# Amitabh Dixit v. The State of U.P

- **Citation:** (2023) 1 ILRA 598
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-12
- **Case number:** Criminal Appeal No. 2735 of 2004
- **Bench:** Ramesh Sinha, Mohd. Aslam
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/amitabh-dixit-v-the-state-of-u-p-49667
- **Pages:** 25

## Headnote

A. Criminal Law - Indian Penal Code
,1860- Section 302 - Murder - Appeal
against conviction and Sentence - Fire
arm injury were caused by pistol - Two
empty
cartridges
of
315
bore
were
recovered from spot - Weapon was
recovered
at
the
point
of
accusedappellant - F.I.R. was lodged without
delay - Lapse or negligent on the part of
I.O., how far favour the accused - Held,
lapse on the part of the Investigating
Officer should not be taken in favour of
the accused, may be that such lapse is
committed
designedly
or
because
of
negligence - High Court found the charges
of offence punishable under Section 302
I.P.C. and 25 Arms Act proved beyond
reasonable doubt. (Para 6, 9, 16, 31 and
38)
B. Criminal Law - Criminal Procedure
Code,1973 - Section 374(2) - Scope -
Duty of appellate court while hearing
appeal - Explained - It is the duty of first
appellate Court to make proper analysis of
evidence and to consider whether trial
court's assessment of evidence and its
opinion regarding conviction deserve to be
confirmed because the personal liberty of
an
accused
is
curtailed
because
of
conviction.
First
appellate
Court's
concurrence with the trial court's view
would be acceptable only if it is supported
by reason. (Para 23)
C. Criminal Law - Criminal Procedure
Code,1973 - Sections 161 & 162(2) -
Statement, how far can be treated as the
Dying Declaration - Held, St.ment of the
deceased recorded under Section 161
Cr.P.C. can be treated as dying declaration
as per provision of Section 162(2) Cr.P.C.,
if from the evidence on record it is proved
that the St.ment under Section 161 Cr.P.C.
is beyond suspicion - Dalip Singh's case
relied upon. (Para 28 and 29)
D. Criminal trial - Criminal Procedure
Code, 1973 - Section 293 - Expert report
- Admissibility - Not calling the expert for
cross examination - Effect - Held, the
appellant had not called for the crossexamination of the expert, therefore, it
will be presumed that the serological
report is admitted to the appellant -
Report of expert may be admitted as
evidence
without
formal
proof
-
Bhupinder's case relied upon. (Para 33
and 34)
E. Criminal trial - Interested witness -
Reliability - Gangadhar Behera's case
relied upon - Relationship is not a factor
to affect credibility of a witness. It is more
1 All. Amitabh Dixit Vs. The State of U.P.
599
often than not that a relation would not
conceal
actual
culprit
and
make
allegations against an innocent person.
Foundation has to be laid if plea of false
implication is made. In such cases, the
court has to adopt a careful approach and
analyse evidence to find out whether it is
cogent ad credible.(Para 39)
Appeal dismissed. (E-1)
List of Cases cited:-

## Text

_Characters 0–39,821 of 88,042. This is a partial read: ask again with offset=39821 for what follows._

598 INDIAN LAW REPORTS ALLAHABAD SERIES

43. The appellants Jageshwar and
Sabit are on bail. Their bail bonds and
surety bonds are cancelled and the sureties
are discharged. The lower court concerned
shall cause them to be arrested and lodge in
jail to serve out the remaining sentence
awarded to them by court below.

44. Certify this judgment along with
lower court record to the lower Court
concerned immediately for information and
necessary compliance.
----------
(2023) 1 ILRA 598
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 12.01.2023

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE MOHD. ASLAM, J.

Criminal Appeal No. 2735 of 2004

Amitabh Dixit ...Appellant
Versus
The State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Ram Chandra Singh, Sri Arun Sinha

Counsel for the Opposite Party:
G.A., Sri Bal Keshwar Srivastava, Hari Bux
Singh, Sri Izhar Husain Siddiqui, Sri
Upendra Kumar Awasthi, Sri Vijay Kishor
Mishra

