Allahabad High Court
Amitabh Dixit vs The State Of U.P. on 12 January, 2023
Bench: Ramesh Sinha, Mohd. Aslam
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH A.F.R. Reserved on: 24.11.2022 Delivered on: 12.1.2023 Court No. - 1 Case :- CRIMINAL APPEAL No. - 2735 of 2004 Appellant :- Amitabh Dixit Respondent :- The State Of U.P. Counsel for Appellant :- Ram Chandra Singh,Arun Sinha Counsel for Respondent :- Govt.Advocate,Bal Keshwar Srivastava,Hari Bux Singh,Izhar Husain Siddiqui,Upendra Kumar Awasthi,Vijay Kishor Mishra Hon'ble Ramesh Sinha,J.
Hon'ble Mohd. Aslam,J.
(As per Mohd. Aslam, J. for the Bench)
1. Heard Sri Arun Sinha, learned counsel for the appellant, Sri Vijay Kishor Mishra, learned counsel for the complainant and Smt. Smiti Sahay, learned Additional Government Advocate for the State/respondent.
2. This criminal appeal has been filed under Section 374(2) Cr.P.C. by the appellant/convict Amitabh Dixit against the impugned common judgment of conviction and order of sentence dated 16.12.2004 passed by Additional District & Sessions Judge, Fast Track Court No.4, Hardoi in Sessions Trial No.673 of 2003 (State Vs. Amitabh Dixit), arising out of Case Crime No.209 of 2003, under Sections 302/307 I.P.C., Police Station- Shahabad, District- Hardoi and Session Trial No. 674 of 2003 (State Vs. Amitabh Dixit), arising out of Case Crime No.266 of 2003, under Section 25 Arms Act, Police Station- Shahabad, District Hardoi, whereby the appellant was convicted for offence punishable under Section 302 I.P.C. and Section 25 Arms Act and was sentenced to undergo imprisonment for life along with fine of Rs.5000/- under Section 302 I.P.C. and further to undergo rigorous imprisonment for two years along with fine of Rs.500/- under Section 25 of Arms Act, in default of payment of fine, to undergo additional simple imprisonment for two years. All sentences were directed to run concurrently.
3. The brief facts necessary for disposal of this appeal are that the informant Kamal Kishore Dixit (PW-1) son of Late Moonga Ram Dixit, resident of Mohalla Budh Bazar, Police Station Shahabad, Hardoi lodged the FIR in Case Crime No.209 of 2003, under Sections 307, 302 I.P.C. on the basis of written Tahrir (Ex.Ka-1) on 25.5.2003 at 15:20 hrs. at Police Station- Shahabad, District Hardoi alleging therein that on 25.5.2003 at 02:45 hrs. his younger brother, Ram Kishore Dixit was returning home by bicycle after getting mustard oil extracted. The informant Kamal Kishore and his another brother Ram Pramod were also coming to home and they were 50 yards behind his brother Ram Kishore. When his brother Ram Kishore Dixit reached near the Mill of Parashuram near Mohallah Budh Bazar, accused Amitabh Dixit, son of Om Parkash Dixit, who was having enmity regarding the division of land property, opened fire at his brother Ram Kishore Dixit by a country made pistol with intention to kill him. His brother Ram Kishore Dixit left his bicycle and ran towards them to save his life. Meanwhile, Amitabh Dixit fired another shot, till then his brother reached at the door of Ram Shankar Mishra. After chasing, Amitabh Dixit fired another shot by which his brother sustained injury. Witnesses Ramji Tiwari, son of Govind Prasad Tiwari, resident of Mohallah Holi Kalan town and Suresh Kumar Gupta, son of late Raghuwar Prasad Gupta who were passing by the place of incident witnessed the entire incident. On account of continuous firing by Amitabh Dixit on public road, the people around there were horrified. Ladies, gents and children entered into the house and locked their doors, by which the normal life near the place of occurrence, got disturbed, taking advantage of which accused fled from there. With the help of Ramji Tiwari and Suresh Kumar Gupta his injured brother Ram Kishore Dixit was taken to the Government Hospital Shahabad and informant went to the police station to lodge the F.I.R.
4. Head Moharrir, scribed the Chik Report No.71 of 2003 (Ex.Ka-5) under Section 307 I.P.C. at Police Station Shahabad on the basis of written Tahrir of informant and registered the Case Crime No.209 of 2003, under Section 307 I.P.C. by making necessary entry in GD report no.26 at 15:20 hrs. on 25.05.2003 (Ex.Ka-6) and investigation of the case was taken by SHO Shahabad, Inspector S.N. Singh PW-7. On 25.05.2003, he copied the Chik report in CD and recorded the statement of injured Ram Kishor Dixit under Section 161 Cr.P.C. (Ex.Ka-25), thereafter, he searched for the accused, but could not find him.
5. On the same day i.e. 25.05.2003 at 16:20 p.m. informant gave another written Tahrir (Ex.Ka-2) alleging therein that after lodging the FIR he had gone to the hospital to see his injured brother. By that time Ram Pramod, Suresh Kumar Gupta and Ramji Tiwari were also reached to the hospital. All of them searched a lot for doctors in hospital, but the doctors were not found, then they took the injured to private nursing home of Dr. Maya Parkash. His brother died before reaching to the clinic of Dr. Maya Parkash. He had taken the dead body of his brother to police station and kept it outside the gate of the police station. The substance of Ex.Ka-2 was entered in GD (Ex.Ka-7) vide Report No.27 at 16:20 hrs. on 25.05.2003 and Section 302 I.P.C. was added. The inquest of the dead body of the deceased was conducted by S.I. S.N. Singh on 25.05.2003. He appointed Naval Kishore Dixit, Suresh Kumar Gupta, Ram Promod, Ramji Tiwari and Kamlesh Gupta as witnesses of the inquest and prepared Panchayatnama (Ex.Ka-12), Challan Lash (Ex.Ka-13), Photo Nash (Ex.Ka-14), letter to CMO (Ex.Ka-15) and sealed the dead body, and prepared sample seal (Ex.Ka-16) and handed over the dead body to Constable Ujair Khan for carrying the dead body to mortuary for post-mortem.
6. On 25.05.2003, Investigating Officer S.N. Singh recorded the statements of injured Ram Kishore Dixit under Section 161 Cr.P.C. (Ex.Ka-25) at Primary Health Centre, Shahabad, and thereafter he recorded the statement of informant Kamal Kishore (PW-1) and inspected the place of occurrence and prepared the site plan (Ex.Ka-17) at the instance of informant. He also recovered two empty cartridges of 315 bore, one pair slipper, plain and blood stained soil, bicycle and cane of oil from which oil had flown on the road and prepared its memo (Ex.Ka-18) and sealed in presence of witnesses Vimlesh Singh and Rajeev Kumar Mishra. He also prepared the memo of one pair slipper (Ex.Ka-19) and sealed it. He also prepared the supurdginama of bicycle and the container of oil (Ex.Ka-21) and given it in the custody of informant. On 26.05.2003, he recorded the statement of witnesses Rajeev Kumar Mishra, Vimlesh Singh, Ramji Tiwari and Suresh Kumar Gupta. He also recorded the statements Smt. Manju Dixit, wife of the deceased, Laxmi Kant Dixit, son of the deceased and witness Ram Promod.
7. The post-mortem of the deceased was conducted by Dr. J.L. Gautam (PW-5) on 26.05.2003 at 04:00 p.m. The age of the deceased Ram Kishore Dixit was found to be about 40 years, having average body built. Eyes and mouth were found open. Rigor mortis passed off from all over the body. Post-mortem staining was found present on the back and buttock. Abdomen was found distended. Following ante-mortem injuries were found on the body of the deceased:-
(i) firearm wound of entry 2 cm X 1.5 cm through and through present at the right side of abdomen 12 cm away from umbilicus at 10 o'clock, margins inverted, lacerated tattooing 15 cm X 15 cm around the wound present.
(ii) firearm wound of exit 3 cm X 2 cm present on the right back of L-2 level, margins everted, lacerated rapped communicating with injury no.1. Direction front to back towards right side.
(iii) firearm wound of entry 2 cm X 10 cm X through and through present on the left upper part of thigh near ASIS. Margins inverted and lacerated.
(iv) firearm wound of exit 3 cm X 2 cm present on the left thigh posterior aspect near lower part of gluteal region, margins everted , lacerated, communicated with injury no.3.
(v) gutter shaped firearm wound 5 cm X 1.5 cm X muscle deep present on left-hand on palmer part near middle of palm and wrist joint wound in wider on finger root side and tapper on wrist joint side margins inverted lacerated on wrist side.
femaral artery under injury no.3 is lacerated.
