Allahabad High Court
Chokha vs State Of U.P. on 13 August, 2025
Author: Siddhartha Varma
Bench: Siddhartha Varma
HIGH COURT OF JUDICATURE AT ALLAHABAD
Neutral Citation No. - 2025:AHC:138050-DB
Judgment Reserved on 17.03.2025
Judgment Delivered on 13.08.2025
Court No. - 43
Case :- CRIMINAL APPEAL No. - 1092 of 1983
Appellant :- Chokhe
Respondent :- State of U.P.
Counsel for Appellant :- Satish Chandra Tiwari
Counsel for Respondent :- Govt. Advocate
Hon'ble Siddhartha Varma,J.
Hon'ble Ram Manohar Narayan Mishra,J.
(Per: Ram Manohar Narayan Mishra, J.)
1. Heard Sri Satish Chandra Tiwari, learned counsel for the appellant and learned A.G.A. for the State.
2. The accused-appellants were tried by the Court below for charge under Sections 147, 307, 302, 149, 148 and 452 I.P.C.
3. This criminal appeal has been filed against the judgment and order dated 28.04.1983 passed by VIIth Additional Sessions Judge (Higher Criminal Court), Budaun in Sessions Trial No.8 of 1983 arising out of Case Crime No.81 of 1983, (State vs. Chokhe and others), whereby accused-appellants, Chokhe and Kunwar Sen have been convicted and sentenced for the charge under Sections 147, 302/149, 452 I.P.C. and the trial Court sentenced them to imprisonment for life for charge under Section 302/149 I.P.C. and also convicted and sentenced them under Section 147 I.P.C. for one year rigorous imprisonment and convicted and sentenced them under Section 452 I.P.C. for two years rigorous imprisonment. Accused-appellants, Shree Ram, Mohan Lal and Krishna have been convicted for the charge, under Sections 302 I.P.C. and are sentenced to imprisonment for life and they are also convicted under Sections 148 and 452 I.P.C. and sentenced to two years rigorous imprisonment for each charge. All the sentences are directed to run concurrently. All the accused-appellants were acquitted of charge under Sections 307/149 I.P.C.
4. It is noteworthy that accused-convicts filed three separate criminal appeals, which are aggrieved by impugned judgment and order dated 28.04.1983 in Criminal Appeal No.1081 of 1983 preferred by accused-convict, Krishna and Kunwar Sen, Criminal Appeal No.1550 of 1983 preferred by accused Krishna and Criminal Appeal No.1092 of 1983 was preferred by accused, Chokhe, Shree Ram and Mohan Lal. The Criminal Appeal No.1081 of 1983 and Criminal Appeal No.1550 of 1983 were abated vide orders dated 06.02.2024 and 12.01.2024 on account of death of appellants, Kunwar Sen and Krishna during pendency of appeal. Thus, at present Criminal Appeal No.1092 of 1983 has been heard in respect of surviving appellant, Mohan Lal only for the reason that co-appellants, Chokhe and Shree Ram have died during pendency of appeal and appeal has abated qua them.
5. The factual matrix of the case, in brief, is that the informant, Smt. Narayani (wife of Chironji) r/o Village, Bhansi, Police Station Kunwar Gaon lodged an FIR at Police Station concerned on 20.09.1982 at about 1:30 A.M. with allegation that in the intervening night of 19/20.09.1982 her husband, Chironji was sleeping in his house along with his wife and children. A small kerosene oil lamp was also burning at that time. At about midnight, accused-appellants, Chokhe, Shree Ram, Mohan Lal, Krishna and Kunwer Sen entered his house by scaling the boundary wall. At that time, accused-appellants, Krishna, Shree Ram and Mohan Lal were armed with pistol while the remaining two accused persons were empty handed. The accused-appellant, Chokhe and Kunwer Sen exhorted the other three accused to kill Chironji as he has given much trouble to them. Thereafter, accused-appellants, Krishna, Shree Ram and Mohan Lal opened fired at him. When wife of Chironji tried to intervene, accused Chokhe and Kunwer Sen caught hold of her hand and stated that her husband is furnishing information to the police. One fire also hit on her left hand and her husband died on the spot due to firearm injury caused by accused, namely, Krishna, Shree Ram and Mohan Lal. On hearing her shriek and sound of firearm, her brother-in-law, namely, Kishan Lal and co-villager, namely, Mihilal and Siya Ram rushed to the spot while flashing the torch and challenged the accused persons, but they exited from her house and ran way towards eastwards agriculture field. Her husband was the police informer due to this enmity, these people killed him. She went to the Police Station and filed written report (Ext.Ka-1).
