Amit Kumar vs State Of U.P.
2023 Latest Caselaw 11006 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

RESERVED ON :-05.12.2022
 
DELIVERED ON:-13.04.2023
 
Court No. - 29 
 
Case :- CRIMINAL APPEAL No. - 4882 of 2009 
 
Appellant :- Amit Kumar 
 
Respondent :- State of U.P. 
 
Counsel for Appellant :- Ashwini Kumar Awasthi,I.M. Khan,Kripa Shankar Tiwari,Manish Tiwary,Mary Puncha (Sheeb Jose),Mohd. Kalim 
 
Counsel for Respondent :- Govt. Advocate                                                        		     Alongwith 
 
CRLA No.5502 of 2009, CRLA No. 5607 of 2009,  CRLA No. 5606 of 2009,  CRLA No. 5501 of 2009
 
Hon'ble Mrs. Sunita Agarwal,J. 

Hon'ble J.J. Munir,J.

(Delivered by Justice Sunita Agarwal)

1. Heard Sri Rajiv Lochan Shukla, learned Advocate for the appellant, Sri Arun Kumar Singh, learned A.G.A. assisted by Sri Prashant Kumar Singh the Brief Holder for the State of U.P. and Sri Dharmendra Pratap Singh learned Advocate for the informant.

Introduction:-

2. These four connected appeals have arisen out of the judgment and order dated 23.07.2009 passed by the Additional Sessions Judge, Court No.2, Fatehpur in S.T. No.521 of 2005, arising out of case crime No.42 of 2005 under Section 148, 302,/149, 506 IPC, P.S. Thariaon, District Fatehpur; S.T. No.522 of 2005 arising out of case crime No.46 of 2005 under Section 25 Arms Act, P.S. Thariaon, District Fatehpur; S.T. No.523 of 2005 arising out of case crime No.47 of 2005 under Section 25 Arms Act and S.T. No.524 of 2005 under Section 25 of the Arms Act.

3. The case crime No.47 of 2005 registered against one of the accused Ram Sahai son of Ram Das was tried as S.T. No.312 of 2007 and disposal of both the cases namely S.T. No.521 of 2005 and S.T. No.312 of 2007 was made by a common judgment under the order passed by this Court. The accused Ram Sahai son of Ram Das has, however, been acquitted of the offences under Section 148, 302, 149, 546 IPC by giving benefit of doubt.

4. The five charged accused persons namely Abhinesh, Dinesh @ Lambri, Hariom, Rajendra Nath and Amit Kumar in case crime No.42 of 2005 have been convicted for the offences under Section 148, 302/149 and 506 IPC. For the offence under Section 302/149 IPC, the accused appellants have been sentenced for life imprisonment with fine of Rs.20,000/- each; the default punishment is six months additional imprisonment. Under Section 148 IPC, all the accused have been convicted for one year imprisonment with fine of Rs.1000/- each; default punishment is three months additional imprisonment under Section 506 IPC, the appellants have been convicted with three months simple imprisonment and Rs.500/- fine each; the default punishment is one month additional imprisonment.

5. Under Section 25 Arms Act, appellants Abhinesh, Dinesh @ Lambri and Rajendra Nath have been convicted and sentenced for one year rigorous imprisonment with fine of Rs.1000/- each; default punishment is three months additional imprisonment. All the punishments are to run concurrently.

FIR and Investigation:

Evidence of informant & police witnesses:-

6. The written report of the incident occurred on 21.04.2005, at about 11.30 AM, was lodged by Deshraj son of Devi Dayal Singh resident of village Ramua, P.S. Thariaon, District Fatehpur (examined as PW-1). The averments in the written report are that the real nephew of the informant named as Shailendra Pratap Singh @ Babloo Singh son of Malkhan Singh was going alongwith one Kuber Singh son of Kartar Singh, on foot, in the Village Ramua, from link road to Fatehpur at about 11.30AM on the fateful day, i.e. 21.04.2005, to distribute cards of his wedding. As soon as he reached at the link road about 400 meters from the village, five accused persons named above, residents of the village, alongwith one more person whom the informant could not recognize, came on two motorcycles from the village side. While challenging deceased Shailendra Pratap Singh, carrying country made pistols in their hands, all the accused persons started firing at him. The deceased ran towards the west side of the road in the field of Raja Ram Singh lying at a distance of 15 meters from the road, all the accused persons cornered him and fired, being hit by the gun fires, he had died on the spot. It is stated in the written report that the informant could identify the sixth accused if brought before him. It is further stated therein that the deceased was carrying his licensee rifle which fell on the spot while he was running away. The accused persons took the magazine and five loaded cartridges from the said weapon. The incident was witnessed by informant namely Deshraj Singh, Anil Kumar Singh @ Hussan Singh son of Malkhan and Sambhu Nath son of Ramnath Dwivedi as also other villagers and all of them had identified the accused persons. It is stated that at the time of the incident, many people were working in their fields and passing on the road, got terrorized and ran towards their homes. The accused persons also opened around ten fires in air while crossing the village to create terror. The villagers had closed their doors and windows. The accused persons threatened the entire village that if anyone intervened they would kill him. The incident had occurred on account of old enmity. The informant stated therein that he was present at the PCO at a distance of 15 meters from the place of the incident.

7. The written report of the incident was proved by PW-1 Deshraj Singh in his examination-in-chief. He stated that the report was scribed by him and he filed it in the police station to lodge the criminal case. The written report was shown to him in the Court and he had proved the same as Exhibit Ka-'1', being in his handwriting and signature.

8. PW-4 Constable Moharir, P.S. Thariaon, District Fatehpur stated that he had lodged Case crime No.42 of 2005 on the written report given by informant Deshraj Singh, Check FIR was proved as Exhibit Ka-'3' being in his handwriting and signature. The G.D. No.24 dated 21.04.2005 at 13.15 hours, of the entry of the FIR was proved by bringing the original G.D. in the Court. The carbon copy of the G.D. was proved as Exhibit Ka-'4', being the same as original having been prepared in the same process. PW-4 also proved that he had registered Criminal Case No.43 of 2005 under Section 25 Arms Act on the basis of the recovery memo prepared by the Station House Officer Sri N.K. Pandey against accused-appellant Rajendra Nath Dwivedi and G.D. entry No.9 of the same was made on 25.04.2005 at 07.20 hours. The recovery memo being in the handwriting and signatures of the SHO was marked as Exhibit Ka-'5' at the instance of PW-4. The G.D. entry of the same was marked as Exhibit Ka-'6'.

9. In cross, PW-4 stated that no other case was lodged before and after the instant murder case on that day. The informant alongwith 3-4 persons came inside the police station on foot. He did not enquire about the means of transport used by the informant. The suggestion that the report was lodged ante-time because of the G.D. being empty, after conducting inquest, was refuted by PW-4. He stated that it was wrong to suggest that the informant did not reach the police station. PW-4 was further confronted about the signature of the informant on the original Check report. He stated that Check report was sent to the Circle Officer on the next date as the case was registered after the Pairokar had left in the morning. The suggestion that since Check report was not prepared on that day itself, it was not sent to the Circle Officer. PW-4 admitted that he did not mention the date of sending of the Check report to the Circle Officer and stated that since the date was not being mentioned customary, he did not mention the same. The suggestion that Check FIR and G.D. were prepared ante-time, after deliberations, was refuted by PW-4.

10. PW-5 is the witness of registration of the Case crime No.46 of 2005 and 47 of 2005 under Arms Act against appellants Abhinesh and Dinesh; respectively. He proved the Check FIR of the aforesaid cases as Exhibit Ka-'7' and G.D. entry dated 04.05.2005 as Exhibit Ka-'8'. The suggestion of the said report being ante-time was refuted by him.

