# Kuwarpal & Ors. (In Jail) v. State of U.P

- **Citation:** (2021) 5 ILRA 13
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-25
- **Case number:** J. Criminal Appeal No. 3750 of 2011
- **Bench:** Arvind Kumar Mishra -I
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kuwarpal-ors-in-jail-v-state-of-u-p-47049
- **Pages:** 13

## Headnote

A. Criminal Law - Indian Penal Code,1860Sections 324,307-attempt to murder by
firing-the testimony of doctor and the fact
asserted
by
the
injured
himself
contradictory-infact, injured witness is
tutored once-on account of enmity, false
case was lodged-version of the injured
that the injury was caused from a distance
of 2 to 1 feet while nature of injury was
indicative of fact that the fire was shot
from the point blank range -FIR describes
number of persons were working in the
field at the time of occurrence at 8.00
A.M. still no one arrived on the spotwhereas injured was taken to the police
instead taken to hospital-no villager or
farmer was examined working in the
vicinity of the place of occurrence-trial
court
failed
overlooked
these
vital
aspects.(Para 1 to 56)

The appeal is allowed.(E-5)

## Text

_Characters 0–39,934 of 43,269. This is a partial read: ask again with offset=39934 for what follows._

5 All. Kuwarpal & Ors. Vs. State of U.P.
13
directed to be released forthwith unless
required in connection with any other case.

46. In the result, the appeal is
allowed.

47. Copy of this judgment alongwith
original
record
of
Court
below
be
transmitted to the Court concerned for
necessary compliance. A compliance report
be sent to this Court within one month.
Office is directed to keep the compliance
report on record.
----------
(2021)05ILR A13
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 25.03.2021

BEFORE

THE HON'BLE ARVIND KUMAR MISHRA -I,
J.

Criminal Appeal No. 3750 of 2011

Kuwarpal & Ors. ...Appellants(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellants:
Sri Chandra Shekhar Kushwaha

Counsel for the Opposite Party:
A.G.A.

A. Criminal Law - Indian Penal Code,1860Sections 324,307-attempt to murder by
firing-the testimony of doctor and the fact
asserted
by
the
injured
himself
contradictory-infact, injured witness is
tutored once-on account of enmity, false
case was lodged-version of the injured
that the injury was caused from a distance
of 2 to 1 feet while nature of injury was
indicative of fact that the fire was shot
from the point blank range -FIR describes
number of persons were working in the
field at the time of occurrence at 8.00
A.M. still no one arrived on the spotwhereas injured was taken to the police
instead taken to hospital-no villager or
farmer was examined working in the
vicinity of the place of occurrence-trial
court
failed
overlooked
these
vital
aspects.(Para 1 to 56)

The appeal is allowed.(E-5)

(Delivered by Hon'ble Arvind Kumar
Mishra-I, J.)

1. Heard learned counsel for the
appellants, learned A.G.A. for the State and
perused the record.

2. The instant appeal has been
preferred against the judgment and order
dated 08.06.2011 passed by the Additional
Sessions Judge / Special Judge, J.P. Nagar,
in Session Trial No.225 of 2007 State Vs.
Kuwarpal and others, arising out of Case
Crime No.834 of 2006, under Section 324
I.P.C., Police Station Naugawa Sadat,
District J.P. Nagar, sentencing each of the
appellant to undergo three years rigorous
imprisonment coupled with fine Rs.5000/-
with default stipulation for three months
additional simple imprisonment.

3. Relevant facts of this case as
reflected from record for understanding the
outcome of this appeal appear to be that the
first information report was lodged by
Devendra Singh son of Ram Sukhiram
Singh at Police Station Naugawa Sadat on
30.08.2006 at 9:30 p.m. regarding the
occurrence pertaining to the firing that took
place on 29.08.2006 at 8:00 a.m. in the
village Akkha Nagla within Police Station
Naugawa Sadat, District J.P. Nagar with
description that on 29.08.2006 at about
8:00 a.m., the informant's son Pushpendra
14 INDIAN LAW REPORTS ALLAHABAD SERIES
and his nephew Vipin Kumar son of
Samarpal, resident of Samandpur, Police
Station Rajavpur who had come over to the
house of the informant, were proceeding
towards tubewell of the informant carrying
gadget tools for irrigation on the bullock /
buffalo cart ('Buggi'), while the informant
who had arrived at the tubewell prior to them
was waiting for them over there. After
waiting for a while, when they did not arrive
at the tubewell the informant out of curiosity
came on the chak-road leading towards his
village for tracing them and in the meanwhile
when he was passing along, he heard sound
of fire near sugarcane field of Natram. He
rushed in that direction where he saw
Kuwarpal, Vijendra and Santram who after
firing on his nephew made their escape good
towards the southern side of the chak-road.
The informant saw his nephew seeped in
blood on the cart (buggi). It has further been
narrated in the first information report that
there was persisting enmity between the
accused and the informant on account of
pending litigation. The informant was told by
his son and nephew that three accused who
were possessing 'Tamanchas' (countrymade
gun) opened fire but the fire shot by
Kuwarpal hit his nephew. A number of
persons arrived on the spot. The informant
and the people who had arrived on the spot
afterwards took the injured to the government
hospital Amroha and Moradabad due to
which delay was caused in lodging the report.
This written report is Ext. Ka-1.

