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Allahabad High Court · body

2019 DIGILAW 250 (ALL)

Nanhe v. State of U. P.

2019-01-31

DINESH KUMAR SINGH, UMESH KUMAR

body2019
JUDGMENT : Dinesh Kumar Singh, J. Heard Ms. Seema Pandey, learned Amicus Curiae for the appellant and Sri Arun Kumar Singh, learned A.G.A. for the State. 2. This Criminal Appeal has been preferred against the judgment and order dated 14.05.2010 passed by Special Judge, S.C./S.T. (P.A.) Act, Budaun in Session Trial No. 1097 of 2007, State Vs. Nanhe under Sections 302 and 307 I.P.C., P.S. Musajhag, District Budaun arising out of Case Crime No. 169 of 2007 and S.T. No. 1212 of 2007, State Vs. Nanhe under Section 25 of Arms Act arising out of Case Crime No. 170 of 2007 of the same P.S. whereby the accused appellant has been held guilty under Section 302 I.P.C. and has been awarded life imprisonment and fine of Rs. 5,000/- and in default of payment of fine, one year additional imprisonment and under Section 25 of Arms Act, he has been held guilty and has been awarded punishment of two years R.I. and fine of Rs. 1,000/- and in default of payment of fine, three months Additional Imprisonment. Both the S.Ts. have been decided by the common judgment against which aforesaid appeal has been filed. 3. In brief the case of the prosecution is that on 30.05.2007 at about 3:30 p.m., the informant Md. Ali (P.W.1) was going to the shop of Sant Ram along with his son, Saddam Hussain (deceased) for purchasing domestic articles, when they reached the said shop, they saw that Mahendra (P.W.2) and Nanhe were having an altercation with each other at which Sant Ram (younger brother of Mahendra) intervened and told Nanhe to go away from there, thereafter, Nanhe went away from there but hardly he had gone about 15 to 20 paces, he turned around and after taking out his pistol, made a fire which piercing through neck of his son, Saddam Husain, hit at the head of Mahendra. They had caught hold of Nanhe with the help of the villagers who were present there surrounding him and beat him, thereafter the injured was taken to the hospital where he died. They had caught hold of Nanhe with the help of the villagers who were present there surrounding him and beat him, thereafter the injured was taken to the hospital where he died. Upon the said written report (Exhibit Ka-1) of the informant, Case Crime No. 169 of 2007 was registered at P.S., Musajhag at 17:00 hours on 30.05.2007 under Sections 304 and 308 I.P.C., chick F.I.R. of which is Exhibit Ka-3 and the entry of the said case was made in G.D. at report No. 26 on the same day which is Exhibit Ka-4. Investigation of this case was handed over to I.O., Pramod Kumar Shukla, which was subsequently given to Viresh Pal Singh (P.W.8). The Investigating Officer prepared the site-plan, recorded statements of the witnesses and prepared papers related to Panchayatnama of the deceased, Saddam Hussain and after sealing the dead body of the deceased, sent the same for post-mortem. He also obtained the injury memo of the injured, Mahendra. During investigation, S.H.O. of the P.S. concerned, S.D. Chaudhari and others reached the place of occurrence and arrested the accused, Nanhe in injured condition and on his personal search, recovered a country made pistol of 315 bore from him in which there was one empty cartridge also. The accused could not show any licence to possess the same. The S.H.O., S.D. Chaudhari prepared the recovery memo of the said pistol as well as live cartridge and sealed the same and handed over the articles at Police Station on 30.05.2007 at 23:30 hours. At the same time, Case Crime No. 170 of 2007 under Section 25 of Arms Act was registered against accused, Nanhe, investigation of which was handed over to R.K. Sehgal, S.H.O., Ushait, District Budaun who prepared the site-plan (Exhibit Ka-11) of the place where the pistol and the cartridges were recovered, recorded statement of the witnesses and also obtained report regarding examination of the said country-made pistol recovered from the accused from F.S.L. which is Exhibit Ka-14, thereafter, obtained prosecution sanction from the District Magistrate (Exhibit Ka-13) under Section 25 of Arms Act against the accused and submitted charge-sheet under the said section which is Exhibit Ka-12. In the case under Sections 304 and 308 I.P.C., the charge-sheet has been submitted which is Exhibit Ka-10. 4. In the case under Sections 304 and 308 I.P.C., the charge-sheet has been submitted which is Exhibit Ka-10. 4. On the basis of evidence on record, charges under Sections 302, 307 I.P.C. and also under Section 25 of Arms Act were framed against the accused-appellant on 10.03.2008 to which accused appellant pleaded not guilty and claimed to be tried. 5. To prove the prosecution case from its side, Md. Ali as P.W.1, Mahendra as P.W.2, Sant Ram as P.W.3, Dr. R.S. Yadav as P.W.4, Server Ali as P.W.5, S.I. Shambhu Dayal Yadav as P.W.6, Dr. G.B. Lal as P.W.7 and S.I. Viresh Pal Singh as P.W.8 have been examined. 6. As documentary evidence from the side of prosecution, following documents i.e. panchayatnama of the deceased, Exhibit Ka-2, post-mortem report, Exhibit Ka-2/1, chik F.I.R. of Crime No. 169 of 2007, Exhibit Ka-3, G.D. of registration of case, Exhibit Ka-4, recovery-memo of the weapon and cartridges, Exhibit Ka-5, chik F.I.R. of Crime No. 170 of 2007, Exhibit Ka-6, the report of F.S.L., Exhibit Ka-14, the injury report of the injured, Mahendra, Exhibit Ka-8, site-plan with respect to Crime No. 169 of 2007, Exhibit Ka-9, charge sheet u/s 304 and 308 IPC, Ext. Ka-10, site-plan with respect to Crime No. 170 of 2007, Exhibit Ka-11, charge-sheet under Section 25 of Arms Act, Exhibit Ka-12, prosecution Sanction, Exhibit Ka-13 have been produced. 7. Thereafter the prosecution evidence was closed and the statement of the accused was recorded under Section 313 Cr.P.C. in which he stated the evidence collected by Investigating Officer to be false and denied any kind of recovery from him and further stated that he was arrested by police from his house and has been falsely implicated in this case, although he did no give any evidence in defence. 