# Hariom v. State of U.P

- **Citation:** (2024) 3 ILRA 239
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-01-09
- **Case number:** Criminal Appeal No. 9185 of 2022
- **Bench:** Rahul Chaturvedi, Mohd. Azhar Husain Idrisi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hariom-v-state-of-u-p-51642
- **Pages:** 13

## Headnote

(A) Criminal Law - Suspension of sentence
pending appeal - Indian Penal Code, 1860
- Sections 147, 148, 149, 307, 302, The
Code of criminal procedure, 1973 - Section
389(1) - Suspension of sentence pending
the appeal; release of appellant on bail -
Arms Act, 1959 - Section 3/25 - Prima
Facie Satisfaction - Ocular Testimony -
Appellate court should avoid microscopic
analysis
of
evidence
while
deciding
suspension of sentence under Section
240 INDIAN LAW REPORTS ALLAHABAD SERIES
389(1) CrPC; consideration limited to
prima
facie
satisfaction
without
reappreciating
evidence
-
Ocular
testimony must be given a preference or
edge over the opinion of the expert.

(Para - 11,13, 28)

(B) Criminal Law - Criminal Jurisprudence
- Cardinal principles - accused is presumed
to be innocent till he has guilty by the
court of competent jurisdiction - Once the
accused is held guilty the presumption of
innocence gets evaporated - In the same
manner, if the accused is acquitted then
the presumption of innocence gets further
fortified. (Para - 22)

Prosecution's case - a deceased employee of
Nagar Nigam - attacked by a group of assailants
- who opposed his appointment - incident
occurred at a wedding - where deceased, his
brother, and their father were injured - An FIR
was registered, and the accused was charged
with various offenses, including murder, attempt
to murder, rioting, and arms act violations -
Sessions Court convicted the accused.

(Para - 15,16)

HELD: - Applications for sentence suspension
under Section 389(1) CrPC for appellants were
rejected due to their active roles in the
commission of the crime. Appellants, who had a
lesser role, were granted bail on the condition of
depositing the imposed fines. (Para - 30 to 34)

Case for final hearing in the month of May

## Text

_Characters 0–39,974 of 43,314. This is a partial read: ask again with offset=39974 for what follows._

3 All. Hariom Vs. State of U.P.
239

In the instant case, neither the
possession nor transportation is proved as
already held that none of the accused was
arrested at spot; make of car is different i.e.
recovered car was "Alto" and later on
changed as "Indica"; neither the case
property nor car was produced before the
trial court; the sole eye-witness i.e. P.W.4
failed to identify any of the accused; the
F.S.L. report was never supplied to the
accused in terms of provision of Section
207 Cr.P.C. and F.S.L. report does not
specify contents/percentage of Ammonium
Chloride and ever does not disclose the
sample as unfit for human consumption.
Therefore, on all counts prosecution case
false flat.

41. In view of the above, the findings
returned in the judgement and order passed
by the Court below dated 16th September,
2022
passed
by
the
Special
Judge
(SC/ST)/Additional Sessions Judge, Court
No.2, Bhadohi in Sessions Trial No. 108 of
2016 (State Vs. Pradeep Kumar Pandey &
Others) arising out of Case Crime No. 282
of 20105, under Sections 272, 120 of I.P.C.
read with Sections 60/63 Of U.P. Excise
Act,
Police
Station-Aurai,
DistrictBhadohi, convicting and sentencing the
accused-appellants are reversed.

42. The present criminal appeal
consequently succeeds and is allowed.
Judgement and order dated 16th September,
2022
passed
by
the
Special
Judge
(SC/ST)/Additional Sessions Judge, Court
No.2, Bhadohi in Sessions Trial No. 108 of
2016 (State Vs. Pradeep Kumar Pandey &
Others) stands set aside.

43. The accused appellants, who are
in judicial custody for more than one year
and six months, are acquitted of the charges
and they shall be released forthwith, unless
are wanted in any other case on compliance
of Section 437-A Cr.P.C.

44. Let a copy of this judgment be
sent to the Chief Judicial Magistrate,
Bhadohi,
henceforth,
for
necessary
compliance.
----------
(2024) 3 ILRA 239
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.01.2024

BEFORE

THE HON'BLE RAHUL CHATURVEDI, J.
THE HON'BLE MOHD. AZHAR HUSAIN
IDRISI, J.

Criminal Appeal No. 9185 of 2022
And
Criminal Appeal No. 9644 of 2022
And
Criminal Appeal No. 9885 of 2022

Hariom ...Appellant
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Rajrshi Gupta, Sri Mukesh Singh, Sri
Devendra Kumar Tiwari, Sri Rizwan Ahmad,
Sri Dileep Kumar (Sr. Advocate)

Counsel for the Respondent:
G.A., Sri Vikas Tripathi, Sri Sagir Ahmad
(Sr. Advocate)

(A) Criminal Law - Suspension of sentence
pending appeal - Indian Penal Code, 1860
- Sections 147, 148, 149, 307, 302, The
Code of criminal procedure, 1973 - Section
389(1) - Suspension of sentence pending
the appeal; release of appellant on bail -
Arms Act, 1959 - Section 3/25 - Prima
Facie Satisfaction - Ocular Testimony -
Appellate court should avoid microscopic
analysis
of
evidence
while
deciding
suspension of sentence under Section
240 INDIAN LAW REPORTS ALLAHABAD SERIES
389(1) CrPC; consideration limited to
prima
facie
satisfaction
without
reappreciating
evidence
-
Ocular
testimony must be given a preference or
edge over the opinion of the expert.

