant where the dead body was lying at the door of the house. The Investigating Officer appointed Panchas and prepared the inquest report (Ext. Ka.9) between 6.30 a.m. to 7.35 a.m. on 12.12.2006. Thereafter, the dead body of the deceased was sealed and sent for post mortem examination through CP 66 Dina Nath and CP 690 Pawan Kumar to the District Hospital, Mainpuri along-with eight relevant papers. The post-mortem of the deceased was conducted by Dr. R.K. Sagar on 13.12.2006 at 11.50 a.m. which is marked as Ext. Ka.2.
5. The investigating officer proceeded with the investigation on 13.12.2006 itself. He recorded the statement of the informant Ghurai Lal Gupta under Section 161 Cr.P.C. and prepared the site-plan (Ext. Ka 5) after inspecting the place of occurrence. He further prepared the recovery memo of Opel Astra Car No. MH 008990 (Erxt. Ka.6) and thereafter handed over the said car to the informant. He also prepared the recovery memo (Ext. Ka.7) of three empty cartridges of 315 bore which were recovered from the place of incident. Recovery memo (Ext. Ka.8) regarding the plain earth and blood-stained concrete chips taken from the place of occurrence, was also prepared by him.
6. The accused appellant Lalit Dixit was arrested on 14.12.2006 and his statement was also recorded. On 15.12.2006 statements of eye-witnesses Smt. Ram Khushi and Jitendra Kumar Gupta were recorded under Section 161 Cr.P.C. Accused Chandan Tiwari was arrested on 8.1.2007 and his statement was recorded.On 19.1.2007, accused Nishu @ Brijesh Dixit and Chandan Gupta were arrested in a police encounter and from their possession illegal countryman pistols were recovered. The confessional statements of both the accused were recorded. The Investigating Officer further recorded the statements of CP Dina Nath, CP 690 Pawan Kumar, CP 43 Ajant Singh and S.I. Virendra Kumar on 8.2.2007. The statements under Section 161 Cr.P.C. of other witnesses, namely, Ajay Gupta, Jitendra Kumar Gupta, Anil Kumar, Sudesh Chandra Gupta and Pradeep Kumar were recorded on 12.2.2007.After completing the investigation, the investigating officer submitted charge sheet against the four accused persons, namely, Chandan Tiwari, Chandan Kumar, Lalit Dixit and Nishu @ Brijesh Dixit, under Sections 302, 384, 504, 506, 120-B I.P.C. and under Section 7 Criminal Law Amendment Act being Charge Sheet No.30 of 2007 (Ext. Ka.13).
7. The competent Court took cognizance over the charge sheet and after compliance of Section 207 Cr.P.C. on 20.6.2007 the case was committed to the Court of Sessions by the then Chief Judicial Magistrate, Mainpuri.
8. The trial Court framed charges against the accused appellants and co-accused Chandan Tiwari for the offence under Sections 120B, 384/120B, 302/120B and 504 I.P.C. on 1.11. 2007. the accused denied the charges and claimed their trial.
9. The prosecution in support of its case has examined PW1-Ghurai Lal Gupta, informant of the case (father of the deceased), PW2-Smt. Ram Khushi, wife of the informant (mother of the deceased), who are the two eye-witnesses of the occurrence, PW3-Dr. Rakesh Kumar Sagar who conducted the post mortem of the deceased, PW4 CP 59 Shyam Singh who was the Head Moharrir posted at Police Station Bewar and was scribe of the F.I.R., PW5-S.I. Udai Bhan Singh, investigating officer of the case, PW6-Dr.Subodh Kumar, who prepared the injury report of the deceased while being alive at District Hospital, Mainpuri, PW7- S.I. Virendra Singh who had conducted the inquest proceeding and prepared the inquest report and further prepared the recovery memo of two pistols found from the possession of the accused Chandan Kumar and Nishu Dixit.
10. The documentary evidence produced by the prosecution and relied upon by it are Ext. Ka.1 to 16 which are Written Report, Chik FIR, G.D.No.4 dated 13.12.2006, Site Plan of the place of occurrence, recovery of Opel Astra Car No. MH-008990, recovery memo of three empty cartridges recovered from the place of occurrence, recovery memo of plain earth and blood stained concrete chips, Panchayatnama, Photo-Nash, Challan-Nash, letter of C.M.O., Charge Sheet, Injury report of the deceased, recovery of two country-made pistols of 315 bore, Site plan of the recovery of two country-made pistols and arrest of accused Nishu Dixit and Chandan Kumar, Paper no.104-A-report of Forensic laboratory, Agra, dated 5.10.2007.
11. Material evidence which were produced by the prosecution are as under:-
Material Ext. 1-Concrete chips and plain earth recovered from the place of occurrence.
Material Ext.2-Blood stained concrete chips and blood stained earth recovered from the place of occurrence.
Material Ext.3-Under-wear of blue colour recovered from the body of the deceased.
Material Ext.4-Bandage recovered from the body of the deceased.
Material Ext.5-Cotton recovered from the body of the deceased.
12. The statements of the accused under Section 313 Cr.P.C. were recovered by the trial Court on 13.10.2011 and the accused denied their participation in the incident and further have categorically stated that they have been falsely implicated in the present case and the eye-witnesses have falsely deposed against them. Moreover it was also categorically stated by the accused Nishu Dixit and Chandan Kumar that the country-made pistols which were said to have been recovered from them, were false plantation and in fact no such weapon was recovered from them.
13. In defence, the accused have examined Dr. P.K.Gupta as DW1. On behalf of the accused Chandan Kumar , two documentary evidence were filed, i.e., Ext. Kha1-Bed Head Ticket No.7126 of Ambarish Gupta which was prepared at Raja Tej Singh District Hospital, Mainpuri and Ext. Kha-2-Injury rreport of Ambarish Kumar which was prepared at District Hospital, Mainpuri on 12.12.2006 at 5 p.m.
14. PW1-Ghurai Lal in his deposition before the trial Court has reiterated the prosecution story as disclosed by him in the FIR. He stated that his son Ambarish Kumar was murdered on 12.12.2006 at about 4.35 p.m. in Kasba Bewar near sweet shop and his son was shot by the accused appellants. On the day of incident, he along with his wife and son had gone by his car to Mainpuri for taking medicine. He had to take medicine and after taking medicine he was returning to his house on his vehicle and his son was driving the car. As soon as his car reached in front of the shop of Ram Nath, on that moment accused Lalit Dixit, Nishu Dixit and Chandan Kumar Gupta carrying country-made pistols in their hands raised a voice and stopped the car, on which his son Ambarish Kumar stopped the vehicle. Soon after the vehicle was stopped, all the three accused came near window of the car and dragged his son outside the car.
15. Nishu Dixit and Chandan Gupta stated that he poses himself to be a big ration dealer and without ration card he has to give ration and kerosene oil to them and further Rs.5000/- per month is to be given to them, on which his son stated that he would distribute the ration in accordance with the rules and would not pay any Chauth to them. On which, Lalit Dixit stated that he would not concede as he is a big leader and exhorted to kill him, on which Nishu Dixit and Chandan Kumar Gupta fired at Ambarish Kumar with their respective weapons with an intention to kill him. One shot which was fired by the accused Chandan Kumar Gupta hit Ambarish Kumar on his hand and the shot which was fired by accused Nishu Dixit hit on his left eye and as soon as they came out after opening the window of the car, the accused fired in the air and fled away and they raised alarm to save his son. When the shot was being fired on the deceased, he along with his wife and other persons in the market had seen the incident. On receiving the fire shot his son was seriously injured.
16. This witness carried his injured son to the Bewar Hospital which was closed and thereafter he took him to District Hospital, Mainpuri where he was given some medical treatment and medicine and referred to Agra. Thereafter, he took him to Kamayani Hospital, Agra and during the treatment at 12.30 a.m. in the intervening night his son died on account of the injuries. After the death he brought the dead body of his to his house at Bewar.
17. This witnesses in his examination-in-chief has stated that many other relatives had arrived and he did not go to lodge the F.I.R. In the night and had gone in the morning at 4 a.m. to lodge it. The witness proved the paper no.8A, then identified the same to be his written report which was in his hand writing and signature and proved the same as Ext. Ka.1.
18. This witness further deposed that his son was a ration dealer having a fair price shop at Kasba Bewar and his son had kept the accused Chandan Tiwari for the work of weighing of essential commodities at his shop who used to misappropriate the essential commodities and sale the same without the knowledge of his deceased son and when the said act of misappropriation came into the knowledge of his son he removed Chandan Tiwari from the job. Accused Chandan Tiwari started pressuring his son for taking him back in the shop with the help of appellant Nishu Dixit, Lalit Dixit and Chandan Kumar Gupta but his son refused to come under the pressure of the accused persons.
19. This witness further stated that 2-3 days before the present incident, Nishu Dixit and Chandan Gupta had snatched the mobile phone of his son and he went to the house of Lalit Dixit where he found that Chandan Tiwari, Chandan Gupta , Nishu Dixit and Lalit Tiwari were talking to each other and were saying that if Ambarish Kumar is not agreeing then within 2-3 days he will be killed and after that he opened the door and entered in the house and told Lalit Dixit that his son had snatched the mobile of Ambarish Kumar, hence, it may be returned but he did not agree on that and in lieu of returning the mobile Rs.5000 was paid by this witness.
20. In his cross-examination this witness has admitted that in his report (Ext. Ka.1) he has not mentioned any incident related with Chandan Tiwari with respect to the fair price shop but he denied the suggestion that it is wrong to say that there was no ration shop with him at the time of incident or prior to it. The licence of the shop was in the name of his son Ambarish Kumar Gupta. He had not lodged any report against Chandan Tiwari with regard to misappropriation of the essential commodities of the shop. The card holders used to make oral complaints to his son but no written complaint was given to him. He had no knowledge whether any investigation was done by the supply department regarding any shortage in the shop or was detected or not.
