Subhash vs State Of U.P
2017 Latest Caselaw 6163 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 


 
RESERVED
 
AFR
 

 
Case :- CRIMINAL APPEAL No. - 291 of 2010
 

 
Subhash son of Jagannath Bhurji, resident of Bilsari, Police Station Pachdevara, District Hardoi.
 

 
............. Appellant
 

 
State Of U.P
 

 
................... Respondent
 

 
Counsel for Appellant :- Jail Apeeal, Shri Anurag Shukla (Amicus Curiae)
 

 
Counsel for Respondent :- Govt. Advocate
 

 

 
Hon'ble Anil Kumar,J.

Hon'ble Anil Kumar Srivastava-II,J.

(Delivered by Hon'ble Anil Kumar, J.)

1. Heard Shri Anurag Shukla Amicus Curiae for the accused-appellant and Ms.Farhat Jamal Siddiqui, learned A.G.A. for the State and perused the record.

2. Instant appeal has arisen against the judgment and order dated 19.3.2008, passed by learned Additional Sessions Judge, Hardoi in S.T. No.432/2006, arising out of Crime No.122/2006, under section 302 IPC, Police Station Behata Gokul, District Hardoi and connected S.T. No.501/2006, arising out of case crime no.124/2006, under section 25 Arms Act, Police Station Behata Gokul, District Hardoi, whereby the learned trial court had convicted the accused Subhash under section 302 IPC and sentenced him imprisonment for life and pay a fine of Rs.5000/-. In default of payment of fine he has to further undergo rigorous imprisonment for one year. However, learned trial court had acquitted the accused for an offence punishable under section 25 Arms Act.

3. A first information report was lodged at police station Behata Gokul on 05.4.2006 by Mukesh Stating that he is the resident of Village Bilsari, Police Station Pachdevara, District Hardoi, but at the time of incident he alongwith his brothers was residing at Raushar Kothi, Police Station Ram Chandra Mission, District Shahjahanpur. Subhash, younger brother of the complainant, was residing at village Bilsari alongwith his mother. Shyamlal, resident of village Kotla Sarai, Police Station Behata Gokul is the father in law of the complainant. Accused Subhash was inimical with the complainant due to some money transaction. Complainant had come to his in-laws house at Village Kotla on 04.4.2006. During the night of 4/5.4.2006 complainant was sleeping beneath the ''chhappar' alongwith his wife Pramila and father-in-law Shyam Lal. At about 01:30 AM accused Subhash came and fired upon the complainant Mukesh. On his raising an alarm and hearing the voice of fire Pramila and Shyam Lal awakened and saw the accused in the torch light. Accused ran away. Complainant Mukesh got injured. Written report was scribed by Ram Babu, brother of the complainant Mukesh. Written report was submitted at the police station Behata Gokul at 07:05 AM on 05.4.2006 and a case under crime no.122/2006, under section 307 IPC was registered. At 08:15 AM injured Mukesh was medico legally examined by Dr. Anoop Kumar Srivastava, Emergency Medical Officer, District Hospital Hardoi, who found a firearm wound of entry and wound of exit. On the same day, i.e., 05.4.2006 Mukesh succumbed to the injuries at about 07:00 PM. Inquest proceedings were conducted. Postmortem of the body of deceased was conducted on 06.4.2006 wherein the cause of death was found as ante-mortem firearm injury. After the death of the complainant the case was altered under section 302 IPC. On 08.4.2006 SI Surendra Singh alongwith other police officials at about 07:45 PM arrested the accused and recovered a countrymade pistol 315 bore and a live cartridge and empty cartridge from the possession of the accused who could not show the licence. A case under section 25 Arms Act was registered. Site plan was prepared. Pending investigation part of the bed were recovered. Statement of the witnesses were recorded. Site plan was prepared. Recovered articles were sent to Forensic Science Laboratory. Recovered countrymade pistol was also sent wherein a report was received that the fire was not shot from the recovered pistol.

4. Sanction for prosecution under section 25 Arms Act was obtained by the Investigating Officer. After investigation separate chargesheet under section 302 IPC and 25 Arms Act were submitted against the accused. Charge under section 302 IPC and 25 Arms Act were levelled against the accused, who denied the charges and claimed trial.

