# Mukesh Tiwari (In Jail) v. State of U.P

- **Citation:** (2021) 3 ILRA 999
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-03-04
- **Case number:** Criminal Appeal No. 1876 of 2009
- **Bench:** Manoj Misra, Sanjay Kumar Pachori
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/mukesh-tiwari-in-jail-v-state-of-u-p-47016
- **Pages:** 7

## Headnote

1000 INDIAN LAW REPORTS ALLAHABAD SERIES
A.G.A.

(A)
Criminal
Law
-
Appeals
from
Conviction - Indian Penal Code, 1860 -
Section 452, 302 read with section 34 -
The Code of criminal procedure, 1973 -
Section 313 - delay in lodging the FIR
does
not
make
prosecution
case
improbable when such delay is properly
explained, but a deliberate delay in
lodging the FIR may prove fatal - cases
where there is a delay in lodging the FIR,
the court has to look for a plausible
explanation for such delay - even though
the existence of motive loses significance
when there is reliable ocular account but
where the ocular testimony appears to be
suspect the existence or absence of
motive
acquires
some
significance
regarding
the
probability
of
the
prosecution case. (Para - 39,48)

(B) Criminal Law - The Code of criminal
procedure,
1973
-
defect
in
the
investigating by itself cannot be ground
for acquittal - Prosecution case cannot be
doubted merely on the ground of nonrecovery of 'empties' fired from the Katta
at the deceased, or non-recovery of the
lantern from the place of the incident, or
non-recovery of the hockey stick and the
knife - any omission on the part of the
Investigating Officer cannot go against
the prosecution case if it is otherwise
supported
by
reliable
and
credible
evidence - investigation is not the solitary
area for judicial scrutiny in a criminal trial.
(Para - 84,85)

F.I.R. lodged by PW-1 (wife of deceased) - PW-1 &
her husband (deceased) & brothers were sleeping
in a room of their house on the intervening night -
At around 2:00 a.m., she woke up hearing rattle
upon entry of persons in her room - door of the
room was open and a lantern was lit - saw the
appellants with a hockey stick, knife and a Katta in
their hand - attacked husband with a hockey stick
- shot at point-blank range on his neck, her
husband fell down after receiving firearm injury -
PW-2 & other woke up on hearing cries - tried to
catch the appellants, but they fled away - injured
taken to hospital - died - Due to enmity between
the appellants & her husband, on account of civil &
criminal litigation as well as a family partition, her
husband was killed.(Para - 2)

HELD:- This is a case of blind murder, no one
actually witnessed the incident and the FIR
was lodged on the basis of guess-work and
suspicion and the appellants have been
implicated on account of suspicion because of
the previous enmity. Even the possibility of the
FIR being ante-timed cannot be ruled out as at
the time of conducting inquest the G.D. Entry
of the Chick FIR was not available and the
dispatch time of the Special Report has not
been proved by the prosecution - prosecution
has failed to prove the charge of offences
punishable under Section 302 read with
Section 34 and Section 452 IPC against the
appellants beyond reasonable doubt. As the
evidence on record does not

## Text

3 All. Mukesh Tiwari Vs. State of U.P.
999
common design is tantamount to actual
participation in the criminal act. The act
need not necessarily be overt, even a covert
act is enough, provided such a covert act is
proved to have been done by the coaccused in furtherance of the common
intention. To invoke Section 34 IPC two
factors must be established : (i) common
intention and (ii) participation of the
accused in the commission of an offence.
To fasten the liability u/s 34 IPC an act,
whether overt or covert, is indispensable to
be done by a co-accused. If no such act is
done by a person, even if he has common
intention
with
the
others
for
the
accomplishment of the crime, Section 34,
IPC cannot be invoked for convicting that
person. In other words, the accused who
only keeps the common intention in his
mind, but does not do any act at the scene,
cannot be convicted with the aid of Section
34, IPC. To ascertain common intention,
totality of circumstances must be taken into
consideration in arriving at the conclusion
whether the accused had the such intention
to commit an offence of which he could be
convicted.