4. On the basis of the written report, its
contents were taken down in the Check F.I.R.
(Ext. Ka-3) at Case Crime No.834 of 2006,
under Section 324 I.P.C. at Police Station
Naugawa Sadat on 30.08.2006 at 9:30 p.m.
and the case was registered by entering
relevant note in the concerned general diary
of aforesaid date at the aforesaid Police
Station at 9:30 p.m. at aforesaid case crime
number under aforesaid section of I.P.C.,
carbon copy of the general diary entry is Ext.
Ka-4

5. Record reveals that the injured was
brought to the C.H.C. Amroha prior to the
lodging of the report and was medically
examined by Dr. Gyan Singh (PW-9) on
29.08.2006 at 10:00 a.m. who found the
following injuries on the person of the injured
Vipin Kumar:-

I. Circular lacerated wound 2 cm
in diameter, depth cannot be probed due to
bleeding.
There
is
blackening
and
scorching of hair around the wound in 6
cm in diameter around a huge traumatic
swelling at medial side of knee joint. This
'wound' was present medial side of left
knee joint, 6 cm medially from top of left
knee.

II. There is wound of exit
lacerated wound, 1 cm diameter margin
evert, no blackening. There is traumatic
mild around. Advised x-ray. It is 9 cm
lateral from top of knee. Kept under
observation. Advised x-ray.

6. All above injuries were caused by
firearm (gunshot) wound. (I) wound of
entry, (II) wound of exit, Kept under
observation, Advised x-ray left knee, at
District Hospital Moradabad. Injuries are
fresh.

7. In above medico legal injury
report, injury no.1 and 2 were kept under
observation, patient had been referred to
Senior Radiologist at District Hospital
Moradabad for x-ray of left knee.

8. Medical examination report has
been proved by Dr. Gyan Singh PW-9 as
Ext. Ka-7.
5 All. Kuwarpal & Ors. Vs. State of U.P.
15

Supplementary report

9. On reference by the doctor, x-ray
examination of left knee of the injured
Vipin Kumar was done on 11.09.2006 by
Dr. Harish Chand Dua PW-4.

10. According to report of Senior
Radiologist
of
District
Hospital
Moradabad, vide x-ray plate with x-ray
report no.4103 / dated 29.08.2006, part xrayed - left knee - "no bony injury seen".
"Loss of soft tissue seen on the back of
knee joint as marked on plate".

11. Injuries were rated simple in
nature and caused by gunshot.

12. Dr. Harish Chand Dua has proved
his x-ray report as Ext. Ka-2.

13. Thereafter, on the basis of the
aforesaid
radiological
report,
supplementary medical report was prepared
by Dr. Gyan Singh PW-9 as Ext. Ka-8
wherein also x-ray report (Ext. Ka-2) was
affirmed that "no bony injury was seen".

14. After the F.I.R. was lodged on
30.08.2006, the Investigation of the case
ensued and was taken over by the first
Investigating Officer S.I. Randhir Singh
who took the investigation of this case on
30.08.2006 and proceeded to collect
material / evidence and in the process he
took note of the contents of the relevant
documents say - written report, check
F.I.R., general diary pertaining to the Case
Crime No.834 of 2006 of date of Police
Station Naugawa Sadat and recorded
statement of Constable Sunil Kumar and
Devendra Singh and on the pointing out of
the informant, prepared site plan besides he
also recorded statement of various persons
obtained x-ray report vide Parcha No.2 of
C.D. Dated 04.09.2006 and also prepared
different
memos
and
obtained
supplementary medical examination report
and entered contents thereof in the
concerned
general
diary
of
date
13.09.2006. He again recorded statement of
other witnesses and also collected affidavit
of various persons and came to the
conclusion that the case is fake one and
recorded in the charge sheet that it
transpired during investigation, he came to
know that Pushpendra was possessing illicit
weapon at the time of the occurrence and
due to his negligence, the weapon went off
accidently which injured Vipin Kumar
causing firearm injury, therefore, the
allegations were found false and instead of
Section 324 I.P.C, a case was found under
Section 338, 211 I.P.C. against the
informant Devendra Singh and witness
Pushpendra and injured Vipin Kumar for
hatching conspiracy to falsely implicate the
the appellants in this case.

