# Kapil v. State of U.P

- **Citation:** (2022) 2 ILRA 98
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-24
- **Case number:** Criminal Appeal No. 1611 of 2018
- **Bench:** Subhash Chand
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kapil-v-state-of-u-p-47578
- **Pages:** 5

## Headnote

Criminal Law - Indian Penal Code,1860 -
Sections 307 r/w 34, 504 - Criminal
Procedure Code, 1973 - Section 313 -
Indian Evidence Act, 1872 - Section 27 -
Offence of attempt to murder - on account of
negligence on part of the IOs the prosecution
case cannot be discarded if the same is proved
from the evidence of the eye witness also
corroborated with the medical evidence. (Para
17, 18)

Criminal Law - Indian Penal Code,1860 -
Sections 307 r/w 34, 504 - Criminal
Procedure Code, 1973 - Section 313 -
Indian Evidence Act, 1872 - Section 27 -
Offence of attempt to murder - Testimony of
related witness - if the presence of relative
witness at the place of occurrence is not
doubted same cannot be disbelieved on the
sole ground of relative - Relationship per se
does not affect the credibility - The role of
appellant
accused
has
been
assigned
specifically with reliable and cogent ocular
evidence which is also corroborated with the
medical evidence - as such the impugned
judgement of conviction of the appellant does
not bear any infirmity and same need no
interference. (Para 23, 24)
Criminal appeal is hereby dismissed. (E-11)

List of Cases cited:

## Text

98 INDIAN LAW REPORTS ALLAHABAD SERIES
(2022)02ILR A98
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.03.2021

BEFORE

THE HON'BLE SUBHASH CHAND, J.

Criminal Appeal No. 1611 of 2018

Kapil ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Anuj Chaudhary, Sri Akhilesh Kumar
Mishra, Sri Chandrajeet, Sri Santosh Kumar
Dubey

Counsel for the Respondent:
A.G.A.

Criminal Law - Indian Penal Code,1860 -
Sections 307 r/w 34, 504 - Criminal
Procedure Code, 1973 - Section 313 -
Indian Evidence Act, 1872 - Section 27 -
Offence of attempt to murder - on account of
negligence on part of the IOs the prosecution
case cannot be discarded if the same is proved
from the evidence of the eye witness also
corroborated with the medical evidence. (Para
17, 18)

Criminal Law - Indian Penal Code,1860 -
Sections 307 r/w 34, 504 - Criminal
Procedure Code, 1973 - Section 313 -
Indian Evidence Act, 1872 - Section 27 -
Offence of attempt to murder - Testimony of
related witness - if the presence of relative
witness at the place of occurrence is not
doubted same cannot be disbelieved on the
sole ground of relative - Relationship per se
does not affect the credibility - The role of
appellant
accused
has
been
assigned
specifically with reliable and cogent ocular
evidence which is also corroborated with the
medical evidence - as such the impugned
judgement of conviction of the appellant does
not bear any infirmity and same need no
interference. (Para 23, 24)
Criminal appeal is hereby dismissed. (E-11)

List of Cases cited:

1. Vijay Shankar Sinde Vs St. of Mah, (AIR 2008
(SC) 1198)

2. Ashok Kumar Chaudhari Vs St. of Bihar (AIR
2008 SC 2436)

3. C Muniappan & ors. Vs St. of T.N. ( 2011 Vol.
1 SSC 470 SC)

4. Lakhan Sao Vs St. of Bihar & anr. (2009 Vol.
SCC 82)

5. Yogesh Singh Vs Mahabir Singh & ors. (2011
SCC 195)

(Delivered by Hon'ble Subhash Chand, J.)

1. The instant Criminal Appeal is
against the judgment dated 20.1.2018 of
conviction and sentence passed by the court
in ST No. 429 of 2015 (State Vs. Kapil and
others) arising out of case crime no. 374 of
2014 P.S. Pilkhuva, District Hapur whereby
the appellant Kapil was convicted for the
offence under section 307/34 of IPC and
sentenced with rigorous imprisonment of 7
years and a fine of Rs. 5,000/- and in
default of payment of fine additional
imprisonment of three months was to be
undergone.

