Allahabad High Court
Umashanker Singh @ Umesh Singh vs State Of U.P. on 4 July, 2025
Bench: Saumitra Dayal Singh, Gautam Chowdhary
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2025:AHC:104133-DB Judgment reserved on 24.02.2025 Judgement delivered on 04.07.2025 In Chamber Case :- CRIMINAL APPEAL No. - 3311 of 2021 Appellant :- Umashanker Singh @ Umesh Singh Respondent :- State of U.P. Counsel for Appellant :- Rajeev Nayan Singh, Sr. Adv. Counsel for Respondent :- G.A., Abhishek Chauhan With Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 270 of 2021 Appellant :- Krishna Kant Tiwari Respondent :- State of U.P. and Another Counsel for Appellant :- Pulak Ganguly,Shyama Charan Tripathi,Sr. Advocate Counsel for Respondent :- G.A.,Shashi Kant Dwivedi With Case :- CRIMINAL APPEAL No. - 3315 of 2021 Appellant :- Ganesh Singh Respondent :- State of U.P. Counsel for Appellant :- Amit Daga, Shailendra Kumar Singh Counsel for Respondent :- G.A. With Case :- CRIMINAL APPEAL No. - 3574 of 2021 Appellant :- Udai Pratap Singh @ Dimpu Singh Respondent :- State of U.P. Counsel for Appellant :- Vimlendu Tripathi Counsel for Respondent :- G.A. With Case :- CRIMINAL APPEAL No. - 3671 of 2021 Appellant :- Ramprakash Yadav @ Naga Yadav Respondent :- State of U.P. Counsel for Appellant :- Radhey Shyam Shukla Counsel for Respondent :- G.A. With Case :- CRIMINAL APPEAL No. - 4152 of 2021 Appellant :- Murari Jaiswal Respondent :- State of U.P. Counsel for Appellant :- Prakash Chandra Srivastava Counsel for Respondent :- G.A. With Case :- CRIMINAL APPEAL No. - 8480 of 2022 Appellant :- Satya Prakash Jaiswal Respondent :- State of U.P. Counsel for Appellant :- Bijay Singh Sachan, Sr. Adv. Counsel for Respondent :- G.A., Arun Kumar Shukla Hon'ble Saumitra Dayal Singh,J.
Hon'ble Dr. Gautam Chowdhary,J.
1. Heard Shri Kamal Krishna, learned Senior Advocate assisted by Shri Bijay Singh Sachan, learned counsel for the appellant in Criminal Appeal No. 8480 of 2022, Shri V.P. Srivastava, learned Senior Advocate assisted by Shri Rajeev Nayan Singh, learned counsel for the appellant in Criminal Appeal No. 3311 of 2021, Shri Amit Daga and Shri Shailendra Kumar Singh, learned counsel for the appellant Criminal Appeal No. 3315 of 2021, Shri Vimlendu Tripathi, learned counsel for the appellant in Criminal Appeal No. 3574 of 2021, Shri Radhey Shyam Shukla, learned counsel for the appellant in Criminal Appeal No. 3671 of 2021, Shri Prakash Chandra Srivastava, learned counsel for the appellant in Criminal Appeal No. 4152 of 2021, Shri Vikas Goswami, learned A.G.A.-I for the State and, Shri Abhishek Chauhan, learned counsel for the informant in Criminal Appeal No. 3311 of 2021, Shri Shashi Kant Dwivedi, learned counsel for the informant in Criminal Appeal under Section 372 Cr.P.C. No. 270 of 2021, and Shri Arun Kumar Shukla, learned counsel for the informant in Criminal Appeal No. 8480 of 2022.
2. The aforesaid appeals arise from the judgement and order dated 13.08.2021 passed by Shri Ravi Nath, learned Sessions Judge Deoria, in S.T. No. 337 of 2014 (State of U.P. v. Satya Prakash and 5 others; S.T. No. 389 of 2014 (State of U.P. v. Ram Prakash), both arising from Case Crime No. 663 of 2014, under Section 302 read with 34 I.P.C., P.S. Barhaj, District Deoria; S.T. No. 338 of 2014 (State of U.P. v. Satya Prakash Jaiswal, arising from Case Crime No. 683 of 2014, under Section 3/25 Arms Act, P.S. Barhaj, District Deoria and S.T. No. 354 of 2014 (State of U.P. v. Murari Jaiswal), arising from Case Crime No. 795 of 2014, under Section 3/25 Arms Act, P.S. Barhaj, District Deoria. By the above judgment and order, the present appellants have been convicted and sentenced as below :
Sl. No. Name of accused/appellants Session Trial No. Case Crime No. Conviction u/s Sentence
1.
Satya Prakash Jaiswal, Murari Jaiswal and Ramprakash Yadav @ Naga Yadav 337 of 2014 663 of 2014 302/34 I.P.C.
Life imprisonment along with fine of Rs. 25,000/- each, in default in payment of fine to undergo for additional rigorous imprisonment of one year.
2. Udai Pratap Singh @ Dimpu Singh, Ganesh Singh and Umashanker Singh @ Umesh Singh 337 of 2014 663 of 2014 302/120B I.P.C.
Life imprisonment along with fine of Rs. 5,000/-each, in default in payment of fine to undergo for additional rigorous imprisonment of three months.
3. Satya Prakash Jaiswal 338 of 2014 683 of 2014 3/25 Arms Act.
One year rigorous imprisonment.
4. Murari Jaiswal 354 of 2014 795 of 2014 3/25 Arms Act.
One year rigorous imprisonment.
3. Also, informant has filed an appeal being Criminal Appeal under Section 372 Cr.P.C. No. 270 of 2021 (Krishna Kant Tiwari v. State of U.P. and another) for setting aside the impugned acquittal judgment and order dated 13.08.2021 passed by Shri Ravi Nath, learned District & Sessions Judge, Deoria, in Sessions Trial No. 337 of 2014 (State of U.P. v. Satya Prakash Jaiswal and others), arising out of Case Crime No. 663 of 2014, under Section 302/34 and 120B I.P.C., P.S. Barhaj, District Deoria. By that order, the learned court below has acquitted the accused/opposite party no. 2, Manoj Singh of the charge under Section 302/34 and 120B IPC.
4. The prosecution story emerged on a Written Report dated 24.06.2014 submitted by Krishna Kant Tiwari, the father of the deceased (P.W.-1 at the trial), disclosing that his son Mihir Kant Tiwari (the deceased) was a Corporator of Nagar Palika Parishad, Gaura Barhaj. On a representation made to the latter, by some prominent citizens of his constituency, he had submitted written complaints against miscreants of the area reporting their misbehavior towards ladies and others. They were also involved in the illicit liquor trade and gambling. On such complaints made by the deceased, the local police had acted 2-3 days prior to the occurrence. For that reason, Uma Shankar Singh @ Umesh Singh, son of Indrasen Singh, Manoj Singh, son of Late Harishankar Singh, Ganesh Singh, son of Indrajeet Singh and Udai Pratap @ Dimpu Singh son of Ram Dev Singh who were engaged in illicit trade in liquor and gambling became angry with the deceased and wanted to get rid of him. It was also described, the said Uma Shankar Singh @ Umesh Singh threatened Krishna Kant Tiwari (P.W.-1), 15 days prior to the occurrence-to stop the deceased from complaining against the activities of the accused persons or else he would be done to death.
5. In the above fact background narrated in the Written Report, it was specifically alleged, on 23.06.2014 at about 6 p.m. the deceased had gone to the electricity sub-station Barhaj, to lodge a complaint against power outage, when Satya Prakash Jaiswal exhorted two others to kill the deceased. Thereafter, the assailants i.e. Satya Prakash Jaiswal and two others chased the deceased inside the electricity sub-station and fired a volley of shots (with their firearms), at the deceased. The deceased was hit in that assault. He fell to the ground.
6. According to the first informant he saw this occurrence while returning home from Tehsil Barhaj. In that, he first heard gunfire. When he looked in the direction of gun fire, he saw Satya Prakash Jaiswal, Murari Jaiswal and Ramprakash Yadav @ Naga Yadav assaulting the deceased with firearms. After causing the occurrence, the assailants fled from the spot, brandishing their firearms and threatening bystanders with dire consequences, if they came in their way.
7. At that time, a relative of the first informant, namely Shridhar Tiwari (P.W.-2 at the trial) arrived along with Vipin Tiwari (P.W.-7 at the trial). They too saw the assailants cause the occurrence and flee from the spot.
8. Thereafter, the first informant ran to the deceased and took him to the Sadar Hospital, Deoria where he was declared dead.
9. The Written Report also disclosed that the 'Panchayatnama' and the Autopsy Report were prepared late in the night, at about 1 p.m. (ante-timed FIR) whereafter, the first informant went back home with the dead body of the deceased. Thereafter, he went to the Police Station, to lodge the First Information Report. The 'Panchayatnama' is Ex. Ka-2. The autopsy report is Ex. Ka-5. On that Written Report, the First Information Report was registered at Police Station Barhaj, Deoria, on 24.06.2014, at 1:30 a.m. It is Ex. Ka-5 at the trial.
10. On 24.06.2014 itself the police visited the place of occurrence and recovered two live cartridges and one empty shell of 32 bore bearing marking-'KF7.65 mm', at its base. Also, another empty shell of 315 bore, was recovered bearing marking 'KF.8mm', at its base. Those recoveries were made in the presence of public witness. That Recovery Memo is Ex. Ka-3 at the trial. Also, on 24.06.2014, the S.H.O. Shri Rajendra Kumar recovered bloodstained and plain earth from the place of occurrence. That Recovery Memo is Ex. Ka-4 at the trial.
11. As noted above, even before the F.I.R. could be lodged, the 'Panchayatnama' proceedings were completed on 23.06.2014, at about 20:40 hours, witnessed by the 'Panch' witness namely Krishna Kant Tiwari (P.W.-1), Jitendra Kumar, Ajay Singh, Shriniwas Tiwari and Rakesh Tiwari. It is Ex. Ka-2 at the trial. Also, before the F.I.R. could be lodged, the autopsy examination was conducted on 23.06.2014 at about 11 p.m., by Dr. J.P. Singh (P.W.-8 at the trial). In that, the following ante-mortem injuries were noted.