8. Learned trial court after having considered the entire case on record and having heard both the sides, has convicted the accused appellant and awarded him punishment under the aforesaid sections. 9. 8. Learned trial court after having considered the entire case on record and having heard both the sides, has convicted the accused appellant and awarded him punishment under the aforesaid sections. 9. Learned Amicus Curiae mainly argued on the point that there was no intention of the accused to kill the deceased and deceased died accidentally because as per F.I.R., the intention could have been only to kill Mahendra and not to the deceased, Saddam Hussain, therefore it was pleaded that case could fall at the most under Section 304 I.P.C. and not under Section 302 I.P.C. It was also argued that the sole injured, Mahendra who was intended to be killed upon whom the fire was made intentionally, has turned hostile as he has not supported the prosecution version saying that he could not see as to who had fired, therefore prosecution case against the appellant does not stand proved. 10. On the other hand, learned A.G.A. vehemently argued that there is no infirmity in the impugned judgement because father of the deceased as well as one independent witness have supported the prosecution version and the injuries received, which have been shown in the post-mortem report of the deceased, are also found to have been corroborated by the oral testimony. He has further relied upon Section 301 of the I.P.C. which provides that if a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause. Citing the above provision, it was contended that even if the deceased was not intended to be killed by appellant, rather, his intention was to kill Mahendra, would not absolve him of offence under Section 302 I.P.C. and would require to be punished under Section 302 I.P.C. only. 11. We would have to go through the evidence produced by the prosecution in detail so as to arrive on a conclusion as to whether learned trial court has convicted the accused-appellant erroneously? 12. P.W.1, Md. 11. We would have to go through the evidence produced by the prosecution in detail so as to arrive on a conclusion as to whether learned trial court has convicted the accused-appellant erroneously? 12. P.W.1, Md. Ali, informant, has stated in examination-in-chief that on 30.06.2007 at about 3:30 p.m., he was going to take certain domestic articles from shop of Sant Ram along with his son, Saddam Hussain and when he reached there, he found that Mahendra, P.W.2 and Nanhe (appellant) were having quarrel, thereafter, Sant Ram, who is younger brother of Mahendra told Nanhe to go away from there, thereafter Nanhe could hardly move 15-20 paces away from there and he took out his pistol and made fire which piercing the neck of deceased, Saddam Hussain, hit the head of Mahendra. All of them with the assistance of the villagers caught accused there and thereafter, the injured was taken to hospital where he succumbed to the injuries. He further stated that at that time apart from him, his brother Server Ali, Sant Ram, shop-keeper and various other persons were present who have seen the incident. He had lodged the report at P.S. Musajhag which was read out to him whereafter, he stated that it was the same report which he had got lodged and the same is Exhibit Ka-1. He further stated that Panchayatnama of the deceased was conducted in his presence which was witnessed by Server Ali, Afsar Ali, Jome Ali, Zakir Ali apart from him in which the cause of death was mentioned to be fire arm injury and it was advised that post-mortem be got conducted. Thereafter, the post-mortem of the deceased was conducted. His statement was recorded by I.O., whom he had stated all the details of the incident. 13. In cross-examination, this witness has stated that the house of Sarvar Ali was at a small distance from his own house in the same mohalla in which Manihar lives. At about 80-100 paces away from his house was situated a 'theka' of liquor which was being run by Sant Ram, Mahendra and Pappu etc. which is the only theka of liquor. Further he stated that he does the work of vending for which he starts from his house around 7:00-8:00 a.m. and keeps roaming from one village to another. At about 80-100 paces away from his house was situated a 'theka' of liquor which was being run by Sant Ram, Mahendra and Pappu etc. which is the only theka of liquor. Further he stated that he does the work of vending for which he starts from his house around 7:00-8:00 a.m. and keeps roaming from one village to another. On the date of incident, he had started from his house around 8:00 a.m. and had gone to village Dhauspur for 'feri' by his bicycle. His younger brother, Server (P.W.5) used to work as labourer in Delhi. When he reached the place of incident, the quarrel was going on but he could not tell as to since when the same had started. He could only see this much that Sant Ram had told Nanhe to go away from there. 14. Further he stated that to the east of the said shop of liquor, are situated the houses of Kishori Lal and Rameshwar Dayal and to the west of it, was the house of Bhagwan Singh but, thereafter stated that the house of Bhagwan Singh is situated to the north of it. To the west of the said shop, is a lane behind which are located the house. To the south of the said shop, are houses of Radhe Shyam and Ram Shyam. The occurrence had taken place exactly in front of said shop of liquor. On being enquired by court, he further stated that fire upon his son was made from the distance of 15-20 paces and the assailant was in the northern side from him. About two paces away to the south where his son was standing, Mahendra was present. The said shop remains open from 2:30 p.m. till 5:00 to 6:00 p.m. in the evening. 