Allahabad High Court
Arvind Yadav And Another vs State Of U.P. on 25 February, 2025
Bench: Siddharth, Subhash Chandra Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved on:- 11.12.2024 Delivered on:- 25.02.2025 Neutral Citation No. - 2025:AHC:26763-DB Case :- CRIMINAL APPEAL No. - 4198 of 2010 Appellant :- Arvind Yadav And Another Respondent :- State of U.P. Counsel for Appellant :- Ajat Shatru Pandey,Anshul Tiwari,Ashwini Kumar Ojha,Atharva Dixit,Jitendra Singh,Jitendra Singh Lodhi,Neeraj Srivastava,Nikhil Kumar,Raghuvansh Misra,Vijay Singh Sengar,Vikram Singh Shrivastava Counsel for Respondent :- Amit Misra,Harish Chandra Mishra,Mahesh Chandra Chaturvedi,Pradeep Kumar Mishra,Suresh C. Dwivedi,Vikas Tiwari,Vimlendu Tripathi with Case :- CRIMINAL APPEAL U/S 372 CR.P.C. No. - 689 of 2024 Appellant :- Rajesh Yadav Respondent :- Shishupal Yadav And Others Counsel for Appellant :- Vimlendu Tripathi,Amit Misra,Viresh Misra Counsel for Respondent :- Jitendra Singh,Govt.Advocate with Case :- CRIMINAL APPEAL No. - 4199 of 2010 Appellant :- Shishu Pal Yadav And Others Respondent :- State of U.P. Counsel for Appellant :- Abhishek Mayank,Abhishek Srivastava,Ajai Sengar,Ajat Shatru Pandey,Anshul Tiwari,Ashwini Kumar Ojha,Atharva Dixit,Jitendra Singh,Neeraj Srivastava,Raghuvansh Misra,Vikram Singh Shrivastava Counsel for Respondent :- A.G.A.,Harish Chandra Mishra,Mahesh Chandra Chaturvedi,Suresh C. Dwivedi with Case :- CRIMINAL APPEAL No. - 4242 of 2010 Appellant :- Sumit Yadav Respondent :- State of U.P. Counsel for Appellant :- Abhishek Mayank,Abhishek Srivastava,Ajat Shatru Pandey,Anshul Nigam,Ashok Kumar Nigam,Neeraj Srivastava,Ranjay Kumar,Vijay Singh Sengar Counsel for Respondent :- Harish Chandra Mishra,Mahesh Chandra Chaturvedi,Pradeep Kumar Mishra,Suresh C. Dwivedi,Vikas Tiwari,Vimlendu Tripathi with Case :- CRIMINAL APPEAL No. - 4272 of 2010 Appellant :- Ajab Singh Respondent :- State of U.P. Counsel for Appellant :- Akash Mishra,Vijay Singh Sengar Counsel for Respondent :- Amit Misra,Harish Chandra Mishra,Mahesh Chandra Chaturvedi,Suresh C. Dwivedi with Case :- CRIMINAL APPEAL No. - 4273 of 2010 Appellant :- Ravi Yadav Respondent :- State of U.P. Counsel for Appellant :- Abhishek Mayank,Abhishek Srivastava,Akash Mishra,Vijay Singh Sengar Counsel for Respondent :- Amit Misra,Harish Chandra Mishra,Suresh C. Dwivedi with Case :- CRIMINAL REVISION No. - 3380 of 2010 Revisionist :- Rajesh Yadav Opposite Party :- Shishupal Yadav And Others Counsel for Revisionist :- Amit Misra,Viresh Misra Counsel for Opposite Party :- Ajatshatru Pandey with Case :- GOVERNMENT APPEAL No. - 3794 of 2012 Appellant :- State of U.P. Respondent :- Shishupal Yadav And Others Counsel for Appellant :- G.A.,Harish Chandra Mishra Counsel for Respondent :- Abhishek Mayank,Abhishek Srivastava,Ajatshatru Pandey,Ajay Sengar,Amit Misra,Anil Kumar Yadav with Case :- GOVERNMENT APPEAL No. - 6432 of 2010 Appellant :- State of U.P. Respondent :- Shishupal Yadav And Others Counsel for Appellant :- Harish Chandra,Harish Chandra Mishra Counsel for Respondent :- Abhishek Mayank,Abhishek Srivastava,Ajay Sengar,Anadi Krishna Narayana,Mahesh Chandra Chaturvedi,Suresh C. Dwivedi Hon'ble Siddharth,J.
Hon'ble Subhash Chandra Sharma,J.
(Delivered by Hon'ble Subhash Chandra Sharma,J.)
1. Heard Sri A.K. Ojha, Amicus Curiae, Sri Jitendra Singh, Sri Raghuvansh Misra, Sri Atharva Dixit and Sri Vikram Srivastava, learned counsel for the appellants; Sri Vinay Saran, learned Senior counsel assisted by Sri Vimlendu Tripathi, learned counsel for the informant; Sri Vinay Saran, learned Senior counsel assisted by Sri Vimlendu Tripathi, learned counsel for the revisionist; learned counsel for opposite party; Sri Manish Goyal, learned Additional Advocate General assisted by Sri J.K. Upadhyay, learned A.G.A.-I for the State-appellant; Sri Abhishek Mayank, learned counsel for the respondents & Sri Vimlendu Tripathi, learned counsel for the appellant; Sri Jitendra Singh, learned counsel for respondent nos. 1 to 10; learned A.G.A. for the State and perused the material on record.
2. These criminal appeals, government appeals, appeal under Section 372 Cr.P.C. and criminal revision have been filed against the judgment and order dated 18.05.2010 passed by Special Judge, U.P. Gangsters Act, Jhansi in G.S.T. No. 92 of 2007, G.S.T. No. 108 of 2007 and G.S.T. No. 125 of 2007 under Sections 147, 148, 149, 302, 307, 504, 120-B I.P.C., Section 7 Criminal Law Amendment Act, Section 2/3 of U.P. Gangsters Act and under Section 25, 27 Arms Act arising out of Crime No. 357 of 2007, 389 of 2007 and 643 of 2007, Police Station Kotwali, District Jhansi by which appellant Shishupal Yadav, Sumit Yadav, Shital, Ajab Singh, Lakhan, Arvind Yadav, Ram Pal and Ravi Yadav were convicted for the offences punishable under Section 148 I.P.C. with imprisonment for a period of three years and fine Rs. 2,000/- in default of payment of fine to undergo imprisonment for a period of one month; for the offences under Section 323 read with Section 149 I.P.C. to undergo imprisonment for a period of one year with fine Rs. 1,000/- in default of payment of fine to undergo imprisonment for a period of 15 days; under Section 302 read with Section 149 I.P.C. to undergo imprisonment for life and to pay fine of Rs. 10,000/-, in default of payment of fine imprisonment for a period of five months. Appellant Ravi Yadav was convicted and sentenced under Section 25 Arms Act for a period of five years imprisonment and fine Rs. 5,000/-, in default of payment of fine for a period of two months imprisonment. Appellant Ajab Singh was convicted and sentenced for the offences under Section 25, 27 Arms Act for a period of five years imprisonment and fine Rs. 5,000/-. They were acquitted of the charges under Section 7 Criminal Laws Amendment Act, Section 2/3 of U.P. Gangsters and Anti-social Activities and Prevention Act and the charges under Section 147, 120-B, 304, 305 I.P.C. Accused persons Krishanpal and Yashpal were acquitted.
3. All these appeals and criminal revision being related to the same incident, the same judgment and order are heard and decided together.
4. The facts in brief are that an F.I.R. was lodged on 30.03.2007 at about 17:05 P.M. as Crime No. 357 of 2007 under Sections 147, 148, 149, 307, 302 and 504 I.P.C. and under Section 2/3 of U.P. Gangsters Act and section 7 Criminal Laws Amendment Act on the basis of tehreer by the informant Rajesh Yadav stating that there was police raid at the house of Yashpal Singh resident of his village in which huge quantity of explosive substances and arms were recovered. Yashpal suspected that Ashok Yadav, the cousin of the informant made Mukhbiri to the police on account of which, they felt enmity. On 18.03.2007 at about 5:00 P.M. Yashpal threatened Ashok Yadav in front of his shop that in case he had to go to jail, he would get the whole family killed from the jail. The informant owns a shop of construction material namely Sri Ganesh Associates outside the Bada Gaon gate in which the informant and other members of his family worked for order and supply, adjacent to which there is house of Ashok where he lives with his family. On 30.03.2007 at about 2 'o' clock in the day he and his cousin Arvind, Ragvendra, Ashok, nephew Surendra, Jitendra and Devendra resident of village Meri Kamlesh Kushwaha supervising the supply of building material resident of Koncha. Bhawar and Haricharan resident of Meri were sitting in the shop of the informant. In the mean time, a black coloured Bolero and one motor cycle bearing no number plates stopped in front of the shop. Krishan Pal @ Lala, Shishpupal Yadav, Sumit Yadav, Shital Yadav son of Bhagwan Das resident of village Meri equipped with rifles in their hands, Arvind Yadav resident of Meri equipped with rifle, Ram Pal, Lakhan equipped with guns, Ravi and Ajay, equipped with Katta and two unknown persons equipped with Katta got down from the vehicles and while abusing came beside the shop. Krishan Pal exhorted others to kill at which all the accused persons started firing with intention to kill causing injuries to Arvind, Devendra, Kamlesh and Surendra. The informant, Raghvendra, Jitendra, Harcharan and Ashok tried to escape but they chased them while firing, as a result Ashok fell on the road and sustained injury and Brijendra a passer by also sustained injury with firearm and all the accused persons fled away. The informant went back to the shop and saw that Kamlesh had died. Ashok, Arvind, Devendra, Surendra and Brijendra were lying injured who were taken to the medical college for treatment where Ashok, Devendra and Arvind were declared dead. Surendra, Brijendra were kept under treatment.
