# Anil Kumar Ahirwar v. State of U.P

- **Citation:** (2023) 9 ILRA 649
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-08-28
- **Case number:** Criminal Appeal No. 4894 of 2005
- **Bench:** Ashwani Kumar Mishra, Syed Aftab Husain Rizvi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/anil-kumar-ahirwar-v-state-of-u-p-50725
- **Pages:** 15

## Headnote

Law-Criminal
Procedure
Code,1973-Section 374(2) - Indian Penal
Code, 1860-Sections 302/34, 302/114 &
120 - Arms Act, 1878 - Section 25 -
Challenge
to-Conviction-the
prosecution
witnesses have been consistent on the point
that he had fired on the deceased with his
half-barrel gun and he was apprehended at
the spot. The testimony of P.W.-1 and P.W.5
is specific in that regard-The non-holding of
test
identification
parade
although
is
challenged on behalf of the first accusedappellant but no substance- The records
reveal that an unknown person was in fact
produced before the PHC who was around
25 years of age and had been brought by
the police in their jeep- The prosecution
witnesses of fact who undisputedly were
present on the spot have clearly described
the manner in which the first accused had
fired from his half-barrel gun from a close
distance on account of which the deceased
died- The second accused has no criminal
history-He was admittedly not apprehended
on the spot. No recovery has been made
from him either of the fire-arm from which
he is alleged to have fired on the injured nor
any recovery has been made from him
which may connect him to the offence-The
Investigating Officer in his testimony has
admitted that identity of the second accused
was ascertained itself- This ascertainment
of identity of accused is based upon the
disclosure made by the prime accused -Once
the identity of accused was known to the
police, it was expected that either an
attempt would be made to arrest him or the
police at least tried to interrogate the
alleged accused-There is, however, nothing
on record to show that any attempt was
made either to interrogate the accused or to
verify his role in commissioning of the
offence-The prosecution case on this aspect
is
somewhat
unusual.
As
per
the
prosecution case, the informant P.W.-1
visited the railway station and found the
accused sitting there on a bench- P.W.-1
then informed the police, whereafter, the
accused allegedly was arrested on from the
railway station-The prosecution case in the
form of testimony of P.W.-8 as well as
statements of P.W.-3 and P.W.-4 do not
appear to be natural and convincing-Their
testimony appears to have been introduced
later only with the intent of implicating the
two sons-therefore, trial court has not erred
in coming to the conclusion that prosecution
has not succeeded in establishing the guilt
of the two accused and thereby acquit
them-Hence,
first
accused
appeal
is
650 INDIAN LAW REPORTS ALLAHABAD SERIES
dismissed while second accused appeal is
allowed.

The appeals are partly allowed. (E-6)

List of cases cited:

## Text

_Characters 0–39,808 of 51,543. This is a partial read: ask again with offset=39808 for what follows._

9 All. Anil Kumar Ahirwar Vs. State of U.P.
649
concerned and undergo remaining part of
sentence.

25. Let copy of the judgment be
immediately notified to the court concerned
for compliance.

26. Lower court record be returned
immediately.
----------
(2023) 9 ILRA 649
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 28.08.2023

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SYED AFTAB HUSAIN RIZVI, J.

Criminal Appeal No. 4894 of 2005
Connected With
Criminal Appeal No. 5303 of 2005
And
Criminal Appeal No. 5068 of 2005
And
Government Appeal No. 983 of 2006

Anil Kumar Ahirwar ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri S.N. Gupta, Sri Bhole Ram, Sri Mithilesh
Kumar Mishra, Sri Mohd. Farooq, Sri N.I.
Jafri, Sri Sharad Chandra Singh, Sri Sukhvir
Singh

Counsel for the Opposite Party:
G.A., Sri M.C. Chaturvedi, Sri M.D. Mishra

A.
Criminal
Law-Criminal
Procedure
Code,1973-Section 374(2) - Indian Penal
Code, 1860-Sections 302/34, 302/114 &
120 - Arms Act, 1878 - Section 25 -
Challenge
to-Conviction-the
prosecution
witnesses have been consistent on the point
that he had fired on the deceased with his
half-barrel gun and he was apprehended at
the spot. The testimony of P.W.-1 and P.W.5
is specific in that regard-The non-holding of
test
identification
parade
although
is
challenged on behalf of the first accusedappellant but no substance- The records
reveal that an unknown person was in fact
produced before the PHC who was around
25 years of age and had been brought by
the police in their jeep- The prosecution
witnesses of fact who undisputedly were
present on the spot have clearly described
the manner in which the first accused had
fired from his half-barrel gun from a close
distance on account of which the deceased
died- The second accused has no criminal
history-He was admittedly not apprehended
on the spot. No recovery has been made
from him either of the fire-arm from which
he is alleged to have fired on the injured nor
any recovery has been made from him
which may connect him to the offence-The
Investigating Officer in his testimony has
admitted that identity of the second accused
was ascertained itself- This ascertainment
of identity of accused is based upon the
disclosure made by the prime accused -Once
the identity of accused was known to the
police, it was expected that either an
attempt would be made to arrest him or the
police at least tried to interrogate the
alleged accused-There is, however, nothing
on record to show that any attempt was
made either to interrogate the accused or to
verify his role in commissioning of the
offence-The prosecution case on this aspect
is
somewhat
unusual.
As
per
the
prosecution case, the informant P.W.-1
visited the railway station and found the
accused sitting there on a bench- P.W.-1
then informed the police, whereafter, the
accused allegedly was arrested on from the
railway station-The prosecution case in the
form of testimony of P.W.-8 as well as
statements of P.W.-3 and P.W.-4 do not
appear to be natural and convincing-Their
testimony appears to have been introduced
later only with the intent of implicating the
two sons-therefore, trial court has not erred
in coming to the conclusion that prosecution
has not succeeded in establishing the guilt
of the two accused and thereby acquit
them-Hence,
first
accused
appeal
is
650 INDIAN LAW REPORTS ALLAHABAD SERIES
dismissed while second accused appeal is
allowed.

