Satendra Kumar And Anr. vs State Of U.P.
2022 Latest Caselaw 13391 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

						
 

 
				                 A.F.R.
 
					Reserved On: 8.9.2022
 
				                Delivered On: 19.9.2022 
 

 

 
Court No. - 48
 

 
Case :- CRIMINAL APPEAL No. - 212 of 2014
 

 
Appellant :- Satendra Kumar And Anr.
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Mangala Prasad Rai,Indra Kumar
 
Chaturvedi,S.K. Rao,Saurabh Chaturvedi
 
Counsel for Respondent :- Govt. Advocate,Ashok Kumar
 
Pandey
 

 
Hon'ble Suneet Kumar,J.

Hon'ble Umesh Chandra Sharma,J.

(Delivered by Hon'ble Umesh Chandra Sharma J.)

1. Heard Shri I.K. Chaturvedi, learned Senior Advocate assisted by Shri Saurabh Chaturvedi, learned counsel for the appellants, Shri Ashok Kumar Pandey, learned counsel for the informant and Shri Vikas Goswami, learned A.G.A. for the the State and perused the record.

2. This appeal has been preferred against the judgment and order dated 2.1.2014, passed by Additional Sessions Judge/Special Judge S.C./S.T. (Prevention of Atrocities) Act, Meerut, whereby the learned Trial Court convicted the appellants/accused persons under Section 302/34 I.P.C. and Section 3 (2) (5) of The S.C. and S.T. (Prevention of Atrocities) Act, 1989, and awarded life imprisonment and fine of Rs. 5,000/- each under Section 302/34 I.P.C., 10 years rigorous imprisonment and fine of Rs. 30,000/- each under Section 3 (2) (5) of The S.C. and S.T. (Prevention of Atrocities) Act, 1989, and in default of payment of fine they have to undergo three months simple imprisonment each under Section 302/34 I.P.C. & Section 3 (2) (5) of The S.C. and S.T. (Prevention of Atrocities) Act, 1989, out of Rs. 30,000/- Rs. 25,000/- had to go to Smt. Sushma, widow of the deceased. Accused Subhash was acquitted under Section 25 of the Arms Act in S.T. No. 614 of 2007 (State Vs. Subhash ), Police Station- Lalkurti, District- Meerut, against which no appeal has been preferred by the State.

3. In brief the facts of the case are that on 8.3.2007, informant Narendra Bhan, moved a Tehrir before S.H.O. Lalkurti, Meerut at 11:30 A.M., that due to land dispute, Satendra Kumar and Subhash, sons of Babu Ram Sharma, with an intention to kill his brother fired upon him when he was coming to office at about 10.00 A.M. Both the miscreants were riding a motorcycle and his brother was on a scooter bearing No. UP 15 K-0927. He was admitted in Jaswant Rai Hospital; it was requested to take appropriate action.

4. On the basis of the Tehrir, a case under Section 307 I.P.C, & Section 3 (2) (5) of The S.C. and S.T. (Prevention of Atrocities) Act, 1989, bearing Case Crime No. 64 of 2007, was registered. Thereafter, the scooter of the deceased and a bullet was taken into possession from the spot. A map/site plan of the occurrence was prepared and medical report was obtained from Jaswant Rai Hospital. After death of the injured inquest report was prepared and Senior Sub Inspector (S.S.I) Umesh Chandra Yadav sent the dead body of the deceased for post-mortem and letters to Chief Medical Officer (C.M.O.) and Reserve Inspector (R.I.) Police Line, Meerut, were also sent. Photo Nash and Challan Lash were also prepared and accused were arrested and sent to Jail. After taking them on police custody remand they were taken for recovery of the crime weapon. An illegal revolver of 38 bore, an empty cartridge form its barrel and two live cartridges of the said bore were recovered on the pointing out of accused Subhash from near the broken boundary of R.V.C. Farm, kept in white polythene. Accused Subhash admitted before the police that this was the revolver from which he fired at Bijendra Bhan and thereafter hid it there. An attempt was also made to recover weapon from the accused Satendra but in vain.

5. As per the prosecution version the recovery memo was prepared and copy thereof was provided to the accused Subhash and a map of the place of recovery was also prepared and after obtaining prosecution sanction charge-sheet was prepared and filed under Section 25 of the Arms Act, along with, charge-sheet under Section 307, 302 I.P.C. and Section 3 (2) (5) of The S.C. and S.T. (Prevention of Atrocities) Act, 1989, and a report from Forensic Science Laboratory, Agra, U.P. was also obtained and the same was kept on record.

6. Cognizance was taken by the concerned Magistrate on both the charge-sheets and both the cases were committed to the Court of Sessions on 19.6.2007. On 28.9.2007 charge was framed in both the sessions trials. The file of S.T. No. 613 of 2007 (Satendra Kumar and Another Vs. State of U.P.) was made leading file. Both the sessions trial was decided together by a common judgment.

7. Following witnesses were produced to prove the prosecution version:-

P.W.-1

Dr. Joseph Jamal Jaidi, Dr. Jaswant Rai Hospital, Meerut.

P.W.-2

Narendra Bhan, brother of the deceased and informant.

P.W.-3

Ajay Bhan, alleged eye-witness, son of the informant and nephew of the deceased.

P.W.-4

Dr. Sompal Singh, Dr. who conducted post-mortem.

P.W.-5

Shradhhanand Sharma, Constable Clerk.

P.W.-6

Achhendra Kumar Bhanu, alleged eye-witness, nephew of the deceased and the informant.

P.W.-7

S.I. Umesh Chandra Singh, first I.O.

P.W.-8

S.I. Harpal Singh, I.O. of case under Section 25 of Arms Act.

P.W.-9

Mukesh Kumar Meshram, the then D.M. Meerut.

P.W.-10

Dr. Brijesh Kumar Singh, C.O., second I.O.

Documentary evidence relied upon by the prosecution:-

Ex. Ka-1

Medical Report of the deceased

Ex. Ka-2

Tehrir

Ex. Ka-3

Post-Mortem

Ex. Ka-4

F.I.R. of Case Crime No. 64 of 2007

Ex. Ka-5

Kayami Case G.D. dated 8.3.2007

Ex. Ka-6

Entry of Tehrir in G.D.

Ex. Ka-7

Chick F.I.R. of Case Crime No. 73 of 2007

Ex. Ka-8

G.D. Entry dated 15.3.2007

Ex. Ka-9

Recovery Memo of Scooter

Ex. Ka-10

Recovery Memo of Bullet

Ex. Ka-11

Site-plan of Case Crime N. 64 of 2007

Ex. Ka-12

Inquest

Ex. Ka-13

Letter to C.M.O.

Ex. Ka-14

Letter to R.I.

Ex. Ka-15

Photolash

Ex. Ka-16

Challan Lash

Ex. Ka-17

Specimen Seal

Ex. Ka-18

Arrest Memo of the accused Satendra Kumar and Subhash Chand

Ex. Ka-19

Recovery Memo of illegal revolver of .38 bore and empty and live cartridges regarding case crime no. 64 of 2007

Ex. Ka-19A

Search Memo of weapon regarding Case Crime No.64 of 2007

Ex. Ka-20

Site plan regarding Case Crime No. 73 of 2007 under Section 25 of Arms Act

Ex. Ka-20 A

Recovery Memo of illegal revolver alongwith empty and live cartridges of .38 bore regarding Case Crime No. 64 of 2007

Ex. Ka-21

Charge-sheet under Section 25 of Arms Act against accused Subhash

Ex. Ka-21A

Site plan regarding search of weapon as alleged by the accused Satendra regarding Case Crime No. 64 of 2007

Ex. Ka-22

Prosecution Sanction

Ex. Ka-22 A

Charge-sheet against accused regarding Case Crime No. 64 of 2007

Ex. Ka-23A

Report of Forensic Science Laboratory Agra, U.P.

Material Exhibits produced and proved by the prosecution:-

Material Ex. 1

Alleged recovered country made revolver

Material Ex. 2

Empty cartridge

Material Ex. 3 & 4

Live cartridges

Material Ex. 5

Clothes

Material Ex. 6

Bullet recovered from the place of occurrence

It may be noted that the bullet recovered from the dead body was neither produced, nor, proved in the Court.

8. After closure of prosecution evidence statements of accused persons were recorded under Section 313 Cr.P.C. wherein, both the accused persons denied the allegations, documentary and oral evidences produced by the prosecution. They stated that false recovery was made by the I.O. According to them, witnesses have given false evidence on account of enmity and both the alleged eye witnesses, P.W.3 and P.W. 6, are real nephew of the deceased and son and nephew of informant P.W.2 Narendra Bhan. Accused Subhash stated that there is property dispute between his uncle, deceased- Bijendra Bhan, Satendra Som and Yogendra Som, who were tenants of his uncle. His uncle had sold their property to them and when they came to take possession then dispute arose, therefore, his uncle in connivance of the tenants falsely implicated both the brothers in the murder of Bijendra Bhan. When they were sent to jail, Satendra and Yogendra, again reoccupied their plot. There was no enmity between the deceased and the accused persons. All the witnesses of fact are the family members of the deceased who have falsely deposed against them due to enmity. Accused Satendra in addition to that has clarified that being brother of Subhash his uncle has falsely implicated him in connivance with Satendra and Yougendra.

9. Oral evidence from the side of accused persons:-

D.W.-1

Vinod, owner of close tea stall.

D.W.-2

Pankaj Kumar Sharma, Yoga Teacher.

D.W.-3

Mohd. Ayub, a prisoner in lockup of P.S. Nauchandi.

D.W.-4

Chandra Shekhar, property dealer.

D.W.-5

Vineet Kumar, employee of Sushila Jaswant Rai Hospital.

D.W.-6

Sanjay Khare, Scientist/Arms specialist, F.S.L. Agra.

Documentary evidence from the side of defence:-

Ex. Kha-1

Certified copy of the admission register of the deceased in Sushila Jaswant Rai Hospital.

10. Submissions:

In brief, the learned counsel for the appellants has made the following submissions :-

(a) That the conviction and sentence passed by the trial Court is against the weight of evidence. The trial Court has not considered the material facts available on record and on the basis of conjectures and surmises passed the impugned order which is against the law and facts and is liable to be set-aside.

(b) That P.W.-1, the doctor who examined the injured has categorically stated that condition of the deceased was too critical and was immediately kept on ventilator and while on the ventilator he succumbed to the injuries. Thus, there was no occasion for the deceased to communicate anything to any of the witnesses.

(c) That it is admitted by the prosecution that informant of the case Narendra Bhan (P.W.2) was not present at the time of the incident and he has admitted in his testimony that he came to know about the incident and the deceased being admitted to the hospital in an injured condition later. P.W. 2 was on duty in the court and after getting the information from another employee regarding the incident and the admission of his brother in the hospital, firstly, he moved an application before the Presiding Officer for granting leave, thereafter, he proceeded to the hospital where the injured was kept on the ventilator, thus, he is not the eye witness of the incident and no pre- death statement had been given by the deceased to the informant.

(d) That other alleged eye witnesses of the incident are Ajay Bhan (P.W.3) and Akshendra Kumar Bhan (P.W.6) who are the son and nephew of the informant, but their names were also not mentioned in the F.I.R. Further, no other evidence corroborates the fact that they were present at the time of the incident. They being the close relatives of the deceased and after lodging of the F.I.R. they were setup as eye witnesses.

(e) That it is admitted by the prosecution and established from the evidence of defence that there was property dispute (sale deed paper no. 114 Kha) and a copy of F.I.R. being case crime no. 124 of 2003, wherein charge-sheet, has been submitted against the informant and the deceased which indicates admitted enmity with appellants.

(f) That, further, it appears that deceased dealing in property was shot by some other persons in order to take revenge, the appellants have been falsely implicated in the present case due to admitted enmity. It is also evident from the prosecution case that the place of occurrence is not the actual place of occurrence as no blood was found on the spot, though deceased had received six gun shot injuries, three entry wounds and three exit wounds, meaning thereby, there should have been a pool of blood on the spot, but nothing was recovered by the I.O. in this regard no recovery memo was prepared.

(g) That it appears that the deceased was shot somewhere else and his body was thrown at the place which the prosecution claims to be the place of incident. The appellants have been convicted on the oral testimony of the alleged eye witnesses P.W.-3 and P.W.-6 who are close relatives of the deceased and the confessional statement of the accused. The testimony of the eye witnesses is false and untruthful. It is a case of no evidence. .

