Allahabad High Court
Naresh vs State Of U.P. on 3 September, 2025
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:155050-DB
Reserved On:-26.05.2025 Delivered On:-03.09.2025
HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL APPEAL No. - 1773 of 2014
Naresh
.....Appellant(s)
Versus
State of U.P.
.....Respondent(s)
Counsel for Appellant(s)
:
Adarsh Bhushan, Adesh Kumar, Ishwar Chandra Tyagi, Kushagra Srivastava, Nazrul Islam Jafri(Senior Adv.), Rajesh Mishra, Ritesh Singh, Suresh Singh, Vijay Kumar, Zia Naz Zaidi
Counsel for Respondent(s)
:
Chandrakesh Mishra
With
CRIMINAL APPEAL No. - 1606 of 2014
Vipul
.....Appellant(s)
Versus
State of U.P.
.....Respondent(s)
Counsel for Appellant(s)
:
Adarsh Bhushan, Amit Kumar Srivastava, Ishwar Chandra Tyagi, Kapil Kumar, Nirvikar Gupta, Rajesh Mishra, Sandhya Singh, U.K. Saxena, Zia Naz Zaidi
Counsel for Respondent(s)
:
Chandrakesh Mishra, D.S.Mishra
In Chamber
HON'BLE SIDDHARTH, J.
HON'BLE RAM MANOHAR NARAYAN MISHRA, J.
(Delivered by Hon'ble Siddharth J.)
1. Heard Sri Sageer Ahmad, learned Senior Advocate assisted by Sri Ishwar Chandra Tyagi, learned counsel for the appellants, Sri, Daya Shankar Mishra, learned Senior Advocate assisted by Sri Chandrakesh Mishra and Sri Abhishek Kumar Mishra, learned counsel for the informant and Sri Sushil Kumar Pandey, learned AGA-I.
2. The Criminal Appeal No. 1773 of 2014 has been preferred against the judgment and order dated 26.02.2014 passed by Addl. Sessions Judge, Court No. 10, Muzaffarnagar, in Sessions Trial No.508/2011, State Vs. Naresh, under section 302/34 of IPC, arising out of case crime no. 437 of 2007, Police Station- Kakrauli, District- Muzaffarnagar, and in Sessions Trial No. 591 of 2011, State Vs. Naresh, under section 25/27 of Arms Act, arising out of case crime no. 53/2011, Police Station Kakrauli, District- Muzaffarnagar, whereby the appellant has been convicted and sentenced for life imprisonment for committing offence under section 302/34 of I.P.C. and fine of Rs. 50,000/-; in default of payment of fine to undergo six months further simple imprisonment and the appellant has been further convicted and sentenced to two years imprisonment for committing the offence under section 25/27 of Arms Act and fine of Rs.5,000/- and in default of payment of fine one months further imprisonment has been awarded.
3. The second criminal appeal no. 1606 of 2014 has been preferred against the judgment and order dated 26.02.2014 passed by Addl. Sessions Judge, Court No. 10, Muzaffarnagar, in Sessions Trial No. 513 of 2009, State Vs. Vipul, under section 302/34 of I.P.C., arising out of case crime no. 437 of 2007, Police Station- Kakrauli, District- Muzaffarnagar, and in Sessions Trial No. 514 of 2009, State Vs. Vipul, under section 25/27 of Arms Act, arising out of case crime no. 598/2008, Police Station- Kakrauli, District Muzaffarnagar, whereby the appellant has been convicted and sentenced for life imprisonment for committing offence under section 302/34 of I.P.C. and fine of Rs. 50,000/-; in default of payment of fine, six months further simple imprisonment and the appellant has been further convicted and sentenced to two years imprisonment for committing the offence under section 25/27 of Arms Act and fine of Rs.5,000/- and in default of payment of fine one month's further imprisonment has been awarded.
4. The prosecution case is that initially informant, Dharmendra Singh, gave a written application at Police Station, Kakrauli stating that today on 29.10.2007, his cousin, Raj Kumar son of Ghaseetu Singh, was working in his office at 11:45 hours, when he come to know that his cousin was fired upon and while being taken to the Hospital, he died. Thereafter, on the same day Raghuvendra gave another application at same Police Station stating that today at about 11:30 hours his brother, Raj Kumar and co-villagers, Narendra son of Dataram, Laxmi Narayan son of Samay Singh and Raj Kumar were sitting in the office of K.G.S. Public School when Vipul son of Yogendra and Naresh son of Surendra Jat of his village, came in the office and told his brother Raj Kumar that they want to talk to him. After his brother came out from the office Vipul and Naresh fired on him from country made pistols taunting him that he claims himself to be big leader of his community of "Rava". After suffering fire arm injuries his brother got injured and fell down. The people in the office raised alarm and then both the assailants vanished on two motor cycles after pointing weapons towards the people who came on the spot. Both the assailants were young and the complainant recognized them. He took his brother to the Government Hospital, where he was declared dead. After dead body was taken to the mortuary, the informant went to the Police Station to lodge the First Information Report.