(1) Entry wound of fire arm injury L.W. 1 cm X .8 cm left. parietal scalp burnt-margin irregular round shape.
(2) Exit-wound not present.
(3) Entry wound of 2nd shot-0.8 cm X 0.7 cm right shoulder 4 cm behind right shoulder tip.
(4) Exit-wound not present burnt and blackening around entry wound present- irregular margin and round shape of entry wound.
(5) 2nd bullet found on right axillary ribs not penetrated skin of right chest- wall.
12. The cause of death was noted "due to firearm injury and hemorrhage in brain". Also, the doctors opined that the death was caused within 24 hours. That autopsy report is Ex. Ka-5 at the trial.
13. Consequent to the arrest of the appellants, two other recoveries were made on 06.07.2014. First, recovery was made of a country made pistol of 315 bore, at the pointing out by the accused Satya Prakash Jaiswal, from a garbage pile. That recovery was made by S.H.O. Rajendra Kumar Verma (P.W.-11 at the trial). That Recovery Memo is Ex. Ka-13 at the trial. Second, recovery was made on 30.08.2014 by S.H.O. Rajendra Kumar Verma (P.W.-11), of another country made pistol of 315 bore, from a shrubbery, at the pointing out by the appellant-Murari Jaiswal. That Recovery Memo is Ex. Ka-16 at the trial.
14. Upon such recoveries made, two other FIRs (under Arms Act), came to be lodged. One pertaining to recovery of country made firearm/pistol at the pointing out by Satya Prakash Jaiswal being F.I.R. in Case Crime No. 83 of 2014 lodged on 06.07.2014 and another being Case Crime No. 116 of 2014 with respect to country made firearm recovered at the pointing out by the accused Murari Jaiswal, on 30.08.2014. Those FIRs are Ex. Ka-10 and Ex. Ka-8 at the trial, respectively.
15. On such recoveries made, the Investigating Officer sought the opinion of the Forensic Science Laboratory, Agra. The first report dated 18.01.2016 submitted by the F.S.L. Lucknow, is with respect to the firearm recovered at the pointing out of Satya Prakash Jaiswal. In that, it was noted that the Empty Cartridge recovered from the place of occurrence namely EC-1 matched with the firearm recovered at the pointing out by the appellant - Satya Prakash Jaiswal. That report is Ex. Ka-29 at the trial. In the other report dated 18.01.2016 submitted by the F.S.L. Lucknow, with respect to firearm recovered at the pointing out by the Murari Jaiswal, no definite opinion was expressed with respect to the Empty Cartridge recovered from the place of occurrence. That report is Ex. Ka-28 at the trial.
16. On completion of the investigation, the I.O. Rajendra Kumar Verma (P.W.-11), submitted the Charge Sheet, in four parts. It was accepted. On the matter being committed for trial to the Court of Sessions, the following charges were framed:
Against Satya Prakash Jaiswal and Murari Jaiswal:
यहकि दिनांक 23.06.2014 को शाम लगभग6 बजे स्थान विद्युत उपखण्ड बरहज, थाना बरहज जिला देवरिया में आपने सामान्य आशय के अग्रसरण में वादी के पुत्र मिहिर कान्त तिवारी को जान से मारने की नीयत से उसपर ताबडतोड आग्नेयास्त्र से गोलियां चलाकर उसकी हत्या कारित की और इस प्रकार आपने ऐसा अपराध कारित किया जो भारतीय दण्ड विधान की धारा 302 सपठित 34 के अधीन दण्डनीय है और इस न्यायालय के प्रसंज्ञान में है।
Against Udai Pratap Singh, Ganesh Singh and Umashanker:
यहकि दिनांक 23.06.2014 को डा० के० के० श्रीवास्तव के घर के बगल में अन्तर्गत थाना बरहज सांय 5.30 बजे दिनांक 23.06.2014 को प्रातः 7 बजे गनेश सिंह के घर स्थित थाना बरहज तथा दिनांक 23.06.2014 के 2 दिन पूर्व देवरिया कचहरी के बाहर स्थित चाय की दुकान अन्तर्गत थाना कोतवाली जिला देवरिया में आए चारो ने एक राय होकर अभियुक्तगण सत्य प्रकाश जायसवाल, मुरारी जायसवाल एंव रामप्रकाश यादव उर्फ नागा यादव के सहयोग से वादी के पुत्र मिहिर कान्त तिवारी को जान से मारने की नीयत से षडयन्त्र रचा जिसके फलस्वरूप सत्य प्रकाश जायसवाल मुरारी जायसवाल एंव राज प्रकाश यादव उर्फ नागा यादव ने दिनांक 23.06.2014 को सांय.......... मिहिर कान्त तिवारी का आग्नेयास्त्र से गोली चलाकर हत्या कर दी और इस प्रकार आपने ऐसा अपराध कारित किया जो भारतीय दण्ड विधान की धारा 302सपठित 120बी के अधीन दण्डनीय है और इस न्यायालय के प्रसंज्ञान में है।
Against Satya Prakash Jaiswal:
यह कि दिनांक 30.08.2014 समय करीब 1 बजकर 55 मिनट पर आप पुलिस द्वारा रिमाण्ड लिए जाने पर जेल से रवाना होकर अभियुक्त के घर के पास बहद ग्राम गौरा थाना बहरज जिला देवरिया में सरकारी वाहन से उतरकर दिनांक 23.06.2014 को वादी के पुत्र मिहिर कान्त तिवारी की हत्या में प्रयुक्त कट्टा 315 बोर बरामद कराया जिसकी वावत आपके पास कोई अनुज्ञा पत्र नही था और इस प्रकार आपने ऐसा अपराध कारित किया जो आयुध अधिनियम की धारा 3/25 के अधीन दण्डनीय है और इस न्यायालय के प्रसंज्ञान में है।
Against, Murari Jaiswal:
यह कि दिनांक 30.08.2014 समय करीब 1 बजकर 55 मिनट स्थान रूद्रपुर जाने वाली रोड पर ग्राम बेलडाड अन्तर्गत थाना बहरज जनपद देवरिया में आप पुलिस द्वारा रिमाण्ड लिए जाने पर जेल से रवाना होकर वेलडाड तिराहा से कुछ पहले सरकारी वाहन से उतरकर दिनांक 23.06.2014 को वादी के पुत्र मिहिर कान्त तिवारी की हत्या में प्रयुक्त कट्टा 315 बोर बरामद कराया जिसकी वावत आपके पास कोई अनुज्ञा पत्र नही था और इस प्रकार आपने ऐसा अपराध कारित किया जो आयुध अधिनियम की धारा 3/25 के अधीन दण्डनीय है और इस न्यायालय के प्रसंज्ञान में है।
17. At the trial, besides the above documentary evidence, the prosecution led oral evidence through 13 witnesses. First, the father of the deceased, namely Krishna Kant Tiwari, was examined as P.W.-1. He, an eyewitness, proved that on 23.06.2014 at about 6.00 p.m., while returning from Tehsil Barhaj, as he reached near the electricity Sub-station Barhaj, he heard gunfire. On looking in that direction, he saw the accused Satya Prakash Jaiswal along with two others assaulting his son-the deceased Mihir Kant Tiwari with firearms. He ran inside the electricity Sub-station, Barhaj. The assailants chased the deceased on foot. The deceased fell to the ground. At that stage, the accused Satya Prakash Jaiswal and two other assailants fled from the spot, brandishing their firearms, while threatening to kill anyone, if they came in their way. All three assailants fled on motorcycles. A crowd gathered at the place of occurrence. When he reached the place where the deceased was lying, the latter was unconscious. He carried the deceased to the Sadar Hospital, Deoria in the vehicle of Jitendra Jaiswal, where he was declared dead.
18. He further proved, about 15 days prior to the occurrence, Uma Shankar Singh had threatened the first informant against lodging any complaint against trade in illicit liquor and gambling activities, in which the said Uma Shankar Singh, Manoj Singh and Udai Pratap Singh were involved. Since the deceased was an elected Corporator of the Nagar Palika Parishad, Gaura Barhaj, he had earlier made a complaint with respect to those illegal activities of Uma Shankar Singh and others. On that, action had also been taken by the police authorities leading to seizure of certain undefined quantities of illicit liquor. Also check had been placed on illegal gambling.
19. He also proved that he lodged the First Information Report after returning home from the hospital after completion of the autopsy. He proved the Written Report submitted by him. During his cross examination, he maintained that the deceased was elected Corporator from Ward No. 21, about one year prior to the occurrence. He further proved, he carried the deceased to the hospital within 15-20 minutes after the occurrence in a Bolero vehicle of Jitendra Jaiswal. He also described that the said Jitendra Jaiswal reached the place of occurrence a little after the occurrence. At that time the Bolero jeep/vehicle was driven by Jitendra Jaiswal. Ajay Singh, Keshwanand Tiwari and others accompanied him in that vehicle. He maintained that the deceased was unconscious at that time. He explained that he did not rush to the Police Station, first, because he was in a state of shock. Therefore, he first rushed the deceased to the hospital (to save his life).
20. During his further cross examination, he explained with full details, the roads, shops etc. located at and around the place of occurrence. In that description, he disclosed that the sub-station was in the campus described by him as 'Hydel'. On being questioned, he explained, inside that campus, first there existed residential and other accommodation, if one entered from its northern gate. He further stated, though certain employees of the 'Hydel' may have been present at the time of occurrence, he could not remember if he had seen any. He further stated even if he had seen any such person, he did not recognize them. He described; he was on the left side of the road when he first heard a volley of shots. On further questioning, he described the same to be two gunshots. He ran inside the 'Hydel' campus, having seen the three assailants (from outside), were chasing and assaulting the deceased with firearms. He further explained, when he entered the 'Hydel' campus, he turned left after 5-6 paces to reach the place of occurrence where the deceased was lying on the ground. He further disclosed, he saw the assailants shoot at the deceased when he was lying on the ground. Thereafter, the assailants fled from the spot brandishing their firearms. Their motorcycles were parked to the east of the distribution center. He could not recollect which assailant sat on which motorcycle and he could not recollect which of them drove which motorcycle. He confirmed that he first heard the gunfire when he was near the 'Hydel' campus. He further disclosed that the boundary wall of the 'Hydel' campus was made of metal wire mesh. He maintained that he first heard the gunfire; then he ran in that direction and saw the assailants assault his son/deceased with firearms, inside the 'Hydel' campus. At the same time, he could not establish the fact of the complaint lodged by the deceased with any government authority or officer with respect to the alleged illegal activities of Uma Shankar Singh and others.
