# Gaurav Sharma @ Sonu & Anr v. State of U.P

- **Citation:** (2023) 5 ILRA 875
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-05-25
- **Case number:** Criminal Appeal No. 1159 of 2017
- **Bench:** Ashwani Kumar Mishra, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/gaurav-sharma-sonu-anr-v-state-of-u-p-50411
- **Pages:** 20

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 374(2) - Indian
Penal Code, 1860 - Sections 147, 148 &
302/149 - Arms Act, 1878 - Section 25 -
Challenge to-Conviction-testimony of PW1 is not reliable as he is an interested
witness and his conduct is not found
natural on many counts-More so, he has
criminal antecedents as he had been to
jail-Delay of 15 days in recording his
statement, despite him being the sole eye
witness is troubling-he neither lodged FIR
nor is the witness of inquest-PW-2 wife of
the deceased lodged the FIR-testimony of
PW-2
of
last
seen
evidence
is
not
convincing-The two firearms and iron rod
recovered from the accused are from open
place and there are no independent
witnesses to establish the recovery itself,
the witnesses of recovery of firearm are
only the police personnel and iron rod had
no bloodstains on it-deceased body was
brought to mortuary as unknown and later
this entry was scored off-no explanation
by the prosecution as to why such entry
was scored off-In his cross-examination
PW-10 admitted that dead body was
handed over to him at night one day
before but the dead body was brought to
mortuary at 7.30 in the next day morningSince the available evidence on record has
not been subjected to a careful scrutiny by
the
court
below,
therefore
accused
appellants are clearly entitled to benefit of
doubt.(Para 1 to 61)

The appeals are allowed. (E-6)

## Text

_Characters 0–39,952 of 70,012. This is a partial read: ask again with offset=39952 for what follows._

5 All. Gaurav Sharma @ Sonu & Anr. Vs. State of U.P.
875
the complainant himself had admitted that
the incident had taken place inside of the
house and it has been further stated that the
accused persons came and attacked over
the house and entered into the same and
started beating and on the cry of family
members, the village persons came over
there and thus, prima facie, there seems to
be no evidence with respect to the fact that
certain other persons were there than the
family members who have seen or heard
the incident and thus, prima facie the
alleged occurrence cannot said to be
happened in public place or place within
public view?

(14.) This Court has also considered
the ratio of the judgment of Apex Court
rendered in the case of Hitesh Verma
(Supra), which clearly says that if the
incident took place outside the area of the
house or in the lawn but unless that access
is within of the public, the same cannot be
said to be happened at public view or
public place. The reliance has also been
placed on a judgment rendered in the case
of Ashwani Kumar (Supra) wherein it has
been held that only mentioning the sections
of SC/ST Act cannot be a ground to
conclude committal of an offence under the
aforesaid Act, unless the judicial scrutiny is
done.

(15.) After the aforesaid submissions
and discussions, it emerges that Hon'ble the
Apex Court has held in very clear words
that hurling abuses naming the caste in the
public place or at the place of public view,
would only constitute an offence under
SC/ST Act and unless it is established, no
criminal proceeding can go on in such
cases and for reaching on the conclusion,
the trial Court has to judicially scrutinize
the factum that whether the words spoken
are in the public view or public place. So
far as the present case is concerned, on cry
of the family members of the complainant,
the village persons reached and they saw
that the accused persons are beating the
family members though the abuses were
hurled inside of the house, which is
admittedly not a public place.

(16.) Considering the aforesaid
submissions
and
discussions,
it
is
decipherable that the learned trial Court did
not apply its judicial mind while issuing the
summons against the applicants under
Section
3(1)X
of
the
SC/ST
Act.
Resultantly, the summoning order dated
04.02.2023 is set aside to the extent of
issuance of summons under Section 3(1)X
of the SC/ST Act.

(17.) It is directed that the trial Court
shall proceed accordingly.

(18.) The appeal is hereby partly
allowed with the aforesaid observations.
----------
(2023) 5 ILRA 875
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.05.2023

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Appeal No. 1159 of 2017
with
Crl. Appeals No. 1160 of 2017 & 1162 of 2017

Gaurav Sharma @ Sonu & Anr....Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Rakesh Kumar Singh, Sri Amit Kumar, Sri
Brijesh Sahai, Sri Dileep Kumar, Sri Raj Singh
Parihar, Sri Rajrshi Gupta, Sri Saurabh Yadav, Sri
Vimlendu Tripathi
876 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Respondent:
G.A., Sri Ambar Khanna, Sri Raj Kumar Khanna,
Sri M.J. Akhtar, Sri V.M. Zaidi (Sr. Advocate)