5. On the basis of the first application Case Crime No.437/2007, under Section 302 of I.P.C. was registered at Police Station Kakrauli, District Muzaffarnagar on 29.10.2007 at 13:10 hour. The second application made by Raghuvendra was entered in General Diary at 17:45 hrs. on the same day.
6. Investigation was conducted by the Investigating Officer and thereafter charge sheet was filed against the accused/appellants, Vipul and Naresh, under Section 302 of I.P.C. and 25/27 Arms Act.
7. The Court took cognizance of the charge sheet and committed the case for trial to the Sessions Court. The Trial Court framed charges under Section 302/34 I.P.C. and 25/27 Arms Act separately. The appellants denied the charges and sought trial.
8. To prove the prosecution case, the prosecution examined P.W.-1, Dharmendra Singh, informant; P.W.-2, Raguvendra; P.W.-3, Narendra Kumar; P.W.-4, Dr. O.P. Singh; P.W.-5, Sub Inspector Baldhari Singh; P.W.-6, Constable Rajendra Sharma; P.W.-7, Manvendra Kumar Tyagi; S.I.: P.W.-8, Rajiv Sirohi, S.I.; P.W.-9, K.D.Bhumla, Incharge Public Grievances Cell, Police Office, Muzaffarnagar; P.W.-10, Pramod Panwar, S.O.; P.W.-11, Hari Kishan Singh Sub Inspector and P.W.-12, Vijendra Singh, Deputy Superintendent of Police.
9. The Statements of accused under Section 313 of Cr.P.C. were recorded, wherein they denied the prosecution case and claimed false implication and planted recovery of weapons from them. They stated that on account of enmity of village, they have been falsely implicated. Appellant, Vipul, stated that he came to know of the incident after 2-3 days of the same. Appellant, Naresh, claimed that at the time of incident he was posted at Police Station Mawana, District Meerut on the post of Constable. He has been falsely implicated. He has given his land to his brothers. 10. The defence produced D.W.-1, Abdul Aziz Khan, Chief Pharmacist, District Hospital and D.W.-2, Constable Rajveer Singh as defence witnesses. Their statements were recorded and in documentary evidence, the report of Record Room and Photocopies of the Applications and Certified copy of General Diary were filed as Exhibit-1 to Exhibit-3.
10. P.W.-1, stated that on 29.10.2007, he was at his home when he came to know at about 12:00 hours that his cousin, Raj Kumar, has been fired upon. On this information he went to G.S. Public School and came to know that Raj Kumar has been taken to the Government Hospital by his family members and other villagers. Later he came to know that he has died on way to the Hospital. In this regard he himself wrote an application at Police Station Kakrauli, for lodging F.I.R. which he proved before the Court.
11. P.W.-2 stated that he knows the accused, Vipul, son of Yogendra Singh. Ratendra, Azadveer, Karmveer and Naresh are brothers of Yogendra Singh. At the time of incident Naresh was posted as Constable and at Police Station -Mawana, District Meerut. They belong to caste of Jat, while P.W.-2 belongs to be caste of "Rava" Rajpoot. About 3 and 1/2 months prior to the incident dated 29.10.2007, Meenu, sister of Vipul, had eloped with Sunni, who is grandson of Banarasi son of Kalu and they entered into Court Marriage at Pubjab. Vipul and his family made considerable pressure for return of Meenu, but she did not returned and because of this reason there was enmity between the two parties. Deceased, Raj Kumar, was respectable and powerful person of "Rava" community. On 05.11.2007 Vipul, Ratan, Yogendra, Yashveer, Jaivindra and Naresh abducted Sanjay son of Banarasi and till date whereabouts of Sanjay are not known First Information Report, was lodged by Banarasi against Vipul and others regarding abduction of Sanjay and because of this motive the incident in dispute was caused since Raj Kumar belonged to the Chauhan community. The manner of the incident mentioned in the application made by P.W.-2, was reiterated in his statement by P.W.-2. He further stated that accused, Naresh, is still absconding and a reward of Rs.30,000/- has been announced for getting him arrested.
12. P.W.-3, Narendra Kumar, stated that he knows Vipul son of Yogendra Singh and also the 5 brothers of Yogendra Singh. They belong to Jat community and he reiterated the motive of the crime as the elopement of sister of Vipul, Meenu, with grandson of Banarasi son of Kalu, who belongs to "Rava" Rajpoot community. He repeated the motive of crime as stated by the P.W.-2. He further stated that the incident took place in his presence caused by Vipul and Naresh when he was present in G.S. Public School with the deceased, Raj Kumar.
13. P.W.- 4, Dr. O.P. Singh, proved the post mortem report of the deceased wherein he noted the following injuries:
(i). Gun shot wound of entry 1x1cm. on top of head 12cm. above right ear pinna, margins inverted, bleeding present, clotted blood present.
