Jagannath vs State Of U.P.
2016 Latest Caselaw 7250 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

Reserved
 
AFR
 
Court No. - 40
 
Case :- CRIMINAL APPEAL No. - 4849 of 2004
 
Appellant :- Jagannath
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- C.B. Mishra,A.R. Yadav,G.C. Saxena,Jitendra Singh,Prabhat Kumar Srivastava,R.K.Srivastava
 
Counsel for Respondent :- Govt. Advocate
 
Connected with
 
Case :- CRIMINAL APPEAL No. - 4762 of 2004
 
Appellant :- Bhaiyya Lal
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- C.B. Mishra
 
Counsel for Respondent :- Govt. Advocate
 

 
Connected with
 
Case :- GOVERNMENT APPEAL No. - 6736 of 2004
 
Appellant :- State Of U.P.
 
Respondent :- Bhaiya And Others
 
Counsel for Appellant :- Govt. Advocate
 
Counsel for Respondent :- P.K.Srivastav
 

 
Hon'ble Bala Krishna Narayana,J.

Hon'ble Arvind Kumar Mishra-I,J.

(Delivered by Hon'ble Arvind Kumar Mishra-I, J.)

Heard Mrs. Archana Tyagi, learned counsel for the appellants and Sri Saghir Ahmad, Mrs. Manju Thakur and J.K. Upadhyay, learned AGAs in opposition and perused the record. While accused-respondents in Government Appeal (6736 of 2004) are represented by Sri P. K. Srivastava, learned advocate.

The instant three appeals (Criminal Appeal No. 4849 of 2004, Criminal Appeal No. 4762 of 2004 and Government Appeal No. 6736 of 2004) have been preferred against judgment and order of conviction (Appeal Nos.4849, 4762 both of 2004) and acquittal (Government Appeal No.-6736 of 2004)dated 13.09.2004 passed by Court of Additional Session Judge/Fast Track Court, Kaushambi in the three consolidated Sessions Trial Numbers 14/2002; State Vs. Bhaiya Lal & others arising out of case crime no. 109/2001, under Sections 147, 148, 302/149, 307/149, 120B IPC and under Section 30 Arms Act, Police Station Sarai Aquil, District Kaushambi; Sessions Trial No.15/2002; State Vs. Bhaiya Lal arising out of case crime no. 110/2001, under Section 25 Arms Act, Police Station Sarai Aquil, District Kaushambi and Sessions Trial No.16/2002:-State Vs. Jagannath Pal arising out of case crime no.117/2001 under Section 25 Arms Act, Police Station Sarai Aquil, District Kaushambi.

In context of aforesaid Appeal No.4849 of 2004- appeal preferred by the appellant- Jagannath arising out of two of the aforesaid three consolidated Sessions Trial No.14/2002 and Sessions Trial No.16/2002, respectively, whereby, appellant- Jagannath has been convicted under Sections 302, 307 IPC (concerning S.T. No.14/2002) and under Section 25 Arms Act (concerning S.T. No.16/02), arising out of case crime no. 109/2001 and 117/2001, respectively, whereby he (Jagannath) has been sentenced to life imprisonment coupled with fine Rs.10,000/- with default stipulation for additional two years simple imprisonment under Section 302 IPC; seven years rigorous imprisonment coupled with fine Rs.5,000/- with default stipulation for one year additional simple imprisonment- under Section 307 I.P.C (concerning S.T. No.14/02 arising out of case crime no. 109/2001).

Appellant- Jagannath has been sentenced to 3 years simple imprisonment coupled with fine Rs.1,000/- with default stipulation for additional six months simple imprisonment, under Section 25 Arms Act arising out of case crime no. 117/2001 (concerning Sessions Trial no. 16/2002).

Similarly, aforesaid appellant- Bhaiya Lal has been convicted under Section 25 Arms Act in the concerned Sessions Trial No. 15/2002 arising out of case crime no. 110/2001, whereby he has been sentenced to three years imprisonment coupled with fine Rs.1,000/- with default stipulation for additional six months imprisonment.

In so far as aforesaid Government appeal (Government Appeal No. 6736-2004) is concerned, the same is directed against acquittal of accused persons- Bhaiya Lal, Baijnath Pal, Sohan Pal, Barati Lal, Subhash, Umesh Shukla and Sanjay Shukla under various sections of Indian Penal Code and Arms Act. Out of aforesaid accused persons, the two accused persons, namely, Umesh Shukla and Sanjay Shukla have been acquitted of charge under Section 120B IPC and under Section 30 Arms Act, respectively, rest of the aforesaid other five accused- Bhaiya Lal, Baijnath Pal, Sohan Pal, Barati Lal and Subhash have been acquitted of charges under Sections 147, 148, 302/149 and 307/149 IPC arising out of case crime no.109/2001, Police Station- Sarai Aquil, District- Kaushambi (concerning Sessions Trial No. 14/2002).

Noticeable that the aforesaid impugned judgment and order of conviction/acquittal dated 13.09.2004 pertains to disposal of three Sessions Trial, as aforesaid, after the cases (pertaining to different crime numbers) were consolidated by the trial court with Sessions Trial No. 14/2002, State Vs. Bhaiya Lal and others being the leading case.

Prosecution story, as divulged by first information report asserts fact that first informant- Ved Prakash PW-1 lodged written report at Police Station- Sarai Aquil on 26.08.2001 at 21:35 hours regarding the incident, which occurred at 7:30 p.m. resulting into death of Sushila Devi and causing injuries to other persons, with allegation that it was around 7:30 p.m. accused Jagannath, Baijnath Pal, Sohan Lal s/o Dassu Pal, Barati Lal s/o Pitambar Lal, Subhash s/o Sohan Lal came to informant's house and tried to overawe them by abusing filthily which was objected by the informant side. This infuriated all the assailants, they all challenged and in the meanwhile, Jagannath, who was possessing country-made pistol ('tamancha') in his hand fired towards informant's house with intention to kill, which fire hit informant's mother Sushila Devi, who died on the spot. Vidyotama @ Vikky, Raj Kumar @ Khannu son of Sukhdev Prasad Maurya, Kamta Yadav, son of Baijnath Yadav, Mahesh Yadav son of Kamta Prasad Yadav, Pappu, son of Bhagirathi and the first informant sustained gunshot injuries. On hearing sound of firing, co-villagers Kamta Prasad son of Baijnath and Bhagirathi arrived on the spot, saw the incident, and identified the assailants. The accused persons after seeing the crowd fled away from the scene. In this incident, Kallu son of Kamta Prasad sustained serious injuries. Report be lodged and action be taken.

This report was scribed by Anil Singh son of Ram Balak Singh. Contents of written report were taken down in the concerned check F.I.R. No. 94/2001 at the Police Station- Sarai Aquil at case crime no.109/2001, under Sections 147, 148, 149, 302 and 307 IPC. Copy of check F.I.R. is Exhibit Ka-2.

On the basis of entries so made in the check F.I.R., relevant entries were made in the concerned GD at serial no.31 at 21:35 hours at Police Station- Sarai Aquil on 26.08.2001 and case was registered against accused persons under Sections 147, 148, 149, 302 and 307 IPC. The GD entry is Exhibit Ka-3.