A. Criminal Law - Indian Penal Code
,1860- Section 302 - Murder - Appeal
against conviction and Sentence - Fire
arm injury were caused by pistol - Two
empty
cartridges
of
315
bore
were
recovered from spot - Weapon was
recovered
at
the
point
of
accusedappellant - F.I.R. was lodged without
delay - Lapse or negligent on the part of
I.O., how far favour the accused - Held,
lapse on the part of the Investigating
Officer should not be taken in favour of
the accused, may be that such lapse is
committed
designedly
or
because
of
negligence - High Court found the charges
of offence punishable under Section 302
I.P.C. and 25 Arms Act proved beyond
reasonable doubt. (Para 6, 9, 16, 31 and
38)
B. Criminal Law - Criminal Procedure
Code,1973 - Section 374(2) - Scope -
Duty of appellate court while hearing
appeal - Explained - It is the duty of first
appellate Court to make proper analysis of
evidence and to consider whether trial
court's assessment of evidence and its
opinion regarding conviction deserve to be
confirmed because the personal liberty of
an
accused
is
curtailed
because
of
conviction.
First
appellate
Court's
concurrence with the trial court's view
would be acceptable only if it is supported
by reason. (Para 23)
C. Criminal Law - Criminal Procedure
Code,1973 - Sections 161 & 162(2) -
Statement, how far can be treated as the
Dying Declaration - Held, St.ment of the
deceased recorded under Section 161
Cr.P.C. can be treated as dying declaration
as per provision of Section 162(2) Cr.P.C.,
if from the evidence on record it is proved
that the St.ment under Section 161 Cr.P.C.
is beyond suspicion - Dalip Singh's case
relied upon. (Para 28 and 29)
D. Criminal trial - Criminal Procedure
Code, 1973 - Section 293 - Expert report
- Admissibility - Not calling the expert for
cross examination - Effect - Held, the
appellant had not called for the crossexamination of the expert, therefore, it
will be presumed that the serological
report is admitted to the appellant -
Report of expert may be admitted as
evidence
without
formal
proof
-
Bhupinder's case relied upon. (Para 33
and 34)
E. Criminal trial - Interested witness -
Reliability - Gangadhar Behera's case
relied upon - Relationship is not a factor
to affect credibility of a witness. It is more
1 All. Amitabh Dixit Vs. The State of U.P.
599
often than not that a relation would not
conceal
actual
culprit
and
make
allegations against an innocent person.
Foundation has to be laid if plea of false
implication is made. In such cases, the
court has to adopt a careful approach and
analyse evidence to find out whether it is
cogent ad credible.(Para 39)
Appeal dismissed. (E-1)
List of Cases cited:-
1. St. of Punj. Vs. Hakam Singh; (2005) SCC
408
2. Ashok Kumar Chaudhari Vs St. of Bihar; 2008
(61) ACC 1972 (SC)
3. Om Prakash & ors..Vs St.; 1995 ALL. L. J.
1210
4. Bakshish Ram & anr. Vs St. of Punj.; AIR
2013 SC 1484: 2013 AIR SCW 14
5. Majjal Vs St. of Har.; (2013) 6 SCC 798
6. Dalip Singh Vs St. of Punj.; (1979) 4 SCC 332
7. Paras Yadav & ors. Vs St. of Bihar; (1999) 2
SCC 126 : 1999 SCC (Cri) 104
8. Bhupinder Vs St. of Punj.; AIR 1988 SC 1011
9. Gangadhar Behera & ors. Vs St. of Orissa;
(2002) 8 SCC 381
(Delivered by Hon'ble Mohd. Aslam, J.)

1. Heard Sri Arun Sinha, learned
counsel for the appellant, Sri Vijay Kishor
Mishra,
learned
counsel
for
the
complainant and Smt. Smiti Sahay, learned
Additional Government Advocate for the
State/respondent.

2. This criminal appeal has been filed
under Section 374(2) Cr.P.C. by the
appellant/convict Amitabh Dixit against the
impugned common judgment of conviction
and order of sentence dated 16.12.2004
passed by Additional District & Sessions
Judge, Fast Track Court No.4, Hardoi in
Sessions Trial No.673 of 2003 (State Vs.
Amitabh Dixit), arising out of Case Crime
No.209 of 2003, under Sections 302/307
I.P.C., Police Station- Shahabad, District-
Hardoi and Session Trial No. 674 of 2003
(State Vs. Amitabh Dixit), arising out of
Case Crime No.266 of 2003, under Section
25 Arms Act, Police Station- Shahabad,
District Hardoi, whereby the appellant was
convicted for offence punishable under
Section 302 I.P.C. and Section 25 Arms
Act and was sentenced to undergo
imprisonment for life along with fine of
Rs.5000/- under Section 302 I.P.C. and
further to undergo rigorous imprisonment
for two years along with fine of Rs.500/-
under Section 25 of Arms Act, in default of
payment of fine, to undergo additional
simple imprisonment for two years. All
sentences
were
directed
to
run
concurrently.

3. The brief facts necessary for disposal
of this appeal are that the informant Kamal
Kishore Dixit (PW-1) son of Late Moonga
Ram Dixit, resident of Mohalla Budh Bazar,
Police Station Shahabad, Hardoi lodged the
FIR in Case Crime No.209 of 2003, under
Sections 307, 302 I.P.C. on the basis of
written Tahrir (Ex.Ka-1) on 25.5.2003 at
15:20 hrs. at Police Station- Shahabad,
District Hardoi alleging therein that on
25.5.2003 at 02:45 hrs. his younger brother,
Ram Kishore Dixit was returning home by
bicycle after getting mustard oil extracted.
The informant Kamal Kishore and his
another brother Ram Pramod were also
coming to home and they were 50 yards
behind his brother Ram Kishore. When his
brother Ram Kishore Dixit reached near the
Mill of Parashuram near Mohallah Budh
Bazar, accused Amitabh Dixit, son of Om
Parkash Dixit, who was having enmity
regarding the division of land property,
opened fire at his brother Ram Kishore Dixit
by a country made pistol with intention to kill
600 INDIAN LAW REPORTS ALLAHABAD SERIES
him. His brother Ram Kishore Dixit left his
bicycle and ran towards them to save his life.
Meanwhile, Amitabh Dixit fired another shot,
till then his brother reached at the door of
Ram
Shankar
Mishra.
After
chasing,
Amitabh Dixit fired another shot by which
his brother sustained injury. Witnesses Ramji
Tiwari, son of Govind Prasad Tiwari, resident
of Mohallah Holi Kalan town and Suresh
Kumar Gupta, son of late Raghuwar Prasad
Gupta who were passing by the place of
incident witnessed the entire incident. On
account of continuous firing by Amitabh
Dixit on public road, the people around there
were horrified. Ladies, gents and children
entered into the house and locked their doors,
by which the normal life near the place of
occurrence, got disturbed, taking advantage
of which accused fled from there. With the
help of Ramji Tiwari and Suresh Kumar
Gupta his injured brother Ram Kishore Dixit
was taken to the Government Hospital
Shahabad and informant went to the police
station to lodge the F.I.R.

