Anil Kumar Ahirwar vs State Of U.P.
2023 Latest Caselaw 23530 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 


A.F.R.
 
Neutral Citation No. - 2023:AHC:173142-DB
 
Court No. - 46
 

 
Case :- CRIMINAL APPEAL No. - 4894 of 2005
 

 
Appellant :- Anil Kumar Ahirwar
 
Respondent :- State of U.P.
 
Counsel for Appellant :- S.N. Gupta,Bhole Ram,Mithilesh Kumar Mishra,Mohd. Farooq,N.I.Jafri,Sharad Chandra Singh,Sukhvir Singh
 
Counsel for Respondent :- Govt. Advocate,M.C. Chaturvedi,M.D.Mishra
 

 
	Connected with 
 

 
Case :- CRIMINAL APPEAL No. - 5303 of 2005
 
Appellant :- Chhotoo Pilot @ Deepak Nai
 
Respondent :- State of U.P.
 
Counsel for Appellant :- G.S. Hajela,G.P. Dikshit,Kamal Kishor Mishra,Mohd.Farooq,Sharad Chandra Singh
 
Counsel for Respondent :- Govt. Advocate,M.D. Mishra,N.I. Jafari
 
		And
 
Case :- CRIMINAL APPEAL No. - 5068 of 2005
 
Appellant :- Satya Narain Shukla
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Pashali Solanki,K.S. Shukla,M.K.Mishra,Rajul Bhargava,Satish Trivedi
 
Counsel for Respondent :- Govt. Advocate,M.D.Misra
 

 
		And 
 
Case :- GOVERNMENT APPEAL No. - 983 of 2006
 
Appellant :- State of U.P.
 
Respondent :- Sonu Shukla Alias Abhishek And Others
 
Counsel for Appellant :- Govt. Advocate,Murlidhar Mishra
 
Counsel for Respondent :- Anhubhav Trivedi,Apul Mishra,K.K. Mishra,Mithlesh Kr.Mishra,Nitin Kumar Mishra,P.N.Mishra,Satish Trivedi,V.K. Mishra
 

 
Hon'ble Ashwani Kumar Mishra,J.

Hon'ble Syed Aftab Husain Rizvi,J.

1. These four appeals are listed together, as they arise out of a composite judgment and order dated 27.10.2005, passed by Special Judge (E.C. Act), Jalaun at Orai, in Sessions Trial No.199 of 2004 (State Vs. Anil Kumar Ahirwar and others), arising out of Case Crime No.166 of 2004, Police Station Konch, District Jalaun, and in Sessions Trial No. 200 of 2004 (State Vs. Anil Kumar Ahirwar), arising out of Case Crime No.167 of 2004, under Section 27 of the Arms Act, Police Station Konch, District Jalaun, whereby the accused appellant Anil Kumar Ahirwar has been convicted and sentenced to life imprisonment and fine of Rs.5,000/- under Section 302 IPC; seven years rigorous imprisonment under Section 307 read with Section 34 IPC; three years rigorous imprisonment under Section 27 of Arms Act; whereby accused appellant Chhotu Pilot alias Deepak Nai has been convicted and sentenced to life imprisonment and fine of Rs.5,000/- under Section 302 read with Section 34 IPC; seven years rigorous imprisonment under Section 307 IPC; and whereby accused appellant Satya Narain Shukla has been convicted and sentenced to life imprisonment and fine of Rs.5,00,000/- under Section 302 read with Section 114 IPC; three years rigorous imprisonment under Section 120 IPC. All punishments are to run concurrently. On failure to deposit the fine to undergo additional imprisonment for six months each accused.

2. Criminal Appeal No.4894 of 2005 has been filed by accused appellant Anil Kumar Ahirwar, whereas the connected Criminal Appeal No.5303 of 2005 has been instituted by Chhotu Pilot @ Deepak Nai. State has also preferred Government Appeal No.983 of 2006, insofar as two accused namely Sonu Shukla alias Abhishek and Paplu @ Avanish Shukla have been acquitted by the trial court. Criminal Appeal No.5068 of 2005 was filed by accused Satya Narain Shukla, who has already died and, consequently, his appeal has already abated.

3. The prosecution case is based upon a written report made by Pramod Kumar Shukla (PW-1), scribed by Vipin Shukla, as per which on 19.5.2004 the informant and his elder brother Ashok Kumar Shukla, Chairman, Nagar Palika Parishad Konch and his cousin brother Santosh Kumar Shukla had gone to take part in the last rites of their neighbour Amar Chandra Agrawal. After the cremation was over, they were returning at about 10.30 in the morning and when they reached near Kanchad Baba Mandir at Tilak Nagar, Konch, an unknown person came from behind and took out a half barrel gun and shot Ashok Shukla on his head from behind. The assailant was apprehended on the spot by the cousin of informant, namely Santosh Shukla, and other persons present on the spot pounced on him and he was assaulted. Gun of the unknown assailant was snatched. It was only then that the second accused fired with an intent to kill and in the process Vinod Agrawal son of Babulal, Santosh Shukla son of Uma Shankar and Laxmi Narain Tiwari son of Mathura Prasad sustained firearm injuries. The companion of the main assailant tried to free the apprehended accused and when members of public chased him, the second assailant fled from the spot, and that the informant can recognize him. The dead body of Ashok Shukla was lying on the spot. The main assailant has also been apprehended alongwith his half barrel gun. It was alleged that deceased has been done to death through contract killers by paying them money. On the basis of such written report (Ex.Ka-1), the first information report came to be lodged in Case Crime No.166 of 2004, under Section 302, 307 IPC at about 11.20 am on 19.5.2004. The place of incident from the police station was about two kilometres. The police came on the spot and prepared a recovery memo of half barrel 12 bore damaged gun, which has been exhibited as Ex.Ka-2. The investigating officer also collected plain earth and bloodstained earth from the place of occurrence (Ex.Ka-19). The inquest commenced on the same day at 11.50 and concluded at 12.50. There is apparently an overwriting in the inquest on recording of Section 307 while referring to the case crime number. As per the inquest witnesses the deceased died due to gunshot injury and for ascertaining the correct cause of death the postmortem was required to be conducted. Consequently, postmortem has been conducted of the deceased at 2.00 pm on 19.5.2004. The deceased was around 50 years old and the time since death is determined as 6 hours. The deceased was of average built body and the cause of death is shock and haemorrhage on account of following ante-mortem firearm injuries:-