11. Scope of Appeal under Section 378 Cr.P.C.:

This is an appeal against the judgment and order of conviction. The duty of Appellate Court has been highlighted by the Supreme Court in several cases, some are noted herein below :

In Padam Singh vs. State of U. P. (2000) 1 SCC 621, while dealing with the duty of the Appellate Court, Supreme Court expressed as follows :

"2.... It is the duty of an appellant court to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the said evidence can be relied upon or not and even if it can be relied upon, then whether the prosecution can be said to have been proved beyond reasonable doubt on the said evidence. The credibility of a witness has to be adjudged by the appellate court in drawing inference from proved and admitted facts. It must be remembered that the appellate court, like the trial court, has to be satisfied affirmatively that the prosecution case is substantially true and the guilt of the accused has been proved beyond all reasonable doubt as the presumption of innocence with which the accused starts, continues right through until he is held guilty by the final Court of Appeal and that presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial court."

Similarly, in Rama Vs. State of Rajasthan, reported in (2002) 4 SCC 571, the Hon'ble Apex Court has also cast duty upon the appellate court in the following terms:-

"4.........It is well settled that in a criminal appeal, a duty is enjoined upon the appellate court to reappraise the evidence itself and it cannot proceed to dispose of the appeal upon appraisal of evidence by the trial court alone especially when the appeal has been already admitted and placed for final hearing. Upholding such a procedure would amount to negation of valuable right of appeal of an accused, which cannot be permitted under law."

Furthermore, in Majjal Vs. State of Haryana (2013) 6 SCC 798, a three Judge Bench of the Apex Court has ruled thus: -

"7. It was necessary for the High Court to consider whether the trial court's assessment of the evidence and its opinion that the appellant must be convicted deserve to be confirmed. This exercise is necessary because the personal liberty of an accused is curtailed because of the conviction. The High Court must state its reasons why it is accepting the evidence on record. The High Court's concurrence with the trial court's view would be acceptable only if it is supported by reasons. In such appeals it is a court of first appeal. Reasons cannot be cryptic. By this, we do not mean that the High Court is expected to write an unduly long treatise. The judgment may be short but must reflect proper application of mind to vital evidence and important submissions which go to the root of the matter."

Accordingly, this Court proceeds to consider and decide the Appeal in accordance with the principles laid down by the Supreme Court.

12. Statements of prosecution witnesses and its analysis/scrutiny :

(a) P.W.-1 Dr. Joseph Jamal Zaidi, attended the deceased in injured state at 10:40 A.M. on 8.3.2007, in Sushila Jaswant Rai Hospital, Meerut, has proved the injury report Ex. Ka-1 and stated that when he saw the injured, the injured had not fallen unconscious, but was in a drowsy state. Diastolic B.P. was not showing while systolic B.P. was 60. Pulse was very feeble and hardly palpable. This witness has found that patient sustained multiple fire-arm entry and exit wounds over lower chest and upper abdomen. Blood was arranged but the patient could not be revived. Pupils became fixed and not responding to light.

Normally name of the person/hospitalizer of the injured is written in the beginning, but in this case first four lines and last few lines of the report appear to have been written later after preparation of the injury report. The sentences are in different handwriting and ink, it is noted, further, that the deceased was brought by P.W.-2 Narendra Bhan, brother of the deceased. It also establishes that the patient was not brought by P.W.3 and P.W.6, who claim to be eye-witnesses, otherwise their names would have found place in the injury report. Even the name of the patient Bijendra Bhan has been written, above the drawn lines, in another handwriting. This witness admits that he has not written the particulars of the patient and below the injury report Left Thumb Impression (LTI) of Narendra Bhan, son of Harikishan, was also not in his handwriting.

(b) P.W.-2, Narendra Bhan- informant, Reader of the then Additonal Sessions Judge (A.D.J.) Court No. 16, in Civil Court, Meerut, has deposed that there was property dispute between him and accused persons. He proved the Tehrir (Ex. Ka-2) wherein, he has written that on 8.3.2007, at about 10:00 A.M. when his brother was coming to the Court, near Hanuman Temple, Sophipur, accused Satendra and Subhash, shot his brother Bijendra Bhan, who was on a scooter, with an intention to kill him. Accused persons were on motorcycle. After receiving information at the Court he reached Sushila Jaswant Rai Hospital, thereafter, lodged the F.I.R. Bijendra Bhan died on the same day in the hospital. He, further, deposed that the incident was seen by witnesses Ajay Bhan(P.W.3), Satendra and Achhendra Bhan (P.W.6). His brother Bijenndra Bhan had also informed him during treatment that due to property dispute accused persons caused fire-arm injuries.

(i) It is noteworthy that only Ajay Bhan (P.W.3) and Achhendra Bhan (P.W.6), who are real nephew of the deceased and son of the informant have come forward in support of prosecution, but independent witness Satendra has not been examined. According to this witness, P.W.6 does his own business, whereas, Achhendra Bhan, (P.W.6), in contradiction has stated that he was working with Marshal Security, Abu Lane, Meerut. P.W.2 does not claim to be eye-witness, but stated that deceased before death had informed him about the incident and the accused persons. This fact shall be dealt later in the light of statements of other witnesses. This witness admittedly received information of the incident at 10:40 A.M. from one Arvind Kumar Gupta, Munsarim Munsif Hawali. Thereafter, he prepared casual leave application and got it sanctioned from the presiding officer, thereafter, proceeded to the hospital. As per F.I.R, deceased was admitted in hospital at 10:40 A.M. Thus, this witness would have reached the hospital after 11:00 A.M. During cross-examination this witness has admitted and expressed ignorance about several facts, including, enmity of the deceased within the family, and other persons, other than the named accused persons.

(ii) P.W.2 has further deposed that after inquest, body of the deceased was carried by the police for post-mortem. He expressed ignorance about the vehicle on which the dead body was brought to post mortem house and also admits that no family member had accompanied the dead body to the post-mortem house. He also expressed ignorance as to who donated blood; he admits that at the time of the incident, deceased was having Mobile Phone bearing No. 9412707982, but its C.D.R. has not been obtained by the I.O. to fix the place of occurrence. It is also noteworthy that no blood stained and plain earth/soil/part of tar-coal road was taken from the spot which is essential to establish the place of occurrence. In this regard no laboratory report was obtained by the I.O. In this backdrop it is argued, from the appellants' side, that place of occurrence is somewhere else and the body was thrown at the alleged place of occurrence.

(c) P.W.-3, Ajay Bhan, claims to be eye-witness, in brief, he claims himself to be L.I.C. agent in L.I.C. branch Saket Meerut and eye-witness of the incident, deposed that at about 9:35 A.M., he on scooter and his cousin Achhendra Bhan on motorcycle were going to Meerut. When they reached on Roorki Road, his uncle, Bijenrdra Bhan, overtook them by scooter. On his uncle reaching near Sophipur Temple, Satyendra and Subhash, both real brothers, shot at Bijendra Bhan, who fell down and thereafter both the assailants fired at him with intention to kill him. This incident was seen by his cousin Achhendra Bhan and Satendra Som. He deposed that Subhash had fired 3-4 bullets at waist and side of the deceased, thereafter, the deceased parked the scooter and fell down. They parked their vehicles and transported Bijendra Bhan at Sushila Jaswant Rai Hospital. Relevant part of his statement has been recorded at paragraph no. 16 to 21.

(d) P.W.-4, Dr. Sompal Singh, conducted autopsy/post-mortem and found the following injuries on the body of the deceased:-

He found that rigor-mortis was head downwards. There was dried blood smeared over the body. There was fracture of L3 vertebrae. 11th rib of right side was under injury. Right side pleura was lacerated, right lung was lacerated, vessels were lacerated, there were clotted blood and fluid in the right side pleural cavity. Peritoneum was lacerated and in its cavity 2.5 kg clotted blood and fluid was present. In stomach only 50 ml. watery fluid was present. Small and big intestine were lacerated. Liver was also lacerated. Spleen was pale. Both kidneys and gall bladder was lacerated .

(i) Following ante mortem injuries were found on the person of the deceased:-

i. Gun shot wound (GSW) entry 1 - 1x1 c. m. X bone deep on back mid line lumber vertebral column at the level of L3. Margins inverted blackening present. Bone fracture under injury.

ii. GSW exit 2 --1 x 1 c.m. correspond injury no. 1, wound of entry on abdomen 5 c.m. below from umbilicus at 6 'O' Clock position. Margin everted.

iii. GSW 3 Entry- 1x 1 c.m. right lateral side of abdomen involving lower part of chest. 11 c.m. above. ASIS margin irregular, blackening present, 11th rib fracture under injury, no penetration wound found.

iv. GSW Entry - 1 x 1 c.m. x chest cavity deep - right lateral side chest 16 cm. above injury no. 3. 6th and 7th ribs fractured under injury. Margins inverted with blackening.

v. GSW exit- 1 x 1.5 c.m. correspond to injury no. 4 wound of entry on left lateral side of abdomen 8 cm. above left ASIS. Margin everted.

vi. GSW entry - 1 x 1 c.m. X abdominal cavity deep on right lateral side of abdomen 13 c.m. above (right ASIS).

(ii) One metallic bullet was recovered from soft tissue of left side abdomen near costal margin. Body was sent for X-ray for any foreign body. X-ray film number 1675 to 1680 dated 8.3.2007, copy of X-ray slip was also attached with post-mortem report.

(iii) In cross-examination this witness has admitted that considering the nature of the injuries there was possibility of immediate death of the deceased, though, as per the death certificate issued by Jastwant Rai Hospital, the deceased died at 1:00 P.M. He admits that he has not written the time of death. He further admits that having regard to the injuries there is possibility of death of the deceased on the spot. On being inflicted serious injuries deceased would not be in a position to speak.

(iv) In the backdrop of the evidence of P.W.-4, the deposition of P.W.2 that the deceased had informed the name of accused persons while in ICU is improbable or falsified. P.W.4 further opined that deceased must have taken meal 6 to 8 hours before receiving the fire arm injuries, as 50 ml. watery fluid was found in stomach of the deceased. Therefore, deposition of P.W.2 that deceased left the house, for the Court, after taking meal in the morning is falsified. P.W. 4 further deposed that most of the organs of the deceased had been torn/lacerated. Having regard to the nature of the injuries, moving-walking or the possibility of the deceased driving scooter is not possible. The testimony of this witness also casts doubt in the manner of attack explained by the prosecution. According to this witness the I.O. had not recorded his statement.

(e) P.W.-5, Shradhha Nand Sharma, constable/clerk, who on the basis of Tehrir prepared chick FIR and after death of the deceased added Section 302 I.P.C. and entered it in GD No. 21 at 11:30 A.M. This witness further states that GD No. 25 regarding addition of Section 302 I.P.C. was prepared by him at 2:10 PM. After alleged recovery of fire arm and bullet on the pointing out of accused Subhash a case under Section 25 of Arms Act bearing Case Crime No. 73 of 2007 was lodged at 11:45 AM on 15.3.2007. This witness has prepared chick F.I.R. Ex. Ka-7. In this regard G.D. was prepared by him at 1:30 P.M. and has proved it as Ex. Ka-8.

According to this witness he did not receive the clothes of the deceased, nor, pathological or scientific report was obtained with regard to presence of blood on the clothes of the deceased. He stated that after recovery, accused were brought to the lockup. He admits that clothes received from post-mortem house was neither sealed by the I.O., nor, sent for examination.

According to the learned counsel for the appellants forged and fictitious recovery memo was prepared on the pointing out of accused Subhash. As per the F.S.L. Report, bullets and cartridges recovered from the place of occurrence and from the body of the deceased do not match with the so called recovered country made pistol.

(f) P.W.-6- Achhendra Kumar Bhan, is the real nephew of the deceased. According to him on the date of incident he was serving in Abu Lane Marshal Security, Meerut. On 8.3.2007 he started his journey from his house at 9:45 A.M. for Meerut. According to him when he and P.W.3 Ajay Bhan, reached near Roorkee Road, his uncle overtook them by scooter. When he reached in front of Sophipur then a motorcycle driven by accused Satendra overtook them on which accused Subhash was a pillion rider. When they (accused) reached near the deceased, first Subhash shot the deceased and accused fell down. Thereafter, Satendra and Subhash both fired with an intention to kill the deceased, thereafter, ran away towards Modipuram. According to P.W.5 this incident was witnessed by him, Ajay Bhan and Satyendra Som of his village. The incident took place at 10:00 A.M. on 8.3.2007. Thereafter, it is stated that they carried their uncle in injured state to the hospital and handed him to the officials of the hospital, who carried the injured to I.C.U. After sometime his uncle (P.W.2) reached and completed the admission formalities. On the same day injured Bijendra Bhan died during treatment. P.W.5 and Ajay Bhan narrated the story of the incident to his uncle Narendra Bhan(informant).