4. Head Moharrir, scribed the Chik
Report No.71 of 2003 (Ex.Ka-5) under
Section 307 I.P.C. at Police Station
Shahabad on the basis of written Tahrir of
informant and registered the Case Crime
No.209 of 2003, under Section 307 I.P.C.
by making necessary entry in GD report
no.26 at 15:20 hrs. on 25.05.2003 (Ex.Ka6) and investigation of the case was taken
by SHO Shahabad, Inspector S.N. Singh
PW-7. On 25.05.2003, he copied the Chik
report in CD and recorded the statement of
injured Ram Kishor Dixit under Section
161 Cr.P.C. (Ex.Ka-25), thereafter, he
searched for the accused, but could not find
him.

5. On the same day i.e. 25.05.2003 at
16:20 p.m. informant gave another written
Tahrir (Ex.Ka-2) alleging therein that after
lodging the FIR he had gone to the hospital
to see his injured brother. By that time Ram
Pramod, Suresh Kumar Gupta and Ramji
Tiwari were also reached to the hospital.
All of them searched a lot for doctors in
hospital, but the doctors were not found,
then they took the injured to private nursing
home of Dr. Maya Parkash. His brother
died before reaching to the clinic of Dr.
Maya Parkash. He had taken the dead body
of his brother to police station and kept it
outside the gate of the police station. The
substance of Ex.Ka-2 was entered in GD
(Ex.Ka-7) vide Report No.27 at 16:20 hrs.
on 25.05.2003 and Section 302 I.P.C. was
added. The inquest of the dead body of the
deceased was conducted by S.I. S.N. Singh
on
25.05.2003.
He
appointed
Naval
Kishore Dixit, Suresh Kumar Gupta, Ram
Promod, Ramji Tiwari and Kamlesh Gupta
as witnesses of the inquest and prepared
Panchayatnama (Ex.Ka-12), Challan Lash
(Ex.Ka-13), Photo Nash (Ex.Ka-14), letter
to CMO (Ex.Ka-15) and sealed the dead
body, and prepared sample seal (Ex.Ka-16)
and handed over the dead body to
Constable Ujair Khan for carrying the dead
body to mortuary for post-mortem.

6. On 25.05.2003, Investigating
Officer S.N. Singh recorded the statements
of injured Ram Kishore Dixit under Section
161 Cr.P.C. (Ex.Ka-25) at Primary Health
Centre,
Shahabad,
and
thereafter
he
recorded the statement of informant Kamal
Kishore (PW-1) and inspected the place of
occurrence and prepared the site plan
(Ex.Ka-17) at the instance of informant. He
also recovered two empty cartridges of 315
bore, one pair slipper, plain and blood
stained soil, bicycle and cane of oil from
which oil had flown on the road and
prepared its memo (Ex.Ka-18) and sealed
in presence of witnesses Vimlesh Singh
and Rajeev Kumar Mishra. He also
1 All. Amitabh Dixit Vs. The State of U.P.
601
prepared the memo of one pair slipper
(Ex.Ka-19) and sealed it. He also prepared
the supurdginama of bicycle and the
container of oil (Ex.Ka-21) and given it in
the custody of informant. On 26.05.2003,
he recorded the statement of witnesses
Rajeev Kumar Mishra, Vimlesh Singh,
Ramji Tiwari and Suresh Kumar Gupta. He
also recorded the statements Smt. Manju
Dixit, wife of the deceased, Laxmi Kant
Dixit, son of the deceased and witness Ram
Promod.

7. The post-mortem of the deceased
was conducted by Dr. J.L. Gautam (PW-5)
on 26.05.2003 at 04:00 p.m. The age of the
deceased Ram Kishore Dixit was found to be
about 40 years, having average body built.
Eyes and mouth were found open. Rigor
mortis passed off from all over the body.
Post-mortem staining was found present on
the back and buttock. Abdomen was found
distended. Following ante-mortem injuries
were found on the body of the deceased:-

(i) firearm wound of entry 2 cm X
1.5 cm through and through present at the
right side of abdomen 12 cm away from
umbilicus at 10 o'clock, margins inverted,
lacerated tattooing 15 cm X 15 cm around
the wound present.

(ii) firearm wound of exit 3 cm X 2
cm present on the right back of L-2 level,
margins
everted,
lacerated
rapped
communicating with injury no.1. Direction
front to back towards right side.

(iii) firearm wound of entry 2 cm X
10 cm X through and through present on the
left upper part of thigh near ASIS. Margins
inverted and lacerated.

(iv) firearm wound of exit 3 cm X
2 cm present on the left thigh posterior
aspect near lower part of gluteal region,
margins everted , lacerated, communicated
with injury no.3.