15. Further he stated that he had gone to lodge the report from hospital and as soon as his son was taken to hospital, he was declared dead by the doctor. His son died within 20-25 minutes of getting the said fire arm injury but he could not tell the exact time. 15. Further he stated that he had gone to lodge the report from hospital and as soon as his son was taken to hospital, he was declared dead by the doctor. His son died within 20-25 minutes of getting the said fire arm injury but he could not tell the exact time. Five minutes after receiving the said injury, they had left for the hospital in jeep of Pradhan and about 20-25 minutes must have been taken in reaching the hospital from the village and further stated that from hospital to police station, he had gone on a motor-cycle of an earlier Pradhan with Server Ali. He had got the written report prepared by Server Ali which was written inside the police station having taken a paper from there and must have been written within five minutes and after having lodged the report, they returned to the hospital. On the next date, after post-mortem had been done at about 5:00 p.m., he had returned to his village. He further stated that when he was gong for lodging the report, Mahendra had also come to the hospital. 16. During incident, he had raised alarm; he had not caught hold of the accused immediately, rather he had raised alarm after fire hit his son, hearing the same, Server Ali, Sant Ram, Ali Ahmed, Sami Ahmed etc. reached there. The accused was caught first of all by them only whereafter he had slapped him one or two times and, thereafter, the crowd which had assembled there, had also beaten him. While he was being beaten, he left the place in jeep of Pradhan along with his son. 17. He further stated that he had not taken the pistol in his possession and it was in the hand of the accused. The said pistol had fallen and the people assembled there had beaten the accused and had thrown him on the ground. The said pistol continued to lie on the ground there only. The Pradhan Ji had informed the police on phone whereafter the police reached the spot and took away the accused and he had gone to hospital. In the jeep of the same pradhan, he had taken his son to the hospital. The said pistol continued to lie on the ground there only. The Pradhan Ji had informed the police on phone whereafter the police reached the spot and took away the accused and he had gone to hospital. In the jeep of the same pradhan, he had taken his son to the hospital. The place where the accused was caught, to the south of that are houses of Madan Lal and Dharam Pal and to the west of it are houses of Name Chandra and Ausan Ali. In front of the house is located a road which goes from east to west. 18. Further he has stated that he returns home from 'fery' (vending work) in the evening. Sant Ram and Mahendra had not accompanied him to the police station nor had he told them to lodge the report but if they had gone to the police station subsequently, he has no knowledge. Further he has stated that Mahendra had come to the hospital separately 15 to 20 minutes after Mahendra having reached the hospital. When he returned from police-station after lodging the report, to the hospital, he had seen the accused in hospital. Mahendra was also conscious in the hospital; the accused remained unconscious for some time. At the time of incident, the accused was drunk; the house of the accused lies to the south of the place of incident. The blood has fallen at the place where his son had received injury. He had seen little bit of blood over there and the 'Banyan' of his son was wet by blood and even his own clothes had got blood stained but he had not given those clothes to the I.O. 19. The I.O. had interrogated him 20-25 days after the incident and had taken him to the place of incident where he had told him everything. He does not recollect whether he had entered the age of his son in the written report, although he was 11 years' of age. The height of the Mahendra was one feet more than that of his son. 20. At the time when his son received fire arm injury, he was 3-4 paces away from him; Mahendra was standing in the lane who was at a distance of 2-3 paces from him. The pistol which was recovered, was of 315 bore but he could not tell its description in detail. 21. 20. At the time when his son received fire arm injury, he was 3-4 paces away from him; Mahendra was standing in the lane who was at a distance of 2-3 paces from him. The pistol which was recovered, was of 315 bore but he could not tell its description in detail. 21. Further he has stated that he had shown the place where he was standing at the time of incident to the I.O. but if the same was not shown in the site-plan by him, he could not tell its reason. The accused could not run for a long distance before he was caught at the place, he had made fire. He denied the suggestion of not having been at the place of incident and not having seen the incident and that he had falsely implicated the accused due to enmity and also denied that the quarrel happened due to consumption of liquor in which his son got injuries and also denied that the accused was lifted from his house and, thereafter, he was beaten up and the pistol was planted falsely and that he was giving false statement only because his son had died. 22. P.W.2, Mahendra, the injured witness who according to the prosecution version, had received injury in the incident when the appellant is alleged to have made fire which hit the deceased first in his neck and after piercing his neck, hit Mahendra. This witness in examination-in-chief has stated that he was coming from the side of 'bazar' on the date and time of the incident and there was huge crowd there. About 10-12 paces away from the shop of Shabbir, some quarrel was going on and somebody out of the said crowd, had hit brick upon his head pursuant to which, his family members had taken him to hospital. He had not seen anybody firing upon him and nor had he any quarrel with anyone. 23. This witness in cross-examination has denied that he was a salesman at the shop of liquor and that the appellant had started to come in his shop in drunken condition because of which, he had told him not to come which resulted in abuses being hurled and that his elder brother, Sant Ram had counselled him whereon the appellant had taken out his pistol and made fire which brushing his head, hit son of Md. Ali (Saddam). Ali (Saddam). He could not tell as to how the said statement has been recorded by the I.O. and he further denied that Nanhe was arrested in his presence and also denied as to how I.O. had recorded in his statement that he was arrested in his presence. 