6. On the basis of written report, FIR was registered as Case Crime No.81 of 1983, under Sections 147, 148, 149, 452, 302 and 307 I.P.C. at Police Station Kunwar Gaon. After registration of case, Sub-Inspector, M.P. Singh rushed to the spot along with S.I. R.K. Chaudhari after making their rawangi in general diary. The inquest proceeding on the body of the deceased was conducted on the spot at the instance of S.H.O. concerned on 20.09.1982 between 6:00 A.M. to 8:00 A.M., wherein eight injuries were found on the person of the deceased. In the opinion of panch witnesses, cause of death of the deceased was firearm injury. The dead body of the deceased was sent for postmortem after preparing relevant papers. The postmortem examination on the dead body of the deceased was conducted on 20.09.1982 at 4:30 P.M. In the postmortem report, cause of death was shown as shock and haemorrhage, as a result of ante-mortem firearm injuries.
7. The Investigating Officer recorded the statement of witnesses. Three empty cartridges were recovered from the place of occurrence and recovery memo of empty cartridges, blood-stained baan of cot, bedsheets, torches of the witnesses as well as bloodstained and plain earth were prepared by the Investigating Officer. Some tiklies and pellets were also recovered on the spot, which were included in recovery memo.
8. Investigating Officer, after concluding the investigation, submitted charge-sheet against the accused persons before the trial Court. The trial Court took cognizance of the offence on the said charge-sheet and summoned the accused persons, and thereafter, charges were framed under Sections 147, 302/149, 307/34 and 452 I.P.C. against the accused Chokhe and Kunwer Sen and under Sections 148, 302, 307/34 and 452 I.P.C. against the remaining three accused, Shree Ram, Mohan Lal and Krishna. The accused-appellant pleaded not guilty and claimed to be tried.
9. At the stage of prosecution evidence, the evidence of P.W.1, Narayani (informant-eye witness), P.W.2, Mihilal (eye witness), P.W.3, Siyaram (eye witness), P.W.4, Narsingh, Head Constable (author of chik FIR), P.W.5, Dhruv Singh (constable), P.W.6, R.K. Chaubey (S.I.), P.W.7, Dr. S.C. Naugaria (author of injury report), P.W.8, Mahendra Pal Singh (S.H.O.) and P.W.9, Dr. A.C. Sharma (who conducted the postmortem) were record.
10. After conclusion of prosecution evidence, statement of accused persons were recorded. The accused persons had not adduced any evidence in their defence.
11. After conclusion of trial, learned trial Court after hearing the submissions of both sides, passed the verdict of guilty by judgment and order dated 28.04.1983, in which, all the five accused persons, namely, Chokhe, Shree Ram, Mohal Lal, Krishna and Kunwer Sen were convicted and sentenced as stated above.
12. Learned counsel for the appellant submitted that in support of the case of prosecution, nine prosecution witnesses were examined. P.W.1, Smt. Narayani (informant) has stated, in her evidence that in the night of the occurrence, she, alongwith her husband and two children was sleeping in her house under a Chappar and a small kerosene oil lamp was also lighted. She has also stated that accused, Chokhe, Shree Ram and Mohan Lal alongwith accused, Kunwersen and Krishna entered her house by scaling the boundary wall and accused Chokhe and Kunwersen asked their companions to kill her husband, who was sleeping on the middle cot. She further stated that accused Shree Ram, Mohan Lal and Krishna fired at her husband and when she tried to intervene, she was cought hold by accused Kunwersen and Chokhe. Accused, Kunwersen and Chokhe also remarked that her husband, Chironji was a police informer and he was a source of unnecessary harassment to them and that's why he should be killed. She also stated that on the above remark the three accused, who were armed with pistols, fired at her husband and one of the pellets struck her on the hand. On hearing the gun-shots and cries, Mihilal, Kishanlal and Sia Ram reached there armed with lathi and torches and seeing them accused ran away towards the eastern side. She also deposed in her evident that her husband died as a result of injuries caused by gun-shots and her husband was a police informer. A few days prior to the above incident, Munni, brother of accused Krishna and accused Mohan Lal were arrested by the police as a result of the information supplied by her. She also deposed that accused Mohan Lal and Shree Ram were sons of accused Chokhe while accused Krishna is son of accused Kunwersen. After the occurrence, she went to the Police Station alongwith her brother-in-law Kishanlal and lodged First-information-report Ext-Ka-1. Later on, she was medically examined. A Fard Ext-Ka-2 of the Kerosene oil lamp, which was lighted in her chhappar was prepared by the Investigating officer and she also thumb marked the same.