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 374(2) - Indian
Penal Code, 1860 - Sections 147, 148 &
302/149 - Arms Act, 1878 - Section 25 -
Challenge to-Conviction-testimony of PW1 is not reliable as he is an interested
witness and his conduct is not found
natural on many counts-More so, he has
criminal antecedents as he had been to
jail-Delay of 15 days in recording his
statement, despite him being the sole eye
witness is troubling-he neither lodged FIR
nor is the witness of inquest-PW-2 wife of
the deceased lodged the FIR-testimony of
PW-2
of
last
seen
evidence
is
not
convincing-The two firearms and iron rod
recovered from the accused are from open
place and there are no independent
witnesses to establish the recovery itself,
the witnesses of recovery of firearm are
only the police personnel and iron rod had
no bloodstains on it-deceased body was
brought to mortuary as unknown and later
this entry was scored off-no explanation
by the prosecution as to why such entry
was scored off-In his cross-examination
PW-10 admitted that dead body was
handed over to him at night one day
before but the dead body was brought to
mortuary at 7.30 in the next day morningSince the available evidence on record has
not been subjected to a careful scrutiny by
the
court
below,
therefore
accused
appellants are clearly entitled to benefit of
doubt.(Para 1 to 61)

The appeals are allowed. (E-6)

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.)

1. These three appeals are directed
against the judgment and order dated
20.01.2017,
passed
by
the
learned
Additional Sessions Judge Court No. 01,
Bijnor in Sessions Trial No. 85 of 2014
(State Vs. Gaurav Sharma @ Sonu and
others), arising out of Case Crime No. 22
of 2013, under Sections 147, 148, 302/149
IPC, Police Station - Kotwali Nagar,
District - Bijnor; in Sessions Trial No. 86
of 2014 (State Vs. Gaurav Sharma @
Sonu), arising out of Case Crime No. 25 of
2013, under Section 25 of the Arms Act,
Police Station - Kotwali Nagar, District -
Bijnor; in Sessions Trial No. 87 of 2014
(State Vs. Gautam), arising out of Case
Crime No. 142 of 2013, under Section 25
Arms Act, Police Station - Kotwali Nagar,
District - Bijnor; and in Sessions Trial No.
88 of 2014, arising out of Case Crime No.
22 of 2013, under Sections 147, 148,
302/149 IPC, Police Station - Kotwali
Nagar, District - Bijnor; whereby the
appellants
Gaurav
Sharma
@
Sonu,
Gautam Sharma, Uttam Kumar Sharma,
Sandeep Bhardwaj and Ankit Bhardwaj
have been convicted under section 302 read
with 149 IPC and sentenced to life
imprisonment
along
with
fine
of
Rs.25,000/-, each, and in default of
payment of fine to undergo one year's
additional
imprisonment;
rigorous
imprisonment for three years alongwith
fine of Rs.3,000/- each, coupled with a
default sentence of three months, under
Section
148
I.P.C;
and
rigorous
imprisonment for two years alongwith fine
of Rs.2,000/- each, coupled with a default
sentence of two months, under Section 147
I.P.C. Accused Gaurav Sharma @ Sonu and
Gautam Sharma have also been sentenced
to rigorous imprisonment for seven years
alongwith fine of Rs.5,000/- each, coupled
with a default sentence of six months,
under Section 25 Arms Act. All the
sentences are directed to run concurrently.

2. The prosecution case is based upon
a written report (Ex.Ka.1) of the informant
(PW-2), who happens to be the wife of the
deceased, as per which, the maternal
5 All. Gaurav Sharma @ Sonu & Anr. Vs. State of U.P.
877
brother of her husband ,namely Gautam
and Gaurav, sons of Parasuram Sharma,
came to her house and talked to her
husband for taking him to Surendra Nagar,
near Awas Vikas, whereafter her husband
informed that he is going with Gaurav and
Gautam and would return soon. Amount
running into lacs were due and payable to
informant's husband by these two persons
(Gaurav and Gautam). When the husband
of PW-2 did not return, the informant got
anxious and asked her brother-in-law (PW1) to go to Surendra Nagar and look for
him. PW-1, accordingly, left for Surendra
Nagar where the accused Gautam, Gaurav
and Uttam sons of Parasuram Sharma and
Sandeep Bhardwaj and Ankit Bhardwaj,
brother-in-law of Gaurav, were assaulting
her husband with iron-rods. PW-1 raised an
alarm, whereafter the aforesaid accused
fired on her husband and fled. PW-1 had
seen the assailants who killed her husband
and, therefore, a report be lodged. On the
basis of this information a first information
report came to be lodged under Sections
147/148/149/302 as Case Crime No. 22 of
2013.

3. Investigating Officer proceeded to
the spot and collected plain and bloodstained
sand, grits, etc. which were kept in separate
boxes and sealed vide recovery memo
marked as Ex.Ka-4. The Investigating Officer
also recovered a 315 bore empty and
bloodstained flat bullet which were sealed
vide recovery memo marked as Ex.Ka.5. The
police also recovered from the spot the
Scooty belonging to deceased bearing
Registration No. UP-20 J-3492 and Glasses
with golden frame, mobile, a receipt of water
tax and silver anklet which were sealed vide
recovery memo marked as Ex.Ka-6.