5. The investigation of the case was handed over to S.H.O. Jagdish Singh who proceeded the placed where dead bodies of the deceased Devendra @ Debu, Arvind @ Bablu, Ashok and Kamlesh were lying at the mortuary Medical College, Jhansi and after completing inquest reports and preparing other relevant papers forwarded the dead bodies for post mortem to district hospital Jhansi.
6. On 31.03.2007 post mortem was conducted by Dr. A.K. Tripathi and post mortem reports were prepared.
7. On the dead body of the Devendra @ Dewoo following ante-mortem injuries were found:-
I. Firearm wound of entry 1.8 cm * 1.5 cm * chest cavity deep on left side of chest just left clavicle 3.5 cm lateral to sternal notch. Margins are inverted. The wound is directed Rt. side obliquely downwards and backwards piercing intercostal muscles left pleura left lung, right pleura and Rt lung. Fracture left second rib.
II. Firearm wound of entry 2 cm * 1.3 cm * chest cavity deep on left side of chest 3 cm below and lateral to injury No. 1. Margins are inverted. Wound is directed backwards and downwards towards Rt. side piercing left pleura, left lung, right pleura, right lung and intercostal muscles.
III. Firearm wound of entry 1.2 cm * 1.1 cm just below left nipple chest cavity deep. Margins are inverted, wound is directed towards right side piercing intercostal muscles, aericosdium, heart, Rt. pleura and Rt. lung.
IV. Firearm wound of entry 1.2 cm * 0.8 cm on left side of chest 10.5 cm below left nipple at about 5 'o' clock position. Margins are inverted, wound is directed posteriorly piercing intercostal muscles, left pleura and left lung.
V. Firearm wound of exit 4 cm * 1.5 cm on right side back on medial border of Rt. scapula 8 cm below shoulder. Margins are everted. Fracture Rt. scapula present.
VI. Firearm wound of exit 3 cm * 2 cm on Rt. side back just below inferior angle of Rt. scapula. Margins are everted.
VII. Firearm wound of exit 2.6 cm * 2 cm on Left side back 10 cm below left scapula inferior angle. Margins are everted.
VIII. Firearm wound of entry 1 cm * 0.8 cm on Rt. hip on outer side 13 cm below highest point of iliac crest. Margins are inverted, wound is directed upwards obliquely and medially.
IX. Firearm wound of exit 4 cm * 3.8 cm on Rt. side of abdomen in Rt. iliac fossa. Margins are everted.
X. Lacerated wound 1.2 cm * 1 cm * muscle deep on Rt. thigh on medial side 8 cm above knee joint.
XI. Abraded contusion 4 cm * 1 cm * back & middle of Rt. thigh.
XII. Multiple abraded contusion in an area of 8 cm * 2 cm on middle & back of right leg.
XIII. Firearm wound of exit 2.2 cm * 1.5 cm on Rt. side of chest 6 cm away Rt. nipple at about 9 'o' clock position. Margins are everted.
8. On the dead body of the Arvind @ Babloo following ante-mortem injuries were found:-
I. Firearm wound of entry 1.2 cm * 0.6 cm * chest cavity deep, margins are inverted on left side of chest just below left clavicle and 4.8 cm laterally left from sternal notch. The wound is directed obliquely downwards and backwards towards right side. During its course it pierces intercostal left pleura, left lung right pleura and right lung. Abraded collar present around the wound with clotted blood.
II. Firearm wound of entry 1.4 cm * 0.8 cm * chest cavity deep on left side of chest 0.8 cm below injury No. 1. Margins are inverted. The wound is directed obliquely downwards and backwards towards right side. During its course it pierces intercostal muscles, left pleura, left lung, right pleura and right lung. Abraded collar present around the wound with clotted blood.
III. Lacerated wound 0.8 cm * 0.4 cm * muscle deep on left side of chest 3.5 cm away from left nipple at about 11 'o' clock position.
IV. Firearm wound of exit 4 cm * 2.8 cm on right side back 15 cm below Rt. shoulder and 11 cm lateral from medial plane Rt. scapula bone is fractured. Margins are everted, clotted blood present around the wound.
9. On the dead body of the Ashok following ante-mortem injuries were found:-
I. Lacerated wound 5 cm & 3.5 cm * scalp deep crescent shape of forehead 4.7 cm above root of nose. Clotted blood present.
II. Lacerated wound 3.5 cm * 1 cm on middle of forehead 7 cm above root of nose and deep. Clotted blood present.
III. Lacerated wound 1.2 cm * 0.8 cm on middle of forehead, scalp deep 2.5 cm injury No. 2.
IV. Firearm wound of laceration 3.5 cm * 1.5 cm * muscle deep on outer side of left upper about 5.5 cm above elbow. Blackening and tatooing present in 1.2 cm circumference in the base of wound.
V. Abraded contusion 2.5 cm * 1.5 cm on tip of left elbow.
VI. Lacerated wound 2.2 cm * 1 cm * muscle deep on back of left palm in it its middle. Clotted blood present.
VII. Lacerated wound 3 cm * 2 cm on back of Rt. palm 1.5 cm above base of middle finger, muscle deep.
IX. Abraded contusion 5 cm & 4 cm on back of left shoulder.
10. On the dead body of the Kamlesh following ante-mortem injuries were found:-
I. Firearm wound of entry 1 cm * 0.8 cm * chest cavity deep on Rt. side of chest from Rt. nipple at about 11 'o' clock position. Margins are inverted & abraded collar present. During its course wound passes through intercostal muscle, Rt. pleura & Rt. lung. It is directed downwards and backwards and laterally Rt. axilla.
II. Firearm wound of entry 0.8 cm * 0.8 cm on Rt. side of chest, chest cavity deep 3 cm from Rt. nipple at about 1 'o' clock position. During its course it passes though intercostal muscles, Rt. pleura and Rt. lung. The wound is directed backwards and slightly laterally downwards. Margins of wound are inverted. Three pellets recovered from chest cavity.
III. Firearm wound of exit 2.5 cm * 1.5 cm on Rt. axilla 9.5 cm from Rt. nipple at about 10 'o' clock position and 3 cm below armpit Rt. Margins are everted.
IV. Abraded contusion 3 in number in an area of 8 cm * 5 cm on forehead on left side.
V. Multiple abraded contusions over Rt. knee on outer medial aspect in an area of 8 cm * 7 cm.
VI. Lacerated wound 3 cm * 1 cm * muscle deep on Rt. leg on outer side 9 cm below knee joint.
VII. Lacerated wound 2 cm * 1 cm * muscle deep on medial side of Rt. knee.
VIII. Contusion 3.5 cm * 2 cm on medial aspect of Rt. elbow.
11. Cause of death of the deceased Devendra @ Debu, Arvind @ Bablu, Kamlesh was due to shock and hemorrhage, as a result of ante-mortem firearm injury and cause of death of the deceased Ashok was due to Coma as a result of ante-mortem head injury.
12. Injured Brijendra and Surendra were medically examined on 30.03.2007 at 03:15 pm and 4:30 pm by Casualty Medical Officer, M.L.B. Medical College Hospital Jhansi.
13. Following injuries were found on the person of injured Brijendra :-
I. Single punctured wound on Rt. side chest situated 8 cm below middle of Rt. clavicle and 5 cm inner from Lt. anterior fold of areolla measuring 1 * 0.9 cm oval in shape with fresh blood.
II. Single punctured wound on outer aspect of Rt. arm situated 14 cm below Rt. acromion process measuring 0.2 * 0.2 cm with black margins and fresh bleeding.
III. Multiple wounds present on upper outer part of Rt. Scapula. Two are lacerated wound measuring 3 * 0.2 cm, 1 * 0.2 cm placed 1.5 cm apart with fresh bleeding. One is punctured wound measuring 0.2 * 0.3 cm with black margin and fresh bleeding.
IV. Single punctured wound on Rt. side chest in line of post fold axilla situated 10 cm, the axilla measuring 1.2 * 1.3 cm oval in shape with abraded margin and fresh bleeding.
V. Single 4 lacerated wound near post fold of axilla measuring 1.5 * 0.2 cm fresh bleeding present.
14. Following injuries were found on the person of injured Surendra Yadav :-
I. Single punctured wound on the outer aspect of left arm in its middle measuring 2 * 2 cm abraded margin and fresh bleeding wound 14 cm below tip of left shoulder.