11. PW-6 is the witness of recovery of the murder weapon at the instance of appellants Abhinesh and Dinesh.

12. PW-7 is the Investigating Officer of Case Crime No.42 of 2005, of the murder of the deceased. He stated that initial investigation of the case was made by S.I. Suresh. From the perusal of the case diary it could be seen that he had entered the Check FIR and statement of the informant in the case diary, in the first Parcha of the case diary, on 21.04.2005. The site of the incident was inspected at the instance of the informant and an entry in that regard was made in the case diary The site plan was proved by PW-7, being in the handwriting of S.I. Suresh Chand. The entry of the memo of recovery of blood stained and plain earth and the statement of witnesses recorded in the case diary by the first Investigating Officer S.I. Suresh Chand was proved by PW-7. He stated that he started investigation from Parcha No.2A and recorded statement of eye witnesses therein. The statement of the inquest witnesses were recorded and on the arrest of the accused persons, the entry of their arrest and statements were recorded. The entry with regard to the murder weapon was also made. About the arrest of accused Rajendra, it was stated by PW-7 that the accused was arrested on 25.04.2005 and a 315 bore country-made pistol with a cartridge shell was recovered from his possession, the said accused was arrested outside the Fazullapur railway station around 06.00 AM. The recovered weapon was identified by PW-7 in the Court and was marked as Material Exhibit -'3'. The recovery memo was proved as Exhibit 'Ka-11' with the statement that the same was prepared after the arrest of the said accused persons. The statement of appellant Abhinesh was recorded on 26.04.2005 and of appellant Dinesh @ Lambri was recorded on 27.04.2005. After completion of the investigation, the charge sheet was submitted against all the accused persons which was proved as Exhibit Ka-'12', being in his handwriting and signature by PW-7. The site plan of the place of recovery of the murder weapons from accused Rajendra Nath and Abhinesh were proved by him as Exhibit Ka '13' and Exhibit Ka '14', being in his handwriting and signature. In cross, PW-7 was confronted about mentioning of the names of accused Rajendra Nath on the recovered weapon. He stated that he had mentioned the name of the said accused over the Cloth wherein the weapon was sealed.

13. PW-7 was confronted about the arrest of accused Rajendra and the suggestion was made that the arrest and recovery have been shown in a forged manner from the place indicated in the recovery memo. PW-7 was cross examined about previous 161 statement of witness Anil Kumar Singh @ Hussan Singh (PW2). He was also confronted about the witness Kuber Singh and stated that he came to know that the deceased was accompanying Kuber Singh on the spot of the incident, but he did not interrogate Kuber Singh. The first Investigating Officer had also not recorded the statement of Kuber Singh, it may be because the witness was not available. There was no mention of the statement of Kuber Singh in the case diary. It was suggested that Kuber Singh was interrogated, but since he did not name the accused persons as assailants, his statement was not recorded, this suggestion was refuted by PW-7. The suggestion that the accused persons were falsely implicated and that the investigation was not made by him personally, was refuted by PW-7.

14. PW-8 is the witness of recovery of the murder weapons from appellants Abhinesh and Dinesh. The recovery memo was proved as Exhibit Ka '19' being in the handwriting and signature of this witness. The charge sheet of the case under Section 25 Arms Act against Rajendra Nath was proved by this witness as Exhibit Ka '18'. The suggestion that the recovery was forged was refuted by PW-8.

15. PW-9 proved the chargesheet of the case under Section 25 Arms Act against appellants Dinesh and Abhinesh as Exhibit Ka '19' and Exhibit Ka '22' being in his handwriting and signatures. All related papers pertaining to the sanction etc. under Section 25 Arms Act were also proved by this witness. The inquest and related papers of deceased Shailendra Pratap Singh @ Babloo had been marked as Exhibit Ka '24' and Ka '25' and Ka '26', being in the handwriting and signature of S.I. R.K. Mishra by this witness PW9. The other papers relating to the postmortem of the deceased namely Chitthi RI and Chitthi medical officer were marked as Exhibit Ka '27' and Ka '28'; respectively, at the instance of this witness. The suggestion that entire proceedings were conducted while sitting on the table in the police station was denied by PW-9.

16. The first Investigating Officer of Case Crime No. 42 of 2005, namely Suresh Chand was examined as CW-1, i.e. the Court Witness. In his examination-in-chief, CW-1 stated that the first Parcha of the investigation of the case was prepared by him on 21.04.2005. The papers pertaining to lodging of the FIR were copied. The statements of Check writer and the informant Desh Raj were recorded by him in the same Parcha. This site of the incident was inspected and the site plan was proved as Exhibit Ka-'10', being in his handwriting and signature by this witness. The recovery memo of the blood stained and plain earth was proved as Exhibit Ka '15', being under the signature and writing of this witness. He stated that second Parcha of the general diary dated 22.04.2005 was prepared by Sri N.K. Pandey (PW7), who had conducted investigation thereafter. Exhibit Ka-11, the document of arrest of accused Rajendra and the recovery, proved as Exhibit Ka-'11' (at the instance of PW7) was shown to this witness and he admitted that the said document was in his handwriting and bears his signature. It may be noted that PW-7, in his testimony, while proving the said document stated that the memo was dictated by him to Suresh Chand who wrote the same.

17. In cross, C.W.-1, Suresh Chand stated that he was present in the police station, Thariaon on the date of lodging of the case. They had left the police station within 10 minutes of getting the information. The report with regard to the FIR had not been sent to the concerned magistrate before they had left the police station. It took them about 45 minutes to reach at the place of the incident, which was at the distance of 8-9 km from the police station. The dead body was taken away from the place of the incident in his presence and he stayed there for about one hour. The inquest was prepared by S.I. R.K. Mishra and the body was sent by him. On confrontation about the manner in which the dead body was sent, CW-1 stated that he did not have much information about that. When the police form No. 13 Exhibit-26 was shown to this witness, he stated that two constables namely C154 Rakesh Kumar Dubey and HC 1485 Rajkaran Yadav took the dead body for the postmortem. On confrontation, he stated that the body was sent for the postmortem directly to the Mortuary and it had not been sent to the R.I. He, however, stated that he was not aware as to whether the dead body, in the instant case, of deceased Shailendra Pratap Singh @ Babloo, was sent straight to the postmortem house. He was further shown the signature of R.I. in the Challan Laash Exhibit Ka-'26' and stated that he could not state as to whether the dead body was received by R.I.

18. CW-1 was confronted about the entries in the site plan and denied the suggestion that when he went to inspect the site of the incident, the first informant report was not lodged at the police station. It was further suggested to CW-1 that the dead body was sent from the headquarter for postmortem on the next day. He replied that the proceeding for inquest and sending of the dead body to the headquarter for postmortem was completed by S.I. R.K. Mishra. The suggestion of the report being ante-time was refuted by CW-1. On further confrontation about the identity of witness Kuber Singh, CW-1 stated that from the perusal of the FIR, it was evident that the deceased was accompanied with Kuber Singh. Parcha No.1 of the case diary wherein entry of the written report had been made, the name of father of Kuber Singh had been mentioned as Atar Singh, whereas in Exhibit Ka-1, his name was shown as Kartar Singh. He further stated that when he left the police station to the place of the incident for investigation, he carried all relevant papers such as Zild Panchayatnama and went at about 13:15 hours by police jeep, he reached at the place of the incident within 45 minutes. He did not make any effort to meet the eyewitness Kuber Singh son of Kartar Singh and Anil Pratap Singh on the spot and neither those witnesses came to meet him. He conducted investigation only for two days and in those two days, he did not make any effort to trace those witnesses.

