# Lakhan @ Lakhan @ Akash & Ors v. State of U.P

- **Citation:** (2022) 12 ILRA 968
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-05
- **Case number:** Criminal Appeal No. 635 of 2009
- **Bench:** Mrs. Sunita Agarwal, Om Prakash Tripathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/lakhan-lakhan-akash-ors-v-state-of-u-p-48081
- **Pages:** 22

## Headnote

Indian Evidence Act, 1872- Section 9- Test
Identification Parade- Requirement to
identify the alleged culprit at the earliest
possible opportunity after the occurrence
so as to ensure justice and fair play both
to the accused and to the prosecution-
The identification proceedings during the
police investigation is not substantive
evidence in law and it can only be used for
corroborating or contradicting evidence of
the witness concerned as given in court.
The identification of the accused in Court
constitutes substantive evidence and the
test
identification
parade
may
lend
corroboration to the identification of the
witnesses in Court, if so required. As a rule
of prudence, the Court would look for
12 All. Lakhan @ Lakhan @ Akash & Ors. Vs. State of U.P.
969
corroboration
of
the
witnesses'
identification of the accused in the Court,
in
the
form
of
earlier
identification
proceeding. The weight that is attached to
such identification is a matter to be
determined
by
the
court
in
the
circumstances of that particular case.

Test identification parade can only be used to
corroborate the identification of the accused in
the court.

Indian Evidence Act, 1872- Section 9- As
the accused persons were arrested on
10.1.2006
but
time
was
taken
in
completion
of
the
test
identification
parade due to legal formalities as accused
persons were arrested in another police
station in relation to another crime. The
accused persons were given on remand in
veil and the suggestion that the witnesses
had identified them earlier was refuted.
The validity of the test identification
parade held on 21.1.2006 had been
proved
with
the
deposition
of
the
Magistrate as PW-8 who had conducted
the said proceeding. Nothing contrary
could be culled out from the deposition of
the Magistrate and the procedure for test
identification parade as adopted by the
investigating agency cannot be said to be
faulty.

Where the test identification parade is found to
have been conducted in a legal and proper
manner and the delay in holding the same is
satisfactorily explained by the prosecution, then
the same cannot be doubted.

Criminal Appeal rejected. (E-3) (Para 42,
43, 44)

Case Law/ Judgements relied upon:-

## Text

_Characters 0–39,877 of 76,283. This is a partial read: ask again with offset=39877 for what follows._

968 INDIAN LAW REPORTS ALLAHABAD SERIES
the weakness in the defence taken cannot
become the strength of the prosecution to
claim that in the circumstances it was not
required to prove anything. In Sunil Kundu
v. State of Jharkhand [Sunil Kundu v. State
of Jharkhand, (2013) 4 SCC 422 : (2013) 2
SCC (Cri) 427], this Court observed: (SCC
pp. 433-34, para 28)

"28. ... When the prosecution is not
able to prove its case beyond reasonable
doubt it cannot take advantage of the fact
that the accused have not been able to
probabilise their defence. It is well setttled
that the prosecution must stand or fall on its
own feet. It cannot draw support from the
weakness of the case of the accused, if it
has not proved its case beyond reasonable
doubt.""

87. We, therefore, find that the
prosecution has utterly failed to prove the
case
beyond
reasonable
doubt.
The
conviction and death sentence imposed on
the accused is totally unsustainable in law."

28. Considering the above proposition
of law and in the facts and circumstances of
the present case, we are of the view that the
appellants are entitled for the benefit of
doubt and, therefore, they are acquitted of
all the charges.

29. For the foregoing reasons, we
have no hesitation in holding that the
prosecution has failed to prove the charges
beyond reasonable doubt for which the
accused-appellants was tried and, therefore,
the judgment and order of the court below
is liable to be set aside. As a result whereof,
the reference to affirm the death penalty is
rejected. The appeal of the appellants is
allowed. The judgment and order of the
trial court is set aside. The appellants are
acquitted of all the charges for which he
has
been
tried
and
convicted.
The
appellants shall be released from jail
forthwith, unless wanted in any other case,
subject to compliance of the provisions of
437-A Cr.P.C. to the satisfaction of the trial
court below.

30. Let a copy of this order along with
the record be sent to the court below for
information and compliance.
----------
(2022) 12 ILRA 968
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.12.2022

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE OM PRAKASH TRIPATHI, J.