II. Single punctured wound on the outer aspect of left arm 3 cm above the elbow measuring 1 * 1.2 cm oval in shape, abraded margin and fresh bleeding.
III. Single punctured wound on the left side chest situated 11 cm below arolla in mid auxiliary line measuring 1 * 1.2 cm abraded margin and fresh bleeding.
IV. Single lacerated wound on the lower part of left side chest in post-auxiliary line measuring 1.5 * 1.2 cm with fresh bleeding. It is 14 cm from anterior superior illiac spine.
V. Single lacerated wound on the middle of left thigh on its outer aspect measuring 18 * 17 cm with laceration of muscle with fresh bleeding, wound 20 cm below illiac crest.
15. In X-ray of both the injured persons no bone injury was found except multiple metallic shadow in the left arm of injured Surendra Yadav.
16. The I.O. also visited the place of occurrence and prepared site plan. He collected blood stained and plain soil from the place of occurrence and 12 empty cartridges of 315 Bore were also recovered from the place of occurrence, 2 cartridges of 12 Bore and 1 missed cartridge .32 Bore were also recovered and fard was prepared.
17. During the course of investigation one country made pistol 315 bore was recovered at the instance of accused Ajab Singh on 09.05.2007 and recovery memo was prepared. Likewise one country made pistol 315 bore was recovered at the instance of accused Ravi regarding which recovery memo was prepared on 28.04.2007. On 02.04.2007 accused Arvind, Shital and Shishupal were arrested by the police and from their possession three rifles and cartridges were recovered. They were taken into custody and recovery memo was prepared. On 04.04.2007 in police encounter accused Ram Pal was arrested and S.B.B.L. gun country made 12 Bore with cartridges was recovered and the recovery memo was prepared.
18. After recording the statement of witnesses acquainted with the incident prima facie case was found to be made out under Section 147, 148, 149, 307, 302, 504/ 120B I.P.C., Section 7 Criminal Law Amendment Act and 2/3 U.P. Gangster Act and charge sheet was filed against the appellants with two other accused persons Yashpal and Krishan Pal @ Lala who were acquitted after trial. Charge sheets against the appellant Ravi Yadav and Ajab Singh were also filed under Sections 25/27 Arms Act.
19. The court concerned took cognizance of the offences and after compliance of provisions of Section 207 Cr.P.C. case was committed for trial to the learned court of Sessions from where it was transferred to the court of Special Judge (U.P. Gangster & Anti Social Activities (prevention) Act). Charges were framed against the appellants that was recorded over and explained to them which they denied and claimed for trial.
20. The prosecution examined P.W. 1, Rajesh Yadav, the informant; P.W. 2, Haricharan Yadav; P.W. 3, Surendra Singh, the injured as witnesses of fact; P.W. 4, Dr. A.K. Tripathi, who conducted post-mortem; P.W. 5, Har Narain Raikwar, Record Keeper Medical College Jhansi; P.W. 6, Dr. Kapil Kumar Tripathi who conducted medico-legal examination of injured Brijendra and Surendra Yadav; P.W. 7, Head Moharrir Jagdish, who prepared Chick F.I.R., P.W. 8, Dr. Dinesh Pratap Medical College Jhansi, who treated injured Brijendra Yadav; P.W. 9, Dr. R.P. Tripathi who provided treatment to Surendra Yadav and Brijendra, P.W. 10, Dr. B.D. Pathak, X-ray technician; P.W. 11, S.I. K.K. Tiwari, who collected blood stained and plain soil and also the empty cartridges from the place of occurrence and prepared inquest of the deceased. P.W. 12, Constable Moharrir Ramnath Singh, prepared Chick report relating to Crime No. 379 of 2008 under Section 25 Arms Act; P.W. 13, Jagdish Singh, the Investigating Officer; P.W. 14, Constable Mahesh Prasad Mishra, who prepared Chick F.I.R. relating to Crime No. 643 of 2007 under Section 25 Arms Act; and P.W. 15, Inspector S.K. Kulshreshtha, subsequent Investigating Officer.
21. After conclusion of prosecution evidence statements of appellants under Section 313 Cr.P.C. were recorded in which they denied the charges and in defence D.W. 1 Ashok Sharma, D.W. 2 Badam Singh, D.W. 3 Nirman Singh Chauhan, D.W. 4, Mahesh Pratap Singh, Record Keeper Police Office Jhansi were examined.
22. After hearing the arguments of the prosecution and the accused-persons the learned court passed the judgment and order dated 18.05.2010 convicting the appellants and acquitted accused Yashpal and Krishan Pal.
23. Appellants Ravi and Ajab Singh were also convicted and sentenced under Section 25/27 Arms Act against which these appeals have been preferred on the part of appellants and for acquittal of accused persons Yashpal and Krishan Pal an appeal under Section 372 Cr.P.C. on the part of informant and government appeal on the part of the State.
24. It is argued by the learned counsel for the appellants that in this case the F.I.R. was lodged anti time after delay of three hours whereas the distance of the police station is about 2 kms only from the place of occurrence. The prosecution could not prove the motive for the murder of the deceased. The Chick report was sent to the concerned court on 02.04.2007 whereas incident took place on 30.03.2007 and F.I.R. was also lodged on the same day. The statements of injured Surendra were recorded by the I.O. after an inordinate delay of 24 days and one of the injured Brijendra has not been produced before the trial court. There is no consistency in the medical reports of injured Surendra and Brijendra since the injuries found on their person are punctured wounds those cannot be caused with firearms. The statement of P.W. 5, Har Narain Raikwar Record Keeper of Medical College also creates doubt into the testimony of the injured witnesses and the injury reports seem to be manipulated. The statements of other police witnesses are also not reliable. The inquest reports of the deceased Ashok Yadav lacks detail of the case likewise of Devendra, Kamlesh and Arvind which create doubt over the prosecution story. The bundle of bullets and pellets were opened before the trial court in which no material was found except the empty packets. It also creates doubt. The alleged recovery of vehicle did also not tally with the vehicle said to be used in incident. The presence of P.W. 1, 2 and 3 at the place of occurrence is doubtful, therefore, the commission of offence also becomes doubtful. P.W. 1 and 2 are said to be present on the place of occurrence and P.W. 3 is injured witness. They took the injured persons to the hospital by tractor but no any blood stain was found on their clothes as stated by them which also cast doubt on the prosecution case. It is further argued that the witnesses of fact are highly interested, therefore, they cannot be relied on. The trial court did not consider all these factors while appreciating the evidence on record and also the testimony as deposed by defence witnesses D.W. 1 to D.W. 4. He convicted and sentenced the appellants erroneously, therefore, the finding recorded by the trial court cannot be said to be sound and based on the material on record but it being perverse is likely to be set aside and the appeals are to be allowed.
25. Learned A.G.A. as well as learned counsel for the informant opposed the arguments as extended by learned counsel for the appellants and urged that in this case police raid was made at the house of accused Yashpal in which huge quantity of explosive substance and other contraband was recovered. The accused Yashpal suspected that the deceased Ashok yadav made spy to the police and so become inimical to him. On 18.03.2007 he threatened the deceased in front of his shop about killing of the members of the family of the deceased in case Yashpal was to go in jail. This was the motive with the accused Yashpal and other co-accused persons/appellants that on 30.03.2007 they came at the shop of the deceased and opened fire in which four persons sustained firearm injuries resulting into their death and two others were caused firearm injuries those were Brijendra and Surendra. Surendra, injured witness; informant and Harcharan Yadav were eye-witnesses of the incident who deposed before the trial court about the incident as took place on 30.03.2007. All these witnesses were subjected to gruel cross-examination but they could not be deviated by the defence. P.W. 3 Surendra was injured witness and cannot be said to be unreliable. Other injured Brijendra did not dare to become a witness on account of fear of the appellants that was the reason he could not be produced by the prosecution. The informant lodged the F.I.R. promptly without making any inordinate delay. There was no any cause with the informant to implicate the appellants falsely for commission of offence, leaving the real culprits free. He also urged that there are some deficiencies in the medical report but those are made by the doctor conducting medico legal examination but due to fault of doctor whole prosecution case cannot be thrown out. The contradictions as indicated by the learned counsel for the appellants are minor in nature and are not likely to affect the credibility of the witnesses. The learned court appreciated the evidence on record well manner and convicted the appellants though it committed error in acquitting the accused persons Krishan Pal and Yashpal though they were also involved with other co-appellants in committing the offence. In this way, the conviction and sentence as recorded by the trial court is based on the evidence on record and cannot be said to be illegal but these appeals being devoid of merit are liable to be dismissed. On the other hand, accused Yashpal Singh, Krishan Pal are also liable to be convicted and sentenced for the offence committed by them and appeal against acquittal and criminal revision for enhancement of sentence are liable to be allowed.