54. Thus, this Court after scrutinizing
the evidence lead by the prosecution and
the defence of the accused, who had only
pleaded for his false implication in the
present case and has not denied his
presence at the place of occurrence, and his
previous conduct goes to show that the
appellant has played an active role in the
instant case by instigating the co-accused
persons for killing the deceased and uttered
"Maro sale ko aaj bachne na paye" on
which co-accused persons have committed
the murder of the deceased with their
respective rifles in broad day light which
had been witnessed by P.W. 1 and 2,
namely, Vijay Kumar Yadav (informant)
and Smt. Kumkum Yadav, who are son and
daughter-in-law of the deceased and the
ocular testimony is corroborated by the
medical evidence and considering the law
laid down by the Apex Court in cases
referred above regarding exhortation, we
are of the opinion that the trial Court has
rightly
convicted
and
sentenced
the
appellant for the offence under section
302/34 I.P.C., hence does not require any
interference by this Court. The impugned
judgment and order passed by the trial
Court is hereby upheld.

55. The appeal lacks merit and is
accordingly, dismissed.

56. The appellant is stated to be in
jail. He shall remain in jail to serve out the
sentence as has been awarded by the trial
Court.
----------
(2021)03ILR A999
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 04.03.2021

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SANJAY KUMAR PACHORI, J.

Criminal Appeal No. 1876 of 2009
With
Criminal Appeal No. 1541 of 2009

Mukesh Tiwari ...Appellant(In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Lav Srivsastava, Sri Adhya Shankar
Chaturvedi, Sri I.K. Chaturvedi, Sri Pradeep
Kumar Mishra, Sri Ranjan Kumar, Sri
Sanjay Kumar, Sri V.P. Srivastava, Sri S.K.
Chaubey

Counsel for the Opposite Party:
1000 INDIAN LAW REPORTS ALLAHABAD SERIES
A.G.A.

(A)
Criminal
Law
-
Appeals
from
Conviction - Indian Penal Code, 1860 -
Section 452, 302 read with section 34 -
The Code of criminal procedure, 1973 -
Section 313 - delay in lodging the FIR
does
not
make
prosecution
case
improbable when such delay is properly
explained, but a deliberate delay in
lodging the FIR may prove fatal - cases
where there is a delay in lodging the FIR,
the court has to look for a plausible
explanation for such delay - even though
the existence of motive loses significance
when there is reliable ocular account but
where the ocular testimony appears to be
suspect the existence or absence of
motive
acquires
some
significance
regarding
the
probability
of
the
prosecution case. (Para - 39,48)

(B) Criminal Law - The Code of criminal
procedure,
1973
-
defect
in
the
investigating by itself cannot be ground
for acquittal - Prosecution case cannot be
doubted merely on the ground of nonrecovery of 'empties' fired from the Katta
at the deceased, or non-recovery of the
lantern from the place of the incident, or
non-recovery of the hockey stick and the
knife - any omission on the part of the
Investigating Officer cannot go against
the prosecution case if it is otherwise
supported
by
reliable
and
credible
evidence - investigation is not the solitary
area for judicial scrutiny in a criminal trial.
(Para - 84,85)

F.I.R. lodged by PW-1 (wife of deceased) - PW-1 &
her husband (deceased) & brothers were sleeping
in a room of their house on the intervening night -
At around 2:00 a.m., she woke up hearing rattle
upon entry of persons in her room - door of the
room was open and a lantern was lit - saw the
appellants with a hockey stick, knife and a Katta in
their hand - attacked husband with a hockey stick
- shot at point-blank range on his neck, her
husband fell down after receiving firearm injury -
PW-2 & other woke up on hearing cries - tried to
catch the appellants, but they fled away - injured
taken to hospital - died - Due to enmity between
the appellants & her husband, on account of civil &
criminal litigation as well as a family partition, her
husband was killed.(Para - 2)

HELD:- This is a case of blind murder, no one
actually witnessed the incident and the FIR
was lodged on the basis of guess-work and
suspicion and the appellants have been
implicated on account of suspicion because of
the previous enmity. Even the possibility of the
FIR being ante-timed cannot be ruled out as at
the time of conducting inquest the G.D. Entry
of the Chick FIR was not available and the
dispatch time of the Special Report has not
been proved by the prosecution - prosecution
has failed to prove the charge of offences
punishable under Section 302 read with
Section 34 and Section 452 IPC against the
appellants beyond reasonable doubt. As the
evidence on record does not bring home the
guilt of the appellants beyond the pale of
doubt, the appellants are entitled to the
benefit of doubt. Consequently, the appellants
are entitled to be acquitted of all the charges
for which they were tried - judgment and order
of conviction as well as sentence recorded by
the trial court is set aside. (Para - 88,90,91)