24. P.W.3, Sant Lal has stated that incident happened about one to two years ago at about 3:30 p.m. when he was at his General Merchant shop. Mahendra is his real brother who is salesman at a liquor shop. He had not seen the accused, Nanhe present in court having any quarrel with Mahendra nor had he intervened between them nor the appellant had made any fire from his pistol. Further he stated that at some distance from his shop, the son of Mod. Ali, Saddam had received fire arm injury but he had not caught the appellant on the spot making fire on anyone. 25. This witness has stated in cross-examination that the I.O. had not made any interrogation form him. He had not stated to the I.O. that the appellant was having a quarrel with his brother who was counselled by him and was asked to go away whereon the appellant took out the pistol and made fire which hit Saddam Hussain piercing his neck and, thereafter, the said fire arm hit in the head of Mahendra nor had he stated to the I.O. that Nanhe had been surrounded there after having been beaten up, how these things were written in the statement, he could not tell. He also denied to give false statement under any kind of threat. 26. P.W.4, Dr. R.S. Yadav, who conducted the post-mortem of the deceased on 31.05.2007 at 3:15 p.m. has stated that he had found following ante-mortem injuries on the dead body of the deceased:- (I) Fire arm wound of entry 1x.5 cm. in the right side of neck which is upon the medial end of right clavicle. Neck cavity deep. (II) Fire arm wound of exit 2 x 1 cm. on the back of right chest, 11 cm. below from the right shoulder joint near upper medial border of right scapula, margins everted. This injury is communicating to injury no.1 though x through. Underneath the injury, nerves, vessels and muscles were lacerated and upper part of pleura and lung was found lacerated, about half litre blood present in right pleural cavity. 27. below from the right shoulder joint near upper medial border of right scapula, margins everted. This injury is communicating to injury no.1 though x through. Underneath the injury, nerves, vessels and muscles were lacerated and upper part of pleura and lung was found lacerated, about half litre blood present in right pleural cavity. 27. The cause of death was found to be shock and haemorrhage due to ante-mortem fire arm injury. Rigor-mortis was found to have passed off from upper limb. This witness has proved the post-mortem report as Exhibit Ka-2. 28. In cross-examination, this witness has stated that he could not tell as to how long before the death of the deceased, injury nos. 1 and 2 had been caused and also could not tell whether these injuries were caused directly or from any angle and what was the position/direction of the assailant. He had not found any ricochetting in the injury nos. 1 and 2 of the deceased nor had he found any bone to have been broken. The fire had hit right side of the neck and exited from behind the chest. He showed his inability to show as to whether the said bullet after hitting the deceased could have caused injury to anyone else and further stated that there could be difference of six hours in death on either side. 29. Server Ali, P.W.5 has stated in examination-in-chief that the incident happened on 30.05.2007 at 3:00 p.m. when he had gone to the shop of Sant Ram for purchasing items where Md. Ali and his son, Saddam Hussain had also come for purchasing. There, Mahendra and Nanhe were having some altercation. Sant Ram who is brother of Mahendra had asked him to go away from there whereon Nanhe had hardly gone to 20-22 paces away and had taken a U-turn and took out his pistol and made a fire which hit the neck of the deceased and head of Mahendra. Deceased was taken to hospital by him and Md. Ali where he was declared dead. Nanhe was caught on the spot after having been thrashed. Thereafter, he went to the police-station and at the dictation of Md. Ali, he had written the report in his hand writing which is Exhibit Ka-1. On the next day at about 12:00-01:00 p.m., the panchayatnama was done in mortuary which bears his signature. 30. Nanhe was caught on the spot after having been thrashed. Thereafter, he went to the police-station and at the dictation of Md. Ali, he had written the report in his hand writing which is Exhibit Ka-1. On the next day at about 12:00-01:00 p.m., the panchayatnama was done in mortuary which bears his signature. 30. In Cross-examination, this witness has stated that he does work of sale of clothes in Delhi. In the last election, his wife had contested the election of Pradhan against whom the wife of Ramphal Sahu and wife of Munendra had contested the election and the wife of Munendra, Kamlesh had won the same. Further he stated that when he reached the place of occurrence, the quarrel was going on between Nanhe and Mahendra and prior to his reaching there, Md. Ali was already present there. There was huge crowd on the place of incidence and villagers had beaten up Nanhe but he could not tell their names. Nothing was recovered from Nanhe in his presence because he had come to hospital with the injured son of informant. He had not gone towards the crowd which was beating the accused. First of all Md. Ali had caught the accused and, thereafter, other villagers had caught him and then Md. Ali had taken his son to hospital and as soon as he reached the hospital, his son was declared dead. When they had reached hospital, at that time, Mahendra and Nanhe had not reached there in his presence. The dead body was left in the mortuary and he along with Md. Ali had gone to the police-station. It must have taken one and half hours time in going from hospital to the police-station and coming back and when he returned from P.S., he found Mahendra and Nanhe in hospital. The father of the deceased was standing at a distance of 1-2 paces from the accused Nanhe when he had made fire and he was caught immediately, at that time he (P.W.5) was standing in front of the 'theka' of liquor. Md. Ali was standing at a distance of about two fts. from his son. The lane where the incident happened must be about 8-10 fts. wide and at that time people were passing through there. The fire was made by the accused from the northern side. Md. Ali was standing at a distance of about two fts. from his son. The lane where the incident happened must be about 8-10 fts. wide and at that time people were passing through there. The fire was made by the accused from the northern side. He has denied that any case under Section 25 of Arms Act is currently pending against him. He had not given any statement in case against Satish because he was not present on the spot and was giving evidence in the present case for the first time and denied that after having taken money, he was giving statement. 