Bindey vs State Of U.P.
2019 Latest Caselaw 3295 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

AFR
 
Court No. - 16
 

 
Case :- CRIMINAL APPEAL No. - 1500 of 2005
 

 
Appellant :- Bindey
 
Respondent :- State Of U.P.
 
Counsel for Appellant :- Rishad Murtaza,Alok Singh,Altaf Mansoor,Soniya Mishra
 
Counsel for Respondent :- Govt.Advocate
 

 
Hon'ble Ritu Raj Awasthi,J.

Hon'ble Virendra Kumar-II,J.

1. This appeal has been preferred on behalf of appellant Bindey assailing impugned judgment and order dated 5.10.2005 delivered by the court of learned Additional Sessions Judge/Special Judge (E.C. Act), Sitapur in Sessions Trial No. 164 of 2001 (State Vs. Bindey and others) arising out of Case Crime No. 302, 324 and 504 IPC of Police Station Maholi, District Sitapur. Learned trial court has convicted the appellant Bindey for offence punishable under Section 302 IPC and sentenced to undergo imprisonment for life and amount of Rs. 5,000/- has been imposed with default stipulation to serve out additional imprisonment for six months.

2. The trial court has acquitted the appellant Bindey for offence punishable under Sections 323/34 IPC and co-accused persons Cheena and Smt. Ramkali alias Bhutti (Bhutto) have also been acquitted for offence punishable under Section 302/34 and 323/34 IPC. The State Government of U.P. has not preferred any appeal against acquittal of the appellant Bindey and co-accused persons Cheena and Smt. Bhutti (Bhutto) for the aforesaid offences.

3. As per prosecution version, the complainant Patte son of Niranjan submitted a written report (Ex. Ka-1) on 30.6.2000 at Police Station Kotwali Maholil, District Sitapur. On the basis of written report submitted by the complainant check FIR (Ex. Ka-4) was registered on 30.6.2000 at 16.00 hours and crime number 198 of 2000 for offence punishable under Sections 307, 324 and 504 IPC was registered at Kotwali Maholi, District Sitapur. The G.D. of registration of crime (Ex. Ka-5) was also prepared.

4. The complainant has narrated in written report that he is the resident of Village Bhatpurwa within limits of Police Station Maholi, Sitapur. On 29.6.2000, there was an altercation between the complainant and Cheena regarding tying of bullocks. The appellant Bindey son of Laltu wielded with country-made pistol came on 30.6.2000 at 12:00 p.m. and fired shot on his brother Lalmani. The country-made pistol was snatched by the family members of the deceased. The co-accused Cheena brought Kanta in the meanwhile and assaulted on the head of Smt. Moorha, who is wife of the complainant. Smt. Ramkali alias Bhutti (Bhutto), who is wife of Cheena was wielded with Bhali. The complainant brought his brother and wife at the police station.

5. The complainant also submitted one country-made pistol of .12 bore in which empty cartridge was stuck at the police station while he lodged the F.I.R. Constable Dinesh Kumar Shukla prepared recovery memo (Ex. Ka-2). It is mentioned in this recovery memo that there was fire pin mark on this cartridge.

6. After the death of the deceased, this crime was converted for offence punishable under Section 302, 323 and 504 IPC on 4.7.2000.

7. The Investigating Officer recorded the statement of witnesses. He inspected the place of occurrence and prepared site plan (Ex. Ka-9). The deceased in injured state was medically examined. His report dated 30.6.2000 for medical examination and injury report (Ex. Ka-6) has been proved by the concerned doctor. Likewise, the report of the medical examination and injury report of Smt. Moorha alias Nisha wife of Patte has been proved as (Ex. Ka-7) by the concerned doctor (PW-5). PW-5 Dr. Sharad Chandra has proved both these injury reports.

8. The Investigating Officer has also recorded the statement of the deceased Lalmani in injured state and PW-6 Investigating Officer has proved this statement recorded under Section 161 Cr.P.C. as Ex. Ka-8. The underwear of the deceased was sent to forensic science laboratory, Mahanagar, Lucknow for medical analysis. The Joint Director of Forensic Science Laboratory has submitted report dated 26.12.2002 and found on big parts of underwear, human blood. This report was not challenged during the course of trial on behalf of the accused persons. Therefore, it is admissible in evidence under Section 293 Cr.P.C. because Forensic Science Laboratory is laboratory of State of U.P.

9. On the death of the deceased, the Investigating Officer prepared inquest report (Ex. Ka-12). The Emergency Medical Officer informed the police personnel vide report (Ex. Ka-11). The Investigating Officer also prepared Photolash (Ex. Ka-13), sample of seal (Ex. Ka-14), Police form 13 (Ex. Ka-15), report to R.I. (Ex. Ka-16), report to the C.M.O. (Ex. Ka-17) for autopsy of the deceased. The postmortem report of the deceased (Ex. Ka-3) was prepared.

10. The Investigating Officer after conclusion of the investigation, submitted charge sheet (Ex. Ka-10) against the accused persons Cheena, Bindey, and Smt. Ramkali alias Bhutti (Bhutto).

11. The court of C.J.M. Sitapur committed this case to the court of sessions on 2.3.2001. Learned Additional Sessions Judge/Special Judge, Sitapur framed charges against the appellant Bindey on 5.8.2002 for offences punishable under Section 302 and 323 read with Section 34 IPC and co-accused persons Cheena and Smt. Ramkali alias Bhutti (Bhutto) for offence punishable under Section 302 read with Section 34 IPC. The learned trial court has also framed charges against Cheena for offence punishable under Section 323 IPC and against Smt. Ramkali alias Bhutti for offence punishable under Section 323 read with Section 34 IPC.

12. All the accused persons including the appellant pleaded not guilty and claimed to be tried.

13. Learned trial court has recorded statement of PW-1 Smt. Moorha alias Nisha, PW-2 complainant Patte, PW-3 Dr. S.S. Negi, PW-4 Constable Dinesh Kumar Shukla, PW-5 Dr. Sharad Chandra, PW-6 S.I. Parmanand Ram. These witnesses have proved the aforesaid documents relied upon by the prosecution.

14. The trial court has recorded the statement of appellant Bindey and co-accused persons Cheena and Smt. Ramkali alias Bhutti (Bhutto). All the accused persons including Bindey have stated that they have falsely been implicated in this crime.

15. They have further stated that the Investigating Officer has not conducted impartial investigation. The witnesses have adduced their evidence due to enmity. The appellant and co-accused persons have stated that they would file their written statement also, but written statement is not available on the record of the trial court. The learned defence counsel has filed written argument only.

16. Learned trial court has appreciated and analyzed the evidence of witnesses and convicted the appellant Bindey only and awarded the aforesaid punishment.