15. Thus, finding the appellants
innocent filed charge sheet under Sections
338, 211 I.P.C. This charge sheet is
numbered as 148 of 2006 dated 20.09.2006
under Sections 338, 211 against Devendra
Singh and witness Pushpendra and the
injured Vipin Kumar, which has been
proved by him (the first I.O. - DW-1) as
Ext. Kha-1. Besides he also proved a
number of affidavits given to him by
certain persons and which affidavits during
period of his part of investigation have
been made part of the record as Paper
No.5/13 to 5/37.

16. Relevant to mention here that in
this case, the first Investigating Officer
Randhir Singh DW-1 has been examined
not by the prosecution but by the defence
16 INDIAN LAW REPORTS ALLAHABAD SERIES
and his aforesaid charge sheet was later on
cancelled by the superior police officer but
that charge sheet has been proved as Ext.
Kha-1.

17.

Subsequently
to
the
the
Investigating Officer - Randhir Singh, the
investigation
was
then
entrusted
to
Surendra Pal Singh PW-7. He was directed
by the Senior Superintendent of Police,
Moradabad to investigate into the offence
registered at Case Crime No.834 of 2006
under Section 324 I.P.C. and on that day,
Devendra Singh and his nephew Vipin
Kumar had met him but on account of
illness they did not give any statement.
Thereafter, he visited village Akkha Nagla
on 14.11.2006 and recorded statement of
Rajpal Singh and on the very same day, the
complainant Devendra Singh, his son
Pushpendra met him at their house but did
not give any statement on account of they
being ill.

18. On 26.11.2006, the informant
Devendra Singh, injured Vipin Kumar and
Pushpendra met him at S.I.S. Office
Moradabad,
however,
they
expressed
inability to give statement on account of
being ill. He also recorded statement of the
other prosecution witnesses during course
of the investigation and proceeded with the
investigation. On 06.12.2006, Pushpendra
met him but did not give statement on
account of he being in utmost hurry on
account of his father Devendra Singh being
ill. On 12.12.2006, Devendra Singh and
Jitendra Singh gave statement at S.I.S.
Office, Moradabad, which was recorded by
him.

19. The investigation was then taken
over by another S.S.I. Maharaj Singh, PW8 on 25.12.2006 on account of fact that
Surendra Pal Singh PW-7 has fallen ill. He
also proceeded with the investigation of the
case and recorded statement of various
persons
and
recorded
statement
of
Pushpendra
and
Vipin
Kumar
on
23.01.2007. The statement of Dr. Gyan
Singh
was
recorded
on
27.01.2007.
Thereafter statement of Dr. Harish Chand
Dua was recorded on 12.02.2007.

20.

During
course
of
the
investigation, on the basis of medical
examination report and other relevant
papers, on 18.02.2007 Section 307 I.P.C.
was added to the aforesaid Case Crime
No.834 of 2006 and relevant entry was
made in the concerned general diary of
date. Previously submitted charge sheet
filed by the first Investigating Officer (S.I.
Randhir Singh) being numbered 148 of
2006 was got cancelled by him after
sending it to the Superintendent of Police,
J.P. Nagar. He also recorded statement of
the accused Vijendra Singh and after that
investigation was transferred to another
Investigating Officer.

21. Pursuant thereto, the investigation
was then taken over by S.I. Kushal Pal PW6. After adding Section 307 I.P.C. at Case
Crime No.834 of 2006 on 26.04.2007, he
also proceeded with the investigation of the
case and took note of the contents of the
various
records.
On
17.05.2007,
he
recorded statement of the injured Vipin
Kumar. He also visited the spot and at the
pointing out of the informant prepared the
site plan Ext. Ka-5 and after completing the
investigation filed charge sheet Ext. Ka-6,
under Section 307 I.P.C. against the
appellants.

22. Pursuant thereto, proceedings
were committed to the court of Sessions
from
where
it
was
transferred
for
conduction and disposal of the case to the
5 All. Kuwarpal & Ors. Vs. State of U.P.
17
aforesaid trial court of Additional Sessions
Judge/Special Sessions Judge, J.P. Nagar,
who in turn heard both the sides on point of
charge and was prima-facie satisfied with
case against the appellants, accordingly,
framed charge under Section 307/34 of
I.P.C. on 11.02.2008. The charge was read
over and explained to the appellants who
abjured charges and opted for trial.