21. On being questioned if he informed his wife about the occurrence, on the telephone, he responded that he informed his wife on telephone that their son/deceased had been shot at and that he had asked her to bring whatever money was available at their house to their entrance gate of their house. That money was handed over to him by his wife who was weeping at that time. She wanted to accompany P.W.-1 but he refused. To the further question whether he had divulged to his wife the names of the assailants, at that time, he denied and explained that at that time, he was in a hurry to rush the deceased to the hospital.
22. He denied that the deceased had been Challaned in Case Crime No. 771 of 2010 under sections 180, 353, 504, 506 I.P.C. or that there was another case pending against the deceased being Case Crime No. 316 of 2009 under sections 147, 148, 149, 323, 324, 308, 452 I.P.C. or Case No. 2250 of 2013 (State Vs. Vijay Kumar Singh and Others) or Case Crime No. 923 of 2007 under sections 379/120B/411 read with section 34 I.P.C..
23. He admitted that a written complaint had been made against illegal liquor trade and gambling activities by Guddu Sonker and others. He also admitted that the said complainants were alive and had not been killed. He further admitted that the deceased had not given any written complaint against illegal trade in liquor or gambling activities by Uma Shankar Singh and others. He could not give details or names of any of the ladies who may have suffered misbehavior at the hands of Uma Shankar Singh and others.
24. As to his own presence, he described, he was a lawyer at the Tehsil level. On the date of the occurrence, he was returning from the Tehsil office on foot, on the left side of the road. On hearing two gunshots, he ran towards the northern gate of the 'Hydel' campus. He saw from the roadside itself that the deceased was running to save himself while the assailants were running after him and (at the same time), firing at him. Further, he described that the assailants fled from the wire gate towards the main gate. According to him, two unknown assailants had not covered their faces. He had first seen the occurrence from across the metal wire mesh. He had seen the assailants shoot at the deceased, but he was not sure which bullet hit him. As to the presence of Shridhar Tiwari (P.W.-2), he further stated he had not spoken to the said witness on the date of occurrence.
25. Thereafter, Shridhar Tiwari was examined as P.W.-2. He also described himself as an eyewitness of the occurrence. As to his presence, he claimed - while returning home from Barhaj market on a motorcycle, near Barhaj Electricity Sub-station, he saw Krishna Kant Tiwari (P.W.-1) running and shouting. At that, he stopped his motorcycle and ran after P.W.-1. He saw Satya Prakash Jaiswal and two others were shooting at the deceased who was lying on the ground. The assailants threatened the others who were present and pushed Krishna Kant Tiwari (P.W.-1) aside while fleeing towards the west. He saw the deceased lying on the ground. He further claimed that he along with Krishna Kant Tiwari (P.W.-1) and others took the deceased to the District Hospital Deoria. During his cross-examination, he admitted, Krishna Kant Tiwari (P.W.-1) is the son-in-law of his real brother. He claimed that he had left for home from Barhaj market at about 3-4 p.m. on a borrowed motorcycle of his relative, whose name he could not recollect. He purchased miscellaneous items from Barhaj market including some medicines. When he first reached the place of occurrence, the deceased was lying on the ground and the assailants were firing at him. He proved that the Bolero jeep/vehicle used to take the deceased to the hospital arrived after about half an hour of the occurrence. He further claimed that two unknown assailants had covered their faces with a body cloth i.e. 'Gamcha'.
26. Thereafter, Amrendra Singh, the witness of the recovery of the two live cartridges, two empty cartridges, bloodstained and plain earth, was examined as P.W.-3. He proved those recoveries were made in his presence. No doubt emerged during his cross-examination, as to those recoveries made.
27. Thereafter, Sanjay Tiwari was examined as P.W.-4. He claimed on 23.06.2014 at about 6 PM he was returning from his agricultural field when he saw three men flee on motorcycle. Two of them were brandishing their firearms. When he reached near 'Hydel' he learnt Mihir Kant had been killed. He further stated that three men who fled on motorcycle were Satya Prakash (Jaiswal), Murari (Jaiswal) and Naga. They were wielding firearms. During his cross-examination he further stated that he had got his agricultural field ploughed not with his own tractor but a borrowed tractor. However, he could not recall the name of the owner of the tractor. He clarified that at that time of his presence near the place of occurrence, he had reached his agricultural field by chance - not to get it ploughed but to visit it. He admitted that prior to that date he had never seen Naga before. He saw him for the first time. At the same time, he stated, Naga used to pass through his village. Thus, he had seen him before. By the time he reached the 'Hydel' campus, the dead body of Mihir Kant had been taken away. Then, he went to a 'Pan' vend. There people were discussing the occurrence. In that, he shared his knowledge that he had seen the appellants flee. Thus, his statement came to be recorded by the police. During his further cross-examination, he disclosed that he had seen the accused from behind and he had not seen their faces. He specifically admitted that he learnt the names of the appellants from other bystanders. His statement was first recorded by the police, six days after the occurrence.
28. Thereafter, Rajeev Dubey was examined as P.W.-5. He was declared hostile as he denied any knowledge about the occurrence. Similarly, Vinay Mishra was examined as P.W.-6. He also denied knowledge about the occurrence. Consequently, he was also declared hostile. During his cross-examination by the prosecution, he completely denied knowledge of any illegal activities involving gambling and illicit trade of liquor being conducted from his orchard. Thereafter, Vipin Kumar Tiwari was examined as P.W.-7. He also denied having seen any part of the occurrence. He was also declared hostile.
29. Thereafter, Constable Moharrir Ramjatan Kannaujia was examined as P.W.-8. He proved preparation of the check F.I.R. and registration of the F.I.R. Dr. J.P. Singh who conducted the autopsy on the dead body of the deceased was examined as P.W.-8. He proved the injuries. He further disclosed that he handed over two bullets recovered during the autopsy, to the Police Constable. Thereafter, Sub-Inspector Rajendra Prasad Mishra was examined as P.W.-9. He proved the recovery of the two firearms as also preparation of the Site Plan. Further, he proved preparation of the 'Panchayatnama' etc.
30. Thereafter, Sub-Inspector Dileep Kumar Chowdhary was examined as P.W.-10. He proved the check F.I.R. and the registration of the cases under the Arms Act. Thereafter, Inspector Rajendra Kumar was examined as P.W.-11. He proved the investigation conducted by him. Next, Sub-Inspector Shailendra Kumar Rai was examined as P.W.-12. He proved the investigation with respect to the case lodged under the Arms Act. Next, Sub-Inspector Bharatmal was examined as P.W.-13. He also proved the investigation with respect to the Arms Act. Thereafter, individual statements (of the appellants), were recorded under Section 313 Cr.P.C.
31. Shri Kamal Krishna, learned Senior Advocate, would submit, the prosecution story is flawed and false, from beginning to end. No one had seen the actual occurrence. Though the place of occurrence is not doubted, it has been submitted, no natural witness was produced since no employee of the electricity department and no resident of the 'Hydel' colony was produced by the prosecution, to establish either the occurrence or the identity of the assailants. In such circumstances, the prosecution theory being false, many witnesses of fact relied by the prosecution did not support the prosecution story during their cross-examination, itself.
32. Second, it has been submitted, three witnesses of fact relied by the prosecution, namely, P.W.-1, P.W.-2 and P.W.-3, all are chance witnesses. Though Krishna Kant Tiwari (P.W.-1) is the father of the deceased, clearly, he had not accompanied the deceased to the Electricity Sub-station, Barhaj. He claimed he was returning from the Tehsil Barhaj, after his day's work, yet he reached the place of occurrence-a public place, namely, Electricity Sub-station, at the exact time of the occurrence. In the admitted fact that the occurrence was caused in a short span of time, his presence is not believable. Despite his claim that he was present at the place of occurrence when it was caused, according to P.W.-2, the deceased (then injured) was taken to the hospital after about half an hour. Also, after the occurrence, FIR was not lodged till 01:00 a.m., that too after the autopsy and after the dead body reached the home of P.W.-1. Third, even at the hospital, the dead body was handed over to the police authorities for an inquest, by a ward boy Shailendra and not P.W.-1. These facts clearly established that P.W.-1 was not present at the time and place of occurrence.
33. Third, the manner of occurrence described by P.W.-1 is also unbelievable. The occurrence was caused inside the 'Hydel' campus. Since that witness was on the road outside such campus, he could not have seen the occurrence.
34. Also, his version is unbelievable as he claimed to have heard a volley of shots to which he reacted and ran inside the 'Hydel' campus. There he had to run around a building to reach the place of occurrence, yet he claims to have seen the assailants shoot at the deceased. That description is claimed to be unworthy of reliance by the Court. Neither is there any evidence of a volley of shots fired inasmuch neither does the recovery of empties corroborate that description, nor is it believable that only two firearm injuries would have been suffered by the deceased if such a volley of shots had been fired at him, from close quarters.
35. According to the prosecution story, the distance between the gate of the 'Hydel' campus and the place where the dead body lay was about 150 feet. If the deceased had been chased and shot at in the manner described by the prosecution, far more recoveries of blood-stained earth as also empties would have existed. In that regard, it has been further submitted, there is no injured person or other natural/independent person account as may give credence to the narration offered by P.W.1.
36. Also, the narration that the deceased was being chased by his assailants while being shot at is plainly false since the deceased was not shot at his back. Referring to the cross-examination statement of Krishna Kant Tiwari (P.W.-1), it has been submitted, in any case, he heard two shots when he was outside the 'Hydel' campus. At that time, he did not know who was shot at. Thus, it has been suggested, since only two bullets were fired, P.W.-1 could not have known who shot at the deceased. He claims to have reacted after hearing the gunshots. Since the deceased was inside the 'Hydel' campus, at that time, he would have reached the place of occurrence later, i.e. after the occurrence had been caused. The prosecution story is thus clearly false.