After registration of the case investigation of the case ensued and the same was taken over by the Investigating Officer- Arun Pradeep Shukla, PW-10, who, at that point of time away from the Police Station, therefore, he instructed another S.I. Ram Suchit Prasad to proceed to the spot for conducting inquest of deceased- Sushila Devi on the spot. It was 10:00 p.m. and there was no proper arrangement for light, therefore, necessary instructions were issued by the Investigating Officer to S.I. Ram Suchit Prasad for holding inquest in the following morning, in daylight.

S.I. Ram Suchit Prasad held inquest of deceased Sushila Devi on 27.08.2001. It commenced at 6:00 a.m. and completed at 8:00 a.m. In the opinion of inquest witnesses suggestion was made for sending the dead body for postmortem examination for ascertaining real cause of death. Inquest report is Exhibit Ka-17. In the process, relevant papers were prepared like- police form 13, challan dead body Exhibit Ka-19, photonash Exhibit Ka-20, letter to R.I. Exhibit Ka-21, letter to C.M.O. Exhibit Ka-22, specimen seal Exhibit Ka-23, etc.

Noticeable that in this case one of the injured Raj Kumar succumbed to his injuries in the Government Hospital at Allahabad and information of his death was conveyed by the ward boy of S.R.N. Hospital, whereupon inquest of Raj Kumar was held in Allahabad on 27.8.2001 and the same was prepared by S.I. Suresh Kumar Bind- PW-12 at mortuary Allahabad. The preparation of inquest commenced at 2:20 PM on 27.08.2001 and completed at 3:20 p.m. Inquest report of deceased Raj Kumar is Exhibit Ka-29. In the opinion of inquest witnesses, it was suggested to send the dead body for postmortem examination for ascertaining real cause of death. Relevant papers were prepared for sending the dead body for conduction of postmortem examination, which papers are Exhibits Ka-32 to Exhibit-Ka 34.

Record reveals that postmortem examination on the cadaver of Sushila Devi and Raj Kumar was conducted on 27.08.2001 by Dr. S.C. Srivastava, PW-8 at T.B. Sapru Hospital, Allahabad. Duration of death from the time of postmortem examination of deceased Sushila Devi was stated to be ¾ day. The doctor found the following ante-mortem injuries:-

(1) Multiple fire arm wounds of entry in an area of 30 c.m. X 20 c.m. over the both sides front of the chest, below the collar bones each measuring about ½ c.m. x ½ c.m. x chest cavity deep. No B.T. seen eleven pellets recovered from this injury.

(2) Two fire arms wounds of entry over the (L) upper arm on its front aspect. (a) One at the upper portion of upper arm measuring ½ c.m. x ½ c.m. x muscle deep. No blackening and tattooing Seen...(P.T.). The shoulder joint hip.

(3) Second at the lower portion of the upper arm measuring ½ c.m. X ½ c.m. X muscle deep and situated 7 c.m. below the injury No. (2) a, No B.T. seen one pellet recovered from the injury ...(P.T.) on upper arm.

N.B. Twelve small pellets (11+1) recovered from the ..(P.T.) body sealed in an envelope & sent to SSP ...(P.T.) through proper channel for n.a.

In the opinion of doctor, cause of death was due to shock and haemorrhage as a result of firearm wounds. Postmortem report of Sushila Devi has been proved as Exhibit Ka-8.

The very same day, postmortem examination on the cadaver of Raj Kumar was also conducted by the same doctor (S.C. Srivastava) at the same place around 5:00 p.m. Duration of the death from the time of postmortem examination was rated ¾ days. The doctor found following ante-mortem injuries on the body of Raj Kumar:-

(1) Two fire arm wounds of entry over the (L) side of the cheek out of which (a) One is 0.5 cm x 0.5 cm x buccal cavity deep situated 2 cm lateral to the (L) nostril and (b) second is 0.5 cm x 0.5 cm x buccal cavity deep 2 cm from wound (1) a, No B.T. seen. The margins are inverted.

(2) Multiple fire arm wounds of entry over the Abdomen thoraric region with pelvic region in an area of 45 cm x 19 cm over the (L) side of the body each measuring about 0.5 cm x 0.5 cm x chest cavity deep to 0.5 cm x 0.5 cm x abdomen pelvic cavity deep about 0.5 cm x 0.5 cm.

No B.T. Seen. Margins inverted ...(P.T.) of injury.

About 9 pellets recovered .....(P.T.) chest abdomen & pelvic cavity.

(3) Single firearm wound of entry...(P.T.) right thigh front 17 cm below the anterior superior ...... of hip measuring about 0.5 cm x 0.5 cm x muscle deep. No B.T. seen, margins are inverted.

(4) Single fire arm wound of entry over the forehead 5 cm above nostril. No B.T. seen, margins inverted. Single pellet recovered from this injury.

N.B. :- (9+1) Ten pellets recovered from the body & send to SSP Alld. for n.a. through proper channel.

In the opinion of doctor, cause of death was due to shock and haemorrhage as a result of ante-mortem firearm wounds. This postmortem report is Exhibit Ka-9.

We further notice that a number of injured were also examined by Dr. B.K. Jaiswal P.W.-9 on P.H.C. Sarai Aquil on 29.08.2001. He medically examined injured Subhash, Bhaiya Lal, son of Dassu. The doctor found following injuries on the person of Subhash:-

Abrasion on the left lateral upper abdomen size about 3 c.m.x0.5 c.m. about 11.5 c.m. below and lateral to the left nipple.

This injury was stated to be simple and caused by blunt object and stated to be three days old. This injury report is Exhibit Ka-10 which was examined at 11:25 a.m. on 29.08.2001.

The doctor also examined Bhaiya Lal on 29.08.2001 at 11:45 a.m. He found following injuries on his person:-

(1) Abrasion on the lateral aspect of distal phalynx of left index finger size about a 1cm x 0.2cm

Opinion: Simple injuries caused by blunt object and duration was stated to be about three days old.

This injury report is Exhibit Ka-11.

This doctor witness (P.W.9) also examined another injured Pappu on 27.08.2001 at 11:05 a.m. at P.H.C. Naveen where he found the following injuries on his person:-

(1) Abrasion on the anterior and lower part of right forearm about 2 c.m. from the right wrist.

(2) Abrasion on the right back about 0.3 c.m. from the medial aspect of right scapula.

Opinion: Injuries were stated to be simple in nature and cause by blunt object and duration was stated to be 15 hours.

This injury report is Exhibit Ka-12.

Another injured Mahesh was examined at 10:55 a.m. on 27.08.2001 by Dr. B.K. Jaiswal. He found the following injuries on his person:-

Abrasion on the upper anterior aspect of right leg about 1 c.m. medial to the lower and lower end of right patella.

In the opinion of doctor, the injury was simple and caused by blunt object. Duration was about 15 hours.

The very same day on 27.08.2001 the first informant- Ved Prakash was also medically examined by this doctor at 10:40 a.m., wherein the following injuries were found by the doctor on medical examination:-

(1) Abrasion on the left forearm about 3 c.m. posterior to the left medial head.