(v) gutter shaped firearm wound
5 cm X 1.5 cm X muscle deep present on
left-hand on palmer part near middle of
palm and wrist joint wound in wider on
finger root side and tapper on wrist joint
side margins inverted lacerated on wrist
side.

femaral artery under injury no.3
is lacerated.

8. On internal examination, left
chamber of the heart was found empty and
right chamber was found full. Abdominal
cavity was found containing 2 liters of
clotted blood. Stomach was found lacerated
and contains two ounce of pasty matter
with clotted blood. Small and large
intestine were found lacerated and loaded
with faecal matter and gases. Liver was
found lacerated, gallbladder was found half
filled. Doctor opined that deceased died
about one day before the post-mortem due
to shock and hemorrhage as a result of
antemortem injury. Dr. J.L. Gautam (PW5) prepared the post-mortem report (Ex.Ka8) in his own handwriting and sealed the
clothes of deceased containing shirt,
janeyu, underwear, angauchha and kalawa
and send it to the Superintendent of Police.

9. On 05.06.2003, the Investigating
Officer
Inspector
S.N.
Singh
PW-7
received Ropkar regarding surrender of
accused Amitabh Dixit in the Court. On
06.06.2003, he recorded the statement of
accused Amitabh Dixit in District Jail,
Hardoi with the permission of the court
wherein he had given disclosure statement
that he had concealed the weapon used in
the murder of deceased to which he could
602 INDIAN LAW REPORTS ALLAHABAD SERIES
get recovered. Thereafter, Investigating
Officer applied for police custody of the
accused which was allowed, and thereafter,
he had taken the accused in police custody.
On 11.06.2003 the Investigating Officer
recovered the alleged weapon along with
two cartridges used by the accused in the
murder of deceased at the pointing out of
the accused-appellant in presence of
witnesses Chhedalal Verma, Ram Vilas
Verma and Sanjay and prepared its
recovery memo (Ex.Ka-23) and sealed it.
He also recorded the statements of
witnesses of recovery of country made
pistol of 315 bore along with two empty
cartridges.

10. On the basis of recovery memo
(Ex.Ka-23), the Chik report no. 80 of 2003
(Ex.Ka-3) was scribed by Constable Ram
Pratap on 12.6.2003 at 8:30 a.m. and by
making necessary entry in GD (Ex.Ka-4)
report no.16 at 8:30 a.m. on 12.6.2003
registered the Case Crime No.266 of 2003,
under Section 3/25 Arms Act.

11. The investigation of the case
under Section 3/25 Arms Act was entrusted
to S.I. Ikrar Hussain PW-6 who had
recorded the statement of witnesses and
prepared the site-plan (Ex.Ka-9) at the
instance of recovery officer Inspector S.N.
Singh (PW-7). He also obtained sanction
for prosecution from the then District
Magistrate,
Hardoi
(Ex.Ka-10)
on
04.07.2003 and submitted the charge-sheet
(Ex.Ka-11) against accused Amitabh Dixit
under Section 3/25 Arms Act.

12. Following articles i.e. (1) Pair of
Slipper, (2) blood-stained soil, (3) Pants,
(4) shirts, (5) underwear, (6) Scarf, (7)
Janeu and (8) Raksha (Kalawa) were sent
to the forensic science laboratory by the
Investigating Officer, Inspector S.N. Singh
for forensic examination regarding which
report dated 24.9.2003 (Ex.Ka-26) was
received wherein blood was found on the
large parts of item nos. 1 to 8. Largest spot
of blood was found on item nos. 4 to 6
having length of 50, 20 and 40 cm,
respectively. Human blood was found on
the item nos. 1 to 8. The two empty
cartridges of 315 bore recovered from the
place of occurrence and the country made
pistol recovered from the accused were sent
to Forensic Science Laboratory, Lucknow
regarding which report dated 13.10.2003
(Ex.Ka-27) was received where the empty
cartridges recovered from the place of
occurrence was marked as EC-1 and EC-2,
respectively, and two test cartridges TC1
and TC2 were fired from the country made
pistol of 315 bore allegedly recovered from
the appellant-accused and their marks on
the cape of the cartridges were compared
from the microscope and found that the
EC1 & EC2 and TC1 and TC2 were fired
from the same country made pistol of 315
bore allegedly recovered from the accused.
After investigation, Inspector S.N. Singh
(PW-7) submitted the charge-sheet in Case
Crime No.209 of 2003, under Sections
307/302 IPC (Ex.Ka.24).

13. The cognizance of the offence
punishable under Section 307/302 IPC
against the accused-appellant was taken on
14th July, 2003 by the Chief Judicial
Magistrate. The cognizance of offence
punishable under Section 3/25 Arms Act
against the accused-appellant was also
taken on 14.07.2003. Both the chargesheets were arising out of the same
occurrence, therefore, both the cases were
committed
by
the
Chief
Judicial
Magistrate, Hardoi after complying the
provision of Section 207 Cr.P.C. to the
court of sessions for trial. The case arising
out of Case Crime No.209 of 2003, under
1 All. Amitabh Dixit Vs. The State of U.P.
603
Section 307/302 IPC was registered as
Sessions Trial No.673 of 2003 (State of UP
vs. Amitabh Dixit) and the case arising out
of Case Crime No.266 of 2005, under
Section 3/25 Arms Act was registered as
Sessions Trial No. 674 of 2003 (State of
UP vs. Amitabh Dixit).