(Para - 11,13, 28)

(B) Criminal Law - Criminal Jurisprudence
- Cardinal principles - accused is presumed
to be innocent till he has guilty by the
court of competent jurisdiction - Once the
accused is held guilty the presumption of
innocence gets evaporated - In the same
manner, if the accused is acquitted then
the presumption of innocence gets further
fortified. (Para - 22)

Prosecution's case - a deceased employee of
Nagar Nigam - attacked by a group of assailants
- who opposed his appointment - incident
occurred at a wedding - where deceased, his
brother, and their father were injured - An FIR
was registered, and the accused was charged
with various offenses, including murder, attempt
to murder, rioting, and arms act violations -
Sessions Court convicted the accused.

(Para - 15,16)

HELD: - Applications for sentence suspension
under Section 389(1) CrPC for appellants were
rejected due to their active roles in the
commission of the crime. Appellants, who had a
lesser role, were granted bail on the condition of
depositing the imposed fines. (Para - 30 to 34)

Case for final hearing in the month of May
2024. (E-7)

LIST OF CASES CITED: -

1. O. P. Sahni Vs J.S. Chaudhary & anr. etc. in
Crl. Appeal No. 1331-1332 of 2023, 2023(6) SCC
123

2. Aas Mohd. Vs Shiv Raj Singh @ Lalla Babu &
anr., (2012) 9 SCC 446

3. Siddharth Vashisht @ Manu Shamra Vs St.,
(NCT of Delhi), (2008) 5 SCC 230

4. Atul Tripathi Vs St. of U.P., 2014 (9) SCC 177

5. Kishori Lal Vs Rupa & ors., 2004(7) SCC 638
6. Vijay Kumar Vs Narendra & ors., (2002) 9
SCC 364

7. Vijay Kumar Vs Narendra & ors., (2002) 9
SCC 364

8. Ramji Prasad Vs Rattan Kumar Jaiswal & anr.,
(2002) 9 SCC 366

(Delivered by Hon'ble Rahul Chaturvedi,
J.)

(Order
on
Sentence
Suspension
Application)

[1] The aforementioned are the three
connected appeals. The respective accusedappellants have filed the three different
appeals, invoking the powers of this Court
under Section 374(2) Cr.P.C., assailing the
legality and validity of the judgment and
order dated 31.10.2022/03.11.2022 passed
by Additional Sessions Judge, Court No.2,
Bareilly while deciding the S.T. Nos. 599
of 2016 (State of U.P. Vs. Sanjeev and 6
others) arising out of case crime no. 210 of
2016 under Section 147, 148, 149, 307, 302
IPC, P.S. Kotwali, District Bareilly, S.T.
No. 600 of 2016 (State Vs. Ranjeet) arising
out of case crime no. 220 of 2016, under
Section 3/25 Arms Act, P.S. Kotwali,
District Bareilly, S.T. No. 601 of 2016
(State Vs. Manoj) arising out of case crime
no. 321 of 2016, under Section 3/25 Arms
Act, P.S. Kotwali, District Bareiily, S.T.
No. 602 of 2016 (State Vs. Sanjeev) arising
out of case crime no. 222 of 2016, under
Section 3/25 Arms Act, P.S. Kotwali,
District Bareilly and S.T. No. 603 of 2016
(State Vs. Anshu Arya) arising out of case
crime no. P.S. Kotwali, District Bareilly, by
the common impugned judgement. The said
judgement is before us for the judicial
scrutiny.

In addition to this, learned
counsel for the appellants submits that
3 All. Hariom Vs. State of U.P.
241
during the pendency of the appeal in
exercise of power under Section 389(1)
Cr.P.C., the sentence awarded to the
respective appellants may be suspended in
the interest of justice.

[2] From the judgment it is clear that
one of the accused Kapil son of Manoj died
during trial and as such the trial against him
stood abated.

Today, when the case was called out,
Sri Rajiv Lochan Shukla, learned counsel
for the appellant in Crl. Appeal No. 9644 of
2022 informs the Court, that one of the
accused-appellant- Manoj son of Shyam
Swaroop, resident of Nekpur, Gautiya, P.S.
Subhash Nagar, District Bareilly in the
aforesaid appeal died on 13.01.2023, when
he was facing incarceration pursuant to the
judgment dated 03.11.2023. We are at loss
to accept the contention on its face value as
the same is not authenticated, unless we
receive a report of confirmation from the
responsible authority. As such we direct the
C.J.M., Bareilly to enquire about the
aforesaid fact and furnish a proper detailed
report to this Court within next six weeks.

