Satish Nagar vs State Of U.P.
2023 Latest Caselaw 7740 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
RESERVED
 
In Chamber 
 

 
Case :- CRIMINAL APPEAL No. - 4587 of 2018
 

 
Appellant :- Satish Nagar
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Dileep Kumar,Anshul Kumar Singhal,Ashwini Kumar Awasthi,Jai Prakash Singh,Manish Tiwary,Rajrshi Gupta
 
Counsel for Respondent :- G.A.,Indra Kumar Chaturvedi,Kapil Tyagi,Samarth Sinha,Sanjay Singh,Shivam Singh
 

 
WITH
 

 
Case :- CRIMINAL APPEAL No. - 4646 of 2018
 
Appellant :- Shri Pal Singh And Anr.
 
Respondent :- State of U.P.
 
Counsel for Appellant :- Anshul Kumar Singhal,Devendra Kumar,Jai Shanker Audichya,Kamla Kant Srivastava,Radhey Shyam Shukla,Rajesh Kumar Srivastava,Sanjay Singh,Shyam Shankar Shukla,Vijay Pratap Singh
 
Counsel for Respondent :- G.A.
 

 
Hon'ble Siddhartha Varma, J.

Hon'ble Rajiv Joshi, J.

(Per : Rajiv Joshi, J.)

Upon a First Information Report being lodged on 19.5.2012 at 23.05 PM, Case Crime No.169 of 2012 was registered under sections 147, 148, 149, 302 and 506 of Indian Penal Code. After the matter went for trial it was numbered as Sessions Trial No.483 of 2012. Before the case was committed to trial the police had investigated the matter and had submitted charge sheets against three accused namely Sripal Singh son of Khachedu Singh, Jagat Singh son of Ratan Lal and Satish Nagar son of Shahmal. Since, during the investigation arms were recovered viz.-a-viz. Sripal and Jagat, two further charge sheets were submitted under section 25 of the Arms Act and they were numbered as Sessions Trial No.484 of 2012 and Sessions Trial No.485 of 2012. The trials of the three cases were undergone together with the Sessions Trial No.483 of 2012 being the leading case.

The case of the prosecution was that Suresh, the elder brother of the first informant Naresh had purchased 3-4 days back certain shops from Data Ram which were situate at Sutyana Bus Stand. Since the accused Sripal was also wanting to purchase the shops, the accused Sripal along with Satish Nagar and Jagat Singh had warned the deceased that if he purchased those shops, then they would kill him. On the day of occurrence in the morning also when the first informant Naresh along with the brother Suresh had gone to the bus stand then Sripal, Satish Nagar and Jagat had reached the shop and had said that despite the fact that they had warned him not to purchase the shops, he had purchased the shops and, therefore, they would teach him a lesson.

The prosecution case further is that the first informant and the deceased to avoid any kind of altercation after the warnings etc. had returned home. However, on the same date i.e. on 19.5.2012 at 9.30 PM when the first informant, the deceased Suresh and the third brother Pawan were going by their Scorpio Car No.UP16T0004 to get their vehicle fueled and when they had reached the Habibpur market gate, the accused Sripal in his Santro Car No.UP16W4011 overtook the Scorpio car and parked it in front of it and from the car the three accused Sripal, Jagat and Satish Nagar came out along with two other persons whose names the first informant was not knowing and fired indiscriminately on Suresh who was sitting on the driver's seat after breaking the windowpane. The first informant and his brother Pawan, to save their lives, got-off the scorpio car and ran away. Thereafter the assailants after having killed Suresh got into the Santro car and went towards Surajpur. The first informant and the other brother Pawan took the car of the owner of Pappu Hotel and took their elder brother to Kailash Hospital at night where Suresh was declared dead. It was the case of the prosecution that the first informant and his brother Pawan recognized the accused in the light of the street lights. The First Information Report was got written by the informant Naresh by one Lokendra Nagar. The First Information Report was numbered as Paper No.Ka-1. On the basis of the First Information Report, Case Crime No.169 of 2012 was got registered under sections 147, 148, 149, 302 and 506 I.P.C. The Chik FIR was numbered as Ka-15 and a corresponding entry was made in the General Diary as Entry No.46 at 23.05 PM. As a part of the investigation, inquest report was got prepared which was numbered as Exhibit-Ka-2 by the Investigating Officer B.R. Zaidi (PW-6). Thereafter the body was sent for post-mortem to the Chief Medical Officer. The Investigating Officer had also prepared a site map (Exhibit-Ka-7). During investigation, when it came to the knowledge of the Investigating Officer that Sripal and Jagat had hidden their pistols before they were arrested, then on the pointing of the accused, the pistols were recovered and the recovery memo was also prepared and exhibited as exhibit K-13. This recovery memo was got proved by PW-6, the Investigating Officer.