"(1) Entry firearm wound of 3 cm x 2.5 cm present on the left side of skull 4cm lateral to left eye brow. Temporal bone broken. Tatooing and ragged tear seen. Blackening is also present.

(2) Exit firearm wound of 16cm x 9 cm present on left temporo-occipital area of skull and left posterio-lateral area of face and neck, brain matter and blood coming out. Temporal bone broken and left mandible break. Left ear completely missing and separately brought with dead body. Meninges ruptured wound is 9cm deep.

(3) Abrasion red colour 2.5 cm x 1cm present on right side of forehead 2.5 cm above from right eye brow."

4. It transpires that the injured Vinod Kumar Agrawal, aged about 35 years, was examined at District Hospital, Jalaun on 19.5.2004 itself and following injury has been found on him:-

"LW 1 cm x .5 cm x skin deep on the Rt. side of neck 9 cm below the Rt. ear. Margins inverted. Abraded collar present on anterior aspect. Injury u.o. advise X-ray."

5. Similarly, Santosh Kumar Shukla has also been examined at 2.00 pm on 19.5.2004 at District Hospital and following injury has been found on him:-

"1. Fire arm injury .75 cm x .75 cm x contusion deep on the medial site of Rt. knee. Margins inverted, abraded collar present. Tatooing present on the thigh & calf area. Kept u.o. advise X-ray."

6. Injuries of Laxmi Narain have also been examined at 2.10 pm on 19.5.2004 at the District Hospital, which is extracted hereinafter:-

"Abraded contusion 1.5 cm x .5 cm on the back of Lt. side chest. 7 cm below the crest Lt. Shoulder jt. lower margin shows eversion with abraded collar while rest shows everted margins. Kept u.o. advise X-ray localise any pellet."

7. All the three injured were examined by the emergency medical officer at Community Health Centre, Konch at Jalaun and the report, in that regard, has been exhibited as 99Kha. The report records that unknown assailant apprehended at the spot has been brought by the police in a Jeep. The injured assailant was later referred to District Hospital, Jhansi, where he was admitted in the Medical College, Jhansi and was ultimately discharged on 23.5.2004. The assailant was formally arrested thereafter.

8. The investigation proceeded further and ultimately a chargesheet came to be submitted on 28.6.2004, under Section 302, 307, 34 and 120-B IPC in Case Crime No.166 of 2004 against 5 accused, namely Anil Kumar Ahirwar, Chhotu Pilot @ Deepak Nai, Sonu Shukla alias Abhishek, Paplu @ Avanish Shukla and Satya Narain Shukla. Chargesheet also came to be submitted in Case Crime No.167 of 2004, under Section 25/27 of the Arms Act against Anil Kumar Ahirwar. The Magistrate took cognizance of the aforesaid two chargesheets and committed the case to the court of sessions, where two session trials were registered i.e. Sessions Trial No.199 of 2004 and Sessions Trial No.200 of 2004 in respect of offence under the Arms Act.

9. It is worth noticing, at this stage, that after submission of chargesheets against the accused, PW-3 and PW-4 submitted their affidavits before the Investigating Officer stating that on the date of incident accused Anil Kumar Ahirwar and Chhotu Pilot had come to the house of Satya Narain Shukla in the morning where a conspiracy was hatched to eliminate Ashok Shukla taking advantage of rush and crowd during cremation ceremony. PW-3 is Ram Babu Verma, who apparently was looking after the cattle of accused Satya Narain Shukla, whereas PW-4, Smt. Vimla Devi, used to attend to the domestic work in the house of Satya Narain Shukla. The statement of these two witnesses was then recorded by the Investigating Officer under Section 161 Cr.P.C. and they have been produced as witnesses in support of the prosecution case.

10. Charges were framed by the court of sessions separately against the accused on 18.9.2004. Accused Satya Narain Shukla, Sonu Shukla and Paplu Shukla have been charged of offence under Section 120-B IPC as well as Section 302 read with section 114 IPC in Sessions Trial No.199 of 2004, whereas accused Anil Kumar Ahirwar has been charged of offence under Section 27 of the Arms Act in Sessions Trial No.200 of 2004. Accused Anil Kumar Ahirwar has also been charged under Section 302 IPC as well as Section 307(34) IPC and accused Chhotu Pilot has been charged of committing offence under Section 307 IPC as well as Section 302(34) IPC, both, in Sessions Trial No.199 of 2004. Charges were read out to all the accused, who denied their implication and demanded trial.

