Allahabad High Court
Anil vs State Of U.P. on 6 August, 2025
Bench: Rajiv Gupta, Subhash Chandra Sharma
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2025:AHC:132833-DB Reserved on 21.03.2025 Delivered on 06.08.2025 Case :- CRIMINAL APPEAL No. - 756 of 2014 Appellant :- Anil Respondent :- State of U.P. Counsel for Appellant :- A.K. Sharma,Apul Misra,Ashish Kumar Srivastava,Kamal Kishor Mishra,Vinod Kumar Ojha Counsel for Respondent :- G.A.,Kukhtar Alam,Mohit Jankhera,Mohit Kumar And Case :- CRIMINAL APPEAL No. - 690 of 2014 Appellant :- Raj Kumar And 3 Others Respondent :- State of U.P. Counsel for Appellant :- Aditya Kant Sharma,Anil Kumar Pandey,Ankur Tyagi,Apul Misra,Gopal S. Chaturvedi,P. Bhardwaj Counsel for Respondent :- Mohit Kumar,Muktar Alam Hon'ble Rajiv Gupta,J.
Hon’ble Subhash Chandra Sharma,J.
(Delivered by Hon’ble Subhash Chandra Sharma,J.)
1. Heard Sri Apul Misra, learned counsel for the appellants, Sri A.N. Mulla assisted by Sri Arun Kumar Pandey, learned AGA for the State, Sri Mohit Kumar, learned counsel for the first informant and perused the record.
2. Both the appeals have been filed against the same judgment and order dated 31.01.2014 passed in Sessions Trial No. 810 of 2008 arising out of Crime No. 530 of 2008 under Section 148, 452, 302/149, 307/149, 506 I.P.C.; Session Trial No. 811 of 2008, arising out of Crime No. 545 of 2008 under Section 25 Arms Act and Sessions Trial No. 814 of 2008 arising out of Crime No. 539 of 2008 under Section 25/27 Arms Act, Police Station Deoband, District Saharanpur by which appellants were convicted and sentenced under Section 302/149 for life imprisonment and fine Rs. 20,000/- for each and in default of payment of fine one year additional imprisonment; under Section 307/149 ten years rigorous imprisonment and fine Rs. 10,000/- for each in default of payment of fine one year additional imprisonment. Appellant Adesh @ Kala was also convicted and sentenced under Section 25/27 Arms Act for a period of three years rigorous imprisonment and fine Rs. 5,000/- in default of payment of fine six months additional imprisonment.
3. Facts in brief are that on 22.08.2008 the informant Gita Ram was talking to Pradhan Rampal Singh in front of the shop of Surendra. In the mean time Raj Kumar came there and started abusing him. He after pacifying him tried to send him to his house but at about 6 ‘o’ clock, he alongwith his family brother Bhushan and Kaku @ Jitendra armed with licensee gun and pistol; Adesh @ Kala having licensee gun of his father, Pramod, Titu, Anil and Raj Kumar having pistols came into his Gher and started firing on him. He cried for rescue on which Mahipal, Anuj, Babu Ram and other persons from the village came there. The accused persons opened firing with intention to kill them causing injuries to Mahipal, Babu Ram, Anuj and Raj Kumar. They sustained injuries. This incident was witnessed by Raj Kumar, Bhopal, Sonu and others who tried to rescue the life of the informant. He took the injured persons to police outpost with the help of villagers on a tractor/trolley. On the basis of written tehrir by informant Gita Ram, First Information Report was lodged on 22.08.2008 at 18:40 p.m. Later on injured Mahipal succumbed to injuries. The investigation of the case was entrusted to outpost Incharge Adesh Kumar.
4. The injured Sonu, Babu Ram, Raj Kumar were medically examined on 22.08.2008.
5. On the person of the injured Sonu following injuries were found.
(i) Multiple gun shot wound of entry in an area of 22 x 12 cm on back of right side chest upper part extending to both neck and back of right side head measuring 0.1 x 0.1 cm in size collar abrasion around the wound fresh bleeding present.
Injury was caused by firearm and was fresh.
In supplementary report at skull, neck and chest radio-opaque metallic density was seen in skull region, two in neck, six in chest.
6. On the person of the injured Babu Ram following injuries were found:-
(i) Multiple gun shot wound of entry in an area of 23 x 10 cm on back of chest middle upper and lower part size is measuring of 0.1 x 0.1 cm collar abrasion bleeding present.