19. Looking to the case diary, CW-1 stated that even the Investigating Officer who conducted investigation after him did not make interrogation of Kuber Singh son of Kartar Singh nor his statement was recorded nor any effort was made to trace him. The suggestions that the information of the incident was only with the witness Kuber Singh and the entire investigation was made in a forged manner and it was a blind murder, were refuted by this witness. The suggestion that the FIR was not lodged till the inquest was conducted was denied. CW1 also refuted the suggestion that he dictated the written report to the informant at the police station and by taking benefit of the GD being empty, the written report Exhibit Ka-'1' was prepared after completion of the inquest. The suggestion that no one had seen the incident nor the incident had occurred at the place shown in the site plan was refuted by CW-1. The suggestion that he had shifted the place of the incident which had resulted in discrepancies in the site plan was also refuted by CW-1.

Postmortem and Injuries:-

Medical Evidence:-

20. PW-3, the postmortem doctor proved the postmortem report as Exhibit Ka ''2' being in his handwriting and signature. In his examination-in-chief, PW-3 stated that he received the dead body on 22.04.2005 at about 11:30 AM of Shailendra Pratap Singh @ Babloo son of Malkhan Singh in sealed state which was brought for postmortem by police constables, who had identified the same. The deceased was aged about 25 years and the estimated time of death was about one day. The postmortem was conducted on 22.02.2005 at about 11.30 AM As per the external appearance, the body was average built, both eyes were closed, mouth was open. Blackening was present in nose both orbits. Rigor mortis passed on from upper extremities and present in the lower extremities. The antemortem injuries found on the person of the deceased as indicated in the postmortem report are:-

"1.Firearm injury would of entry 3 cm x 2 cm overlying left, margins are blackened.

2. Wound of entry 2 cm x 1 cm, 5 cm below and left to umbilicus. Intestinal loops are coming out of the injury.

3. Wound of entry 2 cm x 1.5 cm on right side of nasal bridge adjoining medical angle of right eye, with fracture of under lying bone and fracture of frontal bone on right side.

4. Wound of entry 2 cm x 1.5 cm on and above external end of right eye-brow. Margins are blackened.

5. Wound of entry 2 cm x 1.5 cm on right side of the abdomen 5cm away on right side from umbilicus. Margines are blackened.

6. Wound of entry 2 cm x 1 cm on right mid-axillary line, 10 cm below axilla of right side margins are blackened.

7. Firearm wound of exit 2 cm x 2 cm on right side of back situated 2 cm below angle of right scapula.

8. Wound of exit 2 cm x 2 cm on post axillary line on left side, below and outer aspect of inferior angle of left scapula.

9. Wound of exit 2 cm x 2 cm on left lower back 3 cm below left scapula.

10. Wound of exit 2cm x 2.5 cm below by 5 cm from injury No.9.

11. Abrasion 6 cm x 3 cm on right upper arm.

12. Wound of exit 2 cm x 2 cm occipital region of skull."

21. On internal examination, the skull bones were found broken, brain and brain membranes were lacerated. Both lungs and their membranes were lacerated. Three small pieces of metal of irregular pattern were found from the lungs. Trachea was congested. Heart and heart membrane were lacerated, one and a half liters blood was present in the chest cavity. The membrane of stomach was lacerated. Undigested food and fecal matter was present in the digestive cavity and one liters blood was also present. The stomach was lacerated and undigested food was leaking, four pieces of metal were found inside it. Small and large intestine were lacerated from different places. Spleen and liver were lacerated. The kidney and other organs were congested. Urinary bladder were half filled. Two metal pieces of irregular size were present in the brain matter. One cylindrical bullet was found from the back portion of the right thigh. The cause of death was mentioned as Antemortem firearm injuries caused in the scalp and Coma on account of the same.

22. Nine small pieces of metal and one bullet were sealed and sent to the police station alongwith nine police papers. It was stated by Doctor PW-3 that the injuries were caused to the deceased by more than one fire and there was likelihood of death having been caused immediately on sustaining such injuries. The death could have occurred on 21.04.2005 at about 11:30 AM. PW-3 was confronted about the presence of rigor mortis and the nature and location of injuries and from his testimony, it could be seen that he had explained the injuries having been caused by firearms. He was also confronted about the blackening around some of the injuries noted above.

23. The formal witnesses, thus, had proved the proceedings conducted by them during the course of investigation and the reports prepared in the said process.

Eyewitnesses:-

24. Amongst the witnesses of fact, PW-1 Deshraj Singh, the first informant, had proved the contents of the FIR lodged by him in his examination-in-chief. He stated that there was old enmity of accused persons Abhinesh, Dinesh, Hari Om and Rajendra Nath with them and these accused had also murdered his brother Malkhan Singh. Accused Amit was a resident of the village. PW-1 further stated that in the murder of Malkhan Singh, deceased Shailendra was the informant and his testimony was not recorded. As noted above the written report was proved by PW-1.

25. In cross, PW-1 narrated about the old enmity of Malkhan Singh, father of the deceased with accused Rajendra Nath because of the murder of his brother Surendra Nath in the year 1968, wherein Malkhan Singh was awarded death penalty but later released on mercy petition. He was confronted about the witness Anil @ Hussan being a witness in another criminal case as well; about the criminal case lodged against accused Rajendra Nath in the year 1969 under Section 307; about the witnesses in the case of murder of Malkhan Singh, father of deceased Shailendra Pratap, PW-1 was also confronted about the implication of accused Rajendra Nath in the murder case of Malkhan Singh, father of the deceased, while Rajendra Nath was in jail. About a case under Section 307 IPC lodged against PW-1 on the allegation of attempt to murder of Virendra Nath, brother of accused Rajendra Nath and his son Umesh, he stated that he had been falsely implicated therein. We may note that at the time of his deposition, PW-1 was in jail.

26. In cross, PW-1 stated that he was in jail for the last 3-4 months. PW-1 was confronted about his presence at the place of the incident. He admitted that he and deceased Shailendra Pratap Singh were living in separate houses. He stated that when the deceased left home at around 11.00 AM to distribute cards, he was at his tube-well and the deceased did not leave his home in his (PW-1) presence; his tube well was at a distance of 500-600 meters from the house; the deceased were carrying 10-15 cards and was going to Fatehpur to distribute them. The deceased left on foot from his house but he could have got vehicle on the road near the PCO. PW-1 stated that there was no motorcycle in his house at the time of the incident and the time when the deceased left his home was his own estimation. On the date of the incident, he went to the tube-well at around 10.00 AM all alone, and was not carrying his licensee weapon; the place of the incident was visible from his tubewell; he did not see the accused persons before they started firing; when the accused opened fire, the deceased was on the road. PW-1 further narrated that the accused persons parked their motorcycles and then fired immediately. First fire was not seen by him but he heard the sound; at the time of the first fire, he was at a distance of 15-20 meters at the south-east corner of the place of the incident; he did not know as to whether first fire hit the deceased but stated that the deceased ran; at the time of first fire, the deceased was at a distance of about 1-2 meter from the assailants. PW-1 stated that he did not move from the place from where he saw the incident; none of the accused was near him; he was hiding at the side of the road in a bush and he did not even shout from that place; deceased Shailendra Pratap (Babloo) ran for about 15 to 20 meters towards west; Kuber ran towards east-south. Accused persons had cornered deceased Babloo and then all of them fired at him. The deceased was carrying rifle, but it fell on the ground while he was running and he could not open fire. The accused persons hit the deceased from a short distance, barely 1-1/2 meters. The informant and other witnesses were in the grove which was on the west side of the place of the incident. PW-1 further stated that on the first fire, deceased ran for about 15-20 meters and then he was cornered and killed. He (PW-1) himself did not move forward from the place of hiding. Many villagers were in their fields.

27. After the accused persons had left the place of the incident, he came out of the place of hiding and then saw the rifle, when he found that the magazine was missing. He brought the rifle to his house. He then stated that after picking the rifle, he first went near the dead body and then came home, kept the rifle and went to the police station, where he reached in about 45 minutes after the incident. The report was scribed by him at the place of the incident. He went to the police station by Marshal jeep. Kuber did not meet him nor went with him to the police station.