11. In addition to above, the prosecution in order to establish the guilt of the accused adduced documentary evidence in the form of FIR as Ex.Ka-4; written report as Ex.Ka-1; recovery memo of half barrel Gun as Ex.Ka-2; recovery memo of bloodstained and plain earth as Ex.Ka-19; injury report of Vinod Kumar Agrawal as Ex.Ka-15; injury report of Santosh Kumar Shukla as Ex.Ka-16; injury report of Laxmi Narain as Ex.Ka-17; postmortem report as Ex.Ka-14; report of forensic science laboratory dated 3.1.2005 as Ex.Ka-23; report of forensic science laboratory dated 21.2.2005 as Ex.Ka-24; panchayatnama as Ex.Ka-6; charge-sheet in Case Crime No.166 of 2004 as Ex.Ka-20; charge-sheet in Case Crime No.167 of 2004 as Ex.Ka-21; and site plan with Index as Ex.Ka-18.

12. PW-1 is Pramod Kumar Shukla, who is the informant and has supported the prosecution case, according to which accused Anil Kumar Ahirwar fired on the deceased from behind by his half barrel gun, whereas the other accused namely Chhotu Pilot fired in defence of Anil Kumar Ahirwar and the bullet hit the three injured. This witness has also supported the prosecution case, as per which there was a property dispute between the deceased and Satya Narain Shukla, which is required to be elaborated, at this stage. As per the prosecution, PW-2 Brijmohan owned 8 bigha fertile land in the village. This land surreptitiously was got exchanged by accused Satya Narain Shukla in favour of his wife Smt. Sita Devi. The deceased came to the aid of Brijmohan and got an agreement to sale executed in favour of Pradeep Shukla and Awadh Kishor Niranjan in respect of the property, which has been obtained by the main accused Satya Narain Shukla. This apparently was the cause of discord between Satya Narain Shukla and the deceased Ashok Kumar Shukla. According to prosecution it is for this reason that Satya Narain Shukla arranged for contract killers, namely Anil Kumar Ahirwar and Chhotu Pilot and it was Anil Kumar Ahirwar, who in pursuance of such conspiracy shot dead the deceased. Though this witness has been elaborately cross-examined but he has remained firm in his deposition.

13. Brijmohan has appeared as PW-2 and has supported the prosecution case with regard to conspiracy being the cause of the killing of deceased.

14. Ram Babu Verma has been produced as PW-3. His testimony is also in support of the prosecution plea of conspiracy. PW-3 was engaged by the accused Satya Narain Shukla for looking after his cattle and he claims to have heard the accused Satya Narain Shukla talking to the two main accused Anil Kumar Ahirwar and Chhotu Pilot early in the morning hours of the date of incident. The witness apparently was arranging fodder for cattle when he overheard the accused Satya Narain Shukla that this is a good opportunity to eliminate the deceased as there would be a lot of rush during cremation. The witness also alleges that the gun and certain money were provided to the contract killers by Satya Narain Shukla as well as his sons. Similar stand has been taken by the PW-4 Smt. Vimla Devi, who also was working as domestic help with the accused Satya Narain Shukla. It is worth noticing, at this stage, that both PW-3 and PW-4 were introduced by the prosecution almost two and a half months after the filing of the chargesheets. As per the prosecution these two witnesses gave affidavits stating that they had heard the above conversation on the date of incident and it is thereafter that their statement was recorded under Section 161 Cr.P.C. PW-3 and PW-4 have been cross-examined, particularly on the aspect of delayed disclosure made to the investigating officer with regard to the incident in question. The two prosecution witnesses have explained the delay on the ground that Satya Narain Shukla had threatened them as PW-3 had heard him talking to the main contract killers and a threat was extended that he would be eliminated if he would disclose such facts to anybody. It is for this reason that these witnesses left the village for almost two and a half months and it is only thereafter when they came to know that Satya Narain Shukla and his two sons have been arrested that they could muster enough courage to come to the police what they have heard. In the cross-examination these two witnesses, however, could not disclose as to when they came to know through newspaper about the arrest of the accused. In reply to specific question posed by the defence, PW-3 has stated as under:-

"इनका पहले से डर है यह बदमास किस्म के है इसलिये मैंने किसी से इस षडयन्त्र के बारे में नहीं बताया। मैं यह अक्सर सुनता था कि अशोक शुक्ला से सत्यनारायण का जमीन-अमीन का विवाद चलता है। इस घटना के सभी मुलजिम कितने दिन में गिरफ्तार हो गये थे यह मुझे जानकारी नहीं है। अखबार जिससे मुझे यह जानकारी हुयी कि सब मुल्जिम पकड गये मैंने स्वयं पढा था। पढने के दूसरे दिन हम कोंच चले आये। यह घटना मई की है। मैं नही बता सकता कि 5 जून को पप्लू व सोनू गिरफ्तार हुये थे या नहीं यह समाचार 6 जून को निकला या नहीं मैं नहीं जानता था। कौन-कब गिरफ्तार हुआ मैं नहीं बता सकता। वह अखबार जिसको पढकर में कोंच आया किस महीने में मैंने पढा याद नहीं। सत्यनारायण के यहां मैं नौकरी करता था इसका कोई लिखित प्रमाण मेरे पास नहीं है। यह कहना गलत है कि मैंने झूठ बयान दिया है और प्रमोद शुक्ला ने लालच देकर गवाही दिलवायी। "

15. Trial court has doubted the credibility of PW-3 and PW-4, primarily on the ground that their delayed disclosure is not explained. Adverse inference has also been drawn of the fact that affidavit etc. at their instance were got prepared much later and their version is exactly in accord with the prosecution case.