14. These Sessions trial were later
transferred to the Additional Sessions
Judge, Fast Track Court No.4, Hardoi for
trial. Learned Additional Sessions Judge,
Fast Track Court No.4, Hardoi framed the
charges of offence punishable under
Section 302 I.P.C. and Section 25 Arms
Act against the accused-appellant Amitabh
Dixit on 07.01.2004. The appellant/accused
Amitabh Dixit has pleaded not guilty and
claimed to be tried.

15. Both the Sessions trial were
consolidated for trial because they were
related to the same transaction and the
Sessions Trial No. 673 of 2003 (State vs.
Amitabh Dixit) under Section 302 IPC was
treated as leading case.

16. In order to prove its case, the
prosecution has examined informant Kamal
Kishore as PW-1 and Ramji Tiwari as PW2 an eyewitness of the incident. The
informant
proved
the
written
Tahrir
(Ex.Ka-1), information of death of the
deceased (Ex.Ka-2). As formal witness, the
prosecution
examined
Constable
Ram
Pratap as PW-3 to prove chik report of
Arms Act (Ex.Ka-3), GD registering the
case under Section 3/25 Arms Act (Ex.Ka4) and by secondary evidence he proved the
chick report of FIR No.71 of 2003, under
Section 307 IPC (Ex.Ka-5), GD registering
the case (Ex.Ka-6) and GD report no. 27
dated 25.05.2003 (Ex.Ka-7) by which the
Section 302 IPC was added. Prosecution
also examined Chheda Lal as PW-4 to
prove the recovery of country made pistol
of 315 bore along with two live cartridges
from the accused-appellant during police
custody remand. The prosecution examined
Dr. J.L. Gautam as PW-5 to prove the postmortem report (Ex.Ka-8). The prosecution
examined S.I Iqrar Hussain as PW-6 to
prove the steps taken in investigation of
case under Section 3/25 Arms Act and to
prove site plan (Ex.Ka-9), sanction for
prosecution (Ex.Ka-10) and the chargesheet submitted under Section 3/25 Arms
Act (Ex.Ka-11). The prosecution also
examined
the
Investigating
Officer
Inspector S.N. Singh as PW-7 to prove the
steps taken in investigation of the murder
of the deceased and recovery of country
made pistol of 315 bore and two live
cartridges from the place of occurrence. On
25.05.2003, he copied the chik report and
GD registering the case and recorded the
statement of informant Kamal Kishore PW1 and on the same day he had gone to
Primary
Health
Centre,
Shahabad
immediately and recorded the statement of
injured Ram Kishore Dixit (Ex.Ka-25) who
had supported the prosecution case. He also
proved that the inquest of dead body of the
deceased was conducted by S.I. Siyaram
who prepared the Panchayatnama (Ex.Ka12), Chalan lash, (Ex.Ka-13), photo Nash
(Ex.Ka-14), letter to CMO (Ex.Ka-15), and
sealed the dead body and prepared sample
seal (Ex.Ka-16) and sent the dead body to
mortuary for post-mortem in his presence.
He was also examined to prove that he had
taken two empty cartridges of 315 bore
which was recovered from the place of
occurrence and sealed them and prepared
memo (Ex.Ka-18) in presence of witnesses
Vimlesh Singh and Rajiv Kumar Mishra,
memo of taking a pair of slipper from the
place of occurrence and sealed it and
prepared memo (Ex.Ka-19), he had also
taken plain soil and blood stained soil and
604 INDIAN LAW REPORTS ALLAHABAD SERIES
sealed them into two containers and
prepared memo (Ex.Ka-20) and had taken
in possession the bicycle of the deceased
and prepared supurdaginama (Ex.Ka-21)
and given in custody of informant. He was
also examined to prove the site plan
(Ex.Ka-17). He was also examined on the
point of recovery of country-made pistol of
315 bore along with two cartridges in the
presence of witnesses Chhedalal Verma
and Sanjay Mishra on 12.6.2003 at about
06:45 hrs. during police custody remand
from the appellant/accused and prepared its
memo (Ex.Ka-23). He also produced the
two empty cartridges recovered from the
place of occurrence as Material-Ex-1 and
country-made pistol of 315 bore which was
recovered
from
the
possession
of
appellant/accused during police custody
remand (Material-Ex-2) and two live
cartridges (Material-Ex-3 & 4). He also
proved two test cartridges (Material-Ex-5
& 6). He also proved the charge-sheet of
Case Crime No.209 of 2003, under Section
307/302 IPC (Ex.Ka-24). The prosecution
also tendered the ballistic report of
Forensic Science Laboratory (Ex.Ka-27)
and the report of serological expert (Ex.Ka26) and the prosecution closed its evidence.

17.

Statement
of
the
appellant/accused
under
Section
313
Cr.P.C. was recorded wherein he admitted
that there was enmity with the family of the
deceased
regarding
division
of
land
property. He denied the allegation of the
prosecution and stated that he was falsely
implicated by the prosecution, but he did
not produce any evidence in his defence.

