Allahabad High Court
Subodh Awasthy vs State Of U.P. on 16 November, 2019
Equivalent citations: AIRONLINE 2019 ALL 1906
Bench: Pritinker Diwaker, Rajeev Misra
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Reserved on 12.04.2019 Delevered on 16.11.2019 Case :- CRIMINAL APPEAL No. - 6270 of 2009 Appellant :- Subodh Awasthy Respondent :- State Of U.P. Counsel for Appellant :- Shri Kamal Krishan, Phool Singh Yadav and Shri R. K. Srivastava. Counsel for Respondent :- Govt. Advocate Hon'ble Pritinker Diwaker,J.
Hon'ble Rajeev Misra,J.
(Delivered by Hon. Rajeev Misra, J.)
1. By means of present criminal appeal, appellant Subodh Awasthy is challenging validity and legality of judgement and order dated 06.10.2009 passed by Additional District and Sessions Judge (Court no.2), Kanpur Dehat in Sessions Trial No. 298 of 2008 (State Vs. Subodh Awasthy) under Section 302 I.P.C. P.S. Shivli, District-Kanpur Dehat, arising out of Case Crime No. 331 of 2007, under Sections 307 and 302 I.P.C., P.S. Shivli, District, Kanpur Dehat and connected Sessions Trial No. 299 of 2008 (State Vs. Subodh Awasthy) under Sections 25/27 Arms Act, arising out of Case Crime No. 02 of 2008, under Sections 25/27 Arms Act, P.S. Shivli, District, Kanpur Dehat, whereby and where-under accused appellant has been convicted under Section 302 I.P.C. and consequently, sentenced to life imprisonment alongwith fine of Rs. 20,000/-. In default regarding payment of fine, accused appellant is to undergo additional imprisonment of one year. Accused appellant has also been convicted under Section 27 Arms Act. Accordingly, he has been sentenced to two years rigorous imprisonment alongwith fine of Rs. 2,000/-. In case of default in payment of aforesaid fine, accused-appellant is to undergo additional imprisonment of two months. All sentences are to run concurrently.
2. We have heard Mr. Kamal Krishna, learned Senior Counsel assisted by Mr. P. S. Yadav, learned counsel for appellant and Mr. Ajit Ray, learned A.G.A. for State.
3. Facts giving rise to this criminal appeal are that an incident is alleged to have occurred on 31.12.2007 at 8.30 PM, in which Sanjay Awasthy is alleged to have sustained gun shot injury caused by Subodh Awasthy. A written report dated 31.12.2007 (Ext. Ka.-1) was submitted by Dinesh Chandra Awasthy, first informant-brother of deceased at P.S. Shivli, District-Kanpur Dehat regarding aforesaid occurrence. The said written report is scribed and signed by P.W.-1 Dinesh Chandra Awasthy.
4. Head Constable 29, Munesh Shankar Dwivedi (P.W.-4) entered written report dated 31.12.2007 in General Diary vide report No. 45. He thereafter scribed the F.I.R. dated 31.12.2007 (Ext. Ka.-3), which was registered as Case Crime No. 331 of 2007 under Section 307 I.P.C. P.S. Shivli, District-Kanpur Dehat.
5. Perusal of aforesaid F.I.R. (Ext. Ka.-3) shows that same has been lodged by Dinesh Chandra Awasthy, first informant/brother of deceased Sanjay Awashti on 31.12.2007 at 8.30 PM. Accused-appellant Subodh Awasthy has been nominated as solitary named accused. The date, time and place of occurrence as mentioned in F.I.R. is 31.12.2007 at 8.30 PM. in front of house of first informant at Village Bada Gaon, District-Kanpur Dehat. Distance between place of occurrence and Police Station has been mentioned as 7 Kms. F.I.R. has been registered on 31.12.2007 at 9.25 PM i.e. 55 minutes after occurrence.
6. As per prosecution story as unfolded in F.I.R., Sanjay Awasthy, younger brother of first informant had a scuffle with one Subodh Awasthy, resident of same Village. Both were challaned under Section 151 Cr.P.C. Five to six days before date of occurrence, battery of Tractor belonging to Subhodh Awasthy was stolen when same was parked in front of house of Subodh Awasthy. As a result of aforesaid, Subodh Awasthy used to frequently indulge in abusing others. On the fateful day i.e. 31.12.2017 at around 8.00 PM, Sanjay Awasthy was returning home from Aunaha Market. He was stopped by Subodh Awasthy and thereafter, he started abusing him. Subsequently, Babu Ram Awasthy, father of Sanjay Awasthy and his daughter Bitti reached on spot and brought Sanjay Awasthy home. After a short-time, Subodh Awasthy again came to the house of first informant-Sanjay Awasthy and started abusing him. On this, Sanjay Awasthy requested Subodh Awasthy to stop abusing him whereupon Subodh Awasthy fired at Sanjay Awasthy. The same struck Sanjay Awasthy on his chest. Alongwith Sanjay Awasthy one Naresh @ Sallar Shukla was also present at the place of occurrence. After having shot Sanjay Awasthy, both accused persons fled away from spot. On account of firearm injury, Sanjay Awasthy the injured, fell on the spot. Subsequently, Bitti, sister of Sanjay Awasthy (injured) and his father Ram Nath Awasthy came on spot. Injured was carried on Marshal Vehicle and brought at Police-Station, Shivli, District-Kanpur Dehat.
7. Aforesaid F.I.R. dated 31.12.2007 (Ext. Ka.-3) was registered, Police of Police-Station, Shivli came into motion. P.W.-8, Subh Suchit, the Station Officer, Police-Station Shivli was appointed as Investigating Officer. He accordingly proceeded with investigation of Case Crime Number 331 of 2007. On same day, he entered written report dated 31.12.2007 (Ext. Ka.-1) and F.I.R. dated 31.12.2007 (Ext. Ka.-3) in case diary. Injured Sanjay Awasthy died on 31.12.2017 while being taken to Hallet Hospital, Kanpur Nagar by S. I. Rakesh Chandra and Constable Raj Bali. Accordingly, first informant Dinesh Chandra Awasthy submitted an application dated 31.12.2007 (Ext. Ka.-22) at P.S. Shivli, District-Kanpur Dehat informing Police regarding death of Sanjay Awasthy. The same was entered in General Diary vide G.D. report No. 47 timing 23.55 hours dated 31.12.2007 (Ext. Ka.-5). In view of above, Investigating Officer added Section 302 I.P.C in concerned Case Crime Number on 01.09.2008.
8. On same day i.e. 01.01.2008, P.W.-8, S.I., Subh Suchit, Investigating Officer, recorded statement of first informant-Sanjay Awasthy under Section 161 Cr.P.C. He then reached place of occurrence and inspected it. He thereafter noted Inspection Memo in case diary. He also prepared Site Plan dated 01.01.2008 (Ext. Ka.-13) of place of occurrence on pointing of first informant.
9. Upon death of injured Sanjay Awasthy at Hallet Hospital, Kanpur Nagar, information regarding same was given by one Santu ward boy in aforesaid Hospital at Police-Station Swaroop Nagar, District-Kanpur Nagar. Accordingly, S. I. Iqbal Singh, P.S.-Swaroop Nagar, District-Kanpur Nagar proceeded to conduct panchayatnama/inquest of deceased. He appointed Panch witnesses namely, Subhash Chandra, Ram Ganesh, Vinod Kumar Tiwari, Majoj Mishra and Santosh Dwivedi. Upon completion of inquest proceedings, he prepared inquest report dated 01.01.2008 (Ext. Ka.-8).
10. Perusal of Panchayatnama/inquest report dated 01.01.2008 (Ext. Ka.-8) shows that same was conducted on 01.01.2008 at Hallet Hospital, Kanpur Nagar. Inquest proceedings commenced at 11.40AM on 01.01.2008 and concluded on the same day at 12.45PM. Place of inquest proceedings is mentioned as Hallet Hospital, P.S.-Swaroop Nagar, District-Kanpur Nagar. In the opinion of Panch witnesses, death of deceased-Sanjay Awathi was held to be homicidal. Panch witnesses also noted that cause of death of deceased was gun shot injury. One gun shot injury was found on the body of deceased situate on left side of abdomen and was surrounded by blackening. Inquest report, however, does not contain description of Case Crime Number 331 of 2007 under Sections 307, 302 I.P.C., P.S.-Shivli, District-Kanpur Dehat.
11. Body of deceased Sanjay Awasthy was recovered by SSI, Rudra Pal Singh on 01.01.2008 itself. He then prepared detailed Police scroll i.e. Ext. Ka.-9- letter to C.M.O., Ext. Ka.-10-Specimen Seal, Ext. Ka.-11-Photograph of dead body, Ext. Ka.12-Police Form No.33.
12. P.W.-4, Dr. Bipul Singh, conducted postmortem of the body of deceased. He found following antemortem injuries on the body of deceased:-
"Firearm wound of entry 1.5 cm.X1.00 cm. present on part of left abdomen, 11cm. Front below left nipple at 5 o' clock position, surrounded by blackening, tattooing and scorching in an area of 5cm x 6cm, margins of wound are lacerated ecchymosed and inverted, direction of wound is found towards right side and backward. Spleen liver and intestine with omentum found lacerated. About 1500 ml. blood mixed fluid present in abdominal cavity. A single metallic bullet recovered from abdominal cavity sealed in and handed over to accompanying constable."
13. After completion of post-mortem of body of deceased (P.W.-8), S.I. Subh Suchit, Investigating Officer, recovered clothes worn by deceased at the time of occurrence. He sealed them and dispatched same to Forensic Science Laboratory. An F.S.L. report dated 14.02.2008 (Ext. Ka.-20) was submitted. As per aforesaid report, blood on the clothes of deceased was disintegrated and therefore, insufficient for classification.