28. When the Investigating Officer came on the spot, witnesses Kuber, Balram and other villagers were present. The police came at around 02.24 hours and stayed for 1-1/2 hours near the dead body. The body was taken away after around 3-1/2 hours. The Investigating Officer reached at the village in the night, but he did not record the statement of anyone. PW-1 stated that he did not know as to whether the statement of Kuber was recorded by the Investigating Officer. He stated that the marriage cards were scattered at the place of the incident and they were shown to the Investigating Officer but he did not seize them.

29. PW-1 was confronted about his 161 statement; the suggestion that he did not witness the incident was categorically denied by PW-1. He also denied that the accused person did not kill his nephew Babloo. The suggestion that he was making a false statement after taking the landed property from the wife of Malkhan Singh, mother of the deceased, was refuted. The suggestion that he was making a false statement in greed and out of old enmity was categorically refuted by PW-1. He was further confronted about the narration in his 161 statement about the place of the incident. The suggestion that accused Amit was not present on the spot was denied by PW-1. He further stated, in cross, that about 6-8 fires were opened; first fire was made from one place and all other fires were made from the second place. It was not possible for him to narrate as to whose fire hit the deceased. The suggestion that he was making a false statement against Amit as he had borrowed money from his mother and did not want to return the same, was refuted by PW-1.

30. We may note at this juncture, that the abovenoted deposition of PW-1 was commenced on 05.01.2006 and further recorded on 17.10.2006. Thereafter, in his evidence recorded on 16.07.2007, PW-1 had resiled from his previous testimony in the Court. In answer to the question put to PW-1 in his evidence recorded on 16.07.2007, he had denied his presence on the spot. This witness was declared hostile and confronted by the prosecution. In cross, PW-1 admitted that he was implicated in a criminal case under Section 307 for attempt to murder of the brother of accused Rajendra. His sons and nephew were also implicated therein and they all were lodged in jail. Their bail was granted by the High Court. On the date of his deposition, the criminal case under section 307 IPC was pending in the Court and was at the stage of evidence. He was suggested that out of greed, he demanded landed property from the mother of the deceased and when she denied, he resiled from his previous statement. The suggestion was also given that this witness was not in good terms with the mother of the deceased. PW-1 admitted that at the time when his previous statement was recorded, he came from jail. He was suggested that he took money and entered into a compromise with the accused persons and changed his stand to get away from the criminal case lodged against him. The allegation of entering into compromise with the accused persons after coming out of the jail, was denied by PW-1.

31. In his further testimony recorded on 30.01.2008, PW-1 stated that when the incident had occurred, he was not on the spot nor he had seen anything. The written report was lodged by him on the pressure of the Investigating Officer. When he came for deposition for the first time, he was lodged in the district jail where he was threatened by Jairaj Singh and others and his first statement in the Court was under the said threat.

32. PW-2 Anil Kumar Singh @ Hussan Singh narrated the entire incident in the same manner as stated in the FIR and deposed that magazine and cartridges of the rifle of the deceased were taken away by the accused person. The deceased was witness in the case of murder of his father, which was going on against the accused persons. The suggestion of enmity of this witness with the accused persons was given in cross. PW-2 had denied the suggestion of making false statement. He further stated that his house was at a distance of 300 meters from the field of Rajaram. He stated that he did not go to the Court on the date of the incident. The Investigating Officer interrogated him on the next day of the incident at about 10.00-11.00 AM, though he met the police officers at the place of the incident on the date of murder. PW-2 was confronted about his 161 statement, the reason of him being present at the spot of the incident.

33. PW-2 stated, in cross, that he saw the accused person, getting down from motorcycles and then firing at the deceased. He heard the sound of first fire and saw total 6-7 fires opened by the accused persons from all four sides upon the deceased. The assailants were at a short distance from the deceased. PW-2 stated that he was present at the West-North corner of the spot of the incident, at a distance of about 20-25 meters and he was watching the entire incident while sitting and hiding at that place. He stated that he told the Investigating Officer that on the first fire, the deceased ran and then he was cornered by the accused persons. One or two accused persons were picking up the cartridges shells and when he reached the spot, he did not see any cartridge shell. No empty cartridge or cartridges was found on the spot. When police came, rifle was lying on the spot.

34. PW-2 further stated that when he saw Deshraj (PW1), he was on the road at the time of fire and then he went away. Police came on the spot in around one hour of the incident. He did not go to the police station. The suggestion that he was making a false statement against the accused was denied by PW-2. The suggestion of enmity with accused Amit or his family was denied by PW-2. He stated that he saw Amit from a distance of 20-25 meters alongwith other accused persons. There were two motorcycles, he could not tell the registration number thereof. Motorcycles came from the North side and were standing facing South, one was of Abhinesh and another belonged to Amit. He intimated the Investigating Officer about the owners of the motorcycle, but the vehicles were not taken into possession nor the details were disclosed in his statement.

35. In cross, on behalf of accused Amit, PW-2 further stated that he could not tell the details as to which of the body parts of the deceased was hit by the fire opened by accused Amit. PW-2 further stated that accused Amit was carrying Tamancha (country made pistol). He categorically stated that the first fire was not seen by him and he could not tell as to whether first fire hit the deceased. The place of the incident was categorically narrated by PW-2 and asserted in his testimony. About the presence of Deshraj (PW-1), he stated that he did not know as to from where he was coming but he saw Deshraj on the road where his tubewell and PCO existed. Kuber was with the deceased and he fled away and was hiding. The suggestion that witness Deshraj (PW1) had taken money from accused Amit was denied by PW2 as having not been in his knowledge. The suggestion that he was making a false statement on the pressure of witness Deshraj was refuted by PW2.

Section 313 examination of the accused-appellants:-

36. The accused appellants in their statement under section 313 Cr.P.C. had denied all incriminating circumstances put to them and added that the report had been prepared in connivance with the informant by the police and it was an ante-time ante dated report. They were falsely implicated because of the old enmity with the deceased and informant Deshraj Singh, who had been pressurized by the police for lodging false case. Moreover, Deshraj, the informant, in his re-examination had denied having witnessed the incident. A accused-appellant Amit Kumar while denying incriminating circumstances against him stated that he had no enmity either with the deceased or the family of the deceased, and had no motive to commit the murder. His enemies who were having grudges against him, had implicated him falsely in connivance with the informant and the police, in order to spoil his life. He further stated that no such incident of murder had occurred on the spot.

37. Four witnesses were produced by the appellants in defence.

Defence Witnesses:-

38. DW-1 is the Clerk of the Court of C.J.M, Fatehpur who brought first information register with him and stated in his examination-in-chief that the original check report of Case Crime No. 42 of 2005 under section 147, 148, 149, 302/34, 506, and 507 Criminal Law Amendment Act was received in the office of the C.J.M. on 28.4.2005 and was entered in the register and was seen by the Presiding Officer on the same day. The photo copy of the register entry filed in the court was marked as Exhibit Kha-1. He was confronted by the prosecution about various entries in the register about the dates and signature of the Presiding Officer therein. In cross, DW-1 stated that the chargesheet was being perused by the Presiding Officer on the date on which it was received in the Court and signatures and date, were, accordingly mentioned therein. However, various entries had been shown to him where signature and dates of the Presiding Officer were not found. The suggestion that the entries in the register were not made on the same date when the report was received, because of pressure of work was denied by DW-1.

39. DW-2 had been produced by the defence to prove certain papers pertaining to the election to the post of Sanchalak Kisan Sewa Sahkari Samiti Haswa, District Fatehpur.