According to P.W.5 the informant Narendra Bhan reached the hospital after admission of the injured in I.C.U. It has come in evidence that the deceased immediately was intubated and put on ventilator. The doctor did not find the injured in position to give dying declaration, therefore, no information was sent to police/Magistrate. In case of intubation and patient being put on ventilator, there was no possibility that the injured could speak or had told anything to anyone. This witness does not say that prior to death of the deceased there was any talk between the informant and the deceased.

(g) P.W.-7, Umesh Chandra Singh Yadav:- This witness has proved the alleged recovered revolver ( M Ex. 1), empty cartridge (M Ex. -2), live cartridges (M Exs. 3 and 4), clothes (M Ex. 5). Bullet alleged to be recovered from the place of occurrence was produced unsealed in the Court. It is proved (M Ex. 6). He admits that C.O. Brijesh Kumar Singh is the informant/plaintiff of the case under Section 25 Arms Act, but it was investigated by S.I. Mithun Dixit (it is against the procedure and principle of natural justice, though the accused has been acquitted on the basis of F.S.L. report for the charge of Section 25 Arms Act, finding him to have been falsely implicated and no appeal has been preferred by the State). This witness admits that since beginning. Section 3 (2) (5) of The S.C and S.T (Prevention of Atrocities) Act, 1989, was mentioned in the Chick F.I.R. But Circle Officer (C.O.) was out of station therefore on the oral direction of the Inspector he started the investigation but he did not mention this fact in G.D. Further, he deposed that after one hour when he received death memo of the injured, he added Section 302 IPC. (i) He reached the hospital and completed inquest proceeding there. He admits that he started inquest at 14:30 hours and finished at 14:45 hours but by mistake he has written A.M. He also admits that he faulted in writing 15:45 instead of 14:45 (time of closure of inquest proceeding). He admitted that he did not receive the signature of the constables by whom the dead body was sent for post-mortem. He admits that being I.O. he had not taken clothes of the deceased. He further stated that he had visited the place of occurrence with the informant, no one else accompanied them.

(ii) It is material to note that if informant is not the eye-witness, whereas, P.W.3 and P.W. 6 have seen the occurrence, but the I.O. prepared site plan in absence of both or anyone of them. Meaning thereby, till then prosecution had not decided that Ajay Bhan P.W.3 and Achhendra Bhan P.W.6 were to be produced as eye-witnesses. Further, he admits that where the incident took place is in midst of military area. There is Gol Bhatta, Military Check Post and Military Farm, where armed military guards always remain present. According to P.W.7 at the time of his visit, no guards were there so he did not record the statement of anyone. According to him priest of the temple was also not present. He admits that he visited the spot only once. He admits that he did not enquire about the scooter because according to him there was no abnormality in it as it was in running condition, so he did not send the scooter for technical examination. He found no damage to the scooter but he was unable to say whether there was blood on the scooter or not.

(iii) Further P.W.7 deposed that he found 315 bore empty cartridge on the spot but the recovered revolver relates to 32 bore from which recovered cartridge can not be operated ( as per FSL report the .38 revolver and the 315 cartridge was not sent for examination to FSL and in this regard no investigation has been done by any of the I.O.). According to him they had not operated the revolver recovered from Subhash. Further, he deposed that soiled bullet was found on the spot. He admits his mistake that he had not sent the soil for examination. He admits that no empty cartridges or bullet of 9 m.m. was recovered from the spot. But in view of Ex. Ka- 23 FSL report bullet recovered from the dead body EB1 and bullet EB2 found from the place of occurrence are 9 mm bullets.

(iv) According to P.W.7 revolver relates to 32 bore while it is a country made pistol of .38 bore. The witness admits that the bullet can not be operated from the recovered revolver. P.W.7 arrested the accused persons next day at 7:00 A.M. and produced them at 12 hours in Court. He admits that accused persons had not resisted, nor, received any injury during the course of their arrest and they had not escaped after the incident, (this proves that they had no apprehension of being named for the murder of deceased and that they would be arrested for the crime, otherwise, they would have in normal circumstances left the house and absconded). No cash was recovered from their possession. P.W.7 admits that he had not sent the revolver to the finger print expert. He further states surprisingly that the case diary dated 8.3.2007 and 9.3.2007 was not written by him but might have been written by the driver. He admits that he had not taken clothes of the deceased in his possession.

(j) P.W.-8 - S.I. Harpal Singh is the second I.O. of the case under Section 25 Arms Act, he received the investigation from S.I. Mithun Dixit. According to this witness first of all he read over the CD recorded by the first I.O., thereafter, recorded the statement of informant C.O., B.K. Singh and witnesses of recovery HCP Keshav Dutt Sharma, constable Ratan Singh and driver Ashok Singh. On the pointing of HCP K.D. Sharma, visited the place of recovery and prepared site plan and proved it (Ex. Ka-20). He also recorded the statement of S.S.I. Umesh Chandra Yadav, HC Devendra Singh, constable Shyoraj Singh and constable Bijendra Singh. On 7.5.2007 he received sanction order from the then D.M. (while as per sanction order Ex. Ka-22 and statement of P.W.9, Mukesh Kumar Meshram, the then D.M., sanction was given on 9.4.2007) and finding accused Subahsh guilty under Section 25 Arms Act submitted the charge-sheet and has proved it (Ex. Ka-21). In cross-examination he admits that he had not moved any application to receive the case property from Malkhana. It proves that from the Malkhana of P.S. Lalkurti Meerut, any case property could be easily taken out any time and could be deposited any time in any manner. According to him the sealed arm and ammunition was opened before the City Magistrate (not before District Magistrate). According to him clerk of City Magistrate has taken the case property. He admits that he has not disclosed in CD that the case property was produced before the D.M. He admits that CD paper was seen by DM and in this case the same C.O. was the informant (of the case under Section 25 Arms Act). He admits that any person is accessible to the farm where from case property was recovered. He could not say which crop was sown there. He could not remember that marks of police visit were present on spot or not. (These shortcomings show that this witness did investigation in casual manner and under the undue influence of the informant CO who approved the charge-sheet in violation of natural law as impliedly he was capable of making unwarranted interference and controlling the investigation). He could not remember the kind of truss on the case property. He admits that City Magistrate had seen the revolver by operating it. (City Magistrate can not do so, it was to be sent to the FSL only in the condition that it was found). He admits that he went to D.M. with the case property but he was not there (meaning thereby it is not established that he produced the case property before D.M. and after satisfying himself the DM had given prosecution sanction under Section 39 of the Arms Act).

(j) P.W.-9 Shri Mukesh Meshram, District Magistrate, Meerut, deposed that on 9.4.2007 he, after reading the whole case diary and after opening the truss of the case property observed the case property and after that he had granted the prosecution sanction. After sealing the case property it was returned with the case diary. He has proved the prosecution sanction as Ex. Ka-22. He has denied the suggestions given by the defence counsel that the sanction was granted without looking the case diary and the case property or it was not again sealed before him.

(k) P.W. 10- Circle Officer (C.O. )- Brijesh Kumar Singh, I.O. of the case deposed that on 10.3.2007, he was posted as C.O. Sadar Meerut. He recorded the additional statement of informant Narendra Bhan, Ajay Bhan and Achhendra Bhan the eye witnesses (meaning thereby till 10.3.2007 they were not found, nor, considered by the previous I.O. as eye witnesses, and this I.O. finding no evidence case has shown them as eye witnesses to make up for the shortfall).

(i) On 12.3.2007 he recorded the statements of Vinod and Sukhpal. He moved application on 14.3.2007 for getting police custody remand of the accused persons which was allowed and on 15.3.2007, the alleged arm and ammunition was recovered from inside the RVC Farm. No arm could be recovered from accused Satyendra. According to this witness the recovered revolver was sealed on the spot. Recovery memo was written by S.S.I. Umesh Yadav on his dictation. He with police personnel and accused had signed the recovery memo (Ex, Ka 19 A). According to him site map was prepared by him on 16.3.2007 (Ex. Ka 20A). On 16.3.2007, he prepared another map regarding failed attempt to make recovery from accused Satynedra (Ex. Ka 21A).

(ii) It is to be noted that the informant is reaching on the spot of recovery next day and the map is prepared by the S.I., whereas, it is the duty of the I.O. Harpal Singh (I.O.) visited the place of occurrence on 29.3.2007 and prepared the map regarding recovery from accused Subhash. He has copied the map prepared by his boss, C.O., B. K. Singh. This witness has earlier not deposed that two live cartridges and one empty cartridges was recovered from the place of recovery, but after opening the truss, the articles that appeared before him, he proved it. Revolver was exhibited as material Ex. 1, empty cartridge as material Ex. 2, two live cartridges as material Ex. 3 & 4 and clothes as material Ex. 5. On 12.4.2007, he copied the inquest report and post mortem in C.D. On 16.4.2007 he recorded the statement of Smt. Sushma, widow of the deceased. On 2.5.2007 he recorded the statement of the witnesses Satendra Kumar, Dev Pal Singh and Shri Kishan. On 26.5.2007 he recorded the statement of Sunil Kumar, Priya Bhan, Gajendra Bhan and Narendra Bhan. On 27.5.2007 he recorded the statements of witnesses Rajiv and Mahkar Singh. On 28.5.2007 he recorded the statement of Dr. S.P. Singh (it is denied by doctor P.W.4) and submitted the charge-sheet (Ex. Ka 22A).

(iii) The relevant points that come across from cross-examination of P.W.10 is that he does not know which officer had visited the spot. He admits that he neither visited Jaswant Rai Hospital, nor, recorded the statement of any doctor or workman of the hospital. He also did not verify the papers received from the hospital. According to him he did not pay attention on the report of Dr. Zaidi who first attended the injured and noted the injuries. According to him he acted, in accordance with the post mortem report. On 11.3.2007 he visited the place of occurrence with the informant and the witnesses but not the eye witnesses. He admits that he inspected the spot on the pointing of the informant (not on the pointing of the alleged eye witnesses) and the map was in conformity with the map prepared by S.S.I. Umesh Chandra Yadav. He did not find any evidence that day on the spot. According to him there are Army Farms on both sides of the place of occurrence; there is a temple and 18 to 19 shops, wooden shops and bus stop. He admits that military personnel always remain at the military post, but he did not record the statement of any one of them, but considered the spot and the scene of the incident on the statement of the ex I.O. and the informant. According to him, Ajay Bhan (P.W.3) had stated to him that Subhash had fired at the back of the deceased and deceased had fallen down on the spot. Satendra of his village was there. Similar statement was given by Achhendra Bhan (P.W.6) to him. He admits that C.D. was not written by him but was written by Head Constable. He further states that neither first I.O., nor, did he find blood on the spot. He recorded additional statements of both the eye witnesses on 26.5.2007. He did not search for the three wheeler whereon the deceased was taken to hospital. He did not verify that whether the witnesses actually do the job which they claim are doing or not.

(iv) Whereas, according to Achhendra Bhan he works in Marhsal Security Abu Lane Meerut and Ajay Bhan does L.I.C. work in Saket. As per P.W.2, informant, Narendra Bhan, P.W.6 Achchendra Bhan does bottle related work in Kankar Khera. Therefore, there was no occasion for Achhendra Bhan to come to Meerut and remain present on the spot at the time of occurrence. In these circumstances it was necessary for the I.O. to verify the place of work and job of the witness Achhendra Bhan. It appears that only for the purpose of being eye witness, this witness stated to be working with Marshal Security Abu Lane, Meerut, which has not been verified by the I.O. In this situation even P.W.6 can not be said to be chance witness, far from being eye witness. P.W.10 admits that there are different routes to reach Abu Lane and Kankar Khera from village Dorli Roshanpur. This evidence also undermines the presence of P.W.6 at the scene.