Criminal appeals allowed. (E-6)

List of Cases cited:

1. Meharaj Singh & Ors. v. St. of U. P. & Ors,
(1994) 5 SCC 188

2. Thulia Kali v. The St. of Tamil Nadu, (1972) 3
SCC 393

3. Satpal Singh v. St. of Haryana, (2010) 8 SCC
714

4. Darbara Singh v. St. of Punj. (2012) 10 SCC
476

5. The St. of U. P. v. Hari Prasad & Ors., (1974)
3 SCC 673

6. Badam Singh v. St. of M. P., (2003) 12 SCC
792

7. Yogesh Singh v. Mahabeer Singh & Ors.,
(2017) 11 SCC 195
3 All. Mukesh Tiwari Vs. State of U.P.
1001
8. Rammi @ Rameshwar v. St. of M. P.,(1993) 8
SCC 649

9. Leela Ram (dead) through Duli Ch& v. St. of
Haryana & Anr., (1999) 9 SCC 525

10. Bihari Nath Goswami v. Shiv Kumar Singh &
Ors., (2004) 9 SCC 186

11. Vijay @ Chinee v. St. of M.P., (2010) 8 SCC 191

12. Sampath Kumar v. Inspector of Police,
Krishnagiri, (2012) 4 SCC 124

13. Shyamal Ghosh v. St. of Bengal,(2012) 7
SCC 646

14. Mritunjoy Biswas v. Pranab @ Kuti Biswas &
Anr.,(2013) 12 SCC 796

15. Balaka Singh & Ors. v. St. of Punj., AIR
1975 SC 1962

16. Zwinglee Arivel v. St. of M.P., AIR 1954 SC 15

17. Vadivelu Thevar v. The St. of Madras, AIR
1957 SC 614

18. Kusti Mallaiah vs St. of A.P., (2013) 12 SCC
680

19. Lallu Manjhi & Anr. v. St. of Jharkh&, (2003)
2 SCC 401

20. Jhapsa Kabari & Ors. v. St. of Bihar,
(2001)10 SCC 94

21. Yogesh Singh v. Mahabeer Singh & Ors.,
(2017) 11 SCC 195

22. Ramashish Rai v. Jagdish Singh, (2005) 10
SCC 498 C.

23. Muniappan & Ors. v. St. of Tamil Nadu, AIR
2010 SC 3718

(Delivered by Hon'ble Sanjay Kumar Pachori, J.)

1. The present appeals are filed
against the judgment and order passed by
Special Judge/Additional Sessions Judge,
Ballia, on 28.2.2009 in Sessions Trial No.
51 of 2008 by which the appellants Indrajit
Mishra, Sanjit Mishra and Mukesh Tiwari
have been convicted for the offences
punishable under Section 452, 302 read
with section 34 Indian Penal Code (in short
"I.P.C."). The punishment awarded to the
appellants for their conviction noticed
above is as follows; imprisonment for life
with a fine of Rs. 5,000/- each and default
sentence of six months under section 302
read with section 34 I.P.C., and five year's
rigorous imprisonment with fine of Rs.
5000/- each and default sentence of six
months additional imprisonment under
Section 452 I.P.C. The sentences were
directed to run concurrently. Since the
abovementioned appeals arise from a
common judgment of the trial court, it will
be proper for us to deal with these appeals
in a common judgment.