(2) Lacerated wound on the right leg rounded in shape about 5 c.m. from the lower end of right patella of size of apea. Skin deep.

Injuries were stated to be simple in nature caused by blunt object. Duration was stated to be 15 hours. This injury report is Exhibit Ka- 14.

It is further noticeable that Dr. B.P. Srivastava, PW-11 also examined Lallu s/o Kamta Yadav on 27.08.2001 at 1:30 a.m. The following injuries were found on his person:-

(1) One gunshot injury in area of 8 c.m.x8 c.m. on forehead and head having three wounds of entry 0.5 c.m. X 0.3 c.m. into chin 1 c.m. No blackening or tattooing seen. Injury caused by gunshot, fresh in duration kept under observation. X-ray of skull was advised. This injury report has been proved as Exhibit Ka-28.

Dr. B.P. Srivastava (PW-11) also examined Kumari Bitti at 1:40 a.m. on 27.08.2001 he noted following injuries on her person:-

(1) Gunshot wound in area of 1.5 c.m.x1.5 c.m. on back of head, neck and left shoulder having three gunshot wounds of entry 0.3 c.m.x 0.3 c.m. into chest deep kept under observation. X-ray skull was advised. No blackening, tattooing and charring. This way it was stated that the injury was caused by gunshot fresh in duration. The injury report of Kumari Bitti is Exhibit Ka-27.

During the course of investigation, the Investigating Officer tried to apprehend the accused persons and, in the process, arrested Bhaiya Lal and Subhash on 28.08.2001. Accused Bhaiya Lal got recovered one 'tamancha' stated by him to have been concealed under pile of grain stock. He also got recovered two cartridges, the same was taken into possession and a memo of the same was prepared by the Investigating Officer- Arun Pradeep Shukla on 28.08.2001 around 3:30 p.m. Memo of arrest and recovery is Exhibit Ka-24, and on the basis of aforesaid arrest and recovery, a case was registered against Bhaiya Lal under Sections 25/27 Arms Act at Police Station- Sarai Aquil, District Kaushambi at case crime no. 110/07 State Vs. Bhaiya Lal on 28.08.2001 at 5:50 p.m., copy whereof is Exhibit Ka-4.

Similarly, the Investigating Officer recovered country-made pistol at the pointing out of Jagannath from under sand dune and also recovered two live cartridges and one empty cartridge, which was taken into possession at 7:00 a.m. on 13.09.2001 and a memo of the same was prepared which is Exhibit Ka-25. On the basis of the aforesaid recovery, a case was also registered at case crime no. 117/2001, under Sections 25/27 Arms Act, at Police Station Sarai Aquil on 13.07.2001 at 22:30 hours against Jagannath. Check F.I.R. of the same is Exhibit Ka-6 and relevant entries regarding the aforesaid two cases and registration of cases against the accused persons has been proved by H.C.P. Devendra Nath Mishra, PW-6, as the GD entry pertaining to case crime no. 110/2001 as Exhibit Ka-5 and has also proved the concerned GD entry pertaining to case crime no. 117/01 under Section 25/27 Arms Act, as Exhibit Ka-7, respectively.

Relevant to mention at this stage that investigation of aforesaid two cases pertaining to Arms Act was entrusted to Babu Lal Diwakar, who prepared site plan of both the places of recovery as Exhibit Ka-35 and Ka-38, respectively, and after obtaining sanction from the District Magistrate for prosecuting aforesaid two accused, namely, Jagannath and Bhaiya Lal. Charge-sheets in both the case crime numbers were filed. Charge-sheet against Jagannath is Exhibit Ka-39 and charge-sheet against Bhaiya Lal is Exhibit Ka-36, respectively.

It is gathered from record that site plan of the place of occurrence was also prepared by the Investigating Officer Arun Pradeep Shukla (PW-10), which is Exhibit Ka-16. The Investigating Officer took various other steps in completing the investigation and in the process, he prepared memo of simple and blood-stained clay- roll, slippers, empty cartridges, two plastic 'tikali' from the spot, which is Exhibit Ka-18. Besides, recorded statement of various persons including that of the accused persons and collected evidence against Raju @ Umesh Shukla under Section 120 IPC and Sanjay Shukla under Section 30 Arms Act, and lastly submitted charge-sheet against aforesaid accused persons in case crime no.109/2001, which charge-sheet is Exhibit Ka-26.

Thereafter, the case was committed to the Court of Sessions pertaining to the aforesaid case crime nos. 109/2001, 110/2001 and 117/2001 under various sections of Indian Penal Code and Arms Act.

Consequently, the aforesaid case was made over for trial and disposal to the aforesaid trial court of Additional Sessions Judge, who heard the accused persons on point of charge and being satisfied with prima-facie case against accused persons, charged them variously under different sections of Indian Penal Code and Arms Act and, in the process, the two Sessions Trial, Sessions Trial No. 16/2002 arising out of case crime no. 117/2001 against accused persons Jagannath Pal under Section 25/27 Arms Act and Sessions Trial no. 15/2002 arising out of case crime no. 110/2001 against accused Bhaiya Lal were consolidated with main Sessions Trial no. 14/2002 arising out of case crime no. 109/2001 under Sections 147, 148, 302/149, 307/149 and 120B I.P.C. and under Section 30 Arms Act and were tried together and disposed of by common judgment. Charges were read over and explained to the accused persons, who denied charges and opted for trial.

The learned trial court asked the prosecution to produce all its testimony, whereupon the learned trial court produced 13 witnesses on its part. A brief sketch of the same is ut infra:-

Ved Prakash P.W.1 is the first informant and injured. He has proved Exhibit Ka-1, the written report, which was scribed by Anil Singh.

Kumari Vidyotama P.W.2, Narendra P.W.3, Pappu P.W.4, Mahesh P.W.5 are the injured witnesses of fact and they claim to have seen the occurrence.

The other formal witnesses are Constable Devendra Nath Misra, P.W.6, he is witness of recovery made on 28.08.2001 from Bhaiya Lal. He is also witness of fact of arrest of accused Subhash and Bhaiya Lal.

Ram Sanehi is P.W.7. He has proved various prosecution papers and primarily, lodging of the first information report pertaining to case crime no.109 of 2001, under Sections 147, 148, 149, 302, 307 IPC. The Check FIR and the relevant GD entry, whereby the case was registered against accused persons, as Exhibit Ka-2, Ka-3, respectively. He has also proved the Check FIR pertaining to Case Crime No.110 of 2001, under Sections 25/27 Arms Act against Bhaiya Lal, as Exhibit Ka-4 and the concerned GD entry Exhibit Ka-5. He has also proved the Check FIR and the relevant GD entry, as Exhibit Ka-6 and Ka-7 pertaining to Case Crime No.117 of 2001, under Sections 25/27 Arms Act against Jagannath.

Dr. S.C. Srivastava is P.W.8. He conducted postmortem examination on the cadaver of Sushila Devi and Raj Kumar on 27.08.2001 and has proved the postmortem reports, as Exhibit Ka-8 and Ka-9, respectively.

Dr. B.K. Jaiswal P.W.9. has medically examined various injured persons- say- Subhash, Bhaiya Lal, Pappu, Mahesh and Ved Prakash and has proved their injury reports, as Exhibit Ka-10, Ka-11, Ka-12, Ka-13 and Ka-14, respectively.