5. Prosecution has produced PW-1 Shyam Lal, father-in-law of the deceased Mukesh who was also sleeping alongwith him on another cot, PW-2 Smt. Pramila wife of the deceased who was also sleeping alongwith deceased on another cot. PW-3 Ram Babu eyewitness was declared hostile, PW-4 S.O. Surendra Singh who was Investigating Officer, he has recovered the countrymade pistol and cartridges from the accused, PW-5 Constable Dinesh Pal Singh (Constable Moharrir), who has scribed the chik FIR, PW-6 SI Ajay Kumar Yadav, who had undertaken the investigation after the transfer of the earlier Investigating Officer SO Surendra Singh. He has submitted the chargesheet against the accused. PW-7 SI Dheeraj Kumar Shukla who had submitted the chargesheet against the accused under section 25 Arms Act, PW-8 Dr Anoop Kumar Srivastava, who has medico legally examined the Mukesh on 05.4.2006 at 08:15 AM and found the following injuries on his body.

(i) Firearm wound of entry 1 cm x 1 cm x depth kept under observation. Left side abdomen 12 cm above from left Iliac crest. Blackening and tattoing present around the wound. Injury kept under observation. Advised X-ray. Abdomen AP and lateral margine inverted.

(ii) Firearm wound of exit 0.5 cm x 0.5 cm x depth kept under observation. Right side abdomen 8 cm above from umbilicus at 10 ''O' clock position, margine everted.

As per the opinion of the doctor injuries were caused by the firearm and were fresh in the nature.

6. PW-9 SI Anil Kumar Rai who has conducted the inquest proceedings, PW-10 Dr. Mohit Kumar who has conducted the autopsy of the body of deceased and found following injuries on his body.

(i) Firearm wound of entry 1 cm x 1 cm x abdominal cavity deep present on Posterio lateral aspect of left side of abdomen, 10 cm above left iliac crest. Margines inverted, irregular. Collar of abrasion ring present around the wound. Blackening, tattoing and scorching present in an area 6 cm x 5 cm around the wound. On opening ecchymosed present underneath the injury. Loops of small intestine alongwith mesentry and mesentric vessels lateral at three places. Lower part of left kidney lacerated through and through. About two litre of clotted fluid blood present in abdominal cavity.

(ii) Firearm wound of exit 1.5 cm x 1.5 cm circular in shape present on front of right side of abdomen, 5 cm above and lateral to umbilicus towards right side. Margines everted, irregular. On opening ecchymosed present underneath the injury. On probe and dissection both injury no.1 and 2 communicated with each other.

As per the opinion of the doctor cause of death was the ante-mortem firearm injuries.

7. PW-11 Constable Ram Asrey is the scribe of the chik FIR case under section 25 Arms Act.

8. In the statement under section 313 CrPC accused has stated that he has been falsely implicated in this case. Wife of the deceased wanted to marry someone else. Accused was opposing the same, hence, he has been falsely implicated.

9. After appreciating the evidence on record, learned trial court has recorded a finding that the first information report was lodged promptly. There is no undue delay. Accused was seen by the witnesses in the light of torch and lantern. Place of incident is also proved. Presence of the witnesses namely Shyam Lal and Pramila is also established. Written report was submitted by the deceased himself. Learned trial court has treated it as a dying declaration. However, learned trial court did not relied upon the theory of recovery of the countrymade pistol and cartridges from the possession of the accused. Accordingly, the accused was held guilty under section 302 IPC but acquitted under section 25 Arms Act.

10. A perusal of the trial court record and the judgment implicitly shows that the accused was represented through Amicus Curiae before the learned trial court. Even the appeal was filed by the accused appellant from jail which is treated as a jail appeal. In the appeal also accused could not engage his counsel and the services of Amicus Curiae were provided to the accused.

11. Learned counsel for the accused-appellant submits that the prosecution has failed to prove the charges against the accused beyond reasonable doubt. It is submitted that the prosecution version is highly improbable. Incident occurred at 1:30 AM during the night of 4/5.4.2006 while the first information report was lodged at 07:05 AM. Distance of the police station is about six and half kilometers. Injured remained in the house after receiving the injuries but no effort was made either to take him to the hospital for first aid or to the police station while the father-in-law and wife of the deceased were present there. This conduct itself is sufficient to hold that the FIR was lodged with considerable delay after due deliberations.

12. It is further submitted that the motive behind the incident is very weak. It is alleged that there was a dispute between the deceased and the accused over some monetary transaction but prosecution has utterly failed to prove any monetary transaction between the two. It is further submitted that the FIR did not bear the signatures of the deceased. It cannot be treated as a dying declaration of the deceased. Even the scribe of the report, who is the real brother of the deceased, was not produced to prove the FIR.