21. This witness has further stated that about 1½-2 months ago Chandan Tiwari was ousted from the shop by his son. His son was receiving threats on phone to take back Chandan Tiwari on the shop and regarding the threat his son had told him and in this regard his son had given an information about 3-4 days prior to the incident but he further admitted that no written report was lodged in this regard.
22. This witness further deposed that his son was not having good terms with all the four accused but he had not lodged any complaint with the police regarding the said dispute and only oral information was given to the police. He denied that neither his son nor he had any relationship with the accused Chandan Tiwari.
23. On the cross-examination made on behalf of the appellant Chandan Gupta from the witness, this witness stated that the said appellant used to reside in mohalla Brahmanand and this witness resided in mohalla Quazi Tola and both the mohalla are adjacent to each other and the distance between the house of this witness and and accused Chandan Gupta was about one furlong and there was no common house of the witness and Chandan Gupta nor there was any common land between them. There was no business dealing of the witness with Chandan Gupta but it was with his father. He was having no enmity with Chandan Gupta. This witness had heard regarding the dispute between his son and Chandan Gupta but his son had not lodged any F.I.R. at the police station.His statement was recorded by the investigating officer under Section 161 Cr.P.C. and he told him that there was some quarrel of his son with Chandan Gupta and he could not tell the reason as to why the investigating officer has not mentioned about the same in 161 Cr.P.C.The fact about the dispute was known to the investigating officer prior to giving of the application and hence he did not tell about it. He had further given a written information regarding the conspiracy to the police.
24. The car on which he had gone, was with him and the same was not produced in the Court and was only shown to the investigating officer and he had taken the car to the police station in the morning on 13.12.2006. the Station Officer had given Supurdgi of the said car to him. The father of the appellant Chandan Gupta was initially a driver and thereafter he was running a shop of ornaments. At the time of the incident, father of the appellant Chandan Gupta had expired and he used to run the shop ornaments at Amar Shahid College. The management of the shop was supervised by the Manager Updesh Singh Chauhan of Amar Shahid College.
25. This witness has further deposed that the fair price shop was being run by his son Ambarish Kumar since 2000 which was in his name and now the same is in the name of his wife. There is no partner in the said shop. In the city there were eight fair price shops and his son only used to run the fair price shop and did not other work.
26. This witness further deposed that they were returning after taking medicine from Dr. Pramod Gupta who was an Orthopedic. He used to have pain in his knees, shoulder and neck and the doctor used to give medicine and used to issue prescription but the doctor did not give any prescription to him. He had given medicine to the witness himself. He had gone to take medicines probably between 3- 3 ½ p.m. and proceeded back to Mainpuri at about 3.45 p.m. He had not written in the F.I.R. that he was coming back after taking medicine from Dr. Pramod Gupta nor he has given the statement under Section 161 Cr.P.C. to the investigating officer that he was having pain in his body. He told about taking of the medicine to the investigating officer. He had brought the medicine on the day of the incident only and prior to it he had never visited Dr. Pramod or had taken any medicine from him. Prior to the incident accused Chandan Gupta had not said any bad words to him, his wife was not suffering from any disease, except taking medicine this witness had no work in District Mainpuri. Firstly, he had gone to the office of his son Anoop at Bajaj Alliance and thereafter had gone to the doctor for taking medicine. His son used to live in the office of Bajaj Alliance. At the place of occurrence, the shops were open and the shop keepers were sitting on their shops and there were customers also standing in the market as it was a day of the market. There were no trees on the either side of the road where the incident had taken place. The dispute of his son was with all the four accused. He had not given any application. Whether his son had given any application or not he was not aware of the same and only oral information was given. His son had told him that on telephone he was being abused and when he came to know about the same he did nothing. He did not take any action. He was not aware about the fact that Updesh Singh Chauhan had grabbed the house of Chandan Gupta. He was also not aware of the fact that the shop of the father of Chandan Gupta was given to some other person and further he did not know whether any person of the family of Chandan Gupta resides in Kasba Bewar or not.
27. He had taken his son in the injured condition to Mainpuri Hospital at 5 p.m. and except him and his wife there was no other person. They stayed at District Hospital for about 10-15 minutes. In the District Hospital his son was given bottle of glucose and thereafter referred to Agra. After the incident he had not gone to the police station. The boundary wall of the police station is probably by the side place of the incident. The police station might be at a distance of 200 meters from the place of occurrence.
28. This witness denied the suggestion that he was deposing falsely and was not with his son nor, had taken his son in the injured condition to the District Hospital. On the day of incident he had reached at 8.30 p.m. at Kamayani Hospital, Agra where he was given medical treatment four about 3 ½ hours. At 12.30 a.m. in the night his son was declared dead. He took his son up to Mainpuri in the car in which the incident had taken place. Thereafter, he was taken by Ambulance. At 3 a.m. in the night he had returned to Bewar. In the night he did not go straight to the police station as he was disturbed, therefore, he directly went to his house.
29. This witness further deposed that that he had gone to the police station at 4 a.m. where he found a Constable sitting and showed his written report and further informed about the incident. He got a copy of the F.I.R. within an hour. Head Moharrir had called the Station Officer at the police station. The Station Officer had interrogated him at the police station regarding the fact that where he had gone and was returning back and whether he had not shown to any one in Bewar. No X-ray was got conducted at Mainpuri and got it done afterwords. The mobile phone of his son was snatched three days prior to the incident and the same was snatched by Nishu Dixit, Chandan Tiwari and Chandan Gupta. He did not lodge any F.I.R. regarding snatching of the mobile but had informed about the said incident to Babloo Mishra, Chunnu Dixit, Vinay and others and the said fact was known to all the persons of his mohalla but did not inform at the police station. He did not face any proceeding in the Court. He denied the suggestion that he faced any case in Maharashtra nor, his son was having any case for which he faced any proceedings. The mobile phone was of Motorola and his son was having several sims and his son was having receipts of the same and this witness had no receipts about it.
30. This witness denied the suggestion that In-charge S.O. had brought him in the Court for the offence for cutting of the vehicles. He had written the report at his house and at the time of writing the report,Pradep Kumar, Anil Kumar, Jitendra Kumar, Suresh Chandra and Ajay Kumar were present and he had written the report within 20-30 minutes and all the five persons had gone with him to the police station.
31. This witness further deposed that it took about one hour for conducting panchayatnama by the police and dead body was sent by the police at 7.30 p.m. to Mainpuri and again stated that it was sent at 8 p.m. by vehicle Tata No.407 and he did not go along with the dead body and all the five persons were the witness of panchayatnama. When he had gone to Mainpuri, his son son Ambarish was wearing jeans and printed shirt. At the time of panchayatnama he was not asked about the names of the persons who have shot the deceased, hence, he did not state about them.
32. He further deposed that after the incident Ambarish was taken in the car in a serious condition to the hospital but as the channel of the same was closed hence he was taken to Mainpuri Hospital. He could not identify the persons who had put Ambarish in the car and the said persons could not be traced out by him till date. In the incident his son had received fire shot due to which he became helpless, hence, he could tell whether the shop keepers of the nearby areas had arrived or not and after the incident within 2-3 minutes he had proceeded. The vehicle which was given in his supurdgi he had taken the deceased to the hospital in the said vehicle. No blood was fallen in the vehicle and the place where the deceased was shot, the blood had fallen there and while he was sitting in the car the shot was fired and on account of which he could not tell as to in which direction the gun of the accused were. He denied the suggestion that he was not present at the place of occurrence nor, had seen the incident.
33. In the cross examination done on behalf of the appellant Nishu Dixit, this witness has stated that the doctor from whom he had taken the medicine belonged to his caste and his name was Pramod Gupta. He stated that neither in the F.I.R. nor in his161 Cr.P.C. statement he disclosed that he took the medicine from Dr. Pramod Gupta. After lodging the F.I.R. he proceeded to his house at 6 a.m. From the police station he had gone to the place of occurrence at 5.15 a.m. and remained there for about 45 minutes. The distance of police station from the place of occurrence is 200 meters. When his son was shot, then no police personnel arrived at the place of occurrence. At the place of occurrence three fires were shot and the fire shots were loud one. There was a great chaos and panic in the market. The car was being driven by Ambarish. He was dragged by pulling his collar and whether the same was torn or not, he could not remember. When the first shot was fired, Ambarish did not fall, which hit him on his right hand and at that time his injured hand was on his forehead.The said shot was fired by country-made pistol. The person who had fired shot, was at a distance of 1 ft. towards the south of deceased Ambarish. Thereafter the second shot was fired which hit him below the left eye, while this witness was coming out of the car. Both the shots hit the deceased and it was heavily bleeding. This witness did not pick up Ambarish after fire was shot on him and people of nearby area had picked the Ambarish and he did not remember their names. He had put Ambarish in his car and his blood stained were found in the car. The Sub Inspector did not see the blood. The police had given supurdgi of the vehicle to him. By that time his relatives had wiped off the blood from the seat as the vehicle had been taken to Agra. The blood was wiped off at Mainpuri Hospital. In Mainpuri Hospital, Ambarish had stayed for about 10-15 minutes. The doctor after examining Ambarish had given some medicine to him. This witness told the doctor that the shot was fired by some miscreants and he had also told the doctor at Agra that some miscreants had fired shot. None of the miscreants had fired shot while the car was moving.No pellets hit the vehicle. Pellets and tikli were recovered on the next day from the place of occurrence.
34. On 10.12.2006 a conspiracy of murder to kill Ambarish was hatched. It was about 7.30 a.m. in the morning. This witness has further admitted that in the F.I.R. he did not mention about the conspiracy. The accused suddenly came out from a lane with country-made pistols. It was a busy place. The vehicle was stopped and he did not ask Ambarish to stop the vehicle. All of sudden the accused came out armed with country-made pistols and asked to stop the vehicle. They only asked once to stop the vehicle. The said fact was not stated by him in the report nor, the same was disclosed in the statement before the investigating officer. He did not lodge the report either at Mainpuri or Agra. In Mainpuri the police of Bewar had reached. The police personnel and the son of this witness were signing. This had happened in the evening of 12.12.2006 at about 5.15 p.m.
