Research › Search › Judgment

Allahabad High Court · body

2023 DIGILAW 310 (ALL)

Veerpal v. State of U. P.

2023-01-31

ASHWANI KUMAR MISHRA, SHIV SHANKER PRASAD

body2023
JUDGMENT : 1. These appeals are by the accused appellants- Veerpal and Bhadrapal, who have been convicted vide judgment and order dated 02.06.2015 passed by Additional Sessions Judge, Chandausi, (Moradabad) in Session Trial Nos. 629 of 2010 and 630 of 2010, arising out of Case Crime Nos. 743 of 2009 and 22 of 2010, under Sections 302/34 I.P.C. and Section 25 of Arms Act, Police Station Bahjoi, District Moradabad and sentenced to life imprisonment each under Section 302 I.P.C. along with fine of Rs. 25,000/-, in default thereof, to further undergo two months additional imprisonment each. 2. The prosecution case is based upon a written report of the informant Vijaypal (P.W.-2) son of Nawab Singh, who claims to be a resident of Village Lehra Nagla Shyam, Police Station Gunnaur, District Budaun. It is alleged that the informant has enmity with one Veerpal S/o Sipattar Singh Yadav (accused appellant). The brother of accused Veerpal namely, Munipal had eloped with Sunita daughter of one Ganga Sahay Sharma. The informant’s brother Mahipal (deceased) was a witness in the F.I.R. lodged under Section 366 I.P.C. against Munipal for enticing Sunita. On account of this enmity firing had taken place between the accused and the informant sometime back. On 16.11.2009 the informant’s brother Mahipal alongwith the informant Vijaypal and one Rukam Singh S/o of Nawab Singh Yadav left on a motorcycle for offering prayers and served water (Jal) at Sadat Wadi Mandir and for purchasing fertilizer thereafter. While on their way at about 02:30 p.m. a kilometer before the Sadat Wadi Temple, the accused namely Veerpal, Munipal sons of Sipattar Singh and Bhadrapal son of Latoori Singh stopped them and the three accused dragged the informant’s brother Mahipal aside and indiscriminately fired on him. Mahipal sustained fire arm injuries on his head and chest. Mahipal died on the spot and the dead body was lying there. 3. The contents of the above referred written report were entered in the G.D. and a first information report came to be lodged in the matter and got registered as Case Crime No. 743 of 2009 under Section 302 I.P.C. against accused appellant Veer Pal, Munipal and Bhadrapal. The accused Munipal has been declared a juvenile. The two other accused namely, Veerpal and Bhadrapal have been convicted and sentenced under Section 302 I.P.C. and are before this Court in the present appeals. 4. The accused Munipal has been declared a juvenile. The two other accused namely, Veerpal and Bhadrapal have been convicted and sentenced under Section 302 I.P.C. and are before this Court in the present appeals. 4. Pursuant to the F.I.R. lodged in the matter the Investigating Officer proceeded on the spot and collected blood stained and plain soil along with three empty cartridges of 315 bore from the spot. The recovery made from the spot has been exhibited as Ka-2. One Mahendrapal and Chhatrapal are the witnesses of this recovery. The police also conducted inquest of the dead body and its report is exhibited as Ka-1. The inquest report contains an overwriting and the time for receipt of information is shown as 04:00 p.m. in place of 05:00 p.m. The inquest witnesses are Mahendra Singh, Chhatrapal, Manoj Kumar, Bharat Singh and Chhote, who are all resident of Village Sadat Wadi and Satnauli. None of the inquest witnesses are from village Lehra Nagla Shyam to which the informant or the deceased belonged. At the last page of inquest the Investigating Officer has recorded the time of completion of inquest as 05:30 p.m. As per the opinion of the inquest witnesses the deceased died due to fire arm injuries and for ascertaining the cause of death post mortem be conducted. The body was accordingly sealed and was delivered to constable Surendra Kumar and Veerendra for being sent to the mortuary. 5. The post mortem on the dead body has been conducted on the next day i.e. on 17.11.2009 at 03:00 p.m. by Dr. N.L. Sharma (P.W.-6). As per the autopsy surgeon, the deceased sustained following ante-mortem injuries:- “(I) Gun shot wound of entry 2 c.m. x 1.8 c.m. on the right side forehead of lateral part just above lateral to lateral end of right eyebrow. (II) Gun shot wound of exit 11 c.m. x 4 c.m. on left side head behind left ear pinna. Brain tissue coming out continue with injury no. 1. (III) Gun shot wound of entry 1 c.m. x 0.8 c.m. on the right side of face 3 c.m. below lateral right angle of mouth. (IV) Gun shot wound of entry 3 c.m. x 1 c.m. on the back of left side chest 4 c.m. below, medial lower end of scapula, gun powder present around the wound; direction oblique. 1. (III) Gun shot wound of entry 1 c.m. x 0.8 c.m. on the right side of face 3 c.m. below lateral right angle of mouth. (IV) Gun shot wound of entry 3 c.m. x 1 c.m. on the back of left side chest 4 c.m. below, medial lower end of scapula, gun powder present around the wound; direction oblique. (V) Gun shot wound of exit 2 c.m. x 1 c.m. on the right side frontal chest 6 c.m. above nipple at 11 o’clock direction continue with injury no. 4. (VI) Gun shot wound of entry 2 c.m. x 1 c.m. on the back of left shoulder underlying bone blackening seen around bone, gun powder present. (VII) Gun shot wound of exit 2.8 c.m. x 1.8 c.m. on ante aspect of left shoulder, continue with injury no. 6. (VIII) Gun shot wound of entry 2.8 c.m. x 2 c.m. on the right anterior iliac crest region. (IX) Gun shot wound of exit 3.2 c.m. x 2.5 c.m. on the right buttock upper part, continue with injury no. 8. (X) Lacerated wound 3 c.m. x 1 c.m. x muscle deep on the right index finger medial aspect middle part, blackening present. (XI) Lacerated wound 2 c.m. x 1 c.m. on the right middle finger lateral aspect middle part, blackening present. On deep dissection of injury no. 3-1 big metal bullet recovered from right side. Neck muscle fractured, right side mandible present. Margins of all entry wound lacerated, inverted, and all exit wound lacerated and everted.” 