16. PW-5 is Mahendra Singh Yadav, who claims to be a witness of the incident. PW-5, however, is not referred to in the FIR and his statement has been recorded under Section 161 Cr.P.C. after about two months of the incident. This witness has supported the prosecution case. PW 5 has identified the accused in Court. He has explained the delay occurred in recording of his statement on the ground that accused were not arrested. He has further stated that the incident has not been narrated by him to anyone except his wife. In cross-examination PW 5 has been confronted with his previous statement under Section 161 Cr.P.C. wherein contradictions were shown with regard to the manner in which he has seen the incident. He had, however, not disclosed the factum of recovery of weapon of offence to the I.O. PW 5 has admitted that he works as a labourer. A suggestion has been given to him that he works in transport company of Pramod Shukla who was inimical to the accused which he denied. He has also been confronted with the fact that statement of PW 5 was recorded along with Ram Babu and Vimla on the same day. He has also admitted that clothes worn by the deceased have not been disclosed to the I.O. by him, unlike his statement made in the Court. He has also stated that the I.O. has not recorded his statement at his house, but he has himself gone to the police station for recording of his statement. As per him, the deceased had sustained firearm injury caused to him by accused Anil Kumar Ahirwar. He has also stated that the firing was made from a close distance. This witness has implicated two sons of Satya Narain Shukla on the ground that when they started assaulting the deceased, he retorted as to why he is being beaten by them, but this statement has not been given by him to the police under Section 161 Cr.P.C.

17. PW 6 Laxmi Narain Tiwari is the injured witness who has supported the prosecution case. He has identified accused Anil Kumar Ahirwar, as a person, who had fired on the deceased, due to which he died. He has further stated that after the deceased was fired, his companion with an intent to kill them fired on account of which bullet injuries were caused to Santosh Shukla. When the public tried to apprehend other accused, he fired again which hit Vinod Kumar Agrawal. Thereafter, the other companion fled away. The other companion Chhotu Pilot has also been identified by the victim. He has further stated that his treatment was not properly done at Konch. Therefore, he was sent to District Hospital where he was medically examined. He claims to have sustained firearm injuries on his shoulders. In the cross-examination, this witness has stated that neither he has gone to Jhansi nor has he got his X-ray conducted at Konch. He continued to take medicines and got injections. No report was made to the police station. This witness has been examined by the I.O. after almost 40 days of the incident. He has further stated that he did not identify the accused on the spot nor any disclosure was made by him to the police about it. He has also admitted that the name of unknown accused had been published in newspaper 2-3 days later and then he came to know his identity. He has also stated that in his statement to the police, he has informed that the accused fired from the east. He has not stated that other accused was carrying double barrel gun and had fired twice from it. He has denied the suggestion that the injuries sustained by him had been manipulated and, in fact he had not sustained any injury. He has also stated the face of the accused was not muffled.

18. PW 7 is the other injured witness. He has also supported the prosecution case. He,too, has stated that though he was referred to Jhansi for treatment but he had not visited Jhansi and his X-ray was done at Orai at Jalaun itself. He denied the suggestion that no X-ray was conducted and it was merely advised. He has denied the suggestion that injuries had been manipulated on him. This witness has also identified two accused in the Court. His statement under Section 161 Cr.P.C. was recorded after one and half months of the incident.

19. PW 8 is Kamal Ahmad who alleges that extra-judicial confession was made by the accused before him but subsequently has stated that Satya Narain Shukla has made extra judicial confession of his involvement before him on 24.05.2004 at about 5.30 in the evening. Two sons of Satya Narain Shukla, namely, Abhishek alias Sonu and Paplu were also with him. In cross-examination PW 8 has disclosed that he knew the deceased for last 8 1/2-9 years and he is a political person. Satya Narain Shukla has been visited 4-5 times before but he could not disclose the dates of his visits. Though this witness has been elaborately cross-examined at various aspects, including the fact that name of the accused had been published in Dainik Jagran, Jhansi on 24.05.2004, but he claimed ignorance.

20. PW 9 Prem Sagar is Head Constable who has proved chik/F.I.R. PW 10 Rajeev Kumar Mishra has proved the inquest. PW 11 Dr Mani Ram is the autopsy surgeon who has proved the post mortem report, as per which, the deceased was around 80 years of age and he would have died about six hours prior to the holding of the post mortem at 2.00 p.m. on the day of the incident. He has also explained that the deceased had eaten food 4-5 hours prior to the incident. The deceased died homicidal death. In the cross-examination, the doctor has stated that it was possible that the deceased has eaten food at 12 in the night and the incident could have occurred around 6.00 in the morning. He has also found blackening but no foreign body was found.

21. Dr J.P. Bhattacharya has appeared as PW 12 and has proved the injuries of Vinod Kumar Agrawal who was brought to him by the police constable. As per him, the injuries caused to Vinod Kumar Agrawal was of firearm and was fresh in nature. He has also proved the injuries caused to Laxmi Narain. In the cross-examination, he has admitted that no supplementary medical report on the basis of X-ray was given by him.