17. None is responding on behalf of the appellant.

18. Heard learned A.G.A. and perused the record of Sessions Trial No. 164 of 2000 (State Vs. Cheena and others)

19. PW-1 Smt. Moorha alias Nisha and PW-2 Patte are the witnesses of facts. They have adduced their evidence corroborating facts narrated in written report (Ex. Ka-1). They have proved this fact that all the accused persons including appellant Bindey are residents of their village. The appellant Bindey and co-accused Cheena are the real brother. Smt. Ramkali alias Bhutti (Bhutto) is wife of cousin brother in law of PW-1 Smt. Moorha alias Nisha and cousin brother of PW-2 Patte.

20. Both these witnesses have stated that on previous day in the evening i.e. prior to the date of incident, there was an altercation between PW-2 Patte and co-accused persons regarding tying of cattle/bullocks in Bangla (Chapper). PW-2 Patte and his elder brother Ghanshyam were present inside of the house. PW-1 Smt. Moorha alias Nisha was near her brother in law Lalmani, the deceased, who was lying in Bangla (Chapper) at 12:00 p.m on the date of incident after taking his lunch. The appellant Bindey wielded with country-made pistol came their and shot fire on Lalmani. The complainant Patte and Ghanshyam after hearing noise of fire came in Chhapper, which was situated outside their house and snatched country-made pistol from appellant Bindey. The appellant fled away from the place of occurrence. After sometime, co-accused Chenna and his wife Smt. Ramkali alias Bhutti (Bhutto) came at the place of occurrence. Cheena had wielded Kanta and Bhutti had wielded Bhali. The wooden part of Kanta i.e. its stick stuck on her head and she became unconscious. She regained her conscious at Police Station Maholi. PW-1 Moorha alias Nisha and PW-2 Patte have also stated that Lalmani and PW-1 Moorha alias Nisha were medically examined at District Hospital, Sitapur. The deceased Lalmani sustained injuries and succumbed to these injuries in the night at District Hospital.

21. PW-2 complainant Patte has further stated that he dictated report to Anant Ram and after listening it, he appended his thumb impression on written report (Ex. Ka-1). He had handed over country-made pistol and cartridge, which was snatched from the appellant Bindey to Constable of the police station. He prepared recovery memo on which PW-2 Patte appended his thumb impression. He has proved his written report as Ex. Ka-1 and recovery memo (Ex. Ka-2). He has also proved country-made pistol and cartridge as material Ex.-1 and Ex.-2 respectively.

22. PW-1 Moorha alias Nisha in her cross-examination has stated that her father-in-law Niranjan is alive. Laltu was his real brother, who has expired. There was a partition between Laltu and Niranjan in their lifetime itself. Both the parties are in possession of their shares. Late Laltu is father-in-law of co-accused Smt. Ramkali alias Bhutti (Bhutto). She has further stated that deceased Lalmani alias Lalu was lying on cot in Bangla (Chapper), which is situated in north side of her house. She was standing on the eastern side of the deceased. This Chhapper was open on three sides. She has clarified the topography of her house and house of co-accused persons.

23. PW-1 has specifically stated that the deceased was lying on cot after taking his meal/lunch ten minutes ago. The accused persons came there from northern side i.e. from eastern door of their house. The main door of her house is in north side. The appellant Bindey came at the place of occurrence first then Cheena and then Smt. Ramkali alias Bhutti (Bhutto) reached there. The appellant Bindey firstly abused her. She has refuted this suggestion that the accused persons had assaulted her husband Patte and the deceased and then fire shot on Lalmani. The location of cot under Bangla (Chapper) was also disclosed by her.

24. It is relevant to mention here that Investigating Officer has shown in site plan Ex. Ka-9 one door in eastern wall on north and one door in south. One Chhapper in east side adjacent to house and another Chhapper of the complainant has been shown in east side of place of occurrence marked ''A'. From place marked ''B' the appellant shot fire on the deceased, this place is in front of south door of house of the appellant and co-accused persons. PW-1 is an uneducated and rustic witness, therefore, minor contradiction about direction appeared in her cross-examination are immaterial.

25. PW-1 Moorha alias Nisha in her cross-examination has reiterated that her husband Patte and brother-in-law Ghanshyam were present inside the house and Bindey straightway fired on the deceased, while he (the deceased) was lying on cot, from a distance of 2-3 ''hath'. She has also stated that co-accused Cheena assaulted her with Banka. Lalmani alias Lalu after sustaining firearm injury fell down from cot on the ground on the eastern side. He snatched country-made pistol from Bindey in the meanwhile. This (Bangla) Chapper was laid on wall, which was 8-10 ''hath' high from the ground. She has denied this fact that the deceased Lalmani alias Lalu was murdered outside the Chapper.

26. PW-1 Moorha alias Nisha in her cross-examination dated 1.1.2003 has clarified that brothers of Bindey and co-accused Cheena were Ram Kumar and Rameshwar, who have expired. Smt. Ramkali alias Bhutti (Bhutto) is the wife of Ram Kumar. She has refuted the suggestion that Ram Kumar was murdered and his dead body was found in Gossaiganj in Lucknow. She has further stated that her statement was recorded by the Investigating Officer on third day of the incident at 12:00 p.m. She had apprised him about the place of occurrence, where the deceased Lalmani was lying on the cot.

27. In her cross-examination dated 6.10.2003 and 1.12.2003, PW-1 has stated that deceased Lalmani was lying on Joot bag, which was laid on the cot. Therefore, blood was not soaked by the cot. The blood of the deceased fell down on Joot bag. She has refuted the suggestion that Lalmani was standing in the open place, when he was allegedly shot at. She has refuted the suggestion that she was sitting on the cot of the deceased. She has also refuted the suggestion that her husband Patte raised objection and prevented her to meet Lalmani. Her husband (PW-2) assaulted her by ''danda' in this regard. The deceased resisted assault of her husband, then her husband Patte fired on him by country-made pistol, which struck at Lalmani's stomach. She has further refuted this suggestion that the accused persons were falsely implicated in this crime due to enmity after due deliberations and consultations.

28. PW-2 complainant Patte in his cross-examination has stated that he went to tie his cattle in Chapper, which was situated in eastern side of his house, where Smt. Ramkali alias Bhutti (Bhutto) slapped him. He apprised the scribe about his fact, but it was not mentioned in his written report. He cannot disclose any reason in this regard. He has denied this fact that Smt. Bhutti was widow of Ram Kumar and she is having five sons from relationship with Ram Kumar and after death of her husband, she was residing with co-accused Cheena as wife. He has further clarified that Smt. Bhutto is wife of co-accused Cheena.

29. PW-2 complainant Patte has refuted this suggestion that his younger brother Lalmani was having illicit relations with his wife and his wife Nisha was sitting on the cot of Lalmani on the date and time of incident, he objected about the conduct of his wife and assaulted his wife with stick. He has further refuted the suggestion that the deceased Lalmani resisted in this regard and intervened. He fired shot from country-made pistol, which struck Lalmani. He has also refuted this suggestion that he has changed country-made pistol, which was used by him and another country-made pistol was submitted by him at police station.