6. The clothes wore by the deceased along with blood stain and plain earth were sent to forensic laboratory and its report dated 22.02.2011 is on record as exhibit ka-9. 7. It transpires that the Investigating Officer arrested the two accused on 14.01.2010 vide recovery memo of the same date (Exhibit Ka-6) while they tried to flee and from their possession two tamanchas (country made pistols) of 315 bore with two live bullets were recovered. A First information report came to be registered as Case Crime No. 21 of 2010, under Section 307 I.P.C. as well as Case Crime No. 22 of 2010, under Section 25 of Arms Act in respect of accused Veerpal and Case Crime No. 23 of 2010, under Section 25 of Arms Act in respect of accused Munipal. 8. A First information report came to be registered as Case Crime No. 21 of 2010, under Section 307 I.P.C. as well as Case Crime No. 22 of 2010, under Section 25 of Arms Act in respect of accused Veerpal and Case Crime No. 23 of 2010, under Section 25 of Arms Act in respect of accused Munipal. 8. The Investigating Officer sent the recovered country made pistols as also the empty cartridges recovered from the place of occurrence for forensic examination and report of the ballistic experts from the forensic laboratory at Agra has been produced as exhibit ka-8. 9. On the basis of the material collected during the course of the investigation as also after recording the statement of witnesses under Section 161 Cr.P.C. the charge sheet came to be submitted against the accused appellants firstly on 17.01.2010 under Section 25 of Arms Act and thereafter on 18.03.2010 under Section 302 I.P.C. Permission was also obtained from the District Magistrate, Moradabad for proceeding under Section 25 of Arms Act. 10. The Magistrate took cognizance of the charge sheet and committed the case to the Court of Sessions. 11. Two separate sessions trial were accordingly registered in the matter. Session Trial No. 629 of 2010 was registered in respect of offence under Section 302 I.P.C. whereas Session Trial No. 630 of 2010 has been registered in respect of offence committed under Section 25 of Arms Act by accused Veerpal. Both these session trials have been held together and are decided finally by the judgment and order of the Court below dated 02.06.2015. So far as the offence under Section 307/34 I.P.C. arising out of Case Crime No. 21 of 2010 is concerned, the Court of Sessions vide a previous judgment dated 19.11.2010 acquitted the accused appellants. Relying upon it the Court below has acquitted the accused Veerpal of offence under Section 25 of Arms Act. The conviction and sentence of the two accused is therefore under Section 302 I.P.C., which is amounted in this appeal. 12. The Sessions Court framed charges against the accused appellants under Section 302/34 I.P.C. vide order dated 24.07.2010. The charges were read out to the accused appellants who denied it and demanded trial. 13. The conviction and sentence of the two accused is therefore under Section 302 I.P.C., which is amounted in this appeal. 12. The Sessions Court framed charges against the accused appellants under Section 302/34 I.P.C. vide order dated 24.07.2010. The charges were read out to the accused appellants who denied it and demanded trial. 13. The trial commenced in which the prosecution has adduced following documentary evidence, which have been duly proved and consequently marked as Exhibits: “First information report dated 16.11.2009 has been marked as Exhibit-Ka-11; written report dated 16.11.2009 has been marked as Exhibit-Ka-3; recovery memo of blood stain & plain soil & three bullets 315 bore dated 16.11.2009 has been marked as Exhibit-Ka-2; Panchayatnama dated 16.11.2009 has been marked as Exhibit-Ka-1; Post mortem report dated 17.11.2009 has been marked as Exhibit-Ka-10; F.I.R. dated 14.01.2010 has been marked as Exhibit-Ka-19; Recovery memo of two tamanchas 315 bore with two live bullets dated 14.01.2010 has been marked as Exhibit-Ka-6; Charge sheet dated 17.01.2010 has been marked as Exhibit- Ka-21; Charge sheet dated 18.03.2010 has been marked as Exhibit-Ka-4; Report of forensic science laboratory dated 23.08.2010 has been marked as Exhibit-Ka-8; and report of forensic science laboratory dated 22.02.2011 has been marked as Exhibit-Ka-9.” 14. In addition to the documentary evidence the prosecution has produced Mahendrapal (P.W.-1), who is resident of Sadat Wadi, Police Station Bahjoi, District Moradabad. P.W.-1 is a witness of inquest and the recovery memo of blood stained and plain earth as well as the empty cartridges (exhibit ka-2). He has stated that the place of incident is about 01 k.m. from his village and the police arrived much after he came to the place of occurrence. He stated that large number of persons had gathered at the spot and the informant disclosed that the dead body is of his brother Mahipal. 15. Before examining the testimony of P.W.-2, who is the solitary eyewitness of the incident it could be appropriate to notice the testimony of two other witnesses namely P.W.-3 and P.W.- 4 who are the witnesses of inquest. P.W.-3 is a resident of Village Sadat Wadi and has stated that the incident is of around 04:00 p.m. and after coming to know of it he arrived at the place of occurrence by when police had already arrived. The inquest was conducted and he is one of the witness of it. P.W.-3 is a resident of Village Sadat Wadi and has stated that the incident is of around 04:00 p.m. and after coming to know of it he arrived at the place of occurrence by when police had already arrived. The inquest was conducted and he is one of the witness of it. In his cross-examination this witness has stated that he does not know the informant and had also not seen him at the place of occurrence. 