PROSECUTION CASE

2. The Prosecution case in brief, as
could be elicited from the First Information
Report (in short FIR) lodged by Smt.
Manorama Devi (PW-1) is that Smt.
Manorama Devi and her husband Pratap
Shankar Mishra (deceased) were sleeping
in a room of their house on the intervening
night of 29/30.7.2007. Her brothers Ajit
Narayan Pathak (PW-2) and Lalit Narayan
Pathak (not examined) were also sleeping
in the courtyard at that time. At around
2:00 a.m., she woke up hearing a rattle
upon entry of persons in her room. At that
time door of the room was open and a
lantern was lit. She saw the appellants
Indrajit Mishra with a hockey stick, Sanjit
Mishra with a knife and Mukesh Tiwari
with a Katta in their hand. Indrajit Mishra
attacked her husband with a hockey stick.
Her husband got up from the cot and tried
to run towards the courtyard but Indrajit
1002 INDIAN LAW REPORTS ALLAHABAD SERIES
Mishra and Sanjit Mishra caught him at the
door of the room and Mukesh Tiwari shot
at point-blank range on his neck, her
husband fell down after receiving firearm
injury. Ajit Narayan Pathak (PW-2) and
Lalit Narayan woke up on hearing her
cries. They tried to catch the appellants, but
they fled away by jumping over the
boundary wall. The injured was taken to
the hospital, where he died. Due to enmity
between the appellants and her husband, on
account of civil and criminal litigation as
well as a family partition, her husband was
killed.

3. After the incident, CP-337
Kanhaiya Yadav (PW- 4) along with SubInspector1 Surendra Yadav (not examined)
while on patrol duty, reached the place of
occurrence on hearing the gunshot and
noise. The injured Pratap Shankar Mishra
was brought from the spot to District
Hospital Ballia by Tata 407 vehicle with
Mazarubi Chitthi (not proved). In the
District Hospital, at about 3:50 a.m., he
succumbed to the injuries. Ajit Narayan
Pathak (PW-2) informed Smt. Manorama
Devi, at 4:30 a.m., about her husband's
death.

4. The First Information Report dated
30.7.2005 (Ex.Ka-2) was registered as case
crime No. 117 of 2007 under section 302
I.P.C. against the appellants at Police
Station-Reoti, District Ballia, at 5:20 a.m.
by CP-598 Deo Nath Singh (PW-3), on the
basis of a written complaint (Ex.Ka-1) of
Smt. Manorama Devi (PW-1) which was
scribed by Ajit Narayan Pathak (PW-2).
The
distance
between
the
place
of
occurrence and the Police Station is 1/2
Km.

5. On 30.7.2007, S.I. Hasmat Khan
(PW-7) started the investigation of the case
and after inspecting the place of the
incident, as pointed out by the informant
(PW-1), he prepared a site map (Ex.Ka-8)
of the place of the incident. He also
recovered blood-stained and plain earth
from the place of the incident and prepared
a
seizure
memo
(Ex.Ka-9).
The
proceedings of the inquest were completed
at about 1:30 p.m. by S.I. Hari Prasad
Vishwakarma (PW-8) at the mortuary of
District Hospital Ballia and inquest report
(Ex.Ka-7) was prepared on the basis of
death
information
Memo
(Ex.Ka.-5)
received from the Hospital. He also
prepared other police papers (Ex.Ka- 13 to
Ex.Ka-17) for getting a post-mortem of the
body of the deceased.

6. PW-5 Dr. B. Narayan conducted
the post-mortem examination of the body
of the deceased on 30.7.2005 at 4:45 p.m.
The
post-mortem
report
(Ex.Ka.-6)
disclosed the presence of 4 ante-mortem
injuries on the corpse of Pratap Shankar
Mishra (aged about 35 years). These are as
under:

1. Wound of entry of firearm size
0.6 cm x 0.6 cm x cavity deep present on
the middle of neck 3 cm above from Supra
external notch, margins inverted, burning &
blackening present around the wound, sign
of tattooing present on the front of chest,
both upper arms and face 10 inches all
around the wound, abrasion collar present.

2. Wound of exit of firearm size 2
cm x 1.5 cm present on right side of back
of chest just below the scapula bone edge
of the wound were everted, 15 cm below
the right shoulder, injury no. 1 & 2 are
interconnected to each other.

3. Abrasion 2.5 cm x 2.0 cm
present just below the beard.
3 All. Mukesh Tiwari Vs. State of U.P.
1003

4. Abrasion 2.5 cm x 2.0 cm
present over chin anterior aspect, 3 cm
behind the injury no. 3.

The doctor opined that the death
was caused due to shock and haemorrhage
as a result of ante-mortem injuries about
one day before the post-mortem. Internal
examination disclosed semi-digested food
in the stomach, and 6th rib of the right side,
3rd and 4th bone of trachea fractured. The
doctor further noticed that the deceased
was brought dead by CP-337 Kanhaiya
Yadav at 3:50 a.m. on 30.7.2007.