13. It is further submitted that the presence of PW-1 and PW-2 at the place of incident is highly doubtful. They are not wholly reliable witnesses upon whose testimony accused can be held guilty. It would also be submitted that incident occurred during the mid-night. Allegedly witnesses have seen the accused in the torch light. In the evidence an improvement was made that they have seen the accused in the light of lantern also but neither the torch nor lantern was taken into possession by the Investigating Officer, hence, the source of light is also not proved. Presence of Ram Babu at the spot is also doubtful as there are material contradictions in the statement of the witnesses.

14. Admittedly, incident occurred at 01:30 AM during the night of 4/5.4.2006 and the FIR was lodged at 07:05 AM at police station Behata Gokul while the distance of the police station from the place of incident is shown as 6.5 miles. PW-1 Shyam Lal is the father-in-law of the deceased while PW-2 Pramila is the wife of the deceased. PW-3 Ram Babu did not prove the FIR and he was declared hostile. Now, there remains the testimony of PW-1 Shyam Lal and PW-2 Pramila only. PW-3 Ram Babu has specifically stated that he had written the written report on the dictation of the Sub-Inspector of Police. Report was not written on the dictation of deceased Mukesh who was alive at that time. PW-1 Shyam Lal and PW-2 Pramila have categorically stated that they were sleeping on separate cots and the deceased Mukesh was sleeping on a separate cot. While Mukesh received injuries, he remained on place of incident till Ram Babu and Ajay Pal came there. Thereafter, Mukesh was taken to the hospital in the Maruti Car. It is further stated that when Mukesh sustained injuries he continued to remain on the cot. PW-1 Shyam Lal did not make any effort to take him to the police station or hospital. At one place this witness states that Ram Babu and Ajay arrived at his home then he took the injured Mukesh to the police station while at another place he states that Ram Babu and Ajay Pal met him at the police station. It is also stated by the PW-1 Shyam Lal that at the police station he narrated the whole incident to the Police Sub-Inspector, who dictated it to Ram Babu. Thereafter, Mukesh and Ram Babu signed it, while PW-2 Pramila stated that Ram Babu and Ajay Pal came at the house, thereafter, Mukesh was taken to the police station in a Maruti Car. It is also stated by this witness that police station is nearer to her house. It took half an hour to reach the police station. Ajay Pal and Ram Babu arrived at the police station. Mukesh was not taken inside the police station, rather Shyam Lal and Ram Babu went inside the police station. Written report was written on the dictation of the Police Sub-Inspector. Statement of these two witnesses lends support to the statement of PW-3 Ram Babu, who is the scribe of the written report, that the written report was not written on the dictation of Mukesh, rather it was written on the dictation of the Police Sub-Inspector. Secondly, the FIR was lodged with a considerable delay of about five and half hour. This circumstance attains importance keeping in view the fact that the injured was taken to the police station in a Maruti Car. The distance of police station is only 6.5 miles. When car was available in the night then why the injured was not taken to the hospital or police station when he has received the gun shot injuries in his stomach ? Why the father-in-law and wife of the injured were waiting till morning ? It is nowhere stated that there was any effort from the side of the accused that if they will go the the police station they will also be hurt. Even the presence of Ram Babu is doubtful as there is material contradiction in the statement of PW-1 Shyam Lal and PW-2 Pramila that Ram Babu and Ajay Pal arrived at the house or they came at the police station but one fact is proved that the written report was not written on the dictation of Mukesh, rather, it was written on the dictation of the Police Sub-Inspector. Even Mukesh did not went inside the police station. Then such report could not be treated as dying declaration of the deceased while the signatures of the deceased itself have been challenged by the accused.

15. In Meharaj Singh v. State of U.P., (1994) 5 SCC 188, a two-Judge Bench of Hon'ble Apex Court has observed (SCC pp. 195-96, para 12) that FIR in a criminal case and particularly in a murder case is a vital and valuable piece of evidence for the purpose of appreciating the evidence led at the trial and the object of insisting upon prompt lodging of the FIR is to obtain the earliest information regarding the circumstance in which the crime was committed, including the names of the actual culprits and the parts played by them, the weapons, if any, used, as also the names of the eyewitnesses, if any, for delay in lodgment of the FIR results in embellishment which is a creation of afterthought. Emphasis was laid on the fact that on account of delay, the FIR not only gets bereft of the advantage of spontaneity but also danger of introduction of a coloured version or exaggerated story.