(ii). Gun shot wound of entry 2cm.x1cm. in front of left side chest, 5cm. away from left nipple at 11.00 O' Clock, margins are inverted and bleeding present.
(iii). Gun shot wound of entry 2cm.x2cm. in front of right shoulder margins inverted and blackening present.
(iv). Gun shot wound of exit 2.5cm. x 2 cm. on upper part right arm on outer side about 12cm. above right elbow joint margins are averted. This injury corresponds to injury no.3.
(v). Gun shot wound of entry 1cm.x 1cm. x bone deep on left lateral aspect of right forearm joint above right wrist joint, margins are averted and blackening present.
(vi). Gun shot wound of exit 1cm. x1cm. on medial aspect of right forearm 5cm. above right wrist joint margins are everted injury corresponds to injury no.5.
"On exploration of body and dissection bullet could not be recovered hence X-Ray of neck, skull, abdomen, right arm were advised and after X-ray one bullet was recovered from chest wall upper part right side and second bullet was recovered from right side of abdomen wall, the bullet recovered were metallic."
14. P.W.-5, Sub Inspector Baldhari Singh, proved that he got the inquest and postmortem of dead body got conducted and the proved the same.
15. P.W.-6, proved the registration of the case by Constable Devi Singh at the Police Station on the application given by P.W.-1 and G.D. entry made in the General Diary regarding the application given by the P.W.-2.
16. P.W.-7, S.I. Manvendra Kumar Tyagi, proved the that he conducted the proceedings of arrest of appellant, Naresh, upto the stage of section 82 -83 of Cr.P.C., and recorded the statements of the witnesses of inquest report.
17. P.W.-8, S.I. Rajiv Sirohi, proved that he lodged the case against unknown accused on 29.10.2007 thereafter he went on the spot, recorded the statements of witnesses; collected samples of earth; 4 empty cartridges from the spot and made efforts to arrest the appellants. He proved the aforesaid exhibits before the Court.
18. P.W.-9 and P.W.-10, proved that they conducted the investigation of this case since 23.08.2010 and on the basis of disclosure statement of appellant, Naresh, got the recovery the country made pistol, 5 empty cartridges of 9 mm bore recovered.
19. P.W.-11, S.I. Hari Kishan Singh, proved the site plan prepared by him and also the statement of witnesses regarded by him he proved the charge sheet filed against accused, Vipul, before the Court..
20. P.W.-12, S.I. Vijendra Singh, proved that he filed charge sheet against appellant Naresh, in the Court.
21. D.W.-1 proved that the deceased was taken to the Hospital on 29.10.2007 by Laxmi Narayan son of Samay Singh as per the entry in the register kept in the Hospital.
22. D.W.-2 proved that the general diary of this case has been weeded out from the record room and he has brought the original register regarding weeding out the general diary.
23. The trial court after hearing the rival contentions and considering the evidence on record convicted and sentenced the appellants by the Judgment and Order under challenge and hence this Appeal before this Court.
24. Learned Senior counsel for the appellants has submitted that P.W.-1, Dharmendra Singh, cousin of the deceased, lodged the first information report on the basis of hearsay evidence against unknown accused regarding the incident which took place in the precinct of G.S. Public School, Kakrauli, on 29.10.2007. In the first information report presence of three constables of police station Kakrauli and Dhirendra Rathi, Principal of School and Indrapal Singh, teacher of School and other villagers was shown, but no one named the appellants. P.W.-1 stated that he heard about the incident at about 11:45 A.M. from his wife but she was never produced as witness before the trial court. In his statement P.W.1 stated that when he reached the school we was informed that the brother of the injured, Raj Kumar, has taken him the Hospital along with the villagers but the name of the brother of the injured was not disclosed, therefore, at the time of registration of First Information Report P.W.-1 did not knew who took Raj Kumar to the Hospital. The teachers and principal of G.S. Public School were not examined before the trial court. P.W.-1 claims to have met P.W.-2, Raghuvender, P.W.-3, Narendra Kumar, at the time of cremation of dead body of Raj Kumar on 29.10.2007 at 07- 07:30 P.M. and informed them that he has lodged the first information report.
25. P.W.-2, Raghuvender, real brother of deceased, Raj Kumar, gave second written report on the same day i.e., 29.10.2007 at the same police station which was noted down in G.D. No.28 at 17:35 hours. The second report was barred by Section 162 of Cr.P.C. and was not admissible in evidence. The trial court held that the admissibility of the second report shall be decided at the time of hearing but it never decided this issue and therefore, the second report of the incident, Exhibit ? Ka-2, can not be taken judicial notice according to Section-57 of Evidence Act. Learned counsel for the appellant has relied upon the judgment of the Apex Court in the case of State of A.P. Vs. Punati Ramulu and others, 1994 Supp (1) SCC 590, Para-5, in support of his contention that second written report is barred by Section 162 Cr.P.C. .