Arun Pradeep Shukla P.W.10 is the Investigating Officer of the case pertaining to Case Crime No.109 of 2001, under Sections 147, 148, 149, 302, 307 and has filed charge-sheet against accused persons in aforesaid case crime number 109 of 2001.

Dr. V.P. Srivastava P.W.11 has medically examined two other injured- Lallu and Kumari Bitti on 27.08.2001 and has proved their injury reports, as Exhibit Ka-27 and Ka-28, respectively.

Suresh Kumar Bind P.W.12 has prepared inquest report of Raj Kumar and has proved the same as Exhibit Ka-29 and has also proved other relevant papers.

Babu Lal Diwaker P.W.13 is the Investigating Officer of two cases pertaining to Case Crime Nos.110 of 2001 and 117 of 2001 and has filed charge-sheets in both the cases and has proved the same as Exhibit Ka-36 and Ka-39, respectively. Except as above no further evidence adduced by the prosecution therefore evidence for the prosecution was closed.

After closure of evidence for the prosecution, statement of accused persons was recorded under Section 313 Cr.P.C., wherein, they denied their involvement in the case and submitted that their implication in the case is on account of enmity, the first informant in collusion with the police, has wrongly implicated them in this case.

The defence also produced one witness- D.W.1 Kunj Narayan Tripathi, who was clerk of Bramchari Inter College, Tilhapur, Allahabad/Kaushambi at that point of time when his statement was recorded on 16.07.2004. He has tried to prove date of birth of Ved Prakash s/o Ganga Prasad Sharma, who was a student of his college and was admitted to Class 9th on 25.07.1990 and appeared in High School examination of 1993.

No other evidence except, as above, was adduced by the defence.

The learned trial court after hearing both the sides on merit and evaluating the evidence and appraising facts recorded aforesaid finding of conviction against appellants- Jagannath and Bhaiya Lal, while acquitted the respondents of aforesaid Government Appeal of various charges, consequently, the aforesaid three appeals.

It has been vehemently claimed on behalf of the appellants that case of the aforesaid appellants- Jagannath and Bhaiya Lal is based on no evidence and the entire evidence has been manufactured in order to falsely implicate the appellants because the informant side is inimical towards the accused persons. The fact is that some dacoity took place in the village in the night of 26.8.2001, wherein injury was caused on the informant side, which resulted into death of Sushila Devi and Raj Kumar. The prosecution witnesses on the whole are not telling the truth and their versions differ substantially on material description of occurrence. If version of one witness is taken to be true and correct in respect of topography of the place of occurrence and in respect of respective positions of the prosecution witnesses whether inside or outside house, then the same stands exposed and negated by the testimony of the other prosecution witness. Here in this case one cannot be sure as to what version of the occurrence is the correct version of the occurrence. The site plan prepared by the Investigating Officer itself shows the place from where the accused opened fire, which place lies at a distance of 35 feet from place shown by word ''X' where Sushila Devi is stated to have fallen and died after she sustained gunshot injury. Dr. witness S.C. Srivastava P.W.8, who conducted postmortem examination on the dead bodies of both the deceased- Sushila Devi and Raj Kumar- has categorically stated that the injuries so caused on the body of both the deceased can be caused from a distance beyond 10 feet and it may go upto 30 to 40 feet. In the face of above specific testimony of Doctor, the testimony of Ved Prakash P.W.1, who claims himself to be an eyewitness loses its significance and fizzles out into oblivion when he says that the shot was fired from close range on Sushila Devi. This specific testimony is fair enough to lead to unimpeachable conclusion that the prosecution witnesses of fact did not see any occurrence, as they claim. The fact is that daroga ji arrived in the village at 8.00 A.M. on the day of occurrence itself and took the injured- Kumari Vidyotama, Lallu, Raj Kumar to the police station. He also got signature of Kumari Vidyotama on some white blank paper. This shows presence of Daroga ji on the spot around 8 to 9 P.M. on 26.08.2001, prior to the lodging of FIR. All the prosecution witnesses are improving on their version on substantial points. As such their testimony on the whole is embellished, sketchy, motivated and wholly unreliable. The recovery of so called country-made pistol from Jagannath and Bhaiya Lal was made from open places accessible to all without ensuring proper public witnesses. Even the site plan of the place of occurrence pertaining to Case Crime Nos.110 of 2001 and 117 of 2001 has not been proved satisfactorily. No reason has been asked as to how and why the injured witnesses, who allegedly sustained gunshot injury around 7.30 P.M. on 26.08.2001 were medically examined on 29.08.2001. This by itself shows manufacturing of false evidence by the prosecution side. Since Daroga Ji was present there in the village on 26.08.2001 around 8.00 P.M., it is obvious that the inquest report of Sushila Devi was prepared the very next morning around 6:00 a.m. and not in the night intervening (25.3.2001)whereas prosecution record itself suggests that arrangement of light was there and statement was recorded by the Investigating Officer in the night itself. Not to hold inquest in the night itself renders first information report ante-timed. Various letters purported to have been sent from the concerned police station for medical examination of the injured persons do not bear date and crime number, which also shows manipulation done on the part of the police and intensive embellishment.

The learned AGA extended argument in the aforesaid Government Appeal preferred against acquittal of respondents of that appeal pertaining to Case Crime No.109 of 2001, vehemently contended that the learned trial court while appreciating the evidence on record could not properly evaluate and assess the evidence and merit of the case and it wrongly fastened liability only on Jagannath while acquitted the respondents of various charges framed under various sections of IPC and Section 30 Arms Act. The evidence placed before the trial court by the prosecution was consistent, reliable, clinching and the same cannot be brushed aside merely on ground of certain minor inherent contradictions. When any incident involves a number of injured persons then each injured person cannot be expected to give uniform and pictorial description of the occurrence. It is normal that under such circumstances certain contradictions are bound to occur in the testimony of prosecution witnesses but which contradictions cannot be construed on its face value to be substantial one making deep dent in the prosecution story. Learned AGA further proceeded and also refuted aforesaid argument of learned counsel for the appellants of aforesaid two appeals apart from the Government Appeal and submitted that the learned trial court was not justified while recording acquittal of accused persons. He added in so far as conviction of Jagannath and Bahiya Lal are concerned, the same is based on material on record and charges against them have been proved satisfactorily beyond reasonable doubt by the prosecution and requires no interference at this stage.

We have also considered the rival submissions of both the sides and also took into contemplation the various factual aspects of the case and the charges brought against accused persons, and the part of verdict of trial court pertaining to acquittal of respondents in the aforesaid Government Appeal. The core consideration, that arises for adjudication of in these appeals pertains to fact;

1. Whether the prosecution has been able to prove its case beyond reasonable doubt against the accused Jagannath and Bhaiya Lal, respectively in context with the charge framed against them, respectively?

2. Whether the learned trial Judge erred while he acquitted accused persons- Bhaiya Lal, Baijnath Pal, Sohan Pal, Barati Lal, Subhash, Umesh Shukla and Sanjay Shukla of charges under Sections 147, 148, 302/149, 307/149 IPC and 120-B IPC and under Section 30 Arms Act, respectively?