8. On internal examination, left chamber of the heart was found empty and right chamber was found full. Abdominal cavity was found containing 2 liters of clotted blood. Stomach was found lacerated and contains two ounce of pasty matter with clotted blood. Small and large intestine were found lacerated and loaded with faecal matter and gases. Liver was found lacerated, gallbladder was found half filled. Doctor opined that deceased died about one day before the post-mortem due to shock and hemorrhage as a result of antemortem injury. Dr. J.L. Gautam (PW-5) prepared the post-mortem report (Ex.Ka-8) in his own handwriting and sealed the clothes of deceased containing shirt, janeyu, underwear, angauchha and kalawa and send it to the Superintendent of Police.
9. On 05.06.2003, the Investigating Officer Inspector S.N. Singh PW-7 received Ropkar regarding surrender of accused Amitabh Dixit in the Court. On 06.06.2003, he recorded the statement of accused Amitabh Dixit in District Jail, Hardoi with the permission of the court wherein he had given disclosure statement that he had concealed the weapon used in the murder of deceased to which he could get recovered. Thereafter, Investigating Officer applied for police custody of the accused which was allowed, and thereafter, he had taken the accused in police custody. On 11.06.2003 the Investigating Officer recovered the alleged weapon along with two cartridges used by the accused in the murder of deceased at the pointing out of the accused-appellant in presence of witnesses Chhedalal Verma, Ram Vilas Verma and Sanjay and prepared its recovery memo (Ex.Ka-23) and sealed it. He also recorded the statements of witnesses of recovery of country made pistol of 315 bore along with two empty cartridges.
10. On the basis of recovery memo (Ex.Ka-23), the Chik report no. 80 of 2003 (Ex.Ka-3) was scribed by Constable Ram Pratap on 12.6.2003 at 8:30 a.m. and by making necessary entry in GD (Ex.Ka-4) report no.16 at 8:30 a.m. on 12.6.2003 registered the Case Crime No.266 of 2003, under Section 3/25 Arms Act.
11. The investigation of the case under Section 3/25 Arms Act was entrusted to S.I. Ikrar Hussain PW-6 who had recorded the statement of witnesses and prepared the site-plan (Ex.Ka-9) at the instance of recovery officer Inspector S.N. Singh (PW-7). He also obtained sanction for prosecution from the then District Magistrate, Hardoi (Ex.Ka-10) on 04.07.2003 and submitted the charge-sheet (Ex.Ka-11) against accused Amitabh Dixit under Section 3/25 Arms Act.
12. Following articles i.e. (1) Pair of Slipper, (2) blood-stained soil, (3) Pants, (4) shirts, (5) underwear, (6) Scarf, (7) Janeu and (8) Raksha (Kalawa) were sent to the forensic science laboratory by the Investigating Officer, Inspector S.N. Singh for forensic examination regarding which report dated 24.9.2003 (Ex.Ka-26) was received wherein blood was found on the large parts of item nos. 1 to 8. Largest spot of blood was found on item nos. 4 to 6 having length of 50, 20 and 40 cm, respectively. Human blood was found on the item nos. 1 to 8. The two empty cartridges of 315 bore recovered from the place of occurrence and the country made pistol recovered from the accused were sent to Forensic Science Laboratory, Lucknow regarding which report dated 13.10.2003 (Ex.Ka-27) was received where the empty cartridges recovered from the place of occurrence was marked as EC-1 and EC-2, respectively, and two test cartridges TC1 and TC2 were fired from the country made pistol of 315 bore allegedly recovered from the appellant-accused and their marks on the cape of the cartridges were compared from the microscope and found that the EC1 & EC2 and TC1 and TC2 were fired from the same country made pistol of 315 bore allegedly recovered from the accused. After investigation, Inspector S.N. Singh (PW-7) submitted the charge-sheet in Case Crime No.209 of 2003, under Sections 307/302 IPC (Ex.Ka.24).
13. The cognizance of the offence punishable under Section 307/302 IPC against the accused-appellant was taken on 14th July, 2003 by the Chief Judicial Magistrate. The cognizance of offence punishable under Section 3/25 Arms Act against the accused-appellant was also taken on 14.07.2003. Both the charge-sheets were arising out of the same occurrence, therefore, both the cases were committed by the Chief Judicial Magistrate, Hardoi after complying the provision of Section 207 Cr.P.C. to the court of sessions for trial. The case arising out of Case Crime No.209 of 2003, under Section 307/302 IPC was registered as Sessions Trial No.673 of 2003 (State of UP vs. Amitabh Dixit) and the case arising out of Case Crime No.266 of 2005, under Section 3/25 Arms Act was registered as Sessions Trial No. 674 of 2003 (State of UP vs. Amitabh Dixit).
14. These Sessions trial were later transferred to the Additional Sessions Judge, Fast Track Court No.4, Hardoi for trial. Learned Additional Sessions Judge, Fast Track Court No.4, Hardoi framed the charges of offence punishable under Section 302 I.P.C. and Section 25 Arms Act against the accused-appellant Amitabh Dixit on 07.01.2004. The appellant/accused Amitabh Dixit has pleaded not guilty and claimed to be tried.
15. Both the Sessions trial were consolidated for trial because they were related to the same transaction and the Sessions Trial No. 673 of 2003 (State vs. Amitabh Dixit) under Section 302 IPC was treated as leading case.
16. In order to prove its case, the prosecution has examined informant Kamal Kishore as PW-1 and Ramji Tiwari as PW-2 an eyewitness of the incident. The informant proved the written Tahrir (Ex.Ka-1), information of death of the deceased (Ex.Ka-2). As formal witness, the prosecution examined Constable Ram Pratap as PW-3 to prove chik report of Arms Act (Ex.Ka-3), GD registering the case under Section 3/25 Arms Act (Ex.Ka-4) and by secondary evidence he proved the chick report of FIR No.71 of 2003, under Section 307 IPC (Ex.Ka-5), GD registering the case (Ex.Ka-6) and GD report no. 27 dated 25.05.2003 (Ex.Ka-7) by which the Section 302 IPC was added. Prosecution also examined Chheda Lal as PW-4 to prove the recovery of country made pistol of 315 bore along with two live cartridges from the accused-appellant during police custody remand. The prosecution examined Dr. J.L. Gautam as PW-5 to prove the post-mortem report (Ex.Ka-8). The prosecution examined S.I Iqrar Hussain as PW-6 to prove the steps taken in investigation of case under Section 3/25 Arms Act and to prove site plan (Ex.Ka-9), sanction for prosecution (Ex.Ka-10) and the charge-sheet submitted under Section 3/25 Arms Act (Ex.Ka-11). The prosecution also examined the Investigating Officer Inspector S.N. Singh as PW-7 to prove the steps taken in investigation of the murder of the deceased and recovery of country made pistol of 315 bore and two live cartridges from the place of occurrence. On 25.05.2003, he copied the chik report and GD registering the case and recorded the statement of informant Kamal Kishore PW-1 and on the same day he had gone to Primary Health Centre, Shahabad immediately and recorded the statement of injured Ram Kishore Dixit (Ex.Ka-25) who had supported the prosecution case. He also proved that the inquest of dead body of the deceased was conducted by S.I. Siyaram who prepared the Panchayatnama (Ex.Ka-12), Chalan lash, (Ex.Ka-13), photo Nash (Ex.Ka-14), letter to CMO (Ex.Ka-15), and sealed the dead body and prepared sample seal (Ex.Ka-16) and sent the dead body to mortuary for post-mortem in his presence. He was also examined to prove that he had taken two empty cartridges of 315 bore which was recovered from the place of occurrence and sealed them and prepared memo (Ex.Ka-18) in presence of witnesses Vimlesh Singh and Rajiv Kumar Mishra, memo of taking a pair of slipper from the place of occurrence and sealed it and prepared memo (Ex.Ka-19), he had also taken plain soil and blood stained soil and sealed them into two containers and prepared memo (Ex.Ka-20) and had taken in possession the bicycle of the deceased and prepared supurdaginama (Ex.Ka-21) and given in custody of informant. He was also examined to prove the site plan (Ex.Ka-17). He was also examined on the point of recovery of country-made pistol of 315 bore along with two cartridges in the presence of witnesses Chhedalal Verma and Sanjay Mishra on 12.6.2003 at about 06:45 hrs. during police custody remand from the appellant/accused and prepared its memo (Ex.Ka-23). He also produced the two empty cartridges recovered from the place of occurrence as Material-Ex-1 and country-made pistol of 315 bore which was recovered from the possession of appellant/accused during police custody remand (Material-Ex-2) and two live cartridges (Material-Ex-3 & 4). He also proved two test cartridges (Material-Ex-5 & 6). He also proved the charge-sheet of Case Crime No.209 of 2003, under Section 307/302 IPC (Ex.Ka-24). The prosecution also tendered the ballistic report of Forensic Science Laboratory (Ex.Ka-27) and the report of serological expert (Ex.Ka-26) and the prosecution closed its evidence.