To prove the case of the prosecution, 12 prosecution witnesses and one Court Witness were examined and cross-examined. They were as follows :-

"PW-1 - Naresh son of Baliram - PW-1

PW-2 - Pawan son of Baliram - PW-2

PW-3 - C.S. Yadav (retired Sub-Inspector)

PW-4 - Dr. Rakesh Kumar

PW-5 - HCP 1 Mohd. Naeem

PW-6 - B.R. Zaidi, Inspector

PW-7 - HCP 26 Virendra Singh

PW-8 - Vijendra Singh Tomar

PW-9 - Mahesh Kumar Tyagi, SI

PW-10- Om Prakash (Retired Inspector)

PW-11- Lokendra Nagar

PW-12- Shiv Prakash Singh

CW-1 - Pappu Kashyap"

The documents which were exhibited and were used by the prosecution for proving their case, were as follows :-

 
	"मूल तहरीर दिनांकित 19.5.2012 (प्रदर्श क-1)
 
	पंचायतनामा (प्रदर्श क-2)
 
	फर्द लेने कब्जा खून आलूदा सीट कवर व सादा सीट कवर का टुकड़ा       	(प्रदर्श क-3)
 
	शव विच्छेदन आख्या (प्रदर्श क-5)
 
	कार्बन प्रति नकल रपट संख्या 46, समय 23.05 दिनांकित 19.05.2012 	(प्रदर्श क-6)
 
	नक्शा नजरी (प्रदर्श क-7)
 
	चिट्ठी सी०एम०ओ० (प्रदर्श क-8)
 
	चालान लाश (प्रदर्श क-9)
 
	फोटो लाश (प्रदर्श क-10)
 
	नमूना सील (प्रदर्श क-11)
 
	फर्द लेने कब्जे में कार सैन्ट्रो (प्रदर्श क-12)
 
	फर्द बरामदगी आला कत्ल (प्रदर्श क-13)
 
	फर्द बरामदगी एक अदद पिस्टल 9 एमएम (प्रदर्श क-14)
 
	चिक एफ०आई०आर० (प्रदर्श क-15)
 
	नक्शा नजरी मु०अ०सं० 206/12 (प्रदर्श क-16)
 
	जिलाधिकारी अनुमति पत्र (प्रदर्श क-17)
 
	आरोप पत्र मु०अ०सं० 206/12 (प्रदर्श क-18)
 
	जिलाधिकारी अनुमति मु०अ०सं० 208/12 (प्रदर्श क-19)
 
	आरोप पत्र मु०अ०सं० 208/12 (प्रदर्श क-20)
 
	चिक एफ०आई०आर० मु०अ०सं० 206/12 (प्रदर्श क-21)
 
	छायाप्रति नकल रपट संख्या 52 समय 21.50 (प्रदर्श क-22)
 
	नक्शा नजरी मु०अ०सं० 169/12 (प्रदर्श क-23)
 
	नक्शा नजरी  मु०अ०सं० (प्रदर्श क-24)
 
	नक्शा नजरी मु०अ०सं० 169/12 (प्रदर्श क-25)
 
	 आरोप पत्र मु०अ०सं० 169/12 (प्रदर्श क-26) ता 26/1
 
	नक्शा नजरी (प्रदर्श क-27)
 
	चिक एफ०आई०आर० मु०अ०सं० 208/2012(प्रदर्श क-28)
 
	पी०डब्लू०6 वादी द्वारा थानाध्यक्ष को लिखा पत्र (प्रदर्श ख-1)
 
	विधि विज्ञान प्रयोगशाला, उत्तर प्रदेश आगरा द्वारा प्रेषित आख्या (प्रदर्श क-	29) लगायत क-33"	
 

 

The accused gave their statements under section 313 Cr.P.C. and they refused having committed any crime. They had also stated that the recovery of the firearms were wrongly done from the accused Sripal and Jagat Singh. They had also stated that on the basis of the faulty investigation, the prosecution had implicated the accused. From the side of the accused, 9 Defense Witnesses were produced and examined. They were as follows :-

DW-1 - Brajpal

DW-2 - Rupesh Kumar

DW-3 - Jaypal Bhagat Ji

DW-4 - Shahmal

DW-5 - Rammi

DW-6 - Anju Bhati

DW-7 - Satyaprakash

DW-8 - Vinod

DW-9 - Anuj Kashyap

PW-1, the first informant in his examination-in-chief had stated that the incident was of 19.5.2012. The name of his elder brother who had died in the incident was Suresh Chand. The incident had taken place at around 9.30 PM at the crossing of Kacchi Sadak and the Service Road. He had stated that he along with his younger brother Pawan and the eldest brother Suresh had gone to get their Scorpio Car No.UP16T0004 fueled and while they were heading towards the Fuel Station, a Santro Car overtook the Scorpio Car and parked itself in front of Scorpio Car which was numbered as UP16W4011. From that car, Sripal, Satish Nagar, Jagat and two other persons had come out. The names of the two others were later on told by his brother Pawan and he had revealed that they were called Pappu and Satpal. He had stated in his statement that he had known the accused from before. He had stated that when they got down from the car, they had small firearms of the type of pistol. After coming towards the driving seat, they had tried to open the window. When that did not open, they broke open the windowpane with the butts of their firearm. When Naresh and Pawan, PWs-1 and 2 objected to the actions of the assailants, the assailants indiscriminately fired on Suresh. Upon the initiation of the firing, the first informant and the younger brother, to save their lives, came out of the car. They had made a hue and cry but no-one had responded to it. When they did not find the ignition key of their car, they found a Maruti Car standing at the Pappu Hotel and in that car they took their brother to the Kailash Hospital. From the hotel, it has been stated that, a child had also accompanied them. Upon reaching the hospital, the doctors examined the elder brother of the first informant and declared him dead. Upon Suresh being declared dead, Naresh had gone to the police station and upon his dictation, his cousin Lokendra had written the First Information Report and on it Naresh had put his signature. He has thus proved the First Information Report. Thereafter he has stated that the police had visited the hospital and had started off with the investigation which included the preparation of the inquest report. He stated that on the inquest report, his signature was also there. He had also stated that from the spot, 11 empty cartridges, along with a live cartridge, were also recovered which were taken in possession by the police. The PW-1 had recognized the accused who were present in the Santro car namely Sripal, Satish Nagar and Jagat.