2. The brief facts giving rise to this
Criminal
Appeal
are
that
informant
Dharmveer Singh, son of late Bhagirath
Singh resident of Mohalla Jatan, Pilkhuva,
District Hapur moved written information
with the police station concerned with these
allegations that on 10.3.2014 at 6.00O'clock evening he alongwith his son Vikas
and the brother-in-law of his son namely
Sumit were exchanging talk at the crossing
nearby his house. At the same time Kapil,
son of Bablu, Gaurav, son of Shailendra,
2 All. Kapil Vs. State of U.P.
99
Bablu son of Sukhpal all resident of Madaia
Jatan, Pilkhuva came by Motorcycle of
which speed was too fast. The son of the
applicant asked them to control the speed
and to drive the motorcycle slow just to
avoid any mishappening. On this issue all
the three accused persons who were armed
with weapon hurled abuses to his son and
exhorted to his companion to open fire with
intend to cause death of his son whereby
Vikas opened fire which hit to the stomach
of his son Vikas who fell down on the spot
due to sustaining injury. The informant made
noise whereby the persons of the locality
attracted there. All the three accused persons
fled away brandishing their country made
pistol after having left the Motorcycle at the
place of occurrence. He also saw the whole
occurrence and recognized the assailants.
The condition of his son Vikas was critical.
He was rushed to the Saraswati Hospital.
After first aid he was referred to Colombia
Asia
Hospital
where
he
underwent
treatment. On this written information Case
Crime No. 374 of 2014 was registered
against the accused Kapil, Gaurav, Bablu,
under section 307 and 504 of IPC and the
Investigating Officer after having concluded
the investigation filed charge sheet against
all the three accused persons on which
cognizance was taken by the Magistrate
concerned who committed the case for trial
to the court of Sessions.

3. The trial court summoned the
accused persons and charge was framed
against the accused Kapil, Gaurav and
Bablu under sections 307/34 and 504 of
IPC which were read over and explained to
the accused persons. The same was denied
by them and demanded for trial.

4. On behalf of prosecution to prove
the charge against the accused persons in
documentary evidence filed the written
information Ext. Ka-1, injury report of
Vikas Ext. Ka-2, Charge sheet Ka-3,
recovery memo in regard to taking into
possession, blood stained cloth of injured
Vikas Ext. Ka-4, Site plan of the place of
occurrence Ext. Ka-5, recovery memo
under section 27 of the Evidence Act Ext.
Ka-6, discharge summary and progress
report of Colombia Asia Hospital, Ext. Ka7, Check FIR, Ka-8.

5. On behalf of prosecution in ocular
evidence examined PW-1, Dharamveer,
PW-2, Vikas, PW-3 Dr. Tejpal Singh, PW-4
SI Roshan Lal, PW-5, SI D.D. Gautam,
PW-6, Dr. Sushil Photedar, PW-7 and HCP
Mahipal Singh.

6. On behalf of prosecution statement
of the accused persons were recorded under
section 313 Cr.P.C. All the accused persons
denied incriminating circumstances
in
evidence against them and stated that they
have been falsely implicated on account of
groupsim of the village and injured was
flying kite on the date of occurrence,
someone opened fire in air which hit to
Vikas consequently he sustained injuries.

7. On behalf of accused persons no
defence evidence was adduced.

8. Trial court after hearing learned
counsel for the rival parties passed the
impugned judgment of conviction and
sentenced to the appellant as stated above.

9. Aggrieved from the impugned
judgment of conviction and sentence, this
criminal appeal has been preferred on
behalf of the appellant Kapil on the ground
that the impugned judgment is based on
perverse and illegal finding and the trial
court has not appreciated the evidence in
proper perspective. There is no explanation
100 INDIAN LAW REPORTS ALLAHABAD SERIES
of delay in lodging the FIR and the weapon
used in commission of crime was not
recovered and there is no independent
witness of the occurrence. There is also
discrepancies
in
the
statement
of
prosecution witness in regard to the place
of occurrence. The trial court has not
considered the pleas raised on behalf of the
appellant and convicted the appellant on
the wrong appreciation of the evidence.
Accordingly, prayed to allow this criminal
appeal and to set aside the impugned
judgment of conviction.

10. Learned counsel for the appellant
has submitted that the conviction of the
appellant is based on the evidence of
interested
and
related
witnesses.
No
independent witness has been examined
and on this ground contended to discard the
prosecution case.