26. The present incident took place on 30.03.2007 at about 2 'o' clock in the day in which four to six persons sustained injuries and were taken to the hospital where four persons were declared to be dead and two others Brijendra and Surendra were provided treatment and admitted. The F.I.R. was lodged at 5 p.m. at the police station by the informant Rajesh after three hours of the aforesaid incident. In the circumstances of the case, the lodging of F.I.R. cannot be said to be inordinate delay to cast suspicion on the prosecution case and it can also not be said to be lodged after concoction and deliberation.
27. The argument of the defence that F.I.R. was ante-time is based on the fact that the details of the case were not mentioned by the I.O. on the inquest and the other papers prepared by him for post-mortem of the deceased persons and also on the injury reports of the injured prepared by the doctor while conducting medico-legal examination. In this regard, it is to note that mentioning of details of the case on inquest and other papers prepared by the police is not requirement of law and on this basis only it cannot be said that F.I.R. was not in existence till that time and was registered ante-time. There is no any other material on record to show that the F.I.R. was delay & ante time, on the other hand, this was omission on the part of I.O. not to mention such detail on the aforesaid papers and due to omission of I.O. the prosecution case cannot be said to be suspicious.
28. As per version in F.I.R. the incident took place in the shop of the informant from where blood-stained and plain pieces of floor were taken and sealed and sent to F.S.L. for chemical examination in which presence of human blood was found to be established. P.W. 1, P.W. 2 and P.W. 3 also stated before the trial court about the place of occurrence the same place. In this way, the place of occurrence is well established.
29. The incident is said to have taken place on 30.03.2007 at about 2 p.m. the post-mortem of deceased persons was conducted on 31.03.2007 in which time since death has been mentioned about one day likewise the injuries on the person of Brijendra and Surendra were examined on 30.03.2007 at about 3:15 and 4:30 p.m. in which duration was mentioned as fresh by the Dr. Kapil Kumar Tripathi, who was examined as P.W. 6 and opined that these injuries were possible to be sustained on 30.03.2007 at about 2 p.m. likewise P.W. 4 Dr. A.K. Tripathi, who conducted post mortem of the deceased persons, has also stated before the trial court that the death of deceased persons was possible by about 2 p.m. on 30.03.2007. In this way, the time of incident is also established.
30. So far as motive is concerned, P.W. 1 has mentioned in F.I.R. that there was raid of police at the house of accused Yashpal in which huge quantity of arms and explosives was recovered by the police regarding which he was suspecting that Ashok made spy for the police and also threatened him and his family to done with in case, he was sent to jail. During his cross-examination before the trial court P.W. 1 has deposed similarly though there is no any other documentary evidence on record to show that there was raid on the house of accused Yashpal prior to the present incident and he threatened the deceased to kill along with his family at 18.03.2007. From the contents of F.I.R. and the statement of P.W. 1 this is the motive for the appellants to cause the incident. On the other hand, P.W. 1, Rajesh; P.W. 2, Harcharan and P.W.3, Surendra Yadav are eye witnesses of the incident out of which Surendra Yadav is injured, therefore, the case rests on the direct evidence. Where there is direct evidence it is not necessary to prove the motive. It is settled law that the motive loses all its importance in a case where direct evidence of eye witnesses is available because even if there is a very strong motive for the accused person to commit a particular crime, they cannot be convicted if the evidence of eye witnesses is not convincing.
31. We find that the Supreme Court has clearly opined in various decisions, such as Gopi Ram v St. Of UP, 2006 (55) ACC 673 SC, State of UP v Nawab Singh; 2005 SCC (Criminal) 33, Shivraj Bapuray Jadhav v State of Karnataka; (2003) 6 SCC 392, R.R. Reddy v State of AP, AIR 2006 SC 1656, Sucha Singh v State of Punjab; AIR 2003 SC 1471, State of Rajasthan v Arjun Singh AIR 2011 SC 3380, Varun Chaudhry v State of Rajasthan AIR 2011 SC 72 that the prosecution case could not be denied on the ground of alleged absence of insufficiency of motive. Motive is insignificant in cases of direct evidence of eyewitnesses. Failure to prove motive or absence of evidence on the point of motive would not be fatal to the prosecution case when the other reliable, truthful and acceptable evidence is available on record sufficient to establish the guilt of accused persons.
32. The present case is based on direct evidence of P.W. 1, PW 2 and P.W. 3 who were sitting on the same place and they themselves witnessed the commission of offence and identified the culprits as being residents of the adjacent village and also the incident happening in the broad day light.
33. Enmity can be a ground for false implication of the appellants but it is to be noted that no person will let the real culprits go scot-free while roping false one on account of enmity. It is double edged weapon which can be used for false implication and also for commission of offence, therefore, it cannot be said to be the sole ground to discredit the eye-witness account.
34. In Ramashish Rai Vs. Jagdish Singh, (2005) 10 SCC 498, the following observations were made by the Supreme Court:
"The requirement of law is that the testimony of inimical witnesses has to be considered with caution. If otherwise the witnesses are true and reliable their testimony cannot be thrown out on the threshold by branding them as inimical witnesses. By now, it is well-settled principle of law that enmity is a double- edged sword. It can be a ground for false implication. It also can be a ground for assault. Therefore, a duty is cast upon the court to examine the testimony of inimical witnesses with due caution and diligence."
35. In this regard it is clear from the evidence on record that there was enmity between both the parties. A criminal case was also registered by the side of accused persons Yashpal and Krishan Pal under Section 307 I.P.C. and this fact was also admitted by P.W. 1 during his examination before the trial court. The relations between both the parties were also strained on account of raid of police as is evident from the contents of F.I.R. The enmity can only not be made the base for discarding the whole prosecution case if there is material on record sufficient to prove the guilt of the accused persons and there is no any other cogent reason to implicate the accused persons falsely by leaving the real culprits free.
36. The next limb of argument of learned counsel for the appellants is that the prosecution had examined highly interested and relative witnesses and they have not produced any independent witness in support of its case. Brijendra was an eye-witness in the same incident but he was not produced before the learned court for examination regarding which it has been stated on the part of the prosecution that on account of fear he did not dare to become a witness. Practically it is seen in the society that no person dares to become a witness in a case against the criminals to invite danger to his life. In this way, none examination of an independent witness cannot be said to be fatal to the prosecution case on the other hand, related and interested witnesses cannot be said to be unreliable only on the ground of their relation but their testimony is to be examined with utmost care and caution. No doubt the witnesses of fact examined in the case are nephew, neighbor and other relative of the deceased persons. Relationship itself is not a ground to reject the testimony of witness, rather such witness would be last person to leave the real culprit and falsely implicate any other person.
37. In the case of Brahm Swaroop and another vs. State of U.P. (2011) 6 SCC 288 the Hon'ble Apex Court in Para No.21 has observed as under
"merely because the witnesses were related to the deceased persons, their testimonies cannot be discarded. Their relationship to one of the parties is not a factor that affects the credibility of a witness, more so, a relation would not conceal the real culprit and make allegations against an innocent person. A party has to lay down a factual foundation and prove by leading impeccable evidence in respect of its false implication. However, in such cases the Court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible evidence."
38. The Court also referred cases of Dalip and others vs. State of Punjab A.I.R. (1953) SC 364; Masalti vs. State of U.P. (A.I.R.) 1965 SC 202.
39. In Masalti vs. State of U.P. (A.I.R.) 1965 SC 202, the Hon'ble Apex Court observed in Para No.14 "but it would, we think, be unreasonably to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. The mechanical rejection of such evidence on sole ground that it's partisan would inveriably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it's partisan cannot be accepted as correct.
40. It is common knowledge that village life is faction ridden and involvement of one or the other in the incident is not unusual. One has also to be cautious about the fact that wholly independent witnesses are seldom available or are otherwise not inclined to comeforth. Lest they may invite trouble for themselves in future. Therefore, relationship of eye-witnesses, inter se, cannot be a ground to discard their testimonies. There is no reason to suppose the false implication of the appellants at the instance of the eye-witnesses. It would also be illogical to think that witnesses would screen the real culprits and substitute the appellants for them.