While considering the merit of the case, we came across facts that the incident is stated to have taken place on 26.08.2001 around 7.30 P.M. at village- Hazari Ka Purwa within police station- Sarai Aquil, District- Kaushambi. It has been alleged in the first information report that at the time of occurrence the accused persons Jagannath, Baijnath, Sohan Lal, Barati Lal, Subhash came to the house of first informant and abused them by saying why they pelt stones on their house. The first informant side asked them not to extend abuses. This angered the accused persons, they challenged and Jagannath with intention to kill fired with his country-made pistol, which fire hit informant's mother Sushila Devi, who died on the spot. Vidyotama @ Vikky, Raj Kumar @ Khannu, Kamta Yadav, Mahesh Yadav, Pappu and the first informant also sustained gunshot injury. In the meanwhile, a number of villagers also arrived on the spot due to which, the assailants after abusing the first informant side fled away from the scene. The report was sribed by one Anil Singh S/o Ram Balak Singh of Hazari Ka Purwa at Police Station- Sarai Aquil at 9.35 P.M. We have to assess and evaluate the prosecution version, as described by the various prosecution witnesses of fact. These witnesses of fact are the injured eyewitnesses of the occurrence and their testimony has got to be evaluated qua facts and circumstances of the case.

The wholesome view of the occurrence as evidenced by the prosecution witnesses is to be comprehended and would be evaluated vis-a-vis the attendant facts of this case. We have before us at least five witnesses of fact who are incidentally the injured witnesses. No doubt we have in our mind, the legal position that credibility of witness who happens to be relative of the deceased, is not affected merely on his being relative and it would not be safe to out-rightly act with jaundiced eye with the testimony of these witnesses of fact. But a holistic view of the occurrence and the evidenciary value, which testimony carries has got core consideration of this case, and this aspect alone will be guiding beacon of our judgment.

To begin with, we have before us testimony of most worthy and relevant witness, the first informant who claims himself to have been present on the spot and was in close proximity of her mother- deceased Sushila Devi and he has described the manner and style of occurrence. His testimony has got prime consideration because he lodged the first information report after the incident at the police station. As per descriptive version of the occurrence, as emanating from the testimony of Ved Prakash, PW-1, the informant- We gather that the incident took place around 7:30 p.m. on 26.08.2001. Several accused persons including the appellant Jagannath arrived at the house of the first informant and began to abuse by saying as to why they pelt stone on their house. At this, informant's mother opened the door of house, came out of the house and asked them not to abuse. This enraged the accused persons and they challenged informant side and Jagannath who was possessing country-made pistol in his hand, with intention to kill, fired on informant's mother Sushila Devi. The fire hit Sushila Devi and she died instantaneously on the spot. Description of occurrence further divulges about occurrence that first informant, Vidyotama Devi, Khannu, Lallu, Mahesh, Pappu also sustained gunshot injury. Kamta Prasad and Bhagirathi after hearing hue and cry arrived on the spot and they too saw the occurrence. Report was scribed by one Anil Kumar, thereafter, it was lodged at the police station. This witness has been cross-examined at length, wherein he has vacillated on certain points. However, on page 37 of the paper book of his cross-examination it is obvious fact that enmity exists between the two sides on various counts. Testimony is also vacillating on point that the first informant never dictated (in the written report) that Kamta Prasad Yadav, son of Baijnath Yadav also sustained gunshot injury and who wrote this version in the F.I.R. cannot be said by this witness. The trial court has recorded demeanor of this witness on this point by specifically noting that the witness kept mum and did not answer the aforesaid query regarding gunshot injury being caused to Kamta Prasad. Here, we may take note of fact that that there is specific description of gunshot injury being caused to Kamta Prasad son of Baijnath along with the injured persons and the questions put to this witness was specific on this point. Moot point that engages attention relates to fact whether, this part of written report was got scribed either at the instance of 'Daroga Ji' or at the instance of any other person but the witness (PW-1) kept mum for reasons best known to him. His remaining silent can be construed easily that answer if given would have been unfavourable to him. Now in so far as point of actual occurrence is concerned, then we notice that the version has come in his testimony on page no. 38 of the paper book, when he specifically stated that after hearing abuses being extended by the accused persons, informant's mother Sushila Devi came out of the house after opening the door. At that point of time, this witness claims that he, Vidyotama Devi, Rajendra, Asha Devi were inside the house and he cannot say that they had by that time taken up their meal or not. He cannot say whether his mother had taken her meal or not and he cannot say whether they were asleep or awaken or were lying on their cots. He claims to have heard abuses being hurled at them when he was inside his house. As soon as his mother opened the door and came out of the house, he followed her and after covering hardly a distance of three steps, firing took place. It has been specifically stated that at the time of firing, the assailant was in close proximity with his mother although he says he cannot tell about exact position of his mother and he cannot tell about his own position from his mother at the time of firing and he is unable to recollect whether his mother was ahead of him or was behind him. Regarding actual occurrence this witness testifies that Jagannath extended his hand and fired on his mother from close range ¼**txUukFk us gkFk c<+kdj dV~Vs ls lVkdj esjh ekW dks ekj fn;k**½ + He further adds he cannot say when Daroga Ji came to the village. However, he came on the 26th of August and at that time it was night. Further, on the same page no. 38 of the paper book in the last two lines, he cannot say as to who accompanied him to the police station. Although, he says Anil (scribe) reached police station after he had arrived at the police station. On page 39 of the paper book, he testifies that he reached to the police station all alone. However, we notice as per testimony of Ram Sanehi(constable), PW-7 that informant came to lodge the report along with Mahesh Yadav, Lallu, Pappu and Bulaki. However, his further cross-examination divulges that he is unable to recollect as to whether he showed/pointed out the very place where either he or his mother was standing and the place where the accused persons were standing. He goes on to add that he saw his mother after the fire hit her but he did not touch her nor did he lift her and he did not see as to who took away with him his mother. He says Daroga Ji first time met him at the police station. He has been suggested by the defence that in fact some dacoity took place in the fateful night and some dacoits swooped upon the locality and injured various persons of various houses of the village and the first informant in collusion with the police out of enmity has lodged false report. No such occurrence, as claimed by the first informant ever took place. Albeit, the suggestion has been denied by this witness. We have dealt with the core testimony of PW-1 in order to interrelate the same with the testimony of other witnesses of fact and then to evaluate its overall evidenciary value. Thus we find it convenient when we glance over testimony of another witness of fact who happens to be none other than sister of first informant Kumari Vidyotama, PW-2. In her brief examination-in-chief, she has testified that several accused persons including the appellant Jagannath came to them and said why they pelt stones on their house. When her mother Sushila Devi asked him not to abuse he fired on her. The fire hit her mother Sushila Devi and she died. Besides, the fire also hit this witness, Raj Kumar @ Khannu, Ved Prakash, Lallu, Pappu and Mahesh. Raj Kumar @ Khannu died in the hospital. Her cross-examination is quite interesting and it is in material contrast to what has been stated by PW-1 - both in his cross-examination as well as in examination-in-chief. In the very beginning of her cross-examination on page 41 of the paper book, she deposes that at the time of occurrence she was behind her mother and she was not inside her house. Daroga Ji was called by Kamata Prasad or by anyone else she cannot say. But Daroga Ji came on the spot around 8 or 9 p.m. perhaps after obtaining information. She goes on categorically when she says that Daroga Ji came to the village, took her, Lallu, Raj Kumar Maurya and took them to the police station by a tempo. Although she is unable to tell anything about what Daroga Ji was doing in the village. This testimony is in sheer contrast to the testimony of PW-1. She says she was not inside the house, whereas PW-1 says that as soon as the assailants came to his house, started abusing, he heard abuses, he along with this witness and his mother was inside the house. She further states on page 42 of the paper book that Daroga Ji also got her signature on some white blank paper. She says on page 43 of the paper book that at the time of occurrence she was drawing water from hand pump and she was to the southern side of the hand pump. The position of hand pump has been displayed in the site plan Exhibit Ka-16 and she says that her mother was at that point time in the northern side two steps away from her and Ved Prakash was also there and on page no. 44 of the paper book in her cross-examination she further deposes that at the time of occurrence her mother, her brother (PW-1) and she herself were not inside the house. But were drawing water outside the house and she had filled 4-5 containers of water when the firing took place. We may observe that it is astonishing that after the occurrence no conversation took place between this witness(PW-2) and the informant Ved Prakash (PW-1). In line with the testimony of PW-1 she also states that no one touched her mother and no one lifted her to ascertain whether she was alive or dead, because she had already died. She has also been suggested like PW-1 that some unknown dacoits raided the village in the fateful night and they caused the injuries which suggestion has been denied by this witness also. Thus on the point of actual placing of the first informant and the victim and PW-2 itself the description is at great variance- say poles apart. There is great variance in the description of occurrence that at the time of the commencement of the assault, the informant side was confined to the house and was not outside the house, whereas PW-2 exclusively claims that all the three - the first informant, deceased Sushila Devi and she herself were at the time of commencement of the incident outside the house and were drawing water. The first informant has given vivid version of incident that shot was fired by Jagannath from range point blank and he was in close proximity with her mother when he fired on her mother. Thus, the very commencement of the incident itself raises serious doubt and which one of the two witnesses is to be believed on that point of occurrence! Then we find that both are at great variance. Now, we have to seek some corroboration from some source- say- medical testimony as that would be helpful in ascertaining actual facts regarding the occurrence. Dr. S.C. Srivastava, PW-8 has conducted post-mortem examination on the dead body of deceased Sushila Devi wherein he has noted several ante-mortem injuries in form of gunshot wound.