(ii) Multiple gun shot wounds of entry in an area of 12 x 29 cm on back and front of left upper arm size is measuring 0.1 x 0.1 cm collar abrasion bleeding present.
(iii) Gun shot wound of entry size is measuring 0.1 x 0.1 cm back of left side head behind left ear collar abrasion bleeding present.
(iv) Red abrasion 6.5 x 0.7 cm back left upper arm.
Injuries were caused by firearm.
In X-Ray radio-opaque metallic density seen on left side chest and on skull one radio-opaque metallic density seen.
7. On the person of the injured Raj Kumar s/o Kashiram following injuries were found:-
(i) Lacerated wound of 0.25 cm x 0.25 cm x depth not proved, oval in shape, present on the right side chin, no blackening, no tattooing, no scorching (kept under observation), advised X-ray.
(ii) Lacerated wound of 0.25 x 0.25 cm x depth not proved, oval in shape present on the back of the left elbow, no blackening, no tattooing, no scorching (kept under observation), advised X-ray.
(iii) Lacerated wound of 0.25 x 0.25 x depth not proved, oval in shape on the palm of left hand near left wrist joint, no blackening, no tattooing, no scorching is present (kept under observation), advised X-ray and fresh bleeding oozing out, duration fresh.
Injuries supposed to be from firearm.
In X-ray supplementary report (i) on right elbow region one radio-opaque shadow of metallic density was seen;
(ii) In left hand region one radio-opaque shadow of metallic density seen.
(iii) One radio-opaque shadow of metallic density seen in mandible region.
All injuries were simple in nature and caused by firearm weapon.
8. The inquest of deceased Mahipal was conducted by S.I. Adesh Kumar at S.B.D., District Government Hospital Mortuary Saharanpur on 22.08.2008 at about 22:50 p.m.
9. After preparing inquest and other relevant papers he sealed the dead body and handed over to Constable Vinod Kumar and Yashpal Singh to carry it for post-mortem.
10. In post-mortem following ante-mortem injuries were found on the dead body of Mahipal Singh.
(i) Multiple lacerated wound in an area of 32 cm x 29 cm as just and outer surface of right side chest including right shoulder joint, size varying from 0.4 cm x 0.4 cm x cavity deep x 0.8 cm x 0.8 cm cavity deep, margins are inverted, collar of abrasion present around the wounds.
(ii) Multiple lacerated wounds in an area of 34 cm x 17 cm on outer surface of right upper arm and extending up to middle or forearm size ranging for 0.4 cm x 0.4 cm x muscle deep to 0.6 cm x 0.6 cm x muscle deep, margins are inverted. Collar of abrasion is present. 5 metallic pellets recovered from the body those were handed over to Constable concerned. Cause of death was shock due to hemorrhage, as a result of ante-mortem firearm injury.
11. The Investigating Officer inspected the place of occurrence prepared site plan and after recording the statements of the informant and other witnesses acquainted with the facts of the case found prima facie case established and filed charge sheet under Sections 147, 148, 149, 452, 302, 307 and 506 I.P.C. against the accused Raj Kumar, Adesh, Bhushan, Kaku @ Jitendra, Pramod, Titu @ Dheeraj and Anil. Against Adesh @ Kala offence under Section 25/27 Arms Act was found to be made out and charge sheet was filed likewise against the accused Bhushan offence under Section 30 Arms Act was found to be made out, as a result charge sheet was also filed against him. Against the accused Raj Kumar offence under Section 25 Arms Act was found to be made out and charge sheet was filed.
12. The court concerned took cognizance of the offences and after compliance of section 207 Cr.P.C. committed the case for trial.
13. The learned trial court framed the charges against the accused-appellants under Sections 148, 452, 302/149, 307/149 and 506 I.P.C. Against the accused Adesh @ Kala and Raj Kumar charges under Section 25/27 and 25 Arms Act were framed. Charges were read over and explained to the accused-persons who denied the charges and claimed for trial.
14. The prosecution examined P.W. 1, Anuj @ Sonu; P.W. 2, Gita Ram, the informant; P.W. 3, Bhopal; P.W. 4, Dr. Karamveer Singh; P.W. 5, Dr. Keshav Swami; P.W. 6, Dr. Naresh Chand who conducted post-mortem of the deceased; P.W. 7, S.I. Adesh Kumar; P.W. 8, H.C. Jagpal Singh; P.W. 9, R. P. Dubey, Inspector Incharge; P.W. 10, Constable Ramdhan Singh; P.W. 11, Inspector R.S. Dhama; P.W. 12, S.I. Sunil Kumar; P.W. 13, Dr. Surendra Singh, Radiologist; P.W. 14, Constable Vinod Kumar; P.W. 15, Constable C.C. Charan Singh; P.W. 16, S.I. Haricharan Sharma; P.W. 17, Constable Rajeev Kumar and P.W. 18, S.I. Rajendra Kumar.