(v) P.W.10 admits that the case property was sent very late for FSL report on 27.5.2007. He also admits that case property was returned by FSL Agra, for proper stamping by City Magistrate and Doctor. (It shows casual approach on the part of the I.O. ) He admits that the place of first fire arm shot has not been shown in the map. He did not enquire about the enmity between the witness Satendra Som (not examined) and the accused persons. He could not explain the reason of delayed recording of statement of Satendra Som on 2.5.2007.

(vi) According to this witness accused persons had confessed the commission of crime on the day of their arrest but was unable to explain as to why recovery was not made by the first I.O. He admits that no motorcycle alleged to have been employed in commission of the crime was ever traced. According to this witness, witnesses had not informed that in Panchayat, deceased and witnesses Ajay Bhan and Acchendra Bhan had fired at Vinod Kumar a villager. He states that he can not say anything about dying declaration, thus, the alleged dying declaration by the deceased to P.W.2 is not being supported by the I.O. Further, he deposed that only previous I.O. can say in this regard. First I.O. has also not deposed that any dying declaration was made by the deceased. This witness could not tell about the way/path of visiting the place of recovery. He admits that he can not tell how the interior of the Farm looks from the street. He does not remember the length of the wall. He could not tell the extent of the wall and whether the level of road and place of recovery was even or not. He could not say about the crop sown in the Farm. He could not say about the enmity between the deceased and the other persons, though, he admits that the deceased had enmity regarding land with other persons also. He admits that he has not seen the clothes of the deceased. According to him witnesses had not informed him that the son-in-law had attacked the deceased twice earlier. (It shows that this officer has done the investigation in very casual manner, the clothes of the deceased were not sent for examination by the first I.O., it was his bounden duty to send the same for FSL report, wherein, the holes could establish characteristic of fire arm injury or the clothes would have been found scorched. This could also have established the distance wherefrom the deceased was shot.)

13. Truthfulness of the contents of the F.I.R. :

(a) P.W.-2 Narendra Bhan, brother of the deceased, a Civil Court employee, lodged F.I.R. at 11:30 A.M. on 8.3.2007, alleging that due to property dispute his younger brother Bijendra Bhan was shot by the accused persons, residents of the same village Roshanpur Daurali Meerut, near Sofipur Mandir, at about 10:00 A.M. while his brother was coming to the office on his scooter. The accused persons were riding a motorcycle. His brother was admitted in Jaswant Rai Hospital.

(b) The chick F.I.R. (Ex. Ka-1) was prepared at about 11:30 A.M. and it was entered into G.D. at serial no. 21. In the F.I.R. informant has not mentioned the name(s) of the witnesses, nor, he has claimed himself to be an eye witness. The alleged eye witnesses P.W.3, Ajay Bhan, son of the informant and P.W.-6, Achhendra Kumar Bhan, nephew of the informant and the deceased are also not mentioned as eye witnesses of the incident. Though as per the informant P.W.3 and P.W.6 informed him of the incident at the hospital. The motive set up was land dispute. As per the F.I.R. there is no eyewitness of the incident.

(c) From the perusal of the deposition of informant, P.W.-2, Narendra Bhan, it is established fact that P.W.-2 was not present on the spot and was not accompanying the deceased at the time of incident. According to P.W.-2 on 8.3.2007, he proceeded for his office (Civil Court) from his house at 9:30 A.M. and reached the office at 9:45 A.M., he received information of the incident at 10:40 A.M. from one Arvind Kumar Gupta, when he was in the court. From his evidence it is evident that the alleged eyewitness P.W.-3 and P.W.6 who are his son and nephew had not informed him of the incident until then, nor, were they present in the hospital. As per the medical papers injured was not brought by them. After receiving information of the incident P.W.2 moved an application for casual leave before the presiding officer and informed him about the incident. The application was accepted, thereafter, he reached Jaswant Rai Hospital. He admits that he alone went to the hospital which is about 700 to 800 meters from the Civil Court. According to him at the time of incident deceased Bijendra Bhan was posted as suit clerk in the vacant court of Sixth Additional Civil Judge. P.W.2 informed the Senior Administrative Officer of the Civil Court. He has also admitted that deceased was ex-secretary of Civil Court Employees Association, Meerut Branch. According to him in Jaswant Rai Hospital several persons, viz. Girish Chandra Tyagi, Omveer Sharma, Jitendra etc. had reached. Some advocates had also reached but he could not tell their names. He admits that he did not ask Arvind Kumar as to who had given the information to him.

(d) From the aforesaid evidence of the informant it is obvious that even alleged eyewitnesses P.W.3 and P.W.6 had not reached the hospital, neither, with the informant, nor, later on with other persons who reached the hospital after hearing about the incident. This witness has said that when he reached the hospital he found his brother intubated and was on ventilator in I.C.U., he further states, he asked the injured about the assailants and the deceased replied. He further deposed that when he saw the dead body and at the time the dead body was sealed it was in an underwear.

14. On the basis of the evidence of the informant, it is established that the informant had not met the deceased after the incident, but he could reach the hospital when the injured had been intubated and was on ventilator. It is also noteworthy that no dying declaration was recorded, either by any private person, by the police, doctor or by the Magistrate. Doctor does not depose that the injured was in a position to speak or to say something, if it had been so, doctor himself would have asked the police to call the Magistrate to write the dying declaration. Considering the serious condition of the deceased it is probable that deceased did not tell anything to the informant about the assailants and the incident, or was in a position to speak. It is not the case of prosecution that deceased pointed out about the assailants by gesture or he was in position to do so.

15. This witness also admits that when he reached the hospital he found that his brother's wounds were bandaged. He further admits that when he reached I.C.U. Dr. Zaidi was attending his brother; at the moment his brother told the names of accused persons the doctor was not there. He could not say that whether the doctor heard their conversation or not. The evidence of P.W.2 appears to be unreliable and doubtful for the reason that generally relatives of the patient are not allowed to enter the I.C.U. more so, when the patient has been intubated and is on ventilator. He admits that he had not told to the doctor that he had heard the name of the assailants from the deceased. He admits that he has not mentioned the names of the eyewitnesses in the F.I.R. or, that his brother had disclosed the names of the assailants. He admits that timing is strictly followed in the Court where his brother was posted. Every employee has to report by 10:00 A.M. and leave the Court by 5:00 P.M. He further stated that his brother used to come to office after taking meals and also with tiffin/lunch. On the day of the incident the deceased had come after taking meals. But this fact is not corroborated by the evidence of P.W.4, Dr. Som Pal Singh, doctor of post-mortem who found that the deceased had taken meals six to eight hours before the death. It means in the morning he had not taken meal. As per the post mortem report there was only 50 Ml. watery fluid in his stomach.

16. P.W.3, Ajay Bhan, L.I.C. Agent, is the nephew of the deceased. According to him at about 9:45 P.M. he was going to L.I.C. Branch Saket, Meerut, by motorcycle, his cousin Achhendra Bhanu was going by scooter ahead of him. When he reached Roorkee Road, his uncle-deceased Bijendra Bhan who was driving scooter overtook them. They also started following the scooter, when he reached Sofipur Temple, one motorcycle driven by Satendra overtook them. Subhash, younger brother of Satendra was pillion rider on the motorcycle. They shot at the deceased who fell down after being hit by the bullet. Thereafter, both the assailants fired at the deceased with an intention to kill him. This incident was also seen by his cousin Achhendra Bhanu and Satendra Som.

17. It is noteworthy that Satendra Som, an independent witness, has not been examined by the prosecution. In cross-examination this witness has deposed that the deceased overtook him at sewage drain. He further deposed that deceased crossed him, as soon as, he reached Roorkee Road. According to P.W.3, the moment deceased crossed them pleasantries were exchanged amongst them. However, in examination in chief, pleasantry taking place amongst them is not stated. He has deposed that Subhash had fired 3 - 4 bullets on the waist of the deceased even then the deceased kept plying the scooter. Thereafter, Satendra stopped the motorcycle and fired 4-5 bullets at the deceased which hit at the waist and side of the body of the deceased. Thereafter, deceased parked the scooter and fell down. It is noteworthy that neither P.W.-3 Ajay Bhan, nor, P.W.6 Achhendra Bhan have lodged the F.I.R. and they are not mentioned as eyewitness in the F.I.R., and even in medical papers of Jaswant Rai Hospital, their names are not mentioned of having brought the deceased. In this backdrop learned counsel for the appellant argued that their presence on the spot is doubtful, otherwise, they would have informed the informant or they would have transported the deceased to Jaswant Rai Hospital and their names would certainly have been mentioned in hospital record, (Ex. Ka-1) being brought by them. But later in the admission register of Jaswant Rai Hospital, it is written that the deceased was brought and admitted by P.W.2 Narendra Bhan in different ink and in different handwriting which has been stated by D.W.5 Vineet Kumar. It reflects that the entry has been made at different point of time and by different persons.

18. As per post mortem report only 2.5 litre blood was found in abdomen cavity, taking that half litre blood present in other parts of the body of the deceased. It follows that about two litres of blood had been thrown out of the body, which should either have been found on scooter, place of occurrence, tempo, on the clothes of P.W. 3 & P.W. 6, if actually they had carried the injured from the place of occurrence to the hospital. No blood stained clothes of P.W.3 & P.W.6 were found, nor, taken in possession by the I.O. Further, I.O. did not find blood on the scooter and no technical examination of the scooter was done. I.O. did not find blood on spot of the incident. Alleged bullet claimed to be recovered from the place of occurrence (Ex. Ka-10) did not match with the recovered weapon, as per FSL report. In the map of the place of occurrence (Ex. Ka-11), motorcycles of P.W.3 and P.W.6 are not shown or parked. These facts and circumstances go against the prosecution and it is doubtful whether at the alleged time of occurrence P.W.3 & P.W. 6 were present on the spot and they had seen the incident.

19. From the defence side witnesses D.W.1 to D.W. 6 have been examined who have proved that the deceased was lying on the road as unknown person and Dr. Pankaj Kumar Sharma, D.W.-1- Vinod, Chandra Shekhar, put him in a tempo and transported the injured to Jaswant Rai Hospital; P.W.3 and P.W.6 were not seen there. From the evidence of defence witnesses it is not proved that eye witnesses P.W.-3 and P.W.-6 were present on the spot and they assisted the injured in putting him on the tempo and in transporting him to the hospital. P.W.3 and P.W. 6 are close relatives of the deceased. It is probably for this reason that in medical papers of the hospital their names are not indicated of having brought the injured. P.W.2 was not informed of the incident by P.W.3 and P.W.6.; P.W.2 came to be informed of the incident by Arvind Gupta, a stranger.

20. It is admitted that P.W.2- Narendra Bhan, was not present on the spot and he is not the eyewitness. Generally spot map are prepared on the pointing out of the person who has seen the occurrence and was present on the spot. In the absence of eye witness, on the pointing out of informant, spot map is prepared. In this case, P.W.-3 and P.W.6 claim to be present on the spot, then in that event the site map would have been prepared on the pointing out of these witnesses. Had they seen the incident they would have been capable to communicate the relevant facts to the I.O. of actually what happened, the manner of the occurrence and also about the position, situation and condition of the deceased and accused. But the I.O. prepared the spot map on the pointing of the informant, who, admittedly is not the eye witness. This is not a shortcoming of the prosecution, but proves that the eye witness setup by the prosecution were not present on the spot of the incident.

21. According to P.W.3- Ajay Bhan, he and Achhendra Bhan parked their motorcycle and scooter, but it was neither noted by the I.O., nor, there is evidence that they had parked their vehicles there and later on they fetched their motorcycle and scooter from there. It is also strange that this witness had accepted that he had not informed the informant that his uncle/deceased Bijendra Bhan had been attacked by the accused persons. He admits that someone else had informed his father/informant about the incident. It is also noteworthy that according to this witness he, his cousin Achhendra Bhan and Satendra Som transported the deceased in three wheeler, but there was no blood on their body. From the injury report and post-mortem report it transpires that ribs, arteries, stomach, lungs and kidney were torn. P.W.-4, doctor, found that the cause of death was shock and hemorrhage due to sustained anti-mortem injuries. In such a condition it can't be said that blood would not have fallen on the actual place of occurrence, scooter, clothes of the persons carrying the injured and on the three wheeler. In absence of prosecution evidence it creates doubt whether P.W. 3 and P.W. 6, who claim their presence on the spot at the time of occurrence and of transporting the deceased were present. This witness admits that he went to arrange blood after half an hour. This aspect also establishes that he was not in the hospital when the deceased was brought there. Considering the critical condition and loss of blood the doctor would have directed the attendants at once to arrange blood. As per doctor (P.W.1) and injury report (Ex. Ka-1) blood was arranged and transfused to the injured then and there. Upon scrutiny of the evidence it can be fairly concluded that this witness could have reached only after half an hour from the time of admission of the deceased in the hospital after hearing the news of the incident from someone. Therefore, he has deposed in such a manner.