14. On 02.01.2008, P.W.-8, Subh Suchit, Station Officer, P.S. Shivli District-Kanpur Dehat/Investigating Officer arrested the accused Subodh Awasthy. He physically examined the accused but nothing was recovered from his person. He then recorded statement of accused. Accordingly, he took accused to the place from where country made pistol (katta) used in commission of offence was hidden. Accused took Investigating Officer to Shivam Road and from a place behind the Mazar situate on Pitched Road, accused Subodh Awasthy got the country made pistol (Katta) used in commission of crime recovered. Same was sealed by P.W.-8. A Memo of Recovery dated 02.01.2008 (Ext. Ka.-14) was prepared. Aforesaid recovery is witnessed by Constable Ram Autar Singh and first informant-Subodh Kumar Awasthy.
15. On the basis of recovery of country made pistol (katta) on pointing of accused Subodh Awasthy, an F.I.R. dated 02.01.2008 (Ext. Ka. 6) was lodged by P.W.-8, Subh Suchit, Station Officer P.S. Shivli District-Kanpur Dehat and also Investigating Officer against accused. Same was registered as Case Crime No. 02/2008 under Sections 25/27 Arms Act. According to aforesaid F.I.R., occurrence took place on 02.01.2008 at 15.40 hours, i.e 3.00 PM. near Ram Ganga Canal behind the Mazar and same was lodged on 18.03.2008 at 18.30 hours.
16. After completion of statutory investigation of Case Crime No. 331 of 2009 in terms of Chapter XII Cr.P.C. (P.W.-8) S.I., Subh Suchit Investigating Officer, on basis of material collected during course of investigation opined to submit a charge-sheet. Accordingly charge-sheet dated 15.02.2008 (Ext. Ka.-15) was submitted in Case Crime No.331 of 2007 under Sections 307 and 302 I.P.C., P.S.-Shivli, District-Kanpur Dehat. Upon submission of aforesaid charge-sheet C.J.M. Kanpur Dehat took cognizance upon same vide cognizance taking order dated 26.03.2008. Thereafter case was committed to Court of Sessions vide committal order dated 15.09.2008 passed by C.J.M. Kanpur Dehat. Consequently, S.T. No. 298 of 2008 (State Vs. Subodh Awasthy) under Section 302 I.P.C. P.S. Shivli, District-Kanpur Dehat came to be registered.
17. Court-below vide order dated 05.03.2009 framed charge under Section 302 I.P.C. against accused Sanjay Kumar Awasthy to the following effect:-
ßvkjksi eS] lh0 ,e0 nhf++{kr vij l= U;k;k/kh'k ¼dksVZ la[;k&2½] dkuiqj nsgkr vki lqcks/k voLFkh ij fuEu vkjksi yxkrk gwWa%& izFke% ;g fd fnukad 31-12-2007 bZ0 dks le; djhc 8-30 cts jkr LFkku njoktk edku oknh ckgn xzke cM+k xkWWo vkSugk vUrxZr Fkkuk f'koyh dkuiqj nsgkr esa iwoZ jaft'k ds dkj.k vkius oknh ds edku ds njokts ij tkdj xkkyh xykSt dh vkSj tc oknh ds HkkbZ lat; us xkyh nsus ls euk fd;k rks vkius lat; ds Åij reaps ls xksyh pyk nh tks e`rd ds lhus esa yxh vkSj bl izdkj vkius vk'k; iwoZd xksyh ekj dj e`rd lat; dh gR;k dkfjr dh bl izdkj vkius Hkkjrh; n.M lafgrk dh /kkjk&302 ds v/khu n.Muh; vijk/k dkfjr fd;k gS tks bl U;k;ky; ds izlaKku esa gSA ,rn~)kjk eSa vkidks funsZf'kr djrk gWWw fd mijksDr vkjksi esa vkidk fopkj.k bl U;k;ky; )kjk gksA fnukad% 05-03-2009 bZ0 ¼lh0 ,e0 nhf{kr½ vij l= U;k;k/kh'k ¼dksVZ la[;k&2½] dkuiqj nsgkrA vkjksi vfHk;qDr dks i<+ dj lquk;k o le>k;k x;k ftlls badkj dj fopkj.k dh ;kpuk dhA fnukad% 5-3-2009 bZ ¼lh0 ,e0 nhf{kr½ vij l= U;k;k/kh'k ¼dksVZ la[;k&2½] dkuiqj nsgkrAÞ
18. During pendency of S.T. No. 298 of 2008 (State Vs. Subodh Awasthy) under Section 302 I.P.C., investigation of Case Crime No. 02 of 2008 under Sections 25/27 Arms Act, P.S. Shivli Road, District-Kanpur Dehat was also completed. On the basis of material collected during course of investigation, Investigating Officer submitted a charge-sheet dated 25.01.2008 (Ext. Ka.-12) under Section 25/27 Arms Act against accused Subodh Awasthy.
19. C.J.M. Kanpur Dehat vide congnizance taking order dated 25.02.2008 took cognizance upon the charge-sheet dated 25.01.2008.
20. Subsequently, District Magistrate, Kanpur-Dehat accorded sanction in terms of Section 39 of Arms Act to launch prosecution against accused Subodh Kumar Awasthy under Section 25 Arms Act vide sanction order dated 10.03.2008.
21. After completion of aforesaid formalities, C.J.M., Kanpur Dehat committed case to Court of Sessions vide committal order dated 15.09.2008. Accordingly S.T. No. 299 of 2008 (State Vs. Subodh Awasthy) under Sections 25/27 Arms Act came into existence.
22. S.T. No. 299 of 2008 (State Vs. Subodh Awasthy) under Sections 25/27 Arms Act was transferred to Court of 2nd Additional District and Sessions Judge, Kanpur Dehat. Court-below vide order dated 05.03.2009 framed charge under Sections 25/27 Arms Act against accused Subodh Awasthy to the following effect:-
ßvkjksi eS] lh0 ,e0 nhf++{kr vij l= U;k;k/kh'k ¼dksVZ la[;k&2½] dkuiqj nsgkr vki lqcks/k voLFkh ij fuEu vkjksi yxkrk gwWa%& izFke% ;gfd fnukad 2-1-2008 bZ0 dks le; djhc 15-40 cts ckgn xzke nsohiqj ds fudV [ksrksa ls vkidks Fkkus f'koyh dh iqfyl )kjk fxjQrkj fd;k x;k vkSj vkidh fu'kkansgh ij lat; voLFkh dh gR;k esa iz;qDr reapk ugj ds fdukjs cuh etkj ds ihNs ls cjken fd;k x;k ftldks j[kus dk dksbZ ykblsUl vkids ikl ugha Fkk] bl izdkj vkius 'kL=- vf/kfu;e dh /kkjk&25@ 27 ds v/khu n.Muh; vijk/k dkfjr fd;k gS tks bl U;k;ky; ds izlaKku esa gSA ,rn~)kjk eSa vkidks funsZf'kr djrk gWw fd mijksDr vkjksi esa vkidk fopkj.k bl U;k;ky; )kjk gksA fnukad% 05-03-2009 bZ0 ¼lh0 ,e0 nhf{kr½ vij l= U;k;k/kh'k ¼dksVZ la[;k&2½] dkuiqj nsgkrA vkjksi vfHk;qDr dks i<+ dj lquk;k o le>k;k x;k ftlls badkj dj vius fopkj.k dh ;kpuk dhA fnukad% 5-3-2009 bZ ¼lh0 ,e0 nhf{kr½ vij l= U;k;k/kh'k ¼dksVZ la[;k&2½] dkuiqj nsgkrAÞ
23. The country made pistol (material exhibit no.1) recovered on pointing of accused-appellant and also the bullet recovered from body of deceased by P.W.-3, Dr. Bipul Singh, who conducted autopsy on body of deceased, were sent to Forensic Science Laboratory. According to FSL report dated 23.02.2008 (Ext. Ka-21), bullet recovered from body of deceased was not fired from the weapon recovered on pointing of accused.
24. Both of the above mentioned trials were consolidated and accordingly, they were tried together by Court-below.
25. Accused-Sanjay Awasthy denied the charges so framed and demanded trial. Consequently, trial commenced. Burden to bring home the charges was upon prosecution. Accordingly, prosecution adduced following witnesses to establish the same:-
P.W.-1, Dinesh Chandra Awasthy P.W.-2, Babu Ram P.W.-3, Dr. Bipul Singh P.W.-4, Munesh Shankar Dwivedi, Head Constable 29, P.S.-Shivli, District-Kanpur Dehat.
P.W.-5, Ashok Kumar Singh, S.I.S., Police Office, Kanpur Dehat P.W.-6, Pradeep Kumar Tiwari, Constable Moharrir P.S. Baraur, District-Kanpur Dehat.
P.W.-7, Rudra Pal Singh, Sub-Inspector, P.S. Kandhai, District-Pratapgarh P.W.-8, Subh Suchit, Sub-Inspector, P.S.- Bhognipur, District-Kanpur Dehat P.W.-9, Rakesh Chandra, Sub-Inspector, P.S. G.R.P. District-Kanpur Nagar.
P.W.-10, Jagdev Prasad, Sub-Inspector, Akbarpur Chauki Incharge, P.S.-Akbarpur, District-Kanpur Dehat.
26. Apart from relying upon aforesaid prosecution witnesses, prosecution also relied upon following documentary evidence:-
Ext. Ka.-1 is written report submitted by P.W.-1, Dinesh Chandra Awasthy, first informant / brother of deceased and was proved by him.
Ext. Ka.-2 is post-mortem report dated 01.01.2008 prepared by P.W.3 Dr. Bupil Singh and was proved by him.
Ext. Ka.-3 is check F.I.R. dated 31.12.2007 lodged by P.W.-1, Dinesh Chandra Awasthy, first informat/brother of deceased registered as Case Crime No. 331 of 2007 under Section 307 I.P.C., P.S.-Shivli, District-Kanpur Dehat. It was proved by P.W.-4, Head Constable 29, Munesh Shanker Dwivedi.
