Ajit vs State Of U.P.
2015 Latest Caselaw 2267 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A. F. R.
 
Reserved
 

 
Court No. - 40
 
Case :- CAPITAL CASE No. - 1081 of 2011
 
Appellant :- Ajit
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Ajay Kumar Singh,Ajatshatru Pandey,Saurabh Gour,Vivek Kumar Singh
 
Counsel for Respondent :- Govt. Advocate
 
Connected with
 
Reference No. 04 of 2011.
 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Mrs. Vijay Lakshmi,J.

(Delivered by Hon'ble Mr. Bala Krishna Narayana, J.)

Heard Sri A. B. L. Gour, Senior Advocate, assisted by Sri Saurabh Gour, learned counsel for the appellant, Sri J. K. Upadhyay, learned A. G. A. for the State and Sri Gopal Swarup Chaturvedi, Senior Advocate assisted by Sri Ajat Shatru Pandey, learned counsel for the complainant.

This criminal appeal has been preferred by the appellant, Ajit against the judgement dated 3.2.2011 and order dated 4.2.2011 passed by the Additional Sessions Judge, Court No. 3, Bulandshahr in S. T. No. 1321 of 2008 convicting him under Section-302 read with Sections-34 and 120B I. P. C. and Section-25 of Arms Act and sentencing him to punishment of death to be hanged by neck till death for the offence under Section-302/34 I. P. C. together with fine of Rs. 1,00,000/- to be paid to the family members of the victim, imprisonment for life under Section-302 read with Section 120B I. P. C. along with fine of Rs. 50,000/- and in default of payment of fine, additional simple imprisonment of one year and imprisonment of two years under Section 25 of Arms Act together with fine of Rs. 10,000/- and in case of default, further simple imprisonment of three months. All the sentences were directed to run concurrently. Reference made by the Additional Sessions Judge, Court No. 3, Bulandshahr to this Court for confirmation of death sentence passed by him against the appellant was registered as Reference No. 04 of 2011 before this Court and connected with this appeal by order dated 25.2.2011 passed by this Court is also being considered along with this appeal.

According to the prosecution case as spelt out in the first information report which was lodged by P. W. 4 Amit Nagpal, the son of the deceased Kishori Lal, the incident in question is said to have taken place at about 9.30 P. M. on 27.3.2008 near village Karanpur on the road while the deceased along with his three companions namely, Dr. Satyaveer, P. W. 3 Rajendra Prasad Pandey and Vijay Kumar Dheengra was returning from Anoop Shahr and going to Delhi in the ALTO car of co-accused Dr. Satyaveer. The deceased had left his home in the morning of 27.3.2008 along with Vijay Kumar Dheengra and Rajendra Prasad Pandey for going to Anoop Shahr along with Dr. Satyaveer after picking up him from his residence in Ghaziabad where they were to inspect a bridge over Ganga river in respect of which co-accused Dr. Satyaveer had promised to procure a contract in favour of the deceased for collection of toll tax and also a low priced land. On the suggestion of co-accused Dr. Satyaveer the deceased Kishori Lal had left his car in Ghaziabad and had proceeded to Anoop Shahr with Dr. Satyaveer, Rajendra Prasad Pandey and Vijay Kumar Dheengra in the ALTO car of Dr. Satyaveer. By the time the deceased and his companions had reached Anoop Shahr and inspected the bridge in question, it had become dark and since the low priced land which Dr. Satyaveer had promised to obtain for the deceased was located at a place which was at a distance of about 30-35 Kms., Dr. Satyaveer suggested that the land could be seen on some other day and thereafter they turned their car and started driving towards Delhi. While on way to Delhi Dr. Satyaveer told his companions that he had a bottle of liquor with him and suggested that they should all have liquor, to which all agreed and started consuming liquor. On the request of Dr. Satyaveer to reduce the speed of the car as his drink was spilling over his glass, the deceased who was driving the car, slowed down, whereupon a grey colour INDICA car which was seen by them frequently on the way over took the deceased's car and stopped abruptly in front of his car forcing him also to stop his car and at that point of time a man who was wearing a white shirt and having light beard and revolver in his hand, alighted from the INDICA car with his revolver and shot twice at his father with his revolver causing two firearm injuries to him. The killer thereafter got into the INDICA car and sped away towards Bulandshahr. The deceased's son was telephonically informed about the incident by Sheetu, son of Rajednra Prasad Pandey on his instruction and later on Rajendra Prasad Pandey had also talked to him. On receiving the aforesaid information the informant along with his other family members, rushed to Anoop Shahr and upon reaching government hospital Anoop Shahr, where his father had been taken to by his companions after the incident, found him dead. Rajednra Prasad Pandey and Vijay Kumar Dheengra were also present in the hospital. Rajendra Prasad Pandey and Vijay Kumar Dheengra had told the informant that Dr. Satyaveer had palavered his father Kishori Lal to go to Anoop Shahr on the promise of procuring a contract for collection of toll tax in respect of a bridge over Ganga river and a low priced land and while returning from Anoop Shahr Dr. Satyaveer was frequently talking to different persons and hence the complainant believed that Dr. Satyaveer had a hand in the murder of his father along with his ex-friend Sukhmal Chand Jain whom he suspected was also involved in the conspiracy. The chek F. I. R. (Ext. Ka 8) which was registered at P. S.-Anoop Shahr on the basis of the written report (Ext. Ka 7) submitted by P. W. 4 Amit Nagpal, son of the deceased, perusal whereof clearly indicates that the informant Amit Kumar Nagpal was not the eyewitness of the incident and the facts which had been stated by him in the first information report except those that his father had left his home in Delhi at about 10.00 A. M. and he suspected that the deceased's Ex-friend Sukhmal Chand Jain also had a hand in the conspiracy, were intimated to him by Rajendra Prasad Pandey (P. W. 3) who along with Dr. Satyaveer (co-accused) and Vijay Kumar Dheengra had witnessed the incident.

On the basis of aforesaid written complaint of P. W. 4 Amit Nagpal, chek F. I. R. (Ext. Ka 8) was prepared at the police station by the police constable Dhyan Singh P. W. 6 and registered as Case Crime No. 100 of 2008 under Section 302 I. P. C. against Dr. Satyaveer and Sukhmal Chand Jain and entry thereof was made in the G. D. at serial No. 2, at about 00.45 A. M. on 28.3.2008, photostat copy whereof was brought on record as Ext. Ka 11. The investigation was entrusted to S. O. Karan Singh Chauhan P. W. 5 who along with S. I. Lal Mohd. P. W. 1, Constable Mahesh Chand and Constable Raj Kumar proceeded to the hospital where the corpse of the deceased Kishori Lal was kept. S. I. Lal Mohd. prepared the inquest report (Ext. Ka 1), sketch of the corpse (Ext. Ka 5) and challan corpse (Ext. Ka 4). He also prepared the letters addressed to the C. M. O. and R. I. Police (Ext. Ka 2 and Ext. Ka 3 respectively). According to the inquest report the deceased was wearing white coloured half safari shirt, half vest, white coloured safari pant, jockey underwear, white socks and Italian leather white shoes. The inquest report further indicated that the deceased had three blood smeared injuries on his right cheek, left side of forehead, front side of right hand, and an injury over the right elbow. According to the inquest report the deceased had died as a result of firearm injuries found on his body. The dead body of the deceased was packed and sealed and sent for autopsy. The post mortem of the dead body of the deceased was performed on 28.3.2008 at 2.00 P. M. by Dr. Aditya Pal Singh P. W. 2 who prepared the post mortem report (Ext. Ka 6), along with autopsy report and handed over to the police a sealed bundle containing the apparels and the shoes worn by the deceased at the time of the incident. According to the post mortem report of the deceased four firearm injuries were found on the dead body of the deceased including one exit wound.