30. PW-2 Patte has specifically stated that cartridge was factory made and it was of number 1 and it was not hand filled and it was having fire pin mark. The Presiding Officer has also made observations after inspecting the empty cartridge and mentioned in statement of PW-2 that empty cartridge was half filled by pieces of wads of diameter of one and half cm. Only one piece of wad could be extracted from the cartridge with help of Poker and half cartridge was empty.

31. Since PW-2 has submitted empty cartridge M-Ex-2 at Police Station and PW-4 has mentioned in recovery memo Ex. Ka-2 that fire pin mark was present on its ''Paindi', therefore, his statement that this cartridge was not hand filled immaterial. He is an uneducated and rustic witness, therefore, his opinion given about cartridge in cross-examination does not extend any benefit to the appellant. Moreover, he has stated in his examination-in-chief that when he handed over country-made pistol at Police Station, cartridge M-Ex-2, was inside it. Hence he submitted used cartridge along with country-made pistol M-Ex.-1.

32. PW-2 Patte in his cross-examination has further stated that he and his elder brother Ghanshyam were present inside their house, his mother had gone in grove and brother Chhail Bihari had gone in Village Newada on the date of occurrence. He has reiterated in cross-examination that Lalmani was lying on cot in Chapper. The main gate of his house and Chapper were at a distance of four hath.

33. PW-2 has further stated that the direction of cot was north to south and it was laid in the mid of Chhapper. This Chapper was also situated in the same direction and placed on wall of lane at a distance of four ''hath'. On this cot, Joot bag was laid. He and his brother Ghanshyam heard noise of fire at 12:00 p.m. He saw Lalmani on the ground, when he came out from the house. Bindey (the appellant) pointed country-made pistol towards him also and fled away in southern direction. He snatched country-made pistol from appellant Bindey.

34. PW-2 complainant Patte has specifically stated that his wife, Lalmani, Ghanshyam did not snatch this country-made pistol. He has also stated in his cross-examination that when fire was shot by the appellant Bindey on Lalmani deceased, only his wife was present on the spot. He saw blood on joot bag, which was laid on the cot. The villagers also reached at the place of occurrence after hearing noise of the fire. He could not see that other co-accused persons fled away in which direction. He brought the deceased Lalmani in injured state by tractor of Kishan Pal. His mother brought tractor from Kishan Pal. He reached at hospital in the evening at 5:00 p.m.

35. PW-2 Patte has stated in his cross-examination dated 17.12.2003 that he had lodged FIR first then they went to hospital. The Investigating Officer has recorded statement of the deceased Lalmani in injured state at police station at 3:00 p.m. He was speaking at police station as well as at hospital. The deceased Lalmani was brought by tractor in the hospital and he stayed at police station for lodging the FIR and some Constable accompanied Lalmani for hospital. When Lalmani was sent for medical examination, then his report was lodged. He has refuted the suggestion that report of this crime was registered with due deliberations and consultations of the Sub Inspector.

36. PW-2 has further stated that he came at hospital at 6:00 p.m. from police station. His wife, elder brother and parents remained with Lalmani in the hospital. He has refuted this suggestion that he saw his wife with Lalmani in compromising position and he in grave and sudden provocation assaulted his wife. Lalmani intervened and tried to snatch country-made pistol from him and in the meanwhile fire was shot at Lalmani.

37. PW-2 Patte has specifically stated that the cartridge was struck in country made pistol, which was snatched by him from the appellant and it was handed over to the Sub-Inspector and other cartridge was not found. This country-made pistol was not sealed by the Sub-Inspector in his presence. The recovery memo was prepared only and his thumb impression was obtained on it. He does not know about the inquest proceedings. He has stated that he does not know, what proceedings were conducted at the police station Kotwali Mohali. He also does not know, who signed the inquest report.

38. PW-2 in his cross-examination has also stated that Cheena had wielded Kanta and Smt. Ramkali alias Bhutti (Bhutto) had wielded Bhali. He has stated that fire was shot first, then his wife was assaulted with Kanta. In his cross-examination dated 1.2.2003 and 17.12.2003, PW-2 complainant Patte has corroborated the statement of PW-1 that property had already been partitioned between him and co-accused persons. Both the parties were in possession of their shares. There was no dispute regarding partition of the property.

39. PW-2 has further specifically stated that he does not know, in which circumstances, husband of Smt. Ramkali alias Bhutti (Bhutto), Ram Kumar was murdered. He has refuted the suggestion that Ram Kumar was murdered by them (complainant side) and they threw dead body of Ram Kumar on the place within the limits of Police Station Gossaiganj, Lucknow. PW-2 has also refuted the suggestion that there was any animosity on the basis of murder of Ram Kumar between family of PW-2 Patte and family members of accused persons and the accused persons have falsely been implicated in this crime due to this reason.

40. The trial court after appreciation of the evidence of PW-1 and 2 has recorded finding that appellant Bindey shot fire on the deceased Lalmani, when PW-1 Moorha alias Nisha was standing near his cot. PW-2 complainant Patte snatched country-made pistol from the appellant Bindey with help of his family members. Therefore, co-accused persons, Cheena and Smt. Ramkali alias Bhutti (Bhutto) were not present at the point of time of first incident. Therefore, the trial court has recorded finding that the incident committed by Cheena and his wife Ramkali alias Bhutti (Bhutto) was not the part of the same transaction. They reached afterwards at the place of occurrence and allegedly assaulted PW-1 Smt. Moorha alias Nisha.

41. The trial court has also considered argument of learned defence counsel that PW-2 complainant Patte himself fired shot on his wife PW-1 Smt. Moorha alias Nisha suspecting her illicit relations with Lalmani. He assaulted his wife, when Lalmani intervened, in the meanwhile fire shot by the complainant struck on body of the deceased. He also changed the country-made pistol used by him and submitted another country-made pistol at the police station.

42. The trial court has recorded specific finding that when the appellant Bindey fired shot on Lalmani, PW-1 Moorha alias Nisha was present at the place of occurrence. PW-2 complainant Patte and his brother Ghanshyam were present inside their house and they reached at the place of occurrence hearing noise of fire shot by the appellant. The trial court has also observed that as per prosecution case, PW-1 Moorha alias Nisha and she was allegedly assaulted by co-accused Cheena with Kanta, but she sustained injury of blunt object.

43. It is pertinent to mention here that the accused persons have taken specific defence that PW-1 Smt. Moorha alias Nisha was having illicit relations with Lalmani, the deceased and PW-2 Patte saw them in compromising position at the place of occurrence on the date and time of incident of this crime. PW-2 Patte first assaulted PW-1, who is his wife. The deceased intervened and tried to prevent PW-1, and in the meanwhile, PW-2 fired shot from country-made pistol, which struck Lalmani. If these were the real facts, then accused persons could prove themselves by taking permission from the trial court under Section 315 Cr.P.C., because they might have knowledge of these facts, being Khandani and next door neighbour of PW-1 and PW-2.