Criminal Appeal No. 635 of 2009

Lakhan @ Lakhan @ Akash & Ors.
 ...Appellants
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Aditya Prasad Mishra, Sri Akhilesh Srivastava, Sri
Asheesh Mani Tripathi, Ms. Manju Pandey, Sri Ram
Chandra Uttam, Sri Vivek Singh, Manu Mishra

Counsel for the Respondent:
Govt. Advocate

Indian Evidence Act, 1872- Section 9- Test
Identification Parade- Requirement to
identify the alleged culprit at the earliest
possible opportunity after the occurrence
so as to ensure justice and fair play both
to the accused and to the prosecution-
The identification proceedings during the
police investigation is not substantive
evidence in law and it can only be used for
corroborating or contradicting evidence of
the witness concerned as given in court.
The identification of the accused in Court
constitutes substantive evidence and the
test
identification
parade
may
lend
corroboration to the identification of the
witnesses in Court, if so required. As a rule
of prudence, the Court would look for
12 All. Lakhan @ Lakhan @ Akash & Ors. Vs. State of U.P.
969
corroboration
of
the
witnesses'
identification of the accused in the Court,
in
the
form
of
earlier
identification
proceeding. The weight that is attached to
such identification is a matter to be
determined
by
the
court
in
the
circumstances of that particular case.

Test identification parade can only be used to
corroborate the identification of the accused in
the court.

Indian Evidence Act, 1872- Section 9- As
the accused persons were arrested on
10.1.2006
but
time
was
taken
in
completion
of
the
test
identification
parade due to legal formalities as accused
persons were arrested in another police
station in relation to another crime. The
accused persons were given on remand in
veil and the suggestion that the witnesses
had identified them earlier was refuted.
The validity of the test identification
parade held on 21.1.2006 had been
proved
with
the
deposition
of
the
Magistrate as PW-8 who had conducted
the said proceeding. Nothing contrary
could be culled out from the deposition of
the Magistrate and the procedure for test
identification parade as adopted by the
investigating agency cannot be said to be
faulty.

Where the test identification parade is found to
have been conducted in a legal and proper
manner and the delay in holding the same is
satisfactorily explained by the prosecution, then
the same cannot be doubted.

Criminal Appeal rejected. (E-3) (Para 42,
43, 44)

Case Law/ Judgements relied upon:-

1. Hindu Singh & ors. Vs St. of U.P, (1982) 3
SCC 368 (II)

2. Md. Sajjad @ Raju @ Salim Vs St. of W.B,
(2017) 11 SCC 150

3. Rajesh @ Sarkari & anr. Vs St. of Har. 1971
(2) SCC 75
4. Matru @ Girish Chandra Vs The St. of U.P,
AIR 1961 Alld 153
5. Asharfi Vs St. 1971 (2) SCC 715

6. Rameshwar Singh Vs St. of J & K, (2013) 14
SCC 266

7. Ram Babu Vs St. of U.P, (2010) 5 SCC 63

8. R. Shaji Vs St. of Ker. (2013) 14 SCC 266

(Delivered by Hon'ble Mrs. Sunita
Agarwal, J.)

1. Heard Sri Akhilesh Srivastava
learned Amicus for appellant nos. 2 and 3
and Ms. Manju Pandey for appellant no. 1
and Sri Roopak Chaubey learned A.G.A.
for the State respondents.

Introduction:-

2. The present appeal is directed
against the judgment and order dated
9.1.2009 passed by the Additional District
&
Sessions
Judge,
Court
No.
9,
Bulandshahr in Sessions Trial No. 397 of
2006 arising out of Case Crime No. 292 of
2005 under Sections 394, 302, 307, 412
IPC, Police Station Jahangirabad, District
Bulandshahr, whereby three appellants
namely Lakhan @ Lakhan @ Akash,
Rakesh and Satish @ Ajay have been
convicted for the offence under Sections
394 and 302 read with Section 34 IPC and
sentenced for life imprisonment for the
offence under Section 394 IPC along with
fine of Rs. 1 Lakh each, under Section 302
read with Section 34 IPC the appellants
have
been
sentenced
with
life
imprisonment and fine of Rs. 1 Lakh each.
The appellants have also been convicted for
the offence under Section 323 read with
Section 34 IPC and sentenced for one year
imprisonment with fine of Rs. 1,000/- each.
It is provided that in case of default, the
970 INDIAN LAW REPORTS ALLAHABAD SERIES
fine shall be recovered as arrears of land
revenue and no arrangement for additional
imprisonment was being made in the case
of default. The fine was required to be
disbursed to the family of the victims and
the victims as well. All the punishments are
to run concurrently.

The first information report and the
investigation:-

3. The first information report of the
incident was lodged by Prem Jeet Singh,
examined as PW-3 that on 24.10.2005, he
along with his wife Mamta @ Bittan and
his uncle Mahipal Singh was coming back
from the house of his brother-in-law
Kalyan Singh from village Bavanpur to his
own village. At about 7:30 PM, at Rjapur
Bambe
ki
Puliya
ahead
of
village
Chandauk, four miscreants had intercepted
his motor cycle on the strength of hockey,
country made pistol, rifle and iron rod. One
miscreant had attacked the informant with
the rifle butt and another on his head and he
became unconscious and fell on the ground.
The miscreants had looted Rs. 880/- from
the pocket of the informant and Rs. 300/-
from the purse of his wife and also the
earrings, gold chain, silver ornaments of his
wife and ran away towards Sikarpur by
looting motorcycle of the informant. On
getting consciousness, the informant saw a
scooter lying on the spot and two persons
in injured state were lying there. It is stated
in the written report that the informant had
identified the miscreants in the light of the
motorcycle and he could identify them. On
the written report given by the informant,
Check FIR was prepared and the report was
registered at 8:15 PM on 24.10.2005 itself.
The place of the incident indicated in the
Check FIR is the Jungle of village
Chandauk, 5 kms. South of the police
station.