The appeals are partly allowed. (E-6)

List of cases cited:
1. Mohinder Singh Vs St. (1953) AIR SC 415

2. Ram Narayan Singh Vs St. of Punj. (1975) 4
SCC 497

3. Shivendra Singh @ Bhola Vs St. of U.P. CRLA
NO. 2641 of 2012

4. Jagat Pal & ors. Vs St. of U.P. CRLA No. 612
of 1996

5. Sarvesh Diwakar Vs St. of U.P. CRLA No.
5735 of 2009

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.
&
Hon'ble Syed Aftab Husain Rizvi, J.)

1. These four appeals are listed
together, as they arise out of a composite
judgment and order dated 27.10.2005,
passed by Special Judge (E.C. Act), Jalaun
at Orai, in Sessions Trial No.199 of 2004
(State Vs. Anil Kumar Ahirwar and others),
arising out of Case Crime No.166 of 2004,
Police Station Konch, District Jalaun, and
in Sessions Trial No. 200 of 2004 (State
Vs. Anil Kumar Ahirwar), arising out of
Case Crime No.167 of 2004, under Section
27 of the Arms Act, Police Station Konch,
District Jalaun, whereby the accused
appellant Anil Kumar Ahirwar has been
convicted
and
sentenced
to
life
imprisonment and fine of Rs.5,000/- under
Section 302 IPC; seven years rigorous
imprisonment under Section 307 read with
Section 34 IPC; three years rigorous
imprisonment under Section 27 of Arms
Act; whereby accused appellant Chhotu
Pilot alias Deepak Nai has been convicted
and sentenced to life imprisonment and fine
of Rs.5,000/- under Section 302 read with
Section 34 IPC; seven years rigorous
imprisonment under Section 307 IPC; and
whereby accused appellant Satya Narain
Shukla has been convicted and sentenced to
life imprisonment and fine of Rs.5,00,000/-
under Section 302 read with Section 114
IPC; three years rigorous imprisonment
under Section 120 IPC. All punishments
are to run concurrently. On failure to
deposit the fine to undergo additional
imprisonment for six months each accused.

2. Criminal Appeal No.4894 of 2005
has been filed by accused appellant Anil
Kumar Ahirwar, whereas the connected
Criminal Appeal No.5303 of 2005 has been
instituted by Chhotu Pilot @ Deepak Nai.
State has also preferred Government
Appeal No.983 of 2006, insofar as two
accused
namely
Sonu
Shukla
alias
Abhishek and Paplu @ Avanish Shukla
have been acquitted by the trial court.
Criminal Appeal No.5068 of 2005 was
filed by accused Satya Narain Shukla, who
has already died and, consequently, his
appeal has already abated.

3. The prosecution case is based upon
a written report made by Pramod Kumar
Shukla (PW-1), scribed by Vipin Shukla, as
per which on 19.5.2004 the informant and
his elder brother Ashok Kumar Shukla,
Chairman, Nagar Palika Parishad Konch
and his cousin brother Santosh Kumar
Shukla had gone to take part in the last rites
of their neighbour Amar Chandra Agrawal.
After the cremation was over, they were
returning at about 10.30 in the morning and
when they reached near Kanchad Baba
Mandir at Tilak Nagar, Konch, an unknown
person came from behind and took out a
half barrel gun and shot Ashok Shukla on
his head from behind. The assailant was
9 All. Anil Kumar Ahirwar Vs. State of U.P.
651
apprehended on the spot by the cousin of
informant, namely Santosh Shukla, and
other persons present on the spot pounced
on him and he was assaulted. Gun of the
unknown assailant was snatched. It was
only then that the second accused fired with
an intent to kill and in the process Vinod
Agrawal son of Babulal, Santosh Shukla
son of Uma Shankar and Laxmi Narain
Tiwari son of Mathura Prasad sustained
firearm injuries. The companion of the
main assailant tried to free the apprehended
accused and when members of public
chased him, the second assailant fled from
the spot, and that the informant can
recognize him. The dead body of Ashok
Shukla was lying on the spot. The main
assailant
has
also
been
apprehended
alongwith his half barrel gun. It was
alleged that deceased has been done to
death through contract killers by paying
them money. On the basis of such written
report (Ex.Ka-1), the first information
report came to be lodged in Case Crime
No.166 of 2004, under Section 302, 307
IPC at about 11.20 am on 19.5.2004. The
place of incident from the police station
was about two kilometres. The police came
on the spot and prepared a recovery memo
of half barrel 12 bore damaged gun, which
has been exhibited as Ex.Ka-2. The
investigating officer also collected plain
earth and bloodstained earth from the place
of occurrence (Ex.Ka-19). The inquest
commenced on the same day at 11.50 and
concluded at 12.50. There is apparently an
overwriting in the inquest on recording of
Section 307 while referring to the case
crime number. As per the inquest witnesses
the deceased died due to gunshot injury and
for ascertaining the correct cause of death
the postmortem was required to be
conducted. Consequently, postmortem has
been conducted of the deceased at 2.00 pm
on 19.5.2004. The deceased was around 50
years old and the time since death is
determined as 6 hours. The deceased was
of average built body and the cause of
death is shock and haemorrhage on account
of following ante-mortem firearm injuries:-