17. Statement of the appellant/accused under Section 313 Cr.P.C. was recorded wherein he admitted that there was enmity with the family of the deceased regarding division of land property. He denied the allegation of the prosecution and stated that he was falsely implicated by the prosecution, but he did not produce any evidence in his defence.
18. Learned trial court having heard the arguments of learned ADGC for the State and learned counsel for the appellant/accused and going through the record has held that the FIR was lodged promptly and the presence of witnesses informant Kamal Kishore (PW-1) and Ramji Tiwari (PW-2) is proved beyond reasonable doubt. It is also held that although they are related to the deceased, but on the ground of relatives of the deceased their testimony cannot be disbelieved. It is further held that the testimony of the related witness requires close scrutiny. After scrutinizing their testimonies, learned trial court has held that their testimonies are natural and inspire confidence which are corroborated by the FIR, post-mortem report and ballistic expert report. It is further held that the charges of offence punishable under Section 302 IPC and Section 25 Arms Act are proved beyond reasonable doubt against the appellant and recorded the finding that appellant/accused is guilty of murder of the deceased Ram Kishore Dixit and a country made pistol along with two cartridges were recovered from him and sentenced him as above. Feeling aggrieved by the impugned judgment of conviction and order of sentence, the convict/appellant Amitabh Dixit has filed this appeal.
19. It is submitted by learned counsel for the appellant that the FIR was lodged anti-timed after concoction and due deliberation after the death of the deceased. It is further submitted that the FIR under Section 307 is not lodged at 15:20 p.m. on 25.05.2003 as alleged by the prosecution, but it was lodged after the death of the deceased and till the preparation of the inquest report FIR was not lodged and the first information report as being ante-timed only to show false prosecution story and for naming false witnesses in the first information report. It is further submitted that the inquest report shows that the alleged eyewitnesses named in the FIR have been mentioned as inquest witnesses and for eyewitnesses, namely, Kamal Kishore (wrongly mentioned in inquest report as Nawal Kishore signed in the inquest report as Kamal Kishore), Ram Promod and Ramji Tiwari were shown as witnesses of the inquest also. It is also submitted that perusal of the inquest report shows that the inquest report has not been prepared/written by one person, but some writings are in the handwriting of different persons. It is further submitted that the GD report number regarding reporting of the death of the deceased was left blank which shows that FIR was not in existence at the time of inquest proceeding. It is further submitted that in the inquest report it was mentioned that the information regarding death of the deceased was given by some Nawal Kishore and not by the informant. It is further submitted that the GD report number regarding death of the deceased was purposely left blank in the inquest so that FIR can be lodged ante-timed to accommodate the inquest proceeding by filling in the blanks of GD report number regarding reporting of death of the deceased, but Sub-Inspector conducting the inquest report forgotten to fill up the GD report number regarding reporting of death of the deceased. It is submitted that it establishes that the FIR was lodged after the death of the deceased to falsely implicate the appellant Amitabh Dixit. It is further submitted that not only in the inquest report but also in other police papers allegedly prepared at the time of the inquest i.e. Challan lash etc. It is further submitted that it is apparent that FIR was not in existence at the time of inquest proceeding and incorrect entries in GD report and inquest proceeding. It is further submitted that police paper no.30 challan lash shows that the name of the deceased has been written by different person in different handwriting and other details have been written by some other person. It is further submitted that informant PW-1 Kamal Kishore has admitted in his examination-in-chief that his brother has died at 03:20 p.m. It is also submitted that the first information report under Section 307 IPC is ante-timed and the statement of the deceased under Section 161 Cr.P.C. was fabricated by the Investigating Officer S.N. Singh. It is further submitted that the informant PW-1 has stated that after the death of his brother, he with the help of others brought the dead body of the deceased to the police station and kept it outside the gate, but inquest report shows that the dead body was found by SI Siyaram in the premises of newly constructed Munsif court, Shahabad, which casts doubt on the prosecution case. It is further submitted that the informant has deposed in his statement before the court that the first fire from country made pistol was shot by Amitabh Dixit which hit at the hand of his brother and thereupon his brother ran towards them, thereupon, the second fire was shot by the appellant which hit at the left leg of his brother. It is further submitted that the informant has admitted that after sustaining injury by the first shot fired, his brother left the bicycle there and ran towards them. It is further submitted that the informant has also admitted that his brother Ramji Kishore fell in front of the door of Ram Shankar, meanwhile, appellant Amitabh Dixit shot third fire which hit at the right side of chest of his brother. It is further submitted that the deposition of the informant Kamal Kishore as PW-1 shows that the fire was made from the back side of the deceased which is inconsistent with the injury shown in the post-mortem report, therefore, it appears that the informant was not present at the place of occurrence and had not witnessed the occurrence. It is further submitted that learned trial court has wrongly relied on the testimony of the informant PW-1. It is further submitted that the witness Ramji Tiwari PW-2 has admitted that the name of his father is Govind Prasad Tiwari. The sister of Govind Prasad Tiwari, namely, Smt. Saraswati was married to Moonga Ram, who is father of the deceased, informant Kamal Kishore Dixit and Ram Promod. It is further submitted that the alleged eyewitnesses, informant PW1 Kamal Kishore and Ramji Tiwari are related to the deceased and there is contradiction in their testimonies, therefore, no reliance can be placed on their testimonies, but learned trial court has wrongly relied on their testimonies. It is further submitted that witness Ramji Tiwari has made improvement in his statement so that injuries mentioned in post-mortem report may corroborate the prosecution case. The PW-2 Ramji Tiwari is an Advocate practicing at Shahabad and he has purposely made improvement in his statement before the trial court because he was well aware as to how he can improve his statement before the court so that the same can be corroborated from the FIR and post-mortem report and can be relied on. It is further submitted that informant PW-1 in his cross-examination has admitted that in his presence no one had touched his injured brother at the place of occurrence and he had also not touched his brother and left for police station to lodge the report, which is an unnatural conduct of the informant which also makes his presence at the place of occurrence doubtful and, therefore, no reliance can be placed on his testimony. It is further submitted that the alleged incident has taken place in public at large, but no independent witness has been examined by the prosecution, therefore, no conviction can be recorded merely on the basis of the testimonies of the interested witness. It is further submitted that in above circumstances the prosecution has miserably failed to prove its case beyond doubt for the charges of offence punishable under Section 302 IPC and 25 Arms Act. Therefore, the impugned judgment and order of conviction is liable to be set-aside and the accused-appellant may be acquitted.