23. Consequently, the prosecution
was required to adduce its testimony in
support of the charge. The prosecution
produced in all nine witnesses. A brief
sketch of the same is as here under:

24. Devendra Singh PW-1 is the
informant,
Pushpendra
PW-2
is
eyewitness of the occurrence like PW-1.
Vipin Kumar PW-3 is the injured witness.
Dr. Harish Chand Dua PW-4 got x-ray
examination of left knee of the injured
Vipin Kumar and also proved x-ray
report and x-ray plate and has stated that
"no bony injury was found" and has
proved it as Ext. Ka-2 and x-ray plate as
material Ext. 1. Constable Sunil Kumar
PW-5 has proved check FIR and copy of
general diary as Ext. Ka-3 and Ext. Ka-4,
respectively. S.I. Kushalpal PW-6 is the
fourth and the last Investigating Officer
who filed the charge sheet under Section
307 I.P.C. against the appellants and has
proved the same apart from proving his
part of investigation. Surendra Pal Singh
PW-7 is also one of the Investigating
Officers of this case and he has also
proved his part of the investigation.
Likewise
Mahraj
Singh
PW-8
also
conducted the investigation and has
proved his part of the investigation in this
case. Dr. Gyan Singh PW-9 examined the
injured Vipin Kumar on 29.08.2006 at
10:00 a.m. at C.H.C. Amroha and has
proved the injury report Ext. Ka-7 and
also
proved
supplementary
medical
examination report - Ext. Ka-8.

25. Thereafter, evidence for the
prosecution was closed and statement of
the accused-appellants (under Section
313 Cr.P.C.) was recorded wherein
charge was denied and in defence, S.I.
Randhir Singh DW-1 was produced in
support of the charge sheet filed against
the informant and his son under Sections
338, 211 I.P.C and also the investigation
conducted by him while acting as the first
Investigating Officer of this case from
30.08.2006 onwards up to certain period
of time.

26. No other testimony adduced by
the defence except as DW-1. Consequently,
the evidence for the defence was closed and
both the parties were heard on merits of the
case. The trial Judge after vetting the
evidence on record and considering the
prevailing facts and circumstances of the
case, acquitted the appellants under Section
307 I.P.C. while convicted them under
Section 324 I.P.C. and sentenced each of
them to undergo five years rigorous
imprisonment coupled with fine Rs.5000/-,
and in default of payment of fine, three
months' additional imprisonment.

27. Resultantly, this appeal.

28. Contention extended on behalf of
the appellants, in brief, is that in this case,
no offence whatsoever has been committed
by the appellants and it is obvious that
merely on account of pending litigation
between the parties and on account of
animosity, a false case has been cooked up
in collaboration with the police. Facts and
circumstances of the case are suggestive of
18 INDIAN LAW REPORTS ALLAHABAD SERIES
reality that in this case, no one, in fact, saw
the occurrence and nothing of the sort ever
happened in the manner as alleged in the
first information report.

29. The statement of the eyewitnesses
of the occurrence and the injured are in
material contradictions to each other and
full of improvement and embellishment. If
anyone of the three eyewitnesses including
the injured is taken to be true in his account
of the occurrence and acted upon as such
then statement of the other eyewitness
gives different version of the incident and a
reasonable doubt is created regarding the
actual occurrence, that profusely suggests
that the incident did not take place in the
manner and style as stated by the
prosecution. The place of occurrence is
surrounded by a number of agriculture
fields and it has emerged in the testimony
of the prosecution witnesses of fact that the
villagers were working in their field at the
time of the occurrence (which is around
8:00 a.m.) - in the morning and it has also
been described in the first information
report as well as in the testimony that a
number of villagers arrived on the spot,
however, this fact is contradicted by the
prosecution witnesses of fact themselves to
the ambit that no independent witness or
person in the vicinity of the spot arrived on
the spot and no independent witness has
been examined by the prosecution which
throws lot of doubt on the veracity of the
prosecution story itself.

30. Insofar as the injury report is
concerned that apparently is fake. It has
been got manufactured by the prosecution.
The gun shot wound caused to the injured
is said to be simple in nature, its nature is
neither fatal nor grievous. The injury
allegedly sustained by the injured is
artificially created. If the version of the
prosecution witnesses and in particular, that
of the injured Vipin Kumar is taken to be
absolutely correct then this sort of injury
cannot be caused to the injured in the
manner alleged by the injured. However, in
this case, the first Investigating Officer who
was entrusted with the investigation had
come to know during course of the
investigation
that
Pushpendra
was
possessing
illicit
weapon
which
accidentally went off thus causing injury to
the injured Vipin Kumar, the nephew of the
informant Devendra Singh. It being so, the
matter was tried to be improved and twisted
by colouring it as an offence committed by
the appellants on account of enmity with
the informant. S.I. Randhir Singh, the first
Investigating Officer of this case was
examined by the defence and not by the
prosecution. This also throws doubt on the
veracity and authenticity of the prosecution
case that any such incident ever took place
in the manner alleged.