13. P.W.2 Mihilal, deposed in his evidence, that in the night of incident, he was sleeping at his house and he was awakened as he heard-gun-shots. When he came out of the house, he heard shrieks of wife of Chironji emanating from her house. Thereafter, he went to the house of Chironji alongwith a stick and a torch in his hand and when he was at some distance from the house of Chironji, he saw five accused, namely Krishna, Chokhe, Mohan Lal, Shree Ram and Kunwer Sen exiting the house of the Chironji and running in the eastern direction. When they tried to chase the accused they threatened him and (P.W.3), Sia Ram. He also deposed, in his evidence, that in the light of the torches, they saw the five accused persons, who were running out of the house of Chironji. Thereafter, they went to the house of Chironji and found he is lying dead.
14. P.W.3 Siya Ram, a neighbour of the deceased, has also given similar statement before the Court and has stated that he and Mihilal saw the accused persons exiting from the house of the deceased after committing the offence.
15. P.W.4, Nar Singh (Head Constable) scribed the first-information-report Ext-Ka-1 and corresponding G.D. entry Ext-Ka-3. P.W.5, Constable, Dhruv Singh stated, in his evidence that on 20-09-1982, he along with constable Nauwat Singh took the dead body of Chironji (deceased) to district head quarter, Budaun for Post mortem examination.
16. P.W.6, R.K. Chaudhari (S.I.) stated in his evidence that on 20-9-1982, he prepared panchayatnama Ext-Ka-4 and other connected papers Ext-ka-5 to Ka-10. He also stated that the dead body of deceased, Chironji was sent for post-mortem-examination to Budaun. He also proved Fard Ext-Ka-11 sample of plain and blood-stained earth, which was taken into possession from the scene of incident. He further stated that empty cartridges Ext-3 to 5 and Tikli and pellets were also collected by him from the scene of occurrence vide Fard Ext-Ka-12. He also prepared Fard Ext-Ka-13, which is blood-stained-bed-sheet and a portion of 'Baan' (joot piece) of the cot of the deceased Chironji, Exts-Ka-6 and 7 respectively were taken into possession. Fard Ext-Ka-2 of the Kerosene oil Lamp was also prepared. He also proved Fard Ext-Ka-14 of the torches of Kishan Lal.
17. P.W.7 Dr. S.C. Naugaria, stated in his evidence that on 20-9-1982 at about 2 P.M. he conducted medical examination of Smt. Narayani and found on her person an abrasion with swelling in an area of 10 cm x 5 cm on back of left hand and wrist with clotted blood present. He proved her injury report Ext-Ka-15. He also stated that to find out the nature of the weapon with which the injury was caused, he advised x-ray. He also proved x-ray report as Ext-Ka-16 and x-ray plate as material Ext-2 prepared by Dr. R.D. Abhi of Civil Hospital Budaun. He also stated that on the basis of the x-ray report, it appears that the injury was caused by some blunt weapon and not by firearm.
18. P.W.8 (S.I.) Mahendra pal Singh, S.O. Police Station-Kunwer Gaon, who is the Investigating officer of the case, has stated in his evidence, that on 20-9-1982, the case was registered at the Police Station in his presence. He proved site plan Ext-Ka-17. After completion of investigation, charge-sheet Ext-Ka-18 was filed against the accused. P.W.9, Dr. A.C.Sharma, stated in his evidence that on 20-9-1982 while he was posted as Medical officer, District Hospital Budaun, he conducted post mortem examination on the dead body of deceased Chironji and found on his person three gun-shot wounds. He also stated that the injuries found on the person of deceased Chironji were sufficient in the ordinary course of nature to cause his death. He also stated that he extracted twenty-six small and big pellets, fifty-nine small pellets, two cork pieces, four tiklees and one big Golee from the body of deceased Chironji, which were sealed into a packet. Inspite of full opportunity having been given to the accused, no oral defence evidence was given by any of them. However, the certified Copy of F.I.R.No.75 u/s 60 Excise Act State v/s Mohan Lal P.S. Kunwer Gaon dated 6-9-82 was filed from the side of the accused in their defence.
19. Learned counsel for the appellant has submitted that when the accused were examined u/s 313 Cr.P.C. they denied the allegations against them and stated that they have been falsely implicated in the present case because of enmity.
20. Learned counsel for the appellant has also submitted that according to FIR Ext-Ka-1 and statement of P.W.1 Smt. Narayani, when the incident took place a kerosene oil lamp (Dibia) was on in the chhappar of the deceased and it was in the light of this Kerosene oil Lamp (Dibia) that deceased was identified by Smt. Narayani, there is no mention of the Dibia in siteplan Ext-Ka-17 and thus it appears that the story of Dibia was introduced by the police only to create a source of light, in which accused persons could be identified. There is no doubt that in the siteplan Ext-Ka-17 neither Dibia was mentioned nor the place where the Dibia was in fact lighted, has been shown. However, a Fard Ext-Ka-2 of taking into possession of the Dibia was prepared by P.W.6. Soon after the start of the investigation, P.W.8 S.I. Mahendra pal Singh stated that when he reached the house of deceased Chironji, the Dibia was still lighted in the Chhappar. From these facts, it implies that the story that a Kerosene oil Lamp was lighted in the Chhappar of the deceased is an afterthought inasmuch as same was not disclosed in site plan Ext-Ka-21. The other entire reliable evidence discussed above can not be disbelieved.