26. P.W.-2, stated that he lifted the deceased in his lap and after laying him on bed-sheet took him from the place of incident to the District Hospital, Muzaffarnagar, on 29.10.2007 at 01:30 ? 02:00 P.M. in a car, but as per Exhibit- Kha-2, register of District Hospital, Raj Kumar, was brought dead at 12:35 P.M. No recovery of blood stained bed sheet or car was made on his pointing out by the police. On the way there were two more hospitals at Bhopa and Morna, but P.W.-2 took Raj Kumar to District Hospital where he died. His conduct of not approaching the nearest hospital creates doubt about the case set up by the P.W.-2. The statement of P.W.-2 was recorded on 10.11.2007 by P.W.-7 when the incident took place on 29.10.2007. There is no explanation of this delay in recording of his statement. In the Site Plan presence of P.W.-2 and P.W.-3 is not evident.
27. The motive of crime set up by the prosecution was that sister of appellant, Vipul, eloped with Sunni, grandson of Baranasi. P.W.-2 admitted that he has no concern with Baranasi or the sister of appellant, Vipul. Banarasi was not produced in evidence to prove the aforesaid motive. P.W.-2 stated that he went with the Chairman of Jansath to lodge the report but in his statement he denied that police lodged the report at the instance of the aforesaid Chairman. P.W.-2 was neither present at the time of inquest nor at the time of receipt of dead body of Raj Kumar after post mortem. He also did not participated in his cremation. His statement under section 161 of Cr.P.C., was recorded belatedly and his presence is not shown in the site plan therefore, in totality P.W.-2 is wholly unreliable witness.
28. P.W.-3, Narendra Kumar, claims himself to be eye witness of the incident, but his statement under section 161 of Cr.P.C. was not recorded by any of the four investigating officers nor his name finds place in the list of witnesses in the charge sheet. P.W.-3 was produced during trial for the first time and the appellants could not put any question to him to impeach the credit of P.W.-3 as per Section-155(3) of the Evidence Act. P.W.-3 stated that he met P.W.-1 on the date of cremation and at the time of cremation, but P.W.-1 stated that he met P.W.-3 after the cremation, P.W.-3 claimed that he went to the District Hospital with injured, Raj Kumar, but as per Hospital record it was Laxmi Narayan who took Raj Kumar to the Hospital. Therefore, P.W. -3 was wholly unreliable witness. The learned counsel for the appellant has relied upon the judgment of the Apex Court in the case of Maruti Rama Naik Vs. State of Maharashtra, (2003) 10 SCC 690 para-7 and 8 in support of his contention that the delay in recording of such statement is fatal for the prosecution case. He has further relied upon the judgment of Karnataka High Court, Chemansab S/o Khajasab Almel Vs. The State of Karnataka, Criminal Appeal No.200021 of 2017 in support of his contention that the witness whose statement is not recorded under section 161 of Cr.P.C., can be examined before the court but his testimony has to be appreciated very carefully and it carries less value and credibility.
29. Learned Senior Counsel for the informant has submitted that the prosecution has proved its case beyond reasonable doubt by producing 12 witnesses before the Court. It is a case of broad day light murder.He has further submitted that the first information report was lodged against unknown accused and soon thereafter the 2nd application was given by the P.W.-2 and it was made part of the General Diary. Therefore, the second application given at the police station was in continuity of the first application, wherein the names of the accused were disclosed. The First Information Report was lodged by the P.W.-1 on 29.10.2007 at 13:10 hours and second application was given at the Police Station by the P.W.-2 at 17:45 hours on the same day. Therefore, the second application was in continuity of the First Information Report. While, the First Information Report was lodged by the P.W.-1 on the basis of information received by him, P.W.-2 gave his application on the basis of his eye witness account and there was no reason to disbelieve the same. P.W.-2 clearly identified the accused involved in the incident and also proved their roles in the incident. It is further evident that appellant, Naresh, was posted as Constable in adjoining District Meerut and after committing the offence he absconded for four years before surrendering in court. Appellant, Vipul, also absconded for more than year from the date of incident.
30. Motive of the crime was well established before the Court. It was clearly stated that the deceased was trying to become leader of "Rava" Rajpoots and hence he was murdered by the appellants who belong to Jat community. Reliance on the Judgment of the Apex Court in the case of Chandan Vs. The State (Delhi Admn.), (2024)6 SCC 799 has been made wherein it has been held that where there is direct eye witness account motive is not significant.
31. The defects pointed out by the appellants in investigation conducted by the investigating officers of the police cannot be of any benefit of the appellants. The Apex Court in the case of Edakkandi Dineshan alias P. Dineshan & Others Vs. State of Kerala (2025) 3 SCC 2073 has held that accused can not claim acquittal on the ground of faulty investigation by the police.. The delay in lodging of the 2nd Report by P.W.-2 was natural since time was spent in taking the deceased to the hospital and thereafter making arrangements for his last rites.