PW-2 Pawan has reiterated the statements as were made by his brother Naresh.

PW-3 C.S. Yadav, who had written the Panchnama on the dictation of the Investigating Officer B.R. Zaidi, was also examined and he proved the Panchnama.

PW-4 Dr. Rakesh Kumar who had performed the post-mortem proved the post-mortem and gave the details of the injuries which were found on the body of the deceased.

PW-5 Head Constable Mohd. Naeem had stated that on 19.5.2012, upon the receiving of the First Information Report, he had made an entry in the General Diary at Entry No.46.

PW-6 B.R. Zaidi has given a detailed statement with regard to the investigation. He had stated that on the next date i.e. on 20.5.2012, he had investigated the spot and had prepared a site plan. He had stated that from the spot he had recovered 11 empty cartridges and one live cartridge. He had taken them all in his possession and had also sealed them. He had also stated the manner in which he had prepared the samples of the blood stains on the seat cover etc. He had also stated that on 20.5.2012, the accused Sripal and Jagat Singh were arrested. On 27.5.2012, the Santro Car No.UP16W4011 was recovered. He has further stated that on 30.5.2012 from the District Jail Dasna, he had taken the statements of the accused Sripal and Jagat and on their pointing he had recovered the firearms. The recovery had taken place on 2.6.2012 from Sripal and on 3.6.2012 from Jagat Singh. He has stated that after the investigation he had thereafter submitted his charge sheet. He had also given his statement that as to how he had sent the firearms to the forensic laboratory.

PW-7 Head Constable Virendra Singh had stated that he was posted in Police Station where his duty was to type on the computer. He had stated that on the basis of Exhibit Ka-1, he had registered the case.

PW-8 Vijendra Singh Tomar was the Investigating Officer of the case under the Arms Act viz.-a-viz. Jagat Singh.

PW-9 Sub-Inspector Mahesh Kumar Tyagi was the Investigating Officer with regard to the case under the Arms Act viz.-a-viz. Sripal.

PW-10 was the retired Inspector Om Prakash and was the Investigating Officer for the C.B.C.I.D.

PW-11 Lokendra Kumar who had written the First Information Report on the dictation of Naresh was also examined.

PW-12 Shiv Prakash Singh was also a police witness.

From the side of the defence Brijpal, Rupesh Kumar, Jaipal Bhagat Ji, Shahmal, Rammi, Anju Bhati, Satya Prakash, Anuj Kashyap and Vinod were produced and examined as DWs-1 to 9 respectively and had tried to prove the alibi taken by the accused Satish Nagar.

DW-8 Anuj Kashyap had stated on oath that on 19.5.2012 at around 9.30 PM he was at the hotel and when he had closed the hotel and was going homewards then he found that the Scorpio car was parked near his hotel and Suresh was profusely bleeding. He had stated that he had sent a boy to his father to inform him about the incident. Thereafter they had put Suresh in their car and had taken him to Balaji Hospital where the doctors had advised for a better treatment.

Pappu Kashyap who was a witness of the inquest report and was also entered as a prosecution witness in the charge sheet was discharged by the prosecution but was examined as a Court Witness. He has stated in his statement that his hotel was at the T Point of Kacchi Sadak in Habibpur Market and on the date and time of the incident, he was not in his hotel but his two sons Anuj and Ankur were there at the hotel. He was informed by them that Suresh had been injured. The children had informed him that they had taken Suresh to Balaji Hospital where the doctors had refused to take him and that thereafter Pappu had taken the deceased to the hospital where he was declared dead. In his cross-examination, he had categorically stated that Naresh and Pawan, the brothers of the deceased, were not there along with him. He has further stated that Jagat, one of the accused, had reached the hospital.

Upon evaluating all the evidence which were brought before it, the Court of Sessions Trial 2nd ADJ, Gautam Budh Nagar on 22.6.2018 convicted the assailants and hence the instant appeals.

Two appeals were filed. One being Criminal Appeal No.4646 of 2018 which was filed by Sripal and Jagat and the other being Criminal Appeal No.4587 of 2018 which was filed by Satish Nagar.

Sri V.P. Srivastava, Senior Advocate assisted by Sri J.P. Singh and Sri Jai Shankar Audichya, learned counsel for the appellants in Criminal Appeal No.4646 of 2018 and Criminal Appeal No.4587 of 2018 have stated that though the instant incident had occurred, it was very doubtful that it was the accused who were responsible for it. To bolster this argument, learned Senior Counsel has made the following submissions :-

i. Learned counsel has questioned the presence of the eye-witnesses i.e. PW-1 and PW-2. He has stated that if the testimony of CW-1 Pappu Kashyap and that of his son Anuj Kashyap is perused then it would become abundantly clear that the two brothers Naresh and Pawan were not there at the spot. He has made the Court go through the testimony of Pappu Kashyap and has submitted that Pappu Kashyap was the person who had been informed by his son about the firing which was done on Suresh. He has stated in his examination that initially the children had taken Suresh to Balaji Hospital and when Balaji Hospital had refused to admit Suresh, then they had approached him i.e. Pappu Kashyap and Pappu Kashyap thereafter had driven the car to Kailash hospital. He has categorically stated that he alone had taken Suresh to Kailash hospital and no-one else. He has categorically stated that Naresh and Pawan were not there at the hospital.