[3] Registrar (Compliance) is directed
to send the copy of this order to concerned
C.J.M. to verify the aforesaid fact.

[4] Heard Sri Dileep Kumar, learned
Senior Counsel assisted by Sri Rizwan
Ahmad, Advocate, Sri Rajiv Lochan
Shukla, Advocate, Sri Manish Tewary,
learned Senior Counsel assisted by Sri
Atharv Dixit, learned counsel for the
appellants named above in three criminal
appeals, Sri Sagir Ahmad, learned Senior
Counsel assisted by Sri Vikas Tripathi,
learned counsel for the informant and Sri
Ghanshyam Kumar, learned AGA for the
State and perused the records.

[5] Pleadings have been exchanged
between the parties and the matter is ripe
for disposal of Section 389(1) applications
of the respective appeals. Since all the
appeals are targetted against the judgement
and order dated 31.10.2022/03.11.2022 for
the sake of brevity we are proposing to
decide all the three applications for
suspending the sentence by a common
order.

The respective counsel for the
appellants have argued the case to
extensive length and in its rebuttal by Sri
Sagir Ahmad, learned Senior Counsel for
the informant as well as learned AGA for
the State, have argued the matter upto their
satisfaction.

AMBIT & SCOPE OF SEC. 389(1)
CR.P.C. :-

[6] Before coming to the merit of the
case, it is imperative to spell out the
Section 389(1) Cr.P.C. so as to understand
its true import/ambit and its reach so that
the Court may appreciate the submission
advanced by the counsel for the appellants.

"389. Suspension of sentence
pending the appeal; release of appellant on
bail.

(1) Pending any appeal by a
convicted person, the Appellate Court may,
for reasons to be recorded by it in writing,
order that the execution of the sentence or
order appealed against be suspended and,
also, if he is in confinement, that he be
released on bail, or on his own bond.

(2) The power conferred by this
section on an Appellate Court may be
exercised also by the High Court in the
case of an appeal by a convicted person to
a Court subordinate thereto.
242 INDIAN LAW REPORTS ALLAHABAD SERIES

(3) Where the convicted person
satisfies the Court by which he is convicted
that he intends to present an appeal, the
Court shall,-

(i) where such person, being on
bail, is sentenced to imprisonment for a
term not exceeding three years, or

(ii) where the offence of which
such person has been convicted is a
bailable one, and he is on bail, order that
the convicted person be released on bail,
unless there are special reasons for
refusing bail, for such period as will afford
sufficient time to present the appeal and
obtain the orders of the Appellate Court
under sub- section (1); and the sentence of
imprisonment shall, so long as he is so
released on bail, be deemed to be
suspended.

(4)
When
the
appellant
is
ultimately sentenced to imprisonment for a
term or to imprisonment for life, the time
during which he is so released shall be
excluded in computing the term for which
he is so sentenced."

[7] Hon'ble Apex Court recently got
an opportunity to elucidate and explain the
scope & reach of Section 389(1) Cr.P.C. in
the judgement of Om Prakash Sahni Vs.
Jai Shankar Chaudhary and another etc.
in Criminal Appeal No. 1331-1332 of 2023
decided on 02.05.2023 reported in 2023(6)
SCC 123 . The relevant extract of the
judgment, which is useful for adjudication
of the aforesaid application under Section
389(1) Cr.P.C. are as under:-

"22. Thus, when we speak of
suspension of sentence after conviction, the
idea is to defer or postpone the execution of
the sentence. The purpose of postponement
of sentence cannot be achieved by
detaining the convict in jail; hence, as a
natural consequence of postponement of
execution, the convict may be enlarged on
bail till further orders.
23. The principle underlying the theory of
criminal jurisprudence in our country is
that an accused is presumed to be innocent
till he is held guilty by a court of the
competent jurisdiction. Once the accused is
held guilty, the presumption of innocence
gets erased. In the same manner, if the
accused is acquitted, then the presumption
of innocence gets further fortified."

[8] In continuation of the aforesaid in
the judgement of Aas Mohammad Vs. Shiv
Raj Singh alias Lalla Babu and another
reported in (2012) 9 SCC 446 has observed
in para 30, which is as follows :-

"30. We may usefully state that
when the citizens are scared to lead a
peaceful life and this kind of offences usher
in an impediment in establishment of
orderly society, the duty of the court
becomes more pronounced and the burden
is heavy. There should have been proper
analysis of the criminal antecedents.
Needless to say, imposition of conditions is
subsequent to the order admitting an
accused to bail. The question should be
posed whether the accused deserves to be
enlarged on bail or not and only thereafter
issue of imposing conditions would arise.
We do not deny for a moment that period of
custody
is
a
relevant
factor
but
simultaneously the totality of circumstances
and the criminal antecedents are also to be
weighed. They are to be weighed in the
scale of collective cry and desire. The
societal concern has to be kept in view in
juxtaposition of individual liberty. Regard
being had to the said parameter we are
inclined to think that the social concern in
the case at hand deserves to be given
priority over lifting the restriction on
liberty of the accused."
3 All. Hariom Vs. State of U.P.
243