4. The fact of lodging of the first
information report was proved with the
statement of PW-11, Check writer who was
posted in the police station Jahangirabad on
24.10.2005. He stated that he had prepared
the Check report on the written report given
by the informant Prem Jeet Singh and the
Check report had been proved as Exhibit
Ka-''13', being in his handwriting and
signature. The GD entry at Rapat No. 28,
Time 20:15 hours of the FIR made on
24.10.2005 was proved by bringing the
original GD in the Court, exhibited as
Exhibit Ka-''14'.

Out of two injured lying on the spot of
the incident, one injured Sunil Sharma had
been examined as PW-2 whereas another
injured Dinesh Sharma had died on
24.10.2005 in the hospital. It is proved by
PW-1 that on receipt of information of
death of injured Dinesh, G.D. entry at
Rapat No. 29, Time 22:30 hours of the
offence under Section 302 IPC was made,
which was proved as Exhibit Ka-''15' by
bringing the original GD in the Court.

5. In cross, PW-11 stated that when
the informant came to the police station, he
was conscious and his wife and one Mohan
Lal
were
accompanying
him.
The
suggestion that the police had brought the
informant from the spot and the report was
dictated by the police to the informant was
denied by PW-11.

6. PW-12 is the first Investigation
Officer who deposed that he was posted in
the
police
station
Jahangirabad
on
24.10.2005 and received investigation of
Case Crime No. 292/05 under Section 394
IPC. After recording the statement of the
informant in the CD, he inspected the spot
of the incident at the pointing out of the
informant, the site plan was proved as
12 All. Lakhan @ Lakhan @ Akash & Ors. Vs. State of U.P.
971
Exhibit Ka-''16', being in his handwriting and
signature. The recovery memo of Cartridge
Shell of 315 Bore recovered from the spot of
the incident had been proved as Exhibit Ka-
''17', being in the handwriting and signature of
PW-13. A sealed bundle was opened in the
Court and one Cartridge Shell 315 Bore was
taken out from the same, marked as Material
Exhibit-''1'. The recovery memo of blood
stained and plain earth recovered from the spot
was proved as Exhibit Ka-''18'. The sample of
the same was proved as Material Exhibit-''3'
and Material Exhibit-''4'.

It is stated by PW-12, the Investigating
Officer that the inquest of deceased Dinesh
was conducted in the District Hospital on
25.10.2005 and the same was proved being
in his writing and signature as Exhibit Ka-
''19'. The related papers to the inquest were
proved as Exhibits Ka-''20' to Ka-''24'. PW12 deposed that the injury report of injured
Sunil Kumar Sharma was entered in the
Case Diary on 31.10.2005 and all other
papers were also entered therein. The
investigation, was, thereafter, transferred
under the orders of the Senior Officers.

In cross, PW-12 stated that he had
proceeded to the place of the incident at
about 8:45 PM along with three police
personnel and the informant. It took about
two hours in compliance of the proceedings
on the spot and, thereafter, he reached at
the District Hospital at about 11:00 PM to
conduct the inquest. He returned to the
police station on the next day, i.e.
25.10.2005 in the evening from the
hospital, however, time of arrival at the
police station could not be remembered by
PW-12.
On
confrontation,
PW-12
categorically stated that the case was
registered in his presence and denied the
suggestion of conducting the proceeding
while sitting at the police station.

7. PW-1 is the witness of inquest.
He stated that the inquest of dead body of
Dinesh Sharma was prepared at the
Mortuary, District Hospital on 25.10.2005
by the police and the witnesses in his
presence. The body was sealed and sent for
postmortem and the inquest report was
prepared on the spot. PW-1 had identified
his signatures on the inquest report and
stated that it was the same report which
was prepared by the Investigating Officer.
In cross, the suggestion given to PW-1 that
he had signed the inquest report at the
police station was refuted by him.

8. Before proceeding further, we may
record that a report dated 27.2.2006 was
submitted
by
one
Mukesh
Kumar,
examined as PW-6, about the information
of death of Dinesh Chandra Sharma
wherein endorsement of Station House
Officer could be found.

9. PW-7 is the second Investigating
Officer who deposed that the investigation
was received by him from PW-12 (SubInspector Satyendra Kumar) on 9.11.2005.
PW-7 had also recorded the statement of
PW-12 on 10.11.2005 who had prepared
the inquest of deceased Dinesh. On
6.1.2006, the statement of son of deceased
Dinesh Chandra Sharma was recorded who
gave the details of the mobile number and
IMEI number of the mobile of the deceased
which was looted in the incident.