44. Moreover, houses of PW-1 and PW-2 are situated in the same campus and it is divided only by a "Beda". The deceased Lalmani was lying below "Chhapper" on 30.6.2000 at 12:00 p.m., which was open from three sides and was situated on northern side of house of PW-1 and PW-2. The main door of house of accused persons was also situated in southern side, therefore, accused persons might have seen PW-1 and the deceased in compromising position. The appellant and co-accused persons have not adduced any other evidence in this regard. They are unable to prove their defence version as suggested to the witnesses PW-1 and PW-2.

45. It is relevant to mention here that if PW-1 was really having illicit relations with the deceased Lalmani, who was her unmarried brother in law and she was not having cordial relations with her husband PW-2, then to get rid of her husband, she would have certainly named PW-2 as assailant of the deceased. No person will absolve the real culprit and would falsely implicate other innocent person on the basis of alleged enmity.

46. On the other hand, learned trial court has also recorded finding of fact that the houses of both the parties are in same campus. It is divided only by "Beda" and they are Khandani. The trial court has also recorded finding that according to postmortem report, the deceased sustained firearm injuries and bullet was found from his body by the concerned doctor.

47. The trial court has also recorded this finding that when appellant Bindey fired shot on Lalmani, no other witness except PW-1 Moorha alias Nisha was present there. No independent witness was mentioned in the FIR lodged by the PW-2 Patte. All the independent witnesses reached at the place of occurrence afterwards/after sometime. Therefore production of independent witnesses was not required by the prosecution.

48. The trial court has analyzed and appreciated the evidence of PW-1 and PW-2 on the basis of facts narrated in written report Ex. Ka-1 and site plan Ex. Ka-9 prepared by the Investigating Officer and found that house of co-accused persons was situated in northern side of place of occurrence.

49. The chapper, in which, Lalmani was lying and the appellant Bindey fired shot on him, is situated near the house of the complainant and the appellant and co-accused persons. Therefore, topography of place of occurrence was not doubted by the trial court. The trial court has recorded finding that incident of firing was committed by the appellant Bindey below the Chapper as stated by PW-1 Smt. Moorha alias Nisha and PW-2 complainant Patte.

50. The trial court has considered omissions and faults committed by the Investigating Officer as pointed out by the defence counsel that he had not collected bloodstained soil, he did not saw the cot, on which Lalmani was lying during the course of incident and he had not sent the bullet recovered from the body of the deceased for its comparison with the country-made pistol and cartridge submitted by the complainant. The trial court discarded this argument put forth by learned defence counsel and held that on the basis of omissions and faults committed by the Investigating Officer prosecution cannot be adversely affected. Learned trial court has also recorded finding that PW-1 Smt. Moorha alias Nisha and PW-2 complainant Patte were present on the place of occurrence when the appellant fired shot on Lalmani and their evidence is reliable.

51. The trial court has also evaluated the circumstances in which the statement of Lalmani was recorded under Section 161 Cr.P.C. by the Investigating Officer. PW-4 Constable Dinesh Kumar Shukla has proved this fact that when the deceased was brought at police station in injured state, he was speaking. He sent him with request for his medical examination.

52. PW-6 S.I. Parmanand Ram has stated that he sent PW-1 Moorha alias Nisha for her medical examination and he retained deceased Lalmani at police station. He has proved the statement of the deceased, which was recorded by him in injured state, which is available on record as Ex. Ka-8.

53. We have perused the statement of deceased Lalmani. He has apprised the Investigating Officer that "on 29.6.2000, the complainant, his brother Patte and Khandani neighbour Cheena co-accused were having some dispute regarding tying of bullock. The appellant Bindey came on 30.6.2000 at 12:00 p.m., he had wielded Tamancha (country-made pistol) and fire shot on him. He sustained firearm injury in his abdomen/stomach and he fell down at the place of occurrence. His family members and complainant Patte snatched country-made pistol used by the appellant Bindey. It was submitted in the police station. After sometime, co-accused Cheena brought Kanta from his house and assaulted on the head of wife of his brother Patte. The stick of Kanta struck on the head of PW-1 Moorha alias Nisha. He has stated that wife of Cheena Smt. Ramkali alias Bhutti (Bhutto) had wielded Bhali. Cheena and Ramkali alias Bhutti (Bhutto) exhorted the appellant Bindey, therefore he fired on him. He was sent for medical examination by the Investigating Officer."

54. The deceased Lalmani was medically examined at 5:50 p.m. by PW- 5Dr. Sharad Chandra and Smt. Moorha alias Nisha was medically examined at 6:00 p.m. at District Hospital Sitapur by him.

55. The trial court has considered the argument of learned defence counsel that the circumstances, in which, the statement of deceased in injured state was recorded under Section 161 Cr.P.C. and circumstances in which, they were sent for their medical examination are suspicious and have not been proved by the prosecution. Therefore, the statement of the deceased recorded under Section 161 Cr.P.C. by the Investigating officer cannot come within the category of dying declaration.

56. The trial court has discarded the argument of learned ADGC and held that statement of deceased Lalmani recorded under Section 161 Cr.P.C. was proved by the Investigating Officer PW-6 was not reliable and acceptable, because the prosecution was obliged to prove specifically that the deceased was conscious and he was able to speak while the Investigating Officer recorded his statement under Section 161 Cr.P.C. The trial court has mentioned in his judgment that PW-5 Dr. Sharad Chandra has stated that he might have unconscious or semi conscious. Therefore, his dying declaration could not have been recorded.

57. PW-4 Constable Dinesh Kumar Shukla has stated in his examination-in-chief that the complainant brought PW-1 in injured state and country-made pistol at Police Station. He handed over country-made pistol at police station. He prepared recovery memo Ex. Ka-2 of this pistol and cartridge. PW-4 in his cross examination has clarified that (on date of his cross-examination i.e. 23.3.2004) the cartridge, which was produced before the trial court was different from the cartridge of number 1 factory made, which was sealed by him. PW-2 has proved that cartridge was stuck in barrel of county-made pistol handed over by him at the police station. This crime was registered in presence of PW-6, but during his cross-examination, he is unable to disclose this fact that any cartridge was stuck in barrel of country-made pistol or not?

58. The trial court has also observed regarding M-Ex.-2 during cross-examination dated 1.12.2003 of PW-2 that it was half filled by pieces of wads and it was half empty. Therefore, it may be fault of PW-4 or the concerned employee of the Police Station that M-Ex.-2 was not produced before the trial court during cross-examination dated 23.3.2004 of PW-4. This fact cannot affect prosecution version adversely.