35. Amongst the police personnel, there was one Sub Inspector and two Constables. The said police personnel did not go to Agra. By 5.15 p.m. to 5.30 p.m. Ambarish had gone by Ambulance to Agra whereas this witness had gone by his car to Agra.
36. This witness further deposed that in the F.I.R. he has rightly mentioned that he came to the police station with the dead body of the deceased and also about the snatching of the mobile phone was not mentioned in the report nor, about giving of the money, for which he cannot tell any reason.This witness denied the suggestion that the police had not recorded his statement under Section 161 Cr.P.C. on 13.12.2006 and recorded thereafter. On 13.12.2006 the police had arrived his house and remained there for about more than an hour and at that time police had not interrogated his wife.
37. He further deposed that his son had purchased the vehicle 2-3 months prior to the incident. This witness did not possess any paper of the vehicle because it was not transferred. The blood was oozing out from the injuries of his son who had fallen at a distance of two paces towards South-East.
38. This witness denied the suggestion that he had not seen the incident and police personnel had informed him at his house and thereafter he came to the place of occurrence. He further denied the suggestion that Ambarish shot dead by unknown person at an unknown place and accused Lalit and Nishu were falsely implicated in the present case.
39. On the cross-examination done by this witness on behalf of the Lalit Dixit, this witness denied the suggestion that he had not admitted his son Ambarish in the hospital but he was admitted by Constable Shyam Singh and he is falsely deposing. He further denied the suggestion that he has falsely implicated Chandan Gupta as he owed some money from his father, which he did not want to pay, who was doing the work of jewellery.
40. This witness further denied the suggestion that he was confined in Muzaffarnagar jail prior to 4-5 days of the incident and was not present at the place of occurrence. He also denied the suggestion that he had shown the stolen car for which he did not produce papers in the Court and also denied the suggestion that accused Lalit Dixit was not involved in the present case and he is falsely deposing against him.
41. Similarly, statement of PW-2 Smt. Ram Khushi who is mother of the deceased and wife of PW1 was also recorded by the trial Court. She in her deposition has reiterated the prosecution case as has been set up by his husband PW1 and for the sake of brevity her evidence is discussed in short by the Court.
42. This witness has stated in her examination-in-chief that her husband had got the deceased picked up from the place of occurrence in the car with the help of passer by and took him to the District Hospital, Mainpuri from where he was given some medical treatment and taken by her husband to Agra where he was referred and when they had reached to Mainpuri Hospital, Bewar police had arrived. Thereafter they took their son to Agra and got him medically treated at Kamayani Hospital where his son succumbed to his injuries at 12.30 in the night. They had brought the dead body of the deceased back to their house. She also disclosed about the conspiracy hatched by Chandan Tiwari who was a helper in the fair price shop of his son and was ousted by him and all the accused hatched conspiracy with ChandanTiwari to kill him as his son had refused to take back the accused Chandan Tiwari in his shop. She also disclosed about the mobile phone snatched by the accused Nishu Dixit and Chandan Gupta earlier as has been deposed by her husband PW1.
43. On the cross-examination made on behalf of Nishu Dixit, this witness deposed that on the day of the incident she had gone along with her husband to Dr. Gupta and reached there at about 3.15 p.m. at Mainpuri. Dr. Gupta had seen here husband and had not given any prescription for medicine. Dr. Gupta was known to his son but cannot tell whether he was his son's friend or not. She was not aware of the fact since when the said doctor was known to his son. Neither she nor her husband had visited to Dr. Gupta prior to the date of incident and had gone to take medicine only on 12.12.2006.
44. She further stated that once her grand-son (Nati) had fractured his hand and on the said occasion also she had gone to Dr. Gupta and and she had gone a year back from the said incident. She did not have any document regarding the said medical treatment. The doctor had not endorsed the name of her husband in the register as he was known to her husband. She denied the suggestion that on the day of the incident she did not go to the doctor. She also did not remember the number of the car in which she had gone. The car was purchased by her son but it could not be transferred, hence, whether it was registered or not she was not aware of the fact. The said car was purchased 3-4 months prior to the incident and from whom the car was purchased she was not aware and the car was brought from Kanpur.
45. This witness denied the suggestion that on the day of the incident she was not having the car. The distance of her house from the place of occurrence is one furlong and the distance of police station from her house is 200 paces. There are 15-16 shops between the place of occurrence and police station. On the day of incident the market was opened and after the shot was fired, it hit her son. Many persons of the nearby area had gathered. The vehicle was not stopped and her son was also not dragged. The shot hit on the right side of the vehicle. When the Ambarish was shot, she along with her husband was sitting inside the car. The first shot which was fired by Chandan Gupta hit the right hand of the deceased and the hand was above the waist. On receiving the first shot Ambarish did not fall and his blood had fallen on one place and after 2-3 minutes the second shot was fired. On hearing the first shot no police personnel had arrived at the place of occurrence and after the shot was fired they came out of the car. They did not pick up Ambarish and she did not know the names of the persons who had picked him up. At the place of occurrence Ambarish was seriously injured and he remained alive for 10-12 hours. She did not see any cartridge on the ground as they had taken the deceased to the hospital. From Mainpuri they proceeded for Bewar at 5 p.m. in the evening and reached at Mainpuri probably at about 5 p.m. It took about 20-25 minutes to reach at Mainpuri. At Mainpuri Hospital the police personnel had arrived. The police arrived within 2-3 minutes after they had arrived Mainpuri Hospital. She did not see whether Sub Inspector was there. The police personnel did not made any interrogation from them. The police did not ask them to lodge a report and it might be possible that the police had asked her husband for the same.
46. This witness further deposed that her husband probably had gone to take medicine. She had not taken her son in her lap as she was sitting in front and her son was sitting at the back seat. Her clothes were blood stained and she had not shown her clothes to the Sub Inspector. She had not gone to the police and her husband had probably gone to police station at 4 a.m. in the morning. They had returned from Agra to Bewar at 3 a.m. in the morning. The police had not gone with her son to Agra. She further deposed that she had no enmity with Nishu whose house was at a distance of one furlong from her house. The dead body of her son was not not taken to the police station and at about 6 a.m. in the morning the police had arrived and the dead body of her son was taken from the house at 7.30 a.m.
47. The investigating officer recorded her statement on 15.12.2006. She denied the suggestion that she had not witnessed the incident and was not present at the place of occurrence.
48. On the cross-examination made on behalf of Nishu Dixit, this witness deposed that she is known to Chandan Tiwari. Chandan Tiwari did not belong to his mohalla as he is a resident of the place where the appellant Nishu Dixit resides. No report was lodged regarding the incident of snatching of mobile phone of her son.
49. She in her cross-examination has stated that she was not suffering from any ailment. She had no work at Mainpuri. She stayed at Dr. Pramod Gupta's clinic for about 1 ½ hours.The doctor had given one tube, some capsules but did not give any prescription. He had given medicine himself. Dr. Pramod Gupta had met her at 3.30 p.m. She had heard the conversation for conspiring to kill her son three days prior to the incident. Her son and her husband were with along with her when they reached the house of accused Nishu Dixit and they did not lodge any F.I.R. about the incident. After the incident her husband had driven the vehicle. She did not have any enmity with the accused Chandan Gupta. She knows one or two shop keepers nearby area. At the place of occurrence all the shop keepers had arrived and amongst them Raju Halwai, Rajpoot Misthan wale, Anoop P.C.O. wale Roop Lal Saxena etc. also arrived and all of them had seen the incident. The shop keepers and passer-by had picked up her son in an injured condition and kept him in the vehicle. She is unaware of the names of the passer-by. She did not disclose their names to the investigation officer. She had gone to the District Hospital and remained there for about 15-20 minutes and many persons had arrived there to see her son. She had informed her younger son that Nishu Dixit and Chandan Gupta had shot Ambarish. Her younger son was having a mobile phone. She had seen the police personnel at at the hospital and the police personnel to whom she met, had informed that Nishu Dixit and Chandan Gupta had fired shot. When she reached the hospital then after 3-4 hours the police had arrived there. The fact that the police personnel had followed her son to the hospital, she had not stated about the said fact to the investigating officer as the investigating officer had not made any query about it. Her husband was along with her in the hospital. She was not aware of the fact whether her husband had any conversation with the police personnel. There was no quarrel of her son with Chandan Gupta ever before. Mobile phone was snatched by Chandan Gupta and Nishu Dixit. There was no quarrel of her with Chandan Gupta with respect to the mobile.
50. This witness denied the suggestion that she was not present at the place of occurrence and she was present at her house. She further denied the suggestion that her son was shot by unknown persons and she arrived at the place of occurrence after an information was given to her by the police. She also denied the suggestion that her husband had arrived at the hospital after he was given an information by the police personnel. She also denied the suggestion that she had made a call to her younger son Anoop on his mobile and on her call her son had arrived at the hospital. She also denied the suggestion that her son was admitted in the hospital by Head Constable Shyam Singh in an injured condition.This witness again stated that the deceased Ambarish was admitted in the hospital by Head Constable Shyam Singh and her son Anoop in an injured condition.
51. PW3-Dr. Rakesh Kumar Nagar in his deposition before the trial Court has stated that on 13.12.2006 he was posted at District Hospital, Mainpuri on the post of Senior Child Specialist and on the said date he received the dead body of the deceased Ambarish in a sealed clothe from Constable Dina Nath and Pawan Kumar who had brought him Bewar. He conducted the post mortem of the deceased on the said date and found the following ante-mortem injuries on his person:
"1.Fire-arm wound of entry 1 cm. x 1 cm. x bone deep on medial aspect of right fore-arm.Margins inverted, blackening and tattooing present in area of 6 cm. x 4 cm. around the wound 3 cm. above to wrist joint fracture of underlying of tibia, direction backward and upward.