7. During the course of the
investigation, on 4.8.2007 at 5:00 a.m.,
PW-7 S.I. Hasmat Khan arrested the
appellant Mukesh Tiwari and recovered an
unlicensed pistol (Katta) .315 bore with a
cartridge, on the disclosure statement and
pointing out of the appellant Mukesh
Tiwari, from near northern wall of
Bajrangbali temple at Chaubey Chhapra
Dhala Road, and prepared a seizure memo
(Ex.Ka-10). After completion of the
investigation, PW-7 S.I. Hasmat Khan
submitted a charge sheet (Ex.Ka-21)
against the appellants under Sections 452,
302 I.P.C. and under Sections 25/27 Arms
Act. The court took cognizance. On
committal, the trial court framed charges
against the appellants under Sections 452
and 302 read with Section 34 I.P.C. The
appellants denied the charges and claimed
trial.

8. In order to substantiate the charges
against the appellants, the prosecution
examined as many as 8 witnesses. PW-1 Smt.
Manorama Devi, PW- 2 Ajit Narayan Pathak
were examined as eye-witnesses; PW-4 CP
Kanhaiya Yadav who was on patrol duty and
had reached the place of the incident on
hearing the gunshot and noise was examined
to provide link evidence. He had taken the
injured Pratap Shankar Mishra to the hospital
along with the informant's brothers Ajit
Narayan Pathak and Lalit Narayan Pathak.
He had also informed the police station
Kotwali Ballia vide Memo (Ex.Ka.-5) at 4:30
a.m. on 30.7.2007.

9. The prosecution also examined an
array of formal witnesses, namely, PW-3 CP
Deo Nath Singh (scribe of the F.I.R.), PW- 5
Dr. B. Narayan, PW- 6 CP 640 Virendra Rai
(who took the dead body of the deceased to
the Police Line, Ballia), PW- 7 S.I. Hasmat
Khan investigating officer2, PW- 8 S.I. Hari
Prasad Vishwakarma (who prepared the
inquest report), to prove the exhibited
documents and material objects produced. A
Forensic Scientific Laboratory report (Paper
No. 33Ka/1 and 33Ka/2) has also been
submitted
by
the
prosecution.
The
prosecution proved certain material exhibits,
namely, unlicensed pistol (Katta) .315 bore as
material Ex.No.-1 and used cartridge as
material Ex.No.-2.

10. The accused persons were
examined under section 313 of the Code of
Criminal Procedure (in short 'Cr.P.C.')
wherein they denied the incriminating
evidence put to them and stated that they
have been falsely implicated on account of
enmity. The appellants Indrajit Mishra and
Sanjit Mishra stated that they had been
residing at Village Suremanpur with their
families in the house of Sanjay Maurya (DW1) for the last 7-8 years and were running a
clinic there. On the night of the incident, wife
of Sanjay Maurya was admitted to their clinic
and they were treating Sanjay Maurya's wife.
The police arrested them from their clinic at
4:00 a.m. on 30.7.2007.

11. The appellant Mukesh Tiwari
stated in his statement under Section 313
Cr.P.C that at the time of the incident Smt.
1004 INDIAN LAW REPORTS ALLAHABAD SERIES
Manorama Devi was doing service as
Shiksha Mitra and in connection therewith
had been residing in her maternal home at
Village Shivpur. After the death of her
husband, the Police called her from Village
Shivpur to lodge the report. She had got a
registered Power of Attorney of the
property from the mother of the deceased
which was later cancelled. The appellants
filed few certified copies as documentary
evidence and examined DW-1 Sanjay
Maurya and DW-2 Rajendra Prasad (SubRegistrar) in support of their defence.

12. Before the trial court the
appellants came with a specific case that
when the police took the injured Pratap
Shankar Mishra to the District Hospital
Ballia from the place of the incident, at that
time, and at the time of the incident, PW-1,
Smt. Manorama Devi was present in her
maternal home at Village Shivpur because
she lived there in connection with her
service as Shiksha Mitra, which is at a
distance of 12-14 Km from the place of the
incident. It was also the appellants' case
that PW-1 and PW-2 Ajit Narayan Pathak
were informed and called by the Police
after the death of Pratap Shankar Mishra;
and that the testimony of eyewitnesses PW1 and PW-2 is full of contradictions and
omissions. The appellants Indrajit Mishra
and Sanjit Mishra further pleaded that they
had been arrested at 4:00 a.m. on the day of
the incident from their clinic at Village
Surmanpur, wherein they were treating the
wife of DW-1 Sanjay Maurya. They also
took the plea that the motive assigned to
Mukesh Tiwari has not been proved.