41. This Court has also made such observations in Para No.14 of Rameshwar and others vs. State 2003 (46) ACC 581.
42. P.W. 1, Rajesh Yadav, deposed before the learned court that the police raided the house of Yashpal 15 days prior to the incident and recovered explosive substance. The accused Yashpal suspected that Ashok Yadav made spy, that was the reason he felt aggrieved with Ashok Yadav and his family. On 18.03.2007 at about 5 'o' clock Yashpal threatened Ashok that in case he had to go to jail, he would get him and his family killed. Outside the Badagaon gate there was shop of building material named Ganesh Associates in which P.W. 1 and members of his family used to conduct business of taking order and supply, adjacent to which there is house of Ashok Yadav. On 30.03.2007 at about 2 p.m. he and his nephew Surendra Yadav, cousin Ashok Yadav, nephew of Ashok, Jitendra and Devendra and his cousin Ragvendra and Arvind were sitting. At that time, Kamlesh Kumar who was working on his shop was also present. All of sudden a black coloured Bolero vehicle without number plate and one motor cycle without number plate came in front of his shop from which Shishupal, Krishan Pal, Sumit, Shital, Arvind having rifles in their hands, Lakhan, Rampal having guns, Ravi, Ajab Singh and two unknown persons having country made pistol got down from the vehicles and came towards the shop. Krishan Pal started abusing and exhorted his companions to kill. At this they started firing in which Devendra, Surendra, Arvind and Kamlesh sustained injuries and fell down. He, Harcharan, Ragvendra, Jitendra and Ashok Yadav ran away but the accused persons chased them in which Ashok Yadav sustained injury and fell down near the road. A passerby Brijendra also sustained injury with firearm and fell down. Krishan Pal assaulted on the head of Ashok Yadav with but and barrel. This incident created chaos in the locality and the accused persons ran away with their vehicle towards Badagaon gate. He came back and saw that Kamlesh Kushwaha had died, Arvind, Devendra, Surendra, Ashok and Brijendra were lying injured who were taken to the medical college with the help of people. Ashok, Devendra and Arvind were declared dead and Surendra and Brijendra were provided treatment. During the course of treatment Kamlesh Kushwaha who was lying on the place of incident was also brought to the medical college by the people of the village but was declared to be dead. He got the Tehrir scribed by Harcharan and lodged the F.I.R. and also proved the Tehrir. There was conspiracy on the part of accused Yashpal. This witness was subjected to lengthy cross-examination but nothing appeared to be inconsistent with the statements of the witness as deposed by him regarding the manner of incident but he supported the case. There is no any such contradiction as can be said to affect his credibility. He also stated in his cross-examination that there was no mutual relationship between both the families from 15 years. This shows that there were no smooth relations between the parties but this cannot be said to be cause for roping the accused persons falsely in the present incident and leaving the real culprits free.
43. P.W. 2, Harcharan Yadav, who was also said to be present in the shop where incident took place deposed that he is resident of village Marry and have a shop of fertilizer. On 30.03.2007 he was sitting on the building material shop of Rajesh Yadav who is resident of his village. Rajesh, Surendra, Ashok, Devendra, Jitendra, Arvind, Ragvendra and Kamlesh Kushwaha were also sitting there at about 2 p.m. one black coloured Bolero and motor cycle came in front of his shop from the side of Marry from which Krishan Pal @ Lala, Shishupal, Sumit, Shital, Arvind having rifles in their hands, Rampal, Lakhan having guns and Ravi and Ajab Singh and two unknown accused persons having Tamancha in their hands got down from the vehicles and approached the shop. Krishan Pal exhorted his companions to kill them at which all the accused persons started firing causing injuries to Kamlesh, Arvind, Devendra and Surendra who fell down. He, Rajesh, Ragvendra, Jitendra and Ashok ran away from the shop at which accused persons chased them while abusing. Ashok also sustained firearm injury and fell beside the road and passerby Brijendra also sustained firearm injury and fell down. Krishan Pal also assaulted on the head of injured Ashok with the butt of his rifle. This incident created panic in the Mohalla and accused persons went away in their vehicles while making fire. Thereafter, he came back and saw that Ashok and Brijendra were lying injured. When went to the shop there he saw that Arvind, Devendra and Surendra were lying having injuries and Kamlesh Kushwaha had died. With the help of other people injured persons were taken to the Medical College Jhansi where Ashok, Devendra and Arvind were declared to be dead by the doctor and in the mean time some people brought Kamlesh Kushwaha to the medical college who was also declared to be dead. Brijendra and Surendra were admitted for treatment. In the medical college Rajesh dictated the Tehrir which he scribed and recited to him and then both of them signed it which he identified and this application was taken by Rajesh to police station for lodging F.I.R. He also stated that accused Yashpal got this incident done by making conspiracy while remaining in jail.
44. P.W. 3, Surendra Yadav is an eye witness and is said to be present on the place of incident at the time of occurrence of incident. He has also made similar statements regarding incident as made by P.W. 1 and P.W. 2.
45. P.W. 4, Dr. A.K. Tripathi, who conducted post-mortem on the dead bodies of the deceased Arvind @ Bablu, Ashok, Kamlesh, Devendra @ Debu and prepared post-mortem reports proved to be prepared by him in his handwriting and signature.
46. P.W. 5, Har Narain Raikwar, Record Keeper has proved the injury reports of injured Brijendra and Surendra Yadav as Exhibit Ka 6 and 7.
47. P.W. 6, Dr. Kapil Kumar Tripathi, who examined the injuries found on the person of injured Brijendra and Surendra and proved the injury reports Exhibit Ka 6 and 7 in his handwriting and signature.
48. P.W. 7, Head Moharrir Jagdish, has proved the F.I.R. and G.D. related to Crime No. 357 of 2007 under Sections 147, 148, 149, 307, 302 and 504 I.P.C. and under Section 2/3 of U.P. Gangsters Act and section 7 Criminal Laws Amendment Act as Exhibit Ka 8 and also proved the G.D. in the handwriting of Constable Ashok Kumar Dwivedi.
49. P.W. 8, Dr. Dinesh Pratap, P.W. 9 Dr. R.P. Tripathi proved the treatment given by them to injured Brijendra & Surendra, P.W.10, Dr. B.D. Pathak proved the X-Ray reports of Surendra.
50. P.W. 11, S.I. K.K Tiwari, has proved the recovery memo of empty cartridges, blood-stained and plain soil from the place of occurrence and also the inquest reports of the deceased persons in his writing and signature.
51. P.W. 12, Constable Moharrir Ramnath Singh, has proved the Chick F.I.R. relating to Crime No. 643 of 2007 under Section 25/27 Arms Act against the Ajab Yadav and the G.D. and also Crime No. 389 of 2007 under Section 25 Arms Act against Ravi Yadav.
52. P.W. 13, Inspector Jagdish Singh, has proved the investigation of the case.
53. So far as argument for the appellant is concerned that the injuries found on the person of P.W. 3, Surendra Yadav were self-inflicted or manipulated since he was brought to the hospital by some Harishankar at 4:30 p.m. after two and half hours of the incident and injuries said to be present on his person were not firearm injuries but injury no. 1, 2 and 3 were punctured wounds and injury no. 4 and 5 were lacerated wounds. Punctured wounds cannot be caused with firearm, this shows that the witness was not present on the spot but after self inflicting the injuries he was brought before the doctor for medico-legal examination for making him an injured witness to fortify the prosecution case.
54. In this regard, we examined the injury report of P.W. 3, Surendra Yadav which was prepared by P.W. 6 Dr. Kapil Kumar Tripathi on the same day in which his injury no. 1, 2 and 3 were recorded as punctured wounds and injury no. 4 and 5 as lacerated wounds.
55. Injury no. 1, simple punctured wound on the outer aspect of left arm in its middle measuring 2 * 2 cm abraded margin with fresh bleeding 14 cm below tip of left shoulder.
56. Injury no. 2, single punctured wound on the outer aspect of left arm 3 cm above the elbow measuring 1 * 1.2 cm oval in shape abraded margin and fresh bleeding.
57. Injury no. 3, single punctured wound on left side chest situated 11 cm below Arola in mid axilary line measuring 1 * 1.2 cm abraded margin and fresh bleeding.
58. Injury no. 4, single lacerated wound on lower part of left side chest in post auxiliary line measuring 1.5 * 1.2 cm with fresh bleeding. 14 cm from interior superior illiac spine.
59. Injury no. 5, single lacerated wound on the middle of left thigh on its outer aspect measuring 18 * 17 cm with laceration of muscle with fresh bleeding. 20 cm below illiac crest.
60. X Ray was advised and injuries were kept under observation.
61. All these injuries were told to be caused with firearm to the doctor.
62. Exhibit Ka 14, X Ray report shows multiple metallic shadow in left arm.
63. P.W. 6, Dr. Kapil Kumar Tripathi, has also stated before the court that injuries were told to be caused with firearm and he opined injury no. 3 to be caused with firearm but certain opinion was to be framed after examining X ray report. The injuries were opined to have been sustained at about 2 'o' clock on 30.03.2007. During the course of cross-examination he stated that punctured wound is also possible by piercing some pointed and hard object. No any question was put to the doctor by the defence that the injuries were not caused with firearm or those injuries were self inflicted or manipulated though it was suggested that the injury report was prepared by the doctor under pressure of polie but this suggestion was denied by the doctor himself, therefore, such inference cannot be drawn that the injuries on the person of Surendra were either manipulated or self inflicted and were not caused in the incident said to have taken place at 2 'o' clock on 30.03.2007. It is to note that this witness also examined the injured Brijendra on the same day and four injuries were found on his person as mentioned in the injury report of Brijendra, Exhibit Ka 6 regarding which he stated that injury no. 3 and 4 was possible with firearm but he denied to form definite opinion without seeing the X-ray report.