4. On the date of incident itself the
accused
Gautam
was
arrested.
He
confessed his guilt and took the police to
the place where he had hidden the weapon
of assault. He took out a 315 bore tamancha
from the bushes on the Bairaj Road, nearly
40 steps from the bridge. The recovered
firearm was opened and a 315 bore live
cartridge was found in the barrel. A memo
of recovery of tamancha was consequently
prepared vide Ex.Ka.9. On the basis of
such recovery of firearm another first
information report (Ex.Ka.17) came to be
lodged as Case Crime No. 142 of 2013,
under Section 25 of the Arms Act at 15.30
pm on the date of incident.

5. Yet another FIR was lodged at
Kotwali Sadar, Bijnor on 13.1.2013 at
18.05 PM in respect of the alleged incident
of the same day at 4.15 PM, wherein on the
pointing out of the accused Gaurav Sharma
a firearm with empty stuck in the barrel
was recovered from the shrubbery in a dry
canal. Recovery memo has also been
prepared of this 315 bore tamancha
(Ex.Ka.7) which allegedly was used by the
accused for firing on the deceased. Smell of
gun powder in the barrel was found.

6.

Inquest
was
conducted
on
12.1.2013 (Ex.Ka-10), wherein the time for
commencement of inquest proceeding
contains an overwriting to make it 19.30.
There is also a clear overwriting on the
time of completion of panchayatnama to
make it look 20.30 hours on 12.1.2013. The
inquest witnesses were Dr. Mitu Kant
Sharma, Shivam Awasthi, Rajat Awasthi,
Manikant Sharma and Lavi Sharma. The
dead body on the Activa Scooter was found
in front of an under construction house of
M.P. Singh.Houses were under construction
in Surendra Nagar Colony. Blood was
oozing out from his head and 315 bore
empty was also found near the place of
incident. The deceased had worn a sando
878 INDIAN LAW REPORTS ALLAHABAD SERIES
vest, a white woolen vest, white jersey,
gray shirt and other clothes on the lower
part of the body. Inquest witnesses found
bloodstained wound on the head and the
back as well as his wrist was fractured. In
order to ascertain the cause of death the
witnesses opined that the postmortem be
conducted on the body of the deceased. The
dead body was sealed and given in the
custody of Constables 1516 Amit Kumar
and 702 Parmendra Singh.

7. Postmortem was conducted on the
dead body of the deceased on the next day
i.e. 13.1.2013. Following examinations
have been reported in the postmortem,
which has been proved by Dr. Bhojraj
Singh (PW-5):-

"Age- 54 years.

External examination

Eyes, mouth closed

Ante-mortem Injuries

1. Gunshot wound of entry 2.0 x 1.0
cm on skull 10.0 cm above left eyebrow
and margines are inverted, cavity deep.

2. Gunshot wound of exit 6.0 x 2.0 cm
bone deep on left side of skull 12 cm below
left ear.

3. Lacerated wound 6.0 x 1.0 cm bone
deep on skull 12 cm on right eyebrow.

4. Lacerated wound 4.0 x 1.0 cm, bone
deep, 3 cm behind to injury no. 3.

5. T.S. 6.0. x 3 cm on left elbow with
fracture of both bone.

6. T.S. 10.0 x 6.0 cm with fracture of
middle phalynx of left index finger with
fracture of metacarpal.

7. M. AS with TS in area of 4.0 x 2.0
cm on right forearm with fracture of both
bone.

8. Gunshot wound of entry 5.0 x 2.0
cm on left side of back just below scapula.

Cause of Death

Shock and haemorrhage due to antemortem injuries."

8. The investigating officer after
recording statement of the witnesses under
Section 161 Cr.P.C. and preparation of site
plan on the information received from the
wife of the deceased (PW-2) and another
witnesses proceeded to file four separate
charge-sheets on 15.1.2013 (Ex.Ka.24),
18.2.20213
(Ex.Ka.27),
9.4.2013
(Ex.Ka.30) and 17.4.2013 (Ex.Ka.31). The
prosecution has also brought on record the
FSL report dated 16.12.2014 (Ex.Ka.35/1,
35/2) as well as FSL Report dated 4.8.2014
(Ex.Ka.35/3, 35/4). Permission was also
obtained from the District Magistrate
Bijnor to launch prosecution under Section
25 of the Arms Act against the accused
Gaurav Sharma and Gautam Sharma.

9. On taking cognizance of the
charge-sheets, the Magistrate committed
the case to the Court of Sessions where it
got registered as Sessions Trial No. 85 of
2014 against Gaurav Sharma @ Sonu,
Gautam Sharma, Uttam Kumar Sharma,
Sandeep Bhardwaj and Ankit Bhardwaj,
arising out of Case Crime No. 22 of 2013,
under Sections 147, 148, 302/149 IPC;
Sessions Trial No. 86 of 2014 against
Gaurav Sharma @ Sonu, arising out of
Case Crime No. 25 of 2013, under Section
25 Arms Act; Sessions Trial No. 87 of 2014
against Gautam Sharma, arising out of Case
Crime No. 142 of 2013, under Section 25
Arms Act, Police Station - Kotwali Nagar,
District - Bijnor.