22. According to this witness his uncle was moaning in pain but again he says that no conversation took place between them. Meaning thereby, the deceased was in critical condition and in such a condition he was unable to communicate with the witness. If it was so and this witness was along with the injured then the injured would have informed about the incident and assailants and he would not wait for the informant, who admittedly came after 45 minutes from the time of the incident. Since then the injured had been intubated and was shifted on ventilator, in such a condition the injured would not be able to speak.

23. P.W.-6, Achhendra Kumar Bhanu, nephew of the deceased, has also claimed himself to be eyewitness. According to him at the time of occurrence he was working with Marshal Security, Abu Lane, Meerut. Further, he deposed that he left the house for his office at 9:45 A.M. by scooter. Similar story has been repeated by this witness in examination in chief that firstly his uncle/deceased, thereafter, the accused persons crossed; accused Subhash fired at the deceased who fell down, thereafter, both the accused persons fired at the deceased causing fire arm injuries. According to him occurrence was seen by him, his cousin Ajay Bhan, and Satendra Som, resident of his village. He claims that they admitted the injured in Jaswant Rai Hospital, where injured was kept in I.C.U. and later his uncle/informant Narendra Bhan reached and completed the procedure of admission. According to P.W.3, Ajay Bhan, accused Subhash shot 3-4 times at the deceased which hit the waist of the deceased even then he was plying his scooter. Thereafter, accused Satendra stopping his motorcycle fired 4 times which hit waist and side of the body of the deceased. Thereafter, his uncle parked the scooter and fell down. But this witness P.W.6 deposed that accused Subhash fired at the back of the deceased due to which he fell down and thereafter both the accused persons fired at him with an intention to kill the deceased. Therefore, there is vast difference in the statements of both the alleged eyewitness so far as the manner of attack is concerned. According to this witness P.W.2 informant reached hospital after admission of the deceased in I.C.U., meaning thereby, informant P.W.2 reached hospital, after intubation and deceased was on ventilator. In view of the statement of P.W.1 & P.W.4 deceased was not in position to convey anything to the informant P.W.2. This witness further stated that he narrated the whole incident to the informant. P.W.3 does not say so but if this witness had informed about the incident to the informant claiming himself and P.W.3 Ajay Bhan to be eyewitness, but they were not shown as eyewitness in F.I.R. This relevant fact was not disclosed in the F.I.R. Therefore, it can be reasonably concluded that till then name of the witnesses was not determined by the prosecution. On afterthought, later two eye witnesses of the family and one Satendra Som, having inimical terms with the accused persons were setup as eyewitnesses to strengthen the prosecution case.

24. Whether P.W.3 and P.W.6 are the eye-witnesses :

The question that follows is as to whether P.W.3 & P.W. 6 are eye-witnesses of the incident or not. They are not named as witnesses in the F.I.R., it is also apparent from the record of the hospital that they had not admitted the deceased to the hospital. It is also apparent that they had not informed about the incident to the informant P.W.2, Narendra Bhan. It is also established that I.O. did not visit the spot and make site plan on their pointing. It is also apparent from the record that their scooter and motorcycle were not shown and found on the spot or nearby. It is also apparent from the record that their clothes was not taken into possession by the I.O., nor, presence of blood on their clothes was recorded in C.D.

25. It is also proved that at the time of incident Achhendra Bhan was working in Kankar Khera and there was no occasion for him to come to Meerut. It is also surprising and noteworthy that no mobile number of these witnesses and the deceased have been taken into possession and no C.D.R. has been obtained by the I.O. to establish, as to whether at the time of incident, they were present on the spot. It is a mere co-incidence that they claim to be eye-witness. They neither resisted, nor, tried to prevent the incident, but remained silent spectator, both being young men of the family. From the evidence of D.W.1 to D.W.5 it is established that P.W.3 and P.W. 6 were not present on the spot and the deceased was taken to hospital by private persons and the deceased was lying injured on the spot as unidentified person. In this regard statements of D.W.1 to D.W. 5 are relevant :

(a) D.W.1 Vinod Kumar, confectioner, at the place of occurrence, deposed that at about 10:00 A.M. a tourist bus stopped at his shop, some persons were taking tea and breakfast and some others were easing themselves, here and there. Dr. Pankaj and some other person ran and saw that injured Bijendra Bhan was hit by bullets. The injured was not in position to speak and was about to die. A tempo came from Modi Puram side, he requested the tempo to stop and Dr. Pankaj and Chandra Shekhar @ Bittan carried the injured to the hospital for treatment in the tempo. No gunshot was fired, the injured was thrown/lying there. Had there been any shot fired, there is Army check post, it would not have been possible that the assailant could escape from the market, church, shop and wooden shops and busy road. At least some person would have heard the noise of the gun shot.

(i) D.W.1 further stated that the scooter of the injured was lying on the spot. There was no blood on it. There was no one who else could identify the injured. Ajay, Achhendra were well known to him, they were not there. He knew the accused persons, they were not present there. He deposed that his shop is 50 steps away from the place of occurrence. There were 20-25 men already present. It was found and noticed that deceased was shot by some persons, but name of the persons was not known. There was no empty cartridge found on the scene. According to him he knew the injured who used to drink tea at his shop while going to the Court. He was a Court employee and also their leader. He denied that accused persons killed the deceased.

(b) D.W.-2- Pankaj Kumar Sharma, resident of same village, a Yoga doctor, deposed that on 8.3.2007, at about 10:00 A.M. he was going to Meerut from his village, on reaching the Hanuman Temple at Sofipur Gate, he found that some persons were putting injured Bijendra Bhan in a tempo. He also accompanied them on his Motorcycle. He did not depose that P.W.3 and P.W.6 were present on the spot or inside the tempo, nor, any question was asked in that regard by the prosecution. He went till the hospital gate, then left for his work so he had no idea whether the family members of the injured were present in the hospital or not. There is no suggestion by the prosecution that he was telling a lie.

(c) D.W.3- Mohd. Ayyub, deposed on oath that on 8.3.2007, at about 2 to 2:30 P.M., police had confined him with Salim in the lockup of P.S. Nauchandi, in connection of theft. Two boys were already in lockup. At about 4 - 5 P.M. accused Subhash and Satendra were brought and locked up, they said that they were falsely implicated in a murder case. Next day at about 3 - 4 P.M. they were sent to jail. From this evidence, defence wants to establish that the accused persons were not arrested in the manner shown in the arrest memo and C.D. They were taken into police custody without completing the proper formalities.

(d) D.W.4- Chandra Shekhar, deposed that on 8.3.2007, for some property work, he was going to Meerut from his house and on reaching the temple, he saw Bijendra Bhan, of village Dorely, lying on the side of the road. First he thought it was an accident, but on close look, found that he had suffered bullet injuries, but no blood was oozing. Some other persons had also gathered and were saying that some one has thrown the injured here, take him to the hospital. The injured was not able to speak, he was dying. At that moment no member of his family was present. A tempo came from Modipuram side, wherein, he sat with Bijendra Bhan, two passengers were already seated in the tempo, they deboarded on the way. Bijendra Bhan was taken to Sushila Jaswant Rai Hospital. Dr. Pankaj also came to the hospital behind them and left thereafter. At 10:40 A.M. the witness had taken Bijendra Bhan inside for treatment. At about 11:15 A.M. Narendra Bhan (P.W.-3) reached the hospital, thereafter, formalities (regarding admission) was completed. He thereafter, returned to his home.

(i) Relevant questions were not put to this witness. In cross-examination this witness said that he had taken Bijendra Bhan to hospital and his brother Narendra Bhan had later admitted him to the hospital. He deposed that when he had taken the deceased to the hospital, doctor had declared him dead. He had not seen the assailants. No question was asked and no suggestion was made to the witness that P.W.3 Ajay Bhan and P.W.6 Achhendra Kumar Bhan were also present on the spot and had also taken the injured to the hospital. No question was asked and no suggestion given that when did P.W.2, Narendra Bhan, reached the hospital, whether the patient was alive and had talked to each other. The relevant omissions make the evidence of examination in chief conclusive, absolute and unrebutted. It is also not asked as to whether the witness was not at the place of occurrence, otherwise, he would have probably seen the accused persons. Lack of proper cross-examination of the witness, about the facts narrated in examination in chief creates, doubt of the prosecution case and undermines it.

(e) D.W.-5, Vineet Kumar, is an employee of Sushila Jaswant Rai Hospital, who was present in the hospital on that day from 9:00 A.M. to 6:00 P.M. before whom entry was made in the relevant register at serial no. 1327 /2007, page no. 68, by his colleague Babita. He deposed that the deceased was brought by some unknown persons at about 10:40 A.M. and upon enquiry they stated that they had brought the injured on humanitarian consideration. Seeing the serious condition, doctor started the treatment at once. At about 11:15 - 11:30 A.M. brother of the injured i.e. Narendra Bhan (P.W.2) came and signed the register (That is why the writing and ink on injury report is not only different but written at an interval by different persons, which has already been discussed). He further deposed that the patient was on ventilator in I.C.U., Narendra Bhan remained outside, as no one is allowed to enter I.C.U., and the patient is unable to speak while on ventilator. This witness had come to the Court with the patient admission register. He filed and proved the relevant part (Ex. Kha-1). According to this witness, if any serious patient is brought to the hospital without attendant, the treatment is immediately started by making entry of time and after that when their family members reach, their signatures/thumb impressions are taken.

(i) The prosecution did not put relevant questions to the witness in cross-examination. No questions were asked and no suggestions given regarding the alleged conversation between the injured and P.W.2 Narendra Bhan and with regard to bringing of the patient by P.W.3 Ajay Bhan and P.W.6 Achhendra Kumar Bhan, and also about their presence in the hospital. No questions were asked or suggestions given as to whether injured was brought by P.W.3 & P.W. 6 and not by unknown persons. It makes the evidence of the witness in examination in chief absolute and conclusive, rather, diminishes and weakens the prosecution story. Instead a wrong suggestion was put to the witness asserting that P.W.2 Narendra Bhan had admitted the patient at 10:40 A.M. While it is not the case of the prosecution that Narendra Bhan had admitted the patient. He already admitted that at 10:40 A.M. he came to know about the incident from Munsarim Gupta. After sanction of a day's casual leave he proceeded to the hospital. He probably reached the hospital after 11:00 A.M. Thus, this suggestion is of no avail being irrelevant and contrary to the prosecution story which does not diminish or impeach the worthiness and truth of the witness.

26. On cumulative scrutiny of the evidences it is established that P.W.3 and P.W. 6 were not present on the spot, deceased was not admitted by them in hospital in the injured condition. The deceased had not informed anything about the assailants and the cause of injury.

In Varkey Joseph Vs. State of Kerala, 1993 Supp (3) SCC 745; Supreme Court has held that "witnesses were inimical and had motive to prejure the evidence and a chance witness at best and their presence on the spot was not spoken by P.W.4, a coffee house owner."

Similarly, in this case D.W.1, a tea stall owner, D.W.2, Dr. Pankaj and D.W.4, Chandra Shekhar, who transported the injured/deceased to the hospital had not seen these witnesses (P.W.3 and P.W.6) on the alleged place of occurrence. In such circumstances, the "testimony of chance witness who also had motive to prejure is unreliable."

27. In Munsi Prasad Vs. State of Bihar, AIR 2001 SC 3031, 3033, Supreme Court has held that principles relating to credibility and trustworthiness of a defence witness have to be the same as are applicable to prosecution witness.

28. Thus the admissibility, credibility, reliability, relevancy and acceptability of the defence witnesses is not lower to the prosecution witnesses for the reason that they were examined from the side of the defence. Proper opportunity of cross-examination was provided to the prosecution but prosecution failed to impeach in any manner the merit of the evidence of these witnesses.