"(1) Entry firearm wound of 3 cm
x 2.5 cm present on the left side of skull
4cm lateral to left eye brow. Temporal
bone broken. Tatooing and ragged tear
seen. Blackening is also present.

(2) Exit firearm wound of 16cm x
9 cm present on left temporo-occipital area
of skull and left posterio-lateral area of face
and neck, brain matter and blood coming
out. Temporal bone broken and left
mandible break. Left ear completely
missing and separately brought with dead
body. Meninges ruptured wound is 9cm
deep.

(3) Abrasion red colour 2.5 cm x
1cm present on right side of forehead 2.5
cm above from right eye brow."

4. It transpires that the injured Vinod
Kumar Agrawal, aged about 35 years, was
examined at District Hospital, Jalaun on
19.5.2004 itself and following injury has
been found on him:-

"LW 1 cm x .5 cm x skin deep on
the Rt. side of neck 9 cm below the Rt. ear.
Margins inverted. Abraded collar present
on anterior aspect. Injury u.o. advise Xray."

5. Similarly, Santosh Kumar Shukla
has also been examined at 2.00 pm on
19.5.2004
at
District
Hospital
and
following injury has been found on him:-

"1. Fire arm injury .75 cm x .75
cm x contusion deep on the medial site of
652 INDIAN LAW REPORTS ALLAHABAD SERIES
Rt. knee. Margins inverted, abraded collar
present. Tatooing present on the thigh &
calf area. Kept u.o. advise X-ray."

6. Injuries of Laxmi Narain have also
been examined at 2.10 pm on 19.5.2004 at
the District Hospital, which is extracted
hereinafter:-

"Abraded contusion 1.5 cm x .5
cm on the back of Lt. side chest. 7 cm
below the crest Lt. Shoulder jt. lower
margin shows eversion with abraded collar
while rest shows everted margins. Kept u.o.
advise X-ray localise any pellet."

7. All the three injured were
examined by the emergency medical officer
at Community Health Centre, Konch at
Jalaun and the report, in that regard, has
been exhibited as 99Kha. The report
records
that
unknown
assailant
apprehended at the spot has been brought
by the police in a Jeep. The injured
assailant was later referred to District
Hospital, Jhansi, where he was admitted in
the Medical College, Jhansi and was
ultimately discharged on 23.5.2004. The
assailant was formally arrested thereafter.

8. The investigation proceeded further
and ultimately a chargesheet came to be
submitted on 28.6.2004, under Section 302,
307, 34 and 120-B IPC in Case Crime
No.166 of 2004 against 5 accused, namely
Anil Kumar Ahirwar, Chhotu Pilot @
Deepak Nai, Sonu Shukla alias Abhishek,
Paplu @ Avanish Shukla and Satya Narain
Shukla. Chargesheet also came to be
submitted in Case Crime No.167 of 2004,
under Section 25/27 of the Arms Act
against
Anil
Kumar
Ahirwar.
The
Magistrate took cognizance of the aforesaid
two chargesheets and committed the case to
the court of sessions, where two session
trials were registered i.e. Sessions Trial
No.199 of 2004 and Sessions Trial No.200
of 2004 in respect of offence under the
Arms Act.

9. It is worth noticing, at this stage,
that after submission of chargesheets
against the accused, PW-3 and PW-4
submitted
their
affidavits
before
the
Investigating Officer stating that on the
date of incident accused Anil Kumar
Ahirwar and Chhotu Pilot had come to the
house of Satya Narain Shukla in the
morning where a conspiracy was hatched to
eliminate Ashok Shukla taking advantage
of rush and crowd during cremation
ceremony. PW-3 is Ram Babu Verma, who
apparently was looking after the cattle of
accused Satya Narain Shukla, whereas PW4, Smt. Vimla Devi, used to attend to the
domestic work in the house of Satya Narain
Shukla. The statement of these two
witnesses was then recorded by the
Investigating Officer under Section 161
Cr.P.C. and they have been produced as
witnesses in support of the prosecution
case.