10. The prosecution in order to
establish the guilt of the accused adduced
documentary evidence in the form of FIR
dated 12.01.2013 (Ex.Ka-19), FIR dated
13.01.2013
(Ex.Ka-21),
FIR
dated
12.02.2013 (Ex,Ka-17), written report
5 All. Gaurav Sharma @ Sonu & Anr. Vs. State of U.P.
879
(Ex.Ka-1), recovery memo of 'Tamancha'
& empty cartridge (Ex.Ka-7), recovery
memo of country made pistol 315 bore &
live cartridge 315 bore (Ex.Ka-9), recovery
memo of iron rod (Ex.Ka-32), recovery
memo of blood stained and plain sand and
concrete (Ex.Ka-4), recovery memo of
empty cartridge & blood stained bullet
(Ex.Ka-5), recovery memo of scooty, glass,
mobile
phone
&
Payal
(Ex.Ka-6),
postmortem report (Ex.Ka-2), report of
forensic
science
laboratory
dated
16.12.2014 (Ex.Ka-35/1, 35/2), report of
forensic
science
laboratory
dated
04.08.2014
(Ex.Ka-35/3,
35/4),
Panchayatnama (Ex.Ka-10), charge-sheet
dated 17.04.2013 (Ex.Ka-31), charge-sheet
dated 09.04.2013 (Ex.Ka-30), charge-sheet
dated 15.01.2013 (Ex.Ka-24), charge-sheet
dated 18.02.2013 (Ex.Ka-27), order of
District
Magistrate
dated
29.01.2013
(Ex.Ka-25), order of District Magistrate
dated 04.03.2013 (Ex.Ka-28), Site plan
with Index dated 17.03.2013 (Ex.Ka.29),
Site plan with Index dated 17.01.2013
(Ex.Ka.8), Site plan with Index dated
15.01.2013 (Ex.Ka.23), Site plan with
Index dated 15.03.2013 (Ex.Ka.33), Site
plan
with
Index
dated
18.02.2013
(Ex.Ka.26), Site plan with Index dated
12.01.2013 (Ex.Ka.3).

11. Prosecution has also adduced oral
evidence of Shrikant Atrey (PW-1), eye
witness of the incident (brother of the
deceased);
Meera
Atrey
(PW-2),
complainant, wife of deceased and witness
of last seen; Yuvraj Singh (PW-3), witness,
who saw the accused persons having the
weapon in their hands near the flour mill of
Awas Vikas; Bramha Dutt (PW-4), who has
proved the confession made by Gautam
Sharma, Uttam Kumar Sharma, Sandeep
Bhardwaj and Ankit Bhardwaj before him;
Dr. Bhojraj Singh (PW-5), who had
conducted the autopsy. S.I. Abdul Salam
(PW-6), Ist I.O. of Crime No. 22/2013
(since 12.1.2013 to 17.1.2013) proved the
chick, spot inspection and Fard of recovery
memo recovered from the place of incident
and proved Blood Stained earth and
empties; S.I. Brijpal Singh Tomar (PW-7),
proved the recovery of Tamancha 315 Bore,
Challan Lash, Photo Lash, Letter of
C.M.O., Letter of R.I.; Constable Ramdhan
Singh (PW-8), proved the chik FIR on
record and carbon copy of G.D. under
Section 25 of Arms Act; Head Constable
Indradev (PW-9), proved chik and carbon
copy of G.D. of Section 25 of Arms Act;
Constable
Parvendra
Singh
(PW-10),
proved the fact that he brought the dead
body from the place of incident to Police
Headquarter and from Police Headquarter
to Mortuary along with the police paper
and letter to C.M.O.; Head Constable
Santosh Vishnoi (PW-11), I.O. of Case
under Section 25 of Arms Act proved the
chik
and
recovery
memo;
Incharge
Inspector Sunil Kumar Singh (PW-12), Iind
I.O.
in
Crime
No.
22/2013,
took
investigation on 25.1.2013; S.I. Surya Nath
Singh Yadav (PW-13), IIIrd I.O. proved the
arrest of Gautam and recovery of Tamancha
315 Bore and too kover the investigation on
8.2.2013 in Crime No. 22/2013; and
Retired S.I. V.K. Baliyan (PW-14), took
over investigation on 29.4.2013, proved the
recovery of Iron Rod on the pointing out of
Sandeep Bhardwaj and Ankit Bhardwaj.