18. Learned trial court having heard
the arguments of learned ADGC for the
State
and
learned
counsel
for
the
appellant/accused and going through the
record has held that the FIR was lodged
promptly and the presence of witnesses
informant Kamal Kishore (PW-1) and
Ramji Tiwari (PW-2) is proved beyond
reasonable doubt. It is also held that
although they are related to the deceased,
but on the ground of relatives of the
deceased
their
testimony
cannot
be
disbelieved. It is further held that the
testimony of the related witness requires
close scrutiny. After scrutinizing their
testimonies, learned trial court has held that
their testimonies are natural and inspire
confidence which are corroborated by the
FIR, post-mortem report and ballistic
expert report. It is further held that the
charges of offence punishable under
Section 302 IPC and Section 25 Arms Act
are proved beyond reasonable doubt against
the appellant and recorded the finding that
appellant/accused is guilty of murder of the
deceased Ram Kishore Dixit and a country
made pistol along with two cartridges were
recovered from him and sentenced him as
above. Feeling aggrieved by the impugned
judgment of conviction and order of
sentence, the convict/appellant Amitabh
Dixit has filed this appeal.

19. It is submitted by learned counsel
for the appellant that the FIR was lodged
anti-timed
after
concoction
and
due
deliberation after the death of the deceased.
It is further submitted that the FIR under
Section 307 is not lodged at 15:20 p.m. on
25.05.2003 as alleged by the prosecution,
but it was lodged after the death of the
deceased and till the preparation of the
inquest report FIR was not lodged and the
first information report as being ante-timed
only to show false prosecution story and for
naming
false
witnesses
in
the
first
information report. It is further submitted
that the inquest report shows that the
alleged eyewitnesses named in the FIR
have been mentioned as inquest witnesses
and for eyewitnesses, namely, Kamal
1 All. Amitabh Dixit Vs. The State of U.P.
605
Kishore (wrongly mentioned in inquest
report as Nawal Kishore signed in the
inquest report as Kamal Kishore), Ram
Promod and Ramji Tiwari were shown as
witnesses of the inquest also. It is also
submitted that perusal of the inquest report
shows that the inquest report has not been
prepared/written by one person, but some
writings are in the handwriting of different
persons. It is further submitted that the GD
report number regarding reporting of the
death of the deceased was left blank which
shows that FIR was not in existence at the
time of inquest proceeding. It is further
submitted that in the inquest report it was
mentioned that the information regarding
death of the deceased was given by some
Nawal Kishore and not by the informant. It
is further submitted that the GD report
number regarding death of the deceased
was purposely left blank in the inquest so
that FIR can be lodged ante-timed to
accommodate the inquest proceeding by
filling in the blanks of GD report number
regarding reporting of death of the
deceased, but Sub-Inspector conducting the
inquest report forgotten to fill up the GD
report number regarding reporting of death
of the deceased. It is submitted that it
establishes that the FIR was lodged after
the death of the deceased to falsely
implicate the appellant Amitabh Dixit. It is
further submitted that not only in the
inquest report but also in other police
papers allegedly prepared at the time of the
inquest i.e. Challan lash etc. It is further
submitted that it is apparent that FIR was
not in existence at the time of inquest
proceeding and incorrect entries in GD
report and inquest proceeding. It is further
submitted that police paper no.30 challan
lash shows that the name of the deceased
has been written by different person in
different handwriting and other details have
been written by some other person. It is
further submitted that informant PW-1
Kamal Kishore has admitted in his
examination-in-chief that his brother has
died at 03:20 p.m. It is also submitted that
the first information report under Section
307 IPC is ante-timed and the statement of
the deceased under Section 161 Cr.P.C.
was fabricated by the Investigating Officer
S.N. Singh. It is further submitted that the
informant PW-1 has stated that after the
death of his brother, he with the help of
others brought the dead body of the
deceased to the police station and kept it
outside the gate, but inquest report shows
that the dead body was found by SI
Siyaram
in
the
premises
of
newly
constructed Munsif court, Shahabad, which
casts doubt on the prosecution case. It is
further submitted that the informant has
deposed in his statement before the court
that the first fire from country made pistol
was shot by Amitabh Dixit which hit at the
hand of his brother and thereupon his
brother ran towards them, thereupon, the
second fire was shot by the appellant which
hit at the left leg of his brother. It is further
submitted that the informant has admitted
that after sustaining injury by the first shot
fired, his brother left the bicycle there and
ran towards them. It is further submitted
that the informant has also admitted that his
brother Ramji Kishore fell in front of the
door
of
Ram
Shankar,
meanwhile,
appellant Amitabh Dixit shot third fire
which hit at the right side of chest of his
brother. It is further submitted that the
deposition of the informant Kamal Kishore
as PW-1 shows that the fire was made from
the back side of the deceased which is
inconsistent with the injury shown in the
post-mortem report, therefore, it appears
that the informant was not present at the
place of occurrence and had not witnessed
the occurrence. It is further submitted that
learned trial court has wrongly relied on the
606 INDIAN LAW REPORTS ALLAHABAD SERIES
testimony of the informant PW-1. It is
further submitted that the witness Ramji
Tiwari PW-2 has admitted that the name of
his father is Govind Prasad Tiwari. The
sister of Govind Prasad Tiwari, namely,
Smt. Saraswati was married to Moonga
Ram, who is father of the deceased,
informant Kamal Kishore Dixit and Ram
Promod. It is further submitted that the
alleged
eyewitnesses,
informant
PW1
Kamal Kishore and Ramji Tiwari are
related to the deceased and there is
contradiction in their testimonies, therefore,
no reliance can be placed on their
testimonies, but learned trial court has
wrongly relied on their testimonies. It is
further submitted that witness Ramji Tiwari
has made improvement in his statement so
that injuries mentioned in post-mortem
report may corroborate the prosecution
case. The PW-2 Ramji Tiwari is an
Advocate practicing at Shahabad and he
has purposely made improvement in his
statement before the trial court because he
was well aware as to how he can improve
his statement before the court so that the
same can be corroborated from the FIR and
post-mortem report and can be relied on. It
is further submitted that informant PW-1 in
his cross-examination has admitted that in
his presence no one had touched his injured
brother at the place of occurrence and he
had also not touched his brother and left for
police station to lodge the report, which is
an unnatural conduct of the informant
which also makes his presence at the place
of occurrence doubtful and, therefore, no
reliance can be placed on his testimony. It
is further submitted that the alleged
incident has taken place in public at large,
but no independent witness has been
examined by the prosecution, therefore, no
conviction can be recorded merely on the
basis of the testimonies of the interested
witness. It is further submitted that in
above circumstances the prosecution has
miserably failed to prove its case beyond
doubt for the charges of offence punishable
under Section 302 IPC and 25 Arms Act.
Therefore, the impugned judgment and
order of conviction is liable to be set-aside
and
the
accused-appellant
may
be
acquitted.