ii. Learned counsel has further drawn the attention of the Court to the statement of Anuj Kashyap who has stated that he was 22 years of age at the time of the giving of the statement in the year 2018. This meant that in the year 2012 he must have been 16 years of age. He has stated that at the time when the incident had occurred, he had found Suresh covered in blood in his Scorpio car. He has further stated that while he himself and his brother had taken Suresh to Balaji hospital, he had also sent words to his father through one Guddan son of Sabu. After the doctors at Balaji hospital had refused to admit the case, Anuj had driven back to his village where his father had taken charge of the car. He has also stated that at the time when he had taken out Suresh from his car, neither Naresh nor Pawan were present at the spot. He has also submitted that when his father Pappu Kashyap had taken Suresh then also Naresh and Pawan were not to be found. He has also stated that his village from the place of occurrence was 100 to 150 meters away only.

iii. The other argument which the learned counsel for the appellants has advanced is that on 19.5.2012 from the telephone number of the deceased Suresh namely telephone no.9910104300, calls were made to mobile no.9910669785 at 21.33 PM, 21.40 PM and 21.55 PM. Learned counsel submits that when PW-1 says that he had taken charge of the mobile of his brother Suresh at 9.35 PM then how was it possible that phone calls were made from that phone to 9910669785.

Further he submits that from the mobile no.9910104300 there was a phone call on the phone number of PW-1 Naresh being mobile no.8510004300 at 21.57 and 21.56 PM on 19.5.2012. Learned counsel for the appellant, therefore, states that how it was possible that when the PW-1 was saying that the deceased was killed at 21.30 PM, phone calls were being made thereafter at 21.33 PM, 21.40 PM, 21.55 PM, 21.57 PM and 22.56 PM from the phone of the deceased. Learned counsel states that the call details were brought on record by the prosecution and nobody had denied them.

iv. Learned counsel for the appellants to bolster his argument that PW-1 and PW-2 were not present at the spot and that the deceased had been taken by Pappu Kashyap, has shown to the Court the memo of the Kailash hospital which shows that the deceased was brought by Pappu Kashyap to the hospital.

v. Learned counsel for the appellants has thereafter laid much stress on the fact that when Naresh had lodged the First Information Report and which is exhibited as Exhibit Ka-1, this report was preceded by a First Information Report which was also written in the handwriting of Lokendra and was placed in the police station for being lodged as a First Information Report. This document has been exhibited as Exhibit Kha-1. This First Information Report was, as per learned counsel for the appellants, taken note of by the Police Officer stationed at the police station namely Constable Rajesh Jindal. This fact is corroborated from the statement of PW-7 Sri Virendra Singh who in his cross-examination clearly says that the first informant Naresh had brought a First Information report and which was given to Constable Rajesh Jindal and Sri Rajesh Jindal had marked it for being fed in the computer and had put it in the basket. PW-7 had further stated that Sri Rajesh Jindal had shown that document to him and that it was signed by Naresh-PW-1. On the document there was signature of Rajesh Jindal which was proved by PW-7. He has stated that by that document Naresh had informed the police that Suresh had been killed by unknown assailants. He further states that the Exhibit-Ka-15, the chik report, was placed before him after the computer was got repaired and in his statement, he had stated that the computer was out of order from 19.5.2012 to 21.5.2012. This witness, by an order of the Court dated 20.11.2017, was again brought into the witness box for re-examination. In his examination-in-chief on 2.1.2018, PW-7 stated that Exhibit Kha-1 was not placed before him and that Rajesh Jindal had never given that Tahrir to him. However, in his cross-examination when he was confronted with his earlier statement, he stated that the statement which he had earlier given i.e. the statement which he had given on 19.8.2016 was correct. He further states that when the computer was repaired only then the subsequent First Information Report was brought before him. He in fact emphatically states that Exhibit-Kha-1 was put in the basket on 19.5.2012. He also states that on Exhibit Kha-1 the seal of the police station was also there.

vi. Learned counsel for the appellants further submitted that when the inquest report was prepared, the body was thereafter sent for post-mortem and with the request for the post-mortem, the list of papers which accompanied the dead body was also there. This list clearly showed that Panchayatnama was of three pages; photo nash was of one page; challan nash was of one page; namoona nash was of one page; the report of the Reserve Inspector was of one page; report of the CMO was of one page and the FIR was also of one page. Learned counsel, therefore, submits that when the computer was out of order from 19.5.2012 to 21.5.2012, then the request for post-mortem which was sent on 20.5.2012 could not have had three paged chik (Exhibit Ka-15) and, therefore, the Exhibit Kha-1 which was the First Information Report, which was lodged earlier in the point of time, alone was there which was of one page. He, therefore, submits that if Exhibit Kha-1 is perused, it would become clear that there was no eye-witness present at the spot.