Ext. Ka.-4 is Carbon Copy of General Diary Report No. 41 timing 23.55 dated 31.12.2007, prepared by P.W.-4, Head Constable 29, Munesh Shanker Dwivedi and was proved by him.
Ext. Ka.-5 is Carbon Copy of General Diary Report No. 47 timing 23.55 dated 31.12.2007, prepared by P.W.-4, Head Constable 29, Munesh Shanker Dwivedi and proved by him Ext. Ka.-6 is Check F.I.R. dated 02.05.2008 pertaining to Case Crime No. 02 of 2008 under Section 25/27 Arms Act lodged by P.W.-8, S.I. Subh Suchit, Investigatin Officer. The same was proved by P.W.-6,Constable Moharrir 558, Pradeep Kumar Tiwari.
Ext. Ka.-7 is Carbon Copy of General Diary Report No. 38 timing 18.30 dated 02.01.2008, prepared by P.W.-6., Constable Moharrir 558, Pradeep Kumar Tiwari and proved by him.
Ext. Ka.-8 is Panchayatnama/Inquest Report dated 01.01.2008 pertaining to deceased Sanjay Awasthy. The same was prepared by P.W.-7, S.I., Rudra Pal Singh and proved by him.
Ext. Ka.-9 is Letter Dated 01.01.2008 sent by P.W-7, S. I. Rudra Pal Singh addressed to C.M.O., Kanpur Nagar for getting postmortem of deceased conducted. Same was proved by P.W.-7, S.I., Rudra Pal Singh himself.
Ext. Ka.-10 is Specimen of Seal on packed dead body of deceased. Same was prepared and proved by P.W.7, S.I., Rudra Pal Singh.
Ext. Ka.-11 is Police Form No. 371 (Photo Nash) of the deceased. Same was prepared and proved by P.W.-7, S.I., Rudra Pal Singh.
Ext. Ka.-12 is Police Form No. 33, prepared and proved by P.W.-7, S.I., Rudra Pal Singh.
Ext. Ka.-13 is Site Plan dated 01.01.2008 prepared by P.W.-7 , Rudra Pal Singh and proved by P.W.-8, S.I., Subh Suchit, Investigating Officer.
Ext. Ka.-14 is Memo of Arrest and Recovery of country made pistol (katta) from accused Subodh Awasthy. Same was prepared by P.W.-7, Rudra Pal Singh and proved by P.W.-8, S.I., Subh Suchit, Investigating Officer.
Ext. Ka.-15 is Charge-sheet dated 15.02.2008 submitted by P.W.7, Rudra Pal Singh in Case Crime No. 331 of 2007 under Section 302 I.P.C. Same was proved by P.W.-8, S.I. Subh Suchit, Investigating Officer.
Ext. Ka.-16 is Site Plan dated 04.01.2008 prepared by P.W.-9, S.I. Rakesh Chand regarding place of arrest of accused on 04.01.2008. Same was proved by P.W.-9, S.I. Rakesh Chandra Ext. Ka.-17 is Site Plan regarding place of recovery of country made gun, which was recovered on pointing of accused. Same was proved by P.W.-9, S.I. Rakesh Chandra.
Ext. Ka.-18 is charge-sheet dated 25.01.2008 submitted by P.W.-10, S. I., Jagdeo Prasad in Case Crime No. 02 of 2008 under Section 25/27 Arms Act. Same was proved by P.W.-10, S.I. Jagdev Prasad..
Ext. Ka.-19 is Order dated 10.03.2008 passed by District Magistrate, Kanpur Dehat according Sanction under Section 39 Arms Act for launching prosecution against accused Subodh Awasthy.
Ext. Ka.-20 is Report of Forensic Science Laboratory dated 01.02.2008.
Ext. Ka.-21 is Report of Forensic Science Laboratory dated 23.02.2008.
Ext. Ka.-22 is application dated 13.12.2007 submitted by P.W.-1, Dinesh Chandra Awasthy at P.S.-Shivli, District-Kanpur Dehat regarding death of Sanjay Awasthy. Same was proved by P.W.-1, Dinesh Chandra Awasthy.
27. The country made pistol (Katta) recovered on pointing of accused, was also relied upon by prosecution and was marked as Material Ext.-1.
28. P.W.-1, Dinesh Chandra Awasthy is first informant and also brother of deceased. This witness in his statement in chief alleges himself to be an eye-witness of the occurrence and has supported prosecution story.
29. P.W.-2, Babu Ram is father of deceased. According to this witness, he has seen the occurrence, which took place in front of his house. He has also tried to support prosecution case in his statement in chief.
30. P.W.-3, Dr. Bipul Ram conducted autopsy on body of deceased. He has proved postmortem report dated 01.01.2008 (Ext. Ka.-2). According to this witness, cause of death of deceased was ante-mortem fire arm injury sustained by him. At the time of autopsy, this witness recovered a bullet from body of deceased, which was sent to Forensic Science Laboratory for examination. In the opinion of this witness, injury found on body of deceased could have been caused by firearm.
31. P.W.-4, Head Constable, Munesh Shankar Dwivedi was posted as Head Constable at P.S.-Shivli, Kanpur Dehat, on the date of occurrence. He entered written report dated 31.12.2007 (Ext. Ka.-1) in General Diary and thereafter, prepared check F.I.R. dated 31.12.2007 registered as Case Crime No. 221 of 2007 under Section 302 I.P.C. He also prepared check F.I.R. dated 02.01.2008 registered as Case Crime No. 02 of 2008 under Sections 25/27 Arms Act. This witness has proved check F.I.R. (Ext. Ka.-3), Carbon Copy of G.D. pertaining to entry of written report dated 02.01.2008 (Ext. Ka.-4) and also amended copy of G.D. (Ext. Ka.-5). This witness was cross-examined by defence but he remained firm.
32. P.W.-5, SSI Ashok Kumar Singh was posted at P.S.-Shivli, District-Kanpur Dehat. On 02.01.2008, this witness headed the police team which went out to arrest accused-Subodh Awasthy. At around 3.40 P.M. this witness arrested accused-Subodh Awasthy. On the pointing of accused, this witness recovered the country made pistol (Katta), used in the commission of crime, from a place near the Mazar. He accordingly prepared recovery memo of weapon alleged to have been used in commission of crime. This witness has proved the recovery i.e. Material Ext. -1 which is country made pistol of .315 bore.
33. P.W.-6, Constable Moharir 558, Pradeep Kumar Tiwari was posted as Head Constable at P.S.-Shivli, District-Kanpur Dehat. On 02.01.2008, this witness prepared Check F.I.R. registered as Case Crime No.02 of 2008 under Section 25/27 Arms Act, P.S.-Shivli, District- Kanpur Dehat. He proved original F.I.R. dated 02.08.2008 and accordingly, same was marked as Ext. Ka.-6. He further proved G.D. Entry No. 38 timing 18:30 hours by producing carbon copy as well as Original G.D. Carbon Copy of G.D. Entry No. 38 was accordingly marked as Ext. Ka.-7. This witness was cross-examined but prosecution failed to dislodge his testimony.
34. P.W.-7, S.I. Rudra Pal Singh was posted as SSI, P.S.-Swaroop Nagar, District-Kanpur Nagar on 01.01.2008. This witness had got conducted the panchayatnama/inquest of deceased Sanjay Awasthy at Hallet Hospital, Kanpur Nagar on 01.01.2008. After completion of panchayatnama/inquest of deceased, he prepared panchayatnama/inquest report of deceased dated 01.01.2008. He proved the same and accordingly, panchayatnama/inquest report was marked as Ext. Ka.-8. Upon completion of aforesaid exercise, this witness prepared detailed police scroll i.e. letter to C.M.O. with a request to conduct postmortem of body of deceased, Specimen Seal, Photograph of dead body, Police Form No.33. He proved aforesaid documents and accordingly, they were exibited as Ext. Ka.-9, Ext. Ka.-10, Ext. Ka.-11, Ext. Ka.12. This witness was cross-examined. A suggestion was made to him doubting the proceedings of inquest. However, this witness remained firm and categorically stated that inquest was conducted on information received from ward body of Hallet Hospital, Kanpur Nagar. Further, none of the Panches disclosed to this witness as to who committed the crime or how and when the occurrence took place. This witness has also stated that he did not receive any F.I.R., which explains the absence of detail regarding Case Crime No. 221 of 2007 in the inquest report. Consequently, this witness could not be dislodged by prosecution.