16. P.W.-4 is one Chhatrapal S/o Hari Singh, who claims that the incident is of 11:00 a.m. and by the time he arrived at the place of occurrence the police had already reached. He has proved the inquest which contains his signatures. He has asserted that P.W.-2 was not known to him and that none was found grieving on the spot. 17. The prosecution case is essentially based upon the testimony of P.W.-2, who is the brother of the deceased. He has asserted that the deceased was his brother and the incident occurred at 02:30 p.m. on 16.11.2009 about 01 k.m. before Sadat Wadi. He has supported the prosecution case as per which P.W.-2 along with deceased and one Rukam Singh had left on a motorcycle to Sadat Wadi Temple for offering prayers by pouring holy water on the deity and for purchasing fertilizer from Bahjoi. He claims that the accused Veerpal, Munipal and Bhadrapal met them a kilometre before Sadat Wadi. These persons stopped the motorcycle and dragged the deceased whereafter they fired on him. On account of gun shot injuries the deceased died on the spot. This witness has identified the two accused appellants as being the perpetrators of crime. He has stated that the accused also extended threats to him. Large number of persons had later gathered at the place of occurrence. He has stated that the written report was got scribed by one Indrapal of his village on which P.W.-2 affixed his thumb impression and gave it to Police Station Bahjoi. He has admitted that the written report was scribed on his instructions and its content were read out to him. The written report has thus been verified by him. He has stated that the written report was got scribed by one Indrapal of his village on which P.W.-2 affixed his thumb impression and gave it to Police Station Bahjoi. He has admitted that the written report was scribed on his instructions and its content were read out to him. The written report has thus been verified by him. He has also stated that the daughter of fellow villager Ganga Sahay Sharma was enticed by accused Veerpal and Munipal in respect of which a case was pending and the deceased was a witness of this incident due to which the accused party maintained enmity with the informants. He has also stated that for this reason alone the deceased has been done to death. Injuries had been sustained by the deceased in his hands, eyes and chest. 18. In the cross-examination P.W.-1 has stated that the prayers by offering holy water on deity could be made at any time and it was not necessary that it be in the morning only. He has stated that he does not remember the registration number of the motorcycle by which he had gone. He has also stated that Rukam Singh had left on the motorcycle from his residence and that he had not gone to the Chakki (flour mill). The distance between his village and the place of occurrence is about 15-20 km. The witness met none while on way. These persons however stopped at Patariya Chowki but he could meet none there. The stay was for about half hour and was spent in repairing the motorcycle which had developed some defects. The witness was going to the temple whereafter fertilizers were to be purchased and there was no altercation between P.W.-2 and the accused Veerpal. The place of occurrence has been described by the witnesses as being surrounded by forest from all the sides. It is stated that the accused persons stopped the motorcycle 3-4 paces prior to the place where they were standing. It is then alleged that accused Veerpal had dragged the deceased, who was at 2-3 paces from him. All three accused fired on the deceased. About 4-5 fires were shot. The first fire was shot by accused Veerpal. The second fire was shot by accused Munipal, which hit near the eyes of the deceased. It is then alleged that accused Veerpal had dragged the deceased, who was at 2-3 paces from him. All three accused fired on the deceased. About 4-5 fires were shot. The first fire was shot by accused Veerpal. The second fire was shot by accused Munipal, which hit near the eyes of the deceased. The third fire was shot by accused Bhadrapal but he does not remember the place where the bullet hit. The witness says that while the deceased was dragged by the accused he raised an alarm but none responded even after hearing the gun shot. It is also stated that the people were working in the forest area and he stayed there for about 10-15 minutes whereafter he left for Pathakpur Chowki. The other companion namely Rukam Singh also left with him for Pathakpur Chowki. He claims that the scribe Indrapal met him as he had also come for offering the prayers to deity. In his further cross-examination P.W.-2 has stated that the Nanihal of Rukam Singh is in his village. He also claims to know Udal of his village, who is not a bad person. The witness however, was not aware that Udal had gouged out the eyes of Lakhan. No report was lodged by deceased under Section 307, 324 I.P.C. against Udal and Banwari. He further stated that he had no knowledge that there were about 10-12 cases against Udal and that proceedings under the Gangster Act have been initiated against him. He has further admitted that when Kuanram was shot by Udal, the deceased Mahipal was an informant. Kuanram is the uncle of the witness P.W.-2 Vijaypal. He has denied the suggestion that Mahipal and Mukesh had fired three months thereafter on Kuanram after the incident of firing by Udal. He has denied the suggestion that he arrived late and was not with the deceased at the time of incident. It is further stated that when Mahipal left he was carrying about Rs.10,000/- for purchasing fertilizer. He also claims that he was not aware whether there is any police chowki at Pataria. He further asserted that he has no knowledge of the make of motorcycle by which he had gone along with the deceased and Rukam Pal. The colour of motorcycle was yellow and the registration number is not remembered by him. He also stated that the motorcycle was taken by the Police. 