(i) Arrest and recoveries:-

10. On 10.1.2006, information was
received about the arrest of the accused
Rakesh and Satish and that accused Satish
@ Ajay had confessed the commission of
crime in the territorial area of Police
Station Jahangirabad. On this information,
PW-7 reached at the police station
972 INDIAN LAW REPORTS ALLAHABAD SERIES
Raghupura, District Gautam Budha Nagar
and interrogated Satish @ Ajay and
Rakesh. They admitted their guilty and
involvement in the incident occurred on
24.10.2005. It is stated by PW-7 that he
recorded the statement of accused Rakesh
and Satish whose faces were covered. They
made the statement that they could recover
motorcycle, mobile phone and the looted
jewellery, but in the meantime the report of
the arrest of accused Lakhan at P.S.
Raghupura was received on 14.1.2006
through telephone. PW-7 also recorded the
statement of accused Lakhan in P.S.
Raghupura who admitted his guilt and
stated that he could recover the looted
articles. After completion of the necessary
formalities to take remand of three accused
persons from the Court, while their faces
were under veil, on 10.2.2006, recovery of
Nokia mobile had been made at the
pointing out of accused Rakesh. The
recovery memo was prepared on the spot.
On the same day, the recovery of one gold
chain with locket and one pair of earring
was also made at the instance of accused
Rakesh. The recovery memo was prepared
on the spot. On 10.2.2006 itself, looted
motorcycle was recovered from a house at
the instance of accused Lakhan @ Akash at
about 17:10 hours and the recovery memo
was prepared in that regard.

11. Three recovery memos prepared
by S.I. A.M. Chaudhary on the dictation of
PW-7 had been proved as Exhibits Ka-''5',
Ka-''6' and Ka-''7' being under the signature
of PW-7. The recovery memos of the place
of recovery being in the handwriting and
signature of PW-7 were proved as Exhibit
Ka-''8' and Ka-''9'. It is deposed by PW-7
that the process of identification parade of
three accused persons was conducted on
21.2.2006 at the District Jail Ghaziabad and
identification of the looted article was
conducted on 22.2.2006, after giving
information to three accused persons about
the said process on 14.2.2006. On 5.3.2006,
the statements of the Magistrates who had
conducted the identification process were
recorded and after completion of the
investigation, on the basis of evidence on
record, the charge sheet was submitted
against three persons namely Lakhan,
Rakesh and Satish, which was proved as
Exhibit Ka-''10' being in the handwriting
and signature of PW-7.

12. In cross, PW-7 stated that he had
entered the information with regard to the
telephone call received from the Police
Station Raghupura in the GD. However,
telephone number had not been disclosed in
the Case Diary. The suggestion that no
information was received about the arrest
of three accused persons from Police
Station
Raghupura
and
the
entire
proceedings were conducted on the basis of
a newspaper report was categorically
denied by PW-7. PW-7 was further
confronted about the arrest of the accused
persons at Police Station Raghupura and
that they were not kept in veil. PW-7
categorically stated that two accused
persons namely Rakesh and Satish arrested
on 10.1.2006 were in veil in the lockup and
they were brought in the Court to seek
remand while in veil. He stated that he
requested for the remand in veil from the
Court and he was personally present in the
Court along with the Case Diary at the time
of remand. The suggestion that the accused
persons were shown to the witnesses prior
to their identification when they were
brought in the Court was categorically
refuted by PW-7. Further suggestion that
the accused persons were shown to the
witnesses in the police station on 9.2.2006
before identification parade was also
refuted by PW-7.
12 All. Lakhan @ Lakhan @ Akash & Ors. Vs. State of U.P.
973

The suggestion that recovery memo
was not prepared on the spot was refuted
by PW-7 and it was stated that the thumb
impression of accused Rakesh was also
taken in the recovery though it was
mentioned therein that the signature of the
accused person was obtained. The site plan
of the place of recovery was prepared on
10.2.2006 at the pointing out of the
informant and recovery at the instance of
accused Rakesh and Satish was made from
one house. The recovered articles were not
in the Court on the date of deposition of
PW-7. The manner in which the recovery
was conducted by PW-7 was narrated by
him and it was added that the people
present at the place of recovery were not
ready to sign the same. The site plan of the
place of recovery was prepared at the
pointing out of the accused persons. The
suggestion about the recovery being farce
was refuted by PW-7.