[9] In yet another judgement Hon'ble
Apex Court in the case of Siddharth
Vashisht alias Manu Shamra Vs. State
(NCT of Delhi) reported in (2008) 5 SCC
230, (properly known as Jessica Lal
murder case), after hearing the common
submission with regard to the bail prayer of
the appellant, it has been held that :-

"19. We are conscious and
mindful that the main matter (appeal) is
admitted and is pending for final hearing.
Observations on merits, one way or the
other, therefore, are likely to prejudice one
or the other party to the appeal. We are
hence not entering into the correctness or
otherwise of the evidence on record. It,
however, cannot be overlooked that as on
today, the applicant has been found guilty
and convicted by a competent criminal
court. Initial presumption of innocence in
favour of the accused, therefore, is no more
available to the applicant.
X X X X

30. ....In the above cases, it has
been observed that once a person has been
convicted, normally, an appellate court will
proceed on the basis that such person is
guilty. It is no doubt true that even
thereafter, it is open to the appellate court
to suspend the sentence in a given case by
recording reasons. But it is well settled, as
observed in Vijay Kumar [(2002) 9 SCC
364 : 2003 SCC (Cri) 1195 : JT 2002 Supp
(1) SC 60] that in considering the prayer
for bail in a case involving a serious
offence like murder punishable under
Section 302IPC, the Court should consider
all the relevant factors like the nature of
accusation made against the accused, the
manner in which the crime is alleged to
have been committed, the gravity of the
offence, the desirability of releasing the
accused on bail after he has been convicted
for committing serious offence of murder,
etc. It has also been observed in some of
the cases that normal practice in such
cases is not to suspend the sentence and it
is only in exceptional cases that the benefit
of suspension of sentence can be granted."

[10] In this regard Hon'ble Apex
Court after thrashing number of the
decisions in Atul Tripathi Vs. State of U.P.
reported in 2014 (9) SCC 177, Kishori Lal
Vs. Rupa and others reported in 2004(7)
SCC 638, Vijay Kumar Vs. Narendra and
others reported in (2002) 9 SCC 364. In
Vijay Kumar v. Narendra and Others
reported in (2002) 9 SCC 364 and Ramji
Prasad v. Rattan Kumar Jaiswal and
Another reported in (2002) 9 SCC 366, it
was held by this Court that in cases
involving conviction under Section 302 of
the IPC, it is only in exceptional cases that
the benefit of suspension of sentence can be
granted. In Vijay Kumar (supra), it was
held that in considering the prayer for bail
in a case involving a serious offence like
murder punishable under Section 302 of the
IPC, the court should consider the relevant
factors like the nature of accusation made
against the accused, the manner in which
the crime is alleged to have been
committed, the gravity of the offence, and
the desirability of releasing the accused on
bail after they have been convicted for
committing the serious offence of murder.

[11] After thrashing & analysing the
aforementioned judgements, the essence
arrived at by Hon'ble Apex Court has come
to the conclusion by providing a guidelines
and the true import of Section 389 (1)
Cr.P.C., that, pending appeal while deciding
the application for suspending the sentence
to ascertain whether the convict has fair
chance of acquittal, what is to be looked
into is something palpable. To put in a
other words, something which is very
244 INDIAN LAW REPORTS ALLAHABAD SERIES
apparent or gross on the face of the records,
on the basis of which, the court can arrive
at prima facie satisfaction that conviction
may not be sustainable. The appellate court
should not re-appreciate the evidence at the
stage of Section 389(1) Cr.P.C. and try to
pick few lacunas or loopholes here or there
in the case of prosecution such would not
be a correct approach.

[12] In the aforesaid judgement of
Om Prakash Sahani (supra) learned Apex
Court in so many words have mentioned
that High Court has gone the issue like the
polital rivalry, delay in lodging the FIR
some overwriting in the FIR etc. etc., all
these aspect of the issue will have to be
looked into at the time of final hearing of
the appeals filed by the convict appellants.
Upon cursory scanning on the evidence on
record, we are unable to agree with the
contention of the learned Senior Counsel
for the convicts that either there is
absolutely no case against the convicts or
that the evidence against them are so weak
and feeble in nature, that ultimately in all
probabilities
the
proceedings
would
terminate in their favour.

[13] Thus from taking the help of the
aforesaid judgement of Hon'ble Apex
Court, it is crystal clear that while deciding
the application under Section 389(1)
Cr.P.C., the Court is not required to have a
meticulous and keen appreciation of the
evidence on record. All these aspect of the
issue would be well considered only at the
time of final hearing of the appeal. At this
stage,
the
microscopic
analysis
and
appreciation would lead to a disastrous
results so far as it may affect the final
outcome of the appeal.

LEGAL
DISCUSSION
OF
PRESENT APPEALS :-

[14] Now taking the aforesaid
analysis as a beacon light, we are proposing
to decide all the three applications under
Section 389(1) Cr.P.C. in their respective
appeal.