The post mortem report further mentioned that the deceased had died due to shock and haemorrhage as a result of ante mortem injuries and the death had occurred about 3/4 day ago. S. I. Karan Singh Chauhan visited the place of occurrence along with Rajendra Prakash Pandey and Vijay Kumar Dheengra and prepared the site plan (Ext. Ka 9) on 29.3.2008. Dr. Satyaveer and Babbal alias Gyanendra were arrested from their respective residences in Ghaziabad on 30.3.2008. On the same day, S. I. Vinod Pandey arrested Shukhmal Chand Jain and Raju alias Raj Kumar. S. I. Karan Singh Chauhan took a sample of blood stained foam rexine from the driver's seat of ALTO car bearing registration No. DL-9CN/4200 which was being driven by deceased Kishori Lal at the time of the incident on 8.9.2008. The sample of blood smeared foam rexene was wrapped in a white paper and sealed and fard memo (Ext. Ka 10) was prepared.

The investigation was later on entrusted to S. I. Anil Kumar P. W. 7 who arrested the appellant Ajit on 14.5.2008 while he was already in judicial custody. On 6.7.2008 S. I. Anil Kumar along with S. I. Vinod Kumar, constable Deepak Kumar proceeded from police station Anoop Shahar in a government jeep with driver constable Chaman Lal and the appellant for recovery of country made pistol of 315 bore allegedly used in the commission of crime in question. When they reached Debai road, three kms. from Anoop Shahar the appellant asked them to halt the jeep. Leaving the jeep and driver on road, the police personnel followed the appellant and when they reached at a spot about 20 feet away from the road in the east, the appellant took out a country made pistol of 315 bore from under the bushes of bhang at 7.35 p. m. from the opposite side of the field of bajra and arahar belonging to Udham Singh. On opening the barrel of the country made pistol, an empty cartridge was found stuck therein. The recovered country made pistol and empty cartridge were wrapped in a white cloth and sealed. Specimen of seal was prepared on the spot. Seizure memo (Ext. Ka 12) was prepared after recovery of the country made pistol allegedly used in crime, chek F. I. R. (Ext. Ka 13) was lodged on 6.7.2008 at 8.50 A. M. at P. S.-Anoop Shahr and registered as Case Crime No. 266 of 2008 under Section 25 of the Arms Act. Site plan (Ext. Ka 15) was prepared by S. I. Ajay Kumar on 7.7.2008. The District Magistrate, Bulandshahr gave sanction (Ext. Ka 17) on 7.8.2008 for prosecution of the appellant under Section 25 of Arms Act.

After completion of investigation, charge-sheet (Ext. Ka 16) was filed on 9.7.2008 in Case Crime No. 266 of 2008 under Section 25 of Arms Act and charge-sheet (Ext. Ka 14) dated 4.9.2008 was laid in Case Crime No. 100 of 2008 under Sections-302/34 and 120B I. P. C. against the accused-appellant Ajit.

Both the cases were committed to the Court of Sessions for trial and registered as S. T. Nos. 1321 of 2008 and 1327 of 2008. After committal of the cases charges were framed against the appellant under Sections 302/34 and 120B I. P. C. and under Section 25 of Arms Act in S. T. No. 1321 of 2008 and S. T. No. 1327 of 2008 on 10.2.2009 and 24.2.2009 respectively by the Court of Additional Sessions Judge, Court No. 3, Bulandshahr. The appellant denied the charges framed against him and claimed trial. S. T. No. 1321 of 2008 was amalgamated with S. T. No. 1327 of 2008, former being the leading case.

In support of its case the prosecution examined S. I. Lal Mohd. as P. W. 1; Dr. Aditya Pal Singh as P. W. 2, who had conducted the autopsy of the corpse of the deceased; eye witness Rajendra Prakash Pandey P. W. 3; informant-complainant Amit Nagpal as P. W. 4; S. I. Karan Singh Chauhan, the Investigating Officer of the case as P. W. 5; constable Dhyan Singh, scribe of the chik F. I. R. as P. W. 6; S. I. Anil Kumar to whom the investigation was entrusted later as P. W. 7, S. S. I. Jagat Singh who had submitted the charge-sheet as P. W. 8; S. I. Ajay Kumar who had investigated Case Crime No. 1727 of 2008, under Section 25 of Arms Act as P. W. 9 and constable Hem Pal Singh as P. W. 10.

The accused-appellant Ajit in his statement recorded under Section 313 Cr. P. C. denied all the charges and stated that he had been falsely implicated due to enmity and at the instigation of the police.

S. I. Lal Mohd. who was examined as P. W. 1, proved photocopies of the inquest report, paper nos. 12-A/1 and 12-A/2, letter addressed to R. I. 12A/3, letter addressed to the C. M. O. 12A/4, Challan corpse 12-A/5 and sketch of the corpse 12-A/6 after comparing those papers with the originals and recorded his signatures thereon. The aforesaid papers were marked as Ext. Ka 1 to Ext. Ka 5. In his cross examination P. W. 1 stated that the inquest was completed by 2.45 A. M. and during the inquest I. O. of the case was present. He further deposed that none of the inquest witnesses had told him that he was an eyewitness of the incident. He recorded the firearm injury visible on the right cheek of the deceased in the inquest report.

P. W. 2 Dr. Aditya Pal Singh who had conducted the autopsy of the deceased's corpse had found following ante mortem injuries on the dead body:

(1) Firearm wound of entry 1.5 cm x 1.0 cm brain cavity deep. On right side face, 1 cm above from right angle of mandible margins were found interverted. Blackening and tattooing was present on right pinna and right side of the nose. On exploration right maxilla base was found broken.

(2) Firearm would of exit 2 cm. x 1.5 cm communicating with injury No. (1); Left parietal and frontal bones were found broken. Membrane of the bone was lacerated; 80 ml. of blood was present in cranial cavity.

(3) Firearm would entry 1 cm x 1 cm chest cavity deep was present on outer and back of upper part of right upper arm; On exploration, track was found towards chest; third rib on the front of chest was found broken; Right lung and right pleura was lacerated; about one litre of the blood was present in right side chest cavity. one metallic bullet was recovered from right side chest cavity.

(4) Firearm wound of entry 1 cm x 1 cm muscle deep, on black of right upper arm, 3 cm above from right elbow was found; blackening and tattooing was present in an area of 9 cm x 5 cm around the wound. One metallic bullet was recovered from the muscles of right upper arm.