32. The non examination of any teacher, principal or any staff of the school, where the incident took place, was not unnatural, since no one gets involved in criminal case due to prevailing conditions of society. The non recording of the statement of P.W.-3 under Section 161 of Cr.P.C. by the investigating officer cannot be read against the prosecution. It was fault of the investigating officer. The investigating Officer also made cutting in the inquest memo because of negligence in performance of this official duty and no benefit of the same can be given to the appellants. Minor contradictions in the statements of the witnesses are ignorable and on account of long time gap the same have occurred .
33. Finally, the prosecution succeeded in proving the recovery of arms on the pointing out of appellants, Vipul and Naresh, hence the trial court rightly convicted the appellants under Section 25/27 of the Arms Act too. The prosecution case was proved beyond reasonable doubt before the Trial Court.
34. After hearing the rival submissions and going through the material on record of the trial court and also the judgment of the trial court, we find that the prosecution has produced three witnesses of facts P.W.-1, cousin of the deceased and the first informant; P.W.-2, real brother of the deceased, who filed an application regarding the same offence on the same day and P.W.-3, Narendra Kumar, who was not a charge-sheeted witness nor his statements were recorded by the investigating officer under section 161 Cr.P.C., during investigation. P.W.-1 while lodging F.I.R. dated 29.10.2007 did not named anyone as accused in the application given at the police station. He lodged the F.I.R. on the basis of hearsay evidence. In the F.I.R., no source of information was mentioned by P.W.-1 regarding the incident. However, in his statement before the court, he stated that he got the information about the Raj Kumar suffering gun shot injury from his wife, but his wife was never produced as witness before the court nor it appears that her statement was recorded by the investigating officer. It also appears that in the statement of P.W.-1 recorded under section 161 Cr.P.C., by the investigating officer, he did not informed the investigating officer that he got the information of the incident from his wife therefore, P.W.-1 was although the author of the application given for lodging of the F.I.R., but his evidence before this Court was not very reliable.
35. The next witness of the fact, P.W.-2, Raghuvendra, after the incident dated 29.10.2007 whereon F.I.R. was lodged at 13:10 hours, gave another application at the same police station on the same day at 17:45 hours., claiming that he was present at the time and the place of incident alongwith Laxmi Narayan, son of Samay Singh, and Naresh (P.W.-3) and before him the appellants came to the office of the school where his brother, Raj Kumar, was present and asked him to come outside the office since they want to talk to him. As soon as he came out from the office with them, they fired on him from country made pistols saying that he claims himself to be the leader of the Rawa Rajpoot community. After suffering the gun shot wounds his brother, Raj Kumar, fell down. Thereafter, P.W.-2 and others by raising alarm ran after the appellants who pointed out the weapons towards them and after making firing boarded their pre-started two motorcycles and vanished. He stated that he recognized the assailants who were of young age. He took his brother to the government hospital where doctor declared him dead. Thereafter, he went to lodge the report at the police station, Kakrauli. His report was not registered since the police station informed that report of the incident has already been lodged by P.W.-1. The most important witness of the incident is P.W.-2 and his statement requires careful consideration since the fate of these appeals depends upon his statement recorded by the trial court.
36. Statement of P.W.-2 proved that he recognized the appellants before the court and also informed about their families. He also proved that while P.W.-2 belongs to the caste of Rawa Rajpoot, the appellants belong to Jat Community and in his examination-in-chief, he proved that three and a half months before the date of incident dated 29.10.2007, sister of Vipul, Meenu, eloped with Sunni, grand son of Banarasi son of Kalu and entered into court marriage with him. Vipul and his family members despite all efforts could not get back Meenu and thereafter enmity developed between the parties. Deceased, Raj Kumar, belonged to Rajpoot community and was influential and respectable person of his community. On 05.10.2007 (Before the incident dated 29.10.2007), Vipul, Ratan, Yogendra, Prakash Veer, Jaivindra and Naresh son of Surendra Singh, abducted Sanjay son of Banarasi in jungle and his whereabouts are still not known. Banarasi lodged report against the aforesaid persons at the police station and this was also cause of enmity between the parties. On the date of incident, P.W.-2, alongwith Narendra, son of Raja Ram (P.W.-3) and Laxmi Narayan, son of Samay Singh, went to met Raj Kumar at G.S. Public School and when they were sitting with him the appellants entered the office of the school and told Raj Kumar that he claims himself to be big leader of Rawa Rajpoot and they want to talk to him. Sensing danger Raj Kumar started running from the office when Vipul and Naresh fired on him. Raj Kumar came outside the office where also firing was made on him and he fell down. P.W.-2 claimed that he alongwith Laxmi Narayan saw the entire incident and when they raised alarm, appellants escaped on motorcycles. Two boys were waiting for them on motorcycles. He took Raj Kumar to district hospital where he was declared dead. After getting the dead body kept in mortuary, he purchased papers from the stationary shop and got the report of the incident prepared and gave it at the police station. This application is the document wherein appellants were named for the first time and counsel for the appellants have seriously disputed the admissibility of the same on the ground that it is barred by section 162 Cr.P.C. In his statement P.W.-2 stated that appellant, Naresh, is still absconding as on 29.06.2010 and carries a reward of Rs. 30,000/-. He claimed that deceased was his real brother. In his cross-examination, he stated that he had gone to call Raj Kumar from the school because of guest coming to his family who had come to see his niece for the purpose of her marriage. He admitted that this reason was not disclosed by him in his statement before the police nor he was asked in this regard. He took his injured brother in car to the hospital which was parked in the school. It was driven by his cousin, Laxmi Narayan, whom he had met in the way while going to school of deceased. After the injuries were caused to Raj Kumar, blood was oozing from the his wounds. He was made to lie down on a shawl and was kept in the car by him and Laxmi Naraya and Narendra, firstly sat in the car by taking his brother in lap. Blood was not on his clothes, but on the shawl. The shawl was worn by him where on he took his brother in the car. He left the aforesaid shawl in the hospital, but he did not informed anything about the aforesaid car. When he reached the hospital, the doctor declared his brother dead.