16. In Kilakkatha Parambath Sasi vs. State of Kerala (2011) 4 SCC 552, it has been observed (SCC p.557, para 20) that when an FIR has been lodged belatedly, an interference can rightly follow that the prosecution story may not be true but equally on the other side, if it is found that there is no delay in the recording of the FIR, it does not mean that the prosecution story stands immeasurably strengthened.

17. In this regard, we may refer with profit to a passage from State of H.P. Vs. Gian Chand, (2001) 6 SCC 71, wherein a three- Judge Bench of the Hon'ble Apex Court has expressed thus: (SCC p.79, para 12)

"12. Delay in lodging the FIR cannot be used as a ritualistic formula for doubting the prosecution case and discarding the same solely on the ground of delay in lodging the first information report. Delay has the effect of putting the court on its guard to search if any explanation has been offered for the delay, and if offered, whether it is satisfactory or not. If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case."

18. In Ramdas vs. State of Maharashtra, (2007) 2 SCC 170, Hon'ble Apex Court has observed that: (SCC p.179, para 24)

"24.. ..... mere delay in lodging the first information report is not necessarily fatal to the case of the prosecution. However, the fact that the report was lodged belatedly is a relevant fact of which the court must take notice. This fact has to be considered in the light of other facts and circumstances of the case, and, in a given case, the court may be satisfied that the delay in lodging the report has been sufficiently explained. In the light of the totality of the evidence, the court of fact has to consider whether the delay in lodging the report adversely affects the case of the prosecution. That is a matter of appreciation of evidence. There may be cases where there is direct evidence to explain the delay. Even in the absence of direct explanation, there may be circumstances appearing on record which provide a reasonable explanation for the delay. There are cases where much time is consumed in taking the injured to the hospital for medical aid and, therefore, the witnesses find no time to lodge the report promptly. There may also be cases where on account of fear and threats, witnesses may avoid going to the police station immediately. The time of occurrence, the distance to the police station, mode of conveyance available, are all factors which have a bearing on the question of delay in lodging of the report. It is also possible to conceive of cases where the victim and the members of his or her family belong to such a strata of society that they may not even be aware of their right to report the matter to the police and seek legal action, nor was any such advice available to them."

19. It is settled in law that mere delay in lodging the first information report cannot be regarded by itself as fatal to the case of the prosecution. However, it is obligatory on the part of the court to take notice of the delay and examine, in the backdrop of the case, whether any acceptable explanation has been offered by the prosecution and if such an explanation has been offered whether the same deserves acceptance being found to be satisfactory.

20. Thus, whether the delay creates a dent in the prosecution story and ushers in suspicion has to be gathered by scrutinising the explanation offered for the delay in the light of the totality of the facts and circumstances. Greater degree of care and caution is required on the part of the court to appreciate the evidence to satisfy itself relating to the explanation of the factum of delay.

21. Dying declaration can be made the basis for the conviction of the accused but it should be proved to have been made by the deceased in injured condition coupled with the fact that his mental and physical condition was such as he can make the statement voluntarily.

22. In Vijay Pal vs. State (Govt. of NCT of Delhi, (2015) 4 SCC 749, after referring to the Constitution Bench decision in Laxman vs. State of Maharashtra (2002) 6 SCC 710 and the two- Judge Bench decisions in Babulal vs. State of M.P., (2003) 12 SCC 490 and Prakash vs. State of M.P., (1992) 4 SCC 225, the Court held :

"22. Thus, the law is quite clear that if the dying declaration is absolutely credible and nothing is brought on record that the deceased was in such a condition, he or she could not have made a dying declaration to a witness, there is no justification to discard the same. In the instant case, PW-1 had immediately rushed to the house of the deceased and she had told him that her husband had poured kerosene on her. The plea taken by the appellant that he has been falsely implicated because his money was deposited with the in-laws and they were not inclined to return, does not also really breath the truth, for there is even no suggestion to that effect.

23. It is contended by the learned counsel for the appellant that when the deceased sustained 100% burn injuries, she could not have made any statement to her brother. In this regard, we may profitably refer to the decision in Mafabhai Nagarbhai Raval vs. State of Gujarat, (1992) 4 SCC 69, wherein it has been held that a person suffering 99% burn injuries could be deemed capable enough for the purpose of making a dying declaration. The Court in the said case opined that unless there existed some inherent and apparent defect, the trial court should not have substituted its opinion for that of the doctor. In the light of the facts of the case, the dying declaration was found to be worthy of reliance.