31. Dr. Gyan Singh PW-9 has
categorically stated that this sort of injury
can be caused only by firing from point
blank range. It means that it cannot be
caused from any other distance say without
gap between the nozzle of the gun and the
seat of injury but a categorical narration has
been made in the statement of the injured
Vipin Kumar, to the extent that the firing
was done from a distance of 2 to 1 feet. The
doctor
witness
asserts
in
his
cross
examination that this sort of injury can be
caused only by firing with point blank
range, i.e. without leaving any gap between
the weapon and the seat of injury. Thus the
version of the injured witness regarding
manner of firing from a distance of 2 to 1
feet stands falsified.

32. Further site plan itself is vague
and it does not indicate in precise manner
5 All. Kuwarpal & Ors. Vs. State of U.P.
19
or specific terms the very place where the
appellants (accused) were in fact standing
and opened fire on the injured. This vital
aspect not only throws doubt on the entire
incident but also proves fact that in fact no
accused participated in such incident and
no one was present on the spot. Had it been
really so, how and why the site plan Ext.
Ka-5, would have been silent about their
specific position from where firing was
done.
The
statement
of
the
three
prosecution witnesses of fact, if believed,
to be true then the same are highly
contradictory on material points.

33. Learned A.G.A. has controverted
the aforesaid argument by submitting that the
incident has been proved by the prosecution
witnesses of fact namely PW-1, PW-2 and
PW-3 beyond all reasonable doubt and the
trial Judge has justifiably taken correct view
of the incident and has recorded conviction
and passed just sentence. The site plan
depicts clearly the very spot marked by word
capital "A" where the incident took place.
Doctor's testimony on point of distance is
opinionative, it is not binding and conclusive.

34. Also considered the above
submissions pros and cons made by both the
sides.

35. In the light of the rival submission
and the respective claim of the appellants and
the prosecution, the moot point that arises for
adjudication of this appeal relates to fact
whether the testimony of the prosecution
witnesses of fact is innocuous and inspiring
confidence and the charges framed against
the appellants have been proved beyond all
reasonable doubt ?

36. In that regard before appraisal and
analysis of the facts and circumstances of the
case vis-a-vis testimonial account of the
occurrence is taken note of and addressed on
its merit, contents of the first information
report are to be taken note of at this juncture
in the beginning. It is gathered that the first
information report was lodged by the
informant Devendra Singh on 30.08.2006 at
Police Station Naugawa Sadat at 9:30 p.m.
with the description that on 29.08.2006 at
about 8:00 a.m., his son Pushpendra and his
nephew Vipin Kumar (Bhanja - who had
come over to his house) were proceeding
towards tubewell of the informant after
taking gadgets meant for irrigating his field
on bullock-cart (Buggi). The informant had
arrived at his agriculture field / tubewell prior
to his son and his nephew and was waiting
for them over there. When they did not arrive
in time, out of curiosity, the informant went
in search of them towards the village. While
proceeding so, he heard sound of fire near
sugarcane filed of Netram then he rushed
towards the spot where he sighted Kuwarpal,
Vijendra and Santram firing on his nephew
and secured their escape towards the southern
side.

37. On arriving at the spot, he found
his nephew lying on the cart seeped in
blood. The motive for committing the
offence was enmity and animosity on
account of pending litigation with the
informant. When asked by him on the spot,
he was told by his son and the nephew that
all the three accused were possessing
countrymade gun, all fired from their
respective weapons and shot fired by
Kuwarpal hit his nephew. After arrival of
the informant on the spot and subsequently
to him, a number of persons arrived on the
spot and they took the injured to the
government hospital Amroha - Moradabad
due to which the first information report
could not be lodged earlier. This basic
20 INDIAN LAW REPORTS ALLAHABAD SERIES
description of the occurrence appears in the
written report Ext. Ka-1.

38. Now in the wake of the aforesaid
factual description of the occurrence, the
relevant aspects of the case are to be
assessed and analyzed properly. The
relevant point for adjudication crop up
regarding the presence of Devendra Singh
(informant) on the spot, firing by the
appellants on the spot - their position and
causing of gun shot injury to the injured
Vipin
Kumar
around 8:00
a.m.
on
29.08.2006. In that regard, the three
witnesses of fact have been examined as
PW-1 Devendra Singh, the informant. PW2 Pushpendra - who was accompanying the
victim at the time of the occurrence and
was sitting beside him on the bullock-cart
(Buggi) and PW-3 Vipin Kumar, the
injured of this case.