37. In his cross-examination, he stated that Morna and Bhopa Hospital did not come in his way when he was taking the injured to the hospital since he went to the district hospital through the way of Jolly. No government hospital is there on the road through jolly. He took his brother to Muzaffarnagar, Government Hospital, because he wanted to save his life. He gave the report at the police station, he went to the house and did not returned to the hospital where the dead body of his brother was kept. In his further cross-examination P.W.-2, stated that as soon as he reached the office of Raj Kumar within 2-4 minutes, the appellants came saying that he considers himself to be big leader of Rawa, then fired on him. He admitted that he informed the investigating officer that the appellants threatened Raj Kumar that he considers himself to be big leader of Rawa's but if it is not mentioned in the statement recorded by the investigating officer, he cannot tell the reason. He stated that the bullets fired in the office hit the wall and ceiling of the office. The appellant did not fired on Laxmi Narayan or on him because he was on the side. Raj Kumar had gone out of the office. He was fired upon outside the office and after he fell down, he was again fired upon. He saw the incident alongwith Laxmi Narayan and Narendra and tried to catch them, but they pointed country made pistol against them.
38. We find that that the motive of the crime set up by the prosecution are true. The elopement of Meenu with Sunny grand son of Banarasi and the deceased, Raj Kumar, considering himself as leaders of Rawa community. In the statement of P.W.-2 for the first time both the motives were set up before the trial court. He proved the first motive before the trial court saying that after the daughter of appellant,Vipul, eloped with Sunni, grand son of Banarasi, all efforts were made to get her back, but she never returned despite number of panchayats in the village of all communities. P.W.-1 in his statement before the court did not supported both the motives of crime set up by P.W.-2. He did not stated anything about the fact that the deceased, Raj Kumar, was leader of Rawa Rajpoot community or about the sister of Vipul eloping with Sunny grand son of Banarasi. P.W.-2 has also admitted that he had informed about the second motive of the deceased claiming himself to be leader of Rawa community to the investigating officer, but why he did not mentioned this fact in his statement under section 161 Cr.P.C., he cannot tell.
39. The full bench judgment of Apex Court in the case of Masalti Etc Vs. State of U.P. 1965 AIR 202 has held that mere omission of fact in the statement before the police is not a contradiction in the statement of the witnesses before the court unless what is actually stated contradicts what is omitted to be said. The test to find whether omission is contradiction or not, it is required to be seen where any sentence or assertion before investigating officer is irreconcilable with the deposition in Court. In the present case P.W.-2 only stated that he informed the investigating officer about the second motive, but if he did not mentioned the same in his statement, he cannot tell the reason. There is no statement of witness made before the court which contradicts this assertion made before the trial court by P.W.-2 and, therefore, this omission cannot be read against him. Regarding the objection taken by the learned Senior counsel for the appellant that the application dated 29.10.2007 made by the P.W.-2 before the police station was barred by section 162 Cr.P.C., was not admissible in evidence and ought not to have been relied and that trial court ordered that issue shall be decided at the time of hearing, but was not decided does not appears to be correct. The trial court has considered this issue in the judgment and has held that after of the lodging of the F.I.R. at 13:30 p.m., the application was given on the same day by P.W.-2 naming the accused within short time of the incident and, therefore, it would be deemed to be in continuity with the allegations in the F.I.R. and as at the time of F.I.R. the informant was not aware of elaborate facts and name of the assailants the second written report neither treated as second F.I.R. nor it would be hit by section 162 Cr.P.C.