64. On the person of Brijendra injury no. 1, was single punctured wound on left side Chest situated 8 cm below middle or Rt. Clavicle and 5 cm inner from Rt. Interior fold of arola measuring 1 * 0.9 cm, oval in shape with fresh blood oozing. Injury no. 2, was single punctured wound on outer aspect of Rt. arm situated 14 cm below Rt. asomion process measuring 0.2 * 0.2 cm with black margins and fresh bleeding. Injury no. 3, Multiple wounds present on upper outer part of Rt. Scapula. Two are lacerated wounds measuring 3 * 0.2 cm, 1 * 0.2 cm placed 1.5 cm apart with fresh bleeding. One is punctured wound measuring 0.2 * 0.3 cm with black margin and fresh bleeding. Injury no. 4, single punctured wound on Rt. side chest in line of post fold axilla situated 10 cm, the axilla measuring 1.2 * 1.3 cm oval in shape with abraded margin and fresh bleeding. Injury no. 5, single 4 lacerated wound near post fold of axilla measuring 1.5 * 0.2 cm fresh bleeding present.
65. Injuries were fresh, kept under observation and X-ray advised.
66. The doctor has opined during his examination before the trial court that these injuries were possible on 30.03.2007 at 2 p.m. Injury no. 2, 3 and 4 were possible with firearm but for forming definite opinion X-ray was must.
67. Regarding injuries of Brijendra no any question was put by the defence before the doctor to suggest that these injuries were either fabricated or manipulated. Among injury no. 2, 3 and 4 injury no. 2 and 4 are mentioned as punctured wounds and in injury no. 3 also there is punctured wound those are said to be caused with firearm. About other injuries no such opinion has been given by the doctor. On examination of injury report Exhibit Ka 6, it appears that in the aforesaid injuries there are black margins in injury no. 2 and 3; injury no. 4 oval in shape with abraded margins. Injury no. 1 is also oval in shape like injury no. 4 regarding which definite opinion could not be formed by the doctor but he has not denied this injury to have been caused with firearm and even no such suggestion was put by the defence. Likewise, on examining the Exhibit Ka 6 injury report of injured Surendra, injury no. 1, 2 and 3 are punctured wounds with abraded margins; injury no. 2 oval in shape are also possible with firearm as stated by the same doctor in relation to injuries of Brijendra as aforesaid. He has not denied the possibilities of injuries with firearm and no such suggestion has been put by defence before the witness regarding manipulation and fabrication of injuries. Exhibit Ka 14, X-ray report relating to Surendra Yadav also shows multiple metallic shadow suggesting presence of some foreign body on the place of injuries. In the aforesaid circumstances, it cannot be concluded that the injuries present on the person of the injured Surendra Yadav (P.W. 3) were manipulated, fabricated or self-inflicted only on the ground that he was examined by the doctor at about 4:30 p.m. after two and half hours of the incident to ensure presence of witness on the spot to fortify the prosecution case. In this regard, the argument made for the appellants cannot be said forceful and having substance, therefore, it is not acceptable. The trial court recorded finding in Para 99/170 of the judgment that P.W. 3, Surendra is a tutored witness and has not stated full truth before the court and to state the facts to support the F.I.R. version. The occurrence did not took place in the manner as told by the prosecution rather some scuffle or physical fight took place prior to firing of bullets and in the process P.W. 3 sustained injuries on the left thigh. He escaped from the spot and other witness could not. Fire started immediately thereafter by the accused no. 2 to 9. Further the admission of this witness one and half hours after the admission of Brijendra was made because in the mean time, firearm injuries were fabricated on his left side. This finding of trial court cannot be said to be based on the material on record but on the conjectures and surmises which cannot be said to be sound. On the contrary, the injuries found on the person of P.W. 3, Surendra Yadav proves to be sustained in the same incident and with firearms and he cannot be said to be tutored witness and injuries can also not be said to be fabricated only on the ground that he was admitted one and half hours after the injured Brijendra. In this regard, it is also to be noted that injured Brijendra and Surendra both were admitted on 30.03.2007 in the medical college for treatment and this fact has been proved by P.W. 8, Dr. Dinesh Pratap, Professor Surgery and P.W. 9, Dr. R.P. Tripathi, Professor Orthopedics Department who clearly stated before the trial court that injured Brijendra and Surendra were under treatment and the injured Brijendra was discharged on 31.03.2007 and injured Surendra was discharged on 03.04.2007. During the course of treatment the bridgement procedure was followed in the orthopedic unit. These witnesses have proved the treatment record of the injured Brijendra and Surendra. No question was put before P.W. 8 and 9 regarding manipulation/ fabrication of injuries on the person of Surendra before the doctors, therefore, it cannot be guessed that injuries were manipulated as trial court has done. As a result, the finding recorded by trial court in this regard is also not acceptable.
68. Since P.W. 3, Surendra Yadav is injured witness having sustained injuries in the same incident cannot be said to make false statement before the trial court regarding involvement of accused persons in which four persons sustained injuries and died and he himself sustained injuries with firearm. There is no any reason to implicate the accused persons in the present case falsely and to absolve the real culprits. The testimony of injured witness cannot be disbelieved easily unless there is any cogent reason to rope the accused persons falsely for committing the offence and concealing the real ones. Even during the course of cross-examination nothing such came out to show that this witness implicate some of the accused persons falsely but he made statement about the incident very vividly regarding the manner of incident and involvement of accused persons.
69. Since he is injured witness, therefore his presence on the spot cannot be denied. The reliability of injured witness has been explained by the Hon'ble Apex Court in the case of State of U.P. Vs. Naresh and others (2011) 4 SCC 324. Para no. 23 is quoted as under:
23......................The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence.
24. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. [Vide: Jarnail Singh v. State of Punjab, (2009) 9 SCC 719; Balraje @ Trimbak v. State of Maharashtra, (2010) 6 SCC 673; and Abdul Sayad v. State of Madhya Pradesh, (2010) 10 SCC 259].
In another decision of Mamo Dutt vs. State of U.P. (2012) 4 SCC 79, Hon'ble the Apex Court observed about the evidentiary value required to be attached to the evidence of an injured witness:
"Normally, an injured witness would enjoy greater credibility because he is the sufferer himself and thus, there will be no occasion for such a person to state an incorrect version of the occurrence, or to involve anybody falsely and in the bargain protect the real culprit."...................
Again in the case of Balwan Singh & others vs. State Of Haryana (2014) 13 SCC 560 Hon'ble the Apex Court observed thus:
"It is trite law that the evidence of injured witness, being a stamped witness, is accorded a special status in law. This is as a consequence of the fact that injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness would not want to let actual assailant go unpunished."
70. P.W.1 and P.W. 2 Rajesh and Harcharan are informant and eye-witness said to be present on the place of occurrence at the time of commission of incident. The shop of Harcharan is also adjacent to the shop of informant. He deposed before the trial court to be present on the spot i.e. the shop of building material. The trial court recorded the finding in Para 98 of the judgment that these witnesses were not present on the place of occurrence at the time of alleged incident because they did not receive any blood stain on their clothes, safely escaped from the shop without getting even a scratch and left alive by the assailants who outnumbered the escaped persons so that they could depose against them, absence of their names in the medical records, presence of the police on the spot at 2 p.m., the denial of the same by both the witnesses and the difference in the manner of occurrence is told by the prosecution. This finding of trial court regarding presence of P.W. 1 and P.W. 2 on the place of occurrence does not appear plausible. Likewise none presence of blood stain on their clothes and their escape without getting even a single scratch and their escape cannot be said that they were not present there. The absence of their names in the medical records can also not be said to have the same affect. Both the witnesses were examined before the trial court and they stated about the incident as it occurred. During the course of cross-examination there appears no any such inconsistency as to infer that they were not present there and their testimony is unreliable. P.W. 1 is related to the deceased but P.W. 2 is not so related except conducting business in the neighborhood. There are no major contradictions in their testimony to make it unbelievable and untrustworthy. The presence of police on the place of occurrence approximately at the time of incident as mentioned by the trial court can also not be said the base of absence of the witness. In this way, the presence of P.W. 1 and P.W. 2 on the place of occurrence cannot be said to be suspicious but the finding of the trial court in this regard is untenable.
71. Accused Arvind, Shital and Shishupal were arrested by the police and his arrest memo was prepared and proved by P.W. 13 Inspector, Jagdish Singh. In this regard it has been contended on the part of accused persons that they were detained by the police of Himmatpur outpost and this fact was also published in the newspaper, Dainik Bhaskar but newspaper reports cannot be said to be admissible in evidence since no correspondent preparing the report was examined before the trial court.
72. D.W. 1, Ashok Sharma and D.W. 2, Badam Singh, were examined in defence to prove the detention of these accused persons in the police outpost but there is no any written document on record to show that these accused persons were detained at the police outpost. D.W. 2, Badam Singh, is relative of accused persons likewise D.W. 1 Ashok Sharma is also related to Badam Singh, therefore, their statements regarding presence of accused persons in Himmatpur outpost is not acceptable in absence of any documentary proof like G.D. entry of the police station. In this way, the plea of Albi taken by accused persons Shital, Shishupal and Arvind is not acceptable. D.W. 3, Nirman Singh Chauhan, Incharge, City Control Room Line, Jhansi has deposed about the C.C.R. report and stated that the information received in the control room on wireless is recorded in the logbook of radio centre though original logbook could not be brought by him before the court since it was weeded out and he did not prove the writing of C.C.R. writer dated 30.03.2007. D.W. 4, Mahesh Pratap Singh, Record Keeper, Police Office, Jhansi filed certificate regarding weeding of Chick F.I.R. relating to Crime No. 764 of 2001 under Sections 149, 452, 307 I.P.C. and Crime No. 79 of 86 under Section 307 I.P.C. He also stated that Chick F.I.R.s relating to both the cases have been weeded and filed copy of Chick F.I.R. relating to Crime No. 2310 of 2005 under Sections 304, 427 I.P.C. and was exhibited as Exhibit Ka 2.