10. Charges were framed by the court
of sessions separately against the accused
on 18.9.2004. Accused Satya Narain
Shukla, Sonu Shukla and Paplu Shukla
have been charged of offence under Section
120-B IPC as well as Section 302 read with
section 114 IPC in Sessions Trial No.199
of 2004, whereas accused Anil Kumar
Ahirwar has been charged of offence under
Section 27 of the Arms Act in Sessions
Trial No.200 of 2004. Accused Anil Kumar
Ahirwar has also been charged under
Section 302 IPC as well as Section 307(34)
IPC and accused Chhotu Pilot has been
charged of committing offence under
Section 307 IPC as well as Section 302(34)
IPC, both, in Sessions Trial No.199 of
9 All. Anil Kumar Ahirwar Vs. State of U.P.
653
2004. Charges were read out to all the
accused, who denied their implication and
demanded trial.

11. In addition to above, the
prosecution in order to establish the guilt of
the accused adduced documentary evidence
in the form of FIR as Ex.Ka-4; written
report as Ex.Ka-1; recovery memo of half
barrel Gun as Ex.Ka-2; recovery memo of
bloodstained and plain earth as Ex.Ka-19;
injury report of Vinod Kumar Agrawal as
Ex.Ka-15; injury report of Santosh Kumar
Shukla as Ex.Ka-16; injury report of Laxmi
Narain as Ex.Ka-17; postmortem report as
Ex.Ka-14; report of forensic science
laboratory dated 3.1.2005 as Ex.Ka-23;
report of forensic science laboratory dated
21.2.2005 as Ex.Ka-24; panchayatnama as
Ex.Ka-6; charge-sheet in Case Crime
No.166 of 2004 as Ex.Ka-20; charge-sheet
in Case Crime No.167 of 2004 as Ex.Ka21; and site plan with Index as Ex.Ka-18.

12. PW-1 is Pramod Kumar Shukla,
who is the informant and has supported the
prosecution case, according to which
accused Anil Kumar Ahirwar fired on the
deceased from behind by his half barrel
gun, whereas the other accused namely
Chhotu Pilot fired in defence of Anil
Kumar Ahirwar and the bullet hit the three
injured. This witness has also supported the
prosecution case, as per which there was a
property dispute between the deceased and
Satya Narain Shukla, which is required to
be elaborated, at this stage. As per the
prosecution, PW-2 Brijmohan owned 8
bigha fertile land in the village. This land
surreptitiously was got exchanged by
accused Satya Narain Shukla in favour of
his wife Smt. Sita Devi. The deceased came
to the aid of Brijmohan and got an
agreement to sale executed in favour of
Pradeep
Shukla
and
Awadh
Kishor
Niranjan in respect of the property, which
has been obtained by the main accused
Satya Narain Shukla. This apparently was
the cause of discord between Satya Narain
Shukla and the deceased Ashok Kumar
Shukla. According to prosecution it is for
this reason that Satya Narain Shukla
arranged for contract killers, namely Anil
Kumar Ahirwar and Chhotu Pilot and it
was
Anil
Kumar
Ahirwar,
who
in
pursuance of such conspiracy shot dead the
deceased. Though this witness has been
elaborately cross-examined but he has
remained firm in his deposition.

13. Brijmohan has appeared as PW-2
and has supported the prosecution case
with regard to conspiracy being the cause
of the killing of deceased.

14. Ram Babu Verma has been
produced as PW-3. His testimony is also in
support
of
the
prosecution
plea
of
conspiracy. PW-3 was engaged by the
accused Satya Narain Shukla for looking
after his cattle and he claims to have heard
the accused Satya Narain Shukla talking to
the two main accused Anil Kumar Ahirwar
and Chhotu Pilot early in the morning
hours of the date of incident. The witness
apparently was arranging fodder for cattle
when he overheard the accused Satya
Narain Shukla that this is a good
opportunity to eliminate the deceased as
there would be a lot of rush during
cremation. The witness also alleges that the
gun and certain money were provided to
the contract killers by Satya Narain Shukla
as well as his sons. Similar stand has been
taken by the PW-4 Smt. Vimla Devi, who
also was working as domestic help with the
accused Satya Narain Shukla. It is worth
noticing, at this stage, that both PW-3 and
PW-4 were introduced by the prosecution
almost two and a half months after the
654 INDIAN LAW REPORTS ALLAHABAD SERIES
filing of the chargesheets. As per the
prosecution these two witnesses gave
affidavits stating that they had heard the
above conversation on the date of incident
and it is thereafter that their statement was
recorded under Section 161 Cr.P.C. PW-3
and PW-4 have been cross-examined,
particularly on the aspect of delayed
disclosure made to the investigating officer
with regard to the incident in question. The
two prosecution witnesses have explained
the delay on the ground that Satya Narain
Shukla had threatened them as PW-3 had
heard him talking to the main contract
killers and a threat was extended that he
would be eliminated if he would disclose
such facts to anybody. It is for this reason
that these witnesses left the village for
almost two and a half months and it is only
thereafter when they came to know that
Satya Narain Shukla and his two sons have
been arrested that they could muster
enough courage to come to the police what
they have heard. In the cross-examination
these two witnesses, however, could not
disclose as to when they came to know
through newspaper about the arrest of the
accused. In reply to specific question posed
by the defence, PW-3 has stated as under:-