Injury No. 1 relates to multiple fire arm wounds of entry in an area of 30 c.m. X 20 c.m. over the both sides front of the chest, below the collar bones each measuring about ½ c.m. x ½ c.m. x chest cavity deep. No blackening and tattooing seen. Similarly, other ante-mortem injuries no. 2 has been noted as two fire arm wounds of entry over the (L) upper arm on its front aspect.(a) One at the upper portion of upper arm measuring ½ c.m. x ½ c.m. x muscle deep. No. blackening and tattooing seen...(P.T.). The shoulder joint hip. Second at the lower portion of the upper arm measuring ½ c.m. X ½ c.m. X muscle deep situated 7 c.m. below the injury No. (2) a, No blackening and tattooing seen.

Thus it is obvious that in all the injuries the doctor did not find any blackening and tattooing and he has categorically testified in his cross-examination that these injuries cannot be caused if the fire has been opened from within a distance of 10 feet. He testifies that injury no. 1 can be caused when the fire is opened from a distance of 10 feet or more and these sort of injuries cannot be caused if the fire has been opened from within a distance of 10 feet. On page 81 of the Paper Book, he has testified that this injury (A.M.I. no. 1) can be caused by firing from a distance of 30-40 feet and similarly injury no. 2 in form 'A' and 'B' can also be caused from the same distance.

The moot point that engages our serious attention relates to fact that PW-1 says in his testimony that the firing was done from close range by Jagannath and he was at that time close to informant's mother Sushila Devi and he fired on his mother with his hand extended from range point blank. Had it been so then the version of the doctor that these injuries could not have been caused by firing from within 10 feet range give thrust to the conclusion that the prosecution witnesses did not see the incident with their naked eyes. Here, we may take into consideration argument raised to the extent that the F.I.R. is ante-timed and the police was colluding with the first informant side and they were not knowing about the real assailants and their names the whole night, and, therefore, inquest of Sushila Devi was not held in the night and was postponed for the following morning (27.08.2001) and when no one was available, Daroga Ji in connivance with first informant falsely implicated the accused persons including the present appellants in this case.

We may also peruse testimony of other witnesses of fact regarding the occurrence namely Narendra, PW-3 who happens to be an injured witness, Pappu, PW-4 and Mahesh, PW-5. All are injured witnesses. They were medically examined by the doctor. Therefore, testimony of doctor witnesses who have been produced by the prosecution has got relevance for arriving at just decision. One such witness is Dr. B.K. Jaiswal, PW-9. He has testified that he had medically examined injured Subhash on 29.08.2001 and on the very same day he also medically examined Bhaiya Lal, son of Dassu and he examined Pappu on 27.08.2001 at P.S.C. Naveen and he examined injured Mahesh the very same day and also examined Ved Prakash. He has been cross-examined wherein he has stated that all the injuries caused on their person in form of gunshot wound, could have been caused by firing from distance by pellets and surprisingly, it has come in his testimony that in the medical examination reports- Exhibit Ka-14 (of Ved Prakash), Exhibit Ka-13 (of Mahesh) and Exhibit Ka-12 (of Pappu), no case crime no. has been noted. Even on the L.T.I's noted on these medical examination reports, no names have been written as to whose L.T.I. has been obtained on these medical reports. However, doctor witness says the L.T.I. refers to the persons who were medically examined. The point is that Ved Prakash was in close proximity to his mother at the time of occurrence and he has been hit with pellets from a distance and this injury no. 1 and 2 on Exhibit Ka-14 pertaining to medical examination report of Ved Prakash has been described by the doctor witness as petty injury and it was not even discernible, therefore, the doctor did not give any measurements of these injuries. We can now evaluate testimony of another doctor who also examined several injured persons and he is Dr. V.P. Srivastava, PW-11. He testifies that on 27.08.2001, he examined Lallu around 1:30 a.m. in the night and wherein he noted one gunshot injury in area of 8 c.m.x8 c.m. on forehead and the head having three wounds of entry 0.5 c.m.X0.3c.m. x chin 1 c.m. No blackening or tattooing seen. He also examined Kumari Bitti at 1:40 a.m. on the same night on 27.08.2001 where gunshot wound in area of 1.5 c.m.x1.5 c.m. on back of head, neck and left shoulder having three gunshot wounds of entry 0.3 c.m.x0.3c.m. into chest deep was kept under observation. X-ray skull was advised. No blackening, tattooing and charring present. Both these injury reports have been proved as Exhibit Ka-27 and Ka-28, respectively. In his cross-examination, doctor witness has testified that the letter which was sent from the police station did not bear any date nor any case crime number. In the concluding para of the testimony of page no. 103 of the paper book, he has stated that injury caused to both the injured persons can be caused by firing from distance from different directions. Therefore, several layers of the occurrence become conspicuous by the testimony of Kumari Vidyotama, PW-2.