37. Fourth, it has been submitted, in the absence of any proof of complaint made by the deceased against Uma Shankar Singh and others, and in absence of any proof that those people were engaged in any illegal activity involving illicit trade in liquor or gambling, the very premise/motive in the prosecution story, does not exist. Though in the case of direct evidence, motive may not be necessary to be established, here the direct evidence is weak and doubtful.
38. Fifth, it has been submitted, the recoveries of firearms were made one after 12 days allegedly at the pointing out by the appellant Satya Prakash Jaiswal - of 315 bore country made pistol and another, after about two months, at the alleged pointing out by the appellant Murari Jaiswal, from an open place. With respect to those recoveries there neither exists disclosure statements nor there are any independent witnesses. In the manner of occurrence described by the prosecution and as corroborated through the Site-plan, no recovery - of blood (stained earth) or empties was made from near the gate to the 'Hydel' campus. It clearly belies the prosecution story. Thus, it has been submitted, those recoveries are wholly unreliable. They do not corroborate the prosecution evidence brought forth by the ocular witness namely P.W.-1 and P.W.-2.
39. Insofar as Shridhar Tiwari (P.W.-2) is concerned, it has been vehemently urged that his statement was first recorded by the police under Section 161 Cr.P.C. on 07.07.2024 i.e. after about 15 days of the occurrence. It was clearly an afterthought and wholly false. In any case, he is a pure chance witness. He had no reason to be present at the time and place of occurrence. He claimed to have gone to Barhaj market on a motorcycle at about 3.00 - 4.00 p.m. to buy miscellaneous items. The occurrence, being about 6:00 p.m. considering the short distance between the house of the said witness and Barhaj market, he could not have been present at the time and place of occurrence. In any case, during his cross-examination he stated, though he was present at the place of occurrence, he did not accompany Krishna Kant Tiwari (P.W.-1) to the hospital but returned home. P.W.-1, being the son-in-law of his brother, it is wholly unnatural and therefore unbelievable that the said witness would have thus returned home if he had witnessed the occurrence. In any case, his statement could not have remained to be recorded by the police over a long duration of 15 days. He has relied on the following decisions :
(i) Thulia Kali v. The State of Tamil Nadu, 1972 SCC (3) 393.
(ii) Shahid Khan v. State of Rajasthan, (2016) 4 SCC 96.
(iii) Jai Prakash Tiwari v. The State of Madhya Pradesh, 2022 SCC OnLine SC 966.
(iv) State of U.P. and another v. Jaggo alias Jagdish and others, 1971 (2) SCC 42.
(v) Trimbak v. The State of Madhya Pradesh, AIR 1954 SC 39.
(vi) Davinder Singh v. State of Punjab, 2023 SCC OnLine SC 750.
(vii) Babu Sahebagouda Rudragoudar and others v. State of Karnataka, (2024) 8 SCC 149.
(viii) Irfan Ahmed alias Guddu v. State of U.P., Neutral Citation No. 2024:AHC:77342-DB.
(ix) Janki v. State of U.P., Neutral Citation No. 2024:AHC:153746-DB .
(x) Dinesh Kumar v. State of Haryana, 2023 SCC OnLine SC 564.
(xi) Shailesh Kumar v. State of U.P. (Now State of Uttarakhand), 2024 SCC OnLine SC 203.
(xii) Santa Singh v. State of Punjab, AIR 1956 SC 526.
40. Sri P.C. Srivastava learned counsel appearing for the appellant Murari Jaiswal has first adopted the submissions advanced by Sri. Kamal Krishna. He would further submit, the said appellant has been wholly falsely implicated. Even if the prosecution story were to be believed to the extent more than that one assailant had caused the same, the appellant was not named in the F.I.R. He was described as one of the two unknown assailants. The recovery of firearm made from him after about two months is not reliable as the same was made from an open place. There is no disclosure statement recorded in accordance with law. There is no independent witness. Decisively, the ballistic report does not corroborate involvement of that (recovered) firearm, in the occurrence. The statement under section 161 Cr.P.C. was first recorded on 01.07.2014. As to the identification of that appellant, Krishna Kant Tiwari (P.W.-1) and Shridhar Tiwari (P.W.-2) both eyewitnesses of the occurrence offered mutually contradicted statements. While Krishna Kant Tiwari (P.W.-1) claimed that the other two/unknown assailants had not covered their faces, Shridhar Tiwari (P.W.-2) claimed that the faces of the unknown assailants were covered with a body cloth/'Gamchha'. Insofar as the deposition of third eyewitness namely Sanjay Tiwari exists, it is wholly unreliable. First, his presence itself is doubtful since he could not offer a credible account as to his presence on his agricultural field to get it ploughed. Neither could he disclose the name of the tractor owner whose tractor he had hired to get his field ploughed nor he could offer a plausible reason for his presence on his agricultural field at around 6 PM though he had also claimed that the agricultural field had been ploughed the first half of the day. It was his own saying that he had no reason to be present in his agricultural field at that time. Thus, he was a pure chance witness. Though he claimed to have identified the assailants with the clothes worn and that he had seen them flee on two motorcycles, at the same time, during his cross-examination he further stated, he did not see their faces but recognized them from the back, with their clothes. He specifically denied having seen the faces of the assailants. No test identification parade was ever conducted. Considering his further statement that after the occurrence he walked up to the 'Pan' vend where he discussed the occurrence with people who had gathered in the meanwhile, it has been submitted the said witness had no personal knowledge either of the deceased having been killed in the occurrence or of the appellants having caused the same. At the trial, he parroted the knowledge derived by him at 'Pan' vend.
41. Sri V.P. Srivastava learned Senior Advocate appearing for the appellant Uma Shankar would submit, the F.I.R. allegations emerged against Satya Prakash Jaiswal and two unknown assailants. Those were later identified as Murari Jaiswal and Ramprakash Yadav @ Naga Yadav. The other appellants were named in the F.I.R., as the assailants. Their names first surfaced involving them in criminal conspiracy.
42. At the trial, Rajeev Dubey (P.W.-5) tried to establish that he learned about the involvement of these appellants, at a tea stall. He was declared hostile as he denied having visited such a tea stall. Similarly, Vinay Mishra (P.W.-6) also was declared hostile as he did not support the prosecution story, with respect to criminal conspiracy, from beginning. Referring to the statement of Krishna Kant Tiwari (P.W.-1), it has been submitted, he also did not prove existence of conspiracy beyond reasonable doubt, inasmuch it could not be proved by that witness that the deceased had made any complaint against the appellant-Uma Shankar Singh and others. No proof arose of the existence of any illegal trade in liquor or gambling, at Barhaj. No proof arose of any police action taken against the appellants prior to the occurrence with respect to such activities. Thus, the basic premise of conspiracy did not exist. He further admitted, according to his knowledge, though the police may have conducted certain raids at the places where allegedly gambling and illicit liquor trade was being conducted, no recoveries came to be made.
43. Sri. Vimlendu Tripathi and Sri. Amit Daga learned counsel for the appellants have adopted the submissions advanced by Sri. V.P. Srivastava learned Senior Advocate.
44. On the other hand, Sri Vikas Goswami learned A.G.A.-I would submit that the prosecution story is wholly consistent and duly proven at the trial. Referring to the ocular evidence led by P.W.-1, P.W.-2 and P.W.-3, it has been submitted that involvement of the appellants-Satya Prakash Jaiswal, Murari Jaiswal and Ramprakash Yadav was clearly established. Minor discrepancies may not be relied on to doubt the prosecution story. Insofar as Sanjay Tiwari (P.W.-4) is concerned, it has been contended, during his examination-in-chief he supported the prosecution case. Later, he may have been won over during his cross examination. Therefore, his deposition may also not be discarded, in entirety. As to the issue of delay etc., it has been submitted, there is absolutely no delay in the F.I.R. being lodged. In the manner of the occurrence described by Krishna Kant Tiwari (P.W.-1) who is the father of the deceased, it was wholly natural on his part to have carried the deceased (who was lying in an injured state) to the district hospital, first. It is equally natural that at the hospital, once declared dead by the doctors, the dead body of the deceased was brought for 'Panchayatnama' by the ward boy Shailendra, he being the employee of the hospital, entrusted to perform such tasks, after death had been caused or declared, at that hospital.
45. No doubt emerged during the extensive cross examination of Krishna Kant Tiwari (P.W.-1) that the deceased had been carried to the hospital by him in a borrowed motor vehicle. Also, there is no doubt either as to the place or time of occurrence or of death caused to the deceased. Therefore, the fact that Krishna Kant Tiwari (P.W-1) took the dead body of the deceased home, after the autopsy and thereafter lodged the F.I.R. at about 1.30 a.m., does not create any doubt in the prosecution story.
46. As to the volley of shots fired at the deceased, three empties were recovered. Merely because other empties were not recovered by the police, which recovery in any case was attempted not on 23.06.2014 when the occurrence was caused but the next day, it may remain an unexplained lapse on the part of the Investigating Officer. It may not be read to the benefit of the defence. He has relied on the following decisions :
1. Sambhu Das alias Bijoy Das and another v. State of Assam, (2010) 10 SCC 374.
2. Rajesh Yadav and another v. State of Uttar Pradesh, (2022) 12 SCC 200.
3. Shahaja alias Shahajan Ismail Mohd. Shaikh v. State of Maharashtra, (2023) 12 SCC 558.
4. State of Karnataka v. Suvarnamma and another, (2015) 1 SCC 323.
5. Rajesh Yadav and another v. State of Uttar Pradesh, (2022) 12 SCC 200.
6. Tara Singh and others v. State of Punjab, (1991) Supp (1) SCC 536.
47. Having heard counsel for the parties and having perused the record, we have given our anxious consideration to the submissions advanced by learned counsel for the parties. In the first place there is no denying that the occurrence took place inside the 'Hydel' campus. The prosecution firmly asserted and the defence does not deny that the deceased was done to death at that place of occurrence. Also, it is not denied that the deceased was shot at, at about 6 PM at that place of occurrence. It is also not denied that the deceased received two firearm injuries. As reported in the autopsy report, his dead body bore two entry wounds. One bullet was found lodged inside his dead body inside the skull and the other in the chest region.