35. P.W.-8, S.I. Subh Suchit was posted as Sub-Inspector at P.S.-Shivli, District-Kanpur Dehat on 31.12.2007. This witness was nominated as Investigating Officer and accordingly, he took up investigation of Case Crime No. 221 of 2007 under Section 307 I.P.C. P.S.-Shivli, District-Kanpur Dehat. This witness in his statement in chief has stated that on 31.12.2007, he entered the written report and the F.I.R. in Case Diary. On 01.01.2008, he added Section 302 I.P.C. in above-mentioned case crime number by making necessary endorsement in the case diary. On the pointing of first informant, he inspected place of occurrence and prepared site plan himself under his signature on 01.01.2008. He proved Site Plan dated 02.01.2008, which was accordingly marked as Ext. Ka.-13. On same day i.e. 02.01.2008, this witness arrested accused. On pointing of accused, this witness recovered country made pistol (Katta) used in commission of crime and accordingly, prepared a recovery memo of same. He proved recovery memo dated 02.01.2008 and accordingly, same was exhibited as Ext. Ka.-14. On 02.01.2008 entry regarding aforesaid fact was got made in G.D. and thereafter, this witness incorporated the same in Case Diary. On 02.01.2008, this witness lodged an F.I.R. against accused-Subodh Awasthy, which was registered as Case Crime No. 02 of 2008 under Sections 25/27 Arms Act, P.S.-Shivli, District-Kanpur Dehat. This witness has further stated that on 06.01.2008, he recorded statement of Babu Ram Awasthy, father of deceased. On 07.01.2008, this witness received panchayatnama/inquest report and postmortem report of deceased. On 10.01.2008, this witness recorded the statement of Bitti, sister of deceased and other witnesses. On 11.01.2008, this witness recorded statement of another named accused, namely, Naresh @ Jhallar Shukla. On 13.01.2008, this witness recorded statements of Panch Witnesses. On 16.01.2008, this witness obtained remand of accused and on 18.01.2008, this witness recorded statements of remaining Panch witnesses and also statement of Police Sub-Inspector, namely, Rudra Pal Singh, who got the postmortem conducted and also the statement of Constable Dharam Pal. On 03.02.2008, this witness recorded statements of witnesses Vinod Kumar and Constable Rajendra Singh. He submitted charge-sheet dated 15.02.2008 and proved the same. Accordingly, same was exhibited as Ext. Ka.-15. This witness was cross-examined by defence. In his cross-examination, this witness has stated that information regarding the occurrence was received by him at about 8.45 PM on R.T. Set, when he was away from police-station. According to this witness, upon receipt of aforesaid information, he proceeded to village Aunaha, the place of occurrence. On way to Village-Aunaha, he met family members of injured, who was being carried by his family members. This witness further states that he had himself seen the injured with his eyes and had instructed his family members to go to police-station and lodge an F.I.R. He further states that prior to lodging of F.I.R., there is no information entered at P.S.-Shivli, District-Kanpur Dehat regarding firing having taken place. This witness also states that he did not make an entry in G.D. regarding information received by him that was transmitted through R.T. Set. This witness further states that when he reached village at around 9.00PM, he did not meet any family member of deceased. Injured was carried to Hospital by father, sister and other villagers, whom he had met while coming to village Aunaha. This witness stayed at place of occurrence the whole night but did not meet any person, who was residing near place of occurrence. This witness further states that it was a dark night but there was no necessity of light for him. He stayed near place of occurrence in village the whole night. According to this witness, even upon inspection of place of occurrence, he could not locate any such circumstance denoting happening of occurrence as alleged. This witness has also stated that he did not find any blood on spot. He has also stated that he did not notice any blood on clothes of family members of injured. During course of investigation this witness could not ascertain ownership as well as Registration Number of Jeep on which injured was taken. This witness has not explained the absence of Majroobi Chitthi even when injured is alleged to be taken to Police-Station first and then to Hallet Hospital. This witness was cross-examined by prosecution but his testimony does not corroborate the prosecution story.
36. P.W.-9, S.I. Rakesh Chandra was posted as Sub-Inspector at P.S.-Shivli, District-Kanpur Dehat on 03.01.2008. This witness was entrusted with investigation of Case Crime No. 02 of 2008 under Sections 25/27 Arms Act, P.S.-Shivli, District-Kanpur Dehat. This witness during course of investigation, inspected place of recovery from-where weapon i.e. country made pistol (Katta) used in commission of crime was recovered. He also prepared a site plan of the same. He duly proved inspection-memo as well as Site-Plan prepared by him which were exhibited as Exts. Ka.-16 and Ka.-17. This witness was cross-examined by defence but nothing adverse to prosecution case could be culled out from him. This witness was further recalled. However, even on further cross-examination this witness remained firm.
37. P.W.-10, S.I. Jagdeo Prasad was posted as Sub-Inspector on 18.01.2008. He was nominated as Investigating Officer of Case Crime No. 02 of 2008 under Sections 25/27 Arms Act. Upon completion of investigation of aforesaid Case Crime Number, this witness prepared charge-sheet dated 25.01.2008 and submitted same before Court. The charge-sheet was proved by him and accordingly, same was marked as Ext. Ka.-18. This witness was also cross-examined by defence but he remained firm.
38. After prosecution witnesses were examined, all the incriminating material and circumstances were disclosed to accused to have his version of occurrence as per the mandate of Section 313 Cr.P.C. Accused denied the questions put to him one by one by repeatedly saying that either it is false or it has been engineered maliciously. However, in reply to the last question, accused stated that he is innocent and occurrence has taken place out side the village.
39. Prosecution pleaded before court-below that there is no delay in lodging F.I.R. inasmuch as occurrence has taken place at 8.30PM and F.I.R. had been lodged at 9.25PM. Accused has not been falsely implicated. First informant has alleged that it is accused alone who caused gun shot injury on deceased and all prosecution witnesses have been consistent in narrating the aforesaid story. Had it been a case of false prosecution, then other family members of accused could also have been nominated in F.I.R. Naresh @ Jhallar Shukla was nominated as an accused in F.I.R. on account of his presence near place of occurrence. However, no criminality was conducted by him, therefore, no role was assigned to him in commission of offence. Police upon investigation excluded his name in charge-sheet. Prosecution did not file any application under Section 319 Cr.P.C. to summon aforesaid accused. There is no dispute regarding place of occurrence as same has taken place near house of first informant. Even if place of occurrence has not specifically been specified in F.I.R. same will not make much difference. Panchayatnama/Inquest of deceased was got conducted by Police of Swaroop Nagar. But, that by itself will not make any difference as Panchayatnama/Inquest report and postmortem report have duly been proved in evidence and exhibited. There is only one firearm injury on body of deceased caused by accused himself. As such, there can be no doubt regarding manner of occurrence. Accused was arrested two days after occurrence and on his pointing out, weapon used in commission of crime, i.e. country made pistol (Katta) was got recovered. Failure to recover any empty cartridge from place of occurrence will not make any dent in prosecution case. Testimony of P.W.-1, Dinesh Chandra Awasthy, first informant/ brother of deceased and P.W.-2, Babu Ram Awasthy cannot be discarded on grounds that they are brother and father of deceased. Testimony of even one eye-witness is sufficient to convict an accused. No benefit can be derived by defence from FSL report dated 23.02.2008 (Ext. Ka.-21). Occurrence is of night and therefore, it is not necessary that blood might have fallen on the ground. It may also be possible that winter clothing worn by deceased may have absorbed blood, which explains absence of blood on spot. Failure to mention source of light in F.I.R. will not make any difference as deceased and accused are neighbours residing in same village and therefore, well known to each other. Absence of Majroobi Chitthi on record, will not weaken prosecution case as there is clear recital in Ext. Ka.-4 that Majroobi Chitthi was handed over to Constable Raj Bali and S.I., Rakesh Chandra. If same has been misplaced by aforesaid two police personnel, prosecution cannot be made to suffer on account of their laxity. If there is defect in investigation, same cannot be a ground for acquittal of accused. Even though it is alleged that deceased was a man of criminal antecedents but no certified copy of F.I.R. or charge-sheet against deceased has been filed to substantiate aforesaid. There is strong motive for commission of crime as there is previous enmity and suspicion in mind of accused that deceased has stolen battery of his tractor. Absence of any independent witness at time and place of occurrence is attributable to the fact that occurrence took place at around 8.30PM on a cold winter night. Even if there are minor contradictions in statements of eye-witnesses yet prosecution case cannot be termed improbable or doubtful on that ground. No videography of occurrence is possible. Therefore, merely on basis of minor contradictions in testimony of prosecution witnesses, it cannot be said that accused has been falsely implicated. Lastly, it was urged that accused himself has not given any evidence to prove his innocence.
40. On behalf of accused, it was pleaded before Court-below that place of occurrence is not definite. The prosecution witnesses of fact as well as Investigating Officer have pointed place of occurrence differently. As such, prosecution case is doubtful. It was next contended that P.W.-1, Dinesh Chandra Awasthy is not an eye-witness as he was not present at the place of occurrence. This witness has not seen the occurrence but he arrived only after receiving information regarding happening of occurrence. This witness has falsely implicated accused on account of enmity. As such, F.I.R. is false. P.W.-2, Babu Ram was also not present on spot as such he did not witness the occurrence. It was also contended that deceased Sanjay Awasthy was a man of criminal antecedents and therefore, he had enmity with large number of people. As such, deceased might have been killed by some unknown person at an unknown place. Defence in support of its case also pleaded that there is clear contradiction in testimony of P.W- 1 and P.W.-2. As such, they cannot be treated as reliable and independent witnesses. They are the brother and father of deceased and have deposed as interested witnesses. In continuation of its defence, it was urged on behalf of defence that there is no motive behind alleged occurrence. In absence of any strong motive or otherwise, it is impossible to believe that a man will commit ghastly act of murder. Pointing out to loopholes in prosecution case, it was urged that according to prosecution injured was first brought to P.S.-Shivli, District-Kanpur Dehat from-where he was taken to Hallet Hospital, Kanpur Nagar. However, there is no Majrubi Chitthi in respect of injured/deceased. Injured Sanjay Awasthy was brought to Hallet Hospital, Kanpur Nagar by S.I. Rakesh Chandra and Constable Raj Bali. Their entry in Hospital was made at 11.55 PM, whereupon Doctor declared that patient has been brought dead. Accordingly, an information was given at P.S.-Swaroop Nagar. Thus, deceased was not brought to Hallet Hospital by Dinesh Chandra Awasthy nor any family member of deceased was present at Hallet Hospital. On aforesaid factual premise, it was then urged that deceased Sanjay Awasthy was shot at an unknown place and from that place, S.I. Rakesh Chandra and Constable Raj Bali recovered the injured and brought him to Hallet Hospital. Pointing out deficiencies in investigation, it was submitted by defence that the inquest and postmortem of the deceased were got conducted by Police of Swaroop Nagar whereas F.I.R. had already been registered at P.S.-Shivli, District-Kanpur Dehat for which there is no explanation. In continuation of aforesaid, it was also urged that Investigating Officer did not investigate S.I. Rakesh Chandra and Constable Raj Bali. As such, without collecting sufficient evidence, Investigating Officer submitted charge-sheet against accused. Pointing out the inherent fallacy in prosecution case, it was also urged that no independent and impartial witness has been adduced by prosecution. The occurrence is of night and there is no mention of source of light at the time and place of occurrence. The F.I.R. has been lodged after panchayatnama/inquest had taken place. Upon investigation, the presence of another named co-accused namely Jhallar Shukla was found to be false and therefore his name was excluded in the charge-sheet which makes the prosecution story doubtful. As per FSL report (Ext. Ka.-21), bullet recovered from body of deceased was not fired from weapon recovered at pointing of accused. The investigation of case under Section 25 Arms Act is fallible and on that basis, accused cannot be held guilty. There is no independent witness of recovery of country made pistol on the alleged pointing of accused. Accused has been falsely implicated as there was previous litigation between the parties as they were challanned under Section 151 Cr.P.C. There is no recovery of blood from spot i.e. place of occurrence, and therefore, Investigating Officer has not recovered ordinary earth or earth mixed with blood from spot. The statements of witnesses as given in Court are contradictory to their statements recorded under Section 161 Cr.P.C. Prosecution has failed to prove its case beyond doubt. Motive behind occurrence is theft of battery of tractor belonging to accused but there is no investigation in that regard. Brother of deceased never went to Police-Station, as such F.I.R. is ante-timed.