19. He further asserted that he has no knowledge of the make of motorcycle by which he had gone along with the deceased and Rukam Pal. The colour of motorcycle was yellow and the registration number is not remembered by him. He also stated that the motorcycle was taken by the Police. 19. P.W.-2 in his cross-examination held on 11.11.2011 however stated that he had offered prayers at Sadat Wadi temple but the time of his arrival is not remembered by him since he had no watch. It is stated that he had no mobile and that mobile was with his brother but its number and make is not known to him. He claims that accused had taken out the mobile from the deceased. He has admitted that this recital is not made in the F.I.R. He claims that he stopped nowhere after leaving the house till Sadat Wadi. He further stated that till date he is not aware as to whose motorcycle was taken by Mahipal. It is then alleged that the motorcycle was not borrowed and belonged to Mahipal. He claims that they had reached Sadat Wadi Temple in about one and half hours. They left from the temple for purchasing fertilizers for Bahjoi but before reaching there the deceased was done to death. He claims that the place of incident is about one and half to two k.m. from Sadat Wadi Temple. It is further alleged that he has not seen anybody working near the fields. He has stated that at the time of firing he was standing at a distance of 10-15 paces. The fire continued for 2-3 minutes and P.W.-2 and Rukam Singh tried to save Mahipal. It is further asserted that no injuries were received by the witness himself but threats were extended to him. 20. The witness has been confronted with his statement under Section 161 Cr.P.C. where no such disclosure is made by him to the police. He has also denied that he had run away from the place of incident. The witness further stated that the accused had taken out Rs. 10,000/- from the pocket of the deceased. As per him about 2500/- Rs. were recovered from the deceased which was given to him by the police. He further stated that Rs. 25,000/- was recovered from the deceased and was given to him by the Investigating Officer. The witness further stated that the accused had taken out Rs. 10,000/- from the pocket of the deceased. As per him about 2500/- Rs. were recovered from the deceased which was given to him by the police. He further stated that Rs. 25,000/- was recovered from the deceased and was given to him by the Investigating Officer. This witness has been confronted with his notarial affidavit given to the D.I.G. exonerating the accused persons to which he specifically denied. He stated that no such affidavit was given by him. He has further denied that the deceased was of criminal nature or that he was not present at the place of occurrence. 21. P.W.-8 is the first Investigating Officer, who has proved the recovery. He has however specifically stated that possession of the motorcycle is not with the police nor any recovery memo in respect of motorcycle was prepared. He claimed that at the time of his arrival at the place of occurrence there was no motorcycle. He has further admitted that the site plan has been prepared on the basis of information received from P.W.-2. 22. P.W.-5 is the second Investigating Officer, who has proved the recovery of fire arm and has also filed the charge sheet. 23. P.W.-6 is the autopsy surgeon who has specified that the deceased had 11 wounds on his body. There were five entry wounds of fire arm while four exit wounds were present along with two other lacerated wounds. 24. P.W.-8 has also stated that there were no bushes around the place of occurrence. He has also stated that P.W.-2 had not informed him that Rs. 10,000/- were taken from the deceased by the accused persons nor has he endorsed the return of amount to P.W.-2, as alleged by P.W.-2 in his testimony. 25. P.W.-9 is the Sub-Inspector, who had conducted the inquest of the deceased. This witness has clearly stated that he saw none from the village Lehra Nagla Shyam at the place of occurrence when he reached there. P.W.-10 has proved the chik F.I.R. lodged under Section 307 I.P.C. P.W.-11 has proved the chik F.I.R. lodged under Section 302 I.P.C. P.W.-12, Swami Sharan was the Investigating Officer of the case lodged under the Arms Act. 26. P.W.-10 has proved the chik F.I.R. lodged under Section 307 I.P.C. P.W.-11 has proved the chik F.I.R. lodged under Section 302 I.P.C. P.W.-12, Swami Sharan was the Investigating Officer of the case lodged under the Arms Act. 26. On the basis of incriminating material produced during the course of trial against the accused appellants the statement was recorded of accused under Section 313 Cr.P.C. The accused appellants denied their implication and it was stated that the prosecution case has been falsely instituted against them. Accused Veerpal has further stated that on account of enmity false accusation has been made against him. 27. Defence in support of its case has relied upon an affidavit allegedly given by P.W.-2 to the D.I.G., Moradabad Range wherein he has asserted that the deceased was done to death by Rukam Singh and another and that the F.I.R. version is not correct. This affidavit has been brought on record as exhibit Kha-1. In order to prove the notarial affidavit the defence has produced Kalyan Das (D.W.-1), who is an advocate and has asserted that on the instructions of P.W.-2 the affidavit was prepared. Similarly, D.W.-2 is the Notary who has verified the affidavit allegedly given by P.W.- 2. 28. On the basis of above evidence led in the matter the Trial Court has found the charges leveled against the accused appellants to be proved beyond reasonable doubt under Section 302 I.P.C. However in respect of the offence under the Arms Act the accused have been acquitted. 