29. From the discussions herein above, it is established beyond doubt that at the place of occurrence P.W.3 Ajay Bhan and P.W. 6 Achhendra Kumar Bhan were not present at the time of commission of crime. They had not seen the occurrence and they are not the eye-witness. They had not taken the deceased to the hospital and they had not even admitted the injured to the hospital. They had not reached the hospital before P.W.2 Narendra Bhan reached there. After three days, C.O. Brijesh Kumar Singh took charge of the case as I.O. he then wrongly proceeded to establish the theory of F.I.R. version, by making a false recovery, planting a country made revolver and two live and one empty cartridges of .38 bore without going through the post mortem report that the deceased was hit by 9 m.m. bullet and pistol. A 9 mm bullet was recovered from the spot X marked in the site map. Thus, it is concluded that P.W.3 Ajay Bhan and P.W. 6, Achhendra Kumar Bhan, are neither chance witnesses, nor eye-witnesses, nor are they the persons who brought and admitted Bijendra Bhan to the hospital. It is for this reason they were not shown to be eye-witnesses in the F.I.R. and in the records of the hospital. Later on when second I.O. found no evidence in the case, then after three days the I.O. set up eye-witnesses and after planting revolver and cartridges tried his best to strengthen the prosecution case which is solely based on mere suspicion. The Court is aware that not naming the witnesses in F.I.R. or even not recording their statements under Section 161 Cr.P.C. does not bar a person to be witness in Court and in absence thereof the evidence of such witnesses can not be rejected if otherwise found credible, as held in Raj Kishor Vs. State of Bihar, 2003 (47) ACC 1068 SC, Bhagwan Singh Vs. State of M.P., 2002 (44) ACC 1112 SC and in Satnam Singh Vs. State of Rajsthan, (2000) 1 SCC 662.

30. In Bhagwan Jagannath Marked Vs. State of Maharastra, (2016) 10 SCC 537, Shyamal Ghosh Vs. State of West Bengal, AIR 2012 SC 3539 Sone Lal Vs. State of M.P., AIR 2009 SC 760, Sucha Singh Vs. State of Punjab, (2003) 7 SCC 639, Supreme Court held that "though the testimony of related witnesses cannot be discarded merely because they are relative or family members of the victim but in such a case Court has to adopt a careful approach in analyzing the evidence of such witness and if the testimony of the related witness is otherwise found credible accused can be convicted."

31. Similarly, enmity of the witnesses with the accused is not a ground to reject their testimony and if on proper scrutiny the testimony of such witness is found reliable, the accused can be convicted. However, the possibility of falsely involving some persons in the crime or exaggerating the role of some of the accused by such witnesses should be kept in mind and ascertained on the facts of each case. The above principles have been laid down by the Supreme Court in Dilawar Singh Vs. State of Haryana, (2015) 1 SCC 737; Dhari Vs. State of U.P., AIR 2013 SC 308; Anil Rai Vs. State of Bihar, (2001) 7 SCC 318.

In State of Bihar Vs. Ram Padarath Singh, AIR 1998 SC 2606, the Supreme Court held that no implicit faith can be put upon the evidence of witnesses whose relations with the accused persons are inimical. But their evidence can not be rejected on the ground that their names did not figure in the F.I.R. Nor on the ground that no independent witness from the nearby place were examined by the prosecution, but their testimony is to be considered with caution.

In the facts of the present case though independent witnesses were available but they were neither contacted, nor, examined by the prosecution. Satendra Som who according to the prosecution was present on the spot has not been examined by the prosecution without assigning any reason, on the plea that it is prerogative of the prosecution either to examine any witness or not. Section 114 (g) of the Indian Evidence Act 1872, provides that the evidence which could be and is not produced would, if produced, be unfavorable to person who withholds it. In Mehraj Singh Vs. State of U.P., (1994) 5 SCC 188, it is held that failure by prosecution to produce eye-witnesses creates a presumption that the witnesses were not prepared to support a false case, such presumption casts no reflection.

32. Certainly the witnesses of fact are close family members of the deceased and the informant. They are also interested and inimical to the accused persons. There is no law that related and inimical persons can not be witness, but it has been proved beyond doubt that P.W.3 and P.W.6 though shown to be chance witnesses, but there is no evidence to show that they generally went together to their workplace, and/or, they generally pass or bypass each other on their way to Meerut. It has also been proved that they are not the eye-witnesses, they have not transported the deceased to the hospital; they had not informed the informant; they had not lodged the F.I.R. and their names are not mentioned in the F.I.R. and/or, in hospital records. P.W.6 Achhendra Kumar Bhan is also not the witness of inquest.

33. The I.O. failing to solve the riddle of the crime setup a case that all the three i.e. the deceased, P.W.3 and P.W.6, coincidentally came together on their way to Meerut. They were at inimical terms with the accused persons, therefore, the I.O. introduced two eye-witnesses of the family i.e. P.W.3 and P.W.6. Thus, the Court is of the considered opinion that P.W.3 and P.W.6 are not the actual eye-witnesses and it is not a case of direct evidence, but the accused persons have been falsely implicated on account of remote rivalry.

Learned counsel for the appellant has relied on Mehraj Singh Vs. State of U.P., 1994 SCC (5) 188, wherein the Supreme Court found that the so called eye-witnesses were not actually present at the scene. It appears that it was a blind case and none of the witnesses had actually seen the occurrence. Alleged eye-witnesses were undoubtedly deeply interested in the prosecution so they were introduced as eye-witnesses after thoughtful deliberations and consultations. It was found that since it was a blind murder, the appellants were roped in on account of misguided suspicion due to the previous enmity. On careful scrutiny and analysis of the evidence on the record, coupled with the infirmities, has created an impression with the Court that prosecution has not been able to bring home the guilt of the appellants beyond reasonable doubt. In the cited case learned trial Court had acquitted the accused persons but the High Court had convicted them. The reasons given by the High Court were set aside and the appeal was allowed and it was held that the case against both the appellants has not been proved beyond a reasonable doubt. The principles laid down in Mehraj (Supra) supports the finding reached by the Court.

34. Burden of proof always lies on the prosecution:

The concept of proof beyond the shadow of doubt is to be applied in criminal trials. Doubts would be called reasonable if they are free from zest for abstract speculation or free from an over-emotional response. Doubts must be actual and substantial as to the guilt of the accused persons arsing from the evidence from the lack of it as opposed to mere vague apprehension. A reasonable doubt is not an imaginary, trivial or a mere possible doubt, but a fair doubt based on reason and common sense. It must grow out of the evidence ( vide State of M.P. Vs. Dharkole, AIR 2005 SC 44.)

In criminal cases burden of proof lies on the prosecution to prove that the accused is guilty of the crime with which he is charged. The prosecution asserts the affirmative of the issue and, therefore, has to prove its case. The Court starts with the presumption that the accused is innocent. The innocence of the accused means nothing more than this that burden lies on the prosecution to prove the case beyond reasonable doubt, it is not the accused who has to satisfy the Court that he is innocent. If there is reasonable doubt as to whether the accused killed the deceased the prosecution has not made out the case, the accused is entitled to an acquittal. More serious the crime more strict proof is required. (Refer: Paramjeet Singh Vs. State of Uttrakhand, AIR 2011 SC 200.)

35. Motive:

In the F.I.R. the informant has setup land dispute as motive behind the commission of the crime. As per prosecution it is a case based on direct evidence of eye witnesses P.W.3 & P.W. 6, close relatives of the deceased, and the informant (P.W.2). In cases based on direct evidence motive does not have much significance, but in the cases based on circumstantial evidence motive becomes significant and of much consequence. The legal propositions was stated in Nagraj vs. State, (2015) 4 SCC 739, Wakkar Vs. State of U.P., 2011 (2) ALJ 452 SC, Nathuni Yadav Vs. State of Bihar, (1998) 9 SCC 238 etc.

36. With regard to motive informant P.W. 2 deposed in examination in chief that there was land dispute between him and the accused persons (not with the deceased). From the evidence of P.W. 2, P.W. 3 & P.W. 6 it is established that the deceased was having inimical terms with several other persons and they might have had motive to kill the deceased which are as under :

Evidence of P.W.2, Narendra Bhan:

(i) According to him his grandfather had transferred 20 Bigha land being Khasra Plot No. 547, 548 and 561 to Sant Neki Ram but they had not handed over its possession. He admits that there is stay order in favour of the defendant/appellant Ram Niwas.

(ii) Another being case no. 141/66 (Harikishan Vs. Ram Niwas etc.) instituted by his father, wherein, according to defence counsel only informant and deceased were arrayed party, therefore, rest of the brothers and their family members were annoyed. He admits that during pendency of the first appeal no. 173/1976, some other person had executed sale-deed in favour of one Vikram Singh about which there was tussle. According to him deceased had not prevented anyone from executing the sale-deed. In cross examination, contrary to the statement of examination in chief, he deposed that the land dispute was between the deceased and the accused persons. According to statement under Section 313 Cr.P.C. uncle of accused persons had sold their plots to Satendra Som, the proposed eye witness and Yogendra, but re-occupied the plot after their arrest. Thus, there was no direct enmity between the accused persons and the deceased.

(iii) He has also expressed ignorance that wife of the deceased had sold 151 square yard of Khasara No. 410/02 to Malkhan who later on sold the purchased land to Smt. Geeta Som, wife of Yogendra Som, brother of the proposed witness Satendra Som. According to the defence this transaction was done, so that Satendra Som testifies in favour of the prosecution. P.W.2 expressed ignorance that accused persons filed suit in respect of land against their uncle Rajaram and also expressed ignorance that accused Satendra had moved an application under Section 156(3) Cr.P.C. for lodging F.I.R. under Section 420, 467 I.P.C. against Raja Ram, Bijendra Bhan (deceased) and Smt. Sushma widow of the deceased.

(iv) P.W. 2 also expressed ignorance that the deceased got the deed of Ratan Pal's land executed in the name of his wife Sushma.

(v) He also expressed ignorance that the deceased had executed sale-deed on 17.3.2002, in favour of Sundar Lal etc. being power of attorney holder of Budhha Prakash Sharma.

(vi) The witness expressed ignorance that by becoming general power of attorney holder of Smt. Phullee, deceased on 3.7.2002 sold, the land in favour of his wife Sushma, wherein, Ajay Bhan, son of this witness was the marginal witness.

(vii) The witness again expressed ignorance, that deceased becoming general power of attorney holder of Nain Singh and Shanti Devi etc. had executed sale-deed in favour of Umesh.

(viii) He also expressed ignorance that deceased becoming general power of attorney holder of Raja Ram, son of Basanta, executed sale-deed on 14.5.2002, in favour of his wife Sushma or not, wherein, his nephew Vishwendra Bhan is marginal witness or not.

(ix) He also expressed ignorance that his deceased brother becoming general power of attorney holder of Budhha Prakash Sharma had executed sale-deed in favour of Deepak Kumar or not.

(x) He also expressed ignorance that deceased becoming general power of attorney holder of Bodal etc. had executed sale-deed on 25.7.2002, in favour of Sarvesh and others or not.

(xi) He also expressed ignorance that the deceased had sold the uneven and rough land (Beehad) or not.

(xii) He also expressed ignorance that the deceased and P.W.3 Ajay Bhan (son of this witness) and P.W.6 Achhendra Bhan, (nephew) had shot Vinod Kumar of their village or not. He also expressed ignorance that this matter was settled in the village (at Panchayat level) and deceased had accepted his fault or not.

(xiii) The witness admits that the deceased was sent to jail in 1992 during his service in Sher Gadhi Kand. He admits that if any government servant purchases land in his or his family member's name, permission is necessary from the concerned department. According to this witness, if ancestral property is sold and from the consideration money another property is purchased, their is no need of permission. (As per Rule 25 of the U.P. Government Servant Conduct Rule 1956, prior permission is necessary for sale and purchase of the property from any private person except that the dealer is regular and reputed but in that case also giving information after sale or purchase to the department is necessary). The witness admits that the Government servant can not engage himself in any other work during service. He expressed ignorance whether the deceased had given information of these transactions to the department or not. He denies rivalry of the deceased with several persons due to the sale and purchase of the land.