41. None of the arguments advanced on behalf of accused were found cogent enough by Court below to disbelieve prosecution case. To the contrary Court-below disbelieved the defence put forward by accused. The two prosecution witnesses of fact who claim themselves to be eye witnesses of occurrence were held to be credible and reliable. Their presence at the time and place of occurrence was not doubted by Court below. As such, their testimony was relied upon. There was no such circumstantial evidence to out weight ocular version. Accordingly, Court-below by means of impugned judgement and order convicted appellant for offences punishable under Section 302 I.P.C. and also under Section 25/27 of Arms Act. Feeling aggrieved by conviction awarded by court below, accused-appellant has now approached this Court by means of present Criminal Appeal.
42. Mr. Kamal Krishana, learned Senior Counsel in challenge to the conviction awarded by Court-below to appellant has pointed out the following circumstances, which according to him when considered cumulatively have the effect of making the prosecution case wholly doubtful. According to learned Senior Counsel aforesaid circumstances fall in the category of such circumstances which are adverse to the prosecution case and therefore, prosecution was duty bound to explain the same. The prosecution has miserably failed to do so.
Adverse Circumstances:
43. P.W.-1, Dinesh Chandra Awasthy is brother of deceased and P.W.-2 Babu Ram is father of deceased. As per prosecution story they are inimical and their evidence is partisan in nature. P.W.-1 in his examination-in-chief does not state that he has seen the incident. P.W.-2 Babu Ram also does not state in his examination-in-chief that P.W.-1 has seen the incident. P.W.-1 Dinesh Chandra Awasthy, who is the informant of the case, has admitted that except P.W.-2 Babu Ram and his sister Smt. Bitti, no one else has seen the incident. This part of cross-examination of P.W.-2, Babu Ram Awasthy, therefore leaves no room to believe that P.W.-1 has seen the incident.
44. P.W.-1 has admitted in clear terms (at page 20 of paper-book in fourth paragraph) that incident has taken place in front of iron gate of his house. A perusal of site plan (at page 91 of paper-book) will go to show that incident has taken place at the points X and Z, which have been shown in front of house of first informant. Distance between points X and Z is only 40 steps from place of occurrence. Thus evidence of P.W.1 stands contradicted by site plan, which has been prepared at instance of P.W.-1, who is informant of present case.
45. No blood nor any empties were recovered by Investigating Officer from place of occurrence.
46. Investigating Officer, P.W.-8, S.I. Shubh Suchit has admitted in clear terms (at page 41 of paper-book) that he inspected place of occurrence but he did not notice any sign, which is suggestive of the fact that occurrence as alleged has taken place in front of door of house of first informant. It is also noteworthy that Investigating Officer in his testimony (at page 41 of paper book) has stated that he did not find any blood at place of occurrence nor he recovered any blood from place of occurrence.
47. P.W.-2 in his deposition (at page 29 of paper-book) has stated that when deceased was surrounded, P.W.-1 was not present. According to prosecution case, P.W.-2 was present in the village of occurrence namely Aunaha and at no point of time, he went to Kanpur. He thus remained present in village Aunaha throughout night. In this connection, it is relevant to point out that P.W.-8, S.I. Shubh Suchit, who is Investigating Officer of present case, has investigated the case for an offence under Section 302 I.P.C. He has admitted in clear terms (at page 41 of his deposition) that when he visited house of first informant soon after occurrence, he did not find any family member of deceased. This important deposition of P.W.-8 goes to show that P.W.-1 and P.W.-2 both were not present at the time and place of incident.
48. According to testimony of P.W.-2 (at page 29 of paper-book) after deceased fell down on open floor of the house i.e. Chabutara, he was made to lie on a hard bed. P.W.-1 does not state these facts in his deposition and therefore, evidence of P.W.-1 and P.W.-2 sharply contradict each other.
49. P.W.-1 has stated (at page 19 of paper-book) that statements of P.W.-2 Babu Ram and Smt. Bitti were recorded soon after registration of F.I.R. on the same day at 11.00P.M whereas Investigating Officer in his deposition (at page 39 of paper-book) has clearly stated that statement of Babu Ram was recorded on 06.01.2008 and statement of Smt. Bitti was recorded on 10.01.2008 in terms of Section 161 Cr.P.C. Aforesaid is suggestive of the fact that P.W.-1 was not present at time of incident. It is also important to mention that P.W.-1 in his testimony (at page 19 of paper-book) has stated that his statement was not recorded on date of incident whereas Investigating Officer, S.I. Shubh Suchit, P.W.-8 has admitted in first paragraph of his deposition that statement of first informant was recorded on date of incident itself and site plan was prepared at instance of P.W.-1.
50. P.W.-1 and P.W.-2 both were cross-examined and suggestion was made by defence that deceased was involved in number of criminal cases. Both witnesses have vehemently denied suggestion so made, which is evident from their testimony (at pages 21 and 25 of paper book). However, P.W.-8, S.I. Shubh Suchit, Investigating Officer in his testimony (at page 42 of paper-book) has admitted in clear terms that number of applications were given by villagers on several dates addressed to Senior Police Officers and High Ups that deceased had committed rape upon numerous ladies of the village. In this connection Investigating Officer has clearly mentioned (at page 42 of paper-book) that in Case Crime No. 804 of 2008, papers have been filed by villagers making accusation against deceased and Investigating Officer has taken out those papers of Case Crime No. 804 of 2008, which are at Serial No. 38 to 47.
51. According to prosecution case, immediately after incident took place, injured Sanjay Awasthy was picked up by first informant and other witnesses but no blood stained clothes of P.W.-1, Dinesh Chandra Awasthy were given to Investigating Officer, which is suggestive of the fact that P.W.-1 has not seen the incident.
52. As per prosecution case, immediately after incident, injured was taken to Police Station on a Marshal Jeep and P.W.-1, Dinesh Chandra Awasthy, brother of injured, lodged a report on 31.12.2007 at 09: P.M., at Police Station Shivli. Thereafter he proceeded on a Jeep to Hallet Hospital Kanpur Nagar but injured died on the way. However, paper no. 28 Ka/13 issued by Hallet Hospital shows that deceased was brought dead to Hallet Hospital by S.I. Rakesh Chandra and Constable Raj Bali on 31.12.2007 at 11:55 P.M. Accordingly information was given by ward boy of Hallet Hospital to Police Station Swroop Nagar for holding inquest. P.W.-1 has clearly admitted in his testimony in clear terms that he does not remember names of Police personnel who took injured to Hallet Hospital, Kanpur Nagar.
53. P.W.-1, Dinesh Chandra Awasthy in his deposition has not stated at all as to how deceased reached Hallet Hospital at Kanpur Nagar. In view of specific documentary evidence that deceased was taken to Hallet Hospital vide paper no. 28Ka/13, presence of P.W.-1 at the place of incident is completely ousted.
54. According to case of prosecution, P.W.-1 went to Police Station Shivli alongwith written report. P.W.-1 has nowhere stated in his deposition that after registration of F.I.R. a free copy of same was handed over to P.W.-1. It is also relevant to point out that P.W.-4 Head Moharrir, Munesh Shanker Dwivedi has not stated in his deposition (at page 42 of paper-book) that copy of F.I.R. was handed over to first informant.
55. In check F.I.R. there is a column that if copy of F.I.R. is handed over to first informant then it is duty of Head Moharriar to take signature of first informant on Check F.IR. At the time of cross-examination of P.W.-4, Head Moharrir, Munesh Shanker Dwivedi, was specifically questioned regarding above and he has admitted in clear terms that he did not take signatures of first informant on Check F.I.R.
56. In Check F.I.R. there is no mention as to when copy of Special Report was sent to Magistrate as required under Section 157 Cr.P.C.
57. Section 154 (2) stipulates that a free copy should be handed over to first informant after registration of F.I.R. But aforesaid provision has been blatantly violated in present case.
58. The case was registered under Section 307 I.P. C. as Case Crime No. 331/2007 at Police Station Shivli vide Report (Rapat) No. 45 dated 31.12.2007 at 9.25PM. Aforesaid report contains a recital that alongwith first informant his two brothers namely Subhash Chandra and Santosh Kumar were also present at Police Station Shivli at time of registration of F.I.R. In this connection, it is also important to mention that P.W.-1 in his testimony (at page 17 of paper-book) has admitted in clear terms that information regarding incident was given to Santosh, Subhash and other relatives on phone. He met Santosh and Subhash at the mortuary of Hallet Hospital. In aforesaid circumstances, it can not be conceived by any stretch of imagination that Santosh and Subhash were present at the time of registration of F.I.R. In these circumstances, the only inference that can be drawn is that F.I.R. is an ante-timed document.
59. P.W.-4 in his deposition (at page 32 of paper-book) has admitted that he prepared a Chitthi Majrubi, which was given to Constable Raj Bali but same is not available on record.