24. In State of M.P. vs. Dal Singh, (2013) 14 SCC 159, a two-Judge Bench placed reliance on the dying declaration of the deceased who had suffered 100% burn injuries on the ground that the dying declaration was found to be credible."

The same view was taken by the Hon'ble Apex Court in Mukesh vs. State(NCT of Delhi) (2017) 6 SCC 1.

23. It was held by the Hon'ble Apex Court in Mohar Singh vs. State of Punjab AIR 1981 Supreme Court 1578 that when the deceased is giving a graphic narration of the whole case starting from the motive, enmity and minute features of assault and the condition of the deceased was not even certified either by the Doctor or anyone else then it is not safe to place reliance upon such a dying declaration.

24. First information report is lodged with considerable delay without any plausible explanation, rather, first information report itself creates suspicion about its genuineness when it was written on the dictation of the Police Sub-Inspector. Prosecution has utterly failed to explain the delay in lodging the first information report.

25. First information report is written on the dictation of the Police Sub-Inspector. Signatures of Mukesh in the first information report have been challenged by the accused which could not be proved by the prosecution, rather, both the witness namely PW-1 Shyam Lal and PW-2 Pramila have stated that first information report was written on the dictation of the Police Sub-Inspector. In such circumstnaces the first information report could not be treated as dying declaration of the deceased.

26. A motive is asserted by the prosecution that there was dispute over certain monetary transaction between accused and deceased. PW-1 Shyam Lal and PW-2 Pramila have categorically stated that no altercation or dispute ever arises before them, rather PW-2 Pramila has stated that her husband has never told her about any dispute between the deceased and accused over the monetary transaction. PW-1 Shyam Lal has also stated that he has no knowledge about any dispute between the accused and the deceased over any monetary transactions. In the circumstances motive as alleged by the prosecution is not proved.

27. In Habib vs. State of U.P. (2013) 12 SCC 568, it was held that :-

"8...........It is settled legal position that if there is direct trustworthy evidence of witnesses as to the commission of the offence, the motive part loses its significance. Therefore, if the genesis of the occurrence is proved, the ocular testimony of the witnesses could not be discarded only by the reason of the absence of motive, if otherwise the evidence is worthy of reliance..........."

The same view was taken by the Hon'ble Apex Court in Sheo Shankar Singh vs. State of Jharkhand (2011) 3 SCC 654 and Bipin Kumar Mondal vs. State of West Bengal (2010) 12 SCC 91.

28. Hence, even if there was no motive then we have to appreciate the evidence of PW-1 Shyam Lal and PW-2 Pramila regarding incident as it is a case of direct evidence.

29. Presence of PW-1 Shyam Lal and PW-2 Pramila at the place of incident is highly doubtful. Their conduct shows that the incident did not took place in their presence. Accused shot at Mukesh at about 01:30 AM. Both the witnesses got awakened. Injured was profusely bleeding but till morning they did not make any effort to take the injured to the hospital or to make any arrangement for providing first aid to him. Relationship of these witnesses with the injured is very relevant as PW-1 Shyam Lal is the father-in-law and PW-2 Pramila is wife of the deceased. How it can be believed that the wife and father-in-law of the injured would kept waiting till morning for providing any medical aid to the injured. Even in the morning they did not took him to the hospital, rather, they went to the police station first. This circumstance itself is sufficient to hold that the incident did not took place in their presence. Their presence at the scene of incident is highly doubtful.

30. According to the first information report, witnesses saw the accused in the torch light. In the site plan injured was sleeping on the point ''A' on the cot towards north on different cot his wife Pramila shown as point ''C', while on southern side his father-in-law Shyam Lal shown as point ''B' on a different cot were sleeping. In between ''A' and ''C' a lantern was shown. In the first information report source of light is shown as the torch only. PW-7 SI Dheeraj Kumar Shukla is the first Investigating Officer. It is stated by the PW-7 SI Dheeraj Kumar Shukla that he has recorded the statement of injured Mukesh on 05.4.2006. Subsequently, Mukesh died. Such statement of injured Mukesh could be treated as a dying declaration but the statement has not been proved by the prosecution. At the same time PW-8 Dr. Anoop Kumar Srivastava, who had examined Mukesh on 05.4.2006 at 08:15 AM has stated that the nature of injuries of injured was such that injured could have spoken for about an hour but he could not state the general condition of the injured. It shows that the general condition of the injured was not proved to show that he was in a fit condition to make a statement before the Investigating Officer. Specific suggestion is given to the Investigating Officer that the injured was not in a fit condition to depose, hence, the previous statement made by the injured could not be treated as a dying declaration.