P. W. 2 proved the photostat copy of the post mortem report on record after comparing it with the original which was filed in S. T. No. 729 of 2008; State Versus Satyaveer which was marked as Ext. Ka 6. P. W. 2 further stated that it was possible that the death of the deceased had occurred on 27.3.2008 at about 9.00 P. M. due to firearm injuries received by him. P. W. 2 also stated that he had handed over the apparels and the shoes worn by the deceased in a sealed envelop to the two constables and two bullets which were recovered from the deceased's dead body and two samples of specimen seal and post mortem report with all police papers. In his cross examination P. W. 2 stated that he had received police papers and the corpse of the deceased on 28.3.2008 at about 2.00 P. M. He neither found any wallet in the clothes of the deceased nor any smell of liquor emanating from the decesased's mouth. He also stated that blackening and tattooing were present around injury No. 1 which could have been caused due to firing from a distance of 1-1/2 feet. With regard to injury no. 3 around which no blackening or tattooing was present he stated that the said injury could be caused due to firing from a distance.

P. W. 3 Rajendra Prasad Pandey, the solitary eyewitness of the incident stated in his examination-in-chief that he knew the deceased Kishori Lal for the last five or six years. The incident had occurred on 27.3.2008. On that day, he had reached the house of Kishori Lal in New Delhi at about 9.30 A. M. whereupon Kishori Lal had asked the P. W. 3 to accompany him to Anoop Shahr, where Dr. Satyaveer had promised to procure a contract for collection of toll tax in respect of a bridge over the Ganga river and a low priced land. The deceased Kishori Lal, P. W. 3, Rajendra Prasad Pandey and Vijay Kumar Dhingra had set out from the deceased's house at about 10.00 A. M. in the deceased's INDICA car for picking up Dr. Satyaveer from his house in Ghaziabad. When they reached district Ghaziabad Dr. Satyaveer suggested that the deceased should leave his Indica car there and they should go to Anoop Shahr in his ALTO car, to which the deceased agreed and thereafter they along with Satyaveer left Ghaziabad in his ALTO car bearing registration No. DL-9CN/4200 for Anoop Shahr where they reached at about 6.00 P. M. and saw the bridge. After the bridge had been surveyed Dr. Satyaveer stated that the land in question was situated at a place which was about 35 kms. away, the same could be seen on any other day as it had become dark, to which the deceased agreed. P. W. 3 further deposed that from Anoop Shahr they drove to the house of one Vikas Solanki, son of the maternal aunt of the accused Babble where they had tea. Babble was also present in the house of Vikas Solanki at that time. Dr. Satyaveer took out a bottle of liquor from his car and gave it to Babble and told him to inform Ajit (appellant) that they were going to Delhi and thereafter they all left Anoop Shahr for Delhi. While driving back to Delhi Dr. Satyaveer suggested to the occupants of the car that they should have liquor. Accordingly, each of them started consuming liquor. When they reached near village Karanpur at about 9.30 P. M., Dr. Satyaveer requested the deceased to slow down, as his drink was spilling over his glass and at that moment, an INDICA car of grey colour which was being driven by Raju and in which the appellant-Ajit was also sitting, came from behind and appellant Ajit took out his revolver and came out of his car and came near their car and fired at the deceased Kishori Nagpal. They took the deceased Kishori Lal Nagpal to Anoop Shahr hospital where doctors declared him dead. The appellant Ajit had fled away in the INDICA car after shooting the deceased. He identified the person present in the Court who had shot the deceased Kishori Lal Nagpal as the appellant Ajit.

P. W. 3 Rajendra Prasad Pandey further deposed that while they were carrying deceased Kishori Lal to Anoop Shahr, Dr. Satyaveer was continuously talking to someone on his phone. He also stated that Dr. Satyaveer and Sukhmal Chand Jain had misappropriated crores of rupees of Kishori Lal Nagpal and deceased's murder was committed pursuant to a conspiracy hatched by Dr. Satyaveer, Babble and Sukhmal Chand Jain. He also stated that immediately after the incident Dr. Satyaveer while seated inside the car itself, had informed Manoj Jain, brother-in-law of Sukhmal Chand Jain that the task was done.

In his cross examination P. W. 3 stated that regarding the same incident another trial State Versus Satyaveer and others was going in the Court against the other co-accused in which also he had given evidence. P. W. 3 after looking at the certified copy of his statement recorded in the other trial Paper No. 3A stated that he had given evidence in that case in which evidence of Amit Kumar Nagpal was also recorded. P. W. 3 Rajendra Prasad Pandey stated that Kishori Lal Nagpal was a rich person living a luxurious life. He used to wear gold chain, gold and diamond rings and used to carry wallet. He further stated that the incident had taken place on 27.3.2008 and the Investigating Officer had recorded his statement on the second day of the incident and not on the same day. On 27.3.2008 he had reached hospital at about 9.30 P. M. with the dead body of the deceased Kishori Lal. S. I. and police personnel had reached the hospital approximately after five minutes and had started necessary proceedings relating to inquest including doing of necessary paper work which continued approximately till 12.-1.00 o'clock. He identified his signatures on the inquest report. He also deposed that the S. I. had recorded his statement on 29.3.2008. Vijay Kumar Dhingra was the munim of Kishori Lal looking after his business and correspondence. P. W. 3 also looked after the deceased's business. On the date of the incident, i. e. 27.3.2008 munim Vijay Kumar Dhingra had also accompanied him. He further stated that in S. T. No. 739 of 2008 he had deposed that the I. O. had recorded his statement on the second day of the incident but as the incident had taken place at night, therefore he had stated that his statement was recorded on the second day of the incident. He further stated that the incident had taken place on 27.3.2008 at about 9.00-9.15 P. M. and not on 28.3.2008. He further expressed his inability to give any reason for the informant Amit Nagpal having mentioned the date of the incident in the first information report as 28.3.2008. P. W. 3 further stated that within five minutes of the occurrence he had given intimation of the same to Amit Nagpal by his cell phone. He had also informed his son and Vikas Solanki about the incident by his cell phone. The initial information which he had given was that Nagpal had died in a firing incident in Bulandshahr. He had not given the details of the incident on mobile. He admitted that in S. T. No. 739 of 2008 he had stated that he did not know Raju before the incident. He also stated that he had not disclosed the name of Raju in his statement recorded under Section 161 Cr. P. C. rather he had stated that he would be able to recognize the person who was driving the car, if he was brought before him. He also admitted having not disclosed to the S. I. that Raju was driving the car. He further admitted that he had narrated the entire incident to P.W. 4 Amit Kumar Nagpal in the hospital including the fact that he knew Ajit (appellant) previously by face but not by name, and that he had seen him along with Babble and Dr. Satyaveer in Ghaziabad court lock up where he had gone to meet Satyaveer on receiving a call from him. He further admitted that in his statement made to S. I. he had not disclosed that it was the appellant Ajit who had fired rather he had told that he would recognize the person who had fired if he was produced before him. He further admitted that in his evidence given in S. T. No. 739 of 2008, he had neither disclosed the name of the person who had fired at the deceased nor the fact that he had seen him in Ghaziabad Court lock up before the incident. He had also admitted that he had not told the investigating officer that after Dr. Satyaveer had handed over a bottle of liquor to Babble and had told him that they were going to Delhi and had further asked him to communicate the aforesaid information to Ajit.