21. Learned counsel for the appellant submitted that according to statement of Smt. Narayani, recorded by the police under section 161 Cr.P.C. the three accused persons, who were armed with pistols fired at her husband, Chirongi by putting their weapons on his person, but she denied in the court of having made the statement, when she was duly confronted with her previous statement recorded u/s 161 Cr.P.C.
22. Learned counsel for the appellant submitted that there is mention of Dibia (earthen lamp) in site plan (Ext. Ka-17), it appears that story of Dibia was introduced in the FIR as a source of light as after thought. He next submitted that motive of crime has been introduced in FIR that deceased was a police informer and accused persons were having grudge against him, due to this fact as they were facing trouble in view of role played by deceased as police informer, but accused persons have not subscribed at any point of time this proposition that the deceased was a police informer and due to his information, accused, Mohal Lal was challaned in a case under Section 60 of Excise Act by the police on 06.09.1982 at around two weeks ago. He next submitted that there is a serious medical inconsistency with regard to one injury suffered by informant allegedly at the time of incident as she has stated that this injury was caused to her when three armed accused persons had opened fire on her husband and she suffered this injury on her hand due to scattering of pellets, but P.W.7, Dr.S.C. Naugaria, who examined her injury, stated in his evidence that at the time of examination of the informant/injured, one abrasion and swelling in an area of 10 cm x 5 cm on back of left hand and wrist with clotted blood was found present. This injury was around half day old and simple in nature and X-ray was advised. On perusal of the X-ray report, it appears that this injury was caused by some blunt object and did not appear to have been caused by firearm. Dr. S.C Naugaria prepared injury report in his writing and signature, which is proved as Ext-Ka15. In the X-ray report, no pellets were found in the injury of the informant and no blackening or tattooing were present around the injuries, but could not speak with certainty that whether this injury was caused by blunt object or firearm. He admitted, in his evidence, that there is no mark of rubbing of pellets in this injury and it is most probable that this injury was caused, when her hand struck with force against the wooden portion of the cot, on which deceased was lying. Doctor, who examined her injuries, have accepted difference suggestions in this respect.
23. Learned counsel for the appellant while referring this medical inconsistency suggested that in fact P.W.1 had not seen the occurrence, which took place in midnight and there was no sufficient source of light at the place of occurrence, had she seen the incident, this inconsistency could not have occurred. He further submitted that evidence of P.W.1 (informant) becomes doubtful on account of above stated medical inconsistency and the other evidence of P.W.2 and P.W.3 are also not free from doubt as they stated that they had seen the accused persons when they were exiting from the house of the deceased with arms and when they challenged them, they threatened them. P.W.2 Mihilal admitted, in his cross-examination that about 5 to 8 years prior to the incident, there were proceedings under Sections 107 and 117 Cr.P.C. between accused, Chokhe and him because of the election of village pradhan. P.W.2 and P.W.3 are manufactured witnesses and they are wrongly projected as eye witnesses.
24. Learned counsel for the appellant further submitted that P.W.1 has admitted in her cross-examination that her clothes were not blood-stained during the incident but she was present on the spot and was trying to save her husband during the incident as stated by her, she must have received some blood-stain on her clothes. This also fortifies the defence version that she was not present on the spot at the time of incident. At the time of incident, she had not seen the actual incident of killing of her husband by some miscreants and subsequently, she implicated the accused-appellants due to enmity with her husband. Even P.W.3 has admitted this fact, in his cross-examination, that about about 5 to 8 years prior to the incident, there was proceedings under Section 107 and 117 Cr.P.C. between the accused, Chokhe and P.W.-2 Mihilal because of the election of Village Pradhan and P.W.2 and P.W.3 deliberately concealed this fact in their cross-examination.
25. Learned counsel for the appellant has lastly submitted that there are inconsistency in the evidence of P.W.1 (star witness of the case) as at one place, she has stated that she tried to clasp her husband to save him when accused persons were about to open fire on him, but at other place, she stated that she did not clasp her husband and only placed her hands on him. Thus, her evidence does not inspire confidence as eye witness of the incident.