13. PW-9 is the witness of recovery of
looted articles at the instance of three
accused persons. Recovery of mobile at the
instance of accused Santosh and jewellery
at the instance of accused Rakesh from one
room which was said to have been taken on
rent by them were proved by him. Both the
recoveries were made from one Almirah
kept in a room. PW-9 deposed that the
recovery memo was scribed by him on the
dictation of S.H.O., Chandra Pal Singh
(PW-7). No witness of public was ready to
give testimony and the recoveries were
made during day time between 10-11 AM.
The recovery memos Exhibits Ka-''5' and
K-''6' were shown to this witness and he
proved them being in his handwriting. He
stated that the signatures of the accused
persons were obtained on the spot at the
recovery
memo.
The
recovery
of
motorcycle at the instance of accused
Lakhan @ Lakhan was also proved by PW9 with the statement that the said recovery
was made from the house of one Siraj son
of Shaki Jaan, resident of Kuleshara, Mulla
Colony, Surajpur, District Gautam Budha
Nagar at about 17:10 hours.

The recovery memo was scribed by
him on the dictation of PW-7 and he had
identified his writing on Exhibit Ka-''7'
when shown to him in the Court and
proved that the signatures of other
witnesses were also present on the same.

In cross, PW-9 stated that there were
50-20 people in the crowd collected on the
spot at the time of recovery but no one
came forward to become a witness. PW-9
was
further
confronted
about
the
identification of the recovered articles and
stated that they were not in the Court at the
time of his deposition. The suggestion that
the recovery was not made in his presence
was refuted by PW-9. A Nokia Mobile1100 was shown to this witness in the
Court in his deposition on 30.4.2008 and he
had identified it as the same article
recovered from the house at the instance of
accused Satish on 10.2.2006, which was
marked as Material Exhibit-''4'. He was
further confronted about the identification
of the mobile and refuted the suggestion
that it was not the same article recovered
during the investigation. A categorical
statement was made by PW-9, in cross, that
the informant was not accompanying them
at the time of recovery. He also stated that
no receipt of purchase of the mobile was
given by the family members of the
deceased nor any of them had identified the
recovered mobile set.

(ii) Supplementary information:-

14. PW-6 is the brother of deceased
Dinesh Chandra Sharma. He has proved the
report given by him in writing about the
974 INDIAN LAW REPORTS ALLAHABAD SERIES
death of Dinesh Chandra Sharma and
injury caused to Sunil Sharma (PW-2). The
contents of the report filed by him in his
handwriting and signature has been proved
in his examination-in-chief and the report
was marked as Exhibit Ka-''4'. From the
endorsement on the report, Exhibit Ka-''4'
in the original record, it is found that the
S.H.O. had forwarded the said report on
4.11.2005 to the Investigating Officer
Satyendra Kumar (PW-12).

PW-6 was confronted about the filing
of the said report. In cross, he stated that
the said report (Exhibit Ka-4) was scribed
by him at the police station and the
contents thereof were intimated to him by
his nephew. He got the information of the
incident at about 08:50 hours and reached
at the Bulansdhahr Hospital where he
found that his brother was dead. He met his
nephew at Bulandshahr Hospital. He
further stated that he did not remember as
to when exactly he gave the said report, i.e.
as to how many days prior to 4.11.2005.
However, the suggestion that the said report
was given by him on 4.11.2005 at the
police station and that the report was
dictated by the police was refuted by PW-6.

(iii) Identification of the accused:-

15. PW-8 Sarita Singh is the witness of the
identification of the accused persons. She
stated that she was posted as Additional
City Magistrate in the District Ghaziabad
on 22.2.2006
and
was
deputed
for
identification. The identification parade of
accused persons Rakesh, Lakhan & Satish
was conducted on 22.2.2006 at the District
Jail, Ghaziabad. Three accused persons
were intermingled with 10-10 persons and
were made to stand in three rows. The
marks of identification of the person of
accused were concealed and they were
identified one by one by the witnesses
Prem Jeet Singh and Smt. Mamta. Both the
witnesses had identified three accused
persons correctly by pointing towards
them. On the identification memo, thumb
impressions and signatures of accused
persons and witnesses were taken. The
identification memo was proved by PW-8
being in her handwriting and signature and
having been prepared by her at District Jail,
Ghaziabad. It is deposed by PW-8 that
before asking the witnesses and accused to
put their thumb impressions and signatures,
contents of the identification memo were
read over to them. PW-8 was confronted
about the care taken by her to conceal the
visible identification marks of the accused
person. She had proved that the exercise
was duly conducted and other persons in
the test identification parade with accused
Lakhan were of the same age, built and
complexion. The suggestion that the
identification parade was not conducted in
her presence and it was not conducted in a
proper manner was refuted by PW-8.