15. After conclusion of prosecution evidence statements of accused-persons under Section 313 Cr.P.C. were recorded in which they denied the incident and the evidence on record and also stated that false recovery has been shown against them and they were implicated in the case due to enmity and parti-bandi of the village.
16. In defence DW 1 Sanjai Gupta, Bank Manager P.N.B. was adduced on the part of accused/appellants.
17. The learned trial court after hearing the arguments for the prosecution as well as the accused/appellants passed the judgment and order dated 31.01.2014 convicting and sentencing the accused/appellants as aforesaid against which this appeal has been preferred.
18. Learned counsel for the appellants submits that in this case appellants have been implicated falsely though they are innocent. The incident did not take place as it is narrated. There was absolutely no motive on the part of the appellants to commit the murder of the deceased Mahipal and to cause injuries to other injured persons. There was enmity between the parties. The witnesses are related to each other and not a single independent witness have been examined on the part of the prosecution, therefore, the witnesses being relative and interested, their testimony cannot be said to be reliable. The recovery said to be made is also false and could not be proved by the prosecution. In this way, the conviction and sentence as held by the learned trial court against the appellants being illegal is liable to be set aside and appeals are to be allowed
19. Learned A.G.A. opposed the aforesaid arguments and contended that on 22.08.2008 there was dispute with Raj Kumar in front of shop of Surendra resident of the same village. He was pacified at that time by the informant who went to his home. Later at about 6 p.m. he reached the Gher of the informant alongwith his other family members armed with licensee gun and tamancha. The appellants started firing and when the informant cried for help Mahipal, Anuj, Baburam and other persons of the village reached there to his rescue but the appellants also made fire on them consequent thereto Mahipal, Babu Ram, Anuj and Raj Kumar sustained firearm injuries. Lateron, Mahipal succumbed to his injuries. Since the appellants came on the spot from their home armed with weapons, therefore, it cannot be said that they did not intend to cause injury to the informant side. They also came in the Gher of the informant from their house, which also shows their ill intention. Since the appellants were more than five in number and came on the spot armed with lethal weapons and also caused injuries to the informant and others, clearly established that they formed an unlawful assembly and in furtherance of their common object they committed the offence. The witnesses though related to one another but are injured, therefore, they cannot be expected to tell a lie implicating the appellants falsely and leaving the real culprits Scott-free. The injuries on the person of injured were found to be caused with firearm as per medical reports which were proved by the doctor examining the injured persons. The weapons were recovered from the possession of the appellants that was licensee gun and was in the name of father of the appellant Adesh @ Kala, therefore, recovery can also not be said to be false. The deceased Mahipal also sustained firearm injuries and he died due to those ante-mortem injuries. The witnesses have categorically deposed before the learned trial court about the involvement of appellants in causing the incident. There was no previous enmity between the appellants and the prosecution witnesses, therefore, their testimony cannot be said unbelievable. The arms and the cartridges recovered were send to F.S.L. for ballistic experts opinion in which remnants of lead and nitrite were found in the barrel of the gun, showing their use in the incident. The learned trial court passed the impugned judgment and order after considering all the facts and evidence on record which cannot be said to be illegal but these appeals being devoid of merit are liable to be dismissed.
20. From the arguments raised by the learned counsel for the appellants as well as learned A.G.A. for the State, this Court has to decide as to whether there was any intention or motive to cause injury to the injured and murder the deceased Mahipal. Admittedly the appellants reached the spot equipped with firearms to commit offence in furtherance of their common object and they committed the offence by causing firearm injuries to Mahipal (the deceased), Anuj @ Sonu, Baburam and Raj Kumar who came to rescue the informant. The witnesses who are related to one another and also to the deceased are reliable or not and whether the learned trial court has passed the impugned judgment and order after appreciating the evidence on record properly.
21. In the present case, incident took place on 22.08.2008 at 6;00 p.m. and F.I.R. was lodged on the same day at 6:40 p.m. The distance between the place of occurrence and the police station is three and half kilometers. It shows that the F.I.R. was lodged at the police station concerned after 40 minutes of the alleged incident, therefore, F.I.R. is prompt and cannot be said to be lodged with any delay.