73. On appreciation of evidence as aforesaid of the witnesses P.W. 1, 2 and 3 it is established beyond reasonable doubt that on 30.03.2007 at 2 p.m. when the informant and other deceased persons were sitting in their shop the assailants/ appellants equipped with firearm approached there and started firing in which four persons sustained fatal injuies and died. P.W. 3 Surendra Yadav and one passer by Brijendra also sustained injuries on their person. In this way, we hold that the charges under Sections 148, 323, 302 read with Section 149 I.P.C. stands proved beyond reasonable doubt against the appellants Shishupal, Sumit, Shital, Arvind, Rampal, Lakhan, Ravi Yadav and Ajab Singh.
74. So far as the involvement of accused Krishan Pal is concerned, he is said to have caused injuries on the person of Ashok with firearm and its butt when he fell on the ground. In post-mortem of deceased Ashok, eight ante-mortem injuries were found those were in the nature of lacerated wounds abraded contusion and one firearm wound.
75. P.W.1, P.W. 2 and P.W. 3 stated that when the informant and deceased Ashok Yadav with Harcharan, Ragvendra and Jitendra ran away from the spot, they were chased by the accused persons in which Ashok Yadav fell down beside the road and passer by Brijendra also fell down having sustained firearm injury. P.W. 3, Surendra Yadav, the injured witness clearly stated that accused Krishan Pal @ Lala abetted his companions to kill them on which the accused persons started firing in which Ashok fell down near the road having sustained firearm injury and a passer by Brijendra also fell down on account of firearm injury. Krishan Pal @ Lala crushed the head of deceased Ashok with butt of rifle. In this way, the injuries inflicted to the deceased Ashok resulting into his death by Krishan Pal @ Lala also stand proved.
76. Accused Yashpal was prosecuted for conspiracy. In F.I.R. it has been mentioned that there was police raid on the house of Yashpal relating to which he suspected that Ashok Yadav acted as spy for the police and he also threatened him prior to the alleged incident, this was the reason he conspired to commit murder of Ashok Yadav and other members of his family, but when this incident took place on 30.03.2007 accused Yashpal was not present on the spot but as transpires from the record he was in jail. There is nothing on record to show that there was any conversation or meeting between Yashpal and other accused persons or some other communication among them, therefore, no previous meeting of mind can be said prior to the alleged incident among the accused persons. As a result, the accused Yashpal cannot be said liable for conspiracy to commit murder with the help of Section 120 B of I.P.C. Hence his acquittal cannot be said erroneous and an appeal against acquittal of accused Yashpal is liable to be dismissed.
77. The charge against the accused/ respondent Krishan Pal in a Criminal Appeal U/S 372 Cr.P.C. No. 689 of 2024 also stands proved beyond reasonable doubt under Sections 148 & 323, 302 read with 149 I.P.C.
78. During the course of investigation on 02.04.2007 on the basis of information received accused Arvind, Shital and Shishupal were arrested with country made rifles 315 bore. Recovery memo was prepared regarding which Crime No. 194 of 2007, 195 of 2007 and 196 of 2007 under Section 25/27 Arms Act were registered separately. On 04.04.2007 accused Rampal Yadav was also arrested by police in an encounter with country made S.B.B.L. gun 12 bore and cartridges regarding which recovery memo was prepared. On 28.04.2007 at the instance of accused Ravi Yadav one country made pistol 315 bore with cartridges was recovered from the cluster of dates near Narain Bagh and Laxmi Talab, recovery memo was prepared. On 09.05.2007 at the instance of accused Ajab Singh country made pistol 315 bore having an empty cartridge in the chamber was recovered from the bush near the stairs of the temple at Narain Bagh recovery memo was prepared. The recovered weapons and cartridges were taken into custody and sealed and then send to F.S.L. for ballistic examination. After examination ballistic report Exhibit Ka 73 was obtained by I.O.
79. The empty cartridges recovered from the place of occurrence were also sent to the F.S.L. in which it was found that the empty cartridges collected from the place of occurrence were used in the weapons recovered at the instance of accused Ravi Yadav and Ajab Singh which establishes involvement of these accused persons in the incident. The weapons recovered from the possession of accused Arvind, Shital and Shishupal did not match with the empty cartridges collected from the place of occurrence.
80. Before the trial court P.W. 13, Jagdish Singh has proved recovery memo prepared by them as Exhibit Ka 62, Exhibit Ka 53, Exhibit Ka 57 and Exhibit Ka 58 and also the prosecution sanction obtained during the course of investigation. The charges u/s 25 and 27 Arms Act also stand proved against the appellant Ravi Yadav of Ajab Singh.
81. In Criminal Revision 3380 of 2010 and Government Appeal No. 3794 of 2012 the informant and the State urged to enhance the sentence passed by the learned trial court awarding life imprisonment into capital punishment on the ground of number of murders i.e. four and two injured and being preplanned by the accused persons. In this regard, the circumstances of the case in which offence was committed and the manner of commission of offence is to be taken into consideration. Section 354(3) Cr.P.C. provides, when the conviction is for an offence punishable with death or in the alternative, with imprisonment for life or imprisonment for a term of years, the judgment shall state the reasons for the sentence awarded and in the case of sentence of death the special reasons for such sentence. It indicates that the Court can in fit cases impose the extreme penalty of death which negatives the contention that there never can be a valid reason to visit an offender with the death penalty, no matter how cruel, gruesome or shocking the crime may be. Where a sentence of severity is imposed it is imperative that the Judge who indicates the basis upon which he considers a sentence of that magnitude justified. Unless there are special reasons to the facts of a particular case which can be catalogue as justifying a severe punishment, the Judge would not award the death sentence. If a Judge finds that he is unable to explain with reasonable accuracy the basis for selecting the higher of the two sentences, his choice should fail on the lower sentence. The question for enhancement of sentence to award death penalty can be considered where facts are such that to award any punishment less than maximum would shock the concerns of the Court.
82. In the case of Bachan Singh Vs. State of Punjab(1980) 2 SCC 684 : (AIR 1980 SC 898), the Supreme Court observed in Para 198 to 207 as under:-
"198. It may be noted that this indicator for imposing the death sentence was crystallised in that case after paying due regard to the shift in legislative policy embodied in Section 354(3) of the CrPC, 1973, although on the date of that decision (February 11, 1974), this provision had not come into force. In Paras Ham's case, also, to which a reference has been made earlier, it was emphatically stated that a person who in a fit of anti-social piety commits "bloodcurdling butchery" of his child, fully deserves to be punished with death. In Rajendra Prasad, however, the majority (of 2:1) has completely reversed the view that had been taken in Ediga Anamma regarding the application of Section 354(3) on this point. According to it, after the enactment of Section 354(3), 'murder most foul' is not the test. The shocking nature of the crime or the number of murders committed is also not the criterion. It was said that the focus has now completely shifted from the crime to the criminal. "Special reasons" necessary for imposing death penalty "must relate not to the crime as such but to the criminal".
199. With great respect, we find ourselves unable to agree to this enunciation. As we read Sections 354(3) and 235(2) and other related provisions of the Code of 1973, it is quite clear to us that for making the choice of punishment or for ascertaining the existence or absence of "special reasons" in that context, the Court must pay due regard both to the crime and the criminal. What is the relative weight to be given to the aggravating and mitigating factors, depends on the facts and circumstances of the particular case. More often than not, these two aspects are so intertwined that it is difficult to give a separate treatment to each of them. This is so because 'style is the 'man'. In many cases, the extremely cruel or beastly manner of the commission of murder is itself a demonstrated index of the depraved character of the perpetrator. That is why, it is not desirable to consider the circumstances of the crime and the circumstances of the criminal in two separate water-tight compartments. In a sense, to kill is to be cruel and therefore all murders are cruel. But such cruelty may vary in its degree of culpability. And it is only when the culpability assumes the proportion of extreme depravity that "special reasons" can legitimately be said to exist.