(iv) Identification of recovered Articles:-

16. PW-10 is another officer who had
proved identification of the looted articles.
She stated that she was posted as S.D.M. at
Bulandshahr on 21.2.2006 and S.I. R. C.
Sharma brought a sealed bundle and the
witnesses in the Court. The sealed bundle
contained two earrings and one gold chain
which were mixed with similar jewelleries
(five in number) and were got identified
from the witnesses Prem Jeet and Mamta,
who had correctly identified the articles
taken out from the sealed bundle. The
identification memo was prepared on the
spot and was read over to the witnesses
before
their
signatures
and
thumb
impressions
were
obtained.
The
identification memo was proved in the
12 All. Lakhan @ Lakhan @ Akash & Ors. Vs. State of U.P.
975
handwriting and signature of PW-10 as
Exhibit Ka-''12'. On confrontation, PW-10
stated that the jewelleries which were
mixed with the looted articles were brought
by a government contractor and they were
similar to looted articles which had no
specific marking. The sealed articles were
brought by the police. The suggestion that
the identification of looted articles was not
conducted in a proper manner and the
memo was prepared on the asking of the
police was refuted by PW-10. She,
however, stated that she did not remember
whose seal was on the bundle but stated
that the bundle of looted article was sealed
and the identified articles were similar to
other articles.

(v) Postmortem and Injuries:-

17. Amongst the formal witnesses,
PW-4 had proved the postmortem report of
deceased Dinesh Kumar Sharma. He stated
that the dead body was brought in a sealed
state by the police personnel. The sample
seal was tallied and the dead body was
identified by the police personnel who
brought it.

From
external
examination,
the
estimated age of deceased was 46 years, it
was average built body, rigor mortis was
present over the entire body. The ante
mortem injuries found on the person of the
deceased are:-

"1. A gun shot wound of entry 2cm x
1.5cm x cavity deep present over left side of
chest, anterior & lateral aspect of left
chest, 5cms away from left nipple at 3
O'clock position margins are lacerated &
inverted. B/I is not an exploration, and
chest wall, 5th rib (left) fractured, left
lacerated left diaphragm lacerated, medial
lobe of liver lacerated & large intestine,
lacerated & posterior wall of abdomen and
abdomen aorta also lacerated. A metallic
bullet recovered from posterior abdominal
wall of right side."

On internal examination of the wound,
the chest membrane was lacerated, fifth rib
on the left side was broken. The left lung
was lacerated and diaphragm on the left
side
was
fractured.
On
internal
examination, left side of liver, small
intestine and large intestine were lacerated.
Aorta of abdomen wall were lacerated. One
metal bullet was found inside the abdomen.
The direction of wound was from front and
left to downwards. Heart chamber was
empty. The abdominal cavity was filled
with blood and 150 m.l. liquid matter was
found in the stomach.

All articles recovered during the
course of the postmortem were sealed and
handed over to the police personnel in
sealed state who brought the dead body.

PW-4 stated that the metal bullet
which was in two parts kept in a sealed
envelop was handed over to the police
personnel along with the postmortem
report. The cause of the death was shock
and hemorrhage. The ante mortem injuries
were
sufficient
to
cause
death,
the
estimated time of death was 3/4 days prior
to the time of the postmortem. The
postmortem report was proved being in
handwriting and signature of PW-4 as
Exhibit
Ka-''2'.
He
stated
in
his
examination-in-chief that the death could
possibly have occurred on 24.10.2005 at
about 7:30 PM and injury no. 1 was
sufficient to cause death.

In cross, PW-4 was confronted about
the time of the injury and the distance from
which the deceased was hit by firearm.
976 INDIAN LAW REPORTS ALLAHABAD SERIES

18. PW-5 is the witness of injuries of
Prem Jeet Singh son of Kunwar Singh, the
informant (examined as PW-3). He stated
that the injured Prem Jeet Singh (PW-3)
was brought to him at the Community
Health Center, Jahangirabad, Bulandshahr
on 24.10.2005 at about 08:40 PM by police
personnel. The injury found on the person
of PW-3 were as under:-

"Lacerated wound 4cm x 1 cm muscle
deep on the left side face, 2cm below from
the left eye. Swelling around whole left side
face. Margin irregular. Fresh bleeding
present".

The injured had complaint of ''Nausea'
at the time of investigation. The injuries
were kept under observation and X-ray was
advised. The medico legal report of injured
Prem Jeet Singh (PW-3) had been proved
by PW-9, being in his handwriting and
signature as Exhibit Ka-''3'. It was stated by
PW-9 in the examination-in-chief that the
injuries could possibly have occurred on
24.10.2005 at about 7:30 PM, by hard blunt
object like 'Danda', 'Butt' and 'Sariya'.

In cross, PW-5 stated that the nature of
injuries whether they were simple or
serious could have been ascertained only
on perusal of the X-ray report which was
not placed before him. However, the
injuries were not fatal and could have
occurred from hard blunt object, not by
sharp-edged weapon. Injuries were fresh
and could have been caused 2-4 hours prior
to the investigation.