2. Fire-arm wound of exit 2.5 cm. x 1 cm. x bone deep and communicate to injury no.1. Margins everted.
3. Fire-arm wound of entry 1.5 cm. x 1 cm. x bone deep on left side of face just below lower eye lid. Blackening and tattooing present in an area of 4 cm. x 4 cm. around the wound. Margins inverted, fracture of underlying of Zygometic bone, left eye ball missing, direction backward and upward."
52. On the internal examination he found metallic bullet in the occipital region which was taken out by him and handed over in the sealed envelope to the Constable.The brain and its membrane were lacerated.
53. In the opinion of the doctor, the cause of death of the deceased was shock and hemorrhage as a result of ante mortem injuries. He has proved the post mortem report as Ext. Ka.2.
54. This witness in his cross-examination has stated that the deceased was shot within a distance of 3 ft. and the injuries which were received by the deceased could be possible in a sitting position and the person who caused injuries to the deceased was just right in front of the deceased and if the deceased was shot from left to right direction then the said injuries could not be caused. Both the injuries could be caused by one weapon. The shot which hit the hand, could also result injury possibly on head also.
55. P.W.4 Shyam Singh has deposed before the trial court that on 13.12.2006 he was posed at police station Bewar, district Mainpuri as Head Constable. On the said day at about 4 a.m. in the morning Ghurai Lal Gupta along with Pradeep Kumar, Suresh, Ajay and Jitendra had come to the police station with the written report against Nishu Dixit, Lalit Dixit, Chandan Kumar with respect to an incident in which it has been stated that the said accused had attempted to kill Ambrish Kumar by fire-arm shot and had given the report at the said police station which was shown to him as Ext. Ka-1. On the basis of the said report, he prepared Chik FIR and registered as Case Crime No.541 of 2006 under Section 302, 384, 504, 506 IPC and 7 Criminal Law Amendment Act and endorsed the same in the G.D. No.4 on 13.12.2006 at 6 p.m. The papers for conducting panchayatnama was given to S.O Udaibhan. He proved the Chik FIR in his handwriting and signature as Ext. Ka-3. In his cross-examination he has stated that prior to 13.12.2006 Ghurai Lal Gupta had never come to him at police station with the written report. He stated that he was at police station on duty for last 24 hours. All the entries were made on 13.12.2006 were not in his handwriting and were of Assistant Moharrir and Sub-Inspector. The incident has taken place on 12.12.2006 at 4 p.m. The distance of police station from the place of occurrence is 200 meters. The place of occurrence is between district hospital and kasba Bewar. On 12.12.2006 he was on duty as Head Moharrir at the police station. Photocopy of the G.D dated 12.12.2006 was produced on behalf of accused persons which was shown to the witness and he stated that G.D. No.22 (time 16.37) is in the handwriting of his assistant C.C.580 Mohd. Ashfaq and G.D. No.21 (time 16.31) is in his handwriting and G.D. No.12 (time 16.37), an endorsement was made regarding the fact that S.I. Om Pal has given an information which has been endorsed in the said G.D. He denied the suggestion that after receiving the information which was endorsed in G.D. No.22 dated 12.12.2006 he took Ambrish Gupta to District Hospital, Mainpuri instead his family members took Ambrish Gupta to Mainpuri Hospital and thereafter he along with police officials had followed him to the hospital for security purposes. He further denied the suggestion that he took injured Ambrish to the police station and the doctor had conducted the medical examination of the injured at his instance. There was signature of the witness in the bed head ticket. He further submitted that from the police station no chitthi majroobi was taken by him. It was stated by him in his cross-examination that he had returned back to the police station on 12.12.2006 which was also endorsed in the G.D. No.22 (time 16.37). Prior to it the information was already given by the Station Officer through wireless at the police station. In G.D. No.22 (time 16.37) endorsement about the said fact has been given. He had not submitted the medical examination report of Ambrish Gupta at the police station and he remained at Mainpuri Hospital till he was referred to district Agra. Thereafter from the hospital he came back to police station Bewar. Ghurai Lal did not met him near the injured at the hospital. Ghurai Lal met him till he remained in the hospital. The mother of the injured was crying and he did not have any conversation with her who also did not tell him anything. The injured was sent to Agra along with S.I. Ompal Singh and constable for security purposes. On 13.12.2006 at 7.15 in the morning Ompal returned to the police station Bewar. The Investigating Officer of the case returned to the police station after investigation on 13.12.2006 in the night at 21.40 hours. In the G.D. no endorsement of the statement of any witness was mentioned. In the hospital, the medical examination report of the injured was taken by his family members which was received by him and given to his family members. The said fact was endorsed by him in the G.D. He denied the suggestion that the medical examination report of the injured was concealed by him and was falsely deposing. The Investigating Officer had recorded his statement under Section 161 Cr.P.C. and he had not asked from him about the medical treatment of the injured nor he disclosed about the said fact to him that he got the medical examination of the injured done. He did not inform the Investigating Officer that he had accompanied the injured nor he had told that he had given the copy of the medical examination report to the family members of the injured. The Investigating Officer was aware about the incident from before.
56. P.W.5 Udai Bhan Singh has deposed before the trial court in his examination-in-chief that on 13.12.2006 he was posted as Station House Officer at police station Bewar, district Mainpuri. In his presence, the informant Ghurai Lal Gupta who has submitted a written report about the incident on the basis of which the FIR was registered against Nishu Dixit, Lalit Dixit, Chandan Kumar as Case Crime No.541 of 2006 under Section 302, 384, 504, 506 IPC and 7 Criminal Law Amendment Act at Police Station Bewar. He thereafter took over the investigation of the case. On 13.12.2006 he recorded the statement of Head Moharrir constable Shyam Singh informant Ghurai Lal Gupta and made spot inspection of the place of occurrence and prepared the site-plan of the same as Ext. Ka-5 and also further recorded the statement of the other witnesses. He further prepared the recovery memo of Opal Extra Car No. MH OU-800 of silver colour at the place of occurrence in the presence of the witness Munar Zafar and thereafter given Supurdagi of the said car to the informant Ghurai Lal Gupta and proved the supurdaginama as Ext. Ka-6. Thereafter he recovered three empty cartridges of 315 bore carrying to the case and prepared the recovery memo in the presence of Ajay Gupta and Jitendra Gupta and sealed the same. The recovery memo was marked as Ext.Ka-7. He also prepared recovery memo Ext.Ka-8 of the plain earth and blood-stained earth taken from the place of occurrence in the presence of witness Ajay Gupta and Jitendra Gupta. Thereafter he visited the house of the informant Ghurai Lal Gupta where he instructed S.I. Virendra Kumar Singh to conduct the inquest proceedings on the dead-body of the deceased Ambarish Kumar Gupta @ Guddu and he proved the same as Ext.Ka-9. He prepared the Challan Nash and Photo Nash as Ext.Ka-10 and 11 and after the panchayatnama was conducted, the dead-body of the deceased was sealed and sent for postmortem by constable Deena Nath and Pawan Kumar in whose custody the same was given on 14.12.2006. He arrested the accused Lalit Dixit and recorded the statement and further on 15.12.2006 he recorded the statement of Smt. Ram Khushi, Jitendra Kumar Gupta and further he raided the house of the accused for arresting them. On 28.12.2006, he took an order for initiating proceedings under Section 82/83 Cr.P.C against accused Nishu Dixit, Chandan Kumar Gupta and Chandan Tiwari. On 2.1.2007 he received an information that accused Nishu Dixit @ Brajesh Dixit, S/o Lalit Dixit who is wanted in Case Crime No.506 of 2006 under Section 392, 411 IPC who in collusion with his parents and younger brother conspired and got arrested Ishu in place of Nishu who has been sent to District Jail, Fatehgarh for which a report was obtained from in-charge Inspector Gursahai Ganj, district Kannauj for taking action, the same has been proved as Ext.Ka-12. He also recorded statement of Head Moharrir Dharmendra Kumar and A.S.I Omkar Shukla of police station Gursahai Ganj, district Kannauj. On 3.1.2007 he has got executed the order under Section 82/83 Cr.P.C. against Nishu Dixit and Chandan Kumar Gupta. On 4.1.2007 he arrested accused Chandan Tiwari and recorded his statement. On 19.1.2007 he arrested accused Nishu @ Brajesh Dixit and Chandan Gupta in a police encounter for which FIR of Case Crime No.67 of 2007 under Section 307 IPC which was registered against Nishu and Chandan Gupta and also Case Crime No.68 of 2007 and Case Crime No.69 of 2007 under Section 25/3 Arms Act was registered against both the accused and also made a recovery of country-made pistol which was involved in Case Crime No.541 of 2006 under Section 302, 384, 504, 506 IPC, 120-B IPC and 7 Criminal Law Amendment Act. After recording the statement of Ajay Gupta, Jitendra Kumar Gupta and Anil Kumar, Sudesh Chand Gupta and Pradeep Kumar on 12.2.2007 Charge Sheet No.30 of 2007 was submitted against accused Chandan Tiwari, Chandan Gupta, Lalit Dixit and Nishu Dixit @ Brajesh Dixit which he has proved as Ext.Ka-13. He has further proved the material Ext.1 and 2 which are blood-stained.