39. Insofar as the manner and the
description of the incident as has been
given in the written report is concerned, the
same is more or less similar to as appearing
in the testimonial account of the three
witnesses of fact with certain variations.
The first information report suggests that a
number of other persons also arrived on the
spot and the injured was taken to the
government hospital with their help,
whereas,
testimonial
account
of
the
witnesses of fact does not support this
version because Pushpendra PW-2 and
Vipin Kumar PW-3 have categorically
stated that except Devendra Singh and his
uncle, no one else from the nearby place
arrived on the spot.

40. However, in the testimonial
account of Vipin Kumar PW-3, obviously
it has emerged that a number of persons
who were working at the time of
occurrence in their fields but no one
arrived on the spot. Therefore, the
description to the magnitude of the other
persons arriving on the spot does not
appear to be sound one, for the reason
that three shots were fired on the spot and
that too as per testimonial account of the
prosecution witnesses, were fired at
certain gap within a span of one minute
intermittently and not in one moment. It
means that the three shots were fired
intermittently within a minute and there
was gap in firing each shot. If it was so,
how can it be that persons working in the
nearby field were unaware of the incident
and did not arrive on the spot and if they
arrived on the spot, who were those
persons and what were their names, have
not been brought on record. Though this
variation is of little significance but
description
contained
in
the
first
information report is one aspect based on
claim that a number of persons arrived on
the spot becomes improbable. It alludes
to the inference that the first information
report is motivated and improved one on
the point of incident. The enmity is
admitted in the first information report
and in the testimony of the prosecution
witnesses of fact, it has been asserted
time and again that a number of cases are
going on between the parties wherein
both the sides are contesting their
respective case.

41. In the testimonial account of PW1, he claims that at the time when he
arrived on the spot, he was told by his
nephew that shot of Kuwarpal hit him and
the shot was fired by all the three
assailants, whereas, PW-2 in his cross
examination in paragraph no.17 of page
no.12 of his testimony has asserted that he
did not tell anything to his father (the
informant PW-1 Devendra Singh) as to
who were assailants, whereas, testimonial
5 All. Kuwarpal & Ors. Vs. State of U.P.
21
account of PW-1 on this point appears to be
an improvement subsequently to the
occurrence.

42. As per testimony of Vipin Kumar
PW-3, relevant query pops up, while
considering particular position of both the
witness on the bullock-cart when the
incident occurred that both Pushpendra and
he himself, were sitting side by side on the
bullock-cart and the distance between them
was about half feet i.e. 6 inches and three
shots were fired on them by three persons,
prime motive was to kill Pushpendra and
not the nephew of the informant with
whom assailants had no cause. But not a
single pellet touched Pushpendra that is
normally
not
possible
in
such
circumstances because the weapon used
was countrymade gun and shots were fired
not by one person but by three different
persons which should be from three
different directions but not a single pellet
hit the other person (say Pushpendra) who
was sitting beside the injured is highly
improbable because dispersal of pellets will
be always there. Not only this, but the
astonishing aspect of the case is that three
shots were fired in the direction of both
Pushpendra and Vipin Kumar who were
sitting on the bullock-cart but there is no
pellet mark found even on the bullock-cart,
that also raises reasonable doubt regarding
the manner and the style of the firing
opened by the assailants on the spot that
not a single pellet mark was caused / found
on the bullock cart.

43. It is noticeable that prime object
of the appellants was to kill Pushpendra
and he was sitting side by side Vipin
Kumar - the injured - then how Pushpendra
escaped unhurt on the spot and Vipin
Kumar sustained injuries in the incident
when Pushpendra remained there and did
not escape to save himself. It is beyond
comprehension. There is no description of
the sort in the narration of the incident in
the written report (Exhibit Ka-1) that the
assailants tried their best to cause injury /
harm to Pushpendra on the spot. It was
never their (assailants) objective merely to
open firing on the two persons available on
the spot which is not justified when only
one of the two was the target, moreso when
the
other
most
wanted
objective
(Pushpendra) was well within target. It is
virtually admitted that there is enmity
between the parties. Prime motive of the
assailants is claimed to cause harm to
Pushpendra then why will assailants spare
their main objective and instead will satisfy
themselves only by injuring some other
person against whom the assailants had no
cause or enmity. This motivating aspect has
not been explained even then least by the
prosecution.

44. Moreover, Dr. Harish Chand Dua
PW-4 has proved the x-ray plate no.4103
(material Ext. 1) and the x-ray report Ext.
Ka-2 wherein "no bony injury was seen".
He conducted the x-ray examination of left
knee of the injured Vipin Kumar, on
reference being made by C.H.C. Amroha
on 29.08.2006.