vii. Learned counsel for the appellant further submits that Pappu Kashyap, who was a witness of the Panchayatnama/inquest report, was also a prosecution witness mentioned in the charge sheet which was submitted by the police then it did not stand to reason as to why the prosecution removed him from the list of prosecution witnesses. He submits that the Court upon being convinced that the prosecution witness Pappu Kashyap was removed mala-fidely from the list of prosecution witness, summoned Pappu Kashyap as CW-1. Learned counsel further submits that the testimony of Pappu Kashyap definitely spoke volumes about the fact that PW-1 and PW-2 were not present at the spot. Learned counsel for the appellants further submitted that if the statement of PW-1 is seen then it becomes clear that he had stated that he was sitting on the back seat whereas Pawan, his brother was sitting on the front seat along with the driver. On the contrary, Pawan (PW-2) had stated that he was sitting at the back seat whereas in the front seat along with the driver, Naresh was sitting. Learned counsel for the appellants, therefore, submits that there was a major contradiction in the statements of PW-1 and PW-2. Learned counsel submits that this contradiction could have been ignored but in the instant case when the witnesses are unable to clearly state as to where they were sitting at the time of incident then it definitely becomes a major point for consideration. Learned counsel for the appellants further states that had it been just a mistake as to on which side of the back seat which witness was sitting then also it could have been ignored but when the witnesses are confused as to whether they were sitting in the front seat or the back seat then definitely it becomes a point which requires consideration and, therefore, he submits that in fact the PW-1 and PW-2 were not there on the spot and that they were coming up with a concocted story.

viii. Learned counsel for the appellants submits that the First Information Report as is required to be sent after the lodging of it to the Magistrate under section 157 Cr.P.C. ought to have been sent forthwith to the Magistrate empowered to take cognizance of the offence upon the police report. He submits that if the report was not sent under section 157 Cr.P.C. "forthwith" then it was a major lacuna on the part of the prosecution. Learned counsel for the appellants relied upon the decision of the Supreme Court in Arjun Marik & Others vs. State of Bihar reported in 1994 Supp. (2) SCC 372 to support his case. In this regard, learned counsel for the appellants also relied upon the decision of the Supreme Court in Rajeevan & Anr. vs. State of Kerala reported in (2003) 3 SCC 355 and Meharaj Singh (L/Nk) vs. State of U.P. reported in (1994) 5 SCC 188.

ix. Learned counsel for the appellants further submitted that at the place of occurrence 11 empty cartridges along with one live cartridge were found. The post-mortem indicates that there were as many as 11 entry wounds and 5 exit wounds. He submits that when 11 empty cartridges were found then definitely 11 wounds were there but the five bullets which caused exit wounds were not found anywhere in the scorpio car. He, therefore, submits that definitely the deceased was pulled out of the car and killed outside the car and thereafter placed inside the scorpio car at the driver's seat.

x. Learned counsel for the appellants further submitted that when the assailants had broken the windowpane and then had fired from the outside, then the Investigating Officer should have collected the glass pieces of the broken window. He, therefore, suggested that it appears that at the time when the body was discovered, the windowpane was intact and mischievously later on the glass pane was smashed and, therefore, there was no mention of the broken glass pieces in the report of the Investigating Officer.

xi. Learned counsel for the appellants further submits that when there was such an incessant firing taken place, it was but natural that the two other eye witness who had claimed were sitting inside the car also ought to have been hit by the bullets and that at least some blood stains ought to have been there on their clothes.

xii. Learned counsel for the appellants submits that if the eye-witnesses had taken the deceased out from the scorpio car and had placed him in a Maruti car of Pappu Kashyap then also there would have been some blood stains on their clothes and since no blood was found on their clothes, the story that they had carried the deceased to the hospital was improbable. Learned counsel states that the PW-1 and PW-2 had wrongly stated that they had washed their clothes. He submits that when such a major murder had taken place then they would not have got the time to wash clothes..

xiii. Learned counsel for the appellants states that on 2.6.2012 on the pointing of Sripal in village Jalpura near Pani Ki Tanki at the T point of Hindon Pushta, the Investigating Officer had got recovered a 9mm pistol made in Bulgaria. He also stated that the Investigating Officer had also got recovered a 9mm pistol made in USA on the pointing of Jagat Singh on 3.6.2012 from near the Hindon Pushta. Learned counsel for the appellants submits that these two recoveries which were allegedly under section 27 of the Evidence Act were absolutely bad in law as under Section 27 of the Evidence Act, the accused who is in the custody when intends to show that he is the author of the concealment of an armed weapon and he wishes to get it discovered then all his statements ought to have been made before two independent witnesses and the exact statements uttered by him ought to have been incorporated in the Panchnama and therefore, the Investigating Officer ought to have drawn the recovery memo as per law. This ought to have been done at the police station in the presence of the independent witnesses so as to lend credence that the particular statement was made in fact by the accused expressing his willingness that he was on his own free will and volition wanting to lead to the place where the weapon of the offence had been hidden. Learned counsel for the appellants submitted that once that part of the Panchnama was completed, the police party along with the accused and two independent witnesses ought to have proceeded to that particular place where the accused might have led the police party and if from that particular place the weapon of the offence had been discovered then the process would have formed the second part of the Panchnama.

In the instant case, learned counsel for the appellants states that on both dates i.e. 2.6.2012 and 3.6.2012, the recovery was not made as was required to be made under section 27 of the Evidence Act. In this regard, learned counsel for the appellants relied upon two judgments of the Supreme Court in Ramanand @ Nandlal Bharti vs. State of Uttar Pradesh reported in AIR 2022 SC 5273 and in Subramanya vs. State of Karnataka reported in AIR 2022 SC 5110.