22. PW 13 is Constable Ram Charan who had taken the body of the deceased for post mortem examination. PW 14 is SI Jai Narain Verma who was first I.O. in the present case. He has proved recovery of firearm from the accused. He has proved the site-plan and has also taken blood-stained and plain earth, etc. He has explained various steps taken during the investigation by him. As per him, half barrel gun was given to him by Pramod Shukla and he had not found the accused Anil Kumar Ahirwar on the spot at that time. By then, accused Anil Kumar Ahirwar had already been taken by Constables Amrit Lal and Sohan Lal to C.H.C. Konch. This witness has been elaborately cross-examined. In his cross-examination, he has stated that the statement of Pramod Shukla was recorded on 28th May, 2004. He has proved the recovery of firearm. About other accused Chhotu Pilot, the witness had stated that his name figured on 23.05.2023 during investigation and he came to know of parentage and address of the accused on that date itself. However, he made no attempt to visit his house at Lalitpur or to secure his arrest. No permission was sought from the police authorities for his arrest. He has also admitted that he has not visited the house of Satya Narain Shukla nor had he visited the site of the incident as per deposition made by PW 4. This witness has denied the suggestion that the version of accused having been fainted or being kept in hospital have been subsequently manipulated.

23. PW 15 is Constable Amrit Lal who took the injured accused to the hospital. PW 16 is Radhey Shyam Trivedi who is the second I.O. and has proved charge-sheet. He was posted at Kotwali Konch as officiating Inspector on 26.05.2004. This witness has stated that informant Pramod Kumar Shukla met him near railway crossing on 28.05.2004 at about 4 p.m. On his pointing out the other accused Chhotu Pilot has been arrested at 04.10 p.m. The second statement of the informant was recorded on 29.05.2004. Satya Narain Shukla, accused was arrested on 11.06.2004. He has also recorded statement of accused Sonu alias Abhishek and Paplu Shukla on 16.06.2004. In the cross-examination, this witness has stated that he was informed by Pramod Shukla that he saw the other accused at quarter to four at Police Station Konch, sitting on the bench. The witness has denied the suggestion that in fact Chhotu Pilot was arrested on 27.5.2004 itself and that he was fraudulently shown to have been arrested on 28.05.2004.

24. PW 17 is Dr Rajendra Nath who was Professor and Orthopaedic Surgeon at Medical College, Kanpur. In his examination-in-chief, he has stated that while posted at Medical College, Kanpur as Medical Officer, he examined Santosh Kumar Shukla who had sustained gun-shot injury in his right knee. He had operated him and that the injuries could have been caused to him at 10.30 on 19.05.2004. In the cross-examination, the witness has stated that no reference regarding it being medico-legal case was received. The accused,however, was treated as medico-legal case. The bullet extracted from the injured was kept in an envelop and sent to Superintendent of Police, Kanpur. He has also stated that the nearest police station Swaroop Nagar was informed.

25. On the basis of above evidence led by the prosecution the statement of all the accused have been recorded under Section 313 Cr.P.C. Accused Anil Kumar Ahirwar has denied his implication. As per him, he has been falsely implicated under the pressure of first informant due to enmity. He has lastly stated that he is resident of Village Salaiya and used to come to Konch for doing marketing while his father was in service at Lalitpur. He has alleged that he was returning to his village when police along with some public persons forcibly apprehended him; assaulted him and kept in illegal confinement for 3-4 days; and thereafter, implicated him falsely in this case. Accused Chhotu Pilot has also denied his implication and that he was arrested on 27.05.2004 at 10.00 a.m. from Lalitpur and was handed over to Konch police. His father has also sent a telegram in that regard. Accused Satya Narain Shukla has already died, therefore, there is no need to refer his statement under Section 313 Cr.P.C. Abhishek alias Sonu has stated that there was no enmity between his father and the deceased on account of agricultural land. He has denied that PW 3 was working for his father or that PW 4 was domestic aide in his house. He has stated that with an intent to grab his property, his brother and father have been falsely implicated.

26. On behalf of defence, Ram Gulam Sen has been produced as DW 1 who is father of accused Chhotu Pilot. He claims that on 27.05.2004 at 10 two constables came and apprehended his son. He claims that he visited the police station at 11 a.m., again at 6 p.m. and thereafter at 11 p.m. when he was informed that his son was taken by the Konch police. In the cross-examination, the witness has disclosed that he works as peon at Nagar Palika, Lalitpur. He denied the suggestion that his son is involved in criminal activities. The defence has produced Devi Prasad as DW 2 has has also proved the factum of arrest of accused, Chhotu Pilot on 27.05.2004. Dr Mani Ram has been produced as DW 3 who claims that an unknown person was brought to him by the police station. He was not conscious and he referred him to higher medical centre. This witness has identified Anil Kumar Ahirwar, as the person, who had been examined by him on 19.05.2004 itself. Shailendra Tiwari has been produced as DW 4 who is record keeper in the office of Superintendent of Police, Lalitpur. This witness has turned hostile. DW 5,Tayyab Ali is Junior Assistant in the office of Commissioner, Jhansi who has acknowledged the receipt of telegram in the office of Commissioner, Jhansi on 28.05.2004 about the applicant's son being harassed by the police.

27. On the basis of evidence so led during course of trial, the court below has come to the conclusion that on account of enmity about landed property, the deceased has been done to death, pursuant to the planned conspiracy hatched up by Satya Narain Shukla and his two sons, wherein two accused Anil Kumar Ahirwar and Chhotu Pilot have been engaged as contract killers, and Anil Kumar Ahirwar not only killed the deceased, Ashok Kumar Shukla but his companion also caused firearm injuries to other three injured. A finding has been returned that the prosecution has established its case beyond reasonable doubt and consequently accused appellants have been convicted and sentenced. Thus aggrieved, appeals are before this Court, challenging the impugned judgement and order passed in Sessions Trial Nos. 199 of 2004 and 200 of 2004.