FACTS OF CASE :-

[15] As per the prosecution case
contained in paragraph 3 of the impugned
judgement, which could be formulated as
under :-

(a) The informant of this case is
Raj Kiran son of Kishan Lal, P.S. Qila,
Bareilly lodged an FIR at Kotwali Bareilly
that his brother Rajiv @ Raju was
employed in Nagar Nigam, Bareilly as
"Safai Karamchari". As his appointment
has become eyesore to his opponent
Sanjeev and Hariom, who were opposing
his appointment and in this regard in
September 2014 near Nagar Nigam,
Bareilly, accused-appellants Sanjeev and
others have committed maar-peet with him
for which the FIR was registered on
Kotwali Bareilly on 10.09.2014.

(b)
Since
then
accusedappellants- Sanjeev and others started
nurturing an ill feeling towards him and try
to eliminate him many times in past but on
account of providence he was saved
himself.

(c) On 22.04.2016, informant
with his brother Rajiv @ Raju (hence
deceased) and his father Kishan Lal went to
attend the marriage at 'Shehnai Baratghar'.
After taking meals at 10.30 in the night,
they came out and suddenly hey were
surrounded by appellants, namely, (i)
Sanjeev son of Ram Prakash, (ii) Ranjit son
of Ram Prakash (iii) Hariom son of Om
Prakash, (iv) Manoj son of Shyam Swarup,
(v) Kapil son of Manoj (vi) Anhsu Arya son
of Naresh Arya, all of them were armed,
3 All. Hariom Vs. State of U.P.
245
Hariom was saying that Rajiv @ Raju and
his family members are after his service,
today we have to eliminate him. Soon
thereafter, Hariom fired upon Rajiv alias
Raju with intention to kill. After sustaining
the gunshot injury over is leg his brother
rushed back to 'Baratghar', however, he
was overpowered by Manoj son of Shyam
Swarup, Kapil son of Manoj, Anshu Arya,
Ranjit @ Ram Prakash who fallen down
the deceased and caught hold of him.
Thereafter Sanjeev, fired upon his brother
Rajiv @ Raju. When the informant and his
father rushed to save his brother then the
assailants fired upon indiscriminately upon
them. One Kamal son of unknown also
sustained gunshot injury. After this incident
there was a turmoil and upheaval among
the guests and everybody was started
running in order to save their lives.
Thereafter the body of the Rajiv @ Raju
was taken to the Mission Hospital, where
he was declared dead. All the assailants are
hard core criminals and while running
away they have extended threats that all of
them would face same treatment if anyone
opens his mouth. The informant after
leaving their Polo and Safari Car left on the
spot and also the motorcycle. Since the
'Baratghar' was well lit and therefore the
informant clearly identified the individual
assailants and their respective activities in
the light of 'Baratghar'.

[16] The incident is said to have been
taken place on 22.04.2016 at 10.30 in the
night of which the FIR was registered on
12.30
in
the
midnight
in
between
22/23.04.2016 at P.S. Kotwali, District
Bareilly. The police after concluding the
investigation has submitted a charge sheet
under Sections 147, 148, 149, 307 and 302
IPC against appellants Sanjeev, Ranjit,
Manoj, Hariom, Kapil and Anshu Arya.
However, against appellant Ranjit the
charge sheet was also submitted under
Section 3/25 Arms Act, against appellant
Manoj under Section 3/25 Arms Act and
against appellant Sanjeev under Section
3/25 Arms Act and against appellant Anshu
Arya under Section 3/25 Arms Act. Being
the cognizable offence the case was
referred to the court of Sessions whereby
the appellants were convicted for the
offence under Sections 147, 148, 307/149,
302/149 IPC and Section 7 Crl. Law
Amendment Act, besides the charges under
Section 3/25 Arms Act against appellants,
namely, Ranjit, Manoj, Sanjeev and Anshu
Arya.

ARGUMENTS
ADVANCE
BY
COUNSEL OF APPELLANT :-

[17] Sri Rajiv Lochan Shukla, learned
counsel for the appellants primarily have
spear headed the arguments on behalf of all
the appellants, supported by Sri Dilip
Kumar as well as Manish Tewari, learned
Senior
Counsel
for
their
respective
appellants by adding & elaborating their
own submissions. Broadly speaking, the
argument advanced by learned counsel for
the appellants Sri Shukla, Advocate could
be formulated as follows :-

(I) There is inter-se difference
among the depositions of 'witnesses of fact'
with regard to the individual's role of the
assailants which considerably erodes the
authenticity of the prosecution case.

(II) Manipulation made by the
police with regard to the bullets and
weapon of assault used by the assailants.

(III) The alleged injured Kamal
was never produced as witness nor his
injuries were every exhibited or proved.

(IV) Eye witnesses presence is
doubtful, besides they being they are
interse in relationship and as such their
246 INDIAN LAW REPORTS ALLAHABAD SERIES
deposition should be taken with pinch of
salt.