31. Torch was not taken into possession of the Investigating Officer. Even the lantern was not taken into possession of the Investigating Officer. There is a material improvement regarding source of light. PW-1 Shyam Lal has stated that he had seen the accused in the torch light and the lantern light. He got awakened on hearing the cries of Mukesh. Om Prakash also arrived at the place of occurrence. PW-2 Pramila has also stated that she has seen the accused in the light of torch and lantern. Her father was having a torch of two cells. Neither torch nor lantern was taken into possession which casts a serious doubt about the source of light. It is more important that the accused is the real brother of the deceased. Accused was living separately. Deceased came to his in-laws house on the same day in the afternoon. What was the occasion for the accused to commit the crime in the house of father-in-law of the deceased while the deceased was residing at Shahjahanpur ? His in-laws are residing at village Kotla Saraiyya, District Hardoi. According to the PW-1 Shyam Lal, Pramila wife of the deceased was living with him for quite some time. His son in law had come to meet his wife on the date of incident. It is admitted by PW-1 Shyam Lal and PW-2 Pramila that at the time of incident accused did not make any effort to conceal his face. When accused was known to both of them then it is highly improbable that he did not make any attempt to cover his face, so that he may not be identified. A Division Bench of this Court in Criminal Appeal No.1242 of 1978 decided on 11.7.1988, Gopi and Others versus State of U.P. in para 5 has observed that :-

"5. Even otherwise also it is highly improbable that when out of 10 or 12 dacoits some were putting on 'dhatas', those who were already known to the witnesses would have not put on 'Dhatas' and would have kept their faces open while those who were not already known to the witnesses, would have put on dhatas. The natural conduct is that the people do not commit dacoity in neighbouring houses or at known places. They take precaution to conceal their identity. Of course there is no law to that effect but it generally so happens and there may be exception like cases in which the offence is committed by hardened criminals or by a person who is so much inimically disposed against the victim as to lose all sense to his own safety while committing the offence .............."

Reference on this point may also be made on the pronouncement of Hon'ble Apex Court in Ram Shankar Singh vs. State of U.P., 1956 Supreme Court 441 as well as Nawab Singh and Others versus State of U.P. reported in MANU/UP/1094/2007.

32. Recovery of countrymade pistol 315 bore was made on 08.4.2006 from the possession of the accused but the same was not sent for ballistic expert, although, the learned trial court has acquitted the accused under section 25 Arms Act and the recovery was disbelieved which finding is not challenged before us by the State. According to the report of the Forensic Science Laboratory fire was not shot from the recovered countrymade pistol.

33. Investigating Officer has taken into possession the pieces of rope (baand) of cot, plain and blood stained which contain the human blood. No blood stained or plain earth was taken into possession by the Investigating Officer from the place of incident. There is a discrepancy in the statement of PW-8 Dr. Anoop Kumar Srivastava who has medically examined the injured Mukesh on 05.4.2006 wherein he has found the wound of entry as 1 cm x 1 cm and wound of exit as 0.5 cm x 0.5 cm while PW-10 Dr. Mohit Kumar, who has conducted the postmortem of the dead body of Mukesh on 06.4.2006, has stated that he found entry wound as 1 cm x 1 cm while exit wound was 1.5 cm x 1.5 cm. This contradiction itself creates a doubt about the weapon used and the nature of injuries because PW-10 Dr. Mohit Kumar has admitted that the exit wound would be larger in the size in comparison to the entry wound but doctor Anoop Kumar has found the exit wound smaller than the entry wound. No explanation could be offered by the prosecution in this regard which also creates a doubt about the genuineness of the prosecution version.

34. After considering the material evidence on record and appreciating the evidence on record, we are of the view that the learned trial court has misappropriated the evidence on record. Learned trial court has wrongly believed the dying declaration. Prosecution has utterly failed to prove the charges against the accused beyond reasonable doubt. Accused is entitled for acquittal.

35. Accordingly, appeal is allowed. Judgment and order dated 19.3.2008 passed by learned trial court is set-aside. Accused-appellant Subhash is acquitted for the offence punishable under section 302 IPC. He is in jail. He should be released forthwith if not wanted in any other case.

36. Office is directed to certify the judgment to the learned lower court forthwith. Office is further directed to send the lower court record to the learned trial court forthwith. Learned trial court should send the compliance report within eight weeks.

Date :- 02.11.2017

mks

(Anil Kumar, J.)

(Anil Kumar Srivastava-II, J.)