57. In his cross-examination the witness has stated that the distance of police station from the place of occurrence is 200 meters and while he was making spot inspection of the place of occurrence, he had interrogated the shop keepers whose shops were near the place of occurrence. In this regard he recorded the statement of shop keeper Anoop Singh and Roop Lal who have stated that at the time of incident they were present at their shop but have not witnessed the incident. The distance of the shops of Roop Lal and Anoop Singh was 8-10 paces from the place of occurrence. Prior to the registration of the present case at the police station he did not take any action. He was not present at the time of incident at police station as he was busy in some other place. He could not remember as to which place he had gone. He had conducted the panchayatnama of the deceased on 13.12.2006 at 6 p.m. and concluded by 7.35 a.m. While conducting the panchayatnama he did not ask the names of the accused. He has seen the injuries three in number. No money was found in the pocket of the deceased. At the time of conducting of panchayatnama, the deceased was only wearing underwear and found no other clothes on his body. On further cross-examination he has stated that on 12.12.2006, he has received an information about the incident at about 3-4 p.m. On receiving the information of firing, constable S.I. Yashpal Singh and Head Constable Shyam Singh and Constable Kunwar Singh were informed to have gone to the place of occurrence. In the night of 12.12.2006 he received an information that Head Constable Shyam Singh had gone to the injured in District Hospital, Mainpuri. This witness did not go to the hospital at Mainpuri and on 12.12.2006 he did not proceed with the investigation about the incident. In the night of 12.12.2006, he had reached the place of occurrence but did not remember the time. He did not remember whether any shop keeper had told the name of the injured or the accused. He further did not remember that on 12.12.2006 he contacted S.I. Yashpal, Head Constable Shyam Singh and Constable Kunwarpal. During investigation he had recorded the statement of Head Constable Shyam Singh but did not record the statement of S.I. Ompal Singh and Constable Kunwarpal. He recorded the statement of Head Constable Shyam Singh on 13.12.2006. He stated that in the statement of Shyam Sing recorded u/s 161 Cr.P.C., it was not stated by him that he had admitted the injured. Head Constable Shyam Singh had given him the statement regarding registration of the FIR. Head Constable Shyam Singh has not given his statement that he had admitted the injured in the hospital or he was with him. He does not remember whether he interrogated Head Constable Shyam Singh that he was with injured or he had admitted him on 12.12.2006 in the hospital. After perusing the case diary he stated that he has not mentioned that Shyam Singh had admitted the injured. He also did not remember whether he had asked from Head Constable Shyam Singh that who was accused involved in the incident or the deceased in the injured condition or his father had disclosed the name of any accused or not. The statement of Head Constable Shyam Singh in this regard has not been mentioned in the case diary. The shop keepers of the nearby areas had not given an eye-witness account and they have only given hearsay evidence. He has not mentioned in the case diary whether the informant has stated in the statement u/s 161 Cr.P.C. for taking medicines from Dr. Pramod Gupta. In the statement recorded u/s 161 Cr.P.C. of informant Ghurai Lal Gupta and his wife does not find fact about taking the medicines from Dr. Pramod Gupta. He did not record the statement of Dr. Pramod Gupta under Section 161 Cr.P.C. He has given the supurdagi of the car which was used in the incident to the informant and he does not remember who is the owner of the said car. He did not remember whether he has seen the papers of registration or not. In the case diary he also could not mention about the registration of the vehicle. He has seen that blood-stains were found on the seat inside the car but did not take the same in his custody. He did not remember whether Ghurai Lal Gupta or Smt. Ram Khushi had shown blood-stained clothes or not. He further stated that if the blood-stains were found on their clothes then he did not think to be relevant to make a mention of the same. He did not remember whether he had made a query from the informant regarding the conspiracy hatched by Chandan Tiwari or not. He had seen the chik FIR and tehrir FIR in which it was written that the deceased was taken in an injured condition to District Hospital, Mainpuri for treatment and from where he was referred to Agra. The medical certificate of the deceased from District Hospital was not collected by him during investigation. He was not present at the time of the incident at the police station, hence he had not mentioned about the said fact in the G.D. He had met Head Constable Shyam Singh and in his presence the FIR was registered. He did not remember whether he had made any query from Head Constable Shyam Singh regarding the injured. The witnesses of the incident had told him that the injured was medically examined at District Hospital, Mainpuri. He did not collect any papers of the injured regarding his treatment at Agra. He stated that during the course of investigation it was necessary to collect the papers but he did not collect the same. He denied the suggestion that he deliberately did not collect the papers regarding his medical treatment. He had seen the place of occurrence and distance of the place of occurrence from the police station is 200 meters He has further seen the house of the informant. He could not tell approximate distance of the police station from the house of the informant. He visited the house of the informant on several occasions and the distance of the house of the informant from the place of occurrence is 300 meters towards North East. The place of occurrence from the police station is towards South-West. It is correct that the incident has taken place on old G.T. Road. He could not tell that from how much distance the fire shot can be heard. It is not necessary that the fire shot can be heard at the police station from the place of occurrence. He admitted the fact that on 12.12.2006 at 16.37 hours in the G.D. there is an endorsement of fire shot from the side of District Hospital. S.I. Ompal Singh on receiving the information of firing had left towards place of occurrence. The information was received at the police station by wireless and the higher officials were also informed about the incident from the police station by wireless. S.I. Ompal Singh and Head Constable Shyam Singh had not disclosed the names of the accused persons. He did not come to know about the medical examination of the injuries of the injured Ambarish at the time of the registration of the FIR and when he had recorded the statement of the informant he came to know about the said fact. He did not remember that when the deceased was injured, he was speaking or not and he did not ask any witness about the said fact. He further did not remember whether he had asked Head Constable Shyam Singh that whether the injured Ambarish while being admitted to the hospital was speaking or not. He did not go to the doctor who had medically examined the injured Ambarish while he was in District Hospital, Mainpuri. He further did not record the statement of the doctor who had medically examined the injured. He further did not remember whether any declaration was made by the injured to the doctor or not. He further did not take the statement of Anoop Kumar Gupta, the brother of the deceased. He did not remember that who were the persons who got the deceased medically treated while he was alive. It is a relevant fact that the informant and his wife had taken the deceased while being injured for medical examination. Blood-stains were found in the car but he did not take the same in his custody. He took the blood from the place of occurrence. The informant in his statement under Section 161 Cr.P.C. has stated that Nishu Dixit, Lalit Dixit, Chandan Kumar Gupta had got the car stopped. It was further stated by the informant that the deceased was dragged from the car and he did not got down himself. He did not remember that whether he made any query that who were the persons who had picked up the injured and kept him in the car. He did not remember whether he made a similar query at the place of occurrence. He had recorded the statement of Head Constable Shyam Singh under Section 161 Cr.P.C. on 13.12.2006. He admitted the fact that in the statement of Head Constable Shyam Singh it has not been mentioned that by which vehicle the injured was taken to the hospital. He further stated that it is correct fact that on each day the copy of the G.D is signed by the Station Officer and sent to the higher authorities and he was the Station Officer of the concerned police station. On 12.12.2006 also he must have countersigned the G.D. and sent to higher authorities. When the G.D. dated 12.12.2006 was shown to the witness then he identified and proved his signatures on the same. On 12.12.2006 he had read the G.D and then signed the same. He did not take the blood-stains on the seat of the vehicle by cutting the same in his custody and further did not think it necessary for taking any documents. Rs.5,000/- per month was being demanded as Chauth (goonda tax) by the accused Chandan Gupta from the deceased on account of which his mobile was snatched. He denied the suggestion that at the behest of the informant he has not carried the impartial investigation. He further denied the suggestion that during the course of investigation the real culprits have not been brought to book.
58. P.W.6 Subodh Kumar has deposed before the trial court that as on date on 12.12.2006 he was posted in the District Hospital, Mainpuri as Surgeon and at 5 p.m. on the said day he had medically examined Ambarish Kumar Gupta who was brought by Head Constable Shyam Singh and he found following injuries on his person:-
" (I) Fire-arm wound of entry 0.5 cm x 1 cm x depth not probed present on left side of face just below left eye. Margins inverted, bleeding present over the wound, advised X-ray, tattooing present over the face.
(ii) Fire-arm wound of entry present on outer part of right fore-arm 0.5 cm x 0.5 cm x bone deep on the inner side 1 cm above right wrist. Margins inverted, fresh bleeding present, tattooing present around the wound, advised X-ray.
(iii) Fire-arm wound of exit present on radial side of right fore-arm 2 cm x 1.5 cm x bone deep. Margins averted. Wound through and through to injury no.2 (advised X-ray) bleeding present."
59. He has proved the medical examination report as Ext. Ka-14 and further advised X-Ray and he was bleeding. The general condition was critical. His nerves were weak and he was unconscious. As his condition was critical, he was referred to higher centre. The injuries were caused by gun-shot and kept under observation. X-Ray was advised. The injuries were fresh. He was referred to S.N. College, Agra. The said injuries can be caused on 12.12.2006 at 4.35 p.m. by country-made pistol.
60. In his cross-examination the witness was shown medical examination Ext.Ka-14 of the injured and he could not tell on which register said injury report was endorsed. The person who brings the injured, his name is mentioned in the medical examination report and the bed-head ticket on which medical examination of the patient was mentioned. On showing the medical examination he could not tell whether the same was written on Chitthi Majroobi or not. In his cross-examination he has further stated that the injured Ambarish Kumar Gupta was admitted by Head Constable Shyam Singh and Anoop Kumar Gupta. He was admitted on 12.12.2006 at 5 p.m. in the evening. The condition of the injured was mentioned in the bed head ticket and his condition was critical. The injured was referred to S.N. Hospital, Agra at 5.15 hours. On the bed head ticket paper no.87-A was marked as material Ext.Kha-1 and medical examination report paper no.88-A was marked as material Ext.Kha-1. On the bed head ticket, there is signature of Head Constable Shyam Singh and Anoop Kumar Gupta (brother of the injured) who had brought the injured and both of them have signed the same in his presence. The medical examination register which he had brought in the Court was an accidental register and it was not a police case register. The injured was brought by the police personnel. Whether the police was informed or not can be only stated after seeing the police register. The injured was unconscious and in critical stage who was immediately referred to Agra, hence could not record his dying-declaration. He could not remember to ask by the police personnel whether it was a case of accident or a police case. After the medical examination of the injured and giving him medical treatment, he was referred to Agra. It is correct that any police personnel who brings the patient comes along with Chitthi Majrubi. Head Constable Shyam Singh has not brought Chitthi Majroobi and the medical examination was endorsed in the accidental register.