(V) Ambulance Driver, who have
taken the deceased to the hospital in a
precarious condition and he got the injured
Rajiv @ Raju admitted to the hospital. The
Driver of the Ambulance was never
produced as prosecution witnesses.

It is further argued by the
counsel, that the informant and his father
and the deceased went in their own private
car but instead of using their own car for
carrying the injured to the hospital, they
have summoned the Ambulance for the said
purpose, is clearly against the normal
human behaviour.

(VI) After visualizing that the
deceased have sustained four gunshot
wound of injury over his person and more
than one weapon have been used, the
prosecution witnesses tried to shift their
stand just to cover up and made their
deposition in such a fashion which would
in the consonance with the post mortem
report.

(VII) Lastly, the history sheet of
appellant-Ranjit
H.S.
No.
63A
and
appellant- Sanjeev H.S. No. 61A was
brought on record by a written argument
and were never exhibited. The criminal
antecedents of the accused appellants of
eight cases each which have been duly
explained in rejoinder affidavits.

[18] Now the arguments advanced by
Sri Dilip Kumar, learned Senior Counsel on
behalf of appellant Hariom in Criminal
Appeal No. 9185 of 2022 are as follows:-

(A) Out of six assailants and the
deceased as well as informant on the other
hand are belong to same caste, they know
each other and probably distinctly related.
It is contended that even assailants
themselves are interse in the inimical
relationship since recent past, they have
lodged the various FIRs of maar-peet and
kidnapping in which the charge sheet have
been submitted
against
the
accusedpersons. On this factual narration, it is
contended, that
where
the
assailants
themselves are in inimical relationship and
as such this is highly unlikely that they
would join their hands to eliminate Rajiv @
Raju.

(B) The scribe of the FIR was
Khursheed Khan, though Raj Karan, the
informant himself is a well educated person
(M.A. pass) but instead of lodging the FIR,
he asked Khursheed Khan to become scribe
of the FIR. Khursheed Khan, who was
never produced as a prosecution witness.

(C) After reading the FIR, the
only role attributed to accused appellant
Hariom that he has given a first shot to the
deceased over leg. And after sustaining he
ran inside about eighty to ninety paces from
the original place of sustaining injury.
Except this, accused appellant Hariom has
not attributed any role in commission of the
offence.

(D) There is no criminal history
to the credit of accused appellant Hariom.
He was on bail during trial. The bail order
passed by the coordinate Bench of this
Court when challenged before Apex Court
by filing the S.L.P. of the informant, but the
said S.L.P. was dismissed by the Hon'ble
Apex Court after exchange of pleading.

(E) The 161 Cr.P.C. statement of
one Kishan Lal, P.W.-2 the father of the
deceased was recorded by the police after
inordinate
delay
of
10-12
days
on
05.05.2016.
No
justification
coming
forward for this delay, in which he has
stated that 40-50 rounds were fired during
this period, but the police has recovered
only five used cartridges from the place of
occurrence. After perusing the post mortem
3 All. Hariom Vs. State of U.P.
247
report, there is embellishment in the
testimony of witnesses of fact.

(F) No recovery of any weapon
from the possession of the accused
appellant Hariom. The recovery of weapon
is shown from Manoj, Ranjit, Sanjeev and
Anshu Arya, however, only three weapons
were sent for F.S.L. examination. The five
cartridges recovered were not matched with
three so called weapons recovered.

[19] The argument advanced by Sri
Manish Tewari, learned counsel appellant,
appellant Anshu Arya in Crl. Appeal No.
9885 of 2022 are formulated herein below:-

(A) Out of six accused person,
the role of actual firing were attributed to
appellants-Hariom and Sanjeev. However,
accused-appellant Kapil died during the
trial and accused appellant-Manoj too has
taken his last breath on 13.01.2023 during
the pendency of the appeal, though, the said
fact is yet to be verified by the concerned
C.J.M.. The role attributed to appellants
Anshu Arya and Ranjit along with two
other accused persons/appellants, namely,
Manoj and Kapil are of catching hold the
deceased and thus it is impossible for him
to suggest that he may cause any firearm
injury to the deceased.

(B) Presence of P.W.-1 and P.W.-
2 is extremely doubtful as the deceased was
brought to the hospital and admitted by the
driver of the Ambulance and the other
injured Kamal was brought to the hospital
by his brother Ravi.

(C)
There
was
a
fearced
animosity in between appellants-Hariom
and Sanjeev. The deceased and appellants
Sanjeev & Hariom have got a strong
motive to eliminate the deceased.

(D) The said injured Kamal was
never produced as prosecution witness.

 (E) No direct or indirect motive
was assigned to appellant- Anshu Arya.

(F) All the criminal history
instituted by either the first informant Raj
Karan or his relative.

(G) The scribe of the FIR was
never produced as prosecution witnesses.