60. P.W.-8, S.I. Subh Suchit, Investigatin Officer, has admitted in his deposition (at page 41 of paper-book) that he never interrogated S.I. Rakesh Tiwari or constable Rajbali.
61. Prosecution did not adduce S.I. Rakesh Tiwari or Raj Bali nor filed any application for their summoning so that they be examined during course of trial.
62. P.W.-8. S.I. Subh Suchit, Investigating Officer of case has admitted in his testimony (at page 40 of paper-book) that while he was on patrol duty he received information on R.T. Set from Police Station Shivli regarding incident at 8.45 PM. He has categorically stated that upon receiving aforesaid information, he proceeded to Aunaha Village, i.e., place of occurrence and on way he saw injured being carried by his relatives and Villagers. He has further stated that he instructed P.W.-2 Babu Ram that before proceeding to Kanpur he should lodge a report at Police Station Shivli. He has further admitted that up to that time, no F.I.R. was lodged at Police Station Shivli regarding the incident. He has also clearly admitted that information regarding incident flashed on R.T. Set was also not entered in the General Diary of Police Station Shivli.
63. P.W.-8, Subh Suchit, Investigating Officer in his testimony (at page 41 of paper-book) has clearly admitted that he never inquired from Rakesh Tiwari and Rajbali as to where they had taken injured for medical treatment.
64. According to the case of prosecution the deceased was taken in an injured condition at Police Station Shivli on a Marshal Jeep. Head Moharrir Munesh Shanker Dwivedi has admitted at page 33 that General Diary entries of the registration of the F.I.R. namely Ext. Ka.-4 does not contain recital to the effect that the deceased was brought in injured condition to Police Station Shivli by P.W.-1 on a Marshal Jeep.
65. According to the case of the prosecution, a metallic bullet was recovered from body of deceased and same was sent to ballistics to match with country made pistol ( Katta) i.e. weapon of assault, which according to case of prosecution, same was recovered at this pointing out on 02.01.2000 from near 'Mazar'. It is respectfully submitted that report of ballistic dated 23.02.2008 at page 13 would show that same was not fired from country made pistol (Katta), which is allegedly recovered at pointing out of appellant.
66. On the strength of adverse circumstances as detailed above, learned Senior Counsel contends that when aforesaid adverse circumstances are considered cumulatively, they make the prosecution case improbable.
67. According to learned Senior Counsel, case in hand is of direct evidence. Prosecution can succeed only if it is able to establish that eye-witnesses of occurrence are credible and trustworthy. When aforesaid issue is examined in light of adverse circumstances noted above, P.W.-1, first informant/ brother of deceased and P.W.-2, Babu Ram Awasthy, father of deceased cannot be said to be credible or reliable.
68. It is lastly urged by Mr. Kamal Krishana that testimony of P.W.-1 and P.W.-2 has to be considered in the light of proposition as to whether circumstantial evidence belies the prosecution case and therefore, accused appellant is liable to be acquitted of the charges alleged against him.
69. As a corollary to the issues that have been noted herein above, this Court will of necessity has to deal with another issue that is whether a Court of Appeal in criminal matters can reverse the judgement and order passed by Trial Court only if there is an error apparent in the judgement or it can itself re-appraise and re-appreciate the evidence to arrive at an independent conclusion.
70. For the sake of convenience we take up the third issue first.
71. A Division Bench of this Court in Saghir and others Vs. State of U.P., 2018 (4) ADJ 286 (DB) while considering nature and scope of jurisdiction exercised by Court of Criminal Appeal, has observed as follows in paragraphs, 31 to 40 and 42:
"31. To begin with, in the case of Rama and Others Vs. State of Rajasthan, as reported in 2002 (4) SCC 571, the Apex Court has observed as follows in paragraph 4 of the judgement:-
"4. The impugned judgment has been challenged on the sole ground that the High Court has not disposed of the appeal in the manner postulated under law inasmuch as it does not appear from the impugned judgment as to how many witnesses were examined on behalf of the prosecution and on what point. The High Court has not even referred to any evidence much less considered the same. In our view, it is a novel method of disposal of criminal appeal against conviction by simply saying that after re-appreciation of the evidence and re-scrutiny of the records, the Court did not find any error apparent in the finding of the trial court even without reappraising the evidence. In our view, the procedure adopted by the High Court is unknown to law. It is well settled that in a criminal appeal, a duty is enjoined upon the appellate court to reappraise the evidence itself and it cannot proceed to dispose of the appeal upon appraisal of evidence by the trial court alone especially when the appeal has been already admitted and placed for final hearing. Upholding such a procedure would amount to negation of valuable right of appeal of an accused which cannot be permitted under law. Thus, we are of the view that on this ground alone, the impugned order is fit to be set aside and the matter remitted to the High Court."
32. Similarly, in para 3 of the judgement in the case of Mohd. Shahid Vs. State of Madhya Pradesh, as reported in 2002 (9) SCC 731, the Apex Court has made the following observations:-
"3. This appeal is directed against the judgment of the Division Bench of the Madhya Pradesh High Court disposing of a criminal appeal and affirming the conviction and sentence recorded by the Sessions Judge. The appellant stood charged under Section 302 for having given knife-blow on the abdomen and chest of the deceased. There were as many as 4 eyewitnesses PWs 5, 8, 10 and 11. The learned Sessions Judge relying upon the evidence convicted the accused-appellant under Section 302 and sentenced him to imprisonment for life. On an appeal being carried, the Appellate Authority, instead of examining and reappreciating the evidence of all these eyewitnesses, disposed of the matter by holding that it is not necessary to give detailed reasons as the Court agrees with the conclusion of the trial Judge in convicting and sentencing the accused-appellant. This, in our view, cannot be held to be a consideration of the evidence by an appellate court in a criminal appeal. We, therefore, set aside the impugned judgment and sentence and remit the criminal appeal to the High Court for redisposal in accordance with law. The appeal being an old one, the High Court would do well in disposing of the same at an early date."
33. In Badam Singh Vs. State of M.P., as reported in 2003 (12) SCC 792, the Apex Court in paragraph 16 of the judgement has issued the following caution to a Court of Appeal:-
"16. The learned Sessions Judge after considering the evidence on record and accepting the evidence of the eye witnesses found the appellant guilty of the offence under Section 302 I.P.C. and sentenced him to imprisonment for life. The High Court by its impugned judgment dismissed the appeal preferred by the appellant. We have perused the impugned judgment of the High Court. The High Court which was the first Court of Appeal did not even carefully appreciate the facts of the case. It mentions that the FIR was lodged by PWs-5 and 6 whereas the fact is that the FIR was lodged by PW-4, the Forest Officer. Without subjecting the evidence on record to a critical scrutiny, the High Court was content with saying that the three eye witnesses having deposed against the appellant, the prosecution had proved its case beyond reasonable doubt. In our view, the High Court has not approached the evidence in the manner it should have done being the first Court of Appeal. The mere fact that the witnesses are consistent in what they say is not a sure guarantee of their truthfulness. The witnesses are subjected to cross-examination to bring out facts which may persuade a Court to hold, that though consistent, their evidence is not acceptable for any other reason. If the Court comes to the conclusion that the conduct of the witnesses is such that it renders the case of the prosecution doubtful or incredible, or that their presence at the place of occurrence as eye witnesses is suspect, the Court may reject their evidence. That is why it is necessary for the High Court to critically scrutinize the evidence in some detail, it being the final court of fact. We have therefore gone through the entire evidence on record with the assistance of counsel for the parties."
34. The sum total of the aforesaid observations of the Apex Court lead to the inescapable conclusion that the High Court while hearing a criminal appeal is the last court of fact. As such, the High Court cannot decide a criminal appeal in a casual and cryptic manner. The High Court has to itself examine the evidence and scrutinize the testimony of the witnesses relied upon by the prosecution with caution and then come to a definite conclusion.
35. In the case of State of Uttar Pradesh Vs. Krishna Master and Others, as reported in 2010 (12) SCC 324, the Apex Court has cautioned the court of appeal in the matter relating to the reappraisal and reappreciation of evidence of a witness in the following words contained in paragraph 16 of the judgement, which is extracted herein below:-
"16. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of the 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 the reasons are weighty and formidable, it would not be proper for the appellate court to reject the evidence on the ground of variations or infirmities in the matter of trivial details. Minor omissions in the police statements are never considered to be fatal. The statements given by the witnesses before the Police are meant to be brief statements and could not take place of evidence in the court. Small/trivial omissions would not justify a finding by court that the witnesses concerned are liars. The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a short-coming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it."
36. This brings us to the issue relating to the appreciation of evidence by the appellate court as decided by the Apex Court in the Case of State of Uttar Pradesh Vs. Krishna Master and Others, as reported in 2010 (12) SCC 324. Paragraphs 15, 16, 17, 24 of the aforesaid judgement clearly deal with the manner in which the evidence of the eye-witnesses is to be evaluated in a criminal case. Paragraphs 15, 16, 17 and 24 are reproduced herein below:-
15. Before appreciating evidence of the witnesses examined in the case, it would be instructive to refer to the criteria for appreciation of oral evidence. While appreciating the evidence of a witness, the approach must be whether the evidence of witness read as a whole appears to have a ring of truth. Once that impression is found, it is undoubtedly necessary for the Court to scrutinize 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 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.
16. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of the 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 the reasons are weighty and formidable, it would not be proper for the appellate court to reject the evidence on the ground of variations or infirmities in the matter of trivial details. Minor omissions in the police statements are never considered to be fatal. The statements given by the witnesses before the Police are meant to be brief statements and could not take place of evidence in the court. Small/trivial omissions would not justify a finding by court that the witnesses concerned are liars. The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a short-coming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it.
17. In the deposition of witnesses, there are always normal discrepancies, howsoever, honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, shock and horror at the time of occurrence and threat to the life. It is not unoften that improvements in earlier version are made at the trial in order to give a boost to the prosecution case albeit foolishly. Therefore, it is the duty of the Court to separate falsehood from the truth. In sifting the evidence, the Court has to attempt to separate the chaff from the grains in every case and this attempt cannot be abandoned on the ground that the case is baffling unless the evidence is really so confusing or conflicting that the process cannot reasonably be carried out. In the light of these principles, this Court will have to determine whether the evidence of eye-witnesses examined in this case proves the prosecution case.