Learned counsel for the appellants, therefore, submits that when the recovery under section 27 of the Evidence Act becomes erroneous, the whole case of the prosecution, so far as the recovery of firearm is concerned becomes erroneous.

Learned counsel for the appellants further submitted that the firearms were sent to the ballistic experts much after the charge sheet was submitted. He further submitted that if the report of the Forensic Laboratory is seen then it becomes clear that there were 11 empty cartridges sent. One empty cartridge which was marked as EC-1 was of 9mm; 8 empty cartridges were of 7.62mm and two empty cartridges were of 7.65mm. There was one live cartridge of 7.65mm. There were other bullets also found from the body of the deceased. When the ballistic report came from the Forensic Laboratory, it was of the view that one 9mm empty cartridge could have been fired from the pistol numbered as 11111 and was marked as 1/2012. This was the pistol which was found, as per the prosecution case, from the pointing of Sripal. The other cartridges could not be related to either the pistol no.11111 marked as 1/2012 or with the pistol no.7700 marked as 2/2012 which was found from the pointing of Jagat Singh. Learned counsel for the appellants, therefore, submitted that when just one empty cartridge matched the gun which was found from the pointing of Sripal, made the whole case doubtful. He submitted that the gun which was found from the pointing of Sripal was the gun which was made in Bulgaria and this fact was mentioned in the recovery memo but the ballistic report does not mention about the fact as to which country the pistol was made in. Further, learned counsel for the appellants submitted that in the recovery memo with regard to the pistol which was found from the pointing of Jagat Singh, it was found that it was a 9mm pistol numbered as 7700 and was made in USA but this fact as to which country the pistol was made in was not to be found in the ballistic report. He, therefore, again submitted that the whole case becomes doubtful. Learned counsel for the appellants further submitted that when the pistols were produced in the Court, then PW-6, the Investigating Office Sri B.R. Zaidi had stated that he had not sealed the pistols and empty cartridges himself. He had categorically stated upon seeing a string (dori) attached to one of the pistols, that there was no string (dori) on the pistols which he had sent. Learned counsel for the appellants stated that therefore the pistol which was sent by the Investigating Officer did not have any string (dori) but once it was opened in the Court, the pistol had a string (dori). Learned counsel for the appellants, therefore, submitted that the recovery of the pistol becomes doubtful in view of the fact that the ballistic report did not match the empty cartridges with the gun which was found from the pointing out of Jagat. He also submitted that in all probability, the pistol which was attributed to the pointing of Sripal was a planted pistol. He, therefore, submitted that the case became absolutely doubtful.

With regard to the Criminal Appeal No.4587 of 2018 (Satish Nagar vs. State of U.P.), learned counsel for the appellant argued that Satish Nagar was not there on the spot. The Investigating Office (PW-6) Sri B.R. Zaidi has stated that during the course of investigation, he was informed that Satish Nagar was in Rajasthan for some religious purpose. PW-10 Om Prakash has stated that he had received 31 affidavits in support of the fact that Satish Nagar was in Rajasthan. He has also stated that the phone of Satish Nagar was not found within the NCR. Learned counsel for the appellant took the Court through various statements of various DWs who had deposed in support of the fact that Satish Nagar was not on the spot but was in Rajasthan. No recovery of any firearm had also been found from Satish Nagar. Learned counsel, therefore, stated that Satish Nagar was not on the spot.

In reply, learned AGA Sri S.N. Mishra and Sri Brijesh Sahai, learned Senior Advocate assisted by Sri Sanjay Singh, learned counsel appearing for the first informant argued that minor contradictions/discrepancies in the statements of witnesses would not affect the prosecution case. To bolster his case, Sri Brijesh Sahai relied upon a decision of the Supreme Court in C. Muniappan & Ors. vs. State of Tamil Nadu reported in 2010 (9) SCC 567 and since learned counsel specially relied upon paragraph 85 of the judgment, the same is being reproduced here as under :-

"85. It is settled proposition of law that even if there are some omissions, contradictions and discrepancies, the entire evidence cannot be disregarded. After exercising care and caution and sifting through the evidence to separate truth from untruth, exaggeration and improvements, the court comes to a conclusion as to whether the residuary evidence is sufficient to convict the accused. Thus, an undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the heart of the matter and shake the basic version of the prosecution's witness. As the mental abilities of a human being cannot be expected to be attuned to absorb all the details of the incident, minor discrepancies are bound to occur in the statements of witnesses."

Learned counsel for the first informant had stated that the manner of assault had to be seen. Whether the broken glasses of the windowpane was taken into account by the investigating authorities would not go to the root of the matter. Also that the exit bullets were not found by the Investigating Officer would not change the fact that the appellants had murdered the deceased Suresh. He further submitted that it mattered little that the PW-1 and PW-2 were getting confused with regard to the fact that as to on which seat the two of them were sitting when the incident had occurred. He further submitted that there were two independent witnesses i.e. PW-1 and PW-2 and their testimonies cannot be lightly done away with. He submitted that the spot of occurrence was identified; that the incident occurred could not be denied and that there were eye-witnesses of the incident was established from the evidence on record. Learned counsel for the informant stated that the five counts on which the defence had tried to dislodge the prosecution case namely the absence of the eye-witness; manner of assault; date and time of the incident; the spot of the incident and the timing of the First Information Report, all were absolutely established and, therefore, the appellants had no case. So far as the argument of the appellants with regard to section 27 of the Evidence Act was concerned, learned counsel for the first informant submitted that the discovery was from a person who was in custody and was having the information which he told about the authorship of the concealment. Therefore, the discovery was proper and could be looked into. He submitted that it mattered little that there was no deposition of the accused before the appellants proceeded for the discovery. Learned counsel for the first informant had argued that the call details and the paper by which the dead body was brought to the Kailash hospital were not exhibited in the case and, therefore, they were waste papers and could not be relied upon.