45. Relevant to take note of the
medical examination of Vipin Kumar on
the same day i.e. 29.08.2006 at 10:00 a.m.
at C.H.C. Amroha by the Medical Officer,
wherein, injuries as referred hereinabove
were said to be gun shot wound. Injury
no.1 was gun shot wound of entry and the
injury no.2 was gun shot exit wound and it
was kept under observation and referred for
treatment and the same was found to be
fresh. Supplementary report of the same
22 INDIAN LAW REPORTS ALLAHABAD SERIES
was prepared by the Medical Officer,
C.H.C. Amroha, J.P. Nagar on 11.09.2006
wherein "no bony injury was seen". The
loss of soft tissue was seen on the back of
knee joint as marked on plate. This injury
was said to be firearm injury but "simple in
nature".

46. The medical examination report
and supplementary report have been proved
as Ext. Ka-7 and Ext. Ka-8, respectively.
But it is quite surprising that the doctor
witness in his cross examination has
categorically stated that this sort of injury
cannot be caused by firing from distance,
but it can be caused only by firing from
point blank range. It means that the injured
was hit by shot from point blank range and
it can not be a shot from a distance of 2 to 1
feet. This testimony is particular and
peculiar and has come forth from none
other than the doctor who has specifically
asserted that this sort of injury can be
caused only by firing from point blank
range. This witness has neither been
declared hostile nor has been re-examined
by the prosecution in order to clarify the
situation
and
that
testimony
stands
unrebutted and admitted to the prosecution
itself. It is not opinionative but testimony
beyond doubt and there is no reason to
discard it. If it is so, it is absolutely certain
that the investigation done by Randhir
Singh DW-1 was correctly done when he
filed charge sheet against Devendra Singh,
Pushpendra under Sections 338, 211 I.P.C.
at Case Crime No.834 of 2006, for
misleading the police with a view to falsely
implicate the appellants in this case. The
superior police officers acted mechanically
without caring for the element of truth
involved in the claim of the prosecution.

47. The testimonial ramification of
the doctor witness Gyan Singh in his cross
examination regarding the manner of
causing injury to the injured establishes
fact beyond doubt that the occurrence never
took place in the manner and style as stated
by the injured PW-3 himself - PW-3 and
the
other
witnesses
of
fact
namely
Devendra Singh PW-1 and Pushpendra
PW-2. Certainly, they are not telling the
truth but they are under circumstances
interested witnesses and their testimony on
the whole does not inspire confidence,
particularly
for
the
reason
that
the
circumstances of the case when tallied with
the style of occurrence does not conform to
it in its practical shape.

48. In the wake of the above, their
testimonial
account
must
have
been
corroborated
/
supported
by
some
independent testimony or proved and
admitted circumstance but that particular
aspect is missing in this case. It is
surprising that the shot hit on the knee of
the injured Vipin Kumar and there being
entry wound and exit wound, but it did not
cause any fracture and was found to be
simple injury, neither grievous nor fatal.
S.I. Randhir Singh has been produced by
the defence and he has proved the charge
sheet filed by him under Sections 338, 211
I.P.C.
which
is
dated
20.09.2006
numbering 148 of 2006, however, it was
got
cancelled
by
the
subsequent
Investigating Officer of this case through
their superior officers.

49. Merely because some application
was made to the D.I.G. Moradabad Range,
who in turn transferred the investigation of
the case from district J.P. Nagar to
Moradabad range then the investigation
was done by as many as three different
Investigating
Officers
-
say
in
chronological order, Surendra Pal Singh
PW-7 who took over investigation on
5 All. Kuwarpal & Ors. Vs. State of U.P.
23
28.10.2006 pursuant to the order passed by
S.S.P. Moradabad in Case Crime No.834 of
2006, under Section 324 I.P.C. Thereafter,
the investigation was taken over by
Maharaj Singh PW-8 on 25.12.2006. He
took over the investigation of the case and
added Section 307 I.P.C. on the basis of the
medical report and documents brought on
record, consequently, converted the case
from Section 324 I.P.C. to 307 I.P.C. -
would not mean that the subsequent
Investigating Officers alone were justified
for filing charge sheet. One of the three
subsequent
Investigating
Officers
got
cancelled the charge sheet submitted by
Randhir Singh DW-1 from his superior
officer.