31. Further he stated that from in front of whose house, the fire was made by the accused, he could not tell. Deceased had received fire arm injury in front of the house of Kishori Lal and Rajeshwar Dayal and all these houses are situated in the east of the shop of liquor. He has no knowledge as to in which direction the doors of their houses open. During the incident, he was staying in his house in the village and used to go out for sale of clothes (feri) in the morning and used to return home. The deceased was not taken into hospital by the Pradhan, rather, he was taken by his brother, Sri Krishna in jeep. The distance of his village from the police-station is around 14 to 17 kms. from his village. As soon as deceased received fire arm injury and fell down, he was taken to hospital. He denied that he was making false statement because Nanhe and his brother Naresh had not helped him to contest the election and he denied that he had not seen the occurrence and was making false statement only because of being brother of Md. Ali and also denied that the deceased received fire arm injury in some quarrel which happened between drunkards in market and he was not on the spot. 32. S.I., Shambhu Dayal Chaudhari, P.W.6 who has investigated the case pertaining to Crime no. 169 of 2007 has stated in examination-in-chief that Constable Ram Pal Singh had worked under him who had registered the F.I.R. in the present case and prepared its chik (Exhibit Ka-3) and entry was made of this case by him in G.D., Exhibit Ka-4. 32. S.I., Shambhu Dayal Chaudhari, P.W.6 who has investigated the case pertaining to Crime no. 169 of 2007 has stated in examination-in-chief that Constable Ram Pal Singh had worked under him who had registered the F.I.R. in the present case and prepared its chik (Exhibit Ka-3) and entry was made of this case by him in G.D., Exhibit Ka-4. After registration of the case, he departed from the police station along with S.I., Pramod Kumar Shukla, Constable No. 396, Shyam Singh, H.C.P. No. 37, Viresh Pal Singh and Constable 671 Virendra Singh to the place of incident and found that a huge crowd was assembled there and one person was lying in injured condition in the lane about whom he came to know that this person is the accused-appellant, Nanhe who had been detained by Sant Ram S/o Kesari and others of the village. He was arrested in presence of witness Shyam Lal and Sankatu and after his search was made, a country made pistol of 315 bore was recovered from him in barrel of which was one empty cartridge found stuck and from pocket of his pant, one live cartridge of 315 bore was also found, the said country-made pistol and empty cartridge appeared to be connected with Crime No. 169 of 2007 and, therefore, a recovery memo was prepared on the spot, a copy of which was given to the accused and signatures of the witnesses were also obtained there on and arrest of the accused was made at 5:30 p.m. and the said recovery-memo is, Exhibit Ka-5. Thereafter, the accused appellant was brought to the police-station along with recovered country-made pistol and Case Crime No. 170 of 2007 under Section 25 of Arms Act was registered at P.S., chik F.I.R. of which is in the hand-writing of Constable Ram Pal Singh which is Exhibit Ka-6. This witness has further stated that country made pistol produced before court is material Exhibit-1, live-cartridge bearing chit with L.C.-1 and empty cartridge with chit, E.C.-1 were the same cartridges which were recovered from the accused and two empty cartridges with chits thereon T.C. 1 and 2 were test cartridges of C.F.L. A cartridge L.C.1 and E C-1 were marked as material Exhibits 2 and 3 respectively and cartridges T.C.1 and T.C. 2 as material Exhibits 4 and 5 respectively. This witness has further stated that F.S.L.'s report dated 7.12.2007 is available on file and according to the said report, E.C.1 cartridge had the same mark which was found on T.C.1 and T.C.2 and , therefore, it was found that the said cartridge was fired by same country-made pistol. 33. This witness at length has stated in cross-examination that there were cuttings on Exhibit Ka-3 with respect to the change in time as in place of 3:30 a.m., it was made p.m. and in Exhibit Ka-6, there were cuttings with respect to time as 13:30 hours was amended as 23:30 hours. In Exhibit Ka-4, it was recorded that while, the injured was being taken to hospital, he died on way and in this Exhibit also, there was no over-writing found in the time of 17:00 hours. He further stated that the Exhibit Ka-5 did not bear the signature of the accused although his arrest is shown to have been made at 5:30 hours. In this recovery-memo, beneath the signature of Constable Viresh Pal Singh, date 31.05.2007 is endorsed in which date has been changed from 31 to 30. Further this witness has stated that he must have taken six hours in completing his writing work and during this period, the accused remained in his custody and, thereafter the accused was lodged in jail and the recovered articles were deposited at the police-station at 23:30 hours. He had found the accused in injured condition who was interrogated by him but he did not state that he had made fire by the said pistol and was found in drunken condition because of which he was finding it difficult to speak. The pistol was found stuck in left 'fet' and no blood was found spilled where he was arrested although about the blood being found there, I.O. would be better person to state. The accused was found in the village lying on road which goes from east to west but he could not tell the house which were existing all around it. He does not recollect as to who had gone for spot inspection with the I.O. He did not find the signature of Sant Ram on the