24. The basic principle of appreciation of evidence of a rustic witness who is not educated and comes from a poor strata of society is that the evidence of such a witness should be appreciated as a whole. The rustic witness as compared to an educated witness is not expected to remember every small detail of the incident and the manner in which the incident had happened more particularly when his evidence is recorded after a lapse of time. Further, a witness is bound to face shock of the untimely death of his near relative(s). Therefore, the court must keep in mind all these relevant factors while appreciating evidence of a rustic witness."
37. In the case in hand, there is the eye witness account of P.W. 1 and P.W. 2 which not only describes the occurrence but also the manner of assault. Apart from the above, there is also on record the post-mortem report given by the doctor (Ext. Ka-10). How the medical evidence and the ocular version have to be weighed in a criminal case, has been carefully dealt with by the Apex Court in the Case of Ram Bali Vs. State of U.P. as reported in 2004 (10) SCC 598. Paragraphs 10 and 11 of the aforesaid judgement deal with the issue referred to above. As such, the same are quoted herein below:-
"10. Even otherwise, the plea that the medical evidence is contrary to the ocular evidence has also no substance. It is merely based on the purported opinion expressed by an author. Hypothetical answers given to hypothetical questions, and mere hypothetical and abstract opinions by textbook writers, on assumed facts, cannot dilute evidentiary value of ocular evidence if it is credible and cogent. The time taken normally for digesting of food would also depend upon the quality and quantity of food as well, besides others. It was required to be factually proved as to the quantum of food that was taken, atmospheric conditions and such other relevant factors to throw doubt about the correctness of time of occurrence as stated by the witnesses. Only when the ocular evidence is wholly inconsistent with the medical evidence the Court has to consider the effect thereof. This Court in Pattipati Venkaiah v. State of Andhra Pradesh (AIR 1985 SC 1715) observed that medical science is not yet so perfect as to determine the exact time of death nor can the same be determined in a computerized or mathematical fashion so as to be accurate to the last second. The state of the contents of the stomach found at the time of medical examination is not a safe guide for determining the time of occurrence because that would be a matter of speculation, in the absence of reliable evidence on the question as to when exactly the deceased had his last meal and what that meal consisted of. In Nihal Singh and Ors. v. State of Punjab (AIR 1965 SC 26), it was indicated that the time required for digestion may depend upon the nature of the food. The time also varies according to the digestive capacity. The process of digestion is not uniform and varies from individual to individual and the health of a person at a particular time and so many other varying factors.
11. Factors were also noted by HWV Cox in his book referred to by learned counsel for the appellant. (See Seventh Edition, at pages 300 to 302). An author's view which is opinion based on certain basic assumptions only cannot be a substitute for evidence let in to prove a fact - which invariably depends upon varied facts, and according to the peculiar nature of a particular case on hand. The only inevitable conclusion is that the plea is without any substance, apart from the fact that the said plea pertaining to mere appreciation of facts was not raised before the High Court."
38. Section 145 of the Indian Evidence Act deals with the contradictions in the statement of the witness. The issue as to whether a witness can be contradicted by referring to the testimony of the other witness or by referring to his own previous statement, has been considered in the case of Mohan Lal Ganga Ram Gehani Vs. State of Maharashtra, reported in 1982 (1) SCC 700 which has been followed in the case of Chaudhri Ramjibhai Narsanghbhai Vs. State of Gujarat and Others, reported in 2004 (1) SCC 184. Paragraph 11 of the aforesaid judgement is relevant for the issue in hand. Accordingly, the same is reproduced herein below:-
"11.Coming to the plea that the contradictions noticed by the trial Court were ocular vis-a-vis the medical evidence, we find on reading of the judgment it is not to be so, Section 145 of the Indian Evidence Act, 1872 (in short the " Evidence Act") applies when same person makes two contradictory statements. It is not permissible in law to draw adverse inference because of alleged contradictions between one prosecution witness vis-a-vis statement of other witnesses. It is not open to Court to completely demolish evidence of one witness by referring to the evidence of other witnesses. Witnesses can only be contradicted in terms of Section 145 of the Evidence Act by his own previous statement and not with the statement of any other witness. See Mohanlal Gangaram Gehani v. State of Maharashtra, AIR (1982) SC 839. As was held in the said case, Section 145 applies only to cases where the same person makes two contradictory statements either in different proceedings or in two different stages of a proceeding. If the maker of a statement is sought to be contradicted, his attention should be drawn to his previous statement under Section 145 of the Evidence Act only. Section 145 has no application where a witness is sought to be contradicted not by his own statement but by the statement of another witness."
39. However, testimony of a witness can be assessed with the testimony of another to find out if there is any disparity in between the same for arriving at the conclusion as to whether the witness is reliable and credible or not.
40. Admittedly, P.W. 1 and P.W. 2 are related witnesses as P.W. 1 is the elder brother of the deceased whereas, P.W. 2 Smt. Kubra is the widow of the deceased. There is no other eye-witness of the occurrence. As such, the evidence of such witnesses has to be examined with caution and circumspection as held by the Apex Court in the case of Shyam Sunder Vs. State of Chhattisgarh, as reported in 2002 (8) SCC 39. Paragraph 8 of the judgement deals with the issue as stated above and accordingly, the same is extracted herein below:-
"8. The conviction rests on the ocular evidence of Baldau Ram(PW-2) and Punni Bai (PW-6). We have, in the light of the submissions made by the learned Amicus Curiae, carefully examined the testimony of Baldau Ram. It is true that the relationship between this witness and his family members on the one hand and the accused and his family members on the other was strained and criminal litigation was also pending between the two. The testimony,therefore, needs to be subjected to careful scrutiny. Having done so,we are satisfied to hold that Baldau Ram (PW-2) is a witness of truth. The factum of his having gone to his field for performing agricultural operations and engaging labour is something natural to do as he had gone to his field from early morning, at about 5.30 a.m., accompanied by his cattle to be left for grazing in or near the field. At about 7.30a.m., on the arrival of Kamta (PW-4) on the field he was returning to his home. Having been intercepted by the appellant he returned back to his field and told his brother Kamta (PW-4) of what had happened with him. Kamta (PW-4) supports this part of the version. The subsequent part of the story of his having seen the assault on his brother Radhey Shyam and thereafter, that is, his having reached the house of Kartik Ram to save himself from a likely assault by the appellant on him finds support from the testimony of Kartik Ram(PW-3). The fact that Punni Bai (PW-6) has also her field close to the place of the incident has not been disputed by the defence by making any suggestion to the contrary during her cross-examination. She could have seen the assault on Radhey Shyam by Shyam Sunder from her field situated near the place of occurrence. On alarm being raised by Baldau Ram (PW-2), she reached near the place of the incident.
42. Thus the oral testimony of P.W. 1 and P.W. 2, cannot be discarded on the ground that they are related to the deceased Salamat. However, the Court has to adopt a careful approach and analyse the evidence to find out whether it is reliable and credible. If the defence wants that the evidence of related witness should not be believed, it has to lay down a strong factual foundation for the same and if necessary prove by leading impeccable evidence in respect of false implication by evidence."
72. Thus from aforesaid discussion, what is discernible is that High Court while hearing criminal appeal has to independently weigh evidence on record and thereafter, record a finding of guilt or acquittal as the case may be. High Court is not bound by findings recorded by Court below nor appellate jurisdiction of High Court while hearing criminal appeals is circumferenced by findings recorded by court-below.
73. Having outlined the nature and scope of jurisdiction of High Court while deciding criminal appeal, we now take up the first and second issues involved in this appeal together, since both the issues are inter-linked and inter-wined.
74. P.W.-1, Dinesh Chandra Awasthy and P.W.-2, Babu Ram Awasthy have been adduced by prosecution as they are alleged to be eye-witnesses of occurrence. It is well settled that eye-witnesses account can be relied upon only if the witness is credible and his testimony is worthy of trust. Therefore, this Court in order to rely upon testimony of P.W.-1 and P.W.-2 has of necessity to record a finding that P.W.-1 and P.W.-2 are credible and reliable witnesses and therefore, their testimony is worthy of trust.
75. As a corollary to the principle regarding credibility and reliability of witnesses another issue of importance is whether circumstantial evidence belies prosecution case. We shall now deal with the circumstances refer to by learned Senior Counsel appearing for appellant, on the basis of which it is urged that prosecution case is impossible or that circumstantial does corroborate prosecution case.
76. It is basic prosecution case that occurrence took place in front of door of house of deceased. After occurrence had taken place, injured Sanjay Awasthy fell on ground from where he was picked up and laid on hard-bed. Further, it is also case of prosecution that P.W.-1, Dinesh Chandra Awasthy and P.W.-2 Babu Ram Awasthy were present at time and place of occurrence and took deceased to Police-Station Shivli and thereafter, to Hallet Hospital, Kanpur Nagar. It is also the prosecution case that Subhas Chand and Santosh Kumar brothers of P.W.-1, Dinesh Chandra Awasthy were also present at Police-Station Shivli at time of registration of F.I.R.