61. P.W.7 S.I. Virendra Kumar Singh has deposed before the trial court that on 18.01.2007 he was posed as S.I. at police station Bewar, district Mainpuri and vide G.D. No.41 time 21.10 hours of the said police station he along with S.I. Ompal Singh, S.I. Suleman Khan and three constables were on patrolling duty for the wanted accused and on 19.1.2007 while he was present in the morning at Vand hotel, they received an information from a police informer that accused for the murder of Ambarish Kumar Gupta few days before are present on crossing of G.T Road near P.C.O and waiting to go somewhere. On believing the said information, the police party proceeded towards it and also tried to take witnesses but no one was ready and they arrested the accused Nishu @ Brijesh Dixit on 19.1.2007 at 7.15 p.m. On his search a country-made pistol of 315 bore along with two empty cartridges in it was recovered from his right pocket and fresh smell of the same was coming out and other accused Chandan Gupta from whom identical recovery was made was also arrested and confessed their guilt about the murder of the deceased Ambarish Gupta. A country-made pistol and two cartridges which were recovered from them and recovery memo was prepared and case was registered against them. The charge-sheet was also submitted under Section 25-A of the Arms Act and put to trial in S.T. No.237 of 2007 under the Arms Act. The said weapons were sealed along with cartridges and the same was proved as material Ext.Ka-1 to Ka-4 and Case Crime No.67 of 2007 under Section 307 IPC and Case Crime No.68 of 2007 and 69 of 2007 under Section 3/25 Arms Act were also registered against two accused and the site-plan regarding recovery was also made by the witness.
62. The accused in their defence have examined Dr. P.K. Gupta as D.W.1 before the trial court who stated that he was running an Ortho and Fracture Clinic at Kutchehry Road, Mainpuri. He stated that he did not know Ghurai Lal personally. He further could not tell whether he had medically examined him or not and he only gives treatment to the patient who have suffered any injury or suffering from any ailment of bones and those patients only who prepares bed head ticket and he does not treat any general patient. In December, 2006 he has not made any bed head ticket of Ghurai Lal. The patients whose he had prepared the bed head ticket on 12.12.2006, he is not having the record of the same before the Court and on 12.12.2006 the patients in whose respect bed head tickets were prepared, their names he does not remember. On 12.12.2006 the patients who have been treated their names he does not remember. On 12.12.2006 the patients indoor and outdoor register he has not brought. He used to right prescriptions of small patients. The persons who complain the pain in bones he used to give prescriptions and the patients who are known to him, he gives them sample medicines. Ghurai Lal Gupta was not familiar to him. Daily he used to see 10 to 20 patients and he could not tell their names after five years. There is none other doctor of his name as Orthodox Surgeon in district Mainpuri nor there is any doctor by the said name. He was not aware of the fact that the accused had any relationship with Kishan Dubey, Advocate. He denied the suggestion that at the instance of Kishan Dubey, Advocate he has come to the Court and stated that he has come on the summons and denied the suggestion that he is falsely deposing.
63. The trial Court after examining and considering the prosecution evidence and defence version, has convicted and sentenced the appellants for the offence in question. Being aggrieved by the same, the appellants have preferred the instant appeal.
64. Heard Sri R.K. Rathore, learned counsel for the appellant no.1, Sri S.K. Singh Yadav, learned counsel for the appellant no.2, Sri Amit Tripathi, learned counsel for the respondent no.3, Sri Vinay Saran, learned Senior Advocate assisted by Sri P.K. Mishra, learned counsel for the complainant and Sri Gaurav Pratap Singh, learned AGA for the State and perused the lower court record.
65. It has been argued by the learned counsel for the appellants that the FIR of the incident was lodged after an inordinate delay as the incident had taken place on 12.12.2006 at 4.35 p.m. but the F.I.R. of the same was lodged on 13.12.2006 at 4 a.m. It has been further argued that there are material omissions in the F.I.R. which affects the credibility of the prosecution witnesses, i.e., PW 1 & PW2 such as that in the F.I.R. it has been mentioned by PW1 about the conspiracy and involvement of the co-accused Chandan Tiwari for the murder of the deceased along with the appellants.
66. It was further pointed out that the story with respect to snatching of the mobile phone of the deceased by the appellants Nishu Dixit, Chandan Kumar and Chandan Tiwari has also not been mentioned in the F.I.R. and it has been subsequently developed during the course of investigation and trial.
67. It was next argued that PW1-Ghurai Lal Gupta and PW2-Smt. Ram Khushi who are eye witnesses of the occurrence and are the parents of the deceased, their presence at the place of occurrence is highly doubtful as is apparent from the evidence recorded before the trial Court. It this regard, it has been further pointed out that in the statement of PW1 before the trial Court it has been categorically stated by him that soon after the incident he rushed his son in an injured condition along with his wife to the Mainpuri Hospital, but as per the medical examination report of the deceased Ambarish conducted at Mainpuri Hospital shows that he was brought by Head Moharrir Shyam Singh (CP 59 ) of Police Station Bewar on 12.12.2006 at 5 p.m. and after giving some treatment he was referred to S.N.Medical College, Agra for further treatment.
68. Learned counsel for the appellants has also drawn the attention of the Court towards the statement of DW1-P.K.Gupta where it has been stated by PW1 Ghurai Lal Gupta that he had gone along with his son and wife for taking medical treatment from the said doctor at Mainpuri and thereafter when they were returning from there, the incident had taken place. He argued that from the statement of DW1 it is not at all clear that PW1 along with his wife and son had actually gone to take medicine from him for pain in knee, neck and shoulder as he could not place any prescription or documentary evidence to show that he had visited Dr. Pramod Gupta.
69. It was further argued that there appears to be material contradiction in the statements of PW1 and PW2 with respect to the circumstances led to the incident. Though the incident had taken place in the busiest market place but not even a single independent witness has come to support the incident as has been stated by PW1 and PW2. In this regard, he has also drawn the attention of the Court towards the statements of PW1 and PW2 who have categorically stated that many shop keepers of the area had arrived at the place of occurrence but none had come to support the prosecution case, though the statements of some of the shop keepers who were the eye witnesses of the incident, were recorded by the investigating officer under Section 161 Cr.P.C.
70. It was next argued that the incident had taken place just 200 meters away from the police station and it appears from the evidence of PW4 Head Constable Shyam Singh that the police had arrived at the place of occurrence and had taken the injured to the hospital but PW1 and PW2 did not disclose the names and involvement of the appellants in the present case as the first opportune time to the Head Constable Shyam Singh and police personnel along with him who had arrived, which further goes to show that neither PW1 nor PW2 were present at the place of occurrence.
71. It is argued by the learned counsel for the appellants that Anoop Kumar who was the younger son of PW1 and PW2 was stated to be informed by them about the incident had also taken the injured Ambarish Kumar to Mainpuri Hospital, which is apparent from the Bed Head Ticket of the injured Ambarish Kumar of District Hospital, Mainpuri, was not produced by the prosecution before the trial Court to give evidence to support its case.
72. Learned counsel for the appellants further submitted that the recovery of Opel Astra Car on which the deceased along with PW 1 and PW2 were returning after taking medicine from Mainpuri, was shown to be recovered by the police on the next date, i.e., on 13.12.2006. He submitted that if the said car was present on the spot and recovered by the police on the next day, then it is not clear from the prosecution evidence as from which car the deceased while being injured, was taken by PW1 and PW2 to Mainpuri Hospital.
73. It was further argued by learned counsel for the appellants that three used cartridges of 315 bore were recovered from the place of occurrence and blood was also found at the place of occurrence, but the said recoveries were made on the next day of occurrence, i.e., on 13.12.2006, which itself appears to be doubtful as the place of incident was a busy road and it was not possible that such recoveries could have been made by the investigating officer PW5-Udai Bhan Singh.
74. It was also submitted by the learned counsel for the appellants that unnatural conduct of PW1 and PW2 who are parents of the deceased soon after the incident goes to show that they were not present at the place of occurrence as from their evidence it is clear that neither they rushed to the victim nor, they catch-hold of their son and they even did not extend support to their son who fell on the ground after getting injured. It was also vehemently argued that though the injured Ambarish who was seriously injured was rushed to the Mainpuri Hospital in Opel Astra Car but no blood was found in the said car.
75. It was also pointed out by the learned counsel for the appellants that in the F.I.R. PW1 has categorically stated that he took the dead body of the deceased to the police station when he went to lodge the F.I.R. but the panchayatnama of the deceased was conducted at the house of the informant PW1 which goes to show that prosecution is not coming up with clean hands.
76. It has been argued by the learned counsel for the appellants that the Investigating Officer has given the supurdagi of Opel Astra Car on which the deceased had gone with his parents, i.e., PW1 & PW2 to take medicine for PW1at Mainpuri and while returning to their house the incident took place, was recovered by the Investigating Officer on the next date of the incident, i.e., on 13.12.2006 after preparing the recovery memo of it, was given in the custody of PW1 though it was stated that there were blood stain on the seat which was wiped off by the relatives of PW1. Further, PW2 has stated in her evidence that she had shown her blood stained clothes to PW5-Udai Bhan Singh, Investigating Officer, but it was not taken into custody by the Investigating Officer which all raises doubt about the prosecution case and the manner in which the incident has taken place.
77. Learned counsel for the appellants further submitted that the house of PW1 and PW2 was also at a close distance from the place of occurrence and the Police Station Bewar, as it transpires from their evidence. He argued that it appears that soon after the incident the police arrived at the place of occurrence and the injured Ambarish Kumar was rushed to the Mainpuri Hospital by PW4 HCP 37 Shyam Singh and the parents of Ambarish Kumar when came to know about the incident when they were present at their house as it had taken place in the market of Kasba Bewar they informed their son Anoop Kumar on mobile as it transpires from the evidence of PW2 Smt. Ram Khushi who also reached the Mainpuri Hospital. Thus, he argued that the presence of PW1 and PW2 at the place of occurrence is doubtful.