20. It is submitted by learned A.G.A.
that the occurrence has taken place on
25.05.2003 at 02:45 p.m. regarding which
FIR was lodged on the same day at 15:20
p.m. The chick report (Ex.Ka-5) which is
proved by the Constable/Clerk PW-3 Ram
Pratap by his secondary evidence deposing
that chik FIR was scribed by Head
Moharrir Hemraj in whose handwriting he
is acquainted with. This fact that the chik
report was scribed by Head Moharrir
Hemraj was not challenged by the learned
counsel for appellant/accused in his crossexamination before the trial court. It is
further
submitted
that
the
place
of
occurrence from the police station is shown
to be one and half kilometers away and this
fact was also not challenged before the trial
court. It is further submitted that the PW-1
Kamal Kishore in his deposition has stated
that after the occurrence he had gone to
police station by rickshaw and handed over
the Tahrir at Police Station, Shahabad. It is
also submitted that the informant further
deposed that he scribed the Tahrir in his
own handwriting and under his signature. It
is further submitted that PW-1 Kamal
Kishore has further deposed that Daroga ji
met him at the police station and the
deceased has died at about 03:30 p.m. on
25.5.2003 in hospital regarding which he
has given Tahrir (Ex.Ka-2) to police station
Shahabad in his own handwriting. He has
further stated that he has given the
information regarding death of his brother.
It is further submitted that PW-1 Kamal
1 All. Amitabh Dixit Vs. The State of U.P.
607
Kishore has stated that by mistake he in his
statement has said that his brother died at
03:30 p.m. It is further submitted that PW-1
Kamal Kishore has deposed that police
station is about 2 km away from the place
of occurrence. It is further submitted that
PW-1 Kamal Kishore has further stated in
his statement before the court that he
neither has picked up Ram Kishore nor has
taken him to the hospital or police station,
but he immediately proceeded to the police
station to lodge the FIR. It is further
submitted that PW-1 Kamal Kishore has
deposed that he has told before lodging of
the FIR to Daroga Ji that his brother Ram
Kishore
has
sustained
three
firearm
injuries, and thereafter, Daroga Ji had gone
to PHC, Shahabad and found Ram Kishore
present and recorded his statement. PW-1
Kamal Kishore has further deposed that the
copy of the FIR was given to him on the
same day in evening. It is further submitted
that in this incident the real younger brother
of the informant was murdered, his mental
condition can also be adjudged on his
deposition that the dead body was sealed in
hospital. Meaning thereby, as per the
statement of this witness the inquest
proceeding was conducted at district
hospital. It is further submitted by learned
AGA that he was shown as witness of the
inquest, but he has stated that he had not
signed on the Panchayatnama which shows
that he was in shock with the incident and
had even lost his mental equilibrium at the
time of recording of his statement as
eyewitness, so such type of contradiction
has occurred in his statement. It is also
submitted that so far as the conduct of this
witness is concerned regarding not picking
up his injured brother and going to police
station does not make his statement
unreliable because the conduct depends
upon his mental condition. It is further
submitted that it cannot be said that
informant had not lodged the FIR at 15:20
p.m. at police station Shahabad. It is further
submitted that it cannot be said that the FIR
is ante-timed. It is also submitted that the
post-mortem
of
the
deceased
was
conducted at 04:00 p.m. on 26.5.2003 and
post-mortem report was prepared by PW-5
Dr. J.L. Gautam who has deposed as PW-5
that the deceased died on 25.5.2003 at
about 3-4 p.m. It is further submitted that at
the time of post-mortem two ounce of pasty
matter with clotted blood was found in
stomach, meaning thereby, the occurrence
has taken place about 2-3 hours after taking
lunch, therefore, it cannot be said that the
deceased had sustained injury in night in
robbery committed by unknown persons. It
is further submitted by learned AGA that
PW-1 Kamal Kishore had denied the
suggestion
of
learned
counsel
for
appellant/accused before the trial court that
the deceased Ram Kishore was looted at a
lonely place in the darkness of the night. It
is further submitted that in the present case
the FIR was lodged promptly, therefore, it
will rule out any sort of concoctions and
deliberations for falsely implicating the
appellant. It is further submitted by learned
AGA that from the statement of PW-7
Inspector S.N. Singh, it is proved that the
investigation was started on the same day
after lodging of the FIR without delay. It is
also submitted that PW-7 S.N. Singh has
deposed that informant had come alone to
lodge FIR. It is further submitted that these
circumstances also rule out the chances of