200. Drawing upon the penal statutes of the States in U.S.A. framed after Furman v, Georgia, in general, and Clauses 2(a), (b), (c), and (d) of the Indian Penal Code (Amendment) Bill passed in 1978 by the Rajya Sabha, in particular, Dr. Chitale has suggested these "aggravating circumstances":
Aggravating circumstances : A Court may, however, in the following cases impose the penalty of death in its discretion:
(a) if the murder has been committed after previous planning and involves extreme brutality; or
(b) if the murder involves exceptional depravity; or
(c) if. the murder is of a member of any of the armed forces of the Union or of a member of any police force or of any public servant and was committed -
(i) while such member or public servant was on duty; or
(ii) in consequence of anything done or attempted to be done by such member or public servant in the lawful discharge of his duty as such member or public servant whether at the time of murder he was such member or public servant, as the case may be, or had ceased to be such member or public servant; or
(d) if the murder is of a person who had acted in the lawful discharge of his duty under Section 43 of the CrPC, 1973, or who had rendered assistance to a Magistrate or a police officer demanding his aid or requiring his assistance under Section 37 and Section 129 of the said Code.
201. Stated broadly, there can be no objection to the acceptance of these indicators but as we have indicated already, we would prefer not to fetter judicial discretion by attempting to make an exhaustive enumeration one way or the other,
202. In Rajendra Prasad, the majority said: "It is constitutionally permissible to swing a criminal out of corporeal existence only if the security of State and society, public order and the interests of the general public compel that course as provided in Article 19(2) to (6)." Our objection is only to the word "only". While it may be conceded that a murder which directly threatens, or has an extreme potentiality to harm or endanger the security of State and society, public order and the interests of the general public, may provide "special reasons" to justify the imposition of the extreme penalty on the person convicted of such a heinous murder, it is not possible to agree that imposition of death penalty on murderers who do not fall within this narrow category is constitutionally impermissible. We have discussed and held above that the impugned provisions in Section 302, Penal Code, being reasonable and in the general public interest, do not offend Article 19, or its 'ethos'; nor do they in any manner violate Articles 21 and 14. All the reasons given by us for upholding the validity of Section 302, Penal Code, fully apply to the case of Section 354(3), CrPC, also. The same criticism applies to the view taken in Bishnu Deo Shaw v. State of West Bengal , which follows the dictum in Rajendra Prasad (ibid).
203. In several countries which have retained death penalty, pre-planned murder for monetary gain, or by an assassin hired for monetary reward is, also, considered a capital offence of the first degree which, in the absence of any ameliorating circumstances, is punishable with death. Such rigid categorisation would dangerously overlap the domain of legislative policy. It may necessitate, as it were, a redefinition of 'murder' or its further classification. Then, in some decisions, murder by fire-arm, or an automatic projectile or bomb, or like weapon, the use of which creates a high simultaneous risk of death or injury to more than one person, has also been treated as an aggravated type of offence. No exhaustive enumeration of aggravating circumstances is possible. But this much can be said that in order to qualify for inclusion in the category of "aggravating circumstances" which may form the basis of 'special reasons' in Section 354(3), circumstance found on the facts of a particular case, must evidence aggravation of an abnormal or special degree.
204. Dr. Chitaley has suggested these mitigating factors:
Mitigating circumstances:- In the exercise of its discretion in the above cases, the Court shall take into account the following circumstances:
(1) That the offence was committed under the influence of extreme mental or emotional disturbance.
(2) The age of the accused. It the accused is young or old, he shall not be sentenced to death.
(3) The probability that the accused would not commit criminal acts of violence as would constitute a continuing threat to society.
(4) The probability that the accused can be reformed and rehabilitated. The State shall by evidence prove that the accused does not satisfy the conditions 3 and 4 above.
(5) That in the facts and circumstances of the case the accused believed that he was morally justified in committing the offence.
(6) That the accused acted under the duress or domination of another person.
(7) That the condition of the accused showed that he was mentally defective and that the said defect unpaired his capacity to appreciate the criminality of his conduct.
205. We will do no more than to say that these are undoubtedly relevant circumstances and must be given great weight in the determination of sentence. Some of these factors like extreme youth can instead be of compelling importance. In several States of India, there are in force special enactments, according to which a 'child' that is, 'a person who at the date of murder was less than 16 years of age', cannot be tried, convicted and sentenced to death or imprisonment for life for murder, nor dealt with according to the same criminal procedure as an adult. The special Acts provide for a reformatory procedure for such juvenile offenders or children.
206. According to some Indian decisions, the post-murder remorse, penitence or renentence by the murderer is not a factor which may induce the Court to pass the lesser penalty (e. g. Mominuddin Sardar), . But those decisions can no longer be held to be good law in view of the current penological trends and the sentencing policy outlined in Sections 235(2) and 354(3). We have already extracted the views of Messenger and Bittner (ibid), which are in point.
(Contd. on last page of Monthly Subject Index only for purpose of giving complete judgment In June Monthly Part).
207. There are numerous other circumstances justifying the passing of the lighter sentence; as there are countervailing circumstances of aggravation. "We cannot obviously feed into a judicial computer all such situations since they are astrological imponderables in an imperfect and undulating society." Nonetheless, it cannot be over-emphasised that the scope and concept of mitigating factors in the area of death penalty must receive a liberal and expansive construction by the courts in accord with the sentencing policy writ large in Section 354(3). Judges should never be bloodthirsty. Hanging of murderers has never been too good for them. Facts and figures albeit incomplete, furnished by the Union of India, show that in the past Courts have inflicted the extreme penalty with extreme infrequency - a fact which attests to the caution and compassion which they have always brought to bear on the exercise of their sentencing discretion in so grave a matter. It is, therefore, imperative to voice the concern that courts, aided by the broad illustrative guidelines indicated by us, will discharge the onerous function with evermore scrupulous care and humane concern, directed along the highroad of legislative policy outlined in Section 354(3), viz., that for persons convicted of murder, life imprisonment is the rule and death sentence an exception. A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed."
83. Likewise in the case of Machhi Singh Vs. State of Punjab, (1983) 3 SCC 470: (A.I.R. 1983 SC 957) and Alaudin Mian Vs. State of Bihar, (1989) 3 SCC 470: (AIR 1989 SC 1456) the Supreme Court again followed the principle as laid down in Bachan's Singh Case.
84. In Machhi Singh Vs. State of Punjab it was observed after culling out the guidelines laid down in Bachan Singh case that only in those exceptional cases in which the crime is so brutal, diabolical and revolting as to shock the collective concerns of the community would be permissible to award the death sentence.
85. On considering the facts and circumstances of the present case and the law as laid down by the Apex Court as aforesaid, we find that the accused persons/ appellants intended to commit murder of Ashok due to suspicion that he stood as spy to the police in raid that was made by police on his house and he was sent to jail but in the course of commission of offence four persons died with firearm injuries. The manner in which incident was caused cannot be said to be brutal, cruel and revolting as to shock the collective concerns of the community. The accused persons were young so as to have chance of reformation. Only on the basis of this incident they cannot be said to be menace to the society, therefore, in our considered view there is nothing so uncommon about the crime as to make the case an exceptional one to bring it within the category of the rarest of rare cases.
86. As a result, there appears no need to award capital punishment on the place of life imprisonment. Criminal Revision No. 3380 of 2010 and Government Appeal No. 3794 of 2012 for this purpose is liable to be dismissed as having no force.
87. In Criminal Appeal under Section 372 Cr.P.C. No. 689 of 2024 and Government Appeal No. 6432 of 2010 against acquittal of accused Krishan Pal and Yashpal, the involvement of accused Krishan Pal has been proved beyond reasonable doubt as aforesaid and the involvement of accused Yashpal could not be proved beyond reasonable doubt, therefore, these appeals are partly allowed to the extent of accused Krishan Pal @ Lala and dismissed to the extent of accused Yashpal. Accused Krishan Pal @ Lala is convicted under Section 148, 302/149, 323 I.P.C. and is sentenced under Section 148 with imprisonment for a period of three years and fine Rs. 2000/- in default of payment of fine to undergo imprisonment for a period of one month; for the offences under Section 323 read with 149 to undergo imprisonment for a period of one year with fine Rs. 1000/- in default of payment of fine to undergo imprisonment for a period of 15 days; under Section 302 read with Section 149 I.P.C. to undergo imprisonment for life and to pay fine of Rs. 10,000/-, in default of payment of fine imprisonment for a period of five months. All these sentences shall run concurrently. He is directed to surrender before the learned trial court within a period of 45 days and be sent to jail to serve the sentence.
88. The Criminal Revision No. 3380 of 2010, Government Appeal No. 3794 of 2012 are dismissed and Criminal Appeal U/S 372 Cr.P.C. No. 689 of 2024 & Government Appeal No. 6432 of 2010 are partly allowed.
89. Criminal Revision No. 3064 of 2009 was requested to be withdrawn as a result dismissed by order dated 10.09.2009.
90. Criminal Appeal Nos. 4273 of 2010, 4198 of 2010, 4272 of 2010, 4242 of 2010, 4199 of 2010 are dismissed as having no force. Appellants are directed to serve the sentence.
91. Sri. A.K. Ojha, learned Amicus Curiae appointed by this Court shall be entitled to him professional fees which shall be paid to him within three weeks.
92. Copy of this judgment alongwith original trial court record be transmitted to the Court concerned for necessary compliance. A compliance report be sent to this Court within one month. Office is directed to keep the compliance report on record.
Order Date :- 25.02.2025
Suraj Srivastav
(Subhash Chandra Sharma, J.) (Siddharth,J.)