48. In the context of that occurrence, the prosecution has tried to prove its story through direct evidence led by Krishna Kant Tiwari (P.W.-1), Shridhar Tiwari (P.W.-2) and Sanjay Tiwari (P.W.-4). Insofar as Krishna Kant Tiwari is concerned, he is the father of the deceased. He claims to have reached the Barhaj Electricity Sub-station on 23.06.2014 at about 6 P.M., on foot, while returning from the Tehsil Office at Barhaj, where he practiced law. When he reached near the entrance gate of that Sub-station, on the roadside, he heard noise of two gunshots, coming from the direction of that Sub-station. According to him, the boundary wall of that Sub-station was made of wire mesh. He was not cross-examined or doubted by any of the accused with respect to this fact. From that position, he saw Satya Prakash Jaiswal and two unknown assailants chasing the deceased inside the Sub-station and simultaneously firing at him. Finding his son in danger, he ran after the assailants. In that, he entered the Sub-station through that (northern) gate, ran around a building and reached the place of occurrence where he saw the deceased lying on the ground while the assailants fired gunshots at him. He described the total distance run by him from the entrance gate of the Sub-station to the place of occurrence as 150 feet. In that context the witness described, heard a volley of shots, in that entire occurrence. He further proved, after causing that occurrence, the assailants fled brandishing their firearms and they held out threats to the public in general, not to come in their way. Thus, the assailants fled on their motorcycles, parked outside the Sub-station.
49. The presence of Krishna Kant Tiwari (P.W.-1) has been doubted by the defence. He was an advocate having practice at Tehsil Barhaj. That work would have got over by about 5 p.m. Therefore, he would have returned home much before 6 pm when the occurrence took place. In that backdrop, it has been submitted, the said witness narrated the occurrence, in consistent to the other facts proven at the trial.
50. We are unable to accept the submission advanced by learned Senior Counsel and other learned counsel appearing for the appellants. From beginning, Krishna Kant Tiwari (P.W.-1) maintained, he was present at the time and place of the occurrence. He further claimed, he reached that place while returning to his home, from Tehsil Barhaj, on foot. When he neared the roadside gate of the 'Hydel' campus, he heard two gunshots. Despite extensive cross-examination of the said witness, on those counts, no inconsistency emerged. Questioned about his work at Tehsil Barhaj, he gave trustworthy answers. The fact that he could not recall the exact details of the case that he was attending to before he started back from Tehsil Barhaj on that fateful day, is a minor inconsistency in his testimony. It remains a blemish that proves the truthfulness of his claim that he was present at the time and place of occurrence. No doubt arises to his claim that he was a practicing advocate at Tehsil Barhaj. No doubt emerged if he regularly attended to his professional work at Tehsil Barhaj and no doubt emerged that he used to return from that place of work, on foot. Therefore, The presence of Krishna Kant Tiwari (P.W.-1) at the time and place of occurrence is firmly established.
51. As to the doubt raised that Krishna Kant Tiwari (P.W.-1) may never have seen the occurrence and that he has given an inconsistent or uncorroborated description of that occurrence, is also devoid of merit. Here, we note that upon detailed cross-examination, the said witness established that he was walking back from Tehsil Barhaj, on (his) left side of the road. When he neared the entrance gate (described as the northern gate) of the Electricity Sub-station Barhaj, he heard two gunshots. He responded and saw through the wire mesh boundary wall of that sub-Station that the appellant-Satya Prakash Jaiswal and two other assailants were chasing his son Mihir Kant Tiwari (the deceased) and simultaneously shooting at him with guns held by each assailant. The existence of wire mesh boundary wall is not disputed to the defence. During extensive cross-examination, the defence could not dislodge the prosecution witness on that aspect. Therefore, we find it wholly proven that it was not only possible but wholly credible that the said witness saw the assailants chase and assault the deceased, with firearms.
52. As to that description, Krishna Kant Tiwari (P.W.-1) further disclosed, having seen his son Mihir Kant Tiwari (deceased) thus assaulted, he entered the Sub-station at Hydel campus from its northern gate which according to that description would be the closest entry point available to the witness to enter the Hydel campus. He narrated having entered Hydel campus, he ran around a building to reach the place of occurrence where he found Mihir Kant Tiwari lying on the ground and the assailants firing gun shots at him. The total distance from the gate on the roadside to the place where the occurrence took place was described as 150 feet. No doubt emerged during his cross-examination as may suggest to the Court that the witness could not have covered that distance at the place described by him in a short time so as to reach the place where the deceased was shot at on his body. Such short distance may have been covered in seconds by the witness especially since he was reacting to an extraordinary situation wherein he saw his son being assaulted with fire arms. It made him run to save his son whose life was under serious threat. The fact that he had to run around a building is also of no consequence inasmuch as once the witness had seen that the assailants were chasing the deceased while simultaneously shooting at him with fire arms, he had a clear perception of what was about to unfold or was at risk. In such a situation, the witness would have run in the direction in which the assailants were chasing the deceased. To that extent as well, we find the deposition made by Krishna Kant Tiwari (P.W.-1) to be truthful and honest. There is no reason to doubt the same. No disability (of the witness) has been suggested by the defence as may make us doubt his presence.
53. As to lack of recoveries of empties, it may be noted, in the first place deficiency or lapses committed during investigation may never give rise to reasonable doubt with the Court. Here, Krishna Kant Tiwari (P.W.-1) did not narrate and he did not seek to establish that the deceased was shot at by any of the assailants upon first gunshot being fired at him. On the contrary he proved otherwise. According to him, while the assailants were chasing the deceased and shooting at him, the deceased was trying to save himself by running away from them. Since the deceased had gone to the Barhaj Sub-station in the Hydel campus to lodge a complaint with respect to electricity supply, it is wholly natural and in any case wholly probable that caught up in that circumstance, at that place, he ran through the entrance gate of the Hydel campus from where the assailants would have also entered while following him into the Hydel campus. It is equally true that the defence never doubted the prosecution claim that the deceased had reached Barhaj Sub-station to lodge a complaint when the assailants arrived at that place and fired firearm shots at him.
54. In Chandrakant Luxman v. State of Maharashtra, (1974) 3 SCC 626, the Supreme Court observed as below :
"10. The learned trial Judge disbelieved the evidence of the eyewitnesses Kana Bhika and Sunder Govind almost wholly on the ground that the version of the incident given by them was not consistent with the earlier version recorded at Bandra Police Station, on the evening of the 11th. In coming to this conclusion, the learned Judge overlooked that the officer in charge of the police station adopted an unduly light-hearted attitude to the complaint which Arjun wanted to make and in fact in a departmental proceeding taken against the officer, a fine was imposed on him for remissness in the discharge of his official functions. Counsel for the appellant is right that the benefit of what the High Court terms a "highly defective" investigation cannot go to the prosecution. If it were to appear that the story narrated by Arjun immediately after the incident was in material particulars different from the evidence of the eyewitnesses the benefit of such an infirmity would have gone to the accused, but if on a proper evaluation of the various facts and circumstances it transpires that the apparent inconsistencies in the case of the prosecution are solely the result of remissness on the part of the investigating officer and not of any improvement or prevarication on the part of the prosecution witnesses, there would be no justification for discarding the accusation."
(emphasis supplied)
55. Again, in State of Rajasthan v. Kishore, (1996) 8 SCC 217, the Supreme Court observed as below :
"18. It is equally true that the investigating officer PW 8 committed grave irregularity in omitting to send the burnt clothes and other incriminating material for chemical examination to lend corroboration to the evidence. Mere fact that the investigating officer committed irregularity or illegality during the course of the investigation would not and does not cast doubt on the prosecution case nor trustworthy and reliable evidence can be cast aside to record acquittal on that account. It is seen from the Panchnama recovery of the incriminating material from the scene of offence that there was an attempt to screen the offence by destroying the evidence. Others were prevented from entering the room. That by itself indicates an attempt on the part of the accused to destroy the incriminating evidence and to prevent others from saving the life of the deceased. Therefore, the absence of smell of kerosene on the hair sent for chemical examination does not render the dying declaration of the deceased suspect nor would it become unbelievable. The High Court, therefore, has not considered the evidence in the proper and legal perspective but felt it doubtful like Doubting Thomas with vacillating mind to accept the prosecution case for invalid reasons and wrongly gave to the respondent the benefit of doubt."
(emphasis supplied)
56. Also, in C. Muniappan v. State of T.N., (2010) 9 SCC 567, the Supreme Court observed as below :
"There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation. (Vide Chandrakant Luxman v. State of Maharashtra [(1974) 3 SCC 626 : 1974 SCC (Cri) 116 : AIR 1974 SC 220] , Karnel Singh v. State of M.P. [(1995) 5 SCC 518 : 1995 SCC (Cri) 977] , Ram Bihari Yadav v. State of Bihar [(1998) 4 SCC 517 : 1998 SCC (Cri) 1085 : AIR 1998 SC 1850] , Paras Yadav v. State of Bihar [(1999) 2 SCC 126 : 1999 SCC (Cri) 104] , State of Karnataka v. K. Yarappa Reddy [(1999) 8 SCC 715 : 2000 SCC (Cri) 61 : AIR 2000 SC 185] , Amar Singh v. Balwinder Singh [(2003) 2 SCC 518 : 2003 SCC (Cri) 641] , Allarakha K. Mansuri v. State of Gujarat [(2002) 3 SCC 57 : 2002 SCC (Cri) 519] and Ram Bali v. State of U.P. [(2004) 10 SCC 598 : 2004 SCC (Cri) 2045] )"
(emphasis supplied)
57. Then, Krishna Kant Tiwari (P.W.-1) narrated as he ran inside the Hydel campus, around a building, he reached the place where he saw the deceased had fallen to the ground and was shot at by the three assailants. Two empties and two bullets fired at the deceased that hit him were recovered. Thus, it is not a case that the prosecution story of assault made with firearms is not corroborated. On the contrary, due corroboration exists. The deceased was shot at in the presence of Krishna Kant Tiwari (P.W.-1), corroborative evidence exist in the shape of two empties and two bullets.