P. W. 4 Amit Nagpal stated in his examination-in-chief that the deceased Kishori Lal was his father. On 27.3.2008, i. e. the date of the incident, his father had left his house for Delhi at about 10.00 a. m. with Rajendra Prasad Pandey and Vijay Kumar Dhingra saying that Dr. Satyaveer had called him to Ghaizabad for going with him to Anoop Shahr for surveying a bridge over Ganga river in respect of which he would help him in procuring the contract for collection of toll tax and a low priced land. His father did not return back. At 9.50 P. M. he received a call from Sheetu, S/o Rajendra Prasad Pandey informing him that someone had shot his father. On getting the aforesaid information, he and his other family members immediately set out for Anoop Shahr where they reached at about 12.00 o'clock in the night and discovered that his father had died. There he talked to P. W. 3 Rajendra Prasad Padney, who narrated the entire incident to him. Later he came to know that Dr. Satyaveer, Sukhmal Chand Jain, Babble and Ajit who were present in the Court had conspired to commit his father's murder in furtherance of a criminal conspiracy hatched by them in this regard. He also stated that the accused Ajit (appellant) who was present in the court had fired at Kishori Lal causing his death. His father was murdered on 27.3.2008 at about 9.00 P. M. on the road within the limits of Karanpur village between Anoop Shahr and Bulandshahr. The car in which the shooter (appellant) had come was being driven by Raju. P. W. 4 after comparing the original F. I. R. (Ext. Ka 1), part of the record in S. T. No. 739 of 2008; State Versus Satyaveer and another, with the photostat copy of the first information report on record, proved the same as Ext. Ka 7.

In his cross examination, P. W. 4 Amit Nagpal has stated that Vijay Kumar Dhingra who was looking after his father's business and Rajendra Prasad Pandey had left his home along with his father on the date of the incident, he got the information of the incident firstly from Sheetu, son of Rajendra Prasad Pandey and later Rajendra Prasad Pandey had also phoned him. He gave the details of the wealth and properties of his late father and stated that he was a rich person living a luxurious life, he had a licensed revolver which he always kept with him. He also had a driving license which he would often keep with him. He always wore gold chains and rings and carried a wallet. Several persons were trying to obtain the contract in respect of the bridge over the Ganga river, which his father had gone to see as the contract was a profitable proposition. His father was paying income tax to the tune of Rs. 3.5 to 4 lacs per annum. He further admitted in his cross examination that in the connected trial he had stated that neither the accused Raju nor the accused Ajit (appellant) were previously known to him. He further deposed that the fact that it was Raju who was driving the grey colour car and Ajit who had shot his father was told to him by the police and since he did not know the aforesaid facts until the same were communicated to him by the police, he did not mention their names in the first information report. P. W. 4 Amit Nagpal also stated that when he reached Anoop Shahr hospital, the dead body of his father was already lying there and two or three police personnel were present. He stayed there for about an hour. He identified the dead boy of his father when the S. I. was writing necessary papers. Thereafter he went to police station for lodging the first information report. At the time of lodging of the first information report, he did not know whether the I. O. was present in the police station or not ? He also admitted that in his evidence recorded in Sessions Trial No. 739 of 2008 he had stated at the time of writing of first information report, the Investigating Officer was talking to him and whatever the Investigating Officer had told him to write, was written by him in the first information report and what he did not say, was not written there.

P. W. 5, S. I. Karan Singh in his evidence tendered before the trial court proved the photostat copy of the chek F. I. R., site plan and the recovery memo of the sample of blood drawn from the driver's seat of the car which the deceased was driving, after comparing the same with the original documents filed in S. T. No. 739 of 2008 on which Ext. Ka 8, Ext. 9 and Ext. 10 were recorded. Apart from giving the other details of the investigation of the case done by him in his cross examination he denied the suggestion of the defence that the dead body of the deceased was found lying somewhere within the jurisdiction of the concerned police station P. W. 6 Constable Dhyan Pal Singh stated in his examination-in-chief that on the date of incident he was posted as C. C. at Anoop Shahr. On that date he had registered Case Crime No. 100 of 2008; State Versus Satyaveer, under Section 302 I. P. C. on the basis of the written complaint given by the complainant Amit Nagpal. He had prepared Chek F. I. R. and G. D. of the case in his own handwriting. The witnesses proved the photostat copy of the Chek F. I. R. after comparing the same with the original which was part of the record of S. T. No. 739 of 2008 as Ext. Ka 10. He also stated that the entry of the case was made at serial No. 2 in the G. D. on 28.3.2008 at about 00.45 A. M. He proved the photostat copy of the G. D. after comparing the same with the original, on which Ext. Ka-11 was recorded. In his cross examination P. W. 6 stated that the complainant had given the written complaint of the incident at about 00.45 A. M. At that time, I. O. Karan Singh Chauhan and S. I. Lal Mohd. were present at the police station. The first information report was with regard to an incident which had occurred on 27.3.2008. On the basis of the first information report case was registered and entry was also made in the G. D. P. W. 6 further stated that case was initially registered against Rajnedra Prasad Pandey and Vijay Kumar Dhingra and Sukhmal Chand Jain. He further stated that the names of Rajendra Prasad Pandey and Vijay Kumar Dhingra were recorded in the column of the accused in the F. I. R. as a routine mistake as he could not understand from the reading of the complaint that who was the witness and who was the accused. In the first information report, the date 28.3.2008 was mentioned below the signatures of the complainant. The incident had taken place on 27.3.2008 at about 9.00 P. M. Case was registered at 0.45 A. M. and it was on account of the aforesaid, date 28.3.2008 was inadvertently written in chek F. I. R. although the date and time of the incident was 27.3.2008 at about 9.00 P. M. He further stated that in the chek F. I. R. the date of the incident was recorded as 27.3.2008 by overwriting, over the figure "28" as the date of incident was wrongly written in the chik F. I. R. as 28.3.2008. He had also stated that he had verified from the complainant that the date of incident was 28.3.2008.

P. W. 7 S. I. Anil Kumar who had taken over the investigation of Case Crime No. 100 of 2008 from P. W. 5 Karan Singh by transfer deposed that he had arrested the appellant while he was in jail in connection with another case. He proved Ext. Ka 12, memo of recovery of country made pistol on the pointing out of the appellant and the chek F. I. R. (Ext. Ka 3) which was registered as Case Crime No. 266 of 2008 under Section 25 of Arms Act and the Material Ext. Ka 12, country made pistol (crime weapon) allegedly recovered on the appellant's pointing out and the empty cartridge and furnished other details of the investigation done by him in this case.

P. W. 8 Jagat Singh Sharma proved the charge-sheet submitted by him against the appellant on 4.9.2008 namely charge-sheet No. 75A/2008 Ext. Ka 14.

P. W. 9 Ajay Kumar who had investigated Case Crime No. 266 of 2008; proved Ext. Ka 15 site plan of the place from where crime weapon was allegedly recovered on the pointing out of the appellant, charge-sheet submitted by him in the aforesaid case Ext. Ka 16 and permission received from the District Magistrate for prosecuting the appellant under Section 25 of Arms Act, Ext. Ka 17.