"इनका पहले से डर है यह बदमास स्कथम के है
इसस्लये मैंने स्कसी से इस षडयन्त्र के बारे में नहीं बताया। मैं यह
अक्सर सुनता िा स्क अर्ोक र्ुक्ला से सत्यनारायण का जमीनअमीन का स्ववाद चलता है। इस घटना के सिी मुलस्जम स्कतने स्दन
में स्िरफ्तार हो िये िे यह मुझे जानकारी नहीं है। अखबार स्जससे
मुझे यह जानकारी हुयी स्क सब मुस्जजम पकड िये मैंने थवयं पढा
िा। पढने के दूसरे स्दन हम कोंच चले आये। यह घटना मई की है। मैं
नही बता सकता स्क 5 जून को पप्लू व सोनू स्िरफ्तार हुये िे या
नहीं यह समाचार 6 जून को स्नकला या नहीं मैं नहीं जानता िा।
कौन-कब स्िरफ्तार हुआ मैं नहीं बता सकता। वह अखबार स्जसको
पढकर में कोंच आया स्कस महीने में मैंने पढा याद नहीं।
सत्यनारायण के यहां मैं नौकरी करता िा इसका कोई स्लस्खत प्रमाण
मेरे पास नहीं है। यह कहना िलत है स्क मैंने झूठ बयान स्दया है और
प्रमोद र्ुक्ला ने लालच देकर िवाही स्दलवायी। "

15. Trial court has doubted the
credibility of PW-3 and PW-4, primarily on
the ground that their delayed disclosure is
not explained. Adverse inference has also
been drawn of the fact that affidavit etc. at
their instance were got prepared much later
and their version is exactly in accord with
the prosecution case.

16 . PW-5 is Mahendra Singh Yadav,
who claims to be a witness of the incident.
PW-5, however, is not referred to in the
FIR and his statement has been recorded
under Section 161 Cr.P.C. after about two
months of the incident. This witness has
supported the prosecution case. PW 5 has
identified the accused in Court. He has
explained the delay occurred in recording
of his statement on the ground that accused
were not arrested. He has further stated that
the incident has not been narrated by him to
anyone
except
his
wife.
In
crossexamination PW 5 has been confronted
with his previous statement under Section
161 Cr.P.C. wherein contradictions were
shown with regard to the manner in which
he has seen the incident. He had, however,
not disclosed the factum of recovery of
weapon of offence to the I.O. PW 5 has
admitted that he works as a labourer. A
suggestion has been given to him that he
works in transport company of Pramod
Shukla who was inimical to the accused
which he denied. He has also been
confronted with the fact that statement of
PW 5 was recorded along with Ram Babu
and Vimla on the same day. He has also
admitted that clothes worn by the deceased
have not been disclosed to the I.O. by him,
unlike his statement made in the Court. He
has also stated that the I.O. has not
recorded his statement at his house, but he
has himself gone to the police station for
recording of his statement. As per him, the
deceased had sustained firearm injury
9 All. Anil Kumar Ahirwar Vs. State of U.P.
655
caused to him by accused Anil Kumar
Ahirwar. He has also stated that the firing
was made from a close distance. This
witness has implicated two sons of Satya
Narain Shukla on the ground that when
they started assaulting the deceased, he
retorted as to why he is being beaten by
them, but this statement has not been given
by him to the police under Section 161
Cr.P.C.

17. PW 6 Laxmi Narain Tiwari is the
injured witness who has supported the
prosecution case. He has identified accused
Anil Kumar Ahirwar, as a person, who had
fired on the deceased, due to which he died.
He has further stated that after the deceased
was fired, his companion with an intent to
kill them fired on account of which bullet
injuries were caused to Santosh Shukla.
When the public tried to apprehend other
accused, he fired again which hit Vinod
Kumar Agrawal. Thereafter, the other
companion
fled
away.
The
other
companion Chhotu Pilot has also been
identified by the victim. He has further
stated that his treatment was not properly
done at Konch. Therefore, he was sent to
District Hospital where he was medically
examined. He claims to have sustained
firearm injuries on his shoulders. In the
cross-examination, this witness has stated
that neither he has gone to Jhansi nor has
he got his X-ray conducted at Konch. He
continued to take medicines and got
injections. No report was made to the police
station. This witness has been examined by
the I.O. after almost 40 days of the incident.
He has further stated that he did not identify
the accused on the spot nor any disclosure
was made by him to the police about it. He
has also admitted that the name of unknown
accused had been published in newspaper 2-3
days later and then he came to know his
identity. He has also stated that in his
statement to the police, he has informed that
the accused fired from the east. He has not
stated that other accused was carrying double
barrel gun and had fired twice from it. He has
denied the suggestion that the injuries
sustained by him had been manipulated and,
in fact he had not sustained any injury. He
has also stated the face of the accused was
not muffled.

18. PW 7 is the other injured witness.
He has also supported the prosecution case.
He,too, has stated that though he was
referred to Jhansi for treatment but he had
not visited Jhansi and his X-ray was done at
Orai at Jalaun itself. He denied the
suggestion that no X-ray was conducted and
it was merely advised. He has denied the
suggestion
that
injuries
had
been
manipulated on him. This witness has also
identified two accused in the Court. His
statement under Section 161 Cr.P.C. was
recorded after one and half months of the
incident.