78. The learned counsel for the appellants argued that the story of conspiring of murder of the deceased before the co-accsued Chandan Tiwari and the appellants and also of snatching of mobile phone of the deceased by the appellants has not been found to be true. Moreover, co-accused Chandan Tiwari has been acquitted by the trial Court, hence, the conviction of the appellants by the trial Court is not at all sustainable on the basis of evidence of PW1 and PW2. Further, the appellant Nishu @ Brijesh Dixit and Chandan Tiwari have been acquitted by the trial Court under Section 25/3 of the Arms Act disbelieving the recovery of the country-made pistols of 315 bore and live cartridges from them at the time of their arrest on 19.1.2007.
79. Thus, on the basis of the aforesaid arguments, it is lastly argued that the prosecution has failed to prove its case beyond reasonable doubts against the appellants and they are liable to be acquitted by this Court by setting aside the judgment and order dated 30.10.2013 passed by the trial Court. Moreover, the appellants, namely, Nishu Dixit and Chandan Kumar are languishing in jail for more than 13 years, i.e., since 19.1.2007.
80. Per-contra, on the other hand, Sri Vinay Saran, learned Senior Advocate, assisted by Sri P.K. Mishra, appearing on behalf of the complainant has vehemently opposed the arguments of learned counsel for the appellants and submitted that it is a broad day light murder which had taken place on 12.12.2006 at 4.35 p.m. in the market of Kasba Bewar and the deceased along with his parents, i.e., PW1 and PW2 was returning on his Opel Astra Car after getting his father medicines for his ailment from Mainpuri and the appellants who were demanding free essential commodities including kerosene oil from his fair price shop and further Rs.5000/- per month as Chauth (Gunda Tax) from the deceased who refused to give them, was dragged from his car after stopping the same by the appellants and shot dead by the appellants Nishu Dixit and Chandan Kumar with their respective firearm weapons on the exhortation of appellant Lalit Dixit. The deceased received two gun shot injuries on his person (i) on his forehead and (ii) two gunshot of wound of entry on medial aspect of right fore-arm and the other on right side of face. One metallic bullet was also recovered from his brain and the cause of death as per the post mortem report of the deceased was shock and hemorrhage as a result of ante mortem injuries.
81. He next argued that the presence of PW1 and PW2 who were accompanying the deceased at the time of the incident is quite natural as all of them were returning from Mainpuri after taking treatment from the Dr. Pramod Kumar Gupta where PW1 had gone alongwith his son and wife for his ailment in his body with respect to knee, neck and shoulder pain and their presence at the place of occurrence is well established as is apparent from their evidence before the trial Court. The medical evidence fully corroborates the evidence of PW1 and PW 2. There appears to be no discrepancy in their evidence which may caste doubt about their presence at the place of occurrence.
82. He next pointed out that the appellant Nishu Dixit in a pre-planned manner had conspired the murder of the deceased and has committed the murder of the deceased and from the evidence of PW5 Udai Bhan Singh, he has tried to demonstrate that the appellant Nishu @ Brijesh Dixit was wanted in Case Crime No.506 of 2006, under Sections 392, 411 I.P.C. and he along with his parents and younger brother Ishu had got his brother Ishu arrested in the said case in place of Nishu @ Brijesh Dixit at District Jail Fatehgarh to commit the murder of the deceased, who also filed a carbon copy of the report of Inspector In-charge of Gursahaiganj, District Kannauj as paper No.11A/6 which has been marked as Ext. Ka.12.
83. He further submitted that the argument of learned counsel for the appellants that there has been inordinate delay in lodging the F.I.R. is not at all sustainable because soon as after the incident when the deceased was seriously injured, PW1 rushed him to the hospital at Mainpuri from where he was referred to Agra for further medical treatment and PW1 along with his wife and other relatives rushed him to Agra and admitted the Ambarish to Kamayani Hospital, Agra where he was given medical treatment and at 12.30 a.m. in the night on 12.12.2006/ 13.12.2006 the deceased succumbed to his injuries and from where he was brought back to his house and thereafter at 4 a.m. in the morning the informant PW1 had gone to lodge the F.I.R. at police Station Bewar, District Mainpuri, hence, it was quite natural conduct of PW1 to first save the life of his injured son instead of reporting the incident at the police station immediately.
84. He further submitted that the accused appellants have failed to state the reason for their false implication the present case by the informant (PW1) who is father of the deceased in the present case. He further pointed out that the recovery of empty cartridges, blood stained concrete chips from the place of occurrence and recovery of pistol from Nishu Dixit about which there is a report of Forensic Science Laboratory, Agra further proves that the prosecution has successfully established its case. He submitted that it is well established law that the F.I.R. is not an encyclopedia of the prosecution version. Non-mentioning of the conspiracy in the F.I.R. is not fatal as during investigation this conspiracy was fully unearthed. Further, prosecution witnesses from their deposition have fully established the conspiracy hatched and involvement of the accused Chandan Tiwari.
85. He next submitted that so far as the non-examination of independent witnesses are concerned, it is hardly of a significance as in a murder case it is general tendency of the independent witnesses not to come forward to invite them to any trouble, hence, they avoid the same and it is only the family members who come forward to bring book to the actual assailants who are involved in the present case, as has been done by PW1 and PW2.
86. On the basis of aforesaid argument, learned A.G.A. has also adopted the arguments of Sri Vinay Saran, learned Senior Advocate, appearing on behalf of the complainant, hence, for the sake of brevity it is not repeated again.
87. Having considered the rival submissions advanced by the learned counsel for the parties, we have gone through the entire evidence of the prosecution as well as defence version and other materials on record.
88. In the F.I.R. which has been lodged by PW1 Ghurai Lal Gupta, it is quite apparent that he has stated categorically that while he was returning along with his son and wife after taking medicines from Mainpuri and arrived at Kasba Bewar on 12.12.2006 at 4.35 p.m. and as soon as his car reached at Kasba Bewar near District Hospital, Mainpuri, the appellants Nishu Dixit, Lalit Dixit and Chandan Kumar came out with their country-made pistols, stopped the car and Nishu Dixit and Chandan Kumar dragged the deceased Ambarish from the car after abusing him and stating that he poses himself to be a big ration dealer and without ration card he has to supply the ration and kerosene along with Rs.5000/- per month to them which was resisted by the deceased Ambarish and he told that he would not give any Chauth (Gunda Tax) and at that moment the appellant Lalit Dixit started abusing him and stated that the deceased Ambarish poses himself to be a big leader and he would not concede to the demand and exhorted, on which appellants Nishu Dixit and Chandan Kumar who were carrying country-made pistols in their hands fired shot at him with an intention to kill him, on account of which Ambarish Kumar was seriously injured and on the alarm raised by the informant, all the three accused fired in the air and had fled away from the place of occurrence. Several shop keepers because of the terror and commotion created in the area started closing down their shops.The informant and his wife took their son Ambarish Kumar in a seriously injured condition to the District Hospital Mainpuri where seeing his critical condition he was referred to Agra and at Agra they went to Kamayani Hospital and during treatment his son succumbed to his injuries. He further stated in the F.I.R. that he had brought the dead body of the deceased and had come to report about the incident.
89. The argument of learned counsel for the appellants that in the F.I.R. PW1 has not mentioned about the conspiracy which was hatched by the co-accused Chandan Tiwari along with the appellants as the Chandan Tiwari was a helper in the shop of the deceased who was running a fair price shop as because of some illegal activities of Chandan Tiwari, the deceased after noticing the same had ousted him and Chandan Tiwari was pressurizing the deceased along with the assistance of the appellants Nishu Dixit and Chandan Kumar for taking him back in his shop as a helper which was refused by him. Further, 2-3 days prior to the incident, appellants Nishu Dixit and Chandan Gupta had snatched the mobile phone of son of PW1 who went to the house of Lalit Dixit where he heard the conversation of Chandan Tiwari, Chandan Gupta, Nishu Dixit and Lalit Tiwari that if Ambarish Kumar would not pay any heed to their demands, hence, within 2-3 days he should be eliminated, on which PW1 opened the door and went inside the house and asked Lalit Dixit that his son had snatched the mobile phone of Ambarish Kumar and to return the same but he did not pay any heed and PW1 also paid Rs.5000 for returning the same. This conduct of PW1 goes to show that he tried to implicate co-accused Chandan Tiwari during the course of investigation in the present case falsely for conspiring the murder of the deceased, but the said fact was not disclose by him in the F.I.R. It is true that F.I.R. is not an encyclopedia of the prosecution case but the said conduct of PW1 definitely cast doubt about his credibility and trustworthiness stating about the incident raising suspicion about his testimony relating to the prosecution case.
90. Another circumstance which goes to show regarding reliability of PW1 with respect to the prosecution version given by him that he was returning from Mainpuri to Bewar to his house after taking medicine from Dr. Pramod Gupta on the day of incident, if tested in the light of the evidence of DW1, it creates doubt that PW1 along with his wife and son had gone to him for taking medicines regarding ailment of knee, neck and shoulder of PW1. No documentary evidence has been produced by PW1 to show that he had actually visited DW1 Dr. Pramod Gupta for his ailment.
91. Moreover, it is apparent from the statements of PW1 and PW2 that it was for the first time that they had gone to DW1 on the day of the incident for getting medicines of PW1 and PW2 casually stated that one year prior to the incident her grand-son (Nati) had got fractured his hand and was also treated by DW1, but there appears to be no documentary evidence regarding the same. Thus, the version given by the PW1 that he had gone along with his wife and son to take medicines at Mainpuri to Dr. Pramod Gupta (DW1) is not established from the evidence of PW1 and PW2.