[20] Per contra, Sri Sagir Ahmad,
learned senior counsel assisted by Sri Vikas
Tripathi, learned counsel for the informant
as well as Sri Ghanshyam Kumar, learned
AGA submitted that the opinion of the
doctor is only suggestive based on his skill
and experience which comes within the
category of "may be" and the corroborative
in nature and it is not a substantive peace of
evidence. It is only a suggestive and cannot
be replaced the ocular testimony of the eye
witnesses.

[21] The bail order granted to
appellant Hariom by the coordinate Bench
of this Court in the year 2018, which was
lateron confirmed by Hon'ble Apex Court
while dismissing the S.L.P. would not come
into the way.

[22] The finding recorded in the bail
order would not going to replace the
finding of the trial judge, who after having
the wholistic approach, thrashing all the
testimonies of different witnesses and the
material on record come to a particular
conclusion and condemning the accusedappellants.

There is a vast difference in the
import of Section 439 Cr.P.C. and Section
389(1) Cr.P.C.. The cardinal principles of
Criminal Jurisprudence persisting in our
country that the accused is presumed to be
innocent till he has guilty by the court of
competent jurisdiction. Once the accused is
held guilty the presumption of innocence
248 INDIAN LAW REPORTS ALLAHABAD SERIES
gets evaporated. In the same manner, if the
accused is acquitted then the presumption
of innocence gets further fortified.

It is further contended, that the
argument advanced by the learned counsel
for the appellants that they have venture
into the threadbare analysis of the every
evidence, tried to magnify the smallest and
irrelevant discrepancies in the testimony
and material to establish that the judgement
and order is per-se bogus and palpably
wrong. It is not expected from the appellant
court to have microscopic analysis of
smallest discrepancies in the testimonies of
various PWs and appreciate the same while
dealing and deciding the respective 389(1)
Cr.P.C. applications. All the submission
advanced by the learned counsel may hold
good at the final stage of the appeal, but
when we are focusing only upon sentence
suspension application, all these fine
arguments cannot be looked into. It would
be rather dangerous to the interest of the
appellants to venture in that arena, else it
may counter productive.

[23] After the rival submissions
advanced by the parties and appreciating
the marathon arguments advanced by the
counsel, the Court has perused the
judgement impugned.

The offence is said to have been
committed in three parts, though in the
same transaction;

Firstly, appellants Sanjeev and
Hariom were nurturing a bad breath and
inimical relationship with the deceased
Rajiv @ Raju on account of some
service/appointment.
Appellant
Hariom
was suspecting that the deceased Rajiv @
Raju was after his service and as such
appellants Sanjeev and Hariom were
nurturing inimical relation with him. They
have got a strong motive to eliminate the
deceased. More over, it is the appellant
Hariom in order to kill the deceased fired
upon him outside the road in front of
marriage home for which the deceased has
sustained serious injuries over his leg/thigh.

Secondly, after receiving the
initial gunshot injury, Rajiv @ Raju (hence
deceased) ran away towards marriage
home, however, he was over powered by
appellants, namey, Manoj, Kapil, Anshu
Arya and Ranjit and thereafter appellant
Sanjeev has open the fire upon the Rajiv @
Raju, deceased.

Thirdly, after visualizing the
gunshot upon the Rajiv @ Raju, deceased,
the first informant and his father ran
towards the assailants but appellants,
namely,
Manoj
and
Kapil
open
indiscriminate fire upon them and in this
transaction Kamal has sustained firearm
injury.

[24] It is argued by the counsel that
ante mortem injuries of the deceased Rajiv
@ Raju, the seat of injury, the nature of
injury, size of injury and the surrounding
circumstance for committing the offence is
most dare devil, ghastly and cold blooded
way by the accused-appellants. Broadly
speaking, the testimony of P.W.-1 and P.W.-
2 supports the prosecution case, as they
were eye witnesses of the incident. The
surroundings were well lit and the
witnesses
of
facts
have
got
ample
opportunity to identify them and the
individual's role. There is no question of
false implication or case of mistaken
identity of the assailants. The FIR was
lodged within two hours of the incident,
ruling out any possibility of tutoring or
embellishments. They know that the
animosity with regard to the service is
subsisting between them. In this charged
moment, one cannot expect sane and cool
and calculated behaviour by the informant
3 All. Hariom Vs. State of U.P.
249
or the dependant/close relative of the
deceased. It is rather impossible to chalk
out the exact human behaviour in that a
charged situation.

So far as, motive is concerned, it
is clear from the very beginning that
Sanjeev and Hariom were dead against the
appointment of Rajiv @ Raju, deceased as
"Safai Karamchari" in the Nagar Nigam,
Bareilly and since then, the deceased has
become, their eyesore. This was the cause
of genesis of the present offence. More
over, where there is eye witness account of
the incident, whereby the witnesses of fact
have identified the assailants in the light of
marriage home and this is not a case of
mistaken identity as mentioned above, then
in that situation the factor of motive
occupies the front seat have of considerable
importance.

There is no extra ordinary or
exceptional delay in lodging of the FIR as
the same was lodged within two hours of
the incident, the FIR was got registered by
the scribe Khursheed Khan.