22. The place of occurrence is Gher of the informant as mentioned in the written tehrir. P.W. 1, 2 and 3 have also pointed out the place of occurrence to be the Gher. The site plan as prepared by the I.O. also shows the place of occurrence in the Gher of the informant.
23. The time of incident is 6 ‘o’ clock. In written tehrir the informant has mentioned the time of occurrence to be 6 p.m. P.W. 1, 2 and 3 also stated before the learned trial court, the time of occurrence to be ‘6’ p.m. The doctor who examined the injured persons has also deposed that injuries to the injured persons were caused at about 6 p.m. on 22.08.2008. Thus, the fact that the incident took place at 6 p.m., is also established.
24. The injuries were caused to P.W. 1, Anuj @ Sonu and all these injuries were caused with firearm likewise Baburam and Raj Kumar also sustained firearm injuries in the same incident. P.W. 4, Dr. Karamveer Singh and P.W. 5, Dr. Keshav Swami examined the injuries on the person of injured Anuj @Sonu, Baburam and Raj Kumar. P.W. 4. Dr. Karamveer Singh who deposed during trial before the learned trial court that injuries on the person of Anuj @ Sonu and Baburam were found to be caused with firearm and were possible on 22.08.2008 at about 6:00 p.m. P.W. 5, Dr. Keshav Swami had also deposed that the injuries on the person of Raj Kumar were caused with firearm and possible to be sustained at about 6:00 p.m. on 22.08.2008. Mahipal also sustained firearm injuries in the same incident who died and his post-mortem was conducted by P.W. 6, Dr. Naresh Chand. He deposed that the injuries on the dead body of Mahipal were caused by firearm and his death was a result of haemorrhage due to ante-mortem firearm injuries and his death was possible at about 6:00p.m. on 22.08.2008. P.W. 1, Anuj @ Sonu the injured has also deposed about the injury sustained with the firearm at about 6:00 p.m. on 22.08.2008. In the F.I.R. the incident has also been mentioned to have taken place on the same date and time. In this way, the manner and time of injuries also stands proved with the testimony of P.W. 1, Anuj @ Sonu, P.W. 4 Dr. Karamveer Singh; P.W. 5 Dr. Keshav Swami and P.W. 6 Dr. Naresh Chand. The incident is also established to have taken place on 22.08.2008 at about 6:00 p.m.
25. Now we are to examine the testimony as deposed by the prosecution witnesses.
26. P.W. 1 Anuj @ Sonu who was an injured witness deposed that he knew the accused Raj Kumar, Kala @ Adesh, Pramod, Bhushan, Kaku, Jitendra, Anil and Titu who were the resident of his village. Accused Raj Kumar, Pramod and Kala were real brothers and Titu was son of Raj Kumar. All the accused persons belong to same family and works together. On 22.08.2008 at about ‘6’ P.M. his father Mahipal, grandfather Babu Ram and Gita Ram were in their Gher. In the mean time, accused Raj Kumar, Bhushan, Kaku, Pramod, Titu, Anil and Adesh @ Kala together entered into their Gher. Kaku and Kala were equipped with gun, while others were armed with country made pistols. They opened fire on him with intention to kill by which he, his father Mahipal and grandfather Babu Ram sustained firearm injuries. Raj Kumar came there in their rescue. He also sustained injuries by firearm. Bhopal, Sonu, Subodh came on the spot and rescued them. Gita Ram hid him behind the stairs so he did not sustain firearm injury. He along with other villagers took the injured persons to police chowki Kheramughal and then went to Saharanpur hospital where he, Babu Ram and Mahipal were examined and his father Mahipal was declared dead. He and his grandfather remained admitted for 15 – 16 days in the hospital for treatment. Twenty days prior to the incident, the accused Raj Kumar and his son Titu ploughed their chakroad, to which his father Mahipal raised objection, consequent thereto the accused persons threatened to see them. Fifteen minutes prior to the present incident there was a dispute between accused Raj Kumar, Rampal and his grand father Gita Ram. This witness was cross-examined by learned counsel for the defence at length but nothing adverse could be elicited from his statements, rather he again reiterated that he, his father and grandfather sustained firearm injuries made by all the accused persons.