40. DW-3, the Constable 154 Rakesh Kumar Dwivedi stated in his examination-in-chief that on receipt of the information of the murder of Shailendra Pratap Singh @ Babloo Singh in the police station Thariaon on 21.04.2005, he left to the place of the incident and when reached, S.O. Sri Nand Kishor Pandey was already present with force. The Superintendent of Police and Circle Officer were also present on the spot. He reached at the spot at about 02.15 PM and stayed there for two hours. The body was taken for the postmortem by him at about 4:30 PM and he reached at the Mortuary within two and a half hours, i.e. by 07.00 PM. He took all papers pertaining to the inquest. His arrival at the Police Lines, Fatehpur on 21.04.2005 was entered at about 08.35 PM. He first took the body to the Mortuary and then went to the police lines, carrying all papers. His arrival was entered in the general diary. Again he went to the postmortem house on 21.04.2005 and all papers relating to the postmortem were handed over to the doctor on 22.04.2005 at about 11.00 AM. In cross, DW-3 stated that he took all papers relating to the inquest alongwith the body, which was sealed on the spot and till it was handed over to the doctor for the postmortem, it remained in the sealed state, no one touched it.

41. DW-4, a villager stated that at the time of murder of Shailendra Pratap Singh @ Babloo, he was in the village, but he did not know as to who had committed the murder. Anil Singh @ Hussan (PW2) and Deshraj (PW1) were in the village alongwith him and they all went to the spot of the incident after hearing the news about the murder. The police reached at the spot in the night at about 08.30-9.00 PM and till the police had reached, they did not know as to who had committed the murder. The Investigating Officer dictated the report of the incident to informant Deshraj on the spot. The inquest was conducted in the village at around 09.00 PM. This witness had identified his signature on the inquest. He then stated that the Investigating Officer did not interrogate him. In cross, DW-4 admitted that the informant of the case namely Deshraj was Harijan by caste and a case of harassment of a member of Harijan caste was going on against him (DW-4) for the last 4-5 months prior to the deposition. He stated that informant Deshraj was well acquainted with the accused Rajendra. DW-4 denied that he had entered into an agreement with accused Rajendra not to depose against him so that the accused may also not depose against him in the criminal cases. DW-4 also admitted that no summons issued by the Court were received by him. DW-4 had resiled from his statement under Section 161 Cr.P.C, when it was put to him. The time of the inquest at about 03.45 PM as indicated therein was also denied by DW-4.

Arguments of the Counsels:-

42. Placing the above evidence before us, it was vehemently argued by Sri Rajiv Lochan Shukla learned Counsel appearing for the appellants that it was an admitted case of the prosecution that there was old serious enmity between the complainant and the accused appellants. Primary witness in the FIR Kuber Singh son of Kartar Singh, who was accompanying deceased Shailendra Pratap Singh had not been produced by the prosecution. Other two eyewitnesses examined as PW-1 and PW-2 were chance witnesses and moreover, one of them namely PW-1 Deshraj, the informant had resiled from his previous testimony before the Court when he stated in the re-examination that he did not witness the incident. The FIR is ante-time. The place of the incident is also doubtful. The prosecution had not challenged the shortcomings pointed out in the cross-examination of CW-1, the Court witness. From the statement of defence witness DW-1, it is proved that the report was ante-time as there was an inordinate delay in sending the FIR for perusal by the C.J.M. There is a categorical denial on the part of DW-4, a villager about his statement under section 161 having been recorded by the police. This witness (DW-4), in his examination-in-chief, categorically stated that other two witnesses namely Deshraj (PW-1) and Anil Singh @ Hussan Singh (PW2) were present in the village alongwith him, which proved that none of them (PW-1 or PW-2) had witnessed the incident. The star witness of the prosecution namely Kuber had not been produced to establish the occurrence of the incident. It is established by the defence by leading positive evidence that two witnesses (PW1 & PW2) had reached the spot after getting information of the incident. DW-4 had not been confronted on the material particular during his cross-examination and his credibility could not be impeached.

43. It was further argued that the identity of PW-2, Anil Kumar Singh @ Hussan is also doubtful. It was argued that in the list of witnesses of inquest, Anil Kumar Singh son of Udaybhan Singh, resident of village Ramua, police station Thariaon has been shown, whereas in the chargesheet, in the list of witnesses, Anil Kumar Singh has been shown as son of Malkhan Singh, resident of village Ramua, P.S. Thariaon, District Fatehpur. In the charge sheet, Anil Kumar Singh son of Malkhan Singh has not been shown as having another name i.e. Anil Kumar Singh @ Hussan Singh. In Parch no.3 of the case diary, the name of the inquest witness has been shown as Anil Kumar Singh son of Udaybhan Singh, whereas in Parcha no.2, the statement of eyewitness recorded under Section 161, Cr.PC is shown as Anil Kumar Singh @ Hussan Singh son of Malkhan Singh. The contention is that the prosecution has not been able to prove that the inquest witness Anil Kumar Singh son of Udaybhan Singh and the eyewitness mentioned in the charge sheet namely Anil Kumar Singh son of Malkhan Singh were two different persons. A serious doubt about the identity/parentage of the eyewitness Anil Kumar Singh mentioned in the FIR had arisen because of the fact that the said witness was introduced by the prosecution on its own. DW-4, who had reached on the spot alongwith the prosecution witnesses of fact namely PW-1 and PW-2 had categorically stated that the written report was scribed by informant Deshraj on the dictation of police.

44. It was vehemently argued that adverse inference has to be drawn against the prosecution for withholding its prime witness, who could have thrown light upon the whole occurrence, in accordance with Section 114 (g) of the Evidence Act' 1872. From the testimony of two eyewitnesses, it is evident that they are unreliable, inasmuch as, PW-1 had resiled from his previous statement and the prosecution could not prove the character of PW-2 being beyond doubt. As the informant of the case had turned hostile and denied having lodged complaint with the police about the murder, the entire prosecution story has to be thrown outrightly, having not been established at all. The judgement of conviction passed by the trial court cannot be sustained.

45. Reliance is placed on the decision of the Apex Court in Khema Alias Khem Chandra Etc. Vs. State of U.P.1, to argue that that the statement of eyewitnesses in this case comes within the meaning of wholly 'unreliable witnesses'. Previous enmity is the reason for false implication of the appellants, as it acts as a double edged sword.

46. Reliance is placed on the decision of the Apex Court in Raj Kumar Singh alias Raju alias Batya Vs. State of Rajasthan2 to submit that though previous enmity between the parties may provide motive to the crime, and may be a cause for suspicion, but suspicion however grave it may be, cannot take the place of proof. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof.

47. Reference has been made to the decision of the Apex Court in Lallu Manjhi & another Vs. Stae of Jharkhand3 to submit that while appreciating the testimony of sole witness to base conviction, the Court has to be extra cautious, faced with the testimony of the single witness, the Court may classify the oral testimony into three categories namely (i) ''wholly reliable', (ii) ''wholly unreliable', (iii) ''neither wholly reliable nor wholly unreliable'. It was argued that in a case where the testimony of single witness is neither wholly reliable, nor wholly unreliable, the Court has to be circumspect and has to look for corroboration in material particulars by reliable testimony, direct or circumstantial, before acting upon the testimony of a single witness. A word of caution has been added by the Court in such matters to exercise caution while appreciating testimony of a single witness.

48. Learned AGA, on the other hand, would submit that it was a case where the eyewitness is the first informant who had entered into the witness box to prove the FIR lodged by him. On re-examination, though he had resiled from his previous statement in the Court, but a reading of the whole testimony of this witness namely PW-1, clearly prove the occurrence, the place of the incident, the manner of occurrence and involvement of the accused persons.

49. There is another eyewitness of the occurrence namely PW-2 whose testimony remained intact throughout the cross-examination and in the totality of evidence on record, no infirmity could be found in the judgement of the trial court.