20. It is submitted by learned A.G.A. that the occurrence has taken place on 25.05.2003 at 02:45 p.m. regarding which FIR was lodged on the same day at 15:20 p.m. The chick report (Ex.Ka-5) which is proved by the Constable/Clerk PW-3 Ram Pratap by his secondary evidence deposing that chik FIR was scribed by Head Moharrir Hemraj in whose handwriting he is acquainted with. This fact that the chik report was scribed by Head Moharrir Hemraj was not challenged by the learned counsel for appellant/accused in his cross-examination before the trial court. It is further submitted that the place of occurrence from the police station is shown to be one and half kilometers away and this fact was also not challenged before the trial court. It is further submitted that the PW-1 Kamal Kishore in his deposition has stated that after the occurrence he had gone to police station by rickshaw and handed over the Tahrir at Police Station, Shahabad. It is also submitted that the informant further deposed that he scribed the Tahrir in his own handwriting and under his signature. It is further submitted that PW-1 Kamal Kishore has further deposed that Daroga ji met him at the police station and the deceased has died at about 03:30 p.m. on 25.5.2003 in hospital regarding which he has given Tahrir (Ex.Ka-2) to police station Shahabad in his own handwriting. He has further stated that he has given the information regarding death of his brother. It is further submitted that PW-1 Kamal Kishore has stated that by mistake he in his statement has said that his brother died at 03:30 p.m. It is further submitted that PW-1 Kamal Kishore has deposed that police station is about 2 km away from the place of occurrence. It is further submitted that PW-1 Kamal Kishore has further stated in his statement before the court that he neither has picked up Ram Kishore nor has taken him to the hospital or police station, but he immediately proceeded to the police station to lodge the FIR. It is further submitted that PW-1 Kamal Kishore has deposed that he has told before lodging of the FIR to Daroga Ji that his brother Ram Kishore has sustained three firearm injuries, and thereafter, Daroga Ji had gone to PHC, Shahabad and found Ram Kishore present and recorded his statement. PW-1 Kamal Kishore has further deposed that the copy of the FIR was given to him on the same day in evening. It is further submitted that in this incident the real younger brother of the informant was murdered, his mental condition can also be adjudged on his deposition that the dead body was sealed in hospital. Meaning thereby, as per the statement of this witness the inquest proceeding was conducted at district hospital. It is further submitted by learned AGA that he was shown as witness of the inquest, but he has stated that he had not signed on the Panchayatnama which shows that he was in shock with the incident and had even lost his mental equilibrium at the time of recording of his statement as eyewitness, so such type of contradiction has occurred in his statement. It is also submitted that so far as the conduct of this witness is concerned regarding not picking up his injured brother and going to police station does not make his statement unreliable because the conduct depends upon his mental condition. It is further submitted that it cannot be said that informant had not lodged the FIR at 15:20 p.m. at police station Shahabad. It is further submitted that it cannot be said that the FIR is ante-timed. It is also submitted that the post-mortem of the deceased was conducted at 04:00 p.m. on 26.5.2003 and post-mortem report was prepared by PW-5 Dr. J.L. Gautam who has deposed as PW-5 that the deceased died on 25.5.2003 at about 3-4 p.m. It is further submitted that at the time of post-mortem two ounce of pasty matter with clotted blood was found in stomach, meaning thereby, the occurrence has taken place about 2-3 hours after taking lunch, therefore, it cannot be said that the deceased had sustained injury in night in robbery committed by unknown persons. It is further submitted by learned AGA that PW-1 Kamal Kishore had denied the suggestion of learned counsel for appellant/accused before the trial court that the deceased Ram Kishore was looted at a lonely place in the darkness of the night. It is further submitted that in the present case the FIR was lodged promptly, therefore, it will rule out any sort of concoctions and deliberations for falsely implicating the appellant. It is further submitted by learned AGA that from the statement of PW-7 Inspector S.N. Singh, it is proved that the investigation was started on the same day after lodging of the FIR without delay. It is also submitted that PW-7 S.N. Singh has deposed that informant had come alone to lodge FIR. It is further submitted that these circumstances also rule out the chances of concoction and false implication of the accused. It is also submitted that from the statement of PW-7, it is also apparent that there was some delay in forwarding the FIR to Circle Officer of the police and court having jurisdiction by itself, which cannot be said that the FIR is ante-timed and the learned A.G.A. has placed reliance on the law laid down by the Apex Court in State of Punjab versus Hakam Singh, reported in (2005) SCC 408 wherein it is held that the delay in sending the copy to the area Magistrate is not material where FIR is shown to have been lodged promptly and investigation has started on its basis. It is also submitted that even if there is delay in lodging the FIR and the delay is not material in the event prosecution has given cogent and reasonable explanation for delay and has relied on the law laid down by the Apex Court in Ashok Kumar Chaudhari Vs. State of Bihar, 2008 (61) ACC 1972 (SC) wherein it is held that even if there is delay in lodging the FIR and causes are not attributable to any effort to concoct a version and the delay is satisfactorily explained by the prosecution, no consequence shall be attached to mere delay in lodging the FIR and the delay would not adversely affect the case of the prosecution. The delay caused in sending the copy of FIR to Magistrate having jurisdiction would be also immaterial if the prosecution has proved its case by reliable evidence. It is further submitted that the witness PW-7 Inspector S.N. Singh has stated in his statement that 10 minutes time were taken by Constable Moharrir Hemraj in scribing the chik FIR and GD registering the case, and thereafter, he took the copy of the same and proceeded to PHC, Shahabad, which is about 200-300 meters away from the police station where he found Ram Kishore and the person accompanying the injured were searching for doctor. It is further submitted that PW-7 has recorded the statement under Section 161 Cr.P.C. of the injured Ram Kishore, and thereafter, injured was taken to private nursing home for treatment. It is further submitted that Ram Kishore has died on the same day at about 03:30-03:45 p.m. as a result of injuries sustained in the incident, therefore, his statement under Section 161 Cr.P.C. will be treated as dying declaration according to sub-section (2) of Section 162 Cr.P.C. It is further submitted that the statement under Section 161 Cr.P.C. of the deceased was proved by I.O. PW-7 Inspector S.N. Singh as (Ex.Ka-25) in which he has supported the version of FIR. It is further submitted that FIR is supported by dying declaration and also by informant-eyewitness PW-1 Kamal Kishore and eyewitness PW-2 Ramji Tiwari whose presence at the place of occurrence could not be shaken in cross-examination, who have given vivid description of the incident which is corroborated by the FIR and post-mortem report. Therefore, their testimonies are liable to be relied on and he has relied on the law laid down by this Court in Om Prakash and Ors. v. State, reported in 1995 ALL. L. J. 1210. It is also submitted that two empty cartridges of 315 bore were recovered from the place of occurrence by the Investigating Officer, who prepared the memo (Ex.Ka-18) and has proved it as PW-7. Investigating Officer Shyam Nath Singh also came to know that accused has surrendered before the court on receiving Robkar and with the permission of the court he interrogated the appellant/accused Amitabh Dixit on 6.6.2003 and recorded his statement wherein he has disclosed that the weapon used in the murder of Ram Kishore was concealed by him after committing murder to which he is ready to get recovered. Thereafter, he was taken in police custody by the order of court on 11.6.2003 and on 12.6.2003 he was taken to the place at the tube-well near Kabristan by following him and came down in the well of the tube-well in presence of witnesses PW-3 Chhedalal Verma and Sanjay Mishra and came out with black polythene from which a country made pistol of 315 bore in running condition along with two live cartridges were taken out. He also proved that the country made pistol of 315 bore and two cartridges of 315 bore were recovered from the possession of the appellant. He also proved that he had prepared the recovery memo of the same (Ex.Ka-23) and sealed the pistol of 315 bore and two cartridges in presence of witnesses Chhedalal Varma and Sanjay Mishra. The recovery of the pistol of 315 bore and two cartridges from the appellant was also proved by witness PW-4 who has proved that the recovery of the same was made before him and he signed on the same. Although he was declared hostile on the point of giving of the copy of the recovery memo to the appellant and signing of the appellant on recovery memo regarding receipt of copy of recovery memo. It is further submitted that statement of PW4 Chhedalal and PW7 Inspector S.N. Singh remained unshaken on the point of recovery of pistol 315 bore and two live cartridges of 315 bore. It is further submitted by learned A.G.A. that PW-7 Inspector S.N. Singh has also proved that he had send the empty cartridges recovered from the place of occurrence and the pistol along with cartridges recovered at the pointing out of the appellant/accused to forensic science laboratory. The ballistic report dated 13.10.2003 (Ex.Ka.-27) was tendered by the prosecution which proves that the empty cartridges recovered from the place of occurrence were fired by the pistol of 315 bore recovered at the instance of appellant/accused during police custody remand. It is also submitted that PW-7 Inspector S.N. Singh has also produced a sealed bundle containing two empty cartridges of 315 bore marked as EC (examined cartridge) and the other TC (tests cartridge) before the trial court. The EC cartridge was exhibited as Material.Ex.Ka-1 and TC cartridge was exhibited as Material.Ex.Ka-3. From the same bundle a country made pistol of 315 bore was also found. It is also proved by the PW-7 S.N. Singh that it was the same pistol which was recovered at the pointing out of the accused which was exhibited as Material-Ex.Ka-2. The two live cartridges were also produced before the trial court which was recovered along with pistol at the pointing out of the appellant during police custody remand and the same was exhibited as Material.Ex.Ka-4 & 5. It is further submitted that PW-6 Sub-Inspector Ikrar Hussain has proved the steps taken in investigation of the case under Section 25 Arms Act and has proved the site plan (Ex.Ka.9), sanction for prosecution (Ex.Ka-10) and the charge-sheet submitted under Section 3/25 Arms Act (Ex.Ka-11). It is further submitted that witnesses PW-1 Kamal Kishore and PW-2 Ramji Tiwari are related witness. Learned trial court has scrutinized their depositions with great care and caution and found that their statements are reliable which does not suffer from any infirmity. It is further submitted that learned trial court on the basis of evidence available on record has recorded the finding that the charges of offence punishable under Sections 302 IPC and 25 Arms Act are proved beyond reasonable doubt against the appellant which is according to law and has rightly convicted and sentenced the accused-appellant by the impugned judgment and order which requires no interference. In view of above, the instant appeal is liable to be dismissed.