29. Sri Shyam Lal, learned counsel appearing for the appellants submits that the accused-appellants have been falsely implicated in the present case on account of enmity and that they have not committed the offence as alleged by the prosecution. He further submits that the independent witness to the incident as per the prosecution case was Rukam Singh, who has not been produced at the time of trial and no reason has been disclosed for non production of Rukam Singh although he was an important witness. He further submits that the star prosecution witness P.W.-2 was actually not present at the place of occurrence for following reasons:- (i) though it is alleged that three persons were traveling on the motorcycle but no injuries have been caused to the other two persons namely P.W.-2 and Rukam Singh, which creates a doubt on the presence of P.W.-2 at the place of occurrence. He further submits that being the real brother, P.W.-2 was expected to have resisted the move of accused to drag him from the motorcycle and the fact that no injuries were on him makes the prosecution case improbable. (ii) though it is alleged that three persons were traveling on the motorcycle but the motorcycle has not been produced nor any explanation has been given as to where this motorcycle has gone. Even the registration number of the motorcycle or it’s make is not known. It is therefore, contended that the plea of motorcycle has been engineered only to show the presence of P.W.-2 at the spot. (iii) the presence of P.W.-2 is belied by the fact that neither he is the witness to inquest nor is he a witness to the recovery of empty cartridges and blood stained and plain earth. (iv) the presence of P.W.-2 is also doubtful on the spot since no blood stain etc. has been found on his clothes. (v) It is also urged that statement of P.W.-2 is contradictory inasmuch as at one place he states that the incident occurred while they were on way to Sadat Wadi Temple while he later states that the incident occurred while they were returning from the temple. Submission is that this contradiction in his testimony renders it untrustworthy. It is also urged that at one place P.W.-2 has claimed that there were forest around the place of incident while he later claims that there were agricultural plots nearby. Contradiction is also pointed out in the testimony of P.W.-2 as at one stage he claims that there were large number of people working around and later contradicted himself by saying that there were no persons available nearby. (vi) Learned counsel further submits that the affidavit given by P.W.-2 has been proved as per which the offence was not committed by the accused but by someone else along with Rukam Singh. This affidavit also explains as to why Rukam Singh was not produced in evidence. (vii) It is also argued that the allegation of loot of mobile phone at the stage of recording of statement is not corroborated by any other material and is contradicted by the witness himself later. Similarly, the allegation of return of Rs. 25,000/- is not corroborated by any independent material. (vii) It is also argued that the allegation of loot of mobile phone at the stage of recording of statement is not corroborated by any other material and is contradicted by the witness himself later. Similarly, the allegation of return of Rs. 25,000/- is not corroborated by any independent material. It is also argued that the inquest and other police papers contains cutting and overwriting at different places and in most of papers the time of conclusion of inquest etc. is not mentioned. It is also argued that the inquest concluded in the evening whereas the post mortem was conducted after 24 hours without explaining as to where the body was kept throughout the night. 30. In reply, learned A.G.A. submits that contradiction pointed out by the defence are minor and do not shake the prosecution case. Submission is that prosecution witnesses are wholly trustworthy and the Court below has rightly placed reliance upon them. It is contended that it is a case of broad day light murder committed for a definite motive and the eye witness account of P.W.-2 is rightly relied upon by the Court below and the appeal merits no interference. Analysis of facts:- 31. From the facts as have been placed on record it transpires that the prosecution case pointedly is that the deceased along with P.W.-1 and one Rukam Singh were going towards Sadat Wadi Temple for offering prayers and while they were a kilometer before the temple the accused persons ambushed the informant team and the deceased was taken a little away and then indiscriminately fired by the three accused. The motive for the offence as per the prosecution is the fact that the accused Munipal had enticed the daughter of one Ganga Sahai in which the deceased, Mahipal was a witness and, therefore, with an intend to remove the hurdle so that the deceased may not stand in trial or support the prosecution case that he has been done to death. The trial court has held that the prosecution has succeeded in proving the incident. This Court, therefore, is required to examine as to whether the prosecution has proved its case beyond reasonable doubt on the basis of evidence adduced at the trial or not? 32. The answer to the above question would then determine whether the court below has rightly convicted the accused and thereby determine the fate of this appeal. 33. This Court, therefore, is required to examine as to whether the prosecution has proved its case beyond reasonable doubt on the basis of evidence adduced at the trial or not? 32. The answer to the above question would then determine whether the court below has rightly convicted the accused and thereby determine the fate of this appeal. 33. The prosecution case essentially relies upon the testimony of P.W.