P. W. 10 constable Hem Pal Singh proved the chek F. I. R. on the basis of which Case Crime No. 266 of 2008 (Ext. Ka 18) was registered against the appellant-Ajit and Ext. Ka 19, carbon copy of the G. D. entry showing the registration of Case Crime No. 266 of 2008, under Section 25 of Arms Act at serial No. 14.

The Additional Sessions Judge, Court No. 3, Bulandshahr after considering the entire evidence on record and the submissions advanced before him by learned counsel for the respective parties convicted the appellant Ajit under Sections-302/34 and 120B I. P. C and under Section-25 of Arms Act and awarded the aforesaid sentences to him.

Sri A. B. L. Gour, learned Senior counsel for the appellant has submitted that having regard to the charges framed and evidence adduced by the prosecution the conviction of the appellant under Section-302/34 and 120B I. P. C. and under Section 25 of Arms Act is in no way permissible. Sri Gour further submitted that the F. I. R. of the incident which was lodged after the inquest is proved to be an ante timed document from the evidence of the informant P. W. 4 Amit Nagpal itself. The F. I. R. further contains over writings which have not been initialled and interpolations in the column of the accused's name in the F. I. R. which indicate that the names of the persons who were originally nominated as accused in the F. I. R. were scored out by putting whitener and the names of Dr. Satyaveer and Suhkhmal Jain were subsequently written in their place. Column 5 of the first information report shows that initially names of three persons were recorded as accused in the Column of the accused and the appellant was not named in the F. I. R. He next submitted that the prosecution had failed to identify the person who had shot the deceased and to connect the country made pistol recovered at the alleged pointing out of appellant from an open piece of land which is accessible to the public at large, with the crime in question, by any reliable and legally admissible evidence. The evidence of identification of the appellant by the sole eye witness Rajendra Prasad Pandey (P. W. 1) as the shooter although there was virtually no source of light at the time and place of incident for the first time, in the Court during trial in the absence of the appellant being identified as the main perpetrator of the alleged offence through an identification parade was legally inadmissible and prosecution having failed to adduce any direct and convincing evidence to establish that the appellant was the assailant, his conviction which is based upon evidence of sole eyewitness Rajendra Prasad Pandey, which does not inspire any confidence and which is full of omissions, contradictions and material improvements, if maintained, shall be a travesty of justice.

Sri Gour also submitted that having regard to the state of evidence on record the trial court has grossly erred in law and on facts in convicting the appellants under the aforesaid provisions of I. P. C. and in awarding the extreme penalty of death sentence.

Sri Gour lastly submitted that the prosecution had failed to adduce any cogent evidence to prove any of the charge against the appellant. He also submitted that in view of the above Reference No. 04 of 2011 made by the Additional Sessions Judge, Court No. 3, Bulandshahr for confirmation of the death sentence passed by him against the appellant to this Court is also liable to be turned down.

Per contra, learned A. G. A. submitted that the complicity of the appellant was unmistakably proved by the evidence of the witness P. W. 3 and his identification by him in the Court which constitutes substantive evidence. The overwritings and the alleged interpolations in the F. I. R. were fully explained by Dhyan Singh P. W. 5. He also submitted that the accused is not entitled to get the benefit of any loopholes in the investigation in view of the settled law on the issue. The findings recorded by the trial court in the impugned judgement are findings of fact based on proper appreciation of evidence and require no interference by this Court.

Sri G. S. Chaturvedi, learned counsel for the complainant adopted the submissions made by learned A. G. A.

We have carefully weighed the rival submissions and scanned the law reports cited on behalf of the learned counsel for the parties.

Having very carefully gone through the entire oral as well as documentary evidence adduced by the prosecution for brining home the charge under Sections-302 read with Sections-34 and 120B I. P. C. against the appellant we find that the prosecution has produced only two witnesses of fact namely P. W. 3, Rajendra Prasad Pandey and P. W. 4 Amit Kumar Nagpal of whom only P. W. 3 Rajendra Prasad Pandey alone is the eye witness.

So far as the credibility of the F. I. R. in this case is concerned, we find that the written report (Ext. Ka 7) and the chik F. I. R. (Ext. Ka 8) which was registered on the basis of the aforesaid written complaint (Ext. Ka 7), the date of incident appears to have been first written as 28.3.2008 but later on by over writing figures "28" were changed to figures "27". The said overwritings have not been initialled by any police official. Column No. 7 of the first information report which contains the names of the accused / suspects shows that initially the names of three persons were recorded therein as accused but later their names were scored out by using a white substance and thereafter the names of Dr. Satyaveer, Sukhmal Chand Jain were written in the column of the accused. The written report Ext. Ka 1 also appears to be doubtful for the reason that its last five lines appear to have been interpolated therein subsequently because the same have been written with comparatively lesser space and in relatively small letters. A perusal of the corresponding G. D. entry (Ext. Ka 11) also indicates that the names of Dr. Satyaveer and Sukhmal Chand Jain have been added subsequently by scribing three lines pertaining to the aforesaid accused on the back of the G. D.

P. W. 6 constable Dhyan Pal Singh who had prepared the chek F. I. R. and made corresponding entries in the G. D. in reply to the questions put to him by learned defence counsel with regard to aforesaid discrepancies stated that initially the case was registered against Rajendra Prasad Pandey, Vijay Kumar Dheengra and Sukhmal Chand Jain but since the names of Rajendra Prasad Pandey and Vikay Kumar Dheengra were erroneously recorded in the column of accused as he was unable to understand initially as to who was the accused and who was the witness and the mistake had occurred as a matter of routine mistake, appears to be thoroughly dissatisfactory. It has also come in his evidence that the date of the incident was initially written as 28.3.2008 but later on it was changed to 27.3.2008. The first informant of this case was not the eye-witness of the incident and as a result certain very material facts do not find any mention in the F. I. R. There is no mention in the first information report that the eyewitness Rajendra Prasad Pandey had told the informant Amit Kumar Nagpal that he knew the person who had fired at his father by face and that he had seen him before in Ghaziabad court lock up where he had gone to meet Satyaveer on his call or that he would be able to recognize him if he was produced before him. Although the F.I.R reflects that the facts narrated therein were communicated to the informant Amit Kumar Nagpal by P. W. 3 Rajednra Prasad Pandey and his son Sheetu but P. W. 4 Amit Kumar Nagpal admitted that in his evidence tendered in S. T. No. 739 of 2008; State Versus Satyaveer and others which arose from the same incident that when he was writing the first information report, the I. O. was talking to him and whatever he had told him to write in the F. I. R., he had written and what he had not told him, was not written by him in the F. I. R. Certified copy of the statement of P. W. 4 Amit Kumar Nagpal recorded in S. T. No. 739 of 2008 was filed in the present sessions trial.

Thus, from the evidence of P. W. 4 Amit Kumar Nagpal it is proved that the facts which he had written in the F. I. R. were told to him by the I. O. and in view of the above, F. I. R. itself has become an extremely suspicious document and the aforesaid fact totally demolishes the credibility of the F. I. R. rendering it to be totally suspicious document and the prosecution case extremely doubtful. Learned counsel for the appellant has also disputed the time of the occurrence by referring to the ovewritings on the dates mentioned in the written report and chek F. I. R. and also on the ground that the special report was sent to the Magistrate on 29.3.2008 as is evident from the note made n the left side top corner of chik F. I. R. and seen by him on 31.3.2008. The inordinate delay in this regard has not been satisfactorily explained which creates doubt with regard to the date and time of occurrence.