12. PW-1 is the sole eye-witness in
this case, who happens to be the brother of
the deceased. He knows all the accused out
of whom Gaurav, Gautam and Uttam are
his maternal brothers and accused Sandeep
and Ankit are the brother-in-law of accused
Gaurav. This witness claims that he had
come to the shop of his brother at around
4.45 pm on the date of incident. The shop
880 INDIAN LAW REPORTS ALLAHABAD SERIES
and the residence of the deceased is one
and the same. While he was at the shop
(situated on the ground floor) PW-2 came
down stairs and informed him that the
deceased had left alongwith accused
Gaurav and Gautam at about 4.00 to Patel
Nagar and have not returned so far. She
asked him (PW-1) to go and see for him.
PW-1 stated that he immediately came to
Surendra Nagar and saw that his brother
(deceased-Chandra Kant Atrey) was being
assaulted by accused Uttam, Sandeep,
Ankit, Gaurav and Gautam with iron-rod.
The assault was in newly constructed house
situated in Surendra Nagar. Sand, Grit, etc.,
were lying on the floor. PW-1 claims to
have raised an alarm on which the accused
Gautam and Gaurav fired on Chandra Kant
Atrey due to which he fell and died
instantly. The accused fled from Surendra
Nagar towards Awas Vikas. PW-1 returned
and informed of the incident to his sisterin-law, who lodged the report at the police
station. As per PW-1 his brother had given
money on loan. Huge amount was taken as
loan. A house at Awas Vikas was given to
live on which accused had their possession.
For this reason PW-2 was fearful of going
with the accused. The incident of murder
has also been committed for this reason.
This witness claims to have gone to the
place of incident alongwith Investigating
Officer from where he took bloodstained
and plain sand and grits. Empty and a
bloodstained flat bullet had been recovered
from the place of occurrence. Signatures of
PW-1 were obtained on the memos of
recovery. Memo of recovery has also been
prepared in respect of the recovered Activa,
Glasses, etc. Accused Sandeep and Ankit
claims to have absconded for long and had
also extended threats to settle the matter or
they too would be sent to the place of the
deceased, in respect of which an NCR No.
71/2013 was got registered on 12.3.2013.

In the cross examination PW-1 has
stated that his brother indulged in work of
giving and taking loan. Business of the
deceased included giving loans to public.
10-20 people were given loan and the
witness did not know whether any security
in the form of land or gold etc. were kept
by the deceased for disbursing loans. He is
not aware whether deceased had any fight
with Dr. Prashant in respect of the shop
situated in Civil Lines. PW-1 claims that he
is not aware of litigation pending between
the deceased with others. Deceased had a
mobile but he does not remember his phone
number. PW-2 also had a mobile on which
PW-1 used to talk. Before leaving for
Surendra Nagar, PW-1 did not inquire
about the location of deceased on his phone
number. He had also not asked PW-2 to
contact him on phone. PW-1 was also not
informed by PW-2 whether she had tried to
contact her husband on phone. He has
denied the suggestion that he was called
later by PW-2 by calling on his mobile. The
witness also claimed ignorance about the
fact that the deceased had bought a house
from accused Gaurav and the details of
payments were maintained or not. PW-1
lives at a distance of 2 and half kilometer
from the house of the deceased. The
incident occurred at a distance of 2
kilometers. There is a police beat near the
place of incident namely Bega Kala. There
is also a police beat on the way from his
house to the place of occurrence. He claims
to have come straight to the police station
but later said that he went via his home. He
narrated the entire incident to PW-2.
Statement of PW-1 was recorded by the
Investigating Officer after fifteen days of
the incident. It is stated that he saw all five
accused assaulting the deceased with ironrod (sariya). The entire incident occurred
within 1-2 minutes and he neither tried to
intervene nor tried to apprehend the
5 All. Gaurav Sharma @ Sonu & Anr. Vs. State of U.P.
881
accused. He had also not thrown grits at the
accused. He also did not take his brother to
the doctor since his skull had opened and
he died on the spot. He also did not take the
dead body with him. He did not touch the
dead body and, therefore, question of blood
clots appearing on his clothes did not arise.
As per this witness two fires were shot. The
road near the place of occurrence goes from
the north to south. Towards the west which
was the place of occurrence. Construction
was going on in a house and mason and
labours were working inside but none of
them came out. He later stated that the
house of incident was 5-7 steps away from
the road. He further stated that the place of
incident is the road which is nearby the
house. This witness has been confronted
with his previous statement under Section
161 Cr.P.C. wherein he had disclosed that
the accused were assaulting the deceased
with iron-rod in a new house and that if
such facts have been written by the
Investigating Officer then they are wrong.
He also claims to have gone to the place of
occurrence with the Investigating Officer.
He had shown the place of occurrence on
the west side of the road going north to
south. He cannot explain if any other place
is shown as the place of occurrence. His
brother's scooty had fallen and he left the
dead body in the contact of the persons
who were present at the spot but he does
not remember the name of any of those
persons nor was he known to them. There
is no independent witness of the incident
from nearby the place of occurrence. He
stated that the accused had placed the
tamancha on the temple of deceased and
fired from close range. Similarly the other
fire was shot near the back of the deceased
by placing the tamancha on the body of the
deceased. This witness has admitted that
there had been complaints but he is not
aware of criminal case launched against his
brother. However, he knew that he had
remained in Jail for two months. There are
various cases relating to landed property.
The deceased had a shop of submersible
pump which he used to open at 10.00 and
then closed 3-4 pm. The witness later stated
that he used to close the shop at 6.00 pm.
There were servants in the shop but none of
them had been sent to locate the deceased.
His brother had left at about 4.00 whereas
he had gone to locate him at quarter to
5.00.
This
witness
has
denied
the
suggestion that he had not seen the incident
and that the dead body of the deceased was
found later and a false case has been set up
to implicate the accused.