27. P.W. 2, Gita Ram, the informant deposed that he knew accused Raj Kumar, Pramod, Kala, Titu, Anil, Bhushan and Kaku resident of his village whose houses are adjacent to his Gher. On 22.08.2008 he was conversing with Rampal Pradhan standing on the Kharanja. Accused Raj Kumar reached there and started hurling abuses. He somehow pacified him. After a while at about quarter to 6 in the evening all the seven aforesaid accused persons armed with tamancha and gun entered into the Gher and opened fire with an intention to kill. He cried for help and hid himself. Mahipal, Babu Ram and Anuj reached there, in the Gher so as to rescue him. All three sustained firearm injuries, thereafter Raj Kumar who reached there also sustained firearm injuries. The incident was witnessed by Bhopal and Sonu. Then the accused persons ran away. On way to Khera Chowki accompanied with Mahipal, Babu Ram and Anuj, they met Brahmapal, who scribed the tehrir which he gave at the Kheramughal outpost. Mahipal later succumbed to his injuries. This witness was also cross-examined at length by the learned counsel for the defence, however he remained consistent and did not deviate from his statement rather supported the version that all the accused persons opened fire by which Babu Ram, Mahipal and Anuj sustained injuries.
28. P.W. 3, Bhopal is another eye witness who deposed that on 22.08.2008 at about 6:00 P.M. he was heading towards the jungle from his house. When he reached near the Gher of Gita Ram he saw Raj Kumar, Pramod, Adesh @ Kala, Jitendra @ Kaku, Bhusan, Titu and Anil who were armed with tamancha and two persons with licensee gun. All these persons entered into the Gher of Gita Ram through the southern gate. He alongwith Raj Kumar, Subodh and Sonu also entered into the Gher of Gita Ram from north side. The accused persons opened fire at Gita Ram with intention to kill where Sonu, Mahipal and Babu Ram were also present there who came to rescue Gita Ram. The accused persons also opened fire on them. However, Gita Ram to save himself hid behind the stairs whereas Mahipal, Sonu @ Anuj and Babu Ram sustained firearm injuries and one witness Raj Kumar also sustained firearm injuries. He saw the incident thereafter the accused persons fled away. Then the injured persons were brought to Kheramughal by tractor/trolley where Gita Ram lodged report at Police Chowki and then injured persons were taken to Saharanpur hospital where Mahipal was declared dead. Inquest was conducted by the police and he also put his signature on the inquest memo. This witness was also cross-examined by the learned counsel for the defence at length but nothing adverse was found in his testimony. He clarified that accused Jitendra @ Kaku and Adesh @ Kala were armed with guns while others with tamanchas and also stated that all the accused persons opened fire.
29. P.W. 4 Dr. Karamveer Singh deposed that he examined the injured Sonu and Baburam and prepared medical reports in his own handwriting and signature and proved them as Exhibit Ka 2 and 3 and also supplementary reports Exhibit Ka 4 and 5 and B.H.T. as Exhibit Ka 6 and 7.
30. P.W. 5, Dr. Keshav Swami deposed that he examined Raj Kumar and prepared medical report in his own handwriting and signature and proved it as Exhibit Ka 8 and a X-ray report Exhibit Ka 9.
31. P.W. 6, Dr. Naresh Chand Deposed that he conducted an autopsy on the person of the deceased Mahipal on 23.08.1981 at 3:20 p.m. He prepared the post mortem report in his handwriting and signature and proved it as Exhibit Ka 10.
32. P.W. 7, S.I. Adesh Kumar who investigated the case deposed that he copied the F.I.R., G.D. and recorded the statement of the informant. After spot inspection prepared site plan and took in possession the lathi and prepared its fard. Photograph of tractor having signs of pellets were also taken. He collected plain and blood stained soil from the spot. The inquest was also prepared by him with other papers including challan nash and photo nash, letter to R.I. and C.M.O. He stated that he prepared all these papers in his own handwriting and signature. He proved site plan as Exhibit Ka 11 Fard lathi Exhibit Ka 12, photograph material Exhibit 7, Fard plain and blood stained soil Exhibit Ka 13, inquest Exhibit Ka 14 and other papers Exhibit Ka 15, 16, 17 and 18.
33. P.W. 8, Head Constable Jagpal Singh deposed that he lodged the F.I.R. on the basis of tehreer given by the informant in his handwriting and proved it as Exhibit Ka 19 and the G.D. in which the contents of F.I.R. were entered by him as Exhibit Ka 20. When the deceased died the case was converted under Section 302 I.P.C. and he entered the detail in G.D. which he proved as Exhibit Ka 21 and also the G.D. prepared by Constable Charan Singh as Exhibit Ka 22.