The issue which next arises is whether the evidence of Rajendra Prasad Pandey P. W. 3, the solitary eyewitness of the incident in the absence of any corroboration, could have been made basis for convicting the appellant and sentencing him to death.

There is no quarrel with the settled legal position that conviction can be based on the testimony of a solitary witness provided his / her evidence is found to be un-impeachable, reliable or trustworthy and further stands corroborated by other evidence available on record but where after scrutinizing the evidence of such witness it transpires that it is substantially in variance with the statements given by him to the police at the earlier occasions and he or she has considerably improved his / her statement given before the court and the omissions in the statements given to the police are of very serious nature, the same will make his / her statement before the court false and un-acceptable.

In this regard we refer to the following facts which P. W. 3 Rajendra Prasad Pandey had not stated in his statement recorded before the police but which find mention in his statement recorded before the Court:

(i) That after inspecting the bridge over Ganga river, the deceased and his companions had gone to the house of Vikas Solanki, son of maternal aunt of the co-accused Babble and had tea there and at that time co-accused Bable was also present there;

(ii) That Dr. Satyaveer had taken out a bottle of liquor and given it to Babble with the instructions to him to inform the appellant that they were proceeding towards Delhi;

(iii) That although he did not know the person who had shot the deceased with his firearm by name but he knew him previously by face and had seen him in Ghaziabad court lock up along with Babble and Dr. Satyaveer where he had gone on receiving a call from Dr. Satyaveer; and

(iv) That immediately after the incident Dr. Satyaveer had while seated inside the car had informed Manoj jain, brother-in-law of Sukhmal Chand Jain that the work had been done.

Another salient feature of the evidence of P. W. 3 is that although in this case he gave evidence against the appellant saying that the appellant who had shot the deceased was known to him by face previously but in his examination-in-chief recorded on 5.9.2008 in S. T. No. 739 of 2008 in which he was examined as P. W. 1 he had neither stated that he knew the person who had shot the deceased previously by face or that he had seen him in Ghaziabad court although chargesheet had been submitted against the appellant just a day before on 4.9.2008. Similarly, the informant P. W. 4 Amit Kumar Nagpal who was examined as P. W. 2 in S. T. No. 739 of 2008 had neither named the appellant as the person who had shot his father nor that P. W. 3 Rajendra Prasad Pandey had told him that he knew the shooter previously by face and he had seen him in Ghaziabad court and when the prosecution realized the aforesaid blunder, on the next date which was fixed for the cross examination of P. W. 1, 2 (P. W. 3 and 4 in this case) before their cross examination could commence, an application was moved for recalling P. W. 1 (P. W. 1 in S. T. No. 739 of 2008) and P. W. 4 Amit Kumar Nagpal (P. W. 1 in S. T. No. 739 of 2008) which was allowed and they named the appellant as the shooter in their evidence tendered by them on their recall without any satisfactory explanation for their failure to take the name of the appellant in their deposition earlier as the person who had shot the deceased.

Thus, in view of the foregoing discussions, we find that not one but several facts stated by P. W. 3 Rajendra Prasad Pandey in his statement recorded in this case on the basis of which the trial court has held him guilty and convicted him under Section-302 I. P. C. read with Sections-34 and 120B I. P. C. neither find mention in the F. I. R, which reflects that the facts stated therein by the informant Amit Kumar Nagpal were narrated to him by the alleged eyewitness of the occurrence Rajendra Prasad Pandey (P. W.3) nor in the statement of P. W. 3 recorded under Section 161 Cr. P. C. or in his examination-in-chief recorded in S. T. No. 739 of 2008 which arose from the same incident in which other co-accused of this case were tried and convicted. In fact on the earliest occasion P. W. 3 has omitted to state that he knew the appellant previously by face and he had seen in him Ghaizabad court. The aforesaid omissions, in our opinion, amount to improvements and the said improvements on several places in his evidence go to the root of the prosecution case and materially affect the same and at the same time rendering the same not worthy of credence and un-reliable.

We stand fortified in our view by the law laid down by the Apex court in the case of Yudhishtir Versus The State of Madhya Pradesh along with connected case Raj Kumar and another Versus State of Madhya Pradesh reported in 1971 SCC (Cri.) 684 wherein the apex court has held as hereunder:

"24. Mr. Shroff, learned counsel for the State, has attempted to explain away these circumstances on the ground that they are only minor omissions which will not affect the credibility of their evidence given before the court. We cannot accept this contention of the learned counsel. We are of the opinion that these omissions, pointed out above, are not minor, but they are omissions of a very substantial nature, which affect the truth of the evidence given before the Court. On the earliest occasion these witnesses have omitted to refer to the decisive role stated to have been played by the appellants in the commission of murder. Therefore, the statement before the Court implicating appellants must, in the circumstances, be considered to be an improvement."

Similarly, the apex Court in the case of Ram Kumar Pande Versus The State of Madhya Pradesh reported in AIR 1975 SC 1026 has expressed similar view:

"No doubt, an F. I. R. is a previous statement which can, strictly speaking, be only used to corroborate or contradict the maker of it. But omissions of important facts, affecting the probabilities of the case, are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case."

In the case of Sunil Kumar Shambhudayal Gupta and others Versus State of Maharashtra reported in [2011 (72) ACC 699], the apex Court has held as hereunder:

"14. Material Contradictions: While appreciating the evidence, the Court has to take into consideration whether the contradictions / omissions had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies, embellishments or improvements on trivial matters without affecting the core of the prosecution case should not be made a ground to reject the evidence in its entirety. The Trial Court, after going through the entire evidence, must form an opinion about the credibility of the witnesses and the Appellate Court in normal course would not be justified in reviewing the same again without justifiable reasons.

21. Mere marginal variations in the statements cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars, i. e., go to the root of the case / materially affect the trial or core the prosecution's case, render the testimony of the witness liable to be discredited."

In the case of Sampath Kumar Versus Inspector of Police, Krishnagiri reported in [2012 (77) ACC 251] the Apex Court in para 8 has held as hereunder:

"8. Coming to the facts of the present case, the prosecution relies entirely upon the deposition of PWs. 1, 2, 3 and 7. Of these depositions PWs. 1, 2 and 3 are not admittedly eye- witnesses to the occurrence, nor have they stated anything against the appellants except that the deceased was fond of Usha and wanted to marry her which was not to the liking of her brother-Velu, the appellant before us. It is only the deposition of Palani (PW7) that holds the key to whether the appellants are guilty or innocent. According to this witness who was sleeping with the deceased in the verandah of the house of PWs 1 to 3, at about 2.45 a.m. at night he heard a sound that woke him up. He also noticed the appellants standing near the deceased. According to the witness, the appellants threatened him not to disclose anything to anyone otherwise he would meet the same fate. The witness, however, made no disclosure to PWs. 1, 2 and 3 who were inside the house, even when they had been woken up because of the sound and wanted to come out but could not because the door was bolted from outside. He made no disclosure of what he had seen even after the police had arrived at the scene after the registration of the case. In his statement before the police under Section 161 Cr.P.C., Palani (PW7) made no such accusations against the appellants nor did he disclose to anyone that he had seen the accused persons on the spot around the time of the commission of the offence. It was only five years after the occurrence that the witness for the first time disclosed in the Court the story about his having seen the appellants standing near the deceased when the former woke up on account of the noise of a stone falling hard on the ground. The witness did not offer any explanation, much less a cogent and acceptable one for his silence for such a long period. His assertion that he was scared by the appellants even after they had been taken into custody by the police and, therefore, did not reveal anything about the actual events till he had the courage to come to the Court to make a statement, is hard to believe. At any rate, reliance upon the deposition of a witness who has made such a material improvement in his version is wholly unsafe unless it is corroborated by some other independent evidence that may probabilize his version."