50. It is argued that it was the case of direct evidence where the presence of eyewitnesses on the spot could not be disputed. No exception, therefore, can be taken to their version because of some minor discrepancies pointed out by the learned counsel for the appellant. It was argued that there is no substance in the contention of the learned counsel for the appellants about the identity of eyewitness PW-2, Anil Kumar Singh @ Hussan Singh who has entered in the witness box to prove that he had seen the incident. The identity of this witness had never been impeached by the defence during the course of his cross-examination. To impeach the credibility of a witness, proof is required to be given by the defence as per Section 152 (2) of the Evidence Act and no such proof exists in this case.

51. Lastly, it is stated that previous enmity, in the instant case has been proved to be the cause of murder of deceased Shailendra Pratap Singh @ Babloo, who was informant in the case of murder of his father, lodged against the appellants.

Analysis:-

52. Having heard learned counsel for the appellants and perused the record.

(I) About the FIR being Ante-time:-

53. PW-1 Deshraj Singh, eyewitness of the incident who had lodged the first information report within a period of two and a half hours of the occurrence. The incident had occurred during day time on the road of the village. The informant, in, his examination-in-chief, had reiterated the version of the FIR that the deceased was hit by the appellants who came on two motorcycles carrying weapons in their hands. The written report had been proved by the informant PW-1 being in his handwriting. PW-1 in the written report itself stated that he alongwith other two persons was witness of the incident. About lodging of the FIR, in his examination-in-chief, PW-1 stated that he had scribed the report on his own and it contained his signature. PW-1 had not been confronted about the preparation of the written report or lodging of the same in the police station.

54. The preparation of the Check FIR and entry of the same in the GD on the date of the incident, i.e. 21.4.2005 at 13.15 hours was proved by PW-4. The suggestion given to PW-4 that it was an ante-time FIR as GD was empty and the FIR was lodged after the inquest was completed was sought to be substantiated from the statement of DW-1, the Clerk posted in the Court of CJM Fatehpur, who stated that the original Check report was received in the Court of CJM on 28.04.2005 and was seen by him on the same day.

55. The submission, thus, is that the informant was not present on the spot and it was a case of deliberation and the delay in sending the FIR in violation of Section 157 Cr.P.C cast a serious aspersion about the time of lodging of the FIR.

56. To deal with this submissions of the learned counsel for the appellants, we are required to note that the Check FIR was prepared with the GD entry at 13:50 hours. The inquest had commenced at 14:15 hours and completed on 15.45 hours. The first Investigating Officer examined as CW-1 proved that he was present in the police station when the case was lodged and first Parcha of the case diary was prepared by him on 21.04.2005. The spot inspection of the site in question was made on the same day and site plan was prepared. The memo of recovery of blood stained and plain earth was prepared on the same day, i.e. on 21.4.2005 and had been proved by CW-1. On the suggestion given to this witness (CW-1) about the delay in sending the FIR to the higher official and the Court of CJM, he categorically stated that soon after lodging of the report, he left for the place of the incident which was at a distance of 8-9 KM and it took around 45 minutes to reach at the place of the incident, where he stayed for about one hour. This witness who was the first Investigating Officer had conducted investigation for two days, i.e. 21.4.2005 and 22.4.2005. From Parcha No. 2-A of the case diary, till submission of the chargesheet, the investigation was completed by PW-7 Nand Kishore Pandey. CW-1, in cross, stated that he did not send the FIR to the Magistrate before leaving for the place of the incident. PW-7 who started investigation on 22.04.2005 with Parcha No.II-A, had not been confronted about the delay in sending the report/FIR to higher officials and the Court. The prime witnesses who could have been confronted about non-compliance of section 157 Cr.P.C, and could have explained the circumstances leading to delay in sending the report, had not been cross-examined on the issue. The contention of the learned counsel for the appellant that the FIR was an ante-time report, based on the statement of DW-1 is, thus, neither here nor there. Moreover, DW-1, in cross, admitted that in some of the entries in the register, there was no signature of the Court or date was not mentioned therein. He was also suggested that it was not necessary that date and time in the entry of receipt of the report was being made promptly.

57. The first Investigating Officer CW-1 had categorically denied that he went to the spot of the incident prior to lodging of the FIR and the body was detained so as to make interpolation in the police papers. This witness had categorically denied that the body was detained at the police station and it was not sent for the postmortem on the same day. He categorically stated that the body was sent for the postmortem from the place of the incident in his presence. Police form No. 13 Exhibit Ka-26 had been shown to CW-1 in cross, and he categorically stated that Constable C154, Rakesh Kumar Dubey and HC 1485 Raj Karan Yadav took the body to the mortuary for postmortem. Constable No. 154 Rakesh Kumar Dwivedi had appeared in the witness box as DW-3. In his examination-in-chief, DW 3 categorically stated that he reached at the place of the incident at about 2:15 hours and when he reached, the S.O. Nand kishore Pandey was present with the force. He stayed at the place of the incident for about two hours and left the place with the dead body at 4:30 PM. It took him about two and a half hours to reach at the Mortuary, at about 7.00 PM. All papers, FIR, G.D, inquest and related papers were carried by him alongwith the dead body. After leaving the dead body at the Mortuary, he reached at the police lines, Fatehpur at about 8:35 PM on the same day, i.e. 21.4.2005 and the entry of his arrival had been mentioned therein. Thereafter, he went to the postmortem house on 21.4.2005 again. However, all the police papers were handed over to the postmortem doctor on the next date, i.e. on 22.4.2005 at about 11.00 AM. The postmortem doctor also proved that the dead body was identified by CP 154 Rakesh Kumar Dubey alongwith another constable and it was in a sealed state and he conducted postmortem on 22.4.2005 at around 11:30 AM.

58. PW-3 doctor, in his examination-in-chief, categorically stated that the dead body was brought for postmortem alongwith nine police papers. DW-3, Constable C154 Rakesh Kumar Dwivedi, in cross by the prosecution, had categorically stated that the papers such as Chitthi CMO, Chalan Laash, Photonash, and Chitthi RI were given to him alongwith other papers with the dead body. The dead body was sealed on the spot and the seal was intact till it was handed over to the doctor (PW-3).

59. No inconsistencies could be found in the statement of CW-1 the first Investigating Officer, PW-7 the second Investigating Officer, DW-3 the Constable who took the dead body to the mortuary and PW-3 the Doctor who conducted the postmortem. The time of lodging of the FIR at 13:15 hours is substantiated with the entry in the inquest about the time of commencement of the inquest and the statement of DW-3 about the time when he took the dead body for the postmortem from the place of the incident. The submission of the learned counsel for the appellant about the FIR being ante-time or being a result of deliberation is, therefore, liable to be turned down.

60. No inconsistency could also be pointed out by the learned counsel for the appellants in the reports prepared by the Investigating Officer about the place of the incident.

61. The main thrust of the submission of the learned counsel for the appellants to demolish the presence of eyewitness is that the informant PW-1 had turned hostile and there is doubt about the identity of another eyewitness PW2.

(II) About the presence of eyewitness:-

62. As noted above, PW-1 is the informant who was related to the deceased being his uncle. The place of the incident, lodging of the report in his handwriting and the manner in which the incident had occurred had been proved by PW-1 in his examination-in-chief, wherein he categorically stated that at the time of the incident he was going to the village from his PCO shop and he alongwith Anil Kumar Singh @ Hussan (PW2) and Sambhu Nath and other villagers had witnessed the incident. The examination-in-chief of PW-1 was commenced on 05.10.2006, and his statement remained intact even in the cross-examination recorded on 17.10.2006. About lodging of the FIR, PW-1 in his statement recorded on 17.10.2006 stated that he went to the police station in about 45 minutes of the incident and the written report was scribed at the place of the incident. He went to the police station in a Marshal Jeep and it took him around half an hour to reach there. Another witness Kuber who was accompanying the deceased did not go to the police station. About his presence on the spot, PW-1, in cross, stated that he went to his tubewell at around 10.00 AM on the date of the incident and the time of the incident being 11:30 AM was his estimation. The first fire was not seen by him and he heard only the sound, but he had witnessed the manner in which the accused persons cornered the deceased and killed him.