34. P.W. 9, S.I. R.P. Dubey subsequent Investigating Officer proved site plans of recovery of Ala Katal from accused Raj Kumar as Exhibit Ka 23; from Jitendra @ Kaku Exhibit Ka 24 and the charge sheet Exhibit Ka 25. He also proved F.S.L. report regarding two licensee guns and tamancha as Exhibit Ka 26 and 27.
35. P.W. 10, Constable Ram Dhan, lodged F.I.R. in Crime No. 545/08 under Section 25 Arms Act and made its entry in G.D. He proved the Chick F.I.R. and G.D. in his writing and signature as Exhibit Ka 28 and 29.
36. P.W. 11, S.I. R.S. Dhama proved the recovery of D.B.B.L. gun from Adesh @ Kala as material Exhibit Ka 8 and its cloth material Exhibit Ka 9. The recovery of D.B.B.L. gun from the accused Jitendra @ Kaku as material Exhibit Ka 10 and cloth material Exhibit Ka 11. tamancha material Exhibit 12 and live cartridges as material Exhibit 13 and 14 and also proved recovery Fard as Exhibit Ka 30.
37. P.W. 12, S.I. Sunil Kumar arrested the accused persons Jitendra @ Kaku with D.B.B.L. gun, Adesh @ Kala with D.B.B.L. gun, Bhushan, Anil, Pramod and Titu on 25.08.2008. He prepared the arrest memo with recovery on dictation of S.I. Dhama. On 28.08.2008 he made arrest of accused Raj Kumar.
38. P.W. 13, Dr. Surnedra Singh Radiologist proved the X-ray of injured Raj Kumar son of Kashi Ram, Sonu and Baburam done under his supervision and X-ray reports were prepared by him in his handwriting and signature which he proved as Exhibit Ka 31, Exhibit Ka 32 and Exhibit Ka 33.
39. P.W. 14, Constable Vinod Kumar deposed that on 22.08.2008 he was posted at Kheramughal outpost. The sealed dead body of deceased Mahipal was handed over to him and Constable Yashpal which was handed over by them to the doctor for post mortem on 23.08.2008. In the way he did not let anybody to touch the sealed dead body. After post mortem dead body were handed over to the relatives and papers given by the doctor along with bundle of clothes were handed over to Sub- Inspector.
40. P.W. 15, Constable Charan Singh deposed that on 25.08.2008 when he was posted as Constable Clerk at P.S. Deoband he lodged an F.I.R. as Crime Nos. 538/08 under Section 25/27 Arms Act against accused Kaku @ Jitendra; as Crime No. 539/08 under Section 27/27 Arms Act and Adesh @ Kala; Crime No. 540/08 under Section 30 Arms Act against Bhushan; Crime No. 541/08 under Section 30 Arms Act against accused Somdatt. The Chick F.I.R. was prepared by him in his handwriting and signature which he proved as Exhibit Ka 35 and the details of which were entered into G.D. which he proved as Exhibit Ka 36.
41. P.W. 16, S.I. Harisharan Sharma deposed that on 26.08.2008 he was entrusted the investigation of Crime Nos. 538/08, 539/08, 540/08 and 541/08. After conducting the investigation he the filed charge sheet. During the course of investigation he prepared the site plan which he proved as Exhibit Ka 37 in his handwriting and signature. The charge sheet as Exhibit Ka 38 and Exhibit Ka 39.
42. P.W. 17, Constable Rajeev Kumar deposed that on 09.11.2008 he took the sealed box containing Maal Mukadma, a licensee D.B.B.L. guns for forensic examination to F.S.L. and handed over them in the F.S.L. on 10.11.2008 and 12.11.2008, the details of which has been proved by him as Exhibit Ka 40, 41 and 42. The G.D., Ravangi as Exhibit Ka 43 and return as Exhibit Ka 44 and 45.
43. P.W. 18, S.I. Rajendra Kumar who investigated the Case Crime No. 545/08 under Section 25 Arms Act, P.S. Deoband. He prepared site plan and filed charge sheet after taking prosecution sanction from the District Magistrate concerned. He proved site plan as Exhibit Ka 46; sanction from District Magistrate as Exhibit Ka 47; and charge sheet against the accused Raj Kumar as Exhibit Ka 48.
44. After conclusion of prosecution the statements of accused persons were recorded under Section 313 Cr.P.C. in which they stated the incident to be false & concocted; recovery of arms also to be false and having no knowledge about the medical examination and reports prepared by the doctors. They also pointed out the testimony of witnesses to be false; about recovery of D.B.B.L. guns stated that it was taken from their house and falsely planted against them.