19. PW 8 is Kamal Ahmad who
alleges that extra-judicial confession was
made by the accused before him but
subsequently has stated that Satya Narain
Shukla has made extra judicial confession
of
his
involvement
before
him
on
24.05.2004 at about 5.30 in the evening.
Two sons of Satya Narain Shukla, namely,
Abhishek alias Sonu and Paplu were also
with him. In cross-examination PW 8 has
disclosed that he knew the deceased for last
8 1/2-9 years and he is a political person.
Satya Narain Shukla has been visited 4-5
times before but he could not disclose the
dates of his visits. Though this witness has
been elaborately cross-examined at various
aspects, including the fact that name of the
accused had been published in Dainik
Jagran, Jhansi on 24.05.2004, but he
claimed ignorance.
656 INDIAN LAW REPORTS ALLAHABAD SERIES

20. PW 9 Prem Sagar is Head
Constable who has proved chik/F.I.R. PW
10 Rajeev Kumar Mishra has proved the
inquest. PW 11 Dr Mani Ram is the
autopsy surgeon who has proved the post
mortem report, as per which, the deceased
was around 80 years of age and he would
have died about six hours prior to the
holding of the post mortem at 2.00 p.m. on
the day of the incident. He has also
explained that the deceased had eaten food
4-5 hours prior to the incident. The
deceased died homicidal death. In the
cross-examination, the doctor has stated
that it was possible that the deceased has
eaten food at 12 in the night and the
incident could have occurred around 6.00
in the morning. He has also found
blackening but no foreign body was found.

21. Dr J.P. Bhattacharya has appeared
as PW 12 and has proved the injuries of
Vinod Kumar Agrawal who was brought to
him by the police constable. As per him,
the injuries caused to Vinod Kumar
Agrawal was of firearm and was fresh in
nature. He has also proved the injuries
caused to Laxmi Narain. In the crossexamination, he has admitted that no
supplementary medical report on the basis
of X-ray was given by him.

22. PW 13 is Constable Ram Charan
who had taken the body of the deceased for
post mortem examination. PW 14 is SI Jai
Narain Verma who was first I.O. in the
present case. He has proved recovery of
firearm from the accused. He has proved
the site-plan and has also taken bloodstained and plain earth, etc. He has
explained various steps taken during the
investigation by him. As per him, half
barrel gun was given to him by Pramod
Shukla and he had not found the accused
Anil Kumar Ahirwar on the spot at that
time. By then, accused Anil Kumar
Ahirwar had already been taken by
Constables Amrit Lal and Sohan Lal to
C.H.C. Konch. This witness has been
elaborately cross-examined. In his crossexamination, he has stated that the
statement of Pramod Shukla was recorded
on 28th May, 2004. He has proved the
recovery of firearm. About other accused
Chhotu Pilot, the witness had stated that his
name
figured
on
23.05.2023
during
investigation and he came to know of
parentage and address of the accused on
that date itself. However, he made no
attempt to visit his house at Lalitpur or to
secure his arrest. No permission was sought
from the police authorities for his arrest. He
has also admitted that he has not visited the
house of Satya Narain Shukla nor had he
visited the site of the incident as per
deposition made by PW 4. This witness has
denied the suggestion that the version of
accused having been fainted or being kept
in
hospital
have
been
subsequently
manipulated.

23. PW 15 is Constable Amrit Lal
who took the injured accused to the
hospital. PW 16 is Radhey Shyam Trivedi
who is the second I.O. and has proved
charge-sheet. He was posted at Kotwali
Konch
as
officiating
Inspector
on
26.05.2004. This witness has stated that
informant Pramod Kumar Shukla met him
near railway crossing on 28.05.2004 at
about 4 p.m. On his pointing out the other
accused Chhotu Pilot has been arrested at
04.10 p.m. The second statement of the
informant was recorded on 29.05.2004.
Satya Narain Shukla, accused was arrested
on 11.06.2004. He has also recorded
statement of accused Sonu alias Abhishek
and Paplu Shukla on 16.06.2004. In the
cross-examination, this witness has stated
that he was informed by Pramod Shukla
9 All. Anil Kumar Ahirwar Vs. State of U.P.
657
that he saw the other accused at quarter to
four at Police Station Konch, sitting on the
bench. The witness has denied the
suggestion that in fact Chhotu Pilot was
arrested on 27.5.2004 itself and that he was
fraudulently shown to have been arrested
on 28.05.2004.

24. PW 17 is Dr Rajendra Nath who
was Professor and Orthopaedic Surgeon at
Medical
College,
Kanpur.
In
his
examination-in-chief, he has stated that
while posted at Medical College, Kanpur as
Medical Officer, he examined Santosh
Kumar Shukla who had sustained gun-shot
injury in his right knee. He had operated
him and that the injuries could have been
caused to him at 10.30 on 19.05.2004. In
the cross-examination, the witness has
stated that no reference regarding it being
medico-legal case was received. The
accused,however, was treated as medicolegal case. The bullet extracted from the
injured was kept in an envelop and sent to
Superintendent of Police, Kanpur. He has
also stated that the nearest police station
Swaroop Nagar was informed.