(vi) Prosecution witnesses of fact:-

19. After going through the testimony
of formal witnesses, we are required to
consider the deposition of the witnesses of
fact, PW-2 and PW-3 who were produced
in the witness box as injured witnesses.
PW-2 Sunil Sharma deposed that on
24.10.2005, he and his friend Dinesh
Sharma went to the Sugar factory near
Pahasu in relation to their business by a
Scooter while they were coming back from
the factory to Sikarpur via road through
Chandauk at about 6:05 PM, they bought
petrol at Sikarpur. The Scooter was being
driven by his companion Dinesh Sharma.
When they reached about 1/2 km away
from the village Chadauk, three people
came out of ambush. The place of the
incident was further clarified being ahead
of Jakhaita Canal somewhere near the
brick-kiln. Three persons had opened fire
on his companion Dinesh Sharma and he
(PW-2) was given blow of a hard iron
object in his head. Both of them fell from
the Scooter and, thereafter, PW-2 was
beaten by three persons, he got unconscious
on account of the injuries sustained in his
head. The miscreants looted his wrist
watch, purse, hand bag and mobile, money
and wrist watch of his companion. The
miscreants were between the age of 20-25
years. Six to seven persons standing in the
Court were shown to this witness and he
had pointed towards three persons to state
that they had committed the offence and
assaulted
him.
When
three
persons
identified by PW-2 were enquired in the
Court, they had disclosed their names as
Satish, Lakhan and Rakesh. It is stated by
PW-2 that his companion, Dinesh Sharma
had sustained firearm injuries and he
sustained serious injuries on his head at the
spot of the incident. He (PW-2) gained
consciousness on 26.10.2005 at Yashoda
Hospital, Ghaziabad and then he was told
by his family members that the police had
taken him to the Government Hospital,
Bulandshahr initially, wherefrom he was
referred to Yashoda Hospital, Bulandshahr.
The injured PW-2 filed the discharge
summary of the Yashoda Hospital in the
12 All. Lakhan @ Lakhan @ Akash & Ors. Vs. State of U.P.
977
Court wherein the date of discharge was
mentioned as 30.10.2005.

20. On confrontation by the defence,
PW-2 stated that he had left his house in the
morning at about 12:00 noon, met Dinesh
Sharma at Jahangirabad, where he went by
his motorcycle. From Jahangirabad, they
(he and the deceased) left for Pahasu at
around 1:00 PM and reached there by 2:30
PM. They stayed in the mill for about 2-1/2
hours,
where
they
met
the
Senior
Sugarcane Manager, Rathi. He further
stated that he and the deceased were not
partners. They reached Sikarpur at around
6:00 PM and after buying petrol, they left
for Jahangirabad straightaway. The incident
of assault and loot had occurred at around
6:25 PM. Two miscreants came out from
ambush from the left side whereas one
from the right side and they came from the
side of Puliya. The miscreants first opened
fires at the deceased (Dinesh Sharma)
which hit him and he fell from the scooter.

PW-2 further stated that when he fell
on the ground, his head was not banged at
the road and then stated that he could not
handle the scooter and fell on the road. By
the time, he could see the condition of
deceased Dinesh, the miscreants had
attacked him by a heavy iron object in his
head and he became unconscious. After that
he did not know as to what had happened,
who took him and deceased Dinesh to the
police station and hospital. PW-2 further
stated that it was not dark when the
incident
had
occurred
and
he
got
consciousness on 26.10.2005. Though the
police came to him on 26.10.2005 but the
doctor had advised him not to speak. His
family members informed him as to how he
was brought to the hospital. PW-2 further
stated that he sustained injuries on right ear,
knees and right hand apart from head. The
suggestion that he sustained injuries on
head because of the accident wherein
scooter got banged with the stone or Puliya
and fell down, was refuted by PW2. He
also refuted the suggestion that no incident
of loot or assault had occurred.

PW-2 further stated that he had
reached home from the hospital on
30.10.2005 and then his statement was
recorded where he disclosed that three
persons had opened fire at deceased Dinesh
and assaulted him. PW-2 was confronted
with his previous statement under Section
161 Cr.P.C. statement and refuted the
suggestion that the statement about the
firearm injury caused to Dinesh was made
by him in the Court for the first time on
legal advice.

21. On further confrontation about
identification of three accused persons by
him in the Court, PW-2 stated that three
accused persons came from Ghaziabad Jail
when he came to the Court on the previous
day and he had also seen the accused
persons on that day, but he had not
identified the accused persons before the
date
of
his
deposition.
He
further
categorically stated that he told the
Investigating Officer that miscreants had
attacked on his head by a heavy object after
coming out of the ambush and he did not
know as to what had happened thereafter.
The suggestion that he did not identify
anyone on the spot nor he had seen the
incident was refuted by PW-2.