45. In defence D.W. 1, Sanjay Gupta Manager of Punjab National Bank, Regional Office, Muzaffarnagar was examined who stated that on 22.02.1989 an advertisement was published in the newspaper for taking a building on rent for the bank for which Deen Mohammad, Jagdish Prasad Sharma, Ram Prakash and Chandu Lal have applied on 17.03.1989. Meeting was held and the building of Chandu Lal was selected for bank. The papers in this regard were prepared by him as Exhibit Kha 1 to Exhibit Kha 8. In his cross-examination he stated that Gita Ram, Anuj, Baburam and Bhopal did not apply for letting of the building.
46. Now, we have to consider the reliability and authenticity of testimony of P.W. 1, Anuj @ Sonu, P.W. 2, Gita Ram and P.W. 3, Bhopal who are witnesses of fact and were present on the spot at the alleged time of incident.
47. Since P.W. 1 Anuj @ Sonu son of Mahipal (the deceased) is injured witness having sustained injuries in the same incident and cannot be said to make false statement before the trial court regarding involvement of accused persons in which four persons sustained injuries and one of them died and he himself received injuries caused by firearm. There is absolutely no reason to falsely implicate the accused persons in the present case by absolving the real culprits. It is well settled principle of law that the testimony of injured witness cannot be brushed aside easily unless there is any cogent reason to falsely rope the accused persons for committing the offence and concealing the real ones. Even during the course of cross-examination nothing has been elicited to show that this witness falsely implicated some of the accused persons rather he in his testimony has given vivid description of the manner in which the incident has been committed by the accused assailants cogently and firmly painting out their involvement in the instant case.
48. Since he is injured witness, therefore his presence on the spot cannot be denied. The reliability of injured witness has been explained by the Hon’ble Apex Court in the case of State of U.P. Vs. Naresh and others (2011) 4 SCC 324. Para no. 23 is quoted as under:
23………………….The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence.
24. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. [Vide: Jarnail Singh v. State of Punjab, (2009) 9 SCC 719; Balraje @ Trimbak v. State of Maharashtra, (2010) 6 SCC 673; and Abdul Sayad v. State of Madhya Pradesh, (2010) 10 SCC 259].
In another decision of Mamo Dutt vs. State of U.P. (2012) 4 SCC 79, Hon’ble the Apex Court observed about the evidentiary value required to be attached to the evidence of an injured witness:
“Normally, an injured witness would enjoy greater credibility because he is the sufferer himself and thus, there will be no occasion for such a person to state an incorrect version of the occurrence, or to involve anybody falsely and in the bargain protect the real culprit.”……………….
Again in the case of Balwan Singh & others vs. State Of Haryana (2014) 13 SCC 560 Hon’ble the Apex Court observed thus:
“It is trite law that the evidence of injured witness, being a stamped witness, is accorded a special status in law. This is as a consequence of the fact that injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness would not want to let actual assailant go unpunished.”
49. P.W. 2, Gita Ram is informant and another eye-witness said to be present on the place of occurrence at the time of commission of incident. Initially accused Raj Kumar abused him in front of shop of Surendra when he was conversing with Pradhan Rampal Singh. This witness did not receive any injury though he was shot at, as he admittedly had hid himself behind the stairs. He is brother of injured Baburam and uncle of deceased Mahipal. In this way, he is related to the deceased and the injured. However, on the basis of being interested and relative witness his testimony cannot be be discarded and he cannot be said to be an unreliable witness. It is well settled principle of law that the testimony of reliable witness cannot be discarded merely on the ground of being a partisan and interested witness, rather such witnesses would be the last person to leave the real culprits and falsely implicate any other person.
50. In the case of Brahm Swaroop and another vs. State of U.P. (2011) 6 SCC 288 the Hon’ble Apex Court in Para No.21 has observed as under
“merely because the witnesses were related to the deceased persons, their testimonies cannot be discarded. Their relationship to one of the parties is not a factor that affects the credibility of a witness, more so, a relation would not conceal the real culprit and make allegations against an innocent person. A party has to lay down a factual foundation and prove by leading impeccable evidence in respect of its false implication. However, in such cases the Court has to adopt a careful approach and analyse the evidence to find out whether it is cogent and credible evidence.”
51. The Court also referred cases of Dalip and others vs. State of Punjab A.I.R. (1953) SC 364; Masalti vs. State of U.P. (A.I.R.) 1965 SC 202.