21. Having considered the rival contentions raised by learned counsel for the appellant as well as learned AGA and gone through the record including the impugned judgment and order of the trial court, we find it pertinent to mention the law governing for hearing of the criminal appeal. The Apex Court in Bakshish Ram and Another versus State of Punjab, reported in AIR 2013 SC 1484: 2013 AIR SCW 14 in paragraphs 10 and 11 has observed as follows:
"10. The High Court, as a First Court of appeals, on facts must apply its independent mind and record its own finding on the basis of its own assessment of evidence. Mere reproduction of the assessment of the trial Court may not be sufficient and in absence of independent assessment by High Court, its ultimate decision cannot be sustained. The same view has been reiterated by this court in Shankar Singh and others versus State of Haryana [(2004) 11 SCC 291: (AIR 2004 SC 2570:2004 AIR SCW 2388)].
11. In Arun Kumar Sharma versus State of Bihar [(2010) 1 SCC 108: (AIR SC (Supp) 2882:2009 AIR SCW )], while reiterating the above view, this court held that in its appellate jurisdiction all the facts were open to High Court and, therefore, the High Court was expected to go deep into the evidence and, more particularly, the record as also the proved documents, contrary to above principle, we are satisfied that in the case on hand, the High Court failed to delve deep into the regard of the case and the evidence of witnesses. The role of the Appellant Court in the criminal appeal is extremely important and all questions of fact are open before the appellate Court. The said recourse has not been adopted by the High Court while confirming the judgment of the trial court."
22. The Apex Court in Majjal versus State of Haryana, reported in (2013) 6 SCC 798 (Three Judges Bench) has observed regarding duty of appellate court while dealing with the appeal under Section 386 Cr.P.C. and has observed in paragraphs 6 & 7 as follows:
"6. In this case what strikes us is the cryptic nature of the High Court's observation on the merit of the case. The High Court is set out the facts in detail. It has mentioned in the name and number of prosecution witnesses. Particular of all documents produced in the court along with their exhibit numbers have been mentioned. Gist of the trial court's observation and findings are set out in a long paragraph. Then there is a reference to the arguments advanced by the counsel. Thereafter, without any proper analysis of the evidence almost in a summary way the High Court has dismissed the appeal. The High Court's cryptic reasoning is contained in two short paragraphs. We find such disposal of criminal appeal by High Court particularly in a case involving charge under Section 302 IPC where the accused is sentenced to life imprisonment unsatisfactorily.
7. It was necessary for the High Court to consider whether the trial court's assessment of the evidence and its opinion that the appellant must be convicted deserves to be confirmed. This exercise is necessary because the personal liberty of an accused is curtailed because of the conviction. The High Court must state its reason why it is accepting the evidence on record. High Court's concurrence with the trial courts view would be acceptable only if it is supported by reasons. In such appeals it is a court of first appeal. Reasons cannot be cryptic. By this, we do not mean that the High Court is expected to write and unduly long treatise. The judgment may be short but must reflect proper application of mind to vital evidence and important submissions which go to the root of the matter. Since this exercise is not conducted by the High Court, the appeal deserves to be remanded for a fresh hearing after setting aside the impugned order."
23. The principle emerges for deciding the criminal appeal from the ratio of above mentioned rulings of the Apex Court is that it is the duty of first appellate Court to make proper analysis of evidence and to consider whether trial court's assessment of evidence and its opinion regarding conviction deserve to be confirmed because the personal liberty of an accused is curtailed because of conviction. First appellate Court's concurrence with the trial court's view would be acceptable only if it is supported by reason. Judgment may be short but must reflect proper application of mind to vital evidence and important submissions which go to the root of the matter.
24. In this appeal the informant PW-1 Kamal Kishore Dixit and witness PW-2 Ramji Tiwari are the eyewitnesses of the incident. PW-1 is the real brother of the deceased and PW-2 is a close relative of the deceased. PW-1 has admitted in his cross-examination that Moonga Ram is his father and Govind Prasad is brother-in-law (Saala) of his father and witness PW-2 Ramji Tiwari is the son of Govind Prasad.
25. The informant PW-1 Kamal Kishore Dixit has deposed that the incident took place on 25.05.2003 at 02:45 p.m. The accused Amitabh Dixit a resident of his locality belongs to his family pedigree. There was a dispute between them before the incident regarding partition of land property. He has further deposed that on 25.05.2003 at 02:45 p.m. his brother Ram Kishore Dixit had gone to Mohallah Chowk to get mustard oil extracted and while he was returning back to home on bicycle, he and his another brother Ram Pramod were also coming to home from the market and they were 50 yards behind the deceased and when his brother Ram Kishore reached near the Mill of Parashuram at Budh Bazar, the accused armed with country made pistol of 315 bore came and opened fire on his brother Ram Kishore which hit at his left hand and his brother sustained injury. Then, his brother Ram Kishore ran towards them. On this, appellant Amitabh Dixit followed his brother and again opened fire upon him from about 8-9 paces away behind his brother and again appellant fired another shot which hit in the left leg of his brother. Thereafter, his brother (deceased) in order to save his life tried to enter into the house of Ram Shankar, but the door was closed. Till then appellant accused again opened fire which hit on the right side of chest of his brother (deceased) due to which he fell down. The witnesses PW-2 Ramji Tiwari, Suresh Chandra Gupta and several other persons reached there and challenged the appellant, then the appellant fled from there. Then he went to the police station on rickshaw to lodge the FIR and got the FIR registered on the basis of written Tahrir which was scribed in his own writing and under his signature. After the incident, the Investigating Officer PW-7 S.N. Singh recorded his statement. Later on, the deceased died on the same day, i.e., 25.05.2003 at 03:30 p.m., and thereafter, the informant had given another written Tahrir (Ex.Ka-2) in his own handwriting regarding death of his brother Ram Kishore. The informant has further deposed that prior to the incident the deceased had given an application to the Chowki In-charge, Sardarganj, Shahabad regarding demolition of wall by the accused-appellant and his associates, carbon copy of which was filed before the trial court which bears the signature of the deceased Ram Kishore.
26. So far as the submission of learned counsel for the appellant that the dying declaration is not believable because PW-1 Kamal Kishore has admitted in his statement before the court that the deceased has died at 03:30 p.m. on 25.05.2005 and the FIR was lodged at 03:20 p.m. on the basis of written Tahrir (Ex.Ka-1 & Ka-2) at the same time, so the dying declaration can be accommodated.
27. In this regard, we have gone through the deposition of PW-1 Kamal Kishore and PW-7 Inspector S.N. Singh. The informant PW1 has stated before the court that the occurrence has taken place at 02:45 p.m. The chik report no. 71 of 2003 was scribed by Head Moharrir Hemraj on 25.05.2003 at 15:20 p.m. He has deposed that he had left the place of occurrence immediately and had gone to police station to lodge the FIR on rickshaw. The witness PW-3 Constable Ram Pratap by secondary evidence has stated that the chik report under Section 307 IPC (Ex.Ka-5) was scribed by Head Moharrir Hemraj at 15:20 p.m. on 25.05.2003 at police station Shahabad and by making entry in GD report no.26 (Ex.Ka-6) on 25.05.2003 at 15:20 p.m., the Case Crime No. 209 of 2003, under Section 307 IPC was registered. PW-3 Constable Ram Pratap has proved the Ex.Ka-5 and Ex.Ka-6 by secondary evidence. The Investigating Officer PW-7 S.N. Singh has deposed that the case was registered in his presence at the police station. He has further deposed that Head Moharrir Hemraj had scribed the chik report (Ex.Ka-5) and GD registering the case (Ex.Ka-6) within 10 minutes, and thereafter, he had taken the copy of chik report and GD registering the case and proceeded to PHC, Shahabad which is about 200-300 meters away from the police station and recorded the statement of the injrued Ram Kishore under Section 161 Cr.P.C. The witness PW-1 Kamal Kishore has stated in his statement that Daroga Ji had recorded his statement at the police station and later on Daroga Ji had recorded the statement of Ram Kishore at PHC, Shahabad. He has further stated that on reaching the police station he had told Daroga Ji that three shots were fired at his brother which hit him and he is at PHC, Shahabad. He has further deposed that Daroga Ji took him to PHC, Shahabad. Moreover, the report number of GD wherein information of the death was received was left blank in panchayatnama. Therefore, from above discussion it is proved that the FIR was lodged at 15:20 p.m. on 25.05.2003 at Police Station Shahabad. From the statement of informant PW-1 Kamal Kishore, it is proved that his brother has died on 25.05.2003 at 03:20 p.m. The PW-7 Inspector S.N. Singh has admitted in his cross-examination that ten minutes time was taken by the Head Moharrir Hemraj in scribing the chik report and GD registering the case. The informant (PW-1) has admitted that Daroga Ji had recorded his statement, and thereafter, proceeded to PHC, Shahabad. In this respect, we also perused the case diary wherein it is mentioned that on 25.05.2003 at 15:30 hours the Investigating Officer had copied the chik report in case diary, and thereafter, he copied the contents of GD registering the case. Thereafter, he had recorded the statement of injured Ram Kishore. From the close scrutiny of the evidence, it is proved that the deceased has died at 03:20 p.m. as per the statement of PW-1 Kamal Kishore and as per the case diary the Investigating Officer recorded the chik report and GD registering the case in CD thereafter, therefore in above circumstances as the deceased has died at 03:20 p.m. there was no occasion for the Investigating Officer to record his dying declaration (Ex.Ka-25). In above circumstances, the dying declaration is doubtful and cannot be relied on and we find substance in the arguments of learned counsel for the appellant that the dying declaration is suspicious and it cannot be relied on.