25. On the basis of above evidence
led by the prosecution the statement of all
the accused have been recorded under
Section 313 Cr.P.C. Accused Anil Kumar
Ahirwar has denied his implication. As per
him, he has been falsely implicated under
the pressure of first informant due to
enmity. He has lastly stated that he is
resident of Village Salaiya and used to
come to Konch for doing marketing while
his father was in service at Lalitpur. He has
alleged that he was returning to his village
when police along with some public
persons
forcibly
apprehended
him;
assaulted
him
and
kept
in
illegal
confinement for 3-4 days; and thereafter,
implicated him falsely in this case. Accused
Chhotu
Pilot
has
also
denied
his
implication and that he was arrested on
27.05.2004 at 10.00 a.m. from Lalitpur and
was handed over to Konch police. His
father has also sent a telegram in that
regard. Accused Satya Narain Shukla has
already died, therefore, there is no need to
refer his statement under Section 313
Cr.P.C. Abhishek alias Sonu has stated that
there was no enmity between his father and
the deceased on account of agricultural
land. He has denied that PW 3 was working
for his father or that PW 4 was domestic
aide in his house. He has stated that with an
intent to grab his property, his brother and
father have been falsely implicated.

26. On behalf of defence, Ram Gulam
Sen has been produced as DW 1 who is
father of accused Chhotu Pilot. He claims
that on 27.05.2004 at 10 two constables
came and apprehended his son. He claims
that he visited the police station at 11 a.m.,
again at 6 p.m. and thereafter at 11 p.m.
when he was informed that his son was
taken by the Konch police. In the crossexamination, the witness has disclosed that
he works as peon at Nagar Palika, Lalitpur.
He denied the suggestion that his son is
involved in criminal activities. The defence
has produced Devi Prasad as DW 2 has has
also proved the factum of arrest of accused,
Chhotu Pilot on 27.05.2004. Dr Mani Ram
has been produced as DW 3 who claims
that an unknown person was brought to him
by the police station. He was not conscious
and he referred him to higher medical
centre. This witness has identified Anil
Kumar Ahirwar, as the person, who had
been examined by him on 19.05.2004 itself.
Shailendra Tiwari has been produced as
DW 4 who is record keeper in the office of
Superintendent of Police, Lalitpur. This
witness has turned hostile. DW 5,Tayyab
Ali is Junior Assistant in the office of
658 INDIAN LAW REPORTS ALLAHABAD SERIES
Commissioner,
Jhansi
who
has
acknowledged the receipt of telegram in the
office
of
Commissioner,
Jhansi
on
28.05.2004 about the applicant's son being
harassed by the police.

27. On the basis of evidence so led
during course of trial, the court below has
come to the conclusion that on account of
enmity about landed property, the deceased
has been done to death, pursuant to the
planned conspiracy hatched up by Satya
Narain Shukla and his two sons, wherein
two accused Anil Kumar Ahirwar and
Chhotu Pilot have been engaged as contract
killers, and Anil Kumar Ahirwar not only
killed the deceased, Ashok Kumar Shukla
but his companion also caused firearm
injuries to other three injured. A finding
has been returned that the prosecution has
established its case beyond reasonable
doubt and consequently accused appellants
have been convicted and sentenced. Thus
aggrieved, appeals are before this Court,
challenging the impugned judgement and
order passed in Sessions Trial Nos. 199 of
2004 and 200 of 2004.

28. The trial court, however, has
acquitted the accused Abhishek @ Sonu
and Paplu Shukla as the version of their
involvement on the basis of testimony of
P.W.-3 and P.W.-4 was not found credible
and reliable to the extent of their acquittal
by the trial court, the State in its appeal
challenged such findings.

29. On behalf of the accusedappellant Anil Kumar Ahirwar, it is
submitted that the accused-appellant has
been falsely implicated in this case and
neither the prosecution has succeeded in
proving his arrest at the spot nor his role
has otherwise been established on the basis
of alleged recovery of fire-arm from him. It
is further submitted that the prosecution
witnesses
have
been
examined
after
inordinate delay. It is also argued that the
accused-appellant
has
otherwise
no
criminal history and the plea of is being
contract killer, is not substantiated. Learned
counsel for the accused-appellant further
argued he has absolutely no motive or
concern with the commissioning of the
offence and therefore, his conviction and
sentence is impermissible.

30. On behalf of accused-appellant
Anil Kumar Ahirwar, it is stated that the
injuries of the deceased Ashok Shukla do
not match with the weapon assigned to the
accused and therefore, the implication of
accused-appellant Anil Kumar Ahirwar
cannot be sustained. In support of such
contention,
learned
counsel
for
the
accused-appellant has placed reliance upon
the judgment of Supreme Court in
Mohinder Singh Vs. State; AIR 1953 SC
415; Ram Narayan Singh Vs. State of
Punjab 1975 (4) SCC 497; Criminal
Appeal No.2641 of 2012 (Shivendra
Singh @ Bhola Vs. State of U.P.),
Criminal Appeal No.612 of 1996 (Jagat
Pal & Others Vs. State of U.P.) as also a
recent decision of this Court in Criminal
Appeal
No.5735
of
2009
(Sarvesh
Diwakar Vs. State of U.P.).