(xiv) According to P.W.2, Jitendra (nephew) was not seen in hospital and he had not talked to Jitendra, he denies that he had not beaten Jitendra and had not forced him to leave the hospital doubting him to be the culprit of murder of the deceased. But he admits that in the same night his nephew Jitendra had left the house and he did not know where he had gone. According to the witness the ashes of the deceased was submerged at Haridwar, but in the ceremony, neither Jitendra, nor, his father had participated. According to the learned counsel for the appellant that the offence was committed by some other person and was falsely imposed upon the accused persons. The witness also expressed ignorance that Jitendra had not moved an application against the deceased before the commissioner regarding land dispute. He denied that deceased ever threatened Jitendra with his pistol.

(xv) The witness (P.W.2) admits that his brother (deceased) had a fight with Raja Ram, son in law of his sister, but further deposed that it is wrong to say that on the day of the incident Rajendra was caught, and stated in front of the villager, that do whatever you want with me today, but will certainly kill Bijendra Bhan by shooting him.

(xvi) P.W.2 is not admitting that on 9.2.2005, Smt. Har Pyari, wife of Jagbhan, had moved a complaint against P.W.2 and the deceased to the Senior Superintendent of Police (S.S.P.) for threatening her with revolver, but he expressed ignorance that in the application Smt. Har Pyari had alleged that P.W.2 and the deceased were threatening her to leave the village along with the family at gun point.

37. That apart other than the accused persons, several other persons were also having motive to commit the murder of the deceased as is reflected from the statement of P.W.2. The evidence of P.W.3 is also relevant :

(i) P.W.3 is the real nephew of the deceased, he deposed that he did not render help in the work of his uncle. He expressed ignorance of being witness in the sale deed executed by Smt. Phulli on 3.7.2002, in favour of wife of the deceased Smt. Suhsma. Further, he deposed that he was not aware whether there was any dispute over the transaction of money in the said matter or not. It is wrong to say that he, along with Achhendra Bhan and the deceased had beaten Vinod Kumar, resident of the village or not, in the incident deceased fired a bullet shot and later on 26.3.2005, they had apologized in panchayat.

(ii) The witness also expressed ignorance regarding dispute between the deceased and Narendra at the dias on the occasion of Ambedakar Jayanti. This witness denied that Haripyari had moved an application to S.S.P. on 5.2.2005 charging him, his brother Priyabhan, and his father for attacking her house with an intention of beating, threatening and intimidating her with a revolver, whereas, P.W.2 had expressed ignorance. This witness expressed ignorance that Harpyari and Jitendra Kumar had also complained about the deceased alleging that he was a land mafia and he along with goons came to their house and threatened to kill them pointing revolver on their head. Jitendra had complained to Sub Divisional Magistrate (S.D.M.). He also expressed ignorance that Jitendra had complained to the Chief Justice describing the deceased as land mafia and being a criminal vide letter posted on 29.11.2005. He does not know whether Jitendra had left the village in the evening of the fateful day.

(iii) He denies that his father and the deceased had grabbed property of his uncle Gajendra Singh (an ex CISF personnel). He also denies that the deceased and his father made false complaint to the department and extended threats to Gajendra Singh and his children to leave the village, and were not handing over possession of their land for which he had filed complaint with the Commandant CISF, Aligarh.

(iv) The witness also expressed ignorance that on 31.3.2003, Rajendra, son in law of the deceased's sister, had come to his village to settle scores with the deceased, and whether any person was injured or not. He also expressed ignorance that on the complaint of the deceased, Rajendra (ex. Navy personnal) woking in BHEL Haridwar, was expelled from service or not.

(v) He admits that when the deceased was hospitalized, Rajendra had not come to see him. The witness expressed ignorance regarding enmity between the accused persons and the deceased. The witness also expressed ignorance as to whether there was any dispute between the accused persons and Yogendra Som and Satyendra Som ( both real brothers) or not.

38. Evidence of P.W.6- Achhendra Kumar Bhan, also establishes that deceased was having several other enemies in the family, with relatives and outside the family. Deceased was one of the six brothers, all were living separately with their small coparcenary. In this regard statement of the witness is relevant :

(i) The witness expressed ignorance whether Jitendra had come to the hospital or not. He also expressed ignorance that any Mar-peet took place there or not. According to him, he was present in the hospital, therefore, should have known as to what happened with Jitendra there. He admits that family of Jitendra had left the village same day (it is surprising that his uncle was murdered on the same day, post-mortem and funeral was pending and when he visits hospital then rest of the family members knowing him to be responsible for murder beat him and oust him and he along with the family leaves the village same day). P.W.6 did not try to enquire the reasons of their abscondance. Similarly, the witness also expressed ignorance that Rajendra, son-in-law of deceased's sister, tried to kill the deceased or not.

(ii) The witness also expressed ignorance that his aunt Harpyari had made complaint against the deceased or not. The witness admits that on the fateful day his uncle Gajendra Bhan had not visited the hospital untill he remained there. He also expressed ignorance that his uncle Gajendra Bhan had met deceased and P.W.2 Narendra Bhan or not. He admits that Jitendra had not participated in post funeral rituals in Haridwar.

39. In so far as motive is concerned the investigating officer, P.W.10, Brijesh Kumar Singh, did not care to enquire about the enmity between the deceased and other persons and only on the basis of F.I.R. version proceeded with the investigation without ascertaining whether some other persons might have committed the murder or not. The witness (P.W.10) in cross-examination deposed that he can not say with whom the deceased was having land enmity. According to him Rajendra, son-in-law of the deceased's sister, had tried to kill the deceased was not communicated to him by the witnesses.

40. In view of the discussions herein above it is crystal clear and established that deceased was not an ordinary person. Being an employee of Civil Court he also was involved in large scale property dealing. He got executed several power of attorney in his favour from several persons and on the basis thereof sold property of others to his wife and other persons, and he was also politically and socially very active person. He was also having a licensed revolver. He was having serious disputes within the family and with the relatives. He had also employed his revolver on several occasions to threaten his family members and others, as well as, Civil Court employees. He was also active in organizational activities in Civil Court. He had been ex-Secretary of Civil Court Class III employees. His family had serious suspicion on Jitendra about his murder, his nephew and cousin son-in-law, Rajendra. Therefore, it is probable that not only accused persons but several other persons had motive and mens-rea to commit the murder of the deceased.

41. Place of occurrence:

It is argued from the side of appellants that place of occurrence shown in Ex. Ka-11 is not the actual place of occurrence and the deceased was probably thrown there. In this regard following points are relevant which establish that virtually the deceased was not fired at the alleged place of occurrence:-

(i) No blood was found at the place of occurrence while there was only two and half litre blood in cavity, and the body of the deceased had been whitened. There is no proper explanation of the two litres of blood; blood stained clothes were not taken into custody and neither sent for chemical examination. It is not stated by the prosecution that blood was found on the scooter. The I.O. therefore did not take it into custody, nor, send the scooter for technical examination; neither the seat cover was sent for chemical examination.

(ii) Both the I.Os. have not asked questions or interrogated the priest of Hanuman Temple, persons at the Church and nearby shopkeepers. None came forward to say that firing took place and they heard the noise of firing. Only D.W.-1 Vinod, having tea stall 50 feet away, was examined by the defence who said that he did not see nor hear any firing. According to him the deceased was seen laying as if thrown there. D.W. 2 and D.W. 4 also did not accept that the incident had taken at the place of occurrence.

(iii) The tempo driver was not searched by both the I.Os.

(iv) Army Check Posts was near the place of incident, but killing went unnoticed, firing is not possible and if such an event happens, probably the assailants would not be successful in escaping having regard to the presence of army personnel at the Check Post. Not recording statements of army personnel posted at the Posts also creates doubt upon the I.O. For the sake of argument even if it is accepted that the attack took place on the alleged place of occurrence and the assailants might have escaped after making several gun shot firing, then being an army area, army personnel would have reached the spot and taken notice of the injured and the incident. It is generally seen that when an accident or criminal act happens within Military area or nearby, Military Police comes into action and contacts the Civil Police. It is surprising that if such an incident had taken place at 10:00 A.M.,but the Military Police did not take action.

(v) It has already been discussed that no site map was prepared on the pointing of so called eye witnesses P.W. 3 and P.W. 6 if the occurrence happened before them. It is not the prosecution case that P.W.3 and P.W.6 had narrated the whole story to the informant Narendra Bhan before preparation of the map and distance from where assailants fired and where the injured has fallen down. Even they were not present when the site map was being prepared by the I.O. in presence and pointing out of P.W.2 Narendra Bhan. It transpires that an imaginary drawing was prepared by the I.O. regarding the scene of the incident and a vague and imaginary map was prepared trying to create the real scene.

(vi) Thus, it can in all probability be concluded that where the injured was found, is not the actual place of occurrence. Empty stomach of the deceased also strengthens the inference that deceased had not come from his house after taking meal, but had left home early morning without taking breakfast. It appears that the deceased was shot somewhere else, thereafter, he either reached there or would have been thrown there. No blood was found at the place of occurrence. No blood was oozing from his body when P.W.1 Dr. Zaidi attended him in hospital.

On the basis of above discussion we are of the considered opinion that the place of occurrence shown in the site map (Ex. Ka-11) is not the actual place of occurrence where the deceased was actually fired upon and where he is said to have fallen due to fire arm injury.

42. Who admitted the deceased in hospital :

From the aforesaid discussion it is established that P.W.3 and P.W.6 had neither transported the deceased to the hospital, nor, admitted him there. Their names are not available in the hospital record. Had they remained there and admitted the deceased, in normal circumstances, being close relatives, they would have completed the admission formalities and informed the informant. Their absence is reflected from the fact that employees of the hospital waited for the informant, P.W.2, to complete the admission process later on, (as per the evidence P.W. 1 and D.W.5).

43. Whether the deceased was capable of making any dying declaration :

P.W.3 and P.W.6 do not claim that the deceased made any dying declaration to them. Doctor P.W.1 does not say that deceased was able to speak or made any dying declaration. The injured was in a very critical condition, blood was arranged immediately and transfused; he was intubated at once and put on ventilator in I.C.U., but patient could not be revived. By that time P.W.2 reached the hospital, injured had been intubated and was on ventilator in I.C.U. In the circumstance neither P.W.2, P.W. 3 and P.W.6 could enter the I.C.U. According to D.W.5, Vineet Kumar, an employee of the hospital, except staff no other person is permitted to enter the I.C.U. and in that situation patient can neither speak, nor is able to make any gesture (the prosecution case that patient made the alleged dying declaration to P.W.2 is improbable). Even as per the statements of D.W.1 to D.W.5, the patient was not in a position to talk and reply. Therefore, it is probable that deceased had not made any dying declaration to P.W.2 Narendra Bhan or any other person regarding the incident.

In Arun Bhanudas Pawar Versus State of Maharashtra, MANU/SC/7056/2008, (2008) 11 SCC 232, Supreme Court declined to accept the testimony of the mother of the deceased that deceased upon regaining consciousness disclosed the name of the accused to her. The mother of the deceased categorically deposed that when she went to civil hospital she found her son in unconsciousness condition, however, later on, deceased regaining consciousness informed her the names of accused who assaulted him with knife. She further stated that doctor was present when the deceased made oral dying declaration to her. The Court declined to accept her testimony being an interested witness and her testimony was not without corroboration from independent witness, including, medical officer. The court observed as follows:

"21....It is well-settled law that the oral dying declaration made by the deceased ought to be treated with care and caution since the maker of the statement cannot be subjected to any cross-examination. In the present case, admittedly, the alleged dying declaration had not been made to any doctor or to any independent witness, but only to the mother...The prosecution has not brought on record any medical certification to prove that after operation the deceased was in a fit condition to make the declaration before his mother."