28. The trial court, however, has acquitted the accused Abhishek @ Sonu and Paplu Shukla as the version of their involvement on the basis of testimony of P.W.-3 and P.W.-4 was not found credible and reliable to the extent of their acquittal by the trial court, the State in its appeal challenged such findings.

29. On behalf of the accused-appellant Anil Kumar Ahirwar, it is submitted that the accused-appellant has been falsely implicated in this case and neither the prosecution has succeeded in proving his arrest at the spot nor his role has otherwise been established on the basis of alleged recovery of fire-arm from him. It is further submitted that the prosecution witnesses have been examined after inordinate delay. It is also argued that the accused-appellant has otherwise no criminal history and the plea of is being contract killer, is not substantiated. Learned counsel for the accused-appellant further argued he has absolutely no motive or concern with the commissioning of the offence and therefore, his conviction and sentence is impermissible.

30. On behalf of accused-appellant Anil Kumar Ahirwar, it is stated that the injuries of the deceased Ashok Shukla do not match with the weapon assigned to the accused and therefore, the implication of accused-appellant Anil Kumar Ahirwar cannot be sustained. In support of such contention, learned counsel for the accused-appellant has placed reliance upon the judgment of Supreme Court in Mohinder Singh Vs. State; AIR 1953 SC 415; Ram Narayan Singh Vs. State of Punjab 1975 (4) SCC 497; Criminal Appeal No.2641 of 2012 (Shivendra Singh @ Bhola Vs. State of U.P.), Criminal Appeal No.612 of 1996 (Jagat Pal & Others Vs. State of U.P.) as also a recent decision of this Court in Criminal Appeal No.5735 of 2009 (Sarvesh Diwakar Vs. State of U.P.).

31. On behalf of the accused-appellant Chhotu Pilot, it is argued that the accused-appellant has been falsely implicated and that there exists no material on record to implicate him in the present occurrence. Learned counsel for the accused-appellant submits that though it is alleged that he was seen at the spot but his identity was not ascertained and his arrest at the railway station Konch on 28.05.2004 is not credible or reliable. Learned counsel for the accused-appellant also argued that for the identity of accused-appellant Chhotu Pilot was ascertained on 23.05.2004 itself and the plea that he was picked up from the railway station Konch is an imaginary incident. It is also argued that the accused-appellant was in fact arrested from his house on 27.04.2004 itself and the prosecution case that he was identified by the prosecution witnesses at the railway station Konch is not reliable. It is also submitted that the accused-appellant Chhotu Pilot otherwise has no criminal history and no incriminating material has otherwise been collected from him so as to implicate him in the present case.

32. Learned A.G.A. has submitted that the testimony of P.W.3 and P.W.-4 are reliable and as the property dispute between the father of the acquitted accused with the deceased is well established on record, the trial court has erred in acquitting the two accused.

33. On behalf of the two acquitted accused, it is stated that the testimony of P.W.-3 and P.W.-4 are not reliable and their implication several months after filing of the charge-sheet is nothing but an imaginary case set up by the police on the strength of conjectures.

34. It is also submitted that the testimony of P.W.-8 with regard to their extra judicial confession is an extremely weak piece of evidence, which is not reliable and has been engineered only for falsely implicating the two accused.

35. We have heard Shri Sukhvir Singh, learned counsel for the accused-appellant Anil Kumar Ahirwar, Shri Kamal Kishor Mishra, learned counsel for the accused-appellant Chhotu Pilot, Ms. Archana Singh, learned A.G.A. for the State and Shri Apul Mishra, learned counsel for the acquitted accused Abhishek @ Sonu and Paplu Shukla and perused the materials available on records of the present criminal appeals, including the records of the trial proceedings.

36. The First Information Report in the present case has been lodged in less than an hour from the incident, which allegedly occurred at 10:30 a.m. on 19.05.2004. The written report has been scribed by Vipin Shukla and its contents has been proved by the informant Pramod Kumar Shukla. As per the FIR, the deceased was returning from the cremation of the neighbour of deceased namely; Amar Chandra Agarwal when an unknown person took out a half-barrel gun and shot him on his head from behind instantaneously killing him. According to the prosecution, the unknown accused was apprehended on the spot itself and he was also assaulted by members of public. The half-barrel gun used by the accused was also recovered and the recovery has been proved as Ext. Ka-2. According to the prosecution, it is at that stage that the other accused-appellant Chhotu Pilot fired with an intent to save his colleague Anil Kumar Ahirwar. The bullet hit one Vinod Kumar Agarwal whereafter, the second accused Chhotu Pilot again fired and this time injury was caused to injured Laxmi Narayan Tiwari and Santosh Shukla. The second accused fled away from the spot and could be arrested only on 28.05.2004.

37. On behalf of the accused-appellant Anil Kumar Ahirwar, the incident leading to his arrest is questioned primarily on the ground that neither his arrest has been proved on the spot nor any motive is shown to exist on account of which there was an occasion for him to commit the offence. Shri Sukhvir Singh, learned counsel for the accused-appellant Anil Kumar Ahirwar has strenuously urged that the accused-appellant has been arrested only on 24.05.2004 and the prosecution case that he was arrested on the spot is not substantiated. He further argues that the prosecution case of assault on the accused Anil Kumar Ahirwar is also not fully substantiated, inasmuch as his injuries, etc. have not been proved. His implication on the strength of fire-arm recovered from him is also questioned in view of the F.S.L. Report, which has not matched with the fire-arm recovered from the accused with the injury caused to the deceased.