Having heard Sri V.P. Srivastava, learned Senior Advocate assisted by Sri J.P. Singh, learned counsel for the appellants in Criminal Appeal No.4646 of 2018 and Sri Jai Shanker Audichya, Advocate assisted by Sri Shyam Shankar Shukla and Sri Vijay Pratap Singh learned counsel for the appellants in Criminal Appeal No.4587 of 2018 and Sri Brijesh Sahai, learned Senior Advocate assisted by Sri Sanjay Singh, learned counsel for the informant as well as learned A.G.A. for the State we are of the view that the Court of Sessions Trial erred in convicting the appellants in both the criminal appeals.

To begin with we find that after the First Information Report was lodged, the report as is required to be sent to the Magistrate under section 157 Cr.P.C. was sent almost after 10 days. This as per the judgments of the Supreme Court in Arjun Marik & Ors. vs. State of Bihar reported in 1994 Supp. (2) SCC 372; Badam Singh vs. State of M.P. reported in (2003) 12 SCC 792; Rajeevan & Anr. vs. State of Kerala reported in (2003) 3 SCC 355 and Mehraj Singh (L/Nk) vs. State of U.P. reported in (1994) 5 SCC 188 makes the case doubtful. In the instant case, the informant had reported the matter to the police, as per the prosecution case, on 19.5.2012. The police has stated that a GD entry was made on the same date. Why the special report took such a long time is not made clear. From the statement of PW-7 Virendra Singh, the Head Constable, the Court finds that Sri Virendra Singh was on duty on the date of the incident i.e. on 19.5.2012. He has stated that he had received a written complaint on the basis of which Case Crime No.169 of 2012 under sections 147, 148, 149, 302 and 506 IPC was registered. He had further stated that he had prepared the chik on that very date. However, in his cross-examination he states that from 19.5.2012 to 21.5.2012 the computer was out of order. He also, however, has stated that he could not tell as to for what reason the special report was sent under section 157 Cr.P.C. on 30.5.2012. Coupled with this, when we see that when the Investigating Officer had sent the dead body to the Chief Medical Officer for post-mortem, he had prepared a list of documents which he had sent. This list of documents had 3 pages of panchayatnama; one page of photo nash; one page of challan nash; one page of namoona nash; one page of report of Reserve Inspector; one page of report to the CMO and one page of the First Information Report. The First Information Report as was on record was running into three pages. Why the report when was prepared and was there on record was sent after 10 days is not known and, therefore, for this reason definitely the prosecution story becomes doubtful.

After the post mortem report was prepared and after the accused were incarcerated, Sripal and Jagat were in judicial custody. They were taken into police remand and under section 27 of the Evidence Act, on their pointing, the guns were discovered on 2.6.2012 from Sripal and on 3.6.2012 from Jagat.

A perusal of the statement of PW-6 B.R. Zaidi, at page 132 of the paper book, clearly states that there were no disclosure statements of the two accused. We find that as per the judgment of the Supreme Court in Ramanand @ Nandlal Bharti vs. State of Uttar Pradesh reported in AIR 2022 SC 5273 and in Subramanya vs. State of Karnataka reported in AIR 2022 SC 5110 the disclosure was a must. When the accused while in custody makes a statement before two independent witnesses, the exact statement or rather the exact words uttered by the accused should be incorporated in the panchnama by the Investigating Officer and, therefore, the first part of the deposition for the purpose of section 27 of the Evidence Act ought to have been drawn in the police station in the presence of the two independent witnesses. This would have lend credence that a particular statement made by the accused was of his own free will and that he was willing to point out the place where the weapon of offence was hidden. It is only after the first part of the deposition is complete, the police party along with the accused and two independent witnesses should have gone to the place to which the accused might have led the police party to and this discovery should have formed the second part of the memo of recovery. The judgment cited above has held as follows :-

"This is how the law expects the investigating officer to draw the discovery panchnama as contemplated under Section 27 of the Evidence Act. If we read the entire oral evidence of the investigating officer then it is clear that the same is deficient in all the aforesaid relevant aspects of the matter."

Applying the aforesaid principle of law, we find that the evidence of the Investigating Officer was not only unreliable but it could be said that it did not constitute any legal evidence.