58. Thereafter, Krishna Kant Tiwari (P.W.-1) further narrated that he saw the three assailants flee from the spot, brandishing their firearms in their hands threatening the others including himself to move away or be killed. In that manner, the assailants are described to have fled from the same gate of the Hydel campus from which they entered, on motorcycle. Keeping in mind the nearness of the place of occurrence from the exit gate of the Hydel campus, no unnatural or inherently doubtful fact was narrated by Krishna Kant Tiwari (P.W.-1), on that score either.
59. It is in such circumstance that Krishna Kant Tiwari (P.W.-1) specifically identified three assailants as Satya Prakash Jaiswal and two others. Upon his cross-examination, absolutely no doubt was raised by the defence as to the identification made by the witness of the assailant Satya Prakash Jaiswal. The doubts that have been raised in the prosecution story (besides doubting the presence of P.W.-1) are with respect to the other two assailants. Yet, it may be noted that Krishna Kant Tiwari (P.W.-1) did not identify and he did not attempt to identify the other two assailants. Though the prosecution story emerged that the other two assailants were Murari Jaiswal and Ramprakash Yadav @ Naga Yadav, that part of the story is not based on the statement made by Krishna Kant Tiwari (P.W.-1). Though he is the father of the deceased Mihir Kant Tiwari and as noted above, though he was present at the place and time of occurrence, he did not seek to establish the identity of the two assailants, besides Satya Prakash Jaiswal. That to us, establishes or atleast strongly indicates the truthfulness of the statement made by Krishna Kant Tiwari (P.W.-1). He only proved before the trial Court facts as were known to him. Though, in the FIR, he had made allegations against the other set of accused persons i.e. Uma Shanker Singh etc, he did not identify or place them as any of the assailants.
60. Then, as to the events that followed, Krishna Kant Tiwari (P.W.-1) proved that he carried the deceased (then injured) to the Sadar Hospital, Deoria on a four wheeler vehicle of Jitendra Jaiswal. That transaction began 15-20 minutes after the occurrence. It is wholly natural and therefore believable. Since the occurrence had taken place suddenly and since Krishna Kant Tiwari (P.W.-1) was on foot at that time, we may not doubt the intrinsic truthfulness or credibility of such statement. No doubt emerged during his cross-examination as may suggest to the Court that there existed any possibility to take the deceased (then injured), to the hospital any sooner. In fact, upon his cross-examination, he further explained that he rang up his wife and asked her to arrange all money that may be available at their home and to bring it to the gate of their house while he was thus rushing the deceased (then injured) to the hospital. That is also wholly natural. A father who was carrying his grievously injured son to the hospital would have thought of such a thing. Though cross-examined to that aspect, he maintained that he did not take his wife to the hospital as at that time he was in extreme rush to save the life of his injured son. On his way to the hospital, he collected the money from his wife at the gate of their house at which time he also described that his wife was crying, but he continued to the hospital.
61. What transpired at the hospital also does not give rise to any doubt. Upon the deceased being declared dead by the doctors, the dead body was brought for preparation of 'Panchayatnama'. It is wholly natural and normal, having declared Mihir Kant Tiwari dead, the doctors attending to him would have required his dead body to be made over to the police. It is in that circumstance that the ward boy Shailesh handed over the dead body for preparation of the 'Panchayatnama'. We find that conduct to be wholly natural and normal. Considering the fact that the 'Panchayatnama' proceedings would have begun at about 08:10 p.m., there is no gap of time or inordinate delay as may make us to doubt the fact that Krishna Kant Tiwari (P.W.-1) had carried the deceased (then injured) to the hospital.
62. We note, no effective cross-examination exists either of this witness or of the doctor, to doubt the fact that the deceased (then injured) was carried to the hospital at such time as may itself indicate that the 'Panchayatnama' was wholly delayed, beyond reasonable time. On the contrary, the closeness of the time of the 'Panchayatnama' proceedings with the time of occurrence clearly indicates otherwise. Having started from the place of occurrence around 06:30 p.m., time would have been consumed by Krishna Kant Tiwari (P.W.-1) to take the deceased to the hospital by road. Further, time would have been consumed at the hospital to make available medical attention to the deceased (then injured). Further, time would have been taken by the doctors to attempt to save/revive Mihir Kant Tiwari. On his death being declared, time would have been lost/consumed before the police authorities would have arrived at that hospital to prepare the 'Panchayatnama'. There is no doubt raised during the extensive cross-examination of the prosecution witnesses as may support the theory that the 'Panchayatnama' was delayed or that the deceased (then injured) was not carried to the hospital by Krishna Kant Tiwari (P.W.-1).
63. Once the 'Panchayatnama' proceedings were completed, Krishna Kant Tiwari (P.W.-1) carried the dead body of the deceased Mihir Kant Tiwari to his residence. No unusual conduct is alleged by the defence in that regard. Once he would have reached home in the nature of occurrence as discussed above, time would have been lost in dealing with extra-ordinary and shocking circumstance, following the death of Mihir Kant Tiwari. It is not the law that a person faced with such circumstances must rush to the Police first or run the risk of his complaint being doubted as false. Considering the fact that 'Panchayatnama' proceedings may have been completed at around 12:40 a.m., again, time would have been lost/consumed before the dead body of the deceased would have been formally handed over for autopsy. The autopsy examination started at about 11:00 p.m. It is only after completion of the autopsy that the body of the deceased would have been handed over to Krishna Kant Tiwari (P.W.-1). The autopsy examination got over at 11:30 p.m. There is no material or evidence to doubt the same. Once the autopsy had thus got over, the body of the deceased would have been handed over to Krishna Kant Tiwari (P.W.-1). That is a normal procedure in such cases. The Court may not draw any adverse inference on that count, either.
64. Thereafter, the dead body of the deceased would have been carried to his home by Krishna Kant Tiwari (P.W.-1) as was duly proven by him. Thereafter, Krishna Kant Tiwari (P.W.-1) left for the Police Station. The FIR came to be lodged at about 01:30 a.m. Therefore, we find, the conduct of Krishna Kant Tiwari (P.W.-1) to be wholly natural and normal. In the facts considered above, the said FIR is found to have been lodged wholly within time, in fact it was lodged promptly.
65. The suggestion by the defence that the FIR was lodged by way of an afterthought or upon well thought out consultation and the further suggestion that Krishna Kant Tiwari (P.W.-1) had not seen anything and therefore he required time to lodge such an FIR, is unfounded. In fact, that suggestion runs wholly contrary to the facts duly proven at the trial. As discussed above, the proven facts establish that the occurrence was promptly reported to the Police by Krishna Kant Tiwari (P.W.-1). He is also a 'Panch' witness. Therefore, his presence at that time can never be doubted. The promptness of the action taken, starting from the deceased being rushed to the hospital, being examined by the doctors and declared dead, to the conduct of the 'Panchayatnama' and the autopsy examination at the hospital and the further fact of the FIR being lodged at about 01:30 a.m. clearly prove otherwise. Such promptness may have been ensured by Krishna Kant Tiwari (P.W.-1) only because he was present at the time and place of the occurrence. Had he not been present, it may not have been possible for him to act with such promptness.
66. In Shahaja (supra), as to asses the evidentiary value of an ocular witness, it was observed as below :
"30. To put it simply, in assessing the value of the evidence of the eyewitnesses, two principal considerations are whether, in the circumstances of the case, it is possible to believe their presence at the scene of occurrence or in such situations as would make it possible for them to witness the facts deposed to by them and secondly, whether there is anything inherently improbable or unreliable in their evidence. In respect of both these considerations, the circumstances either elicited from those witnesses themselves or established by other evidence tending to improbabilise their presence or to discredit the veracity of their statements, will have a bearing upon the value which a court would attach to their evidence. Although in cases where the plea of the accused is a mere denial, yet the evidence of the prosecution witnesses has to be examined on its own merits, where the accused raise a definite plea or puts forward a positive case which is inconsistent with that of the prosecution, the nature of such plea or case and the probabilities in respect of it will also have to be taken into account while assessing the value of the prosecution evidence."
67. Here, upon lengthy and elaborate cross-examination of Krishna Kant Tiwari (P.W.-1), no doubt emerged either to doubt his presence at the time and place of the occurrence or his description of the occurrence. The lack of proof as to earlier complaint made by the deceased against Umashanker Singh etc. does not dilute the truthfulness and credibility of his account of the actual occurrence that he witnessed at about 6 P.M. on 23.06.2014 at the 'Hydel' campus. That account has a stray 'ring of truth', about it. In State of U.P. v. M.K. Anthony, (1985) 1 SCC 505, the Supreme Court observed as below :
"10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross-examination is an unequal duel between a rustic and refined lawyer. Having examined the evidence of this witness, a friend and well-wisher of the family carefully giving due weight to the comments made by the learned counsel for the respondent and the reasons assigned to by the High Court for rejecting his evidence simultaneously keeping in view the appreciation of the evidence of this witness by the trial court, we have no hesitation in holding that the High Court was in error in rejecting the testimony of witness Nair whose evidence appears to us trustworthy and credible."
68. The defence submission that though the occurrence was caused at a public place and no independent witness was examined is also not decisive or relevant to reasonably doubt the prosecution story. In Vadivelu Thevar and another v. State of Madras, 1957 SCC OnLine SC 13, a three judge bench of the Supreme Court had the occasion to consider the sufficiency of solitary eye-witness testimony to reach a conclusion of the guilt of the accused person to the point where he may be convicted for the offence alleged. In that regard, a clear principle was laid down by the Supreme Court at that early stage itself that as a general rule a Court may act on the uncorroborated testimony of a single witness, as it is the quality of evidence and not the number of witnesses that matter. Second, corroboration is not a general rule. It may not be insisted unless it is required by way of rule of prudence or by way of statutory requirement. Third, requirement of corroboration may depend on facts and circumstances of each case and no general rule may be laid down. In that regard, it was observed as below :
"High Courts in India in which the court insisted or corroboration of the testimony of a single witness, not as a proposition of law, but in view of the circumstances of those cases. On a consideration of the relevant authorities and the provisions of the Evidence Act, the following propositions maybe safely stated as firmly established:
(1) As a general rule, a court can and may act on the testimony of a single witness though uncorroborated. One credible witness outweighs the testimony of a number of other witnesses of indifferent character.