38. So far as the accused-appellant Anil Kumar Ahirwar is concerned, the prosecution witnesses have been consistent on the point that he had fired on the deceased with his half-barrel gun and he was apprehended at the spot. The testimony of P.W.-1 and P.W.5 is specific in that regard. The non-holding of test identification parade although is challenged on behalf of the accused-appellant but we do not find much substance in such challenge. The records reveal that an unknown person was in fact produced before the Medical Superintendent, Primary Health Centre, Konch (Jalaun), who was around 25 years of age and had been brought by the police in their jeep. The medication offered to the injured on 19.05.2004 has been produced as 'Paper No.99 Kha'. The contents of the prescription have extracted hereinafter:-

"Name - Unknown

Age/Sex - about 25 years/M

R/o - Unknown

Brought By - Police - Kamesh - Jeep

B.P. 110/76 mmhg

Pulse 80 /minute

Injection R.L. II

Injection 10% Dextrose I

Injection Decadron 2 CC I.M. Stat

Injection Gentamycin 80 mg. I.M. Stat

Injection Voveron 1 Amp. I.M. Stat

Injection Cefazole 500 mg I.M.

Referred to Hospital, Orai for X-ray and further treatment and

medico legal report."

39. The first Investigating Officer namely; Jay Narayan Verma, P.W.-14 in his testimony has categorically stated that the accused-appellant Anil Kumar Ahirwar had been taken by the police constables for medical examination to the Community Health Centre, Konch (Jalaun) whereafter he was referred to District Hospital, Jhansi. This witness has also categorically stated that the apprehended unknown accused was admitted in the Medical College, Jhansi and was ultimately discharged on 23.05.2004 whereafter, he was formally arrested on 24.05.2004. The evidence on record, therefore, clearly reveals that the accused-appellant Anil Kumar Ahirwar was apprehended on the spot and was sent for medical examination at Primary Health Centre, Konch (Jalaun) and thereafter he was admitted at Medical College, Jhansi from where, he was discharged on 23.04.2004. Though specific treatment card of the accused Anil Kumar Ahirwar has not been produced by the prosecution, yet the overwhelming weight of evidence on record in the form of oral testimony of witnesses, who have seen the incident persuades the courts to accept the prosecution case that it was in fact the accused Anil Kumar Ahirwar, who had fired on the deceased and was apprehended by members of public on the spot. It may also be noticed at this juncture that Dr. Maniram has also been produced as D.W.-3, who had examined the accused Anil Kumar Ahirwar at the C.H.C., Konch (Jalaun) and has clearly sated that the accused was brought by the police in their jeep and he had actually examined him as unknown. The injured accused was not conscious and he had referred him for further medical examination. Though this witness has been declared hostile but he has clearly recognized the accused as being the person who was actually brought before him as unknown and had been examined by him. There is otherwise no reason putforth by the defence citing any plausible cause of false implication of the accused either. It is otherwise not in dispute that the deceased had sustained a fire-arm injury from a close range on account of which he died. The prosecution witnesses of fact who undisputedly were present on the spot have clearly described the manner in which the accused Anil Kumar Ahirwar had fired from his half-barrel gun from a close distance on account of which the deceased died. Defence argument that Anil Kumar Ahirwar was not apprehended on the spot or that his identity at the point of time of the incident was not verified or established, is, therefore, rejected.

40. Coming to the other accused-appellant Chhotu Pilot,we find that the prosecution case clearly refers to the presence of a second accused at the place of incident, who allegedly had fired twice causing injury to Vinod Kumar Agarwal, Laxmi Narayan Tiwari and Santosh Shukla. It is then the prosecution case that the second accused fled from the spot and he could not be arrested. According to the prosecution, the second accused, who fired twice and had fled away from the spot is in fact Chhotu Pilot.

41. On behalf of the defence, it is emphatically argued that neither the identity of accused Chhotu Pilot has been established nor any test identification parade was conducted and, therefore, his identity remains unascertained. It is also argued that in fact the accused Chhotu Pilot had been arrested from his house on 27.05.2004 and his identification and arrest at the police station on 28.05.2004, is not reliable.

42. We have examined the evidence on record in order to appreciate the argument advanced on behalf of the accused Chhotu Pilot, which remains undisputed that the accused Chhotu Pilot is a resident of District Lalitpur and has no criminal history. He was admittedly not apprehended on the spot. No recovery has been made from him either of the fire-arm from which he is alleged to have fired on the injured nor any recovery has been made from him which may connect him to the offence, etc. The Investigating Officer in his testimony has admitted that identity of the second accused Chhotu Pilot was ascertained on 24.05.2004 itself. This ascertainment of identity of accused Chhotu Pilot is based upon the disclosure made by the prime accused Anil Kumar Ahirwar. Once the identity of accused Chhotu Pilot was known to the police, it was expected that either an attempt would be made to arrest him or the police at least tried to interrogate the alleged accused. There is, however, nothing on record to show that any attempt was made either to interrogate the accused Chhotu Pilot or to verify his role in commissioning of the offence. The prosecution case on this aspect is somewhat unusual. As per the prosecution case, the informant i.e. P.W.-1 visited the railway station Konch on 28.05.2004 and found the accused sitting there on a bench. P.W.-1 then informed the police, whereafter, the accused allegedly was arrested on 28.05.2004 from the railway station Konch.