-2 apart from the documentary evidence which are in the nature of inquest report; post mortem report; report of forensic laboratory etc. 34. The post mortem report is on record which clearly shows that the deceased died on account of coma due to ante mortem fire arm injuries. There are five entry wounds and four exit wounds of gun shot injuries apart from two other injuries caused by blunt object. The inquest report also shows that the deceased died on account of gun shot injuries. It is, therefore, not in issue that the death of the deceased was homicidal. The fact that he was shot dead remains undisputed. 35. The question primarily is as to whether the prosecution has succeeded in establishing that it was the accused who fired on the deceased and the incident has been witnessed by the prosecution witness? 36. P.W.-2 has been produced as the sole eye witness and, therefore, his testimony requires careful consideration. The case of the appellants is that P.W.-2 was not present and therefore, the prosecution has not been able to establish the incident in the manner alleged by it. P.W.-2 is otherwise a related witness being the brother of the deceased and enmity with the accused is admitted. It is settled that enmity can be the cause for committing the offence and can also be a reason for false implication. It has thus to be seen whether testimony of P.W.-2 is trustworthy and finds corroboration from other evidence available on record. 37. The arguments advanced on behalf of the appellants have already been noticed above and we now proceed to examine the same with reference to the testimony of P.W.-2 and the attending circumstances. 38. As per P.W.-2 he was going along with the deceased and one Rukam Singh to offer prayers at Sadat Wadi Temple and they were then to go to Bahjoi for purchasing fertilizers. 38. As per P.W.-2 he was going along with the deceased and one Rukam Singh to offer prayers at Sadat Wadi Temple and they were then to go to Bahjoi for purchasing fertilizers. This witness in his testimony has clearly stated that they were on way to Sadat Wadi Temple when the three accused ambushed them and shot dead the deceased. The place of incident has been specified as being a place which was a kilometer before the temple. In his examination-inchief this witness has clearly stated that the three accused stopped them a kilometer before the temple whereafter the deceased was dragged aside and was fired upon by the accused persons. Relevant portion of his statement is extracted hereinbelow:- ^^e`Ÿkd eghiky esjk HkkbZ FkkA ?kVuk fnukad 16-11-2009 dh fnu ds ढ+kbZ cts dh gSA ?kVuk lknkr ckM+h ls ,d fdyksehVj igys taxy dh gSA ml fnu esjk HkkbZ eghiky vkSj eS rFkk gqdqe flag ,d gh eksVj lkbfdy ls lknkr ckMh ty pढ+kus rFkk cgtksbZ [kkn ysus ?kj ls lkFk pys FksA ohjiky equhiky o Hknziky lknkr ckM+h ls ,d fdyksehVj igys feysA eksVj lkbfdy esjk HkkbZ eghiky pyk jgk FkkA bu yksxks us eksVj lkbfdy jksddj vkSj esjs HkkbZ eghiky dks [khp dj tkus ls ekjus dh fu;r ls Qk;j fd;sA Qk;j yxus ls esjk HkkbZ eghiky dh ekSds ij e`R;q gks x;hA^^ 39. However in the cross-examination the witness has come up with a different version that they had reached the temple in about one and half hours, offered prayers and then proceeded to buy fertilizers but before they could reach Bahjoi for purchasing fertilizer the deceased was done to death. The utterances of P.W.-2 contradicting his earlier statement in his examination-in-chief is extracted herein below:- ^^xako ls lknkr okMh eafnj yxHkx Msढ+ ?kaVs esa igqWp x;s FksA eq>s ugh ekywe iwtk djus vkSj ty pढ+kus es fdruk le; yxk gksxkA fQj eafnj ls ogtksbZ [kkn ysus x;s FksA cgtksbZ [kkn ysus ugh igqWp ik;s Fks mlls igys gh eghiky dks ekj fn;k FkkA^^ 40. P.W.-2 has then stated that three of them had left by a motorcycle but he does not remember its registration number. He also stated that he does not remember the make of the motorcycle either. It is merely stated that the colour of the motorcycle was yellow. P.W.-2 has then stated that three of them had left by a motorcycle but he does not remember its registration number. He also stated that he does not remember the make of the motorcycle either. It is merely stated that the colour of the motorcycle was yellow. What is relevant is that this motorcycle has neither been recovered from the spot nor was it made a case property. P.W.-2 has stated that the motorcycle was taken away by the police. However, P.W.-8 i.e. the Investigating Officer in his testimony has clearly stated that there was no motorcycle found on the spot by him. The circumstance relating to the motorcycle not being traced is also a circumstance, which has not been proved by the prosecution. In the event the deceased along with P.W.-2 and Rukam Singh were going on a motorcycle and the deceased was ambushed, it was expected that some explanation would be put forth with regard to the motorcycle on which they were traveling. P.W.-2 also stated in his cross-examination at one stage that he left by the motorcycle to the police station but then he returned on foot. This apparent contradiction in the statement of P.W.-2 as also the fact that the motorcycle was not recovered is thus a circumstance to be noticed at this stage of deliberation. 41. The next circumstance highlighted on behalf of the appellants is with regard to the surroundings of the place of incident. P.W.-2 has stated that at the place of occurrence there existed jungle on all the four sides, however in the site plan no jungle is shown to exist around the place of occurrence. P.W.-2 towards later stages of his cross-examination has supported the site plan by taking names of tenure holders mentioned in the site plan. His information however is restricted only to the disclosures previously made in the site plan. We find some substance in the contention that the place of occurrence could either be near the jungle or it could be near the agricultural fields. Both cannot coexist. The statement of P.W.