(2) Unless corroboration is insisted upon by statute, courts should not insist on corroboration except in cases where the nature of the testimony of the single witness itself requires as a rule of prudence, that corroboration should be insisted upon, for example in the case of a child witness, or of a witness whose evidence is that of an accomplice or of an analogous character.
(3) Whether corroboration of the testimony of a single witness is or is not necessary, must depend upon facts and circumstances of each case and no general rule can be laid down in a matter like this and much depends upon the judicial discretion of the Judge before whom the case comes."
(emphasis supplied)
69. That principle was followed and applied in Badri v. State of Rajasthan, (1976) 1 SCC 442. In that regard, it was observed as below :
"Since under the Evidence Act no particular number of witnesses are required for the proof of any fact, it is a sound and well-established rule of law that quality and not quantity of evidence matters. In each case the court has to consider whether it can be reasonably satisfied to act even upon the testimony of a single witness for the purpose of convicting a person."
(emphasis supplied)
70. Again in Chacko v. State of Kerala, (2004) 12 SCC 269, that very principle was reiterated. It was thus observed as below :
"Coming to the question whether on the basis of a solitary evidence conviction can be maintained, a bare reference to Section 134 of the Evidence Act, 1872 (in short "the Evidence Act") would suffice. The provision clearly states that no particular number of witnesses is required to establish the case. Conviction can be based on the testimony of a single witness if he is wholly reliable. Corroboration may be necessary when he is only partially reliable. If the evidence is unblemished and beyond all possible criticism and the court is satisfied that the witness was speaking the truth then on his evidence alone conviction can be maintained. Undisputedly, there were injuries found on the body of the accused persons on medical evidence. That per se cannot be a ground to totally discard the prosecution version. This is a factor which has to be weighed along with other materials to see whether the prosecution version is reliable, cogent and trustworthy. When the case of the prosecution is supported by an eyewitness who is found to be truthful as well, mere non-explanation of the injuries on the accused persons cannot be a foundation for discarding the prosecution version. Additionally, the dying declaration was found to be acceptable."
(emphasis supplied)
71. The fact that neither any empty cartridge nor blood-stained earth was recovered from any place except from where the deceased was found lying nor he had suffered any gun shot injury from behind does not belie the testimony of Krishna Kant Tiwari (P.W.-1), to any extent. He did not state at any stage that the deceased had received any gun shot injury at any place-from the gate of the 'Hydel' campus to the place where he fell to the ground, inside that campus. Neither it may be proved that the assailants were good marksmen, nor it was proved that they were using precision firearms as may have led to a presumption that they would have surely hit the deceased with such gunshots, whilst he was running ahead of them, in his bid to save his life. The said witness only proved that the assailants were firing at the deceased while chasing him. They caught up with him at 150 feet from the entrance gate into the 'Hydel' campus. There, they shot at him twice, from close range. Those shots hit him and caused fatal injuries. Then, the fact that no other empty cartridge may have been recovered by the Investigating Officer from the gate of the 'Hydel' campus to the place where the deceased was shot at on his body, may remain a deficiency of the investigation and that may not be cited to doubt the testimony of Krishna Kant Tiwari (P.W.-1).
72. Next, examination of an independent witness is also not the rule. The Court may remain mindful; many a time, citizens who may not be known to the victim/deceased who unwittingly come to witness a crime do not volunteer to testify as a witness at a criminal trial, for varied reasons. At the same time, close family members, relatives and friends of the victim or deceased have no implied or inherent motive to falsely implicate an unknown or innocent person in an occurrence involving a heinous crime wherein their relative or friend may be victim. They also do not stand to gain by implicating any other person, falsely. Rather, the inherent conviction with such people is to name the real culprit/s and their accomplices. Therefore, once their presence is firmly established at the place and time of occurrence and if there is no disabling factor such as absence of source of light etc., the Courts may trust their depositions, that much more.
73. Here, the presence of Krishna Kant Tiwari (P.W.-1), the father of the deceased - Mihir Kant Tiwari is firmly established at the time and place of occurrence. In the absence of any doubt as to that, we have no reason to doubt his testimony to the extent he has identified Satya Prakash Jaiswal as one of the three assailants who caused the occurrence. As noted above, the fact that Krishna Kant Tiwari (P.W.-1) did not implicate any other person as an assailant though he did attribute motive against the named accused persons, lends credibility to his narration of the occurrence.
74. Therefore, as to the occurrence, we are firmly of the view that it was caused by three assailants, one of whom was identified by Krishna Kant Tiwari (P.W.-1) as Satya Prakash Jaiswal. It may be noted here itself, due corroboration of that trustworthy account offered by Krishna Kant Tiwari (P.W.-1) exists in the shape of the ballistic report that established that EC-1 recovered from the place of occurrence had been fired at the deceased from the firearm recovered at the pointing out by Satya Prakash Jaiswal. To this extent, there is no reason to doubt the recoveries of the Empty Cartridge (from the place of occurrence) and the firearm, at the pointing out by Satya Prakash Jaiswal. That corroboration exists. No further proof may be required to hold the appellant Satya Prakash Jaiswal guilty of the charged offence.
75. Yet, according to Krishna Kant Tiwari (P.W.-1) there were two more assailants. There is nothing to doubt that account, either. However, Krishna Kant Tiwari (P.W.-1) could not identify them. Therefore, to determine the identity of the other two assailants, the prosecution story must be tested on the strength of other evidence. In that regard, the prosecution relies on the testimony of Shridhar Tiwari (P.W.-2) and Sanjay Tiwari (P.W.-4). In the first place, Shridhar Tiwari (P.W.-2) is a relative of Krishna Kant Tiwari (P.W.-1), the latter being the son-in-law of his real brother. It is odd that his statement was not recorded immediately. In any case, he too did not identify the other two assailants (besides Satya Prakash Jaiswal).
76. As to the elaborate submission advanced by Shri Kamal Krishna, learned Senior Counsel to doubt the presence of Shridhar Tiwari (P.W.2), we may note that he claimed to have left for Barhaj market at about 3-4 pm on a borrowed motorcycle. The fact that he could not recall the name of the person whose motorcycle he had borrowed, is of less relevance. The fact that he did not name any person who may have been known to him and who may have own a motorcycle, is of less consequence. As to the time that he may or he may not have taken to travel from his home to the Barhaj market, no credible evidence exists to doubt that the said witness did not have the time to reach Barhaj market, shop for the miscellaneous items that he needed for his home and to return therefrom at the same time when the occurrence was caused. However, in that circumstance, it may not be denied that his presence at the exact place, at the exact time would be a matter of chance.
77. Yet, the said witness did not offer any account of the occurrence as may be at variance with or in addition to the account of that occurrence offered by Krishna Kant Tiwari (P.W.-1). Both described that the occurrence was caused by three assailants who chased Mihir Kant Tiwari from behind, while shooting at him and that the deceased was shot at as he fell to the ground, neither described that the deceased was shot at from behind while he was running. Both identified only Satya Prakash Jaiswal as one of the three assailants. Both described that it took them about 20-30 minutes to carry the deceased from the place of occurrence to the Sadar Hospital, Deoria. The difference of 5-10 minutes when that journey may began is a minor inconsistency. It is of no relevance. Insofar as both witnesses narrated that the deceased (then injured) was carried to the Sadar Hospital, Deoria on a four wheeler vehicle of Jitendra Jaiswal, there is no material inconsistency in that description, either.
78. Why Shridhar Tiwari (P.W.-2) would have gone back home from the hospital, is not a material fact. Once it is admitted that Mihir Kant Tiwari was declared dead and the inquest and autopsy proceedings were completed at the hospital, no further conduct of the said witness is required to be examined to test his presence at the place and time of the occurrence. While the occurrence took place at around 6 pm, the autopsy examination was completed on 11:30 in the night. It is during that late hour, the witness may have returned to his home. The test of prudent behavior cannot be extended to doubt the presence of the said witness of Shridhar Tiwari (P.W.-2), at the place of occurrence at 6 pm for reason of his not going to the house of Krishna Kant Tiwari (P.W.-1) after completion of the autopsy examination. It would be stretching the rule of prudent behavior beyond its limit to apply that test as canvassed by learned counsel for the appellants. He too is a reliable witness.
79. Coming to the testimony of the third witness of fact namely Sanjay Tiwari (P.W.-4), he too is a chance witness. He is the only witness on whose testimony the prosecution relies to establish the presence and involvement of the appellants-Murari Jaiswal and Ramprakash Yadav @ Naga Yadav. As to the circumstance in which he recognized those appellants, he claimed that around 6 pm on 23.06.2014 he reached his agricultural field that had been ploughed by a tractor hired by him. At that opportune moment, he saw the three appellants fleeing on motorcycle, brandishing their firearms. On being cross-examined, besides the doubt that arose as to his presence near the road from where he may have witnessed the appellants flee from the place of occurrence, after having caused the same, he claimed to have identified the assailants from their clothing. He did not know the assailants from before. On the contrary, he claimed that Ramprakash Yadav @ Naga Yadav used to pass through his village. He further narrated, when he reached near the place of occurrence he heard about the murder of Mihir Kant Tiwari. However, by that time, the dead body of the deceased Mihir Kant Tiwari had been taken away from the place of occurrence. He further admitted, while he was having a 'Pan' on a roadside shop, people were discussing the murder of Mihir Kant Tiwari. At that stage, the said witness divulged that he had seen the assailants. Thereupon the police personnel enquired him if he was willing to make that statement. To that, he agreed. Yet, it remained a fact that the first statement of the said witness was recorded by the police six days thereafter.
80. From the above discussion, it is clear that Amrendra Singh (P.W.-3) had no occasion to be present at the place of occurrence or nearby. He reached there per chance. Though he claims to have identified the assailants, he admitted that he did not know them from before and that he identified them by their clothing, only.