43. On the point of arrest of accused Chhotu Pilot, the defence has led evidence of the father of the accused Chhotu Pilot as D.W.-1 and as per whom, the accused Chhotu Pilot was taken from his house on 27.05.2004 itself. A telegram was sent by the father of accused Chhotu Pilot to the Chief Minister on 27.05.2004 itself. Original records have been produced and duly proved by the defence, according to which, the telegram has been sent at 11:52 p.m. on 27.05.2004 itself with regard to arrest of the accused Chhotu Pilot. The defence witnesses have not been specifically controverted on their specific assertion with regard to arrest of the accused Chhotu Pilot on 27.05.2004 and sending a telegram, etc. The defence has, therefore, established on record that accused Chhotu Pilot was arrested from his house on 27.05.2004 itself. Once that be so, we do not find the prosecution case of arrest of accused Chhotu Pilot from the railway station Konch in the evening hours of 28.05.2004 reliable. The entire narration of witnesses on the point of arrest of the accused Chhotu Pilot from the railway station Konch is found doubtful. It appears that the police came up with the case of arrest of accused Chhotu Pilot from the railway station Konch on pointing out of the informant only in order to get over with the lacuna of not conducing the test identification parade of accused Chhotu Pilot. How exactly the identity of accused Chhotu Pilot was established remains unknown. The prosecution case in that regard is found not convincing. There is otherwise no material on record to implicate the accused Chhotu Pilot, inasmuch as, neither the physical attributes of the accused have been recorded in the statement of any of the witnesses prior to 24.05.2004 nor any other distinctive mark of identity have been specified during the course of investigation, which may legitimately lead to the identification of accused Chhotu Pilot. In that view of the matter, we find that the prosecution has not been able to establish the guilt of accused Chhotu Pilot beyond reasonable doubt.

44. So far as the Government Appeal with regard to acquittal of accused Abhishek @ Sonu and Paplu Shukla is concerned, we find the reasoning assigned by the trial court for their acquittal to be well founded. The implication of these two accused is primarily based upon the testimony of P.W.-3, P.W.-4 and P.W.-8. P.W.-3 and P.W.-4 allegedly were working in the house of Satya Narayan Shukla and as per the prosecution, they over heard Satya Narayan Shukla talking to the two accused with regard to conspiracy to eliminate the deceased. P.W.-3 and P.W.-4, however, never made any such disclosure to the police immediately after the incident or even within a reasonable period. Till the filing of the charge-sheet also P.W.-3 and P.W.-4 have not surfaced on record. An affidavit has been given by P.W.-3 and P.W.-4 to the police authorities on 24.08.2004, which is nearly after two months of filing of the charge-sheet dated 28.06.2004. As per the prosecution, P.W.-3 and P.W.-4 were servants, domestic aides in the house of Satya Narayan Shukla. P.W.-3 was looking after the cattle whereas, P.W.-4 was sweeping the floor, etc. It is not clear, as to how these two persons suddenly became aware of the entire matter and decided to submit their affidavits to the higher police authorities, who persuaded them to get their affidavits prepared and filed before authorities. The version of P.W.-3 and P.W.-4 in their affidavits is exactly the one, which supports the prosecution. P.W.-3 has stated that after he over heard the conversation of Satya Narayan Shukla with the two accused, he was warned by Satya Narayan Shukla not to inform of facts in that regard to anyone. According to these two witnesses, they immediately left the village and gave their affidavits only after Satya Narayan Shukla and his two sons were arrested. The two witnesses have been cross-examined with regard to the knowledge about arrest of Satya Narayan Shukla and his two sons. No specific details in that regard have been disclosed. It is admitted that Satya Narayan Shukla and his two sons were arrested in June, 2004 itself and facts in that regard had also published in the newspapers. If that was so, it is difficult to understand that as to why the affidavit was given by these two after nearly two months. P.W.-8, who is the other witness of conspiracy, has also come out with a case of extra judicial confession made to P.W.-8. The evidence of P.W.-8 has been examined by us, which is not found to be very inspiring. P.W.-8 is a political person. He alleges that the accused were known to him from before but it has not been able explain as to when the accused have met him and in what context. Extra judicial confession by its very nature is otherwise a very weak piece of evidence. The prosecution case in the form of testimony of P.W.-8 as well as statements of P.W.-3 and P.W.-4 do not appear to be natural and convincing. Their testimony appears to have been introduced later only with the intent of implicating the two sons of Satya Narayan Shukla. We are, therefore, of the view that the trial court has not erred in coming to the conclusion that prosecution has not succeeded in establishing the guilt of the two accused and thereby acquit them. We do not find any force in the Government Appeal No.983 of 2006, which is consequently dismissed and consigned to the records.

45. In view of the deliberations and discussions held above, Criminal Appeal No.4894 of 2005 filed on behalf of the accused-appellant Anil Kumar Ahirwar fails and is dismissed. He is on bail. He shall surrender before the trial court within a period of 15 days to serve out the remaining sentence.

46. Criminal Appeal No.5303 of 2005 Chhotu Pilot @ Deepak Nai succeeds and is allowed. Accused-appellant Chhotu Pilot @ Deepak, who is on bail, therefore, his bail bonds shall be discharged. He need not surrender. He shall file personal bond and surety bonds in compliance of Section 437A Cr.P.C. to the satisfaction of trial court within a period of four weeks.

47. The office is directed to transmit the lower court record along with a copy of the judgement to the trial court which shall ensure the compliance.

Order Date :- 28.8.2023

Anil/MN/Zafar

(Syed Aftab Husain Rizvi,J.) (Ashwani Kumar Mishra,J.)