11. On behalf of prosecution the place
of occurrence is the crossing nearby house
of informant Dharmveer Singh. On the date
of occurrence on 10.3.2014 at 6:00-0' clock
of evening informant Dharamveer Singh
along with his son Vikas and the brother-inlaw of his son namely Sumit were standing
and exchanging talk. At the same time the
accused Kapil, Gaurav and Bablu came by
the Motorcycle which was driven at a very
high speed. The son of informant asked the
accused persons to drive the Motorcycle
slowly so as to avoid any accident. On this,
all the accused persons hurling abuses and
on the exhortation of Bablu all the accused
persons opened fire. One bullet hit the
stomach of Vikas. He was immediately
rushed by PW-1 Dharamveer to Sarswati
Hospital from where after first aid he was
referred
to
Colombia Asia
Hospital,
Meerut. This prosecution case has been
proved
by
the
statement
of
PW-1
Dharamveer, informant who had lodged the
FIR and the written information of the
same Ext. Ka-1 was proved by him.

12. PW-2 Vikas is the victim and and
impugned witness of the occurrence. This
witness has stated that on the date, time and
place of occurrence he along with his father
and brother-in-law Sumit were talking at
the crossing. The accused persons came by
Motorcycle which was driven with high
speed on being opposed by him accused
persons hurled abuses and opened fire on
the exhortation of Bablu and the bullet
which was fired by Kapil hit to his
stomach.

13. Therefore, from the statement of
both these witnesses whose presence is not
doubted at the place of occurrence, it is
proved that the firearm opened by Kapil
which hit to the stomach of Vikas.

14. The Investigating Officer in the
list of witnesses have not interrogated any
independent witness of the occurrence and
only three witnesses of the fact were shown
in the list of the charge sheet i.e. informant
Dharamveer, injured Vikas and Sumit.

15. Admittedly, Sumit was not
examined by the prosecution during trial.
So far as the evidenciary value of PW-1
Dharmveer, PW-2 Vikas are concerned,
although both the witnesses are related
being father and son respectively yet their
presence at the place of occurrence is not
shaked in cross examination by the defence
counsel.

16. It is settled law that the testimony
of injured holds more value as a injured
will never conceal the real culprit. So far as
the testimony of a related witness is
concerned, if the presence of relative
witness at the place of occurrence is not
2 All. Kapil Vs. State of U.P.
101
doubted, same can not be disbelieved on
the sole ground being relative.

Hon'ble Apex Court held in Vijay
Shankar Sinde Vs. State of Maharastra
AIR 2008 SC 1198 the testimony of a
injured witness holds more credence.
Normally, he would not shield the real
culprit.

Hon'ble Apex Court held in
Ashok Kumar Chaudhari Vs. State of
Bihar AIR 2008 SC 2436 the relationship
per se does not affect the credibility. Non
examination of public witness by itself
does not give rise to adverse inference
against the prosecution when the evidence
of injured witness is reliable.

17. The injury report of injured Vikas
Ext. Ka-2 has been proved by PW-3 Dr.
Tejpal Singh in which the gun shot entry
wound and exit wound is mentioned on the
lower chest of injured Vikas. PW-3 Dr.
Tejpal Singh also kept this injuries under
observation and advised X-Ray and USG
of whole of the abdomen.

PW-6 Dr. Sushil Photedar of
Colombia
Asia
Hospital
proves
the
discharge summary report of patient Vikas
Ext. Ka-6 and papers related to the same
Ext. Ka-7. This witness also says that he
operated the injured Vikas. There were two
gun shot wounds in his stomach; entry
wound and exit wound; blackening and
tattooing around entry wound was in size .5
cm x.5 cm; while exit would was 1 cm x 1
cm.

Therefore, the ocular evidence
adduced on behalf of prosecution in
regard to firearm injury in the stomach
of injured Vikas is also corroborated
with the medical evidence adduced on
behalf of prosecution.

18. Learned counsel for the appellant
contended that the Investigation Officer did
not recover the weapon used in commission
of crime. No live or empty cartridge were
recovered from the place of occurrence. As
per prosecution case firearms were opened
by all the accused persons. Moreover, the
blood stained cloths of the injured which
were taken in custody by the Investigating
Officer, same were not sent for examination
to FSL and this lacunae in investigation is
fatal to the accused appellant.