81. Clearly, he may not have seen the assailants' faces. In any case, he claims to have first seen the assailants when they were fleeing on the motorcycle. Thus, he would have the brief moment to see the assailants. Then, he admitted that he learned of the occurrence a little later when he reached the market place, perhaps the 'Pan' shop where people were discussing the murder of Mihir Kant Tiwari. As to the time when he reached that place where such discussion was being made, he also admitted, by that time the body of Mihir Kant Tiwari had been taken away. That event took place about 20-30 minutes later as proved by Krishna Kant Tiwari (P.W.-1) and Shridhar Tiwari (P.W.-2). In such circumstance, on the own showing by Amrendra Singh (P.W.-3), he learnt of the occurrence indirectly i.e. at a 'Pan' shop about 30 minutes after the occurrence. Being on foot, it may therefore be assumed that he was not very near of the place of occurrence when it took place. That time gap of about 30 minutes would be enough to allow an adult human being to walk a couple of kilometers, if not more. Being on foot, the said witness may not be assumed to be very near to the place of occurrence. He neither met Krishna Kant Tiwari (P.W.-1) or Shridhar Tiwari (P.W.-2) nor he saw them leave the place of occurrence with the injured Mihir Kant Tiwari. Clearly, he reached near the place of occurrence later. By that time, the assailants would have fled as proved by Krishna Kant Tiwari (P.W.-1) and Shridhar Tiwari (P.W.-2).
82. On the facts proven by the said witness, it appears doubtful that he had actually seen the assailants flee after causing the occurrence. That doubt is strengthened by the further fact that the said witness did not identify the assailants by their faces but by their clothing. In that, he claims Ramprakash Yadav @ Naga Yadav used to pass through his village and therefore he identified the said assailant from his clothing. Yet, it is an admitted fact that the statement of the said witness was first recorded by the Police not immediately but six days after the occurrence.
83. Though human memory is individualistic and no presumptions or uniform principles may be applied to the same to either believe or disbelieve such memory attributed to individuals, at the same time, in the context of a criminal trial in which it is established that Amrendra Singh (P.W.-3) is a chance witness, in the facts proven by the prosecution, we find it wholly doubtful that he was either present near the place of occurrence as may have allowed him an opportunity to see the assailants flee from the place of occurrence on motorcycles or as may have allowed him an opportunity to identify the appellants as assailants, correctly.
84. For those reasons, we cannot treat the testimony of Amrendra Singh (P.W.-3) as wholly reliable. He has to be placed in the category of witness whose testimony is not wholly reliable. Therefore, we may look at corroboration before proceeding to believe the same as true. Besides the above, three witnesses of fact, no other witness of fact was examined by the prosecution to establish that the occurrence was caused by the present appellants.
85. As to corroboration, the medical evidence clearly proved that there were two entry wounds suffered by the deceased. Both are bullet injuries. One of the two bullets was recovered from inside the body of the deceased. Therefore, in the first place, due corroboration exists in the shape of that medical opinion to the ocular version brought by Krishna Kant Tiwari (P.W.-1) and Shridhar Tiwari (P.W.-2). Both witnesses stated that three assailants had shot at the deceased while he was lying on the ground. Once multiple shots are shown to have fired at the deceased, both firearm injuries suffered by the deceased corroborate that ocular version.
86. Then, there is nothing to doubt the recovery of one firearm at the pointing out by Satya Prakash Jaiswal and the other at the pointing out by Murari Jaiswal. Though submissions were advanced that those recoveries are planted, at present, we are not in a position to doubt those recoveries as disclosure statements exist and consequent recoveries have been made. Both weapons were recovered from a secret place as may have been known to the person involved or privy to the concealment of that weapon. At the same time, ballistic report was called to match the empty cartridges recovered from the place of occurrence with the recovered weapons. In that it was found that the weapon recovered at the pointing out by the appellant Satya Prakash Jaiswal matched with one empty cartridge recovered from the place of occurrence namely, EC-1. To that extent, due corroboration arises on the strength of the ballistic report to the fact proven through ocular evidence led by Krishna Kant Tiwari (P.W.-1) and Shridhar Tiwari (P.W.-2).
87. However, no other or further corroborative evidence arose against the appellant Murari Jaiswal and Ramprakash Yadav @ Naga Yadav. No firearm was recovered from Ramprakash Yadav @ Naga Yadav and the weapon recovered at the pointing out by Murari Jaiswal did not match in the ballistic report. The clothing worn by them on the date of occurrence as may have led to their identification by Amrendra Singh (P.W.-3), was never recovered and identified by that witness as may allow for corroboration of his account. To that extent, reasonable doubt exists as to the presence of Murari Jaiswal and Ramprakash Yadav @ Naga Yadav inasmuch as those two assailants were not identified either by Krishna Kant Tiwari (P.W.-1) or Shridhar Tiwari (P.W.-2).
88. It would have been another thing if the appellants Murari Jaiswal and Ramprakash Yadav @ Naga Yadav had been identified through credible ocular evidence as the persons involved in the occurrence. In that event, even if the recoveries were not made or even if the recovered firearm did not match with the recovered empties or bullets, the conviction could still have arisen on the strength of said strong ocular evidence. However, in the absence of credible evidence as to their involvement and further in the absence of credible corroboration on the strength of recovery of firearm at the pointing out by Murari Jaiswal, those appellants are entitled to benefit of doubt. Their appeals are liable to be allowed for that reason.
89. As to the involvement of Uma Shanker, Ganesh Singh and Udai Pratap Singh, it may be noted that they came to be convicted with the aid of Section 120-B IPC. The theory on conspiracy is an imaginative chapter in the prosecution story. Though motive was alleged against Uma Shanker Singh and others, the prosecution miserably failed to prove the existence of such motive. Neither it could prove that the deceased had lodged any written or other complaint with any Police official nor it could prove that such complaint if made was clearly directed against Uma Shanker Singh and others nor it could prove with any credibility that any action had been taken by the Police against those persons with respect to the complaint made nor it could prove that other complainant had been threatened or harmed in any way. That apart, the evidence as to existence of conspiracy is weak to the point of being unreliable and completely unconvincing. The witnesses namely Rajiv Dubey (P.W.-5) claimed that he heard of the conspiracy being hatched at a tea stall. In any case, he could not give any credible details of the same. He was declared hostile during his examination-in-chief itself. Vinay Mishra (P.W.-6) was also declared hostile.
90. Merely because the appellants Umashanker Singh, Ganesh Singh and Udai Pratap Singh were named in the FIR may not amount to any proof of motive or conspiracy. No substantive evidence was led to prove the facts alleged against them. In any case, even with respect to the prior occurrence (of fifteen days), narrated by Krishna Kant Tiwari (P.W.-1) wherein it was disclosed that Umashanker Singh had threatened the said witness, there exists no criminal case, complaint or other proceeding initiated against the said accused. Plainly, the allegation against the appellants Umashanker Singh, Ganesh Singh and Udai Pratap Singh could not be proved to any extent. Therefore, those appellants are entitled to acquittal, as well.
91. Insofar as the informant's appeal (Criminal Appeal U/S 372 Cr.P.C. No. 270 of 2021) is concerned, we again find, no evidence exists against the accused Manoj Singh for the charge levelled on the strength of section 120B IPC. Once it has been found that there was absolutely no evidence of criminal conspiracy, the appeal filed by the informant must fail, for the same reason.
92. What then survives for our consideration is that the prosecution brought a case of direct evidence of three assailants, one named and two unnamed. At the trial, it successfully established involvement of one named assailant namely Satya Prakash Jaiswal. Besides the direct ocular evidence led by Krishna Kant Tiwari (P.W.-1) and Shridhar Tiwari (P.W.-2), due corroboration of that direct evidence exists both on the strength of medical opinion arising from the autopsy report, as proven by Dr. J.P. Singh (P.W.-8) as also on the strength of recovery of a country made firearm at the pointing out of the said accused Satya Prakash Jaiswal read with the ballistic report proving use of that firearm in the occurrence upon successful match of EC-1 with that firearm.
93. However, as to the involvement of the other two assailants namely Murari Jaiswal and Ramprakash Yadav @ Naga Yadav, neither those were named nor identified by the wholly reliable prosecution witnesses Krishna Kant Tiwari (P.W.-1) and Shridhar Tiwari (P.W.-2). Their identification by the not wholly reliable witness Sanjay Tiwari (P.W.-4) cannot be acted upon in absence of any corroboration to the fact allegations levelled against them and upon failure of the ballistic matching of the firearm recovered at the pointing out of Murari Jaiswal with the empty cartridge recovered from the place of occurrence. We feel a benefit of doubt exists in their favour.
94. As to the other appellants Umashanker Singh, Ganesh Singh and Udai Pratap Singh, we find no evidence to hold them guilty of the charge of offence under section 302/120B IPC. Those appellants are entitled to acquittal, simplicitor.
To conclude :
95. Criminal Appeal Nos. 3311 of 2021, 3315 of 2021, 3574 of 2021, 3671 of 2021 and 4152 of 2021 are allowed. Judgment and order dated 13.08.2021 against appellants- Umashanker Singh @ Umesh Singh, Ganesh Singh, Udai Pratap Singh @ Dimpu Singh, Ramprakash Yadav @ Naga Yadav and Murari Jaiswal is set aside. Those appellants are acquitted from all the charges framed against them. Those appellants are in jail. They shall be released forthwith unless they are wanted in any other case, subject to their complying with the mandatory requirements of Section 437-A Cr.P.C.
96. Criminal Appeal under Section 372 Cr.P.C. No. 270 of 2021 filed by the informant-Krishna Kant Tiwari against acquittal of Manoj Singh is dismissed.
97. Criminal Appeal No. 8480 of 2022 filed by accused-Satya Prakash Jaiswal is dismissed. The punishment and sentence awarded to him is maintained. He is in jail. He shall serve the remaining part of his sentence. Trial Court record be returned along with a copy of this order.
Order Date :- 04.07.2025
SA/Faraz/prakhar/abhilash
(Dr. Gautam Chowdhary, J.) (S.D. Singh, J.)