44. Recovery of fire arm of .38 bore, live and empty cartridges and bullets from the person of the deceased, from the place of occurrence, F.S.L. report and acquittal in S.T. No. 614 of 2007 (State Vs. Subhash) Under Section 3/25 Arms Act :

Earlier it has been discussed that on 14.3.2007, second I.O. B.K. Singh, C.O., got the police custody remand and on 15.3.2007, a country-made revolver, two live and one empty cartridges were alleged to have been recovered on the pointing of the accused Subhash. In this regard, recovery memo (Ex. Ka-19), search memo (Ex. Ka-19 A), site plan (Ex.Ka-20, Ex. Ka- 20A), charge-sheet under Section 25 Arms Act (Ex. Ka-21), site plan (Ex. Ka-21A), prosecution sanction (Ex. Ka-22), F.S.L. report (Ex. Ka-23 A), statement of P.W.-8, S.I. Harpal Singh I.O. and P.W.9, Mukesh Kumar Meshram, the then D. M. Meerut and statement of D.W. 6, the then expert F.S.L. Agra, has been discussed and it was found that the bullet received from the body of the deceased and from the spot are of 9 m.m. bore, whereas, the recovered revolver and live cartridges are of .38 bore and on the back of empty cartridge received from the barrel, .38 bore was not written and both the bullets were not executed from the alleged recovered revolver. According to P.W.7 S.I. Umesh Chandra Singh Yadav, first I.O., an empty hole/cartridges of 315 bore was also recovered from the place of occurrence but that empty hole/cartridge of 315 bore was concealed and neither sent for F.S.L. Examination, nor, produced before the Court. In this regard statement of expert Sanjay Khare who examined the materials at F.S.L. Agra, is relevant, therefore, the same is discussed herein below: -

D.W.-6 Sanjay Khare, fire-arm expert F.S.L. Lucknow, deposed that on 25.5.2007, constable Shyoraj Singh had brought the case property of crime no. 64/2007 and 73/2007 from Meerut to Agra F.S.L. But the same was returned with an objection that there was no stamp of the City Magistrate and no stamp of the doctor/hospital on the envelop of post-mortem. Also there was no clear seal on the bundle. After removing the objections, the case property was again deposited with the F.S.L. on 31.5.2007. Both the bullets sent for examination were of 9 m.m. Empty cartridge recovered from the barrel was country made. Bullet received from the body, in post mortem was not fired from the recovered revolver, .38 etc. was not written on the empty cartridge but it was written on the live cartridges only. Injuries No. 1, 3 & 4 were fire arm entry wound with blackening which occurs in case of firing within 6 inches. If person riding on a motorcycle, fires on a person who is on a moving scooter, such an injury would probably not occur because these injuries have been caused from a close distance. Further, he deposed that after firing the empty cartridges of 9 m.m. fall out of the pistol. No relevant questions and suggestions were put by the prosecution to this witness during the cross-examination.

Learned Trial Court after coming to the conclusion that the bullet received from the body of the deceased and from the alleged spot could not be fired from the alleged recovered revolver and there was no injury of empty cartridge's bullet caused to the deceased, acquitted the accused Subhash under Section 3/25 Arms Act. No appeal has been preferred by the State against the acquittal.

I.O. did not take notice of the hole on 315 bore cartridge. P.W. 1 and P.W.4 both the doctors do not depose that such fire arm entry wound may occur from weapon of 315 bore, in this regard no ballistic expert opinion was obtained, whereas, it is the case of prosecution that both the accused persons fired from two different weapons. The prosecution concealing the hole/cartridge of 315 bore and keeping it away from the investigation and the Court, is either due to negligence or it was done with an ulterior motive. Thus, it is probable that the alleged recovery is totally false in the light of injuries, F.S.L. report and oral evidence of the witnesses. The Trial Court rightly acquitted accused Subhash for the charge under Section 25 Arms Act.

In Sumer Singh Umed Shinh Rajput alias Sumer Shinh Vs. State of Gujrat, AIR 2008 SC 904, the accused was convicted for the offences under Section 307 I.P.C. and also under Section 25 (1) (a) of the Arms Act, 1959. Supreme Court setting aside his conviction and sentence, found that pant and vest of complainant were having one bullet hole which were incompatible with case of single shot; nature of injury suffered by complainant was also incompatible with gun shot injury. In the cited case witnesses had turned hostile. It was held that prosecution case suffers from discrepancies, therefore, conviction of the accused was set aside.

45. Defective, biased and prejudiced investigation :

It is duty of the I.O. to collect evidence and not to create/introduce evidence in favour of the prosecution and against the accused or vise-versa. But in this case I.O. Brijesh Kumar Singh, the then C.O., has not acted in the right direction and violating all the norms, implanted two persons as eye witness, planted cartridges and country-made revolver and showed it as recovered on the pointing of accused Subhash and employed in commission of crime. Thereafter, he made S.I. Mithun Dixit, followed by, S.I. Harpal Singh, his subordinates as I.Os. of the case under Section 25 Arms Act who forwarded the case-diary to their boss (Brijesh Kumar Singh, C.O.) in violation of principles of natural justice. A person can not be judge in his own cause being informant/plaintiff of the Arms Act case and without contacting or interrogating the probable persons; not taking the blood stained clothes in his possession and without obtaining any report from F.S.L. and without ascertaining the actual place of occurrence and without searching for the tempo employed in transportation of the deceased to the hospital submitted the charge-sheet.

Though in Maqbool Vs. State of Andhra Pradesh, AIR 2011 SC 184, Supreme Court has held that not sending blood stained soil and clothes for chemical examination, weapon of assault, cartridges, empty and pellets for ballistic examination is not fatal, if ocular evidence is found credible, cogent and trustworthy. Similarly, the Supreme Court has also ruled in several cases that faulty investigation can not be made the sole ground to reject the prosecution case, but it is duty of the I.O. to investigate the case honestly, sincerely, in accordance with police regulation, police manual and with devotion. In Khem Ram Vs. State of Himanchal Pradesh, (2018) 1 SCC 202 and in Leela Ram Vs. State of Haryana, (1999) 9 SCC 525; the Supreme Court has held that any irregularity or deficiency in investigation by I.O. need not necessarily lead to rejection of prosecution case when it is otherwise proved. The only requirement is use of extra caution in evaluation of evidence. A defective investigation can not be fatal to prosecution where ocular testimony is found credible and trustworthy.

But in the present case alleged eye-witnesses, their testimony and presence has been found doubtful.

In Navinchndra N. Majithia Vs. State of Meghalaya and Others, (2000) 8 SCC 323; the Supreme Court has pointed out the duties of the investigating officer. After lodging of the F.I.R investigation thereafter would commence and the investigating officer has to go step by step. The Code contemplates the following steps to be carried out during such investigation:

"(1) Proceeding to the spot; (2) ascertainment of the facts and circumstances of the case; (3) discovery and arrest of the suspected offender; (4) collection of evidence relating to the commission of the offence which may consist of (a) the examination of various persons (including the accused) and the reduction of their statements into writing, if the officer thinks fit, (b) the search of places of seizure of things considered necessary for the investigation and to be produced at the trial; and (5) formation of the opinion as to whether on the material collected there is a case to place the accused before a magistrate for trial and, if so, taking the necessary steps for the same by the filing of a charge-sheet under Sec.173.

(vide HN Rishbud vs. State of Delhi [AIR 1955 SC 196} and State of Madhya Pradesh vs. Mubarak Ali [AIR 1959 SC 707]).

All the above duties are conferred by the statute on the police and they shall be carried out as they are statutory duties. The sublime idea behind formulating such steps for conducting investigation is to enable the statutory authority to independently carry out the investigation without being influenced by any of the interested parties. Investigation must not only be fair but impartial and the conclusion reached by them should be unbiased.

A Division Bench of the Madras High Court had pointed to that object of the statutory investigation in re Muddamma Malla Reddy [1954 Crl.L.J.167] through the following observations:

The investigating police are primarily the guardians of the liberty of innocent persons. A heavy responsibility devolves on them of seeing that innocent persons are not charged on irresponsible and false implication. There is a duty cast on the investigating police to scrutinize a first complaint in which number of persons are implicated with rigorous care and to refrain from building up a case on its basis unless satisfied of its truth.

In Sirajjuddin vs. State of Madras [1970 (3) SCR 931] this Court said thus, after referring to various provisions in the Code dealing with investigation:

All the above provisions of the Code are aimed at securing a fair investigation into the facts and circumstances of the criminal case; however serious the crime and howsoever incriminating the circumstances may be against a person supposed to be guilty of a crime the Code of Criminal Procedure aims at securing a conviction if it can be had by the use of utmost fairness on the part of the officers investigating the crime before the lodging of a charge- sheet. Clearly the idea is that no one should be put to the harassment of a criminal trial unless there are good and substantial reasons for holding it.

The said observations were followed by this Court in State of Rajasthan vs. Gurcharandas Chadha [1980 (1) SCC 250]."

The principles laid down by Supreme Court and High Court have not been followed by the I.O. in this case.

46. On scrutiny and evaluation of the evidence and discussions the following points emerge:

a. That the place of occurrence is doubtful as shown in Ex. Ka-11. The absence of human blood on the spot, coupled with the falsity of the eye witness account and not supported by defence witness raises doubt.

b. That P.W.3 Ajay Bhan and P.W.6 Achhendra Kumar Bhan, are neither chance witness, nor, eye witnesses, thus, it is not a case of direct evidence. They are the creation of the IO. P.W.10, Brijesh Kumar Singh, the then C.O. Sadar, Meerut.

c. That P.W.3 and P.W.6 had neither transported, nor, admitted the deceased in Sushila Jaswant Rai Multi Specialty Hospital, Meerut. (per the evidence of D.W.5 Vineet Kumar).

d. That deceased was was not in a position, nor, had made any dying declaration either to P.W.3 or P.W.6 or doctor or any employee to the hospital or P.W.2, informant, Narendra Bhan, or defence witnesses.

e. That the the deceased had inimical relations with several persons within and outside of the family. Thus, several other persons had motive to kill the deceased. The deceased was in property dealing.

f. That I.O. Brijesh Kumar Singh, had planted the countrymade revolver, empty and live cartridges and shown the recovery from accused Subhash only to strengthen the prosecution case, but it could not match with the injuries and bullets recovered from the body of the deceased and the alleged place of occurrence.

g. That deceased was transported to the hospital by P.W.2 Dr. Pankaj and D.W4 Chandra Shekhar and the deceased was not in position to speak.

h. That the accused persons were named in F.I.R. on account of enmity, while the deceased and informant had enmity with several other persons also.

i. That I.O. Brijesh Kumar conducted a sketchy, unlawful, faulty and unfair investigation, falsely implicating the accused persons, especially, accused Subhash in the case under Section 25 Arms Act and did not attempt to extract the grain from the chaff; treating the F.I.R. as gospel truth, submitted the charge-sheet.

j. That P.W.3 and P.W.6 are not the eye witnesses, it is not a case of direct evidence. The chain of events based on circumstantial evidence does not link the accused with commission of the crime. Except alleged motive which, was also available to others. There is neither last seen, nor any recovery, or any extra judicial confession. The necessary elements of a case based on circumstantial evidence is not available in the present case. Recovery of 9 mm Bullet from the spot of the incident and body of the deceased is one of the circumstances, but that does not link or connect the accused of committing the offence.

k. That the learned lower Court has erred in accepting the evidence of P.W.2 P.W.3 and P.W.6 and accepting the contents of the F.I.R. and charge-sheet as gospel truth. Though, the learned lower Court has acquitted the accused Subhash under Section 25 Arms Act.

l. Suspicion is not the substitute for proof. There is a long distance between 'may be true' and 'must be true' and the prosecution has to travel all the way to prove its case beyond all reasonable doubt. We have already seen that the prosecution not only has not proved its case but palpably produced false evidence and the prosecution has miserably failed to proved its case against the appellant let alone beyond all reasonable doubt that the appellant and he alone committed the offence. (Vide Varkey Joseph Vs. State of Kerala).

47. On the basis of the discussions herein above, the Court is of the considered opinion that the prosecution miserable failed to prove the charge against the accused beyond reasonable doubt. They were falsely implicated on the pretext of enmity which is double edged weapon due to which a person can cause and commit the offence and a person can also falsely be implicated. In the case at hand we find that the accused are innocent and they have been falsely implicated for the murder of the deceased Bijendra Bhan.

Accordingly, the Court is of the considered opinion that the impugned judgment and order of conviction and sentence is not sustainable and is liable to be quashed and the appeal is to be allowed.

Order

The appeal is allowed, the judgment and order dated 2.1.2014, convicting and sentencing of the appellants Satendra Kumar and Subhash, passed by Additional Sessions Judge/Special Judge S.C. and the S.T. (Prevention of Atrocities) Act, Meerut, is hereby quashed. The appellants are set free if not wanted in any other case.

Copy of this judgment be sent to the concerned Court and Jail Superintendent for necessary compliance.

The appellants on being released the mandate of Section 437-A Cr.P.C. to be complied.

Registry is directed to return the original records to the lower Court along with a copy of this judgment and order.

 
Order Date :- 19.9.2022
 
S.Verma
 

 
[Umesh Chandra Sharma,J.]        [Suneet Kumar,J.]