[25] After having the panoramic view
of the issue and the testimonies of the
prosecution
witnesses,
two
persons,
namely, Hariom and Sanjeev have actively
participated in the process of eliminating
the deceased, however, rest of the four
accused persons/appellants, namely, Ranjit,
Kapil, Manoj and Anshu Arya were active
partners of the incident but they have been
attributed the role of catching hold only; as
they over powered the deceased &
facilitated the assailant Sanjeev to give
lethal blows over his person.

[26] Learned counsel for the
appellants have laid much emphasis upon
the post mortem report of the deceased and
its dimension of the injuries and the
testimonies of Dr. Vijay Pal Singh, P.W.-5.
No doubt that out of six injuries, five
injuries were of gunshot wound of entry admeasuring 4 cm x 2 cm right side of the
head, wound of entry; 4 cm x 1 cm on the
right side below above the pelvic bone, a
wound of entry 3 cm x 1 cm containing
tattooing inside the injury no.3 and lastly a
wound of entry 3 cm x 4 cm inside above
the thigh. Interestingly, all the injuries
contains a bullet inside it. On this, it has
been sharply contended by learned counsel
for the appellants that the prosecution story
and the individual's role in commission of
the offence, do not tally with each other.
The Court is consciously deferring to
adjudicate these fine arguments advanced
by learned counsel for the appellants, else it
would amount to deciding the appeal at
admission stage itself, which is neither
desirable nor it is in the interest of justice,
rather it would be detrimental to the interest
of the appellants, if any finding recorded
against them. We are leaving these
arguments wide open, to be argued at the
time of final stage of the appeals.

[27] In paragraph 37.5 of the
judgement, the learned trial judge after
taking the aid of Section 149 IPC have
clearly recorded his finding that after
hearing the fire from appellant Hariom
upon the deceased to kill him, the rest of
accused persons/appellants, namely, Manoj,
Ranjit, Kapil and Anshu Arya, who were
present over the site and have actively
participated, so as to achieved the target
and appellants, Sanjeev and Hariom have
accomplished their mission by giving fire
upon the deceased in two different innings.

In
paragraph
37.16
of
the
judgement have negated the submissions
that the number of injuries sustained by the
deceased is not in consonance with the
250 INDIAN LAW REPORTS ALLAHABAD SERIES
prosecution story. Even otherwise, if we
start appreciating fineries and niceties of
the arguments advanced by the learned
counsel qua, number of injuries sustained
by the deceased; seat & measurement of the
injuries, weapon recovered from the
appellants, report from the ballistic expert
etc. etc.. In this regard it would amount to
decide the appeal itself at the stage of
Section 389(1) Cr.P.C., which is not
desireable.

[28] Even otherwise, it is contended
by the counsel for the informant that one
cannot give a graphic description of the
incident after giving its minutest detail of
the incident, namely, number of injuries,
weapon used by the individual assailants,
recovery of weapons and the cartridges
used or empty shell recovered from the site.
Under these circumstances, it is not
expected from the witnesses that they
would count the number of fires, the empty
cartridges recovered, the seat of injuries
over the deceased. It is settled principles of
law, that ocular testimony must be given a
preference or edge over the opinion of the
expert. There is a consistent stand that these
two persons, namely, Hariom and Sanjeev
have given a deadly blow over the
deceased. It is also true that Hariom fired
upon the deceased for making him virtually
immobile. Somehow and other, he tried and
managed himself to go inside the marriage
home just to save himself, but in the midst
he was over powered by the rest of the
accused persons, paving the path for
Sanjeev convenient, so that he may
eliminate the deceased Rajiv @ Raju. The
argument made by learned counsel for the
appellant that initially it was the appellant
Sanjeev alone, who are attributed the role
of firing, lateron in the testimony of P.W.-1
and P.W.-2, the number of assailants were
swelled from Sanjeev and another and
lateron it was Sanjeev and Hariom. Fact
remains, that the appellant Sanjeev was a
common thread in all the three permutation
and combination and thus, his name is
common from the day one. So far as
appellant-Hariom is concerned, he has been
attributed the role of firing upon the
deceased at first stage. But as mentioned
above after, churning the deposition and
other materials on record, the appellant
Hariom was hold guilty by the trial judge.
We are at loss to replace our finding, after
negating the conclusion of learned trial
judge at Section 389(1) Cr.P.C. stage.

[29] So far as criminal antecedent is
concerned that the appellants have got a
long criminal history and appellant Sanjeev
is enjoying HS No. 61 A whereas the
appellant Ranjeet is having HS No. 63A,
appellant-Anshu Arya is having a criminal
history of 10 cases. All these facts were
brought to the knowledge in the form of
written submission which were never
confronted to the defence. It is further
submitted that in most of criminal history,
the author the FIR is either Raj Karan, the
present informant or his relative. Under
these circumstance, learned counsel for the
appellants
submits,
that
the
false
implication cannot be ruled out. We cannot
take the judicial note of the fact that the
accused-appellants were having a long
criminal history to their credit, which were
never confronted by the counsel for the
defense so as to check its authenticity.