63. It seems that after conclusion of the statement of this witness on 17.10.2006, he was re-called under the order dated 16.07.2007 passed by the trial court. On recall, this witness had denied his presence on the spot at the time of the incident. However, even a perusal of the statement of PW-1 recorded after recall indicates that he had only refuted his presence on the spot but did not deny the factum of lodging of the FIR in his handwriting. The statement given by PW-1, after recall, was that he wrote the report of the incident on the pressure exerted by the Investigating Officer but he did not state that the report was dictated by the police. It may further be noted that when the statement of PW-1 was recorded on 05.10.2006 and 17.10.2006 he was in jail on an FIR lodged by the appellants side about the attempt to cause murder of the brother of appellant Rajendra Nath. After PW-1 was released from jail, he was recalled under the order passed by the trial court. From the subsequent statement of this witness, recorded on recall, under the order dated 16.7.2007, his testimony recorded on the previous occasions cannot be said to be effaced from the record. A clear suggestion was given to PW-1 by the prosecution that he was making a false statement on account of the criminal case lodged against him by the appellants and that he had entered into a compromise with the appellants.

64. The statement of PW-1 recorded on 5.10.2006 and 17.10.2006 when he came to the Court for the deposition from the jail is supported by the statement of PW-2, Anil Kumar Singh @ Hussan Singh, son of Uday Bhan Singh, who was mentioned as the eyewitness in the written report. PW-2 categorically stated that he was resident of the same village and on the date of the incident while he was going to the Court for a case fixed, while he was going to the tempo stand, when he reached the Bagh of Indal, he heard the sounds of fire and when turned around, he saw two motorcycles standing on the spot. Six people were chasing deceased Shailendra Singh @ Babloo and opened fire. PW-2 stated that they sat below the tree and witnessed the entire incident from the same place. In cross, PW-2 had given the orientation of the place wherefrom he had seen the incident and the reason for his presence on the spot. He had categorically stated that Bagh of Indal was adjacent to the field of Raja Ram towards west and there was a way going from the Bagh of Indal, diagonally at the West-South corner. The said way was connected to the way to the city which was East-West and the village road where met the main road, tempo stand was 20-25 meter from the said place. PW-2 further stated that he was going to the Court as the date was fixed in his case but he did not go to the Court on that date. It was categorically stated by PW-2 in his 161 statement that he stated in his 161 statement that he was going to the tempo stand by a shortcut way from the field of Raja Ram and did not remember whether he had mentioned the Rasta (way) through Indal ka Bagh or the date fixed in the Court.

65. Be that as it may, these minor inconsistencies in the statement of PW-2 recorded under section 161 Cr.P.C., which was put to him, in cross, does not demolish the presence of PW-2 on the spot as the orientation of the place namely the field of Raja Ram near Indal ka Bagh had been clearly explained by PW-2. From the perusal of the site plan, the statement of PW-2 about the location of Indal ka Bagh and field of Raja Ram being adjacent to each other is substantiated.

66. The presence of PW -2 on the spot of the incident has been termed as that of a chance witness. In this regard, it may be noted that it was a day time incident occurred around 11.00 AM and the passerby, the villagers crossing the way by chance, who had witnessed the incident when came forward to depose in the Court, their testimony cannot be discarded. PW-2 falls in the category of an independent witness, who neither had any enmity with the accused person nor had anything to do with the accused.

67. The testimony of PW-1 and PW-2 about the manner in which the incident had occurred, i.e. the deceased was killed is also substantiated from the medical report; the nature of injuries found on the person of the deceased. PW-3, the postmortem doctor had clearly narrated the cause of death being antemortem injuries caused by firearms. PW-2 categorically stated that he had witnessed the incident and clearly narrated the weapons in the hands of the accused persons. The suggestion given to him that he had enmity with accused Amit was categorically denied by PW-2. His testimony remained intact about the presence of all the accused persons on the spot. In cross for the accused Amit, PW-2 categorically stated that there were two motorcycles on the spot, one was of Abhinesh and another was of Amit. He stated that Amit was also carrying Tamancha (Countrymade pistol) and opened fire. PW-2 stated that he did not see the first fire and that whether it hit the deceased or not. However, the incident was witnessed by him when the accused persons cornered deceased Shailendra who was running in the field of Raja Ram. The site plan also indicated the place where the dead body was found and wherefrom blood stained and plain earth was collected by the Investigating Officer, being the field of Raja Ram. The presence of PW-2 Anil Kumar Singh @ Hussan Singh son of Uday Bhan Singh on the spot of the incident cannot be doubted. There is no discrepancy in the testimony of PW-1 recorded in his first examination and that of PW-2.

68. There is a discrepancy in the parentage of the witness Anil Kumar Singh @ Hussan Singh. In the FIR, Anil Kumar Singh @ Hussan Singh has been shown as son of Malkhan Singh. However, this witness namely PW-2 had not been confronted about this discrepancy. In the inquest, Anil Kumar Singh, son of Udaybhan Singh, resident of village, Ramua and Sambhu Kant Dwivedi son of Ramnath Singh had been shown as (inquest) witnesses. PW-2 categorically stated that he was going to the district court to attend his case along with Shambhunath. The identity of this witness, whose name has been mentioned in the inquest as Anil Kumar Singh son of Uday Bhan Singh cannot be doubted for any difference in his parentage in the FIR, moreso, when this discrepancy was not put to him during the course of his cross-examination. A further perusal of the case diary indicates that Anil Kumar Singh @ Hussan Singh son of Malkhan Singh, resident of village Ramua PS Thariaon District Fatehpur had been shown as an eyewitness whose statement was recorded in Parcha II-A by the Investigating Officer. The statements of only two eyewitnesses had been recorded by the Investigating Officer in the case diary, one was Anil Kumar Singh @ Hussan Singh son of Malkhan Singh and Sambhu Nath Dwivedi son of Ram Nath Dwivedi. Neither the Investigating Officer nor this witness PW-2 were confronted about the identity of this witness (PW-2), relating to his parentage as indicated in the FIR, inquest and the deposition in the Court, though PW-2 was confronted with the previous statements under Section 161, recorded by the Investigating Officer.

69. The effort of the learned counsel for the appellants to impeach the identity of PW-2 by showing discrepancies in the name of his father, therefore, cannot be given undue weightage. The statement of Anil Kumar Singh @ Hussan Singh as eyewitness under Section 161 CrP.C. was recorded on 22.4.2005 by the Investigating Officer PW-7, who had categorically stated that he started investigation with Parcha No.II A on 22.4.2005 and recorded the statement of eyewitnesses Anil Kumar and Sambhu Nath. This statement was also put to PW-2 during his cross-examination to confront him. In absence of any suggestion to the Investigating Officer of the eyewitness PW-2, being Anil Kumar Singh @ Hussan Singh son of Malkhan Singh as indicated in the FIR and in the statement under section 161 CrP.C. and Anil Kumar Singh son of Uday Bhan Singh, the inquest witness and eyewitness examined as PW-2, the contention of the learned counsel for the appellants to impeach the credibility of the eyewitness PW-2, cannot be entertained. The testimony of Anil Kumar Singh @ Hussan Singh, which is consistent with the testimony of PW-1 the informant, cannot be doubted, nor can be discarded on the contention of the learned counsel for the appellants that the eyewitness, who was mentioned in the FIR and who had been examined as PW-2 were two different persons.