concoction and false implication of the
accused. It is also submitted that from the
statement of PW-7, it is also apparent that
there was some delay in forwarding the FIR
to Circle Officer of the police and court
having jurisdiction by itself, which cannot
be said that the FIR is ante-timed and the
learned A.G.A. has placed reliance on the
law laid down by the Apex Court in State
608 INDIAN LAW REPORTS ALLAHABAD SERIES
of Punjab versus Hakam Singh, reported
in (2005) SCC 408 wherein it is held that
the delay in sending the copy to the area
Magistrate is not material where FIR is
shown to have been lodged promptly and
investigation has started on its basis. It is
also submitted that even if there is delay in
lodging the FIR and the delay is not
material in the event prosecution has given
cogent and reasonable explanation for
delay and has relied on the law laid down
by the Apex Court in Ashok Kumar
Chaudhari Vs. State of Bihar, 2008 (61)
ACC 1972 (SC) wherein it is held that even
if there is delay in lodging the FIR and
causes are not attributable to any effort to
concoct a version and the delay is
satisfactorily explained by the prosecution,
no consequence shall be attached to mere
delay in lodging the FIR and the delay
would not adversely affect the case of the
prosecution. The delay caused in sending
the copy of FIR to Magistrate having
jurisdiction would be also immaterial if the
prosecution has proved its case by reliable
evidence. It is further submitted that the
witness PW-7 Inspector S.N. Singh has
stated in his statement that 10 minutes time
were taken by Constable Moharrir Hemraj
in scribing the chik FIR and GD registering
the case, and thereafter, he took the copy of
the same and proceeded to PHC, Shahabad,
which is about 200-300 meters away from
the police station where he found Ram
Kishore and the person accompanying the
injured were searching for doctor. It is
further submitted that PW-7 has recorded
the statement under Section 161 Cr.P.C. of
the injured Ram Kishore, and thereafter,
injured was taken to private nursing home
for treatment. It is further submitted that
Ram Kishore has died on the same day at
about 03:30-03:45 p.m. as a result of
injuries sustained in the incident, therefore,
his statement under Section 161 Cr.P.C.
will be treated as dying declaration
according to sub-section (2) of Section 162
Cr.P.C. It is further submitted that the
statement under Section 161 Cr.P.C. of the
deceased was proved by I.O. PW-7
Inspector S.N. Singh as (Ex.Ka-25) in
which he has supported the version of FIR.
It is further submitted that FIR is supported
by dying declaration and also by informanteyewitness PW-1 Kamal Kishore and
eyewitness PW-2 Ramji Tiwari whose
presence at the place of occurrence could
not be shaken in cross-examination, who
have given vivid description of the incident
which is corroborated by the FIR and postmortem report. Therefore, their testimonies
are liable to be relied on and he has relied
on the law laid down by this Court in Om
Prakash and Ors. v. State, reported in
1995 ALL. L. J. 1210. It is also submitted
that two empty cartridges of 315 bore were
recovered from the place of occurrence by
the Investigating Officer, who prepared the
memo (Ex.Ka-18) and has proved it as PW7. Investigating Officer Shyam Nath Singh
also came to know that accused has
surrendered before the court on receiving
Robkar and with the permission of the
court he interrogated the appellant/accused
Amitabh Dixit on 6.6.2003 and recorded
his statement wherein he has disclosed that
the weapon used in the murder of Ram
Kishore was concealed by him after
committing murder to which he is ready to
get recovered. Thereafter, he was taken in
police custody by the order of court on
11.6.2003 and on 12.6.2003 he was taken
to the place at the tube-well near Kabristan
by following him and came down in the
well of the tube-well in presence of
witnesses PW-3 Chhedalal Verma and
Sanjay Mishra and came out with black
polythene from which a country made
pistol of 315 bore in running condition
along with two live cartridges were taken
1 All. Amitabh Dixit Vs. The State of U.P.
609
out. He also proved that the country made
pistol of 315 bore and two cartridges of 315
bore were recovered from the possession of
the appellant. He also proved that he had
prepared the recovery memo of the same
(Ex.Ka-23) and sealed the pistol of 315
bore and two cartridges in presence of
witnesses Chhedalal Varma and Sanjay
Mishra. The recovery of the pistol of 315
bore and two cartridges from the appellant
was also proved by witness PW-4 who has
proved that the recovery of the same was
made before him and he signed on the
same. Although he was declared hostile on
the point of giving of the copy of the
recovery memo to the appellant and signing
of the appellant on recovery memo
regarding receipt of copy of recovery
memo.