50. It is surprising that the medical
documents are absolutely silent about any
fatal injury and the nature of the injury was
simple and left knee was hit by gun shot.
Certainly It cannot be treated to be vital
part of the body. Assuming it to be that any
shot was fired even then considering the
nature of the injury to be simple and no
bony injury was seen that alone will not
travel beyond the purview of Section 324
I.P.C. It appears that PW-8 was highly
motivated and enthusiastic and he has
exaggerated the matter in order to please
his superior police officers because the
investigation was transferred by order of
the D.I.G. Moradabad Range from J.P.
Nagar to Moradabad. Such attitude should
be controlled by the superior officer. Here
such supervision is woefully wanting.

51. S.I. Kushal Pal PW-6 took over
the investigation on 26.04.2007 after the
case was converted under Section 307
I.P.C. by the Investigating Officer PW-8.
He prepared the site plan Ext. Ka-5 and
filed the charge sheet Ext. Ka-6. A glance
over the site plan is reflective of fact that
there is no whisper about the place from
where the shots were fired and where the
accused were in fact standing on the spot. It
merely indicates place marked by word
capital 'A' where the incident is alleged to
have taken place. It also indicates the place
marked by word 'B' from where the
informant
Devendra
Singh
saw
the
occurrence but there is no mention of the
actual position of the assailants as to from
where they fired on the injured, it is silent
about the actual position of the assailants
though passage of their arrival on the spot
and escape from the spot have been marked
by different arrows. This omission in not
specifying exact position of assailants in
the site plan also throws lot of doubt on the
actual place of the occurrence and the
presence of the appellants on the spot. It
virtually creates serious doubt about actual
physical presence of the assailants on the
spot. All these descriptions, if taken
together regarding the injury being caused
to the injured in the manner and style in
which it is claimed by the informant to
have taken place and by description of the
two other witnesses of fact namely
Pushpendra PW-2 and the injured Vipin
Kumar PW-3, render the whole prosecution
story improbable in the face of inherent
infirmities appearing in the case and the
testimony of Dr. Gyan Singh PW-9.

52. Besides it is also gathered that in
the testimony of Pushpendra PW-2, it has
emerged that as soon as firing was done, he
did not make any attempt to secure his
escape from the place of occurrence.
Further in the testimony of the three
prosecution witnesses of fact, it is noticed
that after the occurrence, the injured was
not taken to the hospital though it is
claimed that there was severe bleeding
24 INDIAN LAW REPORTS ALLAHABAD SERIES
caused by causing the injury but the injured
was taken by the informant first to the
police outpost 'Munda Khera'. It means that
prior to the lodging of the first information
report, there was interference by the police,
therefore, process of deliberation with the
police prior to the lodging of the first
information report cannot be ruled out
under prevailing facts and circumstances of
the case.

53. Insofar as on this material point
and in particular the manner and style of
causing the incident, and the possibility of
causing this sort of injury as asserted by the
doctor witness PW-9 is concerned, (to the
ambit of firing from point blank range), it
stands falsified by none other than the
testimony of the injured himself when he
says that the shot was fired from a distance
of 1 to 2 feet. It means that the injured
witness is tutored one and he is not telling
the truth and his testimony is fraught with
embellishment.
Either
of
the
two
description may be correct if the shot was
fired from a distance 1 to 2 feet then
description of the occurrence as given by
the prosecution witnesses of fact falsifies
the very nature of the injury and in case the
testimony of PW-9 is believed to be
accurate, moreso it being reasonable on
point of nature of injury caused then the
case of the prosecution is thrown out. Thus
the manner and style of the occurrence as
claimed by the prosecution becomes highly
improbable and it cannot be accepted with
certainity that it in fact occurred as per
claim of the prosecution witnesses of fact.
Certainly, on account of enmity based on
litigation, there are chances of developing a
false case and trying to falsely implicate the
appellants in this case once something
unfortunate happened with the injured
either on the spot or somewhere else. The
version of the injured that the injury was
caused by firing from a distance of 2 to 1
feet cannot be accepted as correct position.
Here in this case, in view of the testimony
of the doctor as to how injury in this case
can be caused to the injured.

54. The trial Judge could not consider
aforesaid aspects of the case in its right
perspective and took casual view of the
occurrence and the testimonial account
which obviously is in contrast to the
medical evidence on point of the causing of
the
occurrence
thus
bypassing
vital
testimony of Dr. Gyan Singh PW-9 when
he categorically asserted that the nature of
the injury is indicative of fact that the fire
was shot from point blank range meaning
thereby that it cannot admit of firing from
any distance, be it 1 or 2 feet. There is
improvement also when FIR describes that
a number of persons were working in the
field at the time of the occurrence (8:00
a.m.) in the morning still no one arrived on
the spot, whereas the description of the first
information report shows that a number of
persons arrived on the spot and with their
help, the injured was taken to the hospital,
but here too facts have been distorted
because the injured was first taken to the
police outpost Munda Khera by the
informant.