recovery-memo but he could not tell its reason. He had not seen any injury on the body of the injured nor any injury was entered in the recovery-memo. He does not recollect as to who had gone for spot inspection with the I.O. He did not find the signature of Sant Ram on the recovery-memo but he could not tell its reason. He had not seen any injury on the body of the injured nor any injury was entered in the recovery-memo. He could not tell the distance of the shop from the place where the accused was found. In writing Exhibits Ka-3 and Ka-4, about half an hour must have been taken and he might have reached at the place of occurrence from the police-station within 20 minutes from where, he has proceeded immediately with Inspector, Pramod Kumar Shukla. He has further stated that the clothes in which the country-made pistol and cartridges were sealed, did not bear signature or thumb impression of the accused. It was right to say that there were three blank cartridges in the sealed packet and one live cartridge and on those cartridges, 5 mm. and 'KF' was written which fact was not mentioned in the recovery-memo. He denied the suggestion that the accused was arrested showing false recovery of the said country-made pistol and the cartridges. 34. P.W.7, Dr. G.B. Lal has been examined and he stated in examination-in-chief that on 20.05.2007 at about 4:30 in the afternoon, he had conducted the medical examination of injured, Mahendra and found following injuries on his person:- (i) Lacerated wound of 0.3 cm. x 0.2 cm, depth of which was not measured and the same was found at the back of head 13 cms. away from ear, was kept under observation in which no blackening and tattooing was present; duration was fresh and he has proved the recovery-memo which is Exhibit Ka-8. and has further stated that the said injury was possible to have been caused on 30.05.2007 at 3:30 p.m. by fire arm. 35. In cross-examination, this witness has stated that without x-ray, it was not possible to state precisely as to by which kind of weapon, the injury might have been caused, although normally such kind of injuries would be caused by a blunt object, therefore, it could not be ruled out that the same was not caused by a blunt object. 36. S.I. Viresh Pal Singh, P.W.8 has stated that on 30.05.2007, he was posted at P.S. Musajhag. 36. S.I. Viresh Pal Singh, P.W.8 has stated that on 30.05.2007, he was posted at P.S. Musajhag. In this case, he was assigned the investigation on 27.08.2007 and by that time, he had become S.I. Prior to this, case was being investigated by S.I., Pramod Kumar Shukla with whom he was working earlier, hence, he was well acquainted with his hand-writing and signatures, thereafter, he had been transferred to Uttaranchal. Further he has stated that on 30.05.2007, S.I., Sri Shukla after having taken the copy of the F.I.R. and G.D. in investigation of case had proceeded towards the place of incident, where he had found the accused appellant in injured condition and a lot of crowd was there. The villagers had beaten the accused and from his possession, a country-made pistol of 315 bore, one empty cartridge and one live cartridge were recovered, recovery-memo of which was prepared. He had accompanied the I.O. and has identified signatures of I.O. on Exhibit Ka-5. He has further stated that the injured was taken to the District Hospital for being treated but prior to that, statement of the injured was recorded by him and at the instance of witness, Sant Ram (P.W.3), the spot inspection was made and site-plan was prepared as Exhibit Ka-9 by Sri Shukla. The statement of witness, Chhote Lal and Sant Ram were recorded and, thereafter, he took over the investigation of case and recorded statement of the writer of chik and G.D., Ram Pal Singh, copied the panchayatnama (Exhibit Ka-2) in C.D. Along with Panchayatnama, he annexed 'Naksha-Lash', sample seal, challan-lash, chitthi R.I. and Chitthi C.M.O. which bear signature of S.I. Ajay Pal Singh. He also copied the details of post-mortem report, Exhibit Ka 2/1 in G.D. and also recorded statements of informant, Md. Ali, injured Mahendra and also copied the injury memo of injured, Mahendra in the said C.D. He had also recorded statements of witnesses Server Ali, Safi Ahmed, Ali Ahmed and other witnesses of the panchayatnama and on 28.08.2007, he also recorded the statements of Constable Jagdish Kumar, Head Constable, Ram Pal Singh, P.S. Kotwali and having found sufficient evidence against the accused, submitted charge-sheet Exhibit Ka-10 against him. It appears from the record that the Investigating Officer of the case under Section 25 of Arms Act was not examined by the prosecution side and because of that, the relevant papers i.e. site-plan, prosecution-sanction and charge-sheet have been got proved by way of secondary evidence through this witness, P.W.8. This witness, accordingly, has stated in examination-in-chief that on chik F.I.R. pertaining to Case Crime No. 170 of 2007 (Exhibit Ka-6), there were signatures of Constable, Ram Pal Singh, this amounts to proving the document by way of secondary evidence as Ram Pal Singh has not been examined by the prosecution. Further this witness has stated that site-plan pertaining to case under Section 25 Arms Act was prepared by S.I., R.K. Sehgal with whose hand-writing and signature, he was well acquainted, hence, he has proved the site-plan, Exhibit Ka-11 and the charge-sheet under Section 25 of Arms Act which is Exhibit Ka-12 also in the hand-writing of Sri Sehgal. The prosecution sanction obtained from District Magistrate, Sri Chandra Prakash has also been proved which is Exhibit Ka-13 and the report of F.S.L. which is Exhibit Ka-14 has also been proved by this witness. 