59. PW-4 in his cross-examination has stated that the deceased in injured state was lying on trolley and he went and saw Lalmani on the trolley itself. He was speaking at this point of time, but this fact was not mentioned by him in G.D. He has specifically stated that he is not the medical expert and he could not state that the condition of the deceased was how much serious. But he has stated that the deceased sustained firearm injury in his stomach. He was lying in pool of blood. Therefore, he had not brought him from tractor trolley in police station. He prepared request for his medical examination and registered the crime and handed over the investigation to the Investigating Officer. He does not know whether the Investigating Officer recorded the statement of Lalmani.

60. PW-4 has stated in his cross-examination also that he prepared recovery memo of country-made pistol and cartridges submitted by the complainant. There was fire pin mark on brass part of cartridge i.e. ''Paindi' having number 1. He has identified the country-made pistol, which was produced before the trial court at the point of time of recording of his statement. The wooden Benta was broken, as it was at the time of its submission at police station. No other material contradiction was elicited during cross-examination of PW-4.

61. PW-6 S.I. Parmanand Ram has stated that initial investigation was started by him and he recorded statement of Lalmani alias Lalu at police station. He recorded his statement as he apprised him. He has proved it as Ex. Ka-8. He also inspected the place of occurrence and prepared site plan Ex. Ka-9. He has stated that on 4.7.2000 (correct date of death is 30.6.2000/1.7.2000 at 3:30 a.m.) injured Lalmani expired at District Hospital and then he converted the offence punishable under Section 302 IPC. The Inspector Rudra Pratap Singh took over further investigation and he recorded statement of injured Smt Moorha alias Nisha and submitted charge sheet Ex. Ka-10 against the accused persons including the appellant.

62. PW-6 in his cross-examination has only stated that Lalmani, when came at police station, he was able to speak. Lalmani did not lodge any FIR. He has refuted the suggestion that Lalmani when came at police station was not able to speak. He has accepted that no dying declaration of the deceased was recorded and he did not received any such dying declaration.

63. It may be fault of PW-6 that he did not try to know name of scribe of written report Ex. Ka-1. He has stated that the complainant submitted a country-made pistol of .12 bore at the police station. In the recovery memo this fact is not mentioned that there was any smell of gun powder from barrel of country-made pistol. He has also accepted this fact during his cross-examination that no offence under Section 25 of the Arms Act was registered against the appellant. He had not sent country-made pistol and bullet for comparison and chemical examination at Forensic Science Laboratory.

64. PW-6 has stated in his cross-examination that he has mentioned place mark ''A' in the site plan, where Lalmani was shot by the appellant, which is outside the Chappar, which was situated in eastern side of the house of complainant. The deceased Lalmani fell down after sustaining firearm injury at this place he had not found blood empty cartridge or bullet and piece of wad at this place. He has also stated that he did not mention the place, where Smt. Moorha alias Nisha sustained injuries. Although he inspected the place of occurrence on the pointing out by the complainant.

65. PW-6 has stated that this fact was not within his knowledge that deceased Lalmani and Smt. Moorha alias Nisha were having illicit relations. He has stated that Smt. Moorha alias Nisha apprised him that she and complainant Patte snatched country-made pistol from appellant Bindey. She also apprised him that Cheena assaulted her with Kanta. He had not taken in his possession bloodstained Joot bag. He has refuted the suggestion that he conducted tainted and impartial investigation only to implicate the accused persons in this case. Therefore, the trial court has rightly discarded the argument of learned ADGC that statement of deceased recorded under Section 161 Cr.P.C. came in category of dying declaration.

66. The trial court has specifically recorded the finding that although motive of the murder of Lalmani was dispute regarding tying of bullocks, which occurred in the evening of previous day of date of incident. The motive for committing the crime remained block in the mind of the accused and depends upon his thinking to commit any particular offence. There was no other reason to implicate the accused persons in this heinous crime.

67. It is a case of direct evidence. The PW-1 and PW-2 adduced their evidence regarding the facts and circumstances of this case. The accused persons had not adduced any evidence regarding animosity suggested by learned defence counsel to these witnesses. On the other hand the suggestion given by learned defence counsel to PW-2 was self contradictory, because it was suggested to PW-2 that his family members committed murder of Ram Kumar, who was brother of accused appellant Bindey and co-accused Cheena and due to this enmity, the accused persons were falsely implicated in this crime. There was no occasion for complainant side to have animosity with family of accused persons on the ground of murder of Ram Kumar. The appellant Bindey and accused persons had not adduced any evidence, in which circumstances, Ram Kumar was murdered by the complainant side. No document relating to murder of alleged Ram Kumar was brought on record of the trial court during the course of trial of this case.

68. On the other hand, PW-1 and PW-2 have proved this fact that the property of Niranjan and late Laltu were partitioned in their lifetime itself and both the parties were in possession of properties which came in their shares. Therefore, there was no dispute between the family of complainant and accused persons regarding partition of any property. Therefore, learned trial court has rightly recorded the finding that there was no reason for the complainant party to implicate the accused persons falsely on the basis of any enmity.

69. The trial court has also analysed and evaluated the evidence of PW-1 and PW-2 on the basis of medical evidence adduced by PW-3 Dr. S.S. Negi and PW-5 Dr. Sharad Chandra and recorded specific finding that injury sustained by deceased Lalmani was of such nature and its direction was such, which could be sustained by him while he was lying on the cot and the appellant Bindey might have fired in standing position. Both the doctors PW-3 and PW-5 have proved this fact that the deceased Lalmani sustained firearm injury.

70. Learned trial court has also considered argument of learned defence counsel that bullet was recovered from the body of the deceased, but country-made pistol submitted by the complainant was of .12 bore therefore, bullet cannot be used in the cartridge of .12 bore. The trial court has recorded finding that material Ex.-1 country-made pistol was not standard weapon, and hand filled cartridge of .12 bore may contain bullet. The trial court has recorded specific finding that there was no difference in oral and medical evidence. The trial court has also recorded finding that facts narrated in the written report Ex. Ka-1 had corroborated the statements of PW-1 Moorha alias Nisha and PW-2 Patte.

71. The bullet was found in abdominal cavity of the deceased by PW-3 Dr. S.S. Negi. The country-made pistol was snatched by PW-2 from the appellant and it was submitted by him along with used cartridge at police station, while he lodged FIR Ex. Ka-1 at the police station. The trial court has observed during recording of statement of PW-2 that this cartridge of .12 bore was half filled with circular wads of size of its inner side. Only one piece of wad could be extracted with poker. The half of the cartridge was empty.

72. No cross-examination was conducted by learned defence counsel, on the basis of size of firing pin of country-made pistol M-Ex-1, the empty space of the cartridge and size of bullet found in abdominal cavity of dead body of the deceased, to establish this fact that impact of firing pin could not be much enough to explode gun powder, for exit of bullet filled in empty part of it.