-2 in giving contradictory narration of the surroundings of the place of occurrence is also a circumstance to be noticed. 42. We find some substance in the contention that the place of occurrence could either be near the jungle or it could be near the agricultural fields. Both cannot coexist. The statement of P.W.-2 in giving contradictory narration of the surroundings of the place of occurrence is also a circumstance to be noticed. 42. We may also at this stage notice the contention of learned counsel for the appellants that Rukam Singh was the third person travelling with the deceased and P.W.-2 and being an eye witness he ought to have been produced by the prosecution. The records reveal that statement of Rukam Singh was recorded under Section 161 Cr.P.C. and although in the list of witnesses annexed along with the charge sheet his name was mentioned but subsequently he has been got discharged by the prosecution from appearing before the court below. There is no explanation from the prosecution side as to why Rukam Singh has not been produced. It may also be noticed that while P.W.-2 is the brother of the deceased and is a related witness, Rukam Singh is not a member of the family and to a certain extent his testimony would have carried greater weight. The fact that Rukam Singh has not been produced is also a circumstance to be taken note of. 43. We may at this stage refer to another piece of evidence led by the defence which is the photo copy of a notarial affidavit allegedly sent by P.W.-2 to the Deputy Inspector General of Police, Moradabad Range. This document has been exhibited as Ex. Kha-1 and the same contains a recital that in fact the murder has been committed by Rukam Singh and the averments made in the F.I.R. about the appellants being the author of injuries is incorrect. Attempt has been made to prove Exh. Kha-1 by producing the Advocate, who had prepared the affidavit i.e. D.W.-1 and the notary, who had attested his thumb impression on the affidavit as D.W.-2. 44. Learned A.G.A. has made attempts to impeach this document on the ground that original or the certified copy of this affidavit has not been produced and that neither the stamp papers contain proper seal of the stamp vendor nor any date of its issuance is mentioned and, therefore, this document cannot be relied upon particularly when P.W.-2 has denied its existence. 45. 45. As against the contention of learned A.G.A., learned counsel for the appellants submits that the original of this affidavit was submitted before the Deputy Inspector General of Police, Moradabad and therefore, the original cannot be produced by the defence as the document itself was not expected to be available with them. It is also urged that its certified copy also could have been issued only by the state authorities, who were opposed to them. It is contended that the only manner in which this document could have been proved as a secondary piece of evidence was by producing the Advocate who had prepared the affidavit and by producing notary, who had authenticated the thumb impression of the witness. Both of whom have been produced. 46. We are not inclined to enter into the debate with regard to genuineness or otherwise of this affidavit. The limited purpose for which we take note of the affidavit is that there was a plea by the defence that the author of the injuries was not the accused but it was Rukam Singh and Rup Kishore. Non production of Rukam Singh as a witness during trial thus assumes greater significance when it emerges on record that there was an insinuation against this witness of having authored the injuries on the deceased. We further find that there is absolutely no reason disclosed by the prosecution for not producing Rukam Singh. Even if the affidavit is ignored yet the fact of non production of Rukam Singh cannot be underestimated. This again becomes a circumstance to be noticed in the matter. Another circumstance which may be noticed in the facts of the case is that the scribe of the F.I.R. Indrapal, who happens to be the maternal uncle of Rukam Singh has also not been produced. 47. The presence of Indra Pal at the place of occurrence is at best a matter of chance. It is alleged by the prosecution that he too was going towards the temple when the incident occurred and P.W.-2 being a literate person availed his services for writing the written report. The coincidence of presence by chance of the maternal uncle of Rukam Singh at the place of occurrence for scribbing the written report is also worth noticing. The non production of Rukam Singh and Indra Pal both remains unexplained. 48. The coincidence of presence by chance of the maternal uncle of Rukam Singh at the place of occurrence for scribbing the written report is also worth noticing. The non production of Rukam Singh and Indra Pal both remains unexplained. 48. We may also notice from the statement of P.W.-2 that there was some enmity between one Udal who was accused of murdering Kuanram, uncle of P.W.-2. This is reflected from the following passage in the statement of P.W.-2, which are reproduced herein below:- ^^eS vius xkao ds Åny dks tkurk gwWA ;g cnek'k fdLe dk vkneh ugha gS] lgh gSA esjs xkao ds Åny us yk[ku dh vka[ks fudkyh ;g eq>s ugh ekyweA esjs HkkbZ eghiky us /kkjk 307] 324 vkbZŒihŒlhŒ ds rgr Åny o cuokjh ds f[kykQ dksbZ fjiksVZ ugh fy[kkbZA eq>s ugh ekywe fd fodkl fuoklh ykoj Fkkuk xqUukSj ds dRy esa Åny tsy x;k Fkk ;k ugh eq>s ugh ekyweA eq>s ugh irk fd bl Åny ij djhc 10&12 eqdnes dRy tku ysok geys rFkk 25, ,sDV o xSaxLVj ,DV ds eqdnes yxs gksA Åny us dwokjke dks xksyh ugha ekjh vkSj u gh dwaokjke ij xksyh ekjus dk eqdnek pyk ;g dwokjke esjs lxs pkpk gSA dwokjke dks Åny us tc xksyh ekjh Fkh ml eqdnes es esjk HkkbZ eghiky e`rd oknh Fkk bl ckr dh eq>s tkudkjh gSA ;g dguk xyr gS fd e`rd eghiky o ekSgde fuoklh uwjiqj o eqds'k\ iq= lqjs'k fuoklh ogjkSyiqj us dwokjke dks xksyh yxus ds rhu eghus okn Åny ij xksyh pykbZ Fkh rFkk xkao okyksa us ?ksj dj eksgEen dks ekj fn;k FkkA bl ?kVuk es eghiky o eqds'k tsy x;s Fks bl ckr dh eq>s dks tkudkjh ugha gSA^^ 49. From the above statements of P.W.