77. Above mentioned basic prosecution case is therefore to be tested on principle of probability and improbability. To begin with firstly, injured received firearm injury on account of gun shot and fell down on Chabutra. However, no blood was found by Investigating Officer either on the ground where injured fel or on hard-bed where injured was laid after he was picked up from ground. Secondly, no blood stained clothes of any of family members of deceased were recovered by Investigating Officer. Thirdly, no empties were found on spot by Investigating Officer. Fourthly, after occurrence had taken place, injured is alleged to have been taken to P.S. Shivli for lodging of F.I.R. After F.I.R. was lodged it is alleged that injured was taken to Hallet Hospital on a Marshal Jeep. However, neither there is any Majroobi Chitthi of deceased on record. Fifthly, the vehicle number of Marshal Jeep on which deceased is alleged to have been taken to Hallet Hospital was disclosed by P.W.-1 or P.W.-2 nor they have disclosed name of driver of aforesaid said vehicle. Sixthly, the driver of Marshal Jeep was best evidence to prove prosecution case regarding carrying of injured from Village-Aunaha to P.S. Shivli and then to Hallet Hospital, Kanpur Nagar. However, prosecution has deliberately withheld this important independent witness nor has assigned any reason for not adducing him in evidence. Seventhy, driver of Marshal Jeep being an independent witness would have clearly disclosed as to who all accompanied the injured to Police-Station Shivli and then to Hallet Hospital, Kanpur Nagar. But prosecution has refrain from adducing him. Eighthly, According to prosecution case it is alleged that injured was taken to Hallet Hospital by P.W.-1, Dinesh Chandra Awasthy. However, Paper No. 28 Ka-13 shows that injured was brought to Hospital by S.I. Rakesh Chandra and Constable Raj Bali. Ninthly, S. I. Rakesh Chandra and Constable Raj Bali were the best evidence to prove arrival of deceased at Hallet Hospital and further which family member of deceased had accompanied them. However, none of the aforesaid police personnel were examined to explain the correct position. As such prosecution withheld best evidence as to who brought injured at Hallet Hospital. Tenthly, prosecution story that P.W.-1 accompanied injured all the time is also falsified from the fact that F.I.R. was lodged on 31.12.2007 at 9.25 PM. in respect of an occurrence which took place at around 8.30 PM. After lodging of F.I.R. injured was taken to Hallet Hospital. Document Paper No.28 Ka-13 shows that injured was brought dead to Hospital on 31.12.2007 at 11.55 PM. Written information regarding death of injured was submitted by P.W.-1, Dinesh Chandra Awasthy at P.S. Shivli on 31.12.2007 at 11.55PM. Timing of Paper No. 28 Ka-13 as noted above clearly shows that P.W.-1 did not accompany injured to Hallet Hospital Kanpur.
78. When aforesaid circumstantial evidence is weighed in the light of oral testimony of P.W.-1 and P.W.-2 and there being no explanation in the same it cannot be said that prosecution case is probable. On circumstances as noted above, prosecution case to the contrary is improbable. Prosecution has not been able to prove the basic prosecution case it set out to prove. Thus, circumstantial evidence does not support prosecution case.
79. This brings us to the issue as to whether P.W.-1 and P.W.-2 are credible and therefore, worthy of trust.
80. As already noted above, testimony of a family member cannot be discarded merely on ground that he is a family member of deceased. However, in such a situation testimony of such witness has to be examined with care and caution. Object of the Court is to find out that when testimony of such witness is considered as a whole, it has a circle of truth or not.
81. Mr. Kamal Krishana has pointed out various deficiencies in statement of P.W.-1 and P.W.-2 and on that basis he has tried to dislodge the two prosecution witnesses of fact. Whether a witness can be discarded on the basis of evidence of another witness has already been considered by Apex Court in case of Mohan Lal Ganga Ram Gehani (Supra) and Chaudhary Ramji Bhai, Narsangh Bhai (Supra) wherein it has been held that a witness can be contradicted by his own previous statement under Section 145 Cr.P.C.
82. However, there is a corollary to aforesaid principle that testimony of witnesses of fact must prove basic prosecution case and little disparity or contradiction in their testimony are liable to be discarded as being natural. Therefore, what has to be assessed in present case is whether P.W.-1 and P.W.-2 have been consistent in their testimony and whether their testimony proves basic prosecution case.
83. Mr. Kamal Krishna has referred to the following contradictions/ inconsistencies in the testimony of P.W.-1 and P.W.-2. On aforesaid he submits that prosecution witnesses of fact are not credible and therefore, their testimony is not worthy of trust.
84. P.W.-1, Dinesh Chandra Awasthy is brother of deceased and P.W.-2 Babu Ram is father of deceased. As per prosecution story they are inimical and their evidence is partisan in nature. P.W.-1 in his examination-in-chief does not state that he has seen the incident. P.W.-2 Babu Ram also does not state in his examination-in-chief that P.W.-1 has seen the incident. P.W.-1 Dinesh Chandra Awasthy, who is the informant of the case, has admitted that except P.W.-2 Babu Ram and his sister Smt. Bitti, no one else has seen the incident. This part of cross-examination of P.W.-2, Babu Ram Awasthy, therefore leaves no room to believe that P.W.-1 has seen the incident.
85. P.W.-1 has admitted in clear terms (at page 20 of paper-book in fourth paragraph) that incident has taken place in front of iron gate of his house. A perusal of site plan (at page 91 of paper-book) will go to show that incident has taken place at the points X and Z, which have been shown in front of house of first informant. Distance between points X and Z is only 40 steps from place of occurrence. Thus evidence of P.W.1 stands contradicted by site plan, which has been prepared at instance of P.W.-1, who is informant of present case.
86. P.W.-2 in his deposition (at page 29 of paper-book) has stated that when deceased was surrounded, P.W.-1 was not present. According to prosecution case, P.W.-2 was present in the village of occurrence namely Aunaha and at no point of time, he went to Kanpur. He thus remained present in village Aunaha throughout night. In this connection, it is relevant to point out that P.W.-8, S.I. Shubh Suchit, who is Investigating Officer of present case, has investigated the case for an offence under Section 302 I.P.C. He has admitted in clear terms (at page 41 of his deposition) that when he visited house of first informant soon after occurrence, he did not find any family member of deceased. This important deposition of P.W.-8 goes to show that P.W.-1 and P.W.-2 both were not present at the time and place of incident.
87. According to testimony of P.W.-2 (at page 29 of paper-book) after deceased fell down on open floor of the house i.e. Chabutara, he was made to lie on a hard bed. P.W.-1 does not state these facts in his deposition and therefore, evidence of P.W.-1 and P.W.-2 sharply contradict each other.
88. P.W.-1 has stated (at page 19 of paper-book) that statements of P.W.-2 Babu Ram and Smt. Bitti were recorded soon after registration of F.I.R. on the same day at 11.00P.M whereas Investigating Officer in his deposition (at page 39 of paper-book) has clearly stated that statement of Babu Ram was recorded on 06.01.2008 and statement of Smt. Bitti was recorded on 10.01.2008 in terms of Section 161 Cr.P.C. Aforesaid is suggestive of the fact that P.W.-1 was not present at time of incident. It is also important to mention that P.W.-1 in his testimony (at page 19 of paper-book) has stated that his statement was not recorded on date of incident whereas Investigating Officer, S.I. Shubh Suchit, P.W.-8 has admitted in first paragraph of his deposition that statement of first informant was recorded on date of incident itself and site plan was prepared at instance of P.W.-1.
89. P.W.-1 and P.W.-2 both were cross-examined and suggestion was made by defence that deceased was involved in number of criminal cases. Both witnesses have vehemently denied suggestion so made, which is evident from their testimony (at pages 21 and 25 of paper book). However, P.W.-8, S.I. Shubh Suchit, Investigating Officer in his testimony (at page 42 of paper-book) has admitted in clear terms that number of applications were given by villagers on several dates addressed to Senior Police Officers and High Ups that deceased had committed rape upon numerous ladies of the village. In this connection Investigating Officer has clearly mentioned (at page 42 of paper-book) that in Case Crime No. 804 of 2008, papers have been filed by villagers making accusation against deceased and Investigating Officer has taken out those papers of Case Crime No. 804 of 2008, which are at Serial No. 38 to 47.
90. P.W.-1, Dinesh Chandra Awasthy in his deposition has not stated at all as to how deceased reached Hallet Hospital at Kanpur Nagar. In view of specific documentary evidence that deceased was taken to Hallet Hospital vide paper no. 28Ka/13, presence of P.W.-1 at the place of incident is completely ousted.
91. According to case of prosecution, P.W.-1 went to Police Station Shivli alongwith written report. P.W.-1 has nowhere stated in his deposition that after registration of F.I.R. a free copy of same was handed over to P.W.-1. It is also relevant to point out that P.W.-4 Head Moharrir, Munesh Shanker Dwivedi has not stated in his deposition (at page 42 of paper-book) that copy of F.I.R. was handed over to first informant.
92. The case was registered under Section 307 I.P. C. as Case Crime No. 331/2007 at Police Station Shivli vide Report (Rapat) No. 45 dated 31.12.2007 at 9.25PM. Aforesaid report contains a recital that alongwith first informant his two brothers namely Subhash Chandra and Santosh Kumar were also present at Police Station Shivli at time of registration of F.I.R. In this connection, it is also important to mention that P.W.-1 in his testimony (at page 17 of paper-book) has admitted in clear terms that information regarding incident was given to Santosh, Subhash and other relatives on phone. He met Santosh and Subhash at the mortuary of Hallet Hospital. In aforesaid circumstances, it can not be conceived by any stretch of imagination that Santosh and Subhash were present at the time of registration of F.I.R. In these circumstances, the only inference that can be drawn is that F.I.R. is an ante-timed document.
93. Learned A.G.A. could not point out any infirmity or illegality in aforesaid submissions urged by learned Senior Counsel for appellant. We have ourselves scrutinize the oral testimony of P.W.-1 and P.W.-2 and find that contradictions, inconsistencies and omissions in oral testimonies of prosecution witnesses of fact as alleged are present. In view of aforesaid, this Court has no other option but to discard prosecution witnesses of fact i.e. P.W.-1 and P.W.-2 as incredible. Consequently, their testimonies are not worthy of trust. In view of above the present criminal appeal is liable to succeed. It accordingly succeeds and is allowed. Appellant is acquitted of charges levelled against him. He shall be released forthwith if not wanted in another case.
Order Date :- 16.11.2019
YK
(Rajeev Misra,J.) (Pritinker Diwaker,J.)