26. Per contra, learned A.G.A. has submitted that it is a case of direct evidence of the wife of the deceased, which is corroborated by P.W.2 and P.W.3, who are the witnesses of neighbour. P.W.1 eye witness on account of incident in graphic manner and there is no reason to disbelieve her testimony. There was no occasion for her to falsely implicate the accused persons in the offence. Her evidence is coroborated by P.W.2 and P.W.3 as she stated that latter had seen the accused persons exiting from the house of the deceased with arms in their hands and they ran away from the place, they tried to challenge them, but they threatened them of life. He next submitted that in the FIR, the incident occurred at midnight of 19/20.08.1982 and this report was lodged within one and half hours at police station on the basis of oral statement of P.W.1 (wife of the deceased). The accused persons are named in the FIR and specific role has been assigned to them in the FIR, which is free from doubt and in view of prompt lodging of the FIR, its veracity increases as there was no opportunity on the part of the informant to make embellishment to introduce any after thought version therein. P.W.1 has stated that the accused fired total six shots at the deceased and her eye witness account of the incident is corroborated by the medical testimony of the author of her injury report. Only due to fact that no pellets were found from the injury of the informant, it cannot be stated with certainty that she had not received any pellet injury in the incident as testified by her, therefore, trial Court has rightly convicted the accused-appellants. The surviving appellant, Mohan Lal has also been attributed role of firing at the deceased and by medical evidence it is proved that he died due to firearm injuries. Some minor inconsistencies are bound to occur in the evidence of the witnesses of fact due to passage of time.
27. The postmortem examination report of the deceased, Chironji has been proved by Dr. A.C. Sharma (P.W.9). In the postmortem report, the following ante-mortem injuries were found on the person of the deceased :-
Injury No.1-Gunshot wound of entry 3cm x 2 cm, located on the outer aspect of left upper arm just above the elbow, directing upwards & medially and communicating with Injury No.2. Blackening and tattooing are present around the wound.
Injury No.2 -Gunshot wound of exit 3.5 cm x 2.5 cm on medial aspect of the left upper arm, 7 cm above Injury No.1. The margins are averted. On dissection, the muscles along the track between the two injuries were found to be lacerated.
Injury No.3-Gunshot wound of entry 1.5 cm x 1 cm x muscle deep on left side of lateral aspect of the left side of the chest. This wound is corresponds to injury no.2 when the arm is placed at side of the chest. No blackening or tattooing is present around the wound.
Injury No.4- Gunshot wound of entry 2.5 cm x 2 cm on the front of the left side of the chest, 10 cm away from left nipple at the 5 O'clock position. Blackening and tattooing were present around the wound. On dissection, the wound was found to be directed backward, downward and medially. The 7th and 8th ribs were found fractured. The left pleura, left lung, left dome of diaphragm and the anterior wall of stomach were found lacerated. Approximately one liter of blood was found in left pleural cavity. About 4 OZ of blood mixed with partly digested material was found in the stomach. One cork piece and two tiklis were recovered from the depth of the wound and twenty seven small pellets were recovered from the stomach, lung and thoracic wall.
Injury No.5-Gunshot wound of entry 2.5 cm x 2.5 cm present on the front of the right side chest, 4 cm away from nipple at four and half O'clock position. Blackening and tattooing were present around the wound. On dissection, the wound was found to be directed backward, downward and medially. The 5th and 6th ribs were found fractured. Pleura, right lungs and right dome of the diaphragm and the superior surface of liver were found lacerated. One litre of blood was found in right pleural cavity and ½ litre blood was found present in the peritoneal cavity. One cork piece, two tiklis, and thirty-two small pellets were recovered from the wound.
Injury No.6-Gunshot wound of entry 2.5 cm x 2cm present on the front of the abdomen, 0.5 cm above umbilicus at the 12 O'clock position. The wound was directed upward, backward and toward the right. Blackening and tattooing were present around the wound. The peritoneum and the inferior surface of liver found lacerated. Twenty six medium sized pellets were recovered from the wound.
Injury No.7-Gunshot wound of entry 2 cm x 2 cm was present on the back of the right lumber region, 7 cm from the midline and 10 cm above iliac crest. Blackening and tattooing were present around the wound. On dissection, the wound was found to be directed forward. The ascending colon was found lacerated and one long bullet was recovered from the wound.
Injury No.8- Gunshot wound of entry 4 cm x 3 cm was present on the front of the left thigh, 1 cm above and medial to two pellet wounds. Blackening and tattooing were present around the wound. On dissection, the wound was found to be directed backward and upward, communicating with Injury No.9.
Injury No.9- Gunshot wound of exit 3 cm x 2 cm was present on the back of the left thigh, 18 cm above knee. The track connecting it with Injury No.8 was found traversing the thigh muscles, medical to the femur bone. The muscles were found to be lacerated.