73. The possibility of filling projectile/bullet only instead of pellets, in hand filled cartridge cannot be ruled out. The contents and components of it may consist of projectile/bullet along with gun powder. During cross-examination size of projectile/bullet and size of firing pin has not been clarified from witness PW-2, PW-4 and PW-6 by learned defence counsel. It was also not get clarified that bullet/projectile was of cartridge of 315 bore or 32 bore or of which bore? Projectile/bullet is small part of these cartridges, which may be easily filled in 12 bore cartridge in place of pellets. The size of firing pin might have been manufactured/adjusted in country-made pistol for use of such hand filled cartridge.

74. Although the Investigating Officer has not sent country-made pistol material Ex.-1 and cartridge Material Ex.-2 for comparison of it by the ballistic expert, even then the appellant and co-accused persons could obtain expert's opinion to prove their defence version that the complainant PW-2 had changed country-made pistol used by him or bullet could not be fired from hand filled cartridge M-Ex.-2 by using it in country-made pistol M- Ex.-1 by the appellant.

The exposition of law on the point of standard firearm and country-made pistol:-

In the case of State of U.P. v. Sughar Singh, reported in (1978) 1 SCC 178 : 1978 SCC (Cri) 83 at page 188 Hon'ble Apex Court has observed as follows:-

12.Turning to the medical evidence that was furnished by Dr Chauhan (PW 10) he has described the 13 ante-mortem injuries which he noticed on the dead body of Uma Shanker during the post-mortem examination as follows:

(1) Lacerated wound 3 cms diameter × muscle on anterior aspect, right arm 15 cms below shoulder, margins inverted and blackened.

(2) Lacerated wound 1 cm., diameter × muscle just into lower part of (1) margins inverted and blackened.

(3) Lacerated wound 1½ cm., diameter × muscle 1 cm. below injury (2) margin inverted and blackened.

(4) Lacerated wound 1¼ cm. diameter × muscle 1 cm. out and below injury (1) margins inverted and blackened.

(5) Lacerated wound 2½ cm. diameter × 1 cm. × muscle, 1½ cm. below injury (4) margin inverted and blackened.

(6) Lacerated wound 1 cm. diameter × muscle 1½ cm. below and into (5) margins blackened and inverted.

(7) Lacerated wound 5 cm. × 3 cm. muscle obliquely on postero lateral aspect of right arm, 19 cms below shoulder-margins everted.

(8) Lacerated wound ½ cm. × km × muscle on posterior aspect of right arm 2½ cm. into middle of (7) margins everted.

(9) Lacerated wound 1 cm. diameter × muscle -- just above (8) margins everted.

(10) Lacerated wound 5 cms. × 4 cms. × muscle obliquely in right lumber region. 3 cms right to middle margins everted

(11) Lacerated wound 4 cms. × 2 cms. × muscle vertically 2 cms below (10) margins everted.

(12) Lacerated wound 1 cm. diameter × muscle on right buttock upper part margins everted.

(13) Lacerated wound 2½ cms × 1½ cms × peribonel cavity, horizontally 7 cms left and below umbilicus margins inverted. Loops of intestines had come out through wounds. The scalp was intact.

Besides the above injuries, the Medical Officer also noticed that there was a commented fracture on the right humerus as also a communited fracture on the hip bone under injuries 11 and 12. He also stated that three wad covers were recovered from the right arm and three metal pieces were also recovered from the hip bone. In his opinion, the cause of death was shock and haemorrhage on account of the above injuries, According to him the first six injuries were gun shot wounds on the right arm being inlet wounds; the margins were inverted and blackened. Injuries 7 to 9 were exit wounds corresponding to injuries 1 to 6. The other inlet injury was number 13. while injuries 10 to 12 were exit wounds corresponding to this injury. In cross-examination it was elicited from him that no complete pellet was recovered from injuries 1 to 13. As regards metal pieces, that were recovered from injury 13, he could not definitely say to what they related and of what metal they were. Certain possibilities in the alternative were also elicited from him in his cross-examination, for, he first stated that injuries 1 to 6 could have been caused by one fire only and from a distance of 3 ft. but he again asserted that the injuries caused to right arm were possible to have been caused by more than one fire; similarly, the inlet injury 13 that had been caused near the umbilicus could have been caused from a distance of more than six feet, and could have been caused by two shots. Now beyond giving approximate distance from which the shots were fired by Accused 1 to 3 and further stating that during the firing the deceased had turned and Dhani Ram stating that the first shot fired by Accused 1 had hit Uma Shanker in his stomach, no further or precise details as to the exact distance from where the shots had been fired or other parts of the body where the shots had landed etc. were given by either of the two material witnesses, namely, Mannu Lal (PW 1) and Dhani Ram (PW 14). Even so, the High Court has taken the view that the prosecution version as given by these two witnesses does not fit in with the injuries as noted in the post mortem report. The High Court's reasoning in this behalf runs thus:

"All the six injuries 1 to 6 are situate close to each other. Considering that the margins of all the injuries were blackened, the likelihood is that these are the result of one gunshot. No undue importance can be attached to the size of injuries 1 and 5 because the entry of the wads could cause a bigger wound. To expect two shots fired one after another or at the same time by two different persons to hit in the same area and both to be fired from a short range is difficult. On a consideration of the nature of these injuries 1 to 6 we are of opinion that they are the result of one gunshot fired from the right hand side i.e. from the west at the time the deceased was travelling from north to south. This shot was evidently fired from a distance of about one yard.

Injury 13 is the inlet wound 2½ cms in length. As this injury corresponds to injuries 10 to 12, injury 13 must be the composite injury as a result of the pellets entering the body together. It may be mentioned here that three pieces of metal were recovered from the right hip bone showing that more than three pellets had entered the body. As the edges of gunshot wounds were not blackened, it must have been fired from some distance though not from a long distance, otherwise on account of dispersal more than one gun shot wound would have been found in that region.

In case the firing took place first of all from near the Mathh Mata we would have expected injuries on the left side. This would also show that this part of the story is not correct. The nature of the injuries also strongly suggests that the assailants were on one side i.e. towards the west and the two shots had been fired one after another by the same person or by two different persons. The prosecution version is different."