37. In cross-examination, this witness has stated that the memo of arrest of the accused does not bear any signature. In this memo, the column which was meant for endorsing the name of witness in whose presence, the arrest was made of the accused was also left vacant as the accused was in unconscious condition, hence he could not fill up names of the companions. In the said memo, one country made pistol of 315 bore and two cartridges have been written and upon it, the signature of earlier I.O. is made although it does not bear the signature of other police officials. He further stated that G.D. of the Crime No. 173 of 2007 is not available on file. In parcha no. 1, it is endorsed that the injured was sent to hospital under the supervision of Virendra Singh and he had denied to have committed the offence before the earlier I.O. It is further stated by him that Sant Ram (P.W.3) had not made his signatures on the recovery-memo. In parcha no. 1, it is endorsed that the injured was sent to hospital under the supervision of Virendra Singh and he had denied to have committed the offence before the earlier I.O. It is further stated by him that Sant Ram (P.W.3) had not made his signatures on the recovery-memo. Further he has stated that Inspector, Shambhu Dayal Chaudhari was senior to him with whom he had gone to the place of incident and blood stained soil was collected from the spot but its recovery-memo is not available on file nor its entry was made in the case diary but he had asserted that the said soil was recovered from the place of incident and denied the suggestion that he was stating so on being tutored and in fact there was no such blood stained soil found on the spot. He has further stated that the blood stained clothes of the deceased were taken but the clothes of injured, Mahendra and accused, Nanhe were not taken and its reason cannot be disclosed by him. 38. Before taking into consideration the remaining part of the statement of this witness, we find it essential to first mention here the details of the site-plan:- In site-plan related to Case Crime No. 169 of 2007 (Exhibit Ka-9), by 'T' is shown the 'theka' of liquor and adjoining to the east of it by 'D' is shown the shop of general merchant of Sant Ram and in front of the said shop towards east on the road going north-south is shown place by 'X' where deceased Saddam Hussain was assaulted and to the south of this place is shown by 'I-X' where the injured, Mahendra had received injury in rear portion in his head. At a distance of 22 paces from 'X', is shown the place by 'A' from where accused, Nanhe, taking U-turn had made a fire by country-made pistol upon the deceased which caused injuries to the deceased as well as the other injured Mahendra; by 'H' is shown the hand-pump. 39. At a distance of 22 paces from 'X', is shown the place by 'A' from where accused, Nanhe, taking U-turn had made a fire by country-made pistol upon the deceased which caused injuries to the deceased as well as the other injured Mahendra; by 'H' is shown the hand-pump. 39. In the other site plan pertaining to the Crime No. 170 of 2007 (Exhibit Ka-11) by 'H' is shown the place where hand pump was installed on the road going north south in front of the house of Bhagwan Singh and by 'A', is shown the place from where the fire was made and by 'AA' is shown the place where the accused was arrested. 40. Now, in the light of above details of site-plan, the remaining part of statement of this witness is being referred here as follows in which he has stated that in the site-plan of the case under Section 25 Arms Act, the said place has not been shown where crowd had assembled. The place where the accused was arrested was a tri-section (tiraha), to the east-west and north-south of which is an open land and no house was there. In Exhibit Ka-11, the place where the deceased received fire arm injury has not been shown. The distance between the places shown by of 'H' & 'A' and 'H' & 'AA', has not been shown in the site-plan. To whom the shop of liquor belonged has not been shown nor the shop of General Merchant has been shown. He further stated that the liquor shop belonged to son of Bhagwan Singh i.e. Sant Ram. It is further stated that in Exhibit Ka-11, the place where the Mahendra was standing, has not been shown. 41. In Exhibit Ka-9 i.e. site-plan related to the case under Section 302 I.P.C., distance of 'X' and 'IX' has not been shown although the width of the lane must have been five feet. In this site-plan, the spilling of blood is also not shown. 42. The country-made pistol which was sealed by S.I., P.K. Shukla bore a seal 'UPP'. Sri Shukla did not prepare the site-plan at the instance of the informant rather the same was made at the instance of witness Sant Ram (P.W.3). In this site-plan, the spilling of blood is also not shown. 42. The country-made pistol which was sealed by S.I., P.K. Shukla bore a seal 'UPP'. Sri Shukla did not prepare the site-plan at the instance of the informant rather the same was made at the instance of witness Sant Ram (P.W.3). The place from where Nanhe is shown to have made fire and the place where he is shown to have been arrested, distance between these two places must have been 15 paces. 43. We have perused the entire evidence on record which has been produced in the earlier part of the judgement and in the light of the arguments made by both the sides at length, we find that the prosecution case is mainly that on 30.05.2007 at 3:30 p.m., informant Md. Ali had gone for purchase of articles which were required at home from the shop of Sant Ram along with his son, there he saw an altercation going on between injured Mahendra and accused Nanhe and the younger brother of Mahendra i.e. Sant Ram intervened and told the accused Nanhe to go away from there but hardly he had gone to 15 to 20 paces then he turned around and made fire from the pistol which hit the deceased i.e. son of the informant in neck and thereafter, the same bullet piercing the neck of the deceased also hit the injured Mahendra in head. We find that the injured (P.W.3) has turned hostile but from the statement of P.W.7, Dr. G.B. Lal, it is evident that he was found to have received one lacerated wound on the rear portion of his head which could have been caused by fire arm on 30.05.2007 at 3:30 p.m. which is the approximate time when, the prosecution states that, this incident happened. G.B. Lal, it is evident that he was found to have received one lacerated wound on the rear portion of his head which could have been caused by fire arm on 30.05.2007 at 3:30 p.m. which is the approximate time when, the prosecution states that, this incident happened. Further we find that from the site-plan, Exhibit Ka-9, it is evident that the injured is shown to have been made fire from the place 'A' from distance about 22 paces from place shown by 'X' where deceased was standing and to the south of the deceased was standing the injured Mahendra, hence, it also bears out from this site-plan that when the fire would have been made by the accused from the place shown by 'A' towards south, it must have hit the deceased first and, thereafter, the same bullet might have hit the injured, Mahendra because he was standing close to the deceased towards south of it at place shown by 'IX', hence, the injury caused to the injured, P.W.3 could not be ruled out to have been received by the fire made by the accused-appellant upon the deceased. 