We gather that Daroga Ji had arrived in the village between 8-9 p.m. and he conveyed PW-2 along with other two injured to the police station by a tempo. It means that the police had prior information of the incident prior to 8-9 p.m. and the first information report was lodged at 9:35 p.m. at Police Station Sarai Aquil and the medical examination report of several injured persons virtually establishes fact that no case crime number was mentioned on the letters which were meant for medical examination of several injured persons. This way we can infer ground reality that by that time and till that time when the medical examination of injured was done there was no certainty about the name of the miscreants or the assailants and the F.I.R., too, was, by that time, not lodged. What is even more surprising that the version of occurrence as given by Ved Prakash- PW-1 that Jagannath fired on his mother from close range stands exposed from the testimony of Dr. S.C. Srivastava who conducted post-mortem examination on the dead body of Sushila Devi and he has not been declared hostile by the prosecution. Therefore, his testimony on the point of range of firing carries force and we can conveniently conclude that the prosecution witnesses of fact did not see the incident. We have one more strong and natural reason and we ingeminate that Sushila Devi, as claimed by the prosecution witnesses after receiving gunshot injury died on the spot, but it is surprising that her son, her daughter did not touch her nor did they try to see whether their mother was alive or not! Therefore, these incongruous divulgences on the part of prime witnesses of fact become quite relevant when compared with medical testimony. Medical testimony coming forth establishes that the firing done by the assailants resulting into death of Sushila Devi and Raj Kumar was caused from a distance beyond 10 feet and it can never be from close range, as claimed by PW-1. Surprisingly, except Ved Prakash- PW-1 no other witness of fact has specifically come out about the distance from where shot was opened on the deceased. This also raises serious doubts on the point of these witnesses being witnesses of occurrence. Mahesh, PW-5 states in his examination-in-chief that he witnessed the entire incident and also sustained injury. But in his cross-examination, he also confirms that on the day of occurrence, he remained confined throughout the night at the police station along with Ved Prakash and Pappu and he went to the police station from the village in company with the police personnel. He adds that he was accompanied from village to police station by Lallu @ Narendra, Bitti @ Vidyotama and Khannu @ Raj Kumar. He goes on to add that police itself brought the tempo in the village and police came to the village at 8:00 p.m. Thus, police interference prior to the lodging of F.I.R. is no secret. He further testifies on page 67 of the paper book in his cross-examination that they remained languishing at the police station up to 10-11 a.m. in the next morning and thereafter, they went to the hospital. In this view of the matter the very medical examination reports of several injured persons showing their medical examination in the night intervening 26/27.08.2001 stand exposed.

The point is as to what Daroga Ji was doing with these witnesses- Mahesh, Ved Prakash and Kumari Vidyotama by keeping them at the police station from time of occurrence to the very next day (upto 10-11 a.m.) after the occurrence and getting them medically examined only around 11:00 a.m. on 27.08.2001. This also speaks of colossal police involvement in the case.

We may further observe that Subhash, the injured was medically examined on 29.08.2001 at P.S.C. Sarai Aquil. Similarly Bhaiya Lal, son of Dassu was also medically examined on 29.08.2001. As to how they were examined on 29.08.2001, has not been clarified by the prosecution.

Now we have opportunity to evaluate testimony of the Investigating Officer Arun Pradip Shukla, PW-10. He has detailed about his investigation that he took over the investigation and recorded statement of various persons and ensured recovery of weapon tamancha and cartilages from Jagannath and Bhaiya Lal. But on careful perusal of the recovery memo- say- Exhibit Ka-25 and Ka-24 pertaining to recovery made from Jagannath and Bhaiya Lal, respectively; in both the recoveries first with the recovery of tamancha from Bhaiya Lal on 28.08.2001 we discover that after tip off information was received by the Investigating Officer Arun Pradip Shukla, PW-10 no efforts were made to avail public witnesses; while arrest of Bhaiya Lal along with Subhash, son of Sohanlal Pal was effected at 3 p.m. at a place which was admitted to the prosecution on witness frequented by public. Then on the information so received, the police personnel took Bhaiya Lal to his house and under a grain pile up which was outside the house recovery of country-made pistol (tamancha) 12 bore along with two cartiges was made. This place of recovery is also open place and accessible easily to one and all. Therefore, it cannot be said that the recovery is absolutely perfect and is liable to be acted upon as such. The fact of recovery has been denied by accused Bhaiya Lal. Similarly, recovery memo of country-made pistol(tamancha) 12 bore at the pointing out of Jagannath on 13.09.2001 becomes suspicious in view of fact that the recovery was effected from in front of house of Baijnath from under a sand dune. This place is easily accessible to all and is open place and the fact of recovery has been specifically denied by accused Jagannath as well. Therefore, the factum of recovery also becomes doubtful and it cannot be said that any worthy recovery was made.

At this juncture, we may have the site plan Exhibit Ka-16, the spot map, which has been clarified by the Investigating Officer, PW-10 at page 94 of the paper book, wherein he has described place 'A' as the place from where firing was done and he has mentioned fact that this site plan was prepared at the instance of the informant. 'X' place in the site plan shows the place where dead body of deceased Sushila Devi was lying. This site plan does not mention as to from where Sushila Devi received gunshot wound and the distance between place 'A' to 'X' is counted 35 steps, meaning thereby fire on Sushila Devi was done from a distance of about 50 feet. The site plan also does not mention as to where other witnesses sustained injuries. It does not mention the spot where deceased Raj Kumar sustained injury. Therefore, theory of occurrence propounded by Ved Prakash, PW-1 to the extent that fire was shot from close range on her mother Sushila Devi, is not established even by perusal of the site plan.