40. The trial court has relied upon the judgment of Apex Court in the case of Chirra Shivraj vs State Of Andrha Pradesh AIR 2011 SUPREME COURT 604, in this regard. It is also addressed the issue raised considering the judgments of the Apex Court in the case of T.T. Antony Vs. State of Kerala and others, 2001 (6) SCC 181 and Babu Bhai & others Vs. State of Gujarat and others, in Criminal Appeal No. 1595/2010 and held that it is true that two F.I.Rs cannot be lodged, but only on that account the entire investigation cannot be held to be defective and cannot be considered to be basis of acquittal of the accused. In the present case F.I.R. is only one and not two. The application of the P.W.-2 was only supplementary information given to the police within 5 hours of lodging the F.I.R. by P.W.-1.
41. The Apex Court in the case of T.T. Antony (supra) and clerified the law in this regard as follows in paragraph 19:-
"An information given under sub-section (1) of Section 154 of Cr.P.C. is commonly known as First Information Report (F.I.R.) though this term is not used in the Code. It is a very important document. And as its nick name suggests it is the earliest and the first information of a cognizable offence recorded by an officer in charge of a police station. It sets the criminal law into motion and marks the commencement of the investigation which ends up with the formation of opinion under Section 169 or 170 of Cr.P.C., as the case may be, and forwarding of a police report under Section 173 of Cr.P.C. It is quite possible and it happens not infrequently that more informations than one are given to a police officer in charge of a police station in respect of the same incident involving one or more than one cognizable offences. In such a case he need not enter every one of them in the station house diary and this is implied in Section 154 of Cr.P.C. Apart from a vague information by a phone call or a cryptic telegram, the information first entered in the station house diary, kept for this purpose, by a police officer in charge of a police station is the First Information Report - F.I.R. postulated by Section 154 of Cr.P.C. All other informations made orally or in writing after the commencement of the investigation into the cognizable offence disclosed from the facts mentioned in the First Information Report and entered in the station house diary by the police officer or such other cognizable offences as may come to his notice during the investigation, will be statements falling under Section 162 of Cr.P.C. No such information/statement can properly be treated as an F.I.R. and entered in the station house diary again, as it would in effect be a second FIR and the same cannot be in conformity with the scheme of the Cr.P.C."
42. The argument of the learned Senior counsel for the appellants that Banarasi was not produced as eye witness before the court to prove the aforesaid motives also deserves consideration.
43. We find that the relationship of Banarasi with deceased, Raj Kumar, was not proved by the prosecution. It was also not stated that Banarasi belongs to Rawa community and that in the panchayat, Raj Kumar, supported him with regard to the elopement of sister of appellant, Vipul, with his grandson, Sunni, to Punjab. The P.W.-2 although set up this motive, but it was again not supported by P.W.-1. For the first time, it was P.W.-3, who stated that Banarasi son of Kalu belongs to Rawa Rajpoot community and tried to connect the deceased with Banarasi son of Kalu and the motive of crime set up by P.W.-2.
44. Learned counsel for the appellant has laid much emphasis on the fact that P.W.-3, Narendra Kumar, is not a charge-sheeted witnesses. He has been introduced for the first time as P.W.-3 before the trial court only to corroborate the statement of P.W.-2 recorded by the trial court. Reliance has been placed on the judgment of the Apex Court in the case of Chemansab (Supra) of Hon'ble Karnataka High Court. We find that Hon'ble Karnataka High Court has held in paragraph no.6 that statement of charge-sheeted witness can be used for contradicting the witnesses as per section 145 of the Evidence Act and it is the right of an accused to cross-examine such witness, but a witness, whose statement is not recorded under section 161 (3) Cr.P.C., can be examined before the court, but the same is required to be appreciated very carefully and it carries less value and credibility.
45. The Hon'ble Karnataka High Court has relied upon the judgment of this Court also in the case of Gopal Krishna Vs. State AIR 1964 Allahabad, 481. A perusal of the statement of P.W.-3 shows that his presence on the place of incident was first claimed by P.W.-2 alongwith Laxmi Narayan. He stated before the court that the appellants had impression that deceased, Raj Kumar, being Rawa Rajpoot helps Banarasi, who also belongs to the same community and they had developed secret enmity against him. He admitted that his statement was never recorded by the investigating officer. P.W.-3 was extensively cross-examined by the prosecution, but nothing substantial and in contradiction to the statement of P.W.-2 was found his statement which supports the statement of P.W.-2 substantially except the minor contradictions which are bound to come in the statement of P.W.-3 recorded after about three years of the incident.
46. Learned Senior counsel for the appellant has also raised argument that the conviction of the appellants under arms Act cannot be sustained due to lack of evidence supporting seizure and absence of prior sanction from the District Magistrate. He has submitted that the recovery of the arms made from the appellants is not in accordance with law. He has submitted that recovery of weapons were made after long time of the incident from open place.