Furthermore, we find that the incident as has been stated by the PW-1 Naresh who is the first informant does not stand to scrutiny. It has been stated that the incident occurred at 9.30 PM but from the evidence of PW-6, we find that there were phone calls made from the phone of the deceased even after 9.30 PM. What is more, the statement of CW-1-Pappu Kashyap when read along with the statement of Anuj Kashyap-DW-8 definitely shows that the prosecution case was week. The CW-1-Pappu Kashyap has stated in his testimony on oath that he was the person who had taken the deceased in his car after his children had informed that Suresh had been injured. He very categorically states that there was no one present at the time of the incident. He had stated that his children had taken out Suresh from the Scorpio car and had put him in their own car and had taken Suresh to Balaji hospital. When in Balaji hospital, the authorities had not accepted the case, then the children had brought the body back and Pappu Kashyap had taken Suresh to Kailash hospital. He had very categorically stated that there was no one present at the time when all this was going on. Along with this if the statement of DW-8-Anuj Kashyap is perused, we find that the case of CW-1 gets corroborated with the statements of DW-8. He has stated that Suresh when was hit by the assailants then he, Anuj Kashyap, had taken Suresh to the hospital and when the hospital people had refused to take the case then they had gone to their village and then his father had taken Suresh for treatment. In the statement it is very categorically stated that the spot of the occurrence was only 100 to 150 meters away from the village where the father Pappu Kashyap was. Therefore, we find that even the Trial Court has, for no reason, disbelieved the DW-8 and CW-1. If both the statements are read together, it would become clear that Anuj Kashyap was present at the hotel when the incident had occurred. He had rushed with Suresh to the hospital called Balaji and when the case was refused, from there he took assistance of his father who thereafter had taken Suresh to Kailash hospital.

What is more the Court definitely finds that PW-1 at page 72 of the paper-book states that he was sitting on the back seat whereas PW-2, at page 91 of the paper-book, states that he was sitting on the back seat. This even though could have been, under normal circumstances, a minor discrepancy but when such a grave incident had taken place wherein their own brother had been murdered then the whole picture would have been etched in the minds of the witnesses and they could not have forgotten as to which seat they were occupying at the time of incident. In the instant case, when they are not clear as to who sat on which seat, it becomes doubtful that they were at all there.

What is more, the Court finds that there were 11 bullet injuries on the body of the deceased and not a single exit bullet of the five exit injuries was found in the car. Also the two of the witnesses who claimed themselves to be there along with the deceased have not received any kind of injury and also no blood stain was found on them. What is more, if the PW-1 had picked up the deceased and had taken him to the hospital then admittedly blood would have been there on his clothes. He simply says that he had washed away all the clothes and therefore could not explain the absence of blood on his clothes. This definitely raises a doubt in the mind of the Court.

Also if the forensic report is seen, we find that only one empty cartridge out of the 11 empty cartridges could be related to a particular gun and all the other 10 empty cartridges did not match with either of the two guns which were discovered by the Investigating Officer with the help of the two accused Sripal and Jagat. This again makes the case extremely doubtful.

So far as the case taken by the counsel for the appellants with regard to the fact that the PW-1 Naresh had lodged a prior First Information Report which they had brought on record as exhibit Kha-1, the Court tried to examine as to whether that document was there. If the statement of PW-7 Virendra Singh is seen, it becomes clear that he had stated that a document of that kind was brought to the police station and also the officer in-charge Sri Rajesh Jindal had made a note on the document that the document had to be registered and had put it in the basket (tokari). He recognized the signature of Rajesh Jindal also. However, the Court is circumspect in accepting this document as the document was proved in a very flimsy manner. The signatures of Naresh were not verified from the admitted signature which was there on the exhibit-Ka-1 and also the Court feels that this document ought to have been brought in the open when the investigation was going on.

Under such circumstances, even though the PW-7 Virendra Singh had proved the document, the Court does not find it very reliable and, therefore, it is not being used in any manner to come to any conclusion whatsoever.

We have also gone through the statements of DW-1 to 7 who had given their statements that Satish Nagar had gone to Rajasthan. They had also relied upon various affidavits which the 31 individuals had given for proving the fact that Satish Nagar had gone to Rajasthan on that particular date. However, neither the Investigating Officer nor the CBCID looked into those documents and, therefore, it cannot, with any certainty, be said that Satish Nagar had gone to Rajasthan. We do find substance in the argument of learned counsel for the appellant that there was non-compliance of the provisions of paragraph 107 of the Police Regulations as it was the duty of the Investigating Officer to have looked into the affidavits and also it was his duty to have seen all the other evidence. Since nothing was looked into, it cannot be said with certainty as to where Satish Nagar was at the time of incident.

However, the case certainly becomes doubtful because of the testimonies of CW-1 and DW-8 namely Pappu Kashyap and Anuj Kashyap respectively; the fact that there was delayed information to the Magistrate under section 157 Cr.P.C.; the discovery under section 27 of the Evidence Act was doubtful; the ballistic report did not state that 10 out of 11 empty cartridges were fired from the two pistols which were discovered and also because of the fact that the exit bullets and the glass panes were not considered by the investigating authorities.

The prosecution must prove its case beyond all reasonable doubt as has been held by a Full Bench judgment of this Court in Rishi Kesh Singh & Ors. vs. The State reported in AIR 1970 Allahabad 51 (FB). The operative portion of the judgment is reproduced here as under :-

"177. In accordance with the majority opinion, our answer to the question referred to this Full Bench is as follows:--

The majority decision in 1941 All LJ 619 = AIR 1941 All 402 (FB) is still good law. The accused person is entitled to be acquitted if upon a consideration of the evidence as a whole (including the evidence given in support of the plea of the general exception) a reasonable doubt is created in the mind of the Court about the guilt of the accused."

The prosecution definitely failed to prove the case which was taken by it beyond all reasonable doubt.

Under such circumstances, both the appeals are allowed. The judgment and order dated 22.6.2018 passed by the Additional District & Sessions Judge/Fast Track (Second), Gautam Budh Nagar is set-aside. The appellants, if are not required in any other case, be released forthwith.

Order Date :- 17.03.2023

GS

(Siddhartha Varma, J.)

(Rajiv Joshi, J.)