Thus, upon a close scrutiny of the evidence of P. W. 3 Rajendra Prasad Pandey, we find that the same is neither reliable nor acceptable in view of the glaring discrepancies, inconsistencies, and omissions therein.

Another very relevant issue which has to be addressed is whether the identification of the appellant by the solitary eyewitness of the incident P. W. 3 Rajednra Prasad Pandey for the first time in the Court without being preceded by any test identification parade as the person who had come out of the car and shot the deceased with his firearm thrice although apart from the headlights of the car which the deceased was driving, there was no other source of light at the place of occurrence is of any evidentiary value. Admittedly, the incident had taken place on the road near village Karanpur and the site plan does not show any source of light at the spot.

The issue whether the identification of an accused by the witness for the first time in the Court without being preceded by any test identification parade has any evidentiary value or not has been examined by the Apex Court on several occasions.

In Suresh Chandra Bahri vs. State of Bihar : 1995 Supp (1) SCC 80 this Court held that it is well settled that substantive evidence of the witness is his evidence in the court but when the accused person is not previously known to the witness concerned then identification of the accused by the witness soon after his arrest is of great importance because it furnishes an assurance that the investigation is proceeding on right lines in addition to furnishing corroboration of the evidence to be given by the witness later in court at the trial. From this point of view it is a matter of great importance both for the investigating agency and for the accused and a fortiori for the proper administration of justice that such identification is held without avoidable and unreasonable delay after the arrest of the accused. It is in adopting this course alone that justice and fair play can be assured both to the accused as well as to the prosecution. Thereafter this Court observed :-

"But the position may be different when the accused or a culprit who stands trial had been seen not once but for quite a number of times at different point of time and places which fact may do away with the necessity of a TI parade."

In State of Uttar Pradesh vs. Boota Singh and others : (1979) 1 SCC 31 this Court observed that the evidence of identification becomes stronger if the witness has an opportunity of seeing the accused not for a few minutes but for some length of time, in broad day light, when he would be able to note the features of the accused more carefully than on seeing the accused in a dark night for a few minutes.

In Ramanbhai Naranbhai Patel and others vs. State of Gujarat : (2000) 1 SCC 358 after considering the earlier decisions this Court observed :-

"It becomes at once clear that the aforesaid observations were made in the light of the peculiar facts and circumstances wherein the police is said to have given the names of the accused to the witnesses. Under these circumstances, identification of such a named accused only in the Court when the accused was not known earlier to the witness had to be treated as valueless. The said decision, in turn, relied upon an earlier decision of this Court in the case of State (Delhi Admn.) vs. V.C. Shukla wherein also Fazal Ali, J. speaking for a three-Jude Bench made similar observations in this regard. In that case the evidence of the witness in the Court and his identifying the accused only in the Court without previous identification parade was found to be a valueless exercise. The observations made therein were confined to the nature of the evidence deposed to by the said eyewitnesses. It, therefore, cannot be held, as tried to be submitted by learned counsel for the appellants, that in the absence of a test identification parade, the evidence of an eyewitness identifying the accused would become inadmissible or totally useless ; whether the evidence deserves any credence or not would always depend on the facts and circumstances of each case. It is, of course, true as submitted by learned counsel for the appellants that the later decisions of this Court in the case of Rajesh Govind Jagesha vs. State of Maharashtra and State of H.P. vs. Lekh Raj had not considered the aforesaid three-Judge Bench decisions of this Court. However, in our view, the ratio of the aforesaid later decisions of this Court cannot be said to be running counter to what is decided by the earlier three-Judge Bench judgments on the facts and circumstances examined by the Court while rendering these decisions. But even assuming as submitted by learned counsel for the appellants that the evidence of these two injured witnesses i.e. Bhogilal Ranchhodbhai and Karsanbhai Vallabhbhai identifying the accused in the Court may be treated to be of no assistance to the prosecution, the fact remains that these eyewitnesses were seriously injured and they could have easily seen the faces of the persons assaulting them and their appearance and identity would well remain imprinted in their minds especially when they were assaulted in broad daylight. They could not be said to be interested in roping in innocent persons by shielding the real accused who had assaulted them."

Although the Apex court in the case of Malkhan Singh and others Versus State of Madhya Pradesh (2003) 5 SCC 746 had reiterated that the evidence of identification in Court is a substantive evidence but the Apex Court in para 7 and 10 of the same judgement has observed as hereunder:

7. It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court. The facts, which establish the identity of the accused persons, are relevant under section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings.............

10. It is no doubt true that much evidentiary value cannot be attached to the identification of the accused in court where identifying witness is a total stranger who had just a fleeting glimpse of the person identified or who had no particular reason to remember the person concerned, if the identification is made for the first time in court.

In the Case of Balbir Versus Vazir & Ors. reported in 2014 Vol. 12 SCC 670 the Apex Court, had distinguishing the facts of the case of Malkhan Singh (supra) has held as hereunder:

"What weight must be attached to the evidence of identification in Court, is a matter for the Court of fact to examine"

The case of Malkhan Singh (supra) was a case of gang rape where several persons had committed rape with the prosecutrix one by one giving ample opportunity to the prosecutrix to have a close look and remember their faces on account of traumatic and tragic experience she had undergone and the faces of the accused must have got imprinted in her memory and there was no chance of her making mistake about their identity and in the backdrop of the aforesaid facts, the identification of accused by the prosecutrix for the first time in the open court was held reliable in Malkhan Singh's case.

Thus from the reading of the aforesaid judgements the legal position which emerges is that the identification of an accused in the Court is substantive evidence and can be relied upon even in the absence of any test identification parade when the accused was previously known to the witnesses or the witness had an opportunity to have a clear look at the accused enabling him to remember his face where the accused was not previously known to him but in a case where the accused is not known to the witness previously and he did not have an opportunity to view the accused clearly during the course of occurrence or for a sufficiently long time or where the incident had taken place in a flash of moment in dark, as in the present case, the identification of the accused for the first time in the court shall be valueless in case the same is not preceded by test identification parade.