31. On behalf of the accusedappellant Chhotu Pilot, it is argued that the
accused-appellant
has
been
falsely
implicated and that there exists no material
on record to implicate him in the present
occurrence.
Learned
counsel
for
the
accused-appellant submits that though it is
alleged that he was seen at the spot but his
identity was not ascertained and his arrest
at the railway station Konch on 28.05.2004
is not credible or reliable. Learned counsel
for the accused-appellant also argued that
9 All. Anil Kumar Ahirwar Vs. State of U.P.
659
for the identity of accused-appellant
Chhotu
Pilot
was
ascertained
on
23.05.2004 itself and the plea that he was
picked up from the railway station Konch is
an imaginary incident. It is also argued that
the accused-appellant was in fact arrested
from his house on 27.04.2004 itself and the
prosecution case that he was identified by
the prosecution witnesses at the railway
station Konch is not reliable. It is also
submitted
that
the
accused-appellant
Chhotu Pilot otherwise has no criminal
history and no incriminating material has
otherwise been collected from him so as to
implicate him in the present case.

32. Learned A.G.A. has submitted
that the testimony of P.W.3 and P.W.-4 are
reliable and as the property dispute
between the father of the acquitted accused
with the deceased is well established on
record, the trial court has erred in
acquitting the two accused.

33. On behalf of the two acquitted
accused, it is stated that the testimony of
P.W.-3 and P.W.-4 are not reliable and
their implication several months after filing
of the charge-sheet is nothing but an
imaginary case set up by the police on the
strength of conjectures.

34. It is also submitted that the
testimony of P.W.-8 with regard to their
extra judicial confession is an extremely
weak piece of evidence, which is not
reliable and has been engineered only for
falsely implicating the two accused.

35. We have heard Shri Sukhvir
Singh, learned counsel for the accusedappellant Anil Kumar Ahirwar, Shri Kamal
Kishor Mishra, learned counsel for the
accused-appellant
Chhotu
Pilot,
Ms.
Archana Singh, learned A.G.A. for the
State and Shri Apul Mishra, learned
counsel for the acquitted accused Abhishek
@ Sonu and Paplu Shukla and perused the
materials available on records of the
present criminal appeals, including the
records of the trial proceedings.

36. The First Information Report in
the present case has been lodged in less
than an hour from the incident, which
allegedly occurred at 10:30 a.m. on
19.05.2004. The written report has been
scribed by Vipin Shukla and its contents
has been proved by the informant Pramod
Kumar Shukla. As per the FIR, the
deceased was returning from the cremation
of the neighbour of deceased namely; Amar
Chandra Agarwal when an unknown person
took out a half-barrel gun and shot him on
his head from behind instantaneously
killing him. According to the prosecution,
the unknown accused was apprehended on
the spot itself and he was also assaulted by
members of public. The half-barrel gun
used by the accused was also recovered and
the recovery has been proved as Ext. Ka-2.
According to the prosecution, it is at that
stage that the other accused-appellant
Chhotu Pilot fired with an intent to save his
colleague Anil Kumar Ahirwar. The bullet
hit one Vinod Kumar Agarwal whereafter,
the second accused Chhotu Pilot again fired
and this time injury was caused to injured
Laxmi Narayan Tiwari and Santosh Shukla.
The second accused fled away from the
spot and could be arrested only on
28.05.2004.

37. On behalf of the accusedappellant Anil Kumar Ahirwar, the incident
leading to his arrest is questioned primarily
on the ground that neither his arrest has
been proved on the spot nor any motive is
shown to exist on account of which there
was an occasion for him to commit the
660 INDIAN LAW REPORTS ALLAHABAD SERIES
offence. Shri Sukhvir Singh, learned
counsel for the accused-appellant Anil
Kumar Ahirwar has strenuously urged that
the accused-appellant has been arrested
only on 24.05.2004 and the prosecution
case that he was arrested on the spot is not
substantiated. He further argues that the
prosecution case of assault on the accused
Anil Kumar Ahirwar is also not fully
substantiated, inasmuch as his injuries, etc.
have not been proved. His implication on
the strength of fire-arm recovered from him
is also questioned in view of the F.S.L.
Report, which has not matched with the
fire-arm recovered from the accused with
the injury caused to the deceased.

38. So far as the accused-appellant
Anil Kumar Ahirwar is concerned, the
prosecution witnesses have been consistent
on the point that he had fired on the
deceased with his half-barrel gun and he
was apprehended at the spot. The testimony
of P.W.-1 and P.W.5 is specific in that
regard.
The
non-holding
of
test
identification parade although is challenged
on behalf of the accused-appellant but we
do not find much substance in such
challenge. The records reveal that an
unknown person was in fact produced
before the Medical Superintendent, Primary
Health Centre, Konch (Jalaun), who was
around 25 years of age and had been
brought by the police in their jeep. The
medication offered to the injured on
19.05.2004 has been produced as 'Paper
No.99
Kha'.
The
contents
of
the
prescription have extracted hereinafter:-

"Name - Unknown

Age/Sex - about 25 years/M

R/o - Unknown

Brought By - Police - Kamesh -
Jeep

B.P. 110/76 mmhg

Pulse 80 /minute

Injection R.L. II

Injection 10% Dextrose I

Injection Decadron 2 CC I.M.
Stat

Injection Gentamycin 80 mg. I.M.
Stat

Injection Voveron 1 Amp. I.M.
Stat

Injection Cefazole 500 mg I.M.

Referred to Hospital, Orai for Xray and further treatment and

medico legal report."

39.