47. This Court finds that the manner and mode of recovery of the country-made pistol allegedly used in the crime is not in accordance with Section 27 of the Indian Evidence Act. The Apex Court in the case of Ramanand @ Nandlal Bharti Vs. State of U.P., AIR 2022 Supreme Court 5273 has considered the relevant law in paragraph nos. 66, 67 & 68 herein quoted herein below:-
"66. The scope and ambit of Section 27 of the Evidence Act were illuminatingly stated in Pulukuri Kottaya and Others v. Emperor, AIR 1947 PC 67, which have become locus classicus, in the following words:
"10. ....It is fallacious to treat the "fact discovered" within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered. Information supplied by a person in custody that "I will produce a knife concealed in the roof of my house" does not lead to the discovery of a knife; knives were discovered many years ago. It leads to the discovery of the fact that a knife is concealed in the house of the informant to his knowledge, and if the knife is proved to have been used in the commission of the offence, the fact discovered is very relevant. But if to the statement the words be added "with which I stabbed A" these words are inadmissible since they do not relate to the discovery of the knife in the house of the informant."
67. What emerges from the evidence in the form of panchnama is that the appellant stated before the panch witnesses to the effect that "I will show you the weapon used in the commission of offence". This is the exact statement which we could read from the discovery panchnama and the Investigating Officer also could not have deposed as regards the exact statement other than what has been recorded in the panchnama. This statement does not suggest that the appellant indicated anything about his involvement in concealment of the weapon. Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon. He could have derived knowledge of the existence of that weapon at the place through some other source. He may have even seen somebody concealing the weapon, and, therefore, it cannot be presumed or inferred that because a person discovered weapon, he was the person who concealed it, least it can be presumed that he used it. Therefore, even if discovery by the appellant is accepted, what emerges from the panchnama of the discovery of weapon and the evidence in this regard is that he disclosed that he would show the weapon used in the commission of offence. In the same manner we have also perused the panchnama Exh.32 wherein the statement said to have been made by the accused before the panchas in exact words is "the accused resident of Roghada village on his own free will informs to take out cash and other valuables".
68. What emerges from the evidence of the investigating officer is that the accused appellant stated before him while he was in custody, "I may get discovered the murder weapon used in the incident". This statement does not indicate or suggest that the accused appellant indicated anything about his involvement in the concealment of the weapon. It is a vague statement. Mere discovery cannot be interpreted as sufficient to infer authorship of concealment by the person who discovered the weapon. He could have derived knowledge of the existence of that weapon at the place through some other source also. He might have even seen somebody concealing the weapon, and, therefore, it cannot be presumed or inferred that because a person discovered the weapon, he was the person who had concealed it, least it can be presumed that he used it. Therefore, even if discovery by the appellant is accepted, what emerges from the substantive evidence as regards the discovery of weapon is that the appellant disclosed that he would show the weapon used in the commission of offence."
48. If, the appellant while in custody on his own free will and volition made a statement that he would lead to the place where he had hidden the weapon of offence then the first thing that the investigating officer should have done was to call for two independent witnesses at the police station itself. Once the two independent witnesses arrive at the police station thereafter in their presence the accused should be asked to make an appropriate statement as he may desire in regard to pointing out the place where he is said to have hidden the weapon of offence. When the accused while in custody makes such statement before the two independent witnesses (panch witnesses) the exact statement or rather the exact words uttered by the accused should be incorporated in the first part of the panchnama that the investigating officer may draw in accordance with law. This first part of the panchnama for the purpose of Section 27 of the Evidence Act is always drawn at the police station in the presence of the independent witnesses so as to lend credence that a particular statement was made by the accused expressing his willingness on his own free will and volition to point out the place where the weapon of offence or any other article used in the commission of the offence had been hidden. Once the first part of the panchnama is completed thereafter the police party along with the accused and the two independent witnesses (panch witnesses) would proceed to the particular place as may be led by the accused. If from that particular place anything like the weapon of offence or blood stained clothes or any other article is discovered then that part of the entire process would form the second part of the panchnama. This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter.
49. Therefore, the conviction of appellant under section 25/27 of the Arms Act cannot be upheld.
50. After aforesaid considerations, we find that there was motive of the crime set up by the prosecution on the basis of statement of P.W.-2 supported by statement of P.W.-3, which was proved before the trial court. There is no apparent contradiction in their statements which may belie the motive of commission of the offence.
51. We find that the testimony of P.W.-2 and P.W.-3 in the form of direct evidence is sufficient to uphold the conviction of the appellants apart from the motive of the crime established before the court.
52. We are of the view that conviction and sentence awarded to the appellants under section 302/34 IPC are required to be upheld. However, their conviction and sentences under section 25/27 Arms Act, are hereby set aside.
53. The appeals are partly allowed.
54. The appellant are on bail by the order of Hon'ble Apex Court. Their bail bonds are cancelled and sureties are discharged. They shall surrender forthwith and carry out their remaining part of their sentences.
55. Let the trial court record be sent back by the office within ten days.
(Ram Manohar Narayan Mishra,J.) (Siddharth,J.) September 3, 2025 Abhishek