92. So far the fact that PW1 and PW2 had actually seen the incident and were present at the place of occurrence, as has been argued on behalf of the appellants vehemently, appears to be highly doubtful, firstly, on the count that it has been categorically stated by PW1 in his evidence before the trial Court as well as apparent from the F.I.R. that soon after the incident he along with his wife had rushed his son in a seriously injured condition to District Hospital, Mainpuri but from the medical examination report of the injured Ambarish Kumar dated 12.12.2006 conducted at 5 p.m. shows that he was brought by Head Constable Shyam Singh (HC 37) and PW1 in his cross-examination has categorically stated as under:-
^^eSa yM+ds dks pqVSy gkyr esa ysdj eSuiqjh vLirky djhc 5 cts igqapk FkkA ge o esjh iRuh Fkh] mlds vykok dksbZ ugha FkkA ftyk vLirky esa 10&15 feuV :ds gksaxsA ftyk vLirky cksry vkSry yxkbZ Fkh vkxjk ds fy;s jSQj dj fn;k FkkA**
93. It further transpires from the evidence of PW1 and PW4 Head Constable Shyam Singh of Police Station Bewar that he had arrived at the place of occurrence and younger son of PW1, namely, Anoop Kumar had also arrived there and in the Bed Head Ticket it has been mentioned that Ambarish Kumar was brought by Constable Shyam Singh and Anoop Kumar but the said Anoop Kumar was not produced by the prosecution to support its case, which further raises doubt about the fact that PW1 and PW2 (wife of PW1) had actually took Ambarish Kumar to District Hospital, Mainpuri.
94. The unnatural conduct of PW1 and PW2 soon after the incident further reflects that their presence at the place of occurrence is not established on account of the fact that when the deceased was dragged from the car by the appellants and was shot with their respective firearms weapons, they have stated that they were witnessing the incident while they were sitting in the car and did not come out immediately coupled with the fact that after the incident when the deceased Ambarish Kumar was lying in a seriously injured condition, no effort was made by PW1 and PW2 to touch him or to help the other persons who had picked the injured in the Opel Astra Car of PW1 as no blood stains were found either on the clothes of PW1 or PW2 nor, the same was found in the Opel Astra Car. It appears that the prosecution was conscious of the fact that if it comes with a case that the deceased was taken in lap of PW2 or PW2 had helped the other persons to keep the injured in the car then definitely their clothes would have been blood stained because the blood was oozing from the body of the injured but as no blood stained clothe was either shown or taken in to custody by the investigating officer PW5. The prosecution thought it more proper to ensure that the deceased while being injured was not picked or touched by PW1 or PW2 though the learned counsel for the complainant pointed out that the blood stain which was found in the car, in the cross-examination questions were put to the witnesses regarding the same and it was stated by PW1 and PW2 that their relatives had wiped off blood in the car while the injured was taken to the hospital from Mainpuri to Agra in an Ambulance, but from this circumstance the prosecution cannot escape the responsibility of proving its case beyond reasonable doubts against the appellants.
95. It further transpires from the recovery of the three empty cartridges from the place of occurrence on 13.12.2006 by the police, out of which one cartridge recovered was tallied with the weapon which was recovered from the appellant Nishu Dixit as is apparent from the Forensic Science Laboratory dated 6.1.2007. In this regard it would be necessary to take into account that the accused appellant Nishu Dixit @ Brijesh Dixit was arrested by the police after more than one month of the incident on 19.1.2007 and country-made pistol of 315 bore was recovered from him, it would be highly improbable and beyond imagination to think that the said accused would carry the said country-made pistol with him which was used in the crime, hence, the recovery of said country-made pistol appears to be doubtful.
96. Similarly, appellant Chandan Kumar was also arrested on the same day, i.e., on 19.1.2007 along with the co-accused Nishu Dixit with country-made pistol of 315 bore and some live cartridges and both the accused have been acquitted by the trial Court for the offence under Section 25/3 of Arms Act. Thus, the recovery of two weapons from the said accused after one month of the incident has been disbelieved by the trial Court when they were put to trial under the Arms Act.
97. It is noteworthy to mention here that the metallic bullet was recovered from the occipital region of the deceased but the same was not sent to the Forensic Science Laboratory in order to ensure whether the same was shot by the respective weapons which were recovered from the two appellants, namely, Nishu Dixit @ Brijesh Dixit and Chandan Kumar.
98. Another circumstance which further raises doubt about the prosecution case is that in the F.I.R. it has been categorically mentioned by PW1 that he had brought the dead body of the deceased when he went to the police station to report the matter on 13.12.2006 at 4 a.m. but from the panchayatnama of the deceased it is apparent that inquest proceedings were conducted at the house of the deceased. In this regard, the statement of PW1 in his cross-examination before the trial Court is necessary to be taken into note, which is reproduced here-in-below:
^^fjiksVZ eSaus lgh fy[kk Fkk fd Fkkus esa yk'k ysdj vk;k gwWA**
99. Thus, it is clear that the prosecution is not coming with clean hands and is concealing the origin of the incident. The defence has categorically given the suggestions to PW1 and PW2 questioning their presence at the place of occurrence and they being not the eye witness of the occurrence were falsely deposing against the appellants though they have denied the same.
100. It is true that no independent witness has come forward to support the prosecution case though it appears from the evidence of PW1 and PW2 that several persons had arrived at the place of occurrence soon after the incident as it was a busy market place. The evidence of PW1 and PW2 who are parents of the deceased simply because they being highly interested and partisan witnesses cannot be thrown out by this Court in view of the settled principle of law laid by the by the Apex Court in catena of decisions. In this regard, it is equally true that the evidence of the family members of the deceased should be examined by the Court carefully and put to strict scrutiny and if from the evidence it is established that the same is worthy of credence and support the prosecution case, then their evidence should not be thrown out on the count that they being highly interested and partisan witness being related to the deceased.
101. In the instant case, it is no doubt that PW1 and PW2 are the parents of the deceased and claimed themselves to be the eye witness of the occurrence, but after going through their testimony they can be put in the category of neither wholly reliable nor wholly unreliable witness as their evidence does not conclusively prove the guilt of the accused appellants beyond reasonable doubt though their evidence examined by the Court for corroboration in material particulars by direct and circumstantial testimony.
102. In this regard, a reference may be made to a decision of the Apex Court in the case of Vedivelu Thevar Vs. State of Madras, reported in AIR 1957 SC614, wherein the Apex Court has classified the testimony of a witness into three categories viz. (i) wholly reliable (ii) wholly unreliable and (iii) neither wholly reliable nor wholly unreliable and observed that though in the first two categories of classification, there may not be any difficulty in coming to conclusion neither accepting or rejecting the testimony, but it is in the third category of cases that the court has to be circumspect and has to look for corroboration in material particulars by reliable testimony either direct of circumstantial.
103. It was also argued on behalf of the learned counsel for the complainant that the appellant Nishu @ Brijesh Dixit in collusion with his parents had got his younger brother Ishu arrested and sent to jail at Fatehgarh in his place in Case Crime No.506 of 2006, under Sections 392, 411 I.P.C. in which he was involved to commit the murder of the deceased as he has raised the said argument from the evidence of PW5-Udai Bhan Singh, the Investigating Officer of the case, but he has failed to demonstrate before the Court by cogent evidence the said argument. Further, there appears to be no evidence to show that the appellant Nishu @ Brijesh Dixit who was wanted in Case Crime No.506 of 2006 managed escaped his arrest in the said case to commit the murder of the deceased in the present case and no further evidence was led in this regard before the trial Court against the appellant Nishu @ Brijesh Dixit in this context. Only a casual reference of Case Crime No.506 of 2006, under Sections 392, 411 I.P.C. was made from the evidence of PW5 without there being any material to corroborate the same by any other circumstances or evidence. Hence, the said argument of learned counsel for the complainant does not appear to be sound one and cannot be accepted.
104. The argument of learned counsel for the complainant that the accused appellants could not demonstrate before this Court the reason for their false implication in the present case by PW1 as he was having no enmity with them, but in this regard it is to be noted that it is first duty of the prosecution to establish its case beyond reasonable doubt against the accused than to question the accused for their false implication which the prosecution has failed to prove its case beyond reasonable doubt against the appellants. Thus, the said argument of counsel for the complainant does not hold good in our considered opinion.
105. The learned counsel for the complainant further failed to reply as to what was the reason for implicating the appellant Lalit Dixit who is the father of the appellant Nishu @ Brijesh Dixit by giving an ornamental role of exhortation to him on which the other two appellants are stated to have fired at the deceased, though as per the prosecution case the dispute, if any, was between the appellant Nishu Dixit and Chandan Kumar and the deceased.Thus, this circumstance further shows that PW1 Ghurai Lal Gupta was being guided by some one for falsely implicating persons for oblique motives and one of the co-accused Chandan Tiwari who was further implicated by him during the course of investigation and arrayed as an accused during the investigation, was put to trial and ultimately acquitted by the trial Court finding his involvement to be false.
106. Thus, in view of the aforesaid foregoing discussions, the Court after scanning and scrutinizing the prosecution evidence and findings recorded by the trial Court in convicting and sentencing the appellants finds that the conviction and sentence of the appellants recorded by the trial Court is not sustainable on the basis of the evidence on record. The appellants are entitled for the benefit of doubt, as this Court has found evidence of PW1 and PW2 neither wholly reliable nor unreliable as from their evidence the guilt of the appellants is not fully established beyond reasonable doubt and it would be quite unsafe to hold them guilty. Hence, in view of the same, the judgement and order dated 30.10.2013 passed by the trial Court is liable to be set aside by this Court. It is, accordingly, set aside and the appellants are acquitted of the charges. The appeal stands allowed.
107. The appellant no.1-Nishu @ Brijesh Dixit and appellant no.3-Chandan Kumar are stated to be in jail, they shall be released forthwith, unless otherwise wanted in any other criminal case.
108. The appellant No.2-Lalit Dixit is stated to be on bail. His bail bonds and sureties are discharged. He need not surrender.
109. It is further directed that the appellants shall furnish bail bond with surety to the satisfaction of the Court concerned in terms of the provision of Section 437-A of Cr.P.C.
110. The Registrar General of this Court is directed to ensure that the certified copy of this order along with the lower court record be transmitted to the trial Court concerned for its information and compliance forthwith.
(Ajit Kumar, J.) (Ramesh Sinha,J.)
Order Date :-22.04.2020
NS/Gaurav