70. DW-4, Sambhu Nath, son of Ram Nath was an eyewitness mentioned in the FIR and examined by the Investigating Officer as eyewitness. He admitted in his examination-in-Chief, that he was with Anil Kumar Singh @ Hussan Singh and had reached the spot. From the testimony of DW-4, the date and time of the incident could not be disputed, though he (DW-4) tried to assert that the police had reached the spot at around 08.30 to 09.00 PM and the inquest was conducted in the village at about 09.00 PM. This witness had identified his signature on the inquest report Exhibit Ka-'24'. He was also confronted about the time of the inquest as 03:45 PM as indicated therein but stated that he did not sign the inquest at the said time. From the testimony of PW-4, the defence witness, the presence of PW-1 and PW-2, on the spot, could not be disputed. DW-4 being the inquest witness is also substantiated from his testimony. The statement of DW-4 Shambu Nath son of Ram Nath rather supports the testimony of the prosecution witnesses PW-1 and PW-2 about the date, time and place of the incident when DW-4 admitted his signature on the inquest report, which records the time of completion of the inquest at about 03.45 hours. This time is also supported with the testimony of other witnesses discussed above. The statement of PW-2 that he was with Sambhu Nath son of Ram Nath when he reached near the place of the incident is, thus, proved to be correct.

71. The statement of DW-4, thus, does not demolish the presence of eye witnesses on the spot rather his version supports the case of the prosecution and PW-2 Anil Kumar Singh @ Hussan Singh being an eyewitness.

72. This is a case of eyewitness account. The FIR was a prompt report. The case of the prosecution is supported by the statement of two eyewitnesses, though one of them later turned hostile, but his testimony recorded at the first instance cannot be discarded on account of him having turned hostile in the re-examination. From a consideration of the subsequent statement of PW-1 in the re-examination, it is evident that he had resiled from his previous statement about his presence, on account of fear or compromise with the assailants/appellants herein.

73. In the matter of appreciation of evidence of a hostile witness, the settled principle of law is that merely because a witness is declared hostile, his entire testimony cannot be excluded from consideration. In appropriate case, the Court can rely upon the part of testimony of such a witness, if that part of deposition is found to be credible. Merely because the Court gave permission to the public prosecutor to cross examine his own witnesses describing him as hostile witness does not completely efface his evidence. There is no legal bar to base the conviction upon the testimony of such witness. However, the Court has to be cautious while appreciation of evidence of a hostile witness which is to be subjected to close scrutiny. Any portion of evidence consistent with the case of the prosecution or defence version, can be relied upon. Reference may be made to the decision of the Apex Court in Bhagwan Singh Vs. The State of Haryana4; Gura Singh Vs. State of Rajasthan5; Atmaram & others Vs. State of Madhya Pradesh6; Haradhan Das Vs. State of West Bengal7; Rajesh yadav & another Etc. Vs. State of U.P8.

(III). Withholding of Prime Witness Kuber:-

74. Lastly, on the contention of the learned counsel for the appellants that the prime witness of the incident Kuber Singh son of Kartar Singh had been deliberately withheld by the prosecution, suffice it to note that the prosecution cannot force any witness to appear in the Court for deposition. It has come in the statement of PW-2 recorded on 06.12.2006 that Kuber, a resident of the same village was with the deceased, and he ran away and was hiding at the time of the trial. It is evident from the record and admitted case of the defence there was old enmity between the accused persons and the deceased. A witness of the incident of a daylight murder, who was well acquainted with the fact situation of the case, may not come forward as reaction of a witness of such a ghastly crime differs from person to person. The Apex Court in Leela Ram (D) Through Duli Chand vs State Of Haryana & Anr,9 having noted the manner in which the ocular account of witnesses are to be appreciated, the manner in which credibility of witnesses is to be impeached and noted that there cannot be any set pattern or uniform rule of human reaction. The Court shall have to bear in mind that different witnesses react differently under different situations, some may become speechless, some other run away from the scene, and yet there are some who may come forward with courage, conviction and belief that the wrong should be remedied.

75. In the instant case, two eyewitness Anil Kumar Singh @ Hussan Singh and Kuber Singh son of Kartar Singh were such witnesses who had reacted differently under the same situation. Anil Kumar Singh @ Hussan Singh came forward to record his testimony and categorically proved his presence on the spot. Whereas Kuber Singh son of Kartar Singh who was accompanying the deceased ran away from the scene and kept hiding so that he may not be forced to give testimony in the Court.

76. As regards the ocular account of two witnesses namely Deshraj Singh, and Anil Kumar Singh (PW1 & PW2), there is no discrepancy in their narration of the incident. No material, inconsistencies or improvement could be pointed out from the former statements of these witnesses. Both the eyewitnesses produced in the Court by the prosecution are consistent about the occurrence and involvement of the accused person in the incident.

77. In view of the above discussion, no infirmity could be found in the judgement of conviction of the appellants under Section 148, 302/149 and 506 IPC passed by the trial court.

(IV).Recoveries and conviction under the Arms Act:-

78. As regards the judgement of conviction under Section 25 Arms Act, the recovery of illegal arms had been proved by the prosecution. Nothing much had been argued by the learned counsel for the appellants to assail the recovery. The prosecution witnesses had proved the recovery and the report lodged in relation to the recovery of the firearm and the investigation made by the concerned police officer. The FSL report Exhibit Ka-'27' with regard to the weapons recovered from the possession of appellant Rajendra Nath proved the use of firearms in the incident. The cartridge shell (empty cartridge) recovered from the possession of Rajendra Nath tallied with the weapon recovered from his possession. Similar was the situation with regard to the recoveries of murder weapons made at the instance of appellants Abhinesh and Dinesh @ Lambri. The recovery of weapons at the instance of accused appellants Abhinesh and Dinesh @ Lambri was made from a place where those weapons were concealed and they were in the exclusive knowledge of these accused persons. No infirmity could be pointed out in the recovery of weapons at the instance of the aforesaid two accused. The FSL report also proved the recovered weapons being murder weapon. No other discrepancy could be pointed out. The conviction of three appellants Abhinesh, Dinesh @ Lambri and Rajendra Nath under Section 25 Arms Act, therefore cannot be said to suffer from any error of law.

(V) End note:-

Enmity- Motive:-

79. Last but not the least, the enmity of the appellants with the deceased is proved by the fact that in the previous incident of murder of the father of the deceased, FIR was lodged by deceased Shailendra Pratap Singh and he was an eyewitness (a prime witness) of the incident. The testimony of the deceased in the case of murder of his father had not been recorded by the time, his murder had been committed.

(VI) Conclusion:-

80. The judgement and order dated 23.07.2009 passed by the Additional Sessions Judge, Court No.2 Fatehpur in S.T. No.521 of 2005, arising out of Case Crime No.42 of 2005 under Section 148, 302/149, 506 IPC, P.S. Thariaon, District Fatehpur; S.T. No.522 of 2005 arising out of Case Crime No.46 of 2005 under Section 25 Arms Act, P.S. Thariaon, District Fatehpur; S.T. No.523 of 2005 arising out of Case Crime No.47 of 2005 under Section 25 Arms Act and S.T. No.524 of 2005 under Section 25 of the Arms Act, is hereby affirmed.

81. The five connected appeals are, accordingly, dismissed.

82. The five appellants namely Amit Kumar, Hari Om, Rajendra Nath, Dinesh @ Lambari and Avinesh are in jail.

83. Certify this judgement to the trial Court immediately for compliance.

84. The compliance report be submitted through the Registrar General, High Court, Allahabad.

		        (J.J. Munir, J.)        (Sunita Agarwal, J.)
 

 
Order Date:-13.04.2023
 
Himanshu