Coming back to the facts of the present case we find that the incident had taken place on the road with fields on both the sides at about 9.00 P. M. with no source of light at the place of incident except the light reflected from the head lamps of the car, in which the deceased was sitting. Further more, the incident seem to have occurred in a flash of moment and the only eyewitness of the case P. W. 3, Rajendra Prasad Pandey who was sitting inside the car has stated in his evidence recorded in S. T. No. 739 of 2008 that he had bowed down his head out of fear when the firing started. Under these circumstances the possibility of the P. W. 3 Rajendra Prasad Pandey having had an opportunity to see the assailant clearly or for a sufficiently long period of time enabling him to remember his face was absolutely nil and hence failure to hold the identification parade in the present case raises a reasonable doubt regarding the complicity of the appellant Ajit specially in view of the fact that the eye witness P. W. 3, Rajendra Prasad Pandey had not stated in his first statement recorded before the police that he knew the appellant previously by face and had seen him in Ghaziabad court. The fact that the appellant was previously known to him by face and he had seen him in Ghaziabad court, was stated by him for the first time in the court in this case although he had not made any such statement in his examination-in-chief recorded in S. T. No. 739 of 2008. Thus the assertion made by P. W. 3 Rajendra Prakash Pandey that the appellant was previously known to him by face in his statement recorded before the court does not appear to be reliable and trustworthy and the appellant for all the practical purposes was a stranger and not known to P. W. 3 earlier and hence identification of appellant for the first time in the Court by him without any previous identification parade has to be treated as valueless and without any evidentiary value. Thus the failure of the prosecution to hold test identification parade in the present case in our opinion, is fatal to the prosecution with regard to the appellant's complicity.

The prosecution has further not been able to prove by any cogent evidence that the country made pistol (crime weapon) which was allegedly recovered on the pointing out of the appellant from an open field lying hidden under bhang bushes was used in the commission of crime in question. The forensic expert who had examined the weapon (Material Ext. Ka 1) and whose report is on record as paper No. 31A/2, has not been able to give any definite opinion that the same was used in committing the murder of the deceased.

As far as the appellant's conviction under Section-302 I. P. C. read with Sections-34 and 120B I. P. C. is concerned, we find after very carefully going through the evidence of P. W. 3 and P. W. 4 that the prosecution has failed to establish by any cogent evidence or circumstance that the commission of the offence in question by the accused was preceded by any meeting of minds and fusion of identities resulting in the act in question and mere presence of a person at the place of the incident, does not prove common intention. The prosecution has failed to lead any evidence for proving that the appellant was hired by co-accused Sukhmal Chand Jain and Dr. Satyaveer for committing the murder of deceased Kishori Lal and money was paid by them to him for the aforesaid purpose.

The Apex Court in the case of Joginder Singh Versus State of Haryana reported in AIR 1994 SC 461 has held as hereunder:

"It is one of the settled principles of law that the common intention must be anterior in time to the commission of the crime. It is also equally settled law that the intention of the individual has to be inferred from the overt act or conduct or from other relevant circumstances. Therefore, the totality of the circumstances must be taken into consideration in order to arrive at a conclusion whether the accused had a common intention to commit the offence under which they could be convicted. Similarly the prosecution has failed to prove any evidence or material circumstance the offence of criminal conspiracy against the appellant. The essential ingredient to constitute the offence of criminal conspiracy lines in an agreement to commit an offence or to achieve a lawful object through unlawful means, is lacking in the evidence adduced by the prosecution in the present case."

In P. K. Narayanan Versus State of Kerala reported in 1995 Vol. 1 SCC 142 has laid down the following principle of law:

"In offence a conspiracy cannot be deemed to have been established on mere suspicion and surmises or inferences which are not supported by cogent evidence."

In the case of Ram Nath Madho Prasad Versus State of Madhya Pradesh reported in AIR 1953 SC 420 the Apex Court has held as hereunder:

"Where there was no evidence, whatsoever, of any pre-motived or pre-arranged of murdering the deceased, the mere fact that all the accused were seen at the spot at the time of firing, would not be held sufficient to prove or even infer a common intention."

In the present case, it is apparent having regard to the evidence adduced by the prosecution that the conviction of the appellant under Sections-34 and 120B I. P. C. is based only upon suspicion, which cannot be sustained in view of the law laid down by the Apex Court in the case of Sampath Kumar (supra) that "suspicion, however, strong, cannot be a substitute of evidence."

The facts and circumstances of the present case further reveal that the prosecution has failed to produce three material witnesses namely, Vijay Kumar Dheengra who was admittedly the eye witness of the occurrence, as he was also accompanying the deceased, Vikas Solanki who had driven away the car of the deceased to the hospital and at whose residence the deceased and his companions Dr. Satyaveer, Vijay Kumar Dheengra and Rajendra Prakash Pandey had enjoyed tea together. There is no dispute with the settled legal proposition that withholding of material witness without any reason, casts a doubt upon the prosecution story.

We now proceed to examine whether the appellant's conviction by the court below under Section 25 of Arms Act can be sustained or not ? The prosecution case is that after the appellant was arrayed as an accused in Case Crime No. 100 of 2008, under Section-302 I. P. C. while he was in jail in connection with another case, he had volunteered to get the weapon used in the commission of offence recovered and on his pointing out the crime weapon was allegedly recovered on 6.7.2008 after more than three months of the occurrence from under the bushes of bhang in bazra and arhar fields of one Udham Singh on Dibai road 3.00 kms. away from Anoopshahr which were easily accessible to the public at large and in view of the same the possibility of the weapon being planted there cannot be ruled out. No public witness was enjoined in the recovery. There is nothing in the evidence of P. W. 7 Anil Kumar which may suggest that he had failed to arrange a public witness despite efforts made by him in this regard. The other S. I. namely Vinod Kumar and Constable Deepak Kumar who had accompanied the P. W. 7 and in whose presence the crime weapon was allegedly recovered by the appellant, were not examined during the trial.

For the aforesaid reasons, the prosecution version that the alleged crime weapon was recovered on the appellant's pointing out does not appear to be worthy of credence and hence we do not consider it safe to sustain the conviction of the appellant under Section 25 of the Arms Act only on the basis of the un-corroborated testimony of P. W. 6. alone, who is a police personnel and a highly interested witness.

Thus, after having very carefully considered the submissions made by learned counsel for the appellant and scrutinized the evidence on record and perused the law reports cited by learned counsel for the parties, we hold that the prosecution has failed to prove its case against the appellant and in view of the peculiar facts and circumstances of the case the appellant is entitled to benefit of doubt.

As a result, this appeal succeeds and is allowed. The impugned judgement dated 3.2.2011 and order 4.2.2011 passed by Additional Sessions Judge, Court No. 3, Bulandshahr are set aside and in view of the findings recorded hereinabove, Reference No. 04 of 2011 stands rejected. The appellant, Ajit who is in jail, stands acquitted of the charges framed against him and shall be released forthwith, if not wanted in any other case.

However, keeping in view the provisions of Section 437-A Cr. P. C., the appellant, Ajit is directed to forthwith furnish a personal bond in the sum of Rs. One lac and two reliable sureties in the like amount before the trial court (which shall be effective for a period of six months) to the effect that in the event of filing of Special Leave Petition against the instant judgement or for grant of leave, the appellant on receipt of notice thereof shall appear before the Hon'ble Supreme Court.

Order Date: 11.9.2015

HR