If the aforesaid reasoning is carefully scrutinised it will appear clear that quite a few assumptions have been made by the High Court and the reasoning also fails to take into account the alternate possibilities that were elicited by the defence itself in the cross-examination of the Medical Officer and it is by adopting such process of reasoning that the High Court has come to the conclusion that the prosecution version does not fit in with the medical evidence. The High Court has observed "to expect two shots fired one after another or at the same time by two different persons to hit in the same area and both to be fired from a short range is difficult". In the first instance the observation is contrary to the medical evidence, for the doctor has categorically stated in his cross-examination that the right arm injuries (being injuries 1 to 6) could be caused by two shots, a possibility which was elicited during his cross-examination by defence itself. Secondly, the conclusion based on such observation to the effect that injuries 1 to 6 are the result of one gun shot is again contrary to the direct evidence of the two witnesses, for, both of them have stated that Swami Din (A-2) and Ram Gopal (A-3) emerged from the right hand side (i.e. from the west as the deceased was walking north-south) and fired two shots in quick succession one after another which must have hit the deceased Uma Shanker on his right arm. Further, we fail to appreciate how the High Court could observe to the effect that "in case the firing took place first of all from near the Mathh Mata we would have expected injuries on the left side and this would show that this part of the story is not correct". In fact, the evidence of both the witnesses has been that it was Sughar Singh Accused 1, who emerged from Matan-ki-Mathia side, i.e. eastern side and fired the first shot and according to Dhani Ram (PW 14) that shot hit the deceased in his stomach. Injury 13 is, therefore, quite consistent with the aforesaid story of the prosecution witnesses. It is also not possible to accept the High Court's view to the effect that: "the nature of the injuries also strongly suggests that the assailants were on one side i.e. towards the west and the two shots had been fired one after another by the same person or by two different persons; but the prosecution story is different". In our view, according to the prosecution version, Sughar Singh Accused 1 emerged from Matan-ki-Mathia (eastern side) and fired a shot in the stomach of the deceased and immediately thereafter Swami Din Accused 2 and Ram Gopal Accused 3 who had emerged from the western side fired a shot each, which shots must have hit the right arm of the deceased. This version of the prosecution witnesses would be clearly consistent with the injuries noted in the post-mortem report and medical evidence of Dr Chauhan. It is, therefore, impossible to accept the view of the High Court that the prosecution version does not fit in with the medical evidence on record. After all the incident of firing upon the deceased had taken place in broad daylight at about 2.30 p.m. during the course of which the three assailants had used firearms, namely, two guns and one pistol and such an incident had been witnessed by the two prosecution witnesses, namely, Mannu Lal (PW 1) and Dhani Ram (PW 14) from the close quarters and their evidence substantially tallies with the medical evidence on record especially in the light of the alternate possibilities elicited from the medical officer in his cross-examination by the defence itself. In view of such direct evidence of eyewitnesses of the firing being available on record some inconsistency relating to distance from which gun shots were fired between the evidence of medical expert and the eyewitnesses would be of no significance whatsoever (vide Karnail Singh v.State of Punjab [(1971) 3 SCC 616 : 1971 SCC (Cri) 732 : AIR 1971 SC 2119] ). However, as stated above, we are clearly of the view that the prosecution evidence pertaining to the assault by guns and pistol substantially tallies with the medical evidence available on the record.

75. Moreover, the following exposition of law propounded by Hon'ble Division Bench of this Court is relevant:-

In the case Capital Sentence No. 2126 of 1990 (Reference No. 4 of 1990) Mohd. Islam vs. State of U.P. (01.10.1992 - ALLHC) reported in 1993 All LJ 570 (DB), the Division Bench of this Court has held as under:-

25A. Sri Kamal Krishna, learned counsel for the appellant has submitted that the evidence on record shows that the firing was done from a very close range but there was no blackening or tattooing around the injuries and therefore, eye witness account was in conflict with the medical evidence and should be discarded. In this connection he referred to the statement of P.W. 1 and P.W. 2. Which showed that the distance between the appellant and Jamila Bibi was 1 1/2-2 paces. Learned counsel has brought to our notice authoritative books on Medical Jurisprudence by MODI COX and GLAXTON wherein the learned authors have opined that in case firing is done from a distance of less than 2', there will be a blackening. Learned counsel has submitted that as the hand of the assailant would have been stretched at the time of shooting, the actual distance between the barrel of pistol and Jamila Bibi could only be few inches and therefore blackening or tattooing around the injuries was an absolute must if the eye witness account was correct. Sri S. P. Singh learned Government Advocate has however, submitted that in the present case a country made pistol had been used and Ex. ka 2 (recovery memo) showed that refilled cartridges had been fired. According to learned counsel the opinion expressed in the authoritative text is with regard to standard factory made guns and cartridges and it will be too hazardous to discard the oral testimony on the basis of such opinion where a country made weapon and hand-filled cartridges have been used. He has drawn the attention of the court towards the following observations made on page 347 in 'Medical Jurisprudence by Dr. Bernard Knight' (6th Edition-1990) --

When a country made weapon is involved, the specific data are not of much help in determining the time of firing from the fire arm. In such cases when the cartridges are also country made, their composition is not known and therefore, their results will vary according to their components. The effect of charring and tattooing will also depend on the contents of the cartridge and a Ballistic Expert will not be in a position to give accurate result resulting from each cartridges unless he gets an opportunity to have test fires by similar cartridges.

26. The author has also described the result of an experimental study undertaken with a view to compare the result by a 12 bore shot gun with 12 bore country made pistols from varying distance which are as follows:--

Scorching was found up to a distance of 1 feet with the standard shot gun and up to 6 inches with the country made pistol.

Tattooing was obtained upto a distance of 2 feet with the standard 12 bore shot gun and upto 1 feet with the country made pistol.

Blackening was obtained upto a distance of 3 feet with the standard gun and 1 feet with the country made pistol.

27. The learned author has summed up his conclusion by saying that application of the data of standard shot gun to calculate the distance of firing by a country made pistol is both fallacious and misleading.

28. We are, therefore, of the opinion that in view of the country made weapon and hand-filled cartridges used by the appellant it will not be proper to proceed on the basis of data given in authorities on Medical Jurisprudence which relate to standard factory made guns and cartridges. In this view of the matter, it cannot be held that oral evidence is inconsistent with the medical evidence.

76. The trial court has also observed that the second part of the incident committed by co-accused Cheena wielding with Kanta in presence of co-accused Smt. Ramkali alias Bhutti (Bhutto) wielding with Bhali, was not possible to be committed below Chhapper. The co-accused Cheena and Bhutti had not participated in the first incident, while appellant Bindey fired shot on Lalmani. Smt. Bhutti had not assaulted Smt. Moorha alias Nisha. She was simply standing only during the course of incident at the place of occurrence.

77. Therefore, the trial court recorded the finding that charge framed against co-accused Bindey for offence punishable under Section 302 IPC was only proved on behalf of the prosecution and the offence under Section 323/34 could not be proved against him. Likewise, it has been recorded by the trial court that appellant Bindey did not participate in the second part of the incident for offence punishable under Section 323/34 IPC therefore, the charge under Section 323/34 could not be proved against him by the prosecution. Therefore, the trial court, has acquitted appellant Bindey for offence punishable under Section 323/34 IPC.