28. In the opinion of Dr. A.C. Sharma (P.W.9), who conducted the postmortem examination, the death was caused due to shock and haemorrhage as a result of ante-mortem injury Nos.4, 5 and 6.
29. P.W.9, Dr. A.C. Sharma, has stated in his testimony that he conducted the post-mortem examination of deceased (Chironji), on 20.09.1982 at 4:30 pm. The body was brought for post-mortem by Constables Dhruv Singh and Nauwat Singh. The deceased was approximately 35 years old, and the time of death was between 3 and 4 days ago. The rigor mortis present all over body and patches of greenness discolouration were present. One pair of underwear and one vest were recovered from the body of the deceased. In addition, one long bullet, twenty-six pellets, fifty-nine small pellets, two cork piece and four tikles, total 92 items were handed over to the police constable.
30. Having regard to the contention of learned counsel for the parties and on appreciation of evidence on record, we find that incident occurred in village- Bhansi, Police Station Kunwar Gaon, District Budaun in the intervening night of 19/20.09.1982, in which, Chironji shot dead by miscreants, when he was sleeping inside his house on cot. P.W.1, Narayani (wife of the deceased), who visited the police station along with brother-in-law (Jeth) and lodged oral FIR against five named accused persons, namely, Chokhe, Shree Ram, Mohan Lal, Krishna and Kunwer Sen as assailants and killers of her husband. She also stated in FIR that motive of commission of murder of her husband was that the accused persons had apprehension that her husband was police informer. The assailants entered her house during the intervening night by scaling the boundary wall. Informant, along with her husband and children were sleeping under the thatched roof of the house as usual and an earthen kerosene lamp was burning in the cavity of the wall. The assailants are co-villagers and well known to her. The accused-appellants, Chokhe and Kunwer Sen, exhorted the other three accused persons to kill Chironji, as he had caused them much trouble. Thereafter, accused-appellants, Krishna, Shree Ram and Mohan Lal opened fired at him, due to which, her husband died on the spot. The accused-appellants fired their respective firearms, one of which also hit her left hand. Upon hearing her cries and sound of fire, her brother-in-law (Jeth), Kishan and co-villagers, namely, Mihilal and Siya Ram arrived at the spot by flashing their torches. They challenged the accused persons, who had came from her house and went towards eastern agriculture fields. She also stated in the FIR that her husband as police informer. The accused persons had a grudge against him and killed him due to this enmity. The informant, (Narayani) has proved the version stated in her FIR through her evidence as P.W.1 before the Court. Despite the fact that her husband was killed by miscreants in cold blood during the night, the informant did not waste any time and rushed to the police station located about 2.5 kilometers from her village along with her brother-in-law (Jeth) to lodge the FIR. As per chik FIR (Ext.Ka-1), the prompt lodging of the FIR without an iota of delay, the possibility of false implication, embellishment, or concoction is ruled out. In the FIR itself, the informant has stated the motive and the sequence of events that led to the death of her husband, as well as the mod and manner, in which, she sustained an injury on her left hand during the incident.
31. Thus, in view of the above, the prompt lodging of the FIR strengthens its credibility. There is nothing on record to suggest that the FIR was ante timed. The Investigating Officer also prepared an inventory of the receiving of torch produced by the witnesses, namely, Krishan, Mihilal and Siyaram on 20.09.1982, in moonlight. After committing the offence, the accused persons fled the scene while exiting the house of the deceased. This inventory has been proved as Ext. Ka-14 through the testimony of the Investigating Officer.