13. PW-2 is the wife of the deceased. She
has stated her husband called her that at
4.00 pm. House and shop of deceased is at
one place. Shop is on the ground floor
whereas the house is on the first floor. On
hearing the call of the deceased she came
on the balcony and saw that accused
Gaurav and Gautam were standing with her
husband. Husband of PW-2 (deceased)
informed that he is going with Gaurav and
Gautam to Awas Vikas Surendra Nagar.
These persons are taking him to Surendra
Nagar and that he is going with them. The
deceased left alongwith the accused Gaurav
and Gautam. PW-2 claims that she got
engaged with domestic work. She was
concerned and was loitering around in the
balcony. She saw that her brother-in-law
PW-1 was at the shop. PW-2 then came
down the stairs to the shop and informed
PW-1 that the deceased had gone with
Gaurav and Gautam to Surendra Nagar and
has not returned and, therefore, he may go
in search of him. PW-1 left and later
informed that her husband was shot dead
by the accused. Written report of the
incident was got scribed by her Nandoi
Dhananjay Awasthi on which she signed.
882 INDIAN LAW REPORTS ALLAHABAD SERIES
The written report has accordingly been
proved
and
she
has
explained
the
relationship. She has stated that there was
outstanding loan of lacs of rupees of
deceased on the accused Gaurav and
Gautam and that is why they have killed
her husband. Whenever her husband used
to go with accused Gaurav and Gautam she
used to fear of any fight and as the
deceased has left with them, therefore, she
was disturbed and had asked PW-1 to
search him out. After the death of her
husband she received a cheque dated
16.1.2013 of Rs. 5,60,000/- signed by
Gaurav Bhardwaj payable at Axis Bank
which has been produced during her cross
examination and marked as Exhibit 1.

PW-2 has been cross examined. She
has explained the location of her house and
the shop. On the date of incident her
husband had called her and when she came
out her husband told that Gaurav and
Gautam are with him and are taking him to
Surendra Nagar. After saying this the
deceased left with them. The deceased had
not stated anything else. She denied the
suggestion that there is no house above the
shop. Behind the shop there is a godown
above which is her house where she used to
reside. There is a small balcony on the east.
She has denied the suggestion that the shop
is not visible from the balcony. Her
husband had told her that he is going with
the accused to Awas Vikas Surendra Nagar.
In the report is mentioned as Awas Vikas
near Surendra Nagar. The witness is not
aware whether Awas Vikas and Surendra
Nagar are two separate and distinct
localities and there are residential houses
between the two colonies. She has denied
having bought any house from Gaurav in
Shalini Enclave. She does not know anyone
with the name Archana. Anita Sharma is
her Nanad (husband's sister) and that she
has not purchased any house with Anita
from Gaurav, rather house was purchased
from Abhijit. This house is in Shalini
Enclave. She is not aware whether Shalini
Enclave falls between Surendra Nagar and
Awas Vikas. This witness has denied the
suggestion that she had to pay some money
to Gaurav and he has been implicated so as
to avoid payment of balance amount.

There is no enmity between accused
and her husband. Her husband was not
involved in property business but from time
to time used to purchase plots and in case
of need used to sell them. Her husband was
not involved in money lending business.
On the date of incident her husband had
gone at 4.00. She had not started his search
till quarter to 5.00. She informed PW-1 that
her husband has been taken by the accused
and she fears of some fight between them
and, therefore, he may visit him while
going back home.

PW-2 in his further cross-examination
has stated that on hearing news of murder
she came first to police station and
thereafter came to Surendra Nagar. PW-1
had informed at about 05.15 - 05.30 that
her husband has been done to death. She
had not asked PW-1 to scribe the report as he
had seen the incident and that she may go to
her husband. She also does not remember as
to who brought Dhananjay. She had not gone
near the dead body with police but came to
stay with PW-1 by when the police already
arrived. She has denied the suggestion that
she had no gone to Surendra Nagar as the
dead body was not there. She has also denied
the suggestion that the first information to her
was that of her husband's body was lying in
the mortuary.