In his cross-examination, Investigating Officer Arun Pradip Shukla, PW-10 says that he met with Ved Prakash at village Hazari ka Purwa on 27.08.2001 and it was around 1:00 p.m. whereas he claims that he arrived at the place of occurrence at 10:00 p.m. on 26.08.2001. The fact is that the Investigating Officer is either an innocent person or is clever one who is deliberately concealing fact that some Daroga Ji either he himself or somebody else visited the village Hazari ka Purwa around 8:00 p.m. on 26.08.2001 when the occurrence had already taken place at 7:30 p.m. He has testified on page no. 92 of the paper book in his cross-examination that in parcha no. 6 of case diary dated 3.9.2001 it has been noted that dying declaration of injured Lallu Yadav was noted by Shri Dinesh Chandra Yadav, P.C.S., Allahabad and he did not see this dying declaration. At this stage, he has been suggested that the dying declaration of injured Lallu Yadav contained facts regarding dacoity being committed and this did not support the prosecution version, therefore, the same was waived and not made part of case diary. The answer has come forth from PW-10 that he did not find it necessary to look into such statement when the injured survived. Here, we may note that for clarity of vision it would have been appropriate on the part of the Investigating Officer to have mentioned the part of dying declaration, which was obtained from injured Lallu Yadav and a reference of the same had already been noted in parcha no. 6 of the case diary dated 3.9.2001. It is not the whim of Investigating Officer that would prevail and he would be at liberty to collect evidence what he considers proper and relevant. He must bring on record every fact which carries and reflects some meaning on the occurrence. Here, withholding of such statement, though legally not dying declaration, but in form of statement amounts to withholding of testimony which, if produced, would have adversely affected case of the prosecution. Therefore, an adverse inference is to be drawn under Section 114(g) of the Evidence Act. We have very relevant piece of testimony, which we discover on page no. 93 of the paper book in shape of cross-examination of the Investigating Officer, wherein statement of Ganga Prasad, son of Ram Kishore Vishwakarma, was taken down by the Investigating Officer, PW-10 wherein it was stated that there was some altercation between Pappu nephew of Ganga Prasad and Barati Lal two months prior to the incident regarding which an N.C.R. was noted at police station on 26.06.2001, but the matter settled and everything was fine. Ganga Prasad and Bhaiya Lal both were following their routine. But the villagers due to village party-bandi and after hatching conspiracy got murdered his wife (Sushila Devi). It has been testified by the Investigating Officer in apparent words that the witness did not spell name of Jagannath that he ever caused her(Sushila Devi) death nor did he name any of the accused persons who caused the incident. Therefore, the suggestion of the defence regarding some dacoity being committed in the village wherein injuries were caused to the prosecution side and the occurrence was not witnessed by anyone holds weight in proportion rather than the theory propounded by the prosecution that the incident was caused by several accused persons including the present appellant. Ganga Prasad happens to be husband of Sushila Devi. Even he did not implicate the present appellants as the perpetrator of the crime and his testimony has got prime sanctity because he had no specific reason to save the appellants. At this stage, we come across the testimony of Ram Sanehi, PW-7 when he says that he noted down contents of first information report which was handed over to him by Ved Prakash, PW-1 at 9:35 p.m. and he noted his check F.I.R. at case crime no. 109/2001 and then he registered a case against the accused persons by making relevant entries in the concerned GD at serial no. 31 on 26.08.2001, but we have already discussed fact that some Daroga Ji had already visited the village and place of occurrence and had taken the injured to the police station by tempo, therefore, testimony of PW-7 regarding the fact that he in fact lodged the F.I.R. only after receiving the written report at 9:30 p.m., is not worthy and believable and there is no such corroboration that the F.I.R. was in fact lodged at the police station at 9:35 p.m. because the letter meant for medical examination of the injured did not bear case crime no. and the thumb impression /L.T.I. of the injured was not properly identified by the doctor and the injured persons were kept throughout the intervening night of 26/27.08.2001 at the police station. These specific facts and attendant circumstances explain police interference in the case. Therefore, it cannot be said that the prosecution was able to prove its case beyond reasonable doubt and the recovery of so-called country-made pistol(tamancha) from the two appellants as per recovery memo Exhibit Ka-24 and Ka-25 is also not substantiated for the reasons we have already discussed. It is cardinal principle of criminal jurisprudence and trite law that prosecution would have to stand on its own leg and would have to remove all reasonable suspicion in order to travel beyond suspicious circumstances and evidence and then to establish a case beyond reasonable doubt and only then any conviction can be had on the charge framed against accused persons. In this case at hand the prosecution has failed through and through for various reasons to establish charge beyond reasonable doubt. Testimony of witnesses of fact is contradicting each other on material points. These contradictions are substantial and cannot be ignored. Attendant circumstances profusely indicate that things have been meshed and controlled by the police and various developments indicating prior indulgence of the police in the case have been tried to be concealed.

Theory of actual occurrence of firing is wholly controverted by the medical testimony on record and the doctor who has given reasons for injury being caused from beyond a particular distance, has not been declared hostile by the prosecution, therefore, testimony of doctor witnesses is unimpeachable as appearing in their cross-examination, which support case of the defense that no such occurrence, as claimed by the prosecution ever took place.

The learned trial court while recording conviction of Jagannath and Bhaiya Lal failed to notice the above evidence, facts and circumstances of this case and particularly manner and style of occurrence. When the prosecution failed to prove the occurrence itself, then involvement of the appellants in recovery of country-made pistol(tamancha) is itself relegated to the background for reasons that arrest of Bhaiya Lal though effected at 3:00 p.m. on 28.08.2001 in the afternoon, is not substantiated by any independent public witness, though, tip off information had been received prior to the arrest. The recovery memo does not contain even a single recital as to how and why the Investigating Officer- PW-10- failed to ensure presence of public/ independent witness for effective arrest.

As a matter of fact from both the recoveries from Jagannath and Bhaiya Lal it is admitted fact that both the recoveries were made from an open place easily accessible to all, therefore, recovery on the whole when assimilated in the attendant facts and circumstances of this case, become dubious and the same cannot be believed to be inspiring confidence. Therefore, conviction of both the appellants- Jagannath and Bhaiya Lal pertaining to Sessions Trial no. 14/2002, State Vs. Bhaiya Lal, arising out of case crime no. 109/2001, Sessions Trial no. 15/2002, State Vs. Bhaiya Lal, arising out of case crime no. 110/2001 and Sessions Trial no. 16/2002, State Vs. Jagannath Pal, arising out of case crime no. 117/2002 pertaining to under Sections 302, 307 IPC and 25 Arms Act (in case of accused Jagannath and Bhaiya Lal) are liable to be set aside.

In view of aforesaid discussion, we find force in the argument extended by the learned counsel for the appellants, as it carries force, consequently, the aforesaid appeals (Criminal Appeal No. 4762-2004- Bhaiya Lal Vs. State of U.P. and Criminal Appeal no. 4849-2004- Jagannath Vs. State of U.P.) are allowed and the judgment and order of conviction dated 13.09.2004 passed by Court of Additional Session Judge/Fast Track Court, Kaushambi in so far as it relates to conviction part of the present appellants- Jagannath and Bhaiya Lal, is hereby set aside and both the appellants are exonerated of all charges.

Further, for the aforesaid reasons and conclusion, it is obvious that the learned trial court while recording acquittal of respondents in the Government Appeal- Bhaiya Lal, Baijnath Pal, Sohan Pal, Barati Lal, Subhash, Umesh Shukla, Sanjay Shukla under Sections 147, 148, 302/149, 307/149 and accused Umesh Shukla under Section 120B IPC and accused Sanjay Shukla under Section 30 Arms Act has appreciated evidence on its primary line and it cannot be faulted with at this juncture by us. Therefore, the aforesaid Government Appeal No.6736-2004 sans merit and is liable to be dismissed. Therefore, leave to appeal is also refused, consequently, the Government Appeal is dismissed.

Appellant- Jagannath is in jail. He be set free forthwith, if not wanted in connection with any other case after ensuring compliance mandated under Section 437A Cr.P.C.

Appellant- Bhaiya Lal is already on bail. He need not surrender. His bail bonds are cancelled and sureties are discharged. He, too, will ensure compliance of Section 437A Cr.P.C.

The respondents of Government Appeal No. 6736-2004 shall also ensure compliance of Section 437A Cr.P.C.

Let a copy of this order/judgment be certified to the court below for necessary information and follow up action.

Dt.28.11.2016

Raj/Ishan