32. Much emphasis has been laid on the medical evidence tendered by P.W.7, Dr. S.C. Naugaria, who testified before the Court that on 20.09.1982, he was posted as a Medical Officer at the District Hospital, Badaun. On that day, at 2:00 P.M., he prepared the injury report of Smt. Narayani (wife of the deceased). Upon examination, he found one abrasion with swelling, measuring 10 cm × 5 cm, on the back of her left hand and wrist, with clotted blood present. He opined that the injury was approximately half a day old at the time of examination. He also proved X-ray of the P.W.1, Narayani. P.W.7, Dr. S.C. Naugaria, stated in his evidence that upon examination of the injury, no pellets were found, therefore the injury did not appear to have been caused by a firearm. He also clarified that if any pellets had been recovered from the injury, or if any blackening and tattooing had been found around it, then it could have been stated with certainty that the injury was caused by a firearm. In cross-examination, he also stated that if the distance between the weapon and the site of injury is about 4 feet, then the probability of blackening and tattooing is higher. There is no mark of pellet fragments in this injury. He also stated that if pellets strike the body while grazing it, an abrasion or laceration may occur. Thus, from the evidence of P.W.7, it can be inferred that the medical witness opined that the injury sustained by P.W.1, Narayani, was caused by a blunt object, and the probability of it having been caused by pellets from a firearm is less. However, the witness does not rule out the suggestion that the injury sustained by P.W.1 could have been caused by pellets. P.W.1 stated in her evidence that she suffered a pellet injury on her left hand when the three accused persons were firing shots from their respective weapons at her husband, who was sleeping on a cot. She did not exaggerate by claiming that the accused intended to kill her as well, or that the pellet injury was caused in furtherance of such an intention. The crux of her evidence is that she sustained a pellet injury on her hand accidentally while the accused persons were targeting her husband. The mode and manner of inflicting firearm injuries by the accused persons, including the present appellant, have been described by P.W.1 in her testimony before the Court. The injuries sustained by the deceased are corroborated by the medical evidence. The post-mortem report of the deceased reveals that he sustained firearm injuries during the incident, and the bodily injuries inflicted upon him, in all probability, sufficient to cause his death. P.W.1, Narayani, has categorically stated in her evidence that at the time of the incident, she was sleeping in the thatched house along with her husband and children. She was sleeping on one cot, and her children were sleeping on another cot beside the deceased. Thus, it is evident that the deceased, his wife, and their children were all sleeping in the same room. Therefore, it cannot be assumed that P.W.1 did not witness the incident. P.W.1, Narayani, also stated in her evidence that the accused persons, Krishna, Mohan Lal, and Shri Ram fired at her husband on the exhortation of the accused Chokhe and Kunwar Sen, during which a pellet struck her hand. No fault can be found with the statement of the witness, as it is natural and highly probable. Furthermore, no such suggestion was made to the witness during her cross-examination by the defence.
33. It is a settled proposition of law that medical evidence and opinion are not substantive evidence. However, if the eye witness account is supported by medical evidence, it makes the testimony of the eyewitness more reliable and authentic. It is not the case of the prosecution that the accused persons were armed with any blunt object, if that would be a case, there might have been a possibility that P.W.1 sustained an injury on her hand from a blunt object or weapon. Be that as it may, there was no occasion for P.W.1 to conceal the mode and manner of the injury sustained on her hand. Her version in this regard appears natural that when the assailants opened fire at her husband for the second time, one of the pellets from the gunfire struck her hand. The occurrence took place at night, and according to the evidence of the witnesses, the only source of light was an earthen kerosene lamp burning in a cavity in the wall. In such a scenario, some minor contradictions in the statement of P.W.1 are natural and cannot be fatal to the prosecution. Upon examining the entire evidence of P.W.1, it is found to be consistent with the version in the FIR, and there are no material contradictions in her brief testimony before the Court when compared with her previous statement under Section 161 Cr.P.C. or the FIR. It is clarified in her evidence that she had gone to lodge the FIR after leaving her children with her brother-in-law (dever), Triveni. The accused, Chokhe and Kunwar Sen, were empty-handed. P.W.1 also stated during cross-examination that she had not told the Investigating Officer that the accused had fired by pointing their weapons at her husband. She sustained pellet injuries while trying to save her husband. She was not hit separately by any of the accused.
34. It is incorrect to say that after the death of her husband, P.W.1 Narayani dashed her hand against the wooden frame of the cot. In the process, she sustained an injury to her hand. She has given a graphic account of the sequence of events in her evidence and there is no reason to disbelieve her eyewitness account.
35. The Hon'ble Supreme Court in Ramakant Rai vs. Madan Rai report in 2005 SCC Cr.R 1126 (SC), while explaining the evidentiary value of ocular evidence, observed as under:-
"It is trite that where the eyewitnesses' account is found credible and trustworthy, medical opinion pointing to alternative possibilities is not accepted as conclusive. Witnesses, as Bantham said, are the eyes and ears of justice. Hence the importance and primacy of the quality of the trial process. Eyewitnesses' account would require a careful independent assessment and evaluation for their credibility which should not be adversely prejudged making any other evidence, including medical evidence, as the sole touchstone for the test of such credibility. The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be credit-worthy; consistency with the undisputed facts the 'credit' of the witnesses; their performance in the witness box; their power of observation etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation ."
36. On examining the post-mortem report of the deceased, it is found that the deceased sustained as many as six exit wounds. This was due to the presence of a large bullet and a significant number of pellets, cock pieces, and tiklis, which were found in the injuries and recovered from the dead body. P.W.9, Dr. A.C. Sharma, stated in his cross-examination that blackening and tattooing were found on all the injuries. These signs typically occur when the distance between the firearm and the target is between 1 to 3 feet. If the distance is less than 1 foot, singeing may also occur. However, this may not happen if the barrel of the firearm is small. P.W.1 has not been stated in her evidence that accused persons had shot firs by pointing their weapon at the body of the deceased. However, she has stated that the assailants were standing near the cot of the deceased and fired at him, resulting in his death on the spot.