52. In Masalti vs. State of U.P. (A.I.R.) 1965 SC 202, the Hon’ble Apex Court observed in Para No.14
“but it would, we think, be unreasonably to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. The mechanical rejection of such evidence on sole ground that it’s partisan would inveriably lead to failure of justice. No hard and fast rule can be laid down as to how much evidence should be appreciated. Judicial approach has to be cautious in dealing with such evidence; but the plea that such evidence should be rejected because it’s partisan cannot be accepted as correct.
53. It is common knowledge that village life is faction ridden and involvement of one or the other in the incident is not unusual. One has also to be cautious about the fact that wholly independent witnesses are seldom available or are otherwise not inclined to comeforth. Lest they may invite trouble for themselves in future. Therefore, relationship of eye-witnesses, inter se, cannot be a ground to discard their testimonies. There is no reason to suppose the false implication of the appellants at the instance of the eye-witnesses. It would also be illogical to think that witnesses would screen the real culprits and substitute the appellants for them.
54. This Court has also made such observations in Para No.14 of Rameshwar and others vs. State 2003 (46) ACC 581.
55. The relation of witnesses P.W. 1 and P.W. 2 with the deceased can also not be a ground to discard their testimony unless there are some glaring inconsistencies in their testimony to inspire the Court to belie them. In the present case the presence of P.W. 1 and P.W. 2 on the spot is natural as the incident took place at the Gher of their house where the deceased and the witnesses lived. From their testimony nothing culls out to show that they were not present on the spot at the relevant time.
56. P.W. 3, Bhopal who is resident of the same village and not related to the deceased or other injured persons has also supported the prosecution version. He is not inimical to the appellants, therefore, his testimony is also wholly reliable.
57. The identification of the accused/appellants by P.W. 1; P.W. 2, P.W. 3 can also not be said to be doubtful because all of them are residents of the same village and generally in village life every person is known to one another so there may not be any error in their identification.
58. All of the accused/appellants reached on the spot together and opened fire on the deceased Mahipal and also made several rounds of firing causing firearm injuries to three other persons, namely, Anuj @ Sonu, Baburam and Raj Kumar. It infers their common object to commit the offence.
59. So far as the recovery of D.B.B.L. guns from the appellants Adesh @ Kala, Jitendra @ Kaku and tamanchas from the possession of appellant Raj Kumar is concerned, the appellant Jitendra @ Kaku died during pendency of the trial, therefore, no conviction was held against him likewise since no injury on the person of deceased or the injured was found caused with bullet used in tamancha 315 Bore, therefore, appellant Raj Kumar was also acquitted of the charges under Section 25 Arms Act.
60. The recovery of D.B.B.L. Gun No. 4995 from the appellant Adesh @ Kala relating to Crime No. 539 of 2008 has been proved by P.W. 11, R.S. Dhama, Inspector Incharge and also supported by P.W. 12 S.I. Sunil Kumar who was accompanying him. Exhibit Ka 26 the F.S.L. report showing the fouling matter remnants of lead and nitrite in the barrel and also the testimony of P.W. 1, 2 and 3 cogently and firmly establishes the fact that there was D.B.B.L. gun in the hands of appellant Adesh @ Kala and it was used in the commission of the offence as aforesaid regarding which Crime No. 539 of 2008 was registered.
61. Having given our considerations to the submissions made by learned counsel for the parties, we are clearly of the opinion that the prosecution has succeeded in establishing its case against the appellants beyond any shadow of doubt and the view taken by learned Additional Sessions Judge is just, proper and legal and needs no interference by this Court. The trial court did not err in convicting the appellants for the offences charged with. Accordingly, both the appeals are dismissed. The judgment and order of the trial court is affirmed.
62. Learned counsel for the appellants has informed this Court that during the pendency of these appeals, appellant Pramod son of Somdatt has already passed away. Learned A.G.A. as well as learned counsel for the first informant has acknowledged the said fact.
63. In view thereof, since the appellant Pramod has already passed away, the instant criminal appeal qua the appellant Pramod stands dismissed as abated.
64. The surviving accused appellants are on bail. They are directed to surrender before the trial court within a month to undergo the remaining part of their sentence, failing which the trial court is directed to adopt coercive measures for securing their presence.
65. The judgment and order of the trial court is affirmed. Copy of this judgment along with original trial court record be transmitted to the Court concerned for necessary compliance. A compliance report be sent to this Court within one month. Office is directed to keep the compliance report on record.
Order Date:- 06.08.2025
Suraj Srivastav
(Subhash Chandra Sharma,J.) (Rajiv Gupta,J.)