PW-2 has admitted that there were
several litigations going on between her
5 All. Gaurav Sharma @ Sonu & Anr. Vs. State of U.P.
883
husband and other persons. These cases
were in respect of agricultural land. She has
agricultural land in village Rasoolpur. She
has further not aware about cases pending
with Kadwa son of Kisan. She was also not
aware that there are 8-10 cases of deceased
with Ramesh son of Buddha. She knew
doctor Prashant who is neighbour and with
whom case was pending for vacating the
shop. He husband also had litigation for the
last 27 years in respect of a house with a
boy of Annapurna Hotel. She denied the
suggestion that her husband had relations
with other ladies and that the police visited
her house in this connection. She denied
that at the time of occurence there was no
PNT Landline number in her house and
shop. PW-2 has further stated that she has
no written proof of the fact that loan of lacs
of rupees was due from the accused Gaurav
and Gautam. She was also not aware of any
witness of this transaction. She also denied
the suggestion that the story of loan is
narrated on legal advise. Cheque (paper
no.37ka) was not filled in her presence. He
husband died on 12.01.2013 and the date
on the cheque is of 16.01.2013. She had not
informed the police after receiving of
cheque. She is not aware as to who had
filled the cheque or who had signed it.
This witness has denied the suggestion
that on legal advise she has produced
cheque with forged signatures. She was
not aware about bank passbook and
cheque book of Gaurav got lost in respect
of which newspaper item was publised on
20.06.2012. This witness has further
admitted that there is a SRS Mall near his
house. She has three daughters and a son.
She has denied that she had gone to SRS
Mall to watch a movie between 3 PM to 6
PM. She also denied the fact that the
incident of murder of deceased was
intimated to her while she was seeing the
movie.

14. PW-3 is friend of the deceased.
He has stated that while he was returning
through Avas Vikas he met the five accused
who where armed with country made pistol
(tamancha) and iron rod and were in
perplexed state and were running away by
saying that they have finished the person.
This witness enquired from them as to what
happened on which the accused asked him
to be concern with his own work. In the
cross-examination PW-3 has admitted that
he has no document to show that he is a
contractor or that his version going to
office was incorrect since 12.01.2013 was a
second Saturday. PW-1 is his closest friend.
He informed PW-1 of what he saw 15-16
days after the incident and that he had not
disclosed him about it earlier. His statement
was recorded after 18 days. This witness is
an accused of a case under section 302 IPC.
He has denied the suggestion that he had
not seen anything but giving a false
statement.

15. PW-4 has stated that on
21.01.2013 he was at Moradabad in the
house of his brother-in-law (Sadu) where
the accused came and confessed their
offence. The accused also stated that he
would vacate the house and would honestly
return the amount.

16. PW-5 to PW-14 are the formal
witnesses and, therefore, their statements
shall be referred as and when require.

17. The prosecution relies upon
following evidence to implicate the accused
appellants:-

(i) The oral testimony of PW-1 as eye
witness to the incident of assault and
murder of the deceased;

(ii) Testimony of PW-2 who has lastly
seen the deceased in the company of
884 INDIAN LAW REPORTS ALLAHABAD SERIES
accused Gaurav and Gautam with whom
the deceased left and later the news arrived
of his brutal murder;

(iii) The recovery of two firearms and
iron road on the pointing out of the accused
as well as the FSL report on the strength on
which
the
prosecution
alleges
that
implication of accused appellants in the
matter is clearly established;

(iv) The testimony of PW-3 and PW-4
who have seen the accused in perplexed
state soon after the incident and the alleged
admission
of
the
accused
of
their
committed the offence so that the matter be
amicably resolved.

18. The evidence on the above counts
have been taken note of by the court below
in order to return a finding of guilt against
the accused appellants. The existence of
motive; ocular testimony of PW-1; ocular
testimony of last seen of first informant and
the recovery of weapon of assault are
primarily the circumstances which have
been factored in by the court below in order
to return a finding of guilt beyond
reasonable doubt.

19. The judgment of conviction and
sentence is challenged by the accused
appellants, who contend that they are
innocent and have been falsely implicated
in the matter. The defence contends that in
fact an unknown dead body was found and
was deposited in the mortuary by Constable
1516 Amit Kumar, in respect of which
relevant entries were made in the relevant
registers and such information was also
sent to concerned police station. It is
alleged that these entries have subsequently
been scored off and no other incident was
reported around the same time. It is thus
alleged that police papers were manipulated
to give different colour to the incident in
connivance with the prosecution witnesses
so as to falsely implicate the accused
appellants and that none has seen the
incident and the unknown body found was
that of the deceased. The defence has
further setup a case that in fact PW-2 had
gone with her children to see a movie and it
was at the theater that information about
murder of the deceased was received by
her. Newspaper report dated 13.01.2013
has been brought on record in order to
substantiate it. The defence has, therefore,
questioned all facets of prosecution story in
order to contend that the accused appellants
have been falsely implicated.

20. Sri Vimlendu Tripathi, learned
counsel for the accused appellants submits
that PW-1 was neither present at the spot
nor has he seen the incident. This
contention relies upon the following
circumstances: (a) statement of PW-1 was
recorded after 15 days of the incident; (b)
PW-1 has not lodged the report nor is he
witness to the inquest and, therefore, his
presence at the place of occurrence is
highly doubtful; (c) the conduct of PW-1 in
not making any attempts to save the
deceased or to rush in hospital or even
lodging a report are the circumstances
which creates a doubt on his presence and;
(d) there are numerous cuttings in the
police papers as also the register to show
that police papers were manipulated and
the signatures on the recovery of empties
from spot are fabricated. It is also pointed
out that the FIR has been sent to magistrate
after a week.