22. PW-3 is Prem Jeet Singh, the
informant, who had proved the written
report given by him on 24.10.2005 as
Exhibit Ka-1, noted above. The Criminal
law was set into motion with the
registration of the FIR on the report filed
by PW-3, on the date of the incident.
978 INDIAN LAW REPORTS ALLAHABAD SERIES

It is stated by PW-3 that the looted
articles were recovered by the police and he
and his wife went to the Court of
Magistrate, Bulandshahr on 21.2.2006 to
identify them. The S.D.M., Bulandshahr
had mixed the looted articles with other
similar articles, he (PW-3) and his wife had
identified the looted articles correctly, they
had also signed and put their thumb
impressions on the recovery memo. The
identification memo of the looted articles
was shown to this witness and he had
identified his signature on the same and
thumb impression of his wife. PW-3 further
stated that on 22.2.2006 he and his wife
went to the District Jail, Bulandshahr for
identification of the accused and the
identification parade was conducted by
putting the accused persons in three rows
with 11-11 persons in each row. He (PW-3)
had identified three accused Lakhan, Satish
and Rakesh correctly. The identification
memo of the accused persons was shown to
this witness and he had identified his
signature and thumb impression of his wife
on the same.

23. In examination-in-chief, PW-3
stated that he had seen three accused
persons on the spot of the incident on the
date of the incident itself and thereafter in
jail on the date of identification, and in
between the said period, he had never seen
the accused persons. PW-3 brought the
jewellery which were identified by him and
handed over to him under the order of the
Court. He proved in the Court that the
jewellery brought by him (one earring and
one gold chain) were looted by the
miscreants and they were identified in the
presence of the Magistrate. The looted
articles were marked as Material Exhibits
'1, 2 and 3'. The motorcycle of PW-3 which
was looted by the miscreants was brought
by PW-3 on the date of his deposition and
on identification, it was marked as Material
Exhibit-''4'.

PW-3 further proved that the accused
persons Lakhan, Satish and Rakesh were
present in the Court on the date of his
deposition.

On confrontation, PW-3 stated that he
left his house at about 11:00 AM on
24.10.2005, he went to Gram Bavanpur
where he stayed for about 3 hours. The
Gram Bavanpur was at a distance of 30-35
kms. from Israuli and he left the house of
his brother-in-law at Gram Bavanpur at
about 5:00 PM. He reached at Jahangirabad
at about 7:00 PM and he did not make any
purchases at Jahangirabad. When he
reached Doraha (two way) of Chandauk, it
was around 7:00 PM. While he was going
from Chandauk Doraha to Sikarpur, three
miscreants were standing on the road. PW3 stated that he had seen three miscreants
correctly but did not know them prior to the
incident. They were standing besides the
road in the coverage of bushes, the road
was running North-South. They were
covering themselves towards the Eastern
side of the road and it was such dark that
the he had to turn on the light of the
motorcycle. The motor cycle was running
at the speed of 20 kms. per hours and as
soon as he reached near the place where the
miscreants were hiding, they suddenly
attacked him. In the assault, he sustained
injuries in his head and other parts of the
body and became unconscious. His wife
was not injured. The miscreants had looted
personal belongings of him (PW-3) and his
wife and looted his motorcycle to run away
towards Sikarpur. After 10-20 minutes of
the miscreants having left the place of the
incident, he (PW-3) gained consciousness
and then he saw one scooter and two
injured persons lying on the street, at a
distance of 2-3 meters towards the West.
12 All. Lakhan @ Lakhan @ Akash & Ors. Vs. State of U.P.
979
The incident wherein two persons were
lying injured had occurred before assault
on him and the said incident did not occur
before him. He, thus, could not tell as to
when the incident with other two persons
occurred.

PW-3 further clarified that he reached
at the police station at about 8:15 PM and
narrated the entire incident to the police
personnel who reached at the spot along
with him. His wife and uncle accompanied
him to the police station. He further stated
that he could not narrate the time when he
reached at the place of the incident as he
was not fully conscious. Two injured who
were present on the spot were unconscious.
The police then took all of them to the
police station where they reached at about
9:00 PM. PM-3 was admitted in the
Government Hospital, Jahangirabad and
other two injured were sent to Bulandshahr.
He could not narrate as to when he gained
consciousness
in
the
hospital
at
Jahangirabad. However, he stated that on
25.10.2005 at about 9:00 AM, he was fully
conscious.

PW-3 stated that he gave report to the
police and three accused persons met him
on the spot. On further confrontation, PW-3
had narrated another incident of loot of
truck and Maruti car committed by the
accused persons. He further stated that he
also told the police personnel about the
incident of loot of truck and Maruti car at
the same place where PW-3 was attacked.
He then stated that when he reached at the
spot along with the police, truck and Maruti
car were present on the spot and the drivers
were there. The miscreants had run away
seeing the police jeep. The police had not
chased the miscreants and all of them
including the truck and Maruti car and
police reached at the police station.

In cross, PW-3 stated that the report of
loot of truck and Maruti car was not scribed
before him. He was further confronted as to
why the said disclosure was not made under
Section 161 Cr.P.C. and answered that he could
not give the reason for the same. He then stated
that about 2 to 21⁄2 months after the incident, he
got information that the miscreants were
arrested by the police of P.S.