78. The trial court has found that co-accused Cheena and Smt. Bhutti were not present during first part of the incident, when the appellant Bindey fired shot on Lalmani. Therefore, since Smt. Bhutti did not participate in the second part of the incident of assault on Smt. Moorha alias Nisha and there was contradiction in the statements of witnesses regarding use of Kanta and nature of injuries sustained by PW-1 Smt. Moorha alias Nisha, hence, the trial court has acquitted co-accused Cheena and Smt. Bhutti for offence punishable under Section 302/34 and for offence punishable under Section 323 IPC. The trial court has convicted only appellant Bindey for offence punishable under Section 302 IPC.

79. The other contradiction regarding presence of Ghanshyam and his mother at the point of time of incident when appellant Bindey fired shot on Lalmani on 30.6.2000 at 12:00 p.m. were not material contradiction. The trial court has recorded specific finding that although statement of the deceased Lalmani recorded under Section 161 Cr.P.C. could not be proved in category of dying declaration, even then the evidence of PW-1 and PW-2 is wholly reliable regarding the fact that appellant Bindey fired shot on the deceased Lalmani and he succumbed to firearm injuries sustained by him.

80. PW-5 Dr. Sharad Chandra has medically examined Lalmani in injured state on 30.6.2000 at 5:50 p.m. He found firearm wound of entry of size 2.5 c.m. x 2 c.m. depth of this wound could not be proved, margins were inverted and blackening and charring were not present, but intestine was coming out from this wound. The injury was kept under observation and fresh blood was oozing. X-ray of this injury was advised. He has proved this injury report as Ex. Ka-6. PW-5 has also proved injury report Ex .ka7 of injured Smt. Moorha alias Nisha. He has stated that on 30.6.2000 at 6:00 p.m., he medically examined Smt. Nisha and found the following injuries.

(i) Lacerated wound of size 2 c.m. x 0.5 c.m. on head skin deep on mid of head, fresh blood was oozing.

(ii) Lacerated would of size 2.5 c.m. x 0.5 c.m. on head, skin deep on back side of head, 6 c.m. below injury no. 1. Fresh blood was oozing.

81. PW-3 Dr. S.S. Negi conducted autopsy of the deceased Lalmani alias Lalu on 1.7.2000 and found that rigor mortis along with staining after death, was present all over the dead body. He found the following injuries on the body of the deceased:-

(I) Firearm entry wound of size 3 c.m. x 1 c.m. x depth of abdomen on left side 11 c.m. over umbilicus. Margins were lacerated and blackened.

82. On internal examination, peritoneum, stomach and right kidney were found lacerated. The brain, both lungs, liver, spleen and both the kidney were pail. Two litres liquid and clotted blood was found in cavity of abdomen.

83. PW-3 S.S. Negi has opined that cause of death was shock and hemorrhage due to ante mortem firearm injury. He has proved postmortem report as Ex. Ka-3. He extracted a bullet from abdominal cavity of the deceased from right side of abdominal cavity. He sealed and handed over bullet to the Constable along with document received by him and clothes of the deceased. He has opined that the deceased died on 1.7.2000 at 3:30 a.m. at District Hospital Sitapur. No material contradiction was elicited during cross-examination of PW-3 and PW-5 on behalf of the appellant and co-accused persons.

84. Therefore, we have also found that the evidence of PW-1 and PW-2 eyewitnesses were corroborated by the medical evidence adduced by PW-3 Dr. S.S. Negi, who conducted autopsy of the deceased Lalmani and PW-5 Dr. Sharad Chandra, who medically examined the deceased Lalmani in injured state.

85. The trial court has also considered argument of learned defence counsel that FIR of this case was lodged with delay after due consultation and deliberations. The trial court has in this regard observed that the incident was occurred at 12:00 p.m. on the date of incident and FIR was lodged at 4:00 p.m. The place of occurrence was situated at a distance of 10 kilometers from the police station, therefore, sometime might have been consumed for arrangement of vehicle. The trial court has mentioned that PW-2 Patte has stated that statement of deceased was recorded at 3:00 p.m. whereas during cross-examination, he has stated that the deceased was straightway sent to District Hospital. These statements of PW-2 were not found material contradiction by the trial court and held that on the basis of statements of PW-2 Patte, FIR of this case could not be termed as a result of deliberations and consultations. There was no undue delay for lodging the FIR at police station and the trial court has rightly discarded argument of learned defence counsel that there was no any undue delay in lodging the FIR of this case and it was lodged after due consultation and deliberations.

86. We have also appreciated and analyzed the evidence of PW-1 Smt. Moorha alias Nisha and PW-2 Patte and we found that their presence at the place of occurrence is established, when the appellant Bindey fired shot at the deceased Lalmani.

87. The prosecution has proved that the appellant had shot fire on the deceased Lalmani in presence of PW-1 and PW-2 snatched country-made pistol from the appellant and saw the deceased in the injured state. The deceased succumbed to firearm injury sustained by him. PW-1 and PW-2 are the natural witnesses, because they are residents of the same house, in which, the deceased was residing being member of their family. Therefore, offence under Section 302 IPC has been proved beyond reasonable doubt against the appellant Bindey by the prosecution. The evidence of PW-1 and PW-2 is wholly reliable, trustworthy, credible and acceptable, which is corroborated by medical evidence adduced by doctors PW-3 and PW-5. There is no material contradiction in evidence adduced by the prosecution.

88. Learned A.G.A. has pointed out that the Senior Superintendent Central Jail Bareilly vide letter dated 21.4.2019 has informed the Court that on the basis of Government Order 564/2018/1106/22.02.2018-07G/2018 dated 01.08.2018 state policy for release of convicted detenue was framed on the eve of republic day. The appellant Bindey son of Laltu had completed his imprisonment for eighteen years, six months and fourteen days without remission and twenty two years, eleven months and twenty one days with remission, therefore he has been released on 26.1.2019 on furnishing a personal bond of Rs. 50,000/- by remitting his remaining period of imprisonment. The Deputy Secretary of Government of U.P. Jail Administration & Reforms Section-2, Lucknow has issued Government Order 2388/22.2.2018-17(555)/2018 on 25.01.2019 in this regard. The copy of G.O. dated 25.01.2019 and personal bond furnished by the appellant Bindey son of Laltu. The annexure No. 2 and 3 have been annexed with letter dated 21.4.2019.

89. On the basis of above discussions and findings recorded by the trial court, the appellant Bindey has been convicted vide impugned judgment and order dated 5.10.2005 in correct perspective and it cannot be termed as perverse or against the evidence available on record. The impugned judgment and order is liable to be upheld and it is affirmed.

90. This appeal lacks merits and is liable to be dismissed.

91. Appeal accordingly dismissed.

92. Copy of judgment be sent to the trial court and the Senior Jail Superintendent, Central Jail, Bareilly Superintendent for compliance.

93. The record of trial court be sent back.

Order Date :- 22.4.2019

Virendra