28. So far as the contention of learned AGA regarding treating the statement of the deceased recorded under Section 161 Cr.P.C. as dying declaration is concerned, it can be treated as dying declaration as per provision of Section 162(2) Cr.P.C., if from the evidence on record it is proved that the statement under Section 161 Cr.P.C. is beyond suspicion. The provision of Section 162 Cr.P.C. reads as follows:
"162. Statements to police not to be signed: Use of statements in evidence.- (1) No statement made by any person to a police officer in the course of an investigation under this Chapter, shall, if reduced to writing, be signed by the person making it; nor shall any such statement or any record thereof, whether in a police diary or otherwise, or any part of such statement or record, be used for any purpose, save as hereinafter provided, at any enquiry or trial in respect of any offence under investigation at the time when such statement was made:
Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination.
(2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of Section 27 of that Act.
Explanation. - An omission to state a fact or circumstance in the statement referred to in sub-section (1) may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact."
29. The statement of witness under Section 161 Cr.P.C. can amount to dying declaration as held by the Apex Court in Dalip Singh versus State of Punjab, reported in (1979) 4 SCC 332 in paragraph 8, which reads as follows:
"8....We may also add that although a dying declaration recorded by police officers during investigation is admissible under Section 32 of the Indian Evidence Act in view of exception provided to sub-section (2) of Section 162 of the Code of Criminal Procedure, 1973, it is better to leave such dying declaration out of consideration until and unless the prosecution satisfies the court as to why it was not recorded by the Magistrate or Doctor. As observed by this court in Munnu Raja versus state of MP [(1976) 3 SCC 104], the practice of the investigating officer himself recording a dying declaration during investigation ought not to be encouraged. We do not mean to suggest that such dying declaration are always untrustworthy but what we want to emphasize is that better and more reliable method of recording a dying declaration of an injured person should be taken recourse to and one recorded by the police officer may be relied upon if there was no time or facility available to the prosecution for adopting any better method."
30. From the position of law settled by the Apex Court that statement recorded by the Investigating Officer under Section 161 Cr.P.C. can be treated as dying declaration, but it should be free from suspicion. As discussed above, the statement under Section 161 Cr.P.C. of the injured recorded by the Investigating Officer is suspicious. Therefore, we find no substance in the contention of learned AGA that the statement of the injured recorded under Section 161 Cr.P.C. was a genuine one and was free from suspicion or doubt, therefore, it cannot be relied on in view of Section 162 Cr.P.C. In above circumstance, we find substance in the contention of learned counsel for the appellant that the dying declaration was not a genuine one and it cannot be relied on, therefore, the same cannot be looked into for the purpose of proof of the case.
31. Now, we are considering the submission of learned counsel for the appellant that FIR was ante-timed. PW-1 Kamal Kishore in his statement has stated that after the incident he without picking up his injured brother Ram Kishore he proceeded to the police station for lodging the FIR on rickshaw. He has further deposed that the incident has taken place at 02:45 p.m. and he lodged the FIR at 15:20 p.m. on 25.05.2003 by handing over written Tahrir which was scribed by him in his own handwriting and under his signature. Perusal of the chik report (Ex.Ka-5) proved by the witness PW-3 Constable Ram Pratap by secondary evidence shows that the distance between the place of occurrence and police station was one and half kilometer. The witness PW-1 Kamal Kishore might have taken some time in writing the Tahrir and might have taken sometime in search of rickshaw, and thereafter, he had gone to the police station via a busy road. Therefore, in above circumstance it is proved that the FIR was lodged without delay. So far as the submission of learned counsel for the appellant that the FIR was lodged after the death of the deceased and in order to create false dying declaration, FIR regarding sustaining of injury by the deceased was lodged ante-time at first and later on the information regarding the death of the deceased was taken by the Investigating Officer for accommodating the recording of statement under Section 161 Cr.P.C. is concerned, it was the lapse on the part of the Investigating Officer which should not be taken in favour of the accused, may be that such lapse is committed designedly or because of negligence, so that it will not infer that FIR was not lodged promptly as held by the Apex Court in Paras Yadav & Ors. versus State of Bihar, [(1999) 2 SCC 126 : 1999 SCC (Cri) 104]. In this case, FIR was lodged on 25.05.2003 at 15:20 p.m., and thereafter, the information regarding death of the deceased was communicated by PW-1 Kamal Kishore by written Tahrir (Ex.Ka.-2) at 16:20 hours at the police station Shahabad which was entered in GD (Ex.Ka-7) vide report no.27 on 25.05.2003 at 16:20 hours which was proved by the witness PW-3 Constable Ram Pratap by secondary evidence and Section 302 IPC was added. If the police wanted to ante-time the FIR, police might had stopped the GD (Ex.Ka-7). The witness PW-5 Dr. J.L. Gautam has proved the post-mortem report (Ex.Ka-8) and has stated that the deceased might have died one day before the post-mortem. He had found clotted blood and pasty matter in the stomach of the deceased. The post-mortem of the deceased was conducted on 26.05.2003 at about 04:00 p.m., meaning thereby, the deceased had taken lunch in the noon and occurrence has taken place after about two hours of his taking the meal, which also proves that the occurrence has taken place at about 02:45 p.m. on 25.05.2003 and it rules out that deceased was robbed at some lonely place in the dark of night. Because in the interval of an hour of lodging of FIR, the information regarding the death of the deceased was given by the informant PW-1 Kamal Kishore, therefore, SI Siyaram might have left the GD report number while reporting the death of the deceased in panchayatnama to avoid the mistake in writing wrong GD report number in panchayatnama, but due to mistake later on he could not fill in the blanks. At the top of panchayatnama he had written the Case Crime No. 209 of 2003, under Section 307/302 IPC and the name of the informant who had given the information regarding the death was also mentioned as Kamal Kishore in the body of panchayatnama (Ex.Ka-12). He had also mentioned the Case Crime No. 209 of 2003 under Section 307/302 IPC in the Challan Lash (Ex.Ka-13), Photo Nash (Ex.Ka-14). The inquest proceeding was proved by the PW-7 Inspector S.N. Singh by secondary evidence. It is proved that the investigation was started promptly after lodging of the FIR, therefore it is proved beyond reasonable doubt that the FIR was lodged promptly. In above circumstances, we find no merit in the submission of learned counsel for the appellant that FIR was ante-time and was lodged after due deliberation and concoction to falsely implicate the appellant Amitabh Dixit. So far as the conduct of informant PW-1 Kamal Kishore is concerned regarding not picking up his brother after sustaining injury is of no consequence because different person reacts differently in a given situation and he might have thought that there are other person present at the place of occurrence who would pick up his injured brother and take him to the hospital. Therefore, it cannot be said that PW-1 Kamal Kishore was not present at the place of occurrence at the time of incident. Therefore, we find that PW-1 Kamal Kishore had in above circumstances proceeded to lodge the FIR first immediately without losing time so that police help might be extended to his brother for saving his life and for better treatment in the hospital.
32. Now, the question arises whether the incident has taken place at the place of occurrence or at some lonely place and the deceased was robbed at a lonely place and has sustained injuries in robbery?