37. Thus, from the statement, it appears that fire was shot from short distance, resulting in tattooing and blackening around the wounds. On that basis, no doubt can be expressed on the evidence of eyewitness. P.W.9, Dr. A.C. Sharma, stated in his cross-examination that Injury No.6 on the deceased was found on his back and it appears that this injury was caused from behind. He also stated that if a person is lying in a supine position and the back is not exposed, Injury No.7 could not have been caused. He also stated that this injury can occur only if the barrel of the firearm and the site of the injury are properly aligned. According to the eye witness account, the deceased was shot with a firearm while he was sleeping.
38. Keeping in view the number of entry wounds, it appears that the deceased sustained six firearm injuries. This was not a natural death. It cannot be assumed that even after receiving first set of firearm injuries, he did not move even due to trauma and remained in the same position. Therefore, the eye witness account of P.W.1, who is a natural witness, is corroborated by the medical evidence. We find no material medical inconsistency in the case with regard to the antemortem injuries sustained by the deceased.
39. P.W.2, Mihilal and P.W.3, Siyaram are next-door neighbours of the deceased. In their statements before the Court, they stated that upon hearing the cries of the wife of the deceased and the sound of gunfire, they got up and ran towards the house of the deceased. They saw the accused persons, Chokhe, Shree Ram, Mohan Lal, Krishna and Kunwer Sen running towards the east. When they chased them, the accused threatened them with dire consequences. The evidence of P.W.2 and P.W.3 is quit natural and nothing could be elicited in their cross-examination to suggest that they did not see the accused persons emerging from the house of the deceased and running towards the east. The testimony of Mihilal (P.W.2), who is a neighbour of the deceased, cannot be doubted merely because some proceedings under Sections 107 and 117 Cr.P.C. were initiated by the police between his father and the accused, Chokhe, a few years prior to the incident, in connection with the Gram Pradhan election. He is not a chance witness but natural witness being a neighbour of the deceased. The accused persons have not taken any specific plea of enmity between themselves and the deceased. They have only stated that they were falsely implicated due to enmity. However, the prosecution has taken this stand from very beginning at the stage of lodging of the FIR that the deceased was a police informer and for that reason, the accused persons bore a grudge against him. A certified copy of the recovery memo in Case Crime No. 75 of 1982, under Section 60 of the Excise Act, Police Station Kunwar Gaon, District Badaun, dated 06.09.1982, reveals that the appellant, Mohan Lal, was arrested by the police on the charge of possessing two bottles of country-made illicit liquor. This FIR under Section 60 of the Excise Act precedes the present FIR by 14 days.
40. From the perusal of the copy of FIR lodged under Section 60 of Excise Act and the evidence of P.W.1 and P.W.3, it appears that the accused-appellant, Mohan Lal had a motive to commit the offence, as he was under the impression that two weeks prior to the incident, he had been arrested by the police on information provided by Chirongi (deceased). Therefore, the prosecution has successful proved the motive, as introduced in FIR, through both documentary and oral evidence. However, since the case is based on direct evidence of eye witnesses, the motive in such a case is not of much significance.
41. From the foregoing discussion, which is based on a reappraisal of the evidence in the present appeal, we are of the considered opinion that the prosecution has proved the guilt of the accused-appellant beyond reasonable doubt that he in prosecution of common object of unlawful assembly committed murder of the husband of the informant.
42. We find no factual or legal error in the findings recorded by the trial court while convicting the surviving accused, Mohan Lal, who was also one of the assailants and had inflicted fatal injuries on the person of the deceased. The findings recorded by the trial Court and the sentence awarded to the appellant on the basis of proved charges are in accordance with law and are liable to be affirmed.
43. Consequently, the conviction recorded and sentence awarded by the trial court to the surviving appellant, namely, Mohan Lal for charge under Sections 147, 148, 452 and 302 of the I.P.C., is affirmed in the present appeal.
44. The surviving appellant, Mohan Lal, who has been enlarged on bail in the present appeal, is directed to surrender before the trial court within two weeks. The trial court shall take him into custody and send him to jail along with the conviction warrant to undergo the sentence awarded by the trial court and affirmed by this Court.
45. In case, appellant, Mohan Lal, fails to surrender before the trial Court, the trial Court shall procure his attendance by issuing coercive process.
46. The appeal lacks merit and is hereby dismissed.
47. Let a copy of this judgment be sent to the trial Court along with lower court record for necessary compliance.
Order Date :- 13.08.2025
Amit
(R.M.N.Mishra, J.) (Siddhartha Varma, J.)