44. First informant of this case has clearly stated in examination-in-chief that in his presence, this incident took place and the injured as well as the deceased were fired upon by the accused-appellant which hit his son in neck and piercing through his neck, injury was also received by another injured, Mahendra. In cross-examination, nothing could be elicited by the defence side which could made the testimony of this witness unbelievable. Some doubts appear to have been sought to be created to show that injured was in a drunken state and, therefore he might have made fire under the influence of liquor but we find that no such defence have been taken by the accused in his statement under Section 313 Cr.P.C., hence benefit of his being in drunken state could also not be given to him and it would be held that he knew well that he was firing upon a person i.e. Mahendra with an intention to kill, although, the said shot initially hit the son of first informant in neck as a result of which he died. Merely because there was no intention to kill the deceased, would not absolve the accused appellant from the charges under Section 304 I.P.C. in the light of law which he has cited above under Section 301 of the I.P.C. We also find that P.W.4, Dr. R.S. Yadav has clearly proved post-mortem report, Exhibit Ka-2 in which one fire arm wound of entry and exit each has been found by which the deceased has been found to have died on 30.05.2007 at about 3:00 p.m., therefore, the testimony of P.W.1 who is an eye-witness, though father of the deceased, is wholly corroborated by the post-mortem report and we do not find any reason to disbelieve the statement of P.W.1 in this regard. Moreover, we also find that P.W.5, Server Ali who had also gone for purchase of article from the said shop is stated to have seen the incident and has corroborated the version of P.W.1 in totality who is an independent witness. In long cross-examination made by the defence of this witness, nothing could be elicited to make his testimony unbelievable because on each and every point, he has consistently supported prosecution's case and the injury caused by the accused to the deceased as well as Mahendra. The only point with regard to which, he could not give replies was pertaining to the fact as to who were the persons who caused the injuries to the accused, Nanhe but that could not be treated to make his testimony suspect in any manner as regards the incident. It would be pertinent to mention that it is a settled law that if witness is related to the deceased, his testimony should not be discarded only because the same is a testimony of relative but that would require only to be analysed with circumspection and we have analysed the statement of P.W.1 with great caution and find that there was no contradiction in his statement on material aspects and, therefore, both the statements of P.W.1 and P.W.5 have proved beyond reasonable doubt that it was the accused appellant who had made fire upon the deceased which ultimately resulted in his death. The long cross-examination made of the Investigating Officer in this regard also does not show any infirmity in the prosecution evidence except that some minor contradictions/omissions were found in the statement of eye witnesses which were made before I.O. and the Court. The long cross-examination made of the Investigating Officer in this regard also does not show any infirmity in the prosecution evidence except that some minor contradictions/omissions were found in the statement of eye witnesses which were made before I.O. and the Court. We do not find these contradictions/omissions to be material contradictions that would impinge upon the veracity of the prosecution case. 45. Pw-2 and PW-3, both appear to have not supported the prosecution case only to help the accused, hence even if their testimonies are discarded, the offence under Section 302 IPC stands proved against the accused-appellant on the basis of testimonies of PW-1 and PW-5 adequately which stands corroborated by medical evidence. Moreover, F.I.R. in this case has been lodged promptly and the statements of PW-1 and PW-5 are in consonance with the site plan also. 46. As regards the offence under Section 25 of Arms Act, we find that the recovery of the country made pistol as well as the cartridges has been proved because the same were recovered from the accused and he was arrested on the spot and recovery of the country made pistol was made from him along with the cartridges on the place of occurrence and after taking prosecution sanction, the charge-sheet has been submitted against him. The F.S.L. report clearly states that in-fact the empty cartridge which was recovered from him, was found to have been fired from the said country made pistol, therefore, it is beyond reasonable doubt proved by the prosecution that the deceased was murdered by accused appellant by the country made pistol on 30.06.2007 at about 3:30 p.m. 47. We do not find any infirmity in the impugned judgment and the conclusion drawn by the trial court is absolutely in accordance with law. 48. The appeal deserves to be dismissed and is, accordingly, dismissed. 49. Accused appellant is already in jail. 50. Ms. Seema Pandey, learned Amicus Curiae for the appellant shall be paid an amount of Rs. 10,000/- for rendering the able help to Court. 51. Let the copy of the judgment be sent to the court below with direction that it shall ensure that the accused serves out the remaining sentence in accordance with law. The lower court record be also transmitted back to the trial court.