33. The Investigating Officer PW-7 Inspector S.N. Singh has deposed that he had collected the plain and blood stained soil from the place of occurrence and had prepared its memo (Ex.Ka-20). He had also found two empty cartridges of 315 bore at the place of occurrence and prepared its memo (Ex.Ka-18), a pair of slipper and prepared its memo (Ex.Ka-19) and also found the bicycle of the deceased and a plastic container from which oil had flown on the road and prepared its memo (Ex.Ka-21). PW-7 has also deposed that he sent the pair of slipper, plain and blood stained soil along with clothes, i.e., scarf, janeyu and Raksha of the deceased to Forensic Science Laboratory, Lucknow in a sealed cover and the report of the forensic science laboratory dated 24.09.2003 (Ex.Ka.26) was tendered by the prosecution. The aforesaid report was prepared by the Government Serologist Expert which was forwarded by Joint Director Forensic Science Laboratory, Lucknow. The appellant had not called for the cross-examination of the expert, therefore, it will be presumed that the serological report is admitted to the appellant. Section 293 of the Code of Criminal Procedure speaks about the reports of certain government scientific expert. Section 293 Code of Criminal Procedure, 1973 reads as follows:-
"293. Reports of certain Government Experts: (1) Any document purporting to be a report under the hand of a Government scientific expert to whom this section applies, upon any matter or thing duly submitted to him for examination or analysis and report in the course of any proceeding under this Code, may be used as evidence in any enquiry, trial or other proceeding under this Code.
(2) The court may, if it thinks fit, summon and examine any such expert as to the subject matter of his report.
(3) Where any such expert is summoned by a Court and he is unable to attend personally, he may, unless the Court has expressly directed him to appear personally, depute any responsible officer working with him to attend the court, if such officer is conversant with the facts of the case and can satisfactorily depose in court on his behalf.
4. This section applies to the following Government scientific experts namely: -
(a) any Chemical Examiner or Assistant Chemical Examiner to Government;
(b) the Chief Controller of Explosives;
(c) the Director of Finger Print Bureau;
(d) the Director, Haffkein Institute, Bombay;
(e) the Director, [Deputy Director or Assistant Director] of a Central Forensic Science Laboratory or a State Forensic Science Laboratory;
(f) the Serologist to the Government."
(g) [any other Government Scientific Expert specified by notification by the Central Government for this purpose.]"
34. The sub-section merely provides that the report of expert may be admitted as evidence without formal proof as held by the Apex Court in Bhupinder versus State of Punjab, reported in AIR 1988 SC 1011. The word ''may' in sub-section (1) makes it clear that it is only an enabling provision. Though the report of Chemical Examiner, when properly admitted is entitled to the same weight as sworn testimonies as held by the Apex Court in Bhupinder versus State of Punjab (supra). The serological expert report was not challenged by the learned counsel for the appellant in the trial court by summoning for cross-examination. The presence of blood on the blood stained soil and nature of plain soil proves that it was taken from the same place. The presence of human blood on a pair of slipper, plain and blood stained soil proves beyond doubt that the occurrence has taken place at the place as alleged by the prosecution. It also rules out the defence case that the deceased had sustained injury in a robbery in the night at a lonely place and the appellant was falsely implicated due to enmity.
35. Now, we have to analyze whether the motive of the crime is proved beyond reasonable doubt? In this regard, PW-1 Kamal Kishore has deposed that the appellant belongs to the same pedigree and there was a dispute between them regarding partition of the land property before the incident. He has also deposed in cross-examination that the deceased had given an application to the In-charge Chawki Sardarganj regarding the demolition of wall, which was being raised by the deceased, by the appellant and his associates on 08.08.2000. He has also filed the carbon copy of the aforesaid application which is on record. The appellant/accused has admitted in his statement under Section 313 Cr.P.C. that the statement of witness PW-1 Kamal Kishore that the he (appellant) belongs to his pedigree is correct. He has also admitted the statement of PW-1 Kamal Kishore that there was dispute between the family of accused and family of the appellant regarding partition of land property. He has further admitted that the informant and his family member grabbed his house due to this enmity, he has been falsely implicated in this case. From the above discussion, it is proved beyond doubt by the evidence and admission of the appellant in the statement under Section 313 Cr.P.C. that there was enmity between the family of the deceased and the appellant. The enmity is two edged weapon which can be used for false implication as well as provided the reason to commit the offence. The suggestion suggested by the learned counsel for the accused-appellant may be looked into while appreciating the evidence. The suggestion of the appellant's counsel that the deceased was robbed in the darkness of night somewhere at a lonely place and not at the place of occurrence and sustained injury in the robbery is not plausible in this case, therefore, the plea of false implication of the appellant is ruled out in this case. Therefore, the motive to commit the offence by the appellant is proved beyond reasonable doubt.
36. PW-2 Ramji Tiwari is also alleged to be an eyewitness of the incident who has deposed and corroborated at the time of recording of his statement that the occurrence had taken place about 9-10 months ago. He has also deposed that on the day of occurrence while he was returning from his field he had seen Ram Kishore Dixit coming from the market on a bicycle and Amitabh Dixit stopped him and opened fire upon him, then he was at a distance of 10-12 meters from the deceased Ram Kishore, the fire hit at the hand of the deceased. Thereupon, Ram Kishore ran towards back leaving his bicycle, then the appellant Amitabh Dixit again opened fire which hit at the thigh of Ram Kishore. Thereafter, Ram Kishore (deceased) started running towards the house of Ram Shankar and wanted to enter into his house, but the door was closed. Then Ram Kishore (deceased) fell down on the platform outside of the house of Ram Shankar, meanwhile, the appellant Amitabh Dixit again opened fire which too hit him, and thereafter, the appellant fled from there waving his pistol. He has further deposed that Kamal Kishore (informant) and Ram Pramod were also coming from behind. Suresh Gupta was also with him. He, Ram Promod and Suresh Gupta picked up the injured Ram Kishore and took him to the Government Hospital, Shahabad in the afternoon, but no doctor was found there, then they took Ram Kishore to the clinic of Dr. Maya Prakash where the deceased Ram Kishore has died at around 03:30-03:45 p.m. In his cross-examination, he has admitted that he is the resident of Mohalla Holi Kalan, about 1 km North to the place of occurrence. He has further clarified that Inayatpur is about 1.5-2 km towards South of his house. His farm is situated in village Inayatpur. There are three roads to reach his farm, one goes through Rai Saheb Gate via Pali Road. He has further clarified that he did not use to go to his farm by scooter as he did not have scooter. He used to go to his farm via these three roads and often via two roads and sometimes via Pali Road. On the day of incident, he had gone to his farm from his house via middle one of the roads. He has further clarified that the place of occurrence does not fall on these three roads. On the day of occurrence, he had gone to receive the share of his crops, but the sharecropper did not deliver because he was not present at his house. The name of the sharecropper is Ramdeen. He arrived at the house of sharecropper at around 01:15 p.m. and stayed there for about 15 minutes. On the day of occurrence, he was coming back from Mandir Devi Wala Kharanja Road. Suresh met him by chance at the door of Sanjay Mishra at Mohallah Budh Bazar talking with him. The house of Sanjay is situated by the side of road where the incident has taken place. The place of incident is hundred meters towards South from the house of Sanjay. He had no work to go to Budh Bazar on the day of occurrence. He was coming back looking after his farm and Suresh was also coming back from the house of Sanjay. He has admitted that he was a practicing Advocate at Tehsil Shahabad at the time of incident. He has further clarified that Suresh runs a book shop opposite to the post office at Mohalla Chowk. He has further admitted that the deceased and witness Kamal Kishore are son of his Bua. In cross-examination, he has further corroborated that injured Ram Kishore was taken to Government Hospital by Suresh, Ram Pramod and him and they reached at the hospital at about 03:00 p.m. He has further deposed that the Government Hospital is about one kilometer to the North from the place of occurrence. He has further deposed that doctors were not found in the Government Hospital, then they took the injured Ram Kishore to the clinic of Dr. Maya Prakash which is about one kilometer to the South-West from the Government Hospital. He has further deposed that they reached at the clinic of Dr. Maya Prakash at about 03:45 p.m. where the injured Ram Kishore has died. He has clarified in his cross-examination that the deceased was coming from North to South on a bicycle who had left the bicycle and ran towards the North when the second fire was opened by the appellant. He has also corroborated in his cross-examination that when the third fire was shot which too hit Ram Kishor, Ram Kishore had fell down on the platform in front of the house of Ram Shankar. He has further deposed that he had stated before the Investigating Officer that Ram Kishore was running looking behind, but he could not tell the reason as to why the Investigating Officer had not written this fact in his statement under Section 161 Cr.P.C. This omission is of minor nature and does not go to the root of the case, therefore, this omission will not affect the prosecution case. He has denied the suggestion of the accused-appellant's counsel in his cross-examination that he was not present at the place of occurrence and had not seen any incident.