21. The second limb of argument
essentially questions the testimony of PW2, who is alleged to have lastly seen the
two accused taking the deceased. It is urged
that the shop of deceased was on the
ground floor and was not visible from first
floor of the house, which was situated after
5 All. Gaurav Sharma @ Sonu & Anr. Vs. State of U.P.
885
the open field behind the shop. It is urged
that in fact PW-2 was at the SRS Mall
seeing a movie and her presence in the
house is not proved. The testimony of PW2 is impeached on various other factual
aspects also.

22. Countering the evidence relating
to recovery of firearms and empties, it is
urged that the flat bullet found at the place
of occurrence has not matched with the
recovered tamancha. It is also urged that
there is no independent witness of recovery
and the report of FSL cannot be read as a
corroborative
piece
of
evidence
to
implicate the accused appellants.

23. It is lastly urged on behalf of the
accused appellants that the testimony of
PW-3 and PW-4 are wholly unreliable and
cannot constitute any basis for implication
of the accused appellants in the matter. It is
argued that the testimonies produced by the
prosecution are of interested witnesses and
though existence of independent persons at
the place of occurrence is admitted, yet
none of them is produced, which questions
the prosecution story.

24. On behalf of the prosecution and
the informant the contentions are strongly
opposed and it urged by Sri V. M. Zaidi,
learned Senior Counsel for the informant
alongwith Sri Ambar Khanna and learned
A.G.A. for the State that the prosecution
evidence is trustworthy and reliable and,
therefore, the court below has rightly
convicted and sentenced the accused
appellants. It is further argued that there is
no reason to falsely implicate the maternal
brother in the offence and, therefore, the
appeal lacks merit.

25. We have heard learned counsel for
the parties and perused the record of
appeals as well as original records of court
below.

26. Prosecution on the strength of
testimonies
of
witnesses
as
also
documentary evidences has attempted to
establish that the deceased has been
assaulted and shot dead by the accused
appellants, in prosecution of their common
object as members of unlawful assembly,
since they owed huge amount of money to
him which they wanted to avoid repaying.
The court below has analysed the evidence
on record to come to the conclusion that
prosecution has established its case beyond
reasonable
doubt. We,
therefore,
are
required to examine as to whether the
prosecution has succeeded in proving its
case beyond reasonable doubt and the
conclusion of court below is sustainable or
not? We are also required to examine as to
whether sentence awarded by the court
below
to
the
accused
appellants
commensurates with the guilt established
on their part?

27. The evidence on record goes to
show that the deceased was assaulted and
shot dead. The postmortem report dated
31.01.2013 has been proved by the Autopsy
Surgeon Dr. Bhojraj Singh (PW-5). There is
a gunshot wound of entry of 2cm x 2cm on
the left side of skull with corners inverted
with corresponding gunshot wound of exit
of 6cm x 2cm, 12cm below the ear. The
second gunshot wound of entry is on the
left side of the waist of size 5cm x 2cm. In
addition to the above two gunshot injury
the injury nos.3 and 4 are lacerated wound
and injury nos.5 and 6 are traumatic
swelling. A flat bullet is recovered from the
stomach of the deceased and his seventh
and eighth ribs were found fractured. The
left lung was also lacerated. The inquest
report (panchayatnama- Ex.Ka.10) also
886 INDIAN LAW REPORTS ALLAHABAD SERIES
shows that the body of deceased Chandra
Kant Attrey was found on his activa scooty
in front of an under-construction house.
Gunshot injury was noticed on the head of
the deceased as also on his back and his
ribs were found fractured. The inquest
witnesses opined that the deceased died on
account of ante-mortem injuries sustained
by him. The evidence on record, therefore,
conclusively proves that the deceased died
a homicidal death.

28. The prosecution evidence to
implicate
the
accused
appellants
is
primarily three fold. (i) Ocular testimony of
PW-1, who allegedly has seen the incident;
(ii) ocular testimony of the first informant
(PW-2) who lastly saw the deceased going
alongwith accused Gaurav and Gautam and
soon thereafter the dead body was found
and; (iii) the recovery of firearm on the
pointing out of the accused Gaurav and
Gautam as well as FSL report connecting
empty cartridge found at the place of
occurrence with the recovered firearm. We
shall
now
take
up
the
abovenoted
prosecution evidence, one by one.

29. PW-1 is the sole eye witness of
the occurrence. He is the real brother of the
deceased and is thus a related witness. He
claims to have come to the shop of
deceased at about 04.45 PM on the date of
occurrence and his sister-in-law (PW-2)
came downstairs after seeing him at the
shop and informed him that the accused
Gaurav and Gautam had taken his brother
to Patel Nagar at about 04.00 PM and has
not returned. Informant, therefore, asked
PW-1 to go and look for his brother. PW-1
claims that he immediately came to
Surendra Nagar and saw the accused
assaulting his brother with iron rods.