-2 it appears that there had been other instances of murders and offences relating to family of the informant, which supports the appellants contention that there existed enmity of the deceased with others and the possibility of those persons committing the offence can not be ruled out. 50. Though P.W.-2 claims that he was present at the place of occurrence but it remains admitted to him that no injuries were received by him in the incident. He admits that he was on the same motorcycle when the deceased was dragged a few steps away after stopping the motorcycle in an ambush. 50. Though P.W.-2 claims that he was present at the place of occurrence but it remains admitted to him that no injuries were received by him in the incident. He admits that he was on the same motorcycle when the deceased was dragged a few steps away after stopping the motorcycle in an ambush. In the event brother of P.W.- 2 was being forcibly taken by the accused one would ordinarily expect some resistance on part of P.W.-2 or the third person available i.e. Rukam Singh. Some sort of injuries or scuffle was ordinarily expected. The fact that P.W.-2 remained a mute spectator in an incident where his real brother was shot dead without a scratch or a bruise to him creates a doubt regarding his presence at the place of occurrence. It has also been argued on behalf of the appellant that P.W.-2 although claims that he had accompanied the deceased but neither he is a witness to the inquest proceedings nor is he a witness to the recovery undertaken by the police of blood stained and plain earth as well as empty cartridges. In fact some of the prosecution witness namely P.W.-3 who happens to be the inquest witness has clearly stated that P.W.-2 was not present at the place of occurrence. P.W.-4, who is the other prosecution witness has stated that none from the Village of P.W.-2 i.e. Lehra Nagla Shyam was present at the place of occurrence. 51. The circumstance which have been noticed by us on the aspect relating to the presence of P.W.-2, taking cumulatively, does create a doubt about the presence of P.W.-2 at the place of occurrence. P.W.-4 has also stated that at the place of occurrence he saw none grieving or weeping, which is also a circumstance to doubt the presence of P.W.-2 as it would be natural to expect that having lost his brother P.W.-2 would have shown signs of grief, if he was present. 52. P.W.-9- the Investigating Officer, who had prepared the inquest proceedings has also categorically stated that he saw none from the Village Lehra Nagla Shyam at the place of occurrence. This statement of P.W.-9 is crucial as he is an independent witness and his assertion that none from the village of P.W.-2 was present creates a serious doubt upon the presence of P.W.-2 at the place of occurrence. 53. This statement of P.W.-9 is crucial as he is an independent witness and his assertion that none from the village of P.W.-2 was present creates a serious doubt upon the presence of P.W.-2 at the place of occurrence. 53. In view of the deliberation held above we find that the presence of P.W.-2 at the place of occurrence has not been established by the prosecution beyond reasonable doubt. P.W.-2 is otherwise the only witness of fact who has seen the incident and has supported the prosecution case. A doubt with regard to his presence at the place of occurrence therefore seriously creates a dent on the prosecution version. 54. The argument of learned State Counsel that the presence of P.W.-2 is proved by the fact that he has described the injuries on the deceased is not of much relevance inasmuch as on the date when P.W.-2 appeared in the witness box he was aware of the kind of injuries sustained by the deceased in view of the existence of post mortem report. The disclosure of the places where gun shot injuries were sustained by the deceased would thus not be conclusive of his presence. 55. Although the Trial Court has convicted the accused appellant but the judgment of conviction omits to consider factors noticed by us which creates a doubt upon presence of P.W.-2 at the place of occurrence. The contradictions and embellishments in his testimony have also been overlooked. The contradiction in the testimony of P.W.-2 with regard to the place of occurrence i.e. whether while going to the temple or on return from the temple; the disappearance of motorcycle and non furnishing of details in that regard; contradictory version of P.W.-2 with regard to the surroundings of the place of occurrence; non production of Rukam Singh and his maternal uncle Indrapal (scribe); P.W.-2 not being a witness of inquest or recovery etc. have clearly been overlooked. We are therefore of the view that the Court below has clearly erred in law in arriving at a finding that prosecution has established its case beyond reasonable doubt on the basis of evidence led in the matter. 56. In the facts of the present case, we find that the prosecution has not been able to establish the guilt of the accused appellants beyond reasonable doubt and the accused appellants are entitled to benefit of doubt in the matter. 57. 56. In the facts of the present case, we find that the prosecution has not been able to establish the guilt of the accused appellants beyond reasonable doubt and the accused appellants are entitled to benefit of doubt in the matter. 57. Consequently the appeals succeed and are allowed. The impugned judgment and order of the Court below dated 02.06.2015, is hereby set aside. 58. The accused appellants, who are in jail for the last about 13 years would be released on compliance of Section 437-A Cr.P.C. unless they are wanted in any other case, forthwith.