37. This witness has given vivid description of the incident and has also deposed that while he was returning from his field and from the house of sharecropper, Suresh met him on the way. This witness is shown as witness of panchayatnama. His statement is corroborated by the FIR and the post-mortem report. Although, this witness is related to the deceased, the law requires that statement of related witness cannot be discarded on the basis of relation, but can be scrutinized with great care and caution. After scrutinizing the deposition of PW-2 Ramji Tiwari, we find that it inspires confidence and is liable to be relied on and the trial court has according to law relied on his statement and held that PW-2 had seen the occurrence and was present at the place of occurrence at the time of incident.
38. PW-1 in cross-examination has corroborated that he, his brother Ram Pramod and Ram Kishore (deceased) were living together in the same house and there was no partition amongst them. He has further stated that he had come back to his house after lodging the FIR. He might have returned to his house after lodging the FIR to arrange for money for the treatment of his brother. He has further deposed that the copy of the report was given to him in the evening on the same day. At the time of sealing of dead body of the deceased, he was not asked by the police as to who had killed his brother Ram Kishore. He has not told the police at the time of inquest proceeding that his brother was killed by the appellant Amitabh Dixit. This witness has denied the suggestion of the accused-appellant's counsel that he was not present at the place of occurrence at the time of incident. He has also denied the suggestion that he had not received the chik report on the same day and also that he had not scribed the written Tahrir (Ex.Ka-1 and Ka-2) and the same was written on the dictation of the police. He has also explained the reason for going to the market to purchase clothes for marriage of his daughter along with his brother Ram Pramod and the deceased also came there at the shop. He has further clarified that the mustard seed was handed over to the machine holder one day before. He has further stated that he had gone to the market having a sum of Rs.1200/- with him and had purchased clothes for Rs.900/-. He has further clarified that he had purchased the clothes from the shop of Ram Kishan & Son's. Thereafter, he along with deceased Ram Kishore and his another brother Ram Pramod was returning to the house from the market. The deceased Ram Kishore was on a bicycle having a plastic container containing mustard oil and on the way the occurrence has taken place at 02:45 p.m. He has given the details of the incident in his statement and has also given the reasons as to why he was present at the place of occurrence which is unshaken in cross-examination. The statement of PW-1 Kamal Kishore is supported by the medical evidence and also by the forensic science report as well as ballistic report, therefore, his statement is reliable and the trial court has rightly relied on his statement. The deposition of PW-1 Kamal Kishore is corroborated by the deposition of PW-2 Ramji Tiwari. The Investigating Officer has proved that on 12.06.2003 the country made pistol of 315 bore along with two live cartridges were recovered at the pointing out of the appellant during police custody remand. The recovery is also proved by the independent witness PW-4 Chhedalal who has admitted his signature on the recovery memo (Ex.Ka-23), which remained unshaken. Therefore, on the point of recovery the statement of PW-7 Inspector S.N. Singh is corroborated by the statement of witness PW-4 Chhedalal. PW-7 Inspector S.N. Singh has also proved the recovery of two empty cartridges from the place of occurrence on 25.05.2003 and empty cartridges and country made pistol of 315 bore along with two live cartridges were sent to Forensic Science Laboratory and in the ballistic report (Ex.Ka-27) dated 13.10.2003 it was found that the empty cartridges recovered from the place of occurrence were fired by the same pistol of 315 bore which was recovered at the pointing out of the appellant during police custody remand. Therefore, it is proved beyond reasonable doubt that the two empty cartridges were recovered from the place of occurrence and the country made pistol of 315 bore along with two live cartridges were recovered at the instance of the accused-appellant on 12.06.2003 at 8:10 a.m. and the recovered empty cartridges were fired by the appellant accused Amitabh Dixit. Therefore, the recovery of the pistol and two live cartridges during police custody remand confirms the disclosure statement of the accused under Section 27 of Evidence Act which is also confirmed by the report of Forensic Science Laboratory and Ballistic Expert as well. Therefore, in above circumstances, the prosecution case is proved beyond reasonable doubt and the trial court has rightly recorded the findings that the charges of offence punishable under Section 302 I.P.C. and 25 Arms Act are proved beyond reasonable doubt and has rightly held the accused-appellant guilty and convicted and sentenced him according to the law.
39. So far as the contention of learned counsel for the appellants regarding interested witnesses is concerned, the Apex Court in Gangadhar Behera and Others vs. State of Orissa, reported in (2002) 8 SCC 381 has held as under:
"......Relationship is not a factor to affect credibility of a witness. It is more often than not that a relation would not conceal actual culprit and make allegations against an innocent person. Foundation has to be laid if plea of false implication is made. In such cases, the court has to adopt a careful approach and analyse evidence to find out whether it is cogent ad credible."
In Dalip Singh and Ors. v. The State of Punjab, (AIR 1953 SC 364), it has been laid down as under:
"A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily a close relation would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalization. Each case must be judged on its own facts. Our observations are only made to combat what is so often put forward in cases before us as a general rule of prudence. There is no such general rule. Each case must be limited to and be governed by its own facts."
The above decision has since been followed in Guli Chand and Ors. v. State of Rajasthan, (1974 (3) SCC 698) in which Vadivelu Thevar v. State of Madras, (AIR 1957 SC 614) was also relied upon.
We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh's case (supra) in which surprise was expressed over the impression which prevailed in the minds of the Members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed:
"We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in ''Rameshwar v. State of Rajasthan' (AIR 1952 SC 54 at p.59). We find, however, that it unfortunately still persists, if not in the judgments of the Courts, at any rate in the arguments of counsel."
Again in Masalti and Ors. v. State of U.P., (AIR 1965 SC 202) this Court observed: (p, 209-210 para 14):-
"But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses.......The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it is partisan cannot be accepted as correct. (emphasis supplied) [38]. Our social system is changing at a rapid pace. In the present social scenario, people refrain from going to police stations and courts due to fear of insult and harassment. Generally, people avoid to become a witness of an incident for the simple reason that deposing against the a culprit involved in a crime would endanger their life. In the present social setup, it is least possible that a third person deposes against the culprit."
40. The Apex Court in Sandu Saran Singh v. State of Uttar Pradesh and Others, reported in (2016) 4 SCC 357 has held as under:
"29. .....In these days, civilized people are generally insensitive to come forward to give any statement in respect of any criminal offence. Unless it is inevitable, people normally keep away from the Court as they feel it distressing and stressful. Though this kind of human behaviour is indeed unfortunate, but it is a normal phenomena. We cannot ignore this handicap of the investigating agency in discharging their duty. We cannot derail the entire case on the mere ground of absence of independent witness as long as the evidence of the eyewitness, though interested, is trustworthy."
41. In the wake of aforesaid, the prosecution has proved its case beyond reasonable doubt against the accused-appellant for offence punishable under Section 302 I.P.C. and Section 25 Arms Act. The learned trial court has rightly convicted and sentenced the appellant for the offences as mentioned above, according to law, which requires no interference.
42. Considering the overall facts and circumstances of the case, we are of the opinion that there is no illegality or perversity in the impugned common judgment of conviction and order of sentence dated 16.12.2004 passed by Additional District & Sessions Judge, Fast Track Court No.4, Hardoi in Sessions Trial No.673 of 2003 ( State Vs. Amitabh Dixit), arising out of Case Crime No.209 of 2003, under Sections 302/307 I.P.C., Police Station- Shahabad, District- Hardoi, and Session Trial No. 674 of 2003 (State vs. Amitabh Dixit), arising out of Case Crime No. 266 of 2003, under Section 25 Arms Act, Police Station- Shahabad, District Hardoi, whereby the appellant was convicted for offence punishable under Section 302 I.P.C. and Section 25 Arms Act and was sentenced to undergo imprisonment for life along with fine of Rs.5000/- under Section 302 I.P.C. and further to undergo rigorous imprisonment for two years along with fine of Rs.500/- under Section 25 of Arms Act, in default of payment of fine, to undergo additional simple imprisonment for two years. Consequently, the impugned judgment of conviction and order of sentence dated 16.12.2004 passed by Additional District & Sessions Judge, Fast Track Court No.4, Hardoi is, hereby, upheld.
43. The instant criminal appeal is, accordingly, dismissed.
44. Since the appellant Amitabh Dixit is on bail, his personal bonds are cancelled and the sureties are discharged. The trail court concerned shall cause him to be arrested and lodge in jail to serve out the remaining sentence awarded to him by the trial court.
45. Let certified copy of this judgment along with lower court record be transmitted to the trial court concerned immediately for information and necessary compliance.
Order Date :- 12.1.2023 Vikas/-
[Mohd. Aslam, J.] [Ramesh Sinha, J.]