19. Admittedly, no weapon was
recovered during investigation despite
taking the police custody remand of
accused
Kapil
on
his
confessional
statement as same could not be recovered
from the place where it was concealed by
the accused. It is also admitted that the
blood stained cloth; the recovery memo of
the same have been proved by PW-5 SubInspector D.D. Gautam as ext. Ka-6; but
the same were not sent to FSL for
examination. This fact is admitted to PW-5,
Sub-Inspector D.D. Gautam. Admittedly,
no empty or live cartridges were recovered
by the Investigating Officer from the place
of occurrence even blood stained clay and
plain
clay
was
not
taken
by
the
Investigating Officer in custody. On
account of negligence on part of the
Investigating Officer, the prosecution
case can not be discarded, if the same is
proved from the evidence of the eyewitness also corroborated with the
medical evidence.

20. The Hon'ble Apex Court held in C
Muniappan and others Vs. State of Tamil
Nadu (2011) 1 SSC 470 SC the defect in
investigation by itself is not a ground of
acquittal. It is obligatory upon the Court to
examine the prosecution witness and to see
102 INDIAN LAW REPORTS ALLAHABAD SERIES
whether
lacunae
in
investigation
is
affecting the object of finding truth.

21. The Hon'ble Apex Court held in
Lakhan Sao Vs. State of Bihar and
another (2009) 9 SCC 82 para 18
appreciation of the evidence in criminal
trial-non recovery of the pistol or spent
cartridges does not detract from the case of
prosecution where the direct evidence is
acceptable.

22. The Hon'ble Apex Court held in
Yogesh Singh Vs. Mahabir Singh and
others (2011) SCC 195 in para 47, mere
non recovery of weapon does not falsify the
case of prosecution where there is ample
unimpeachable evidence.

23. In the present case the prosecution
has been successful in proving its case with
reliable and cogent ocular evidence which
is corroborated with the medical evidence.
The role of the appellant Kapil has been
assigned specific who opened fire and the
bullet hit the stomach of injured Vikas. As
such, the impugned judgment of conviction
of the appellant Kapil for the offence under
section 307 IPC does not bear any infirmity
and same needs no interference.

24. Therefore, in view of reappreciation of the evidence on record this
criminal appeal is hereby dismissed and the
impugned judgment of conviction and
sentnece passed in ST No. 429 of 2015
(State Vs. Kapil and others) arising out of
case crime no. 374 of 2014 P.S. Pilkhuva,
District Hapur is affirmed. The appellant
has to serve out the sentence as awarded by
the court below.

25. Let the copy of judgment/order be
certified to the court below for necessary
information and follow up action.
----------
(2022)02ILR A102
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 11.02.2022

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SAMEER JAIN, J.

Criminal Appeal No. 2410 of 1985

Gulab & Anr. ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Veeresh Mishra, Sri S.R. Yadav, Sri C.M.
Yadav, Sri K.K. Tripathi, Sri Rajiv Sharma,
Sri Rakesh Prasad, Sri Brijesh Yadav

Counsel for the Respondent:
A.G.A.

Criminal Law - Indian Penal Code,1860 -
Sections 302 r/w 34, Code of Criminal
Procedure, 1973 - Sections 161 ,313 &
437(a), Indian Evidence Act, 1872 -
Sections 134 & 45 - offence of Murder -
Testimony of solitary eye-witness (PW2) - FIR
lodged against the appellants with allegation
that they having enmity with deceased forcibly
lifted him in the field of Jwar crop and murdered
him - Entire prosecution story rests heavily on
testimony of sole eye-witness PW2- on seeing
accused persons with arms, having bodily lifted
the deceased into the field PW-2 escaped from
the place of incident due to fear - He reached to
home after 2 hours whereas an elderly persons
could cover double the distance, in 20 to 25
minutes - this throws serious doubt whether
PW2 was with the deceased or loitering
somewhere else - Another aspect noteworthy is
whether incident occurred between 6 - 6.30 pm
sole
witness
deposed
that
accused
had
'Gandasa', 'Axe' and 'spear' in their hands - In
case of indiscriminate assault ordinarily, injuries
should be found All over body and not only on
the face especially when one of accused claimed
to have pinned down deceased - Size, nature &