FINDINGS OF THE TRIAL
COURT

13. The trial court discarded the
documentary evidence filed by the defence
i.e. residence certificate of the year 2001,
income certificate of PW-1 Smt. Manorama
Devi, and held that on the basis of such
evidence it can not be held that at the time
of incident PW-1 Smt. Manorama Devi was
not present at the place of occurrence.

14. The trial court found that after the
incident, the injured Pratap Shankar Mishra
was brought to the District Hospital Ballia
by PW-2 Ajit Narayan Pathak and Lalit
Narayan Pathak along with PW-4 CP
Kanhaiya Yadav. The distance between the
District Hospital Ballia and the place of
incident is about 30 Km, where Pratap
Shankar Mishra was declared dead at 3:50
a.m. and the FIR was lodged at 5:20 a.m. It
found that there was ample reason for Ajit
Narayan Pathak not to lodge the FIR on the
way to the hospital because he had not seen
the incident. Therefore, there is no such
delay in lodging in the FIR, in as much as,
PW-1 Smt. Manorama Devi, who had been
the eye witness, lodged the FIR against the
accused-appellants with full disclosure of
the facts, shortly after the death of her
husband.

15. The trial court further found that
on the night of the incident there was a full
moon and a lantern was also lit near the
place of occurrence, the accused-appellants
were well known to the witnesses,
therefore, there was sufficient opportunity
to identify the accused-appellants. It held
that
on
account
of
failure
of
the
investigating officer to recover the lantern
from the place of the occurrence, it can not
be presumed that there was no sufficient
light. It held that even if PW- 2 Ajit
Narayan Pathak had not seen the accusedappellants, PW-1 Smt. Manorama Devi,
wife of the deceased, was sleeping in the
room and, therefore, her testimony as eyewitness is natural.
3 All. Mukesh Tiwari Vs. State of U.P.
1005

16. The trial court observed that
though the investigating officer mentioned
the name of Udit Narayan in case diary in
place of Lalit Narayan but since Smt.
Manorama Devi (PW-1) had clearly stated
that Lalit Narayan and Ajit Narayan were
sleeping at her house on the night of the
incident, the accused persons cannot get the
benefit
of
the
error
made
by
the
investigating officer. Thus, by placing
reliance on the testimony of PW-1, the trial
court concluded that the prosecution
successfully proved the charges against the
appellants under Section 452, 302 read with
Section 34 I.P.C., beyond all reasonable
doubt and thereby convicted and sentenced
the appellants as above.

17. Being aggrieved by the trial
court's order, the appellants have preferred
these appeals.

SUBMISSIONS
BEFORE
THIS COURT

18. We have heard Sri V. P.
Srivastava, learned Senior counsel assisted
by Sri A. S. Chaturvedi for the appellant
Mukesh Tiwari; Sri Amit Mishra, learned
counsel for the appellants Indrajit Mishra
and Sanjit Mishra; Sri Patanjali Mishra,
learned A.G.A., for the State; and Sri S. K.
Chaubey, learned counsel for the informant
and have perused the record.

19. Learned counsel for the appellants
vehemently
urged
that
PW-1
Smt.
Manorama Devi and PW-2 Ajit Narayan
Pathak had not seen the incident. The
presence of alleged eyewitnesses PW-1 and
PW-2 at the time of the incident is highly
doubtful and unbelievable because at the
time of the incident PW-1 and PW-2 were
present in Village Shivpur, both of them
were informed and called by the Police
after the death of injured Pratap Shankar
Mishra, and it is for this reason that the FIR
has been lodged after 3.20 hours. This
delay
is
fatal
to
the
prosecution,
particularly, because the distance between
the place of the incident and the police
station is only 1/2 Km. The minute
description in the first information report
also suggests that it has been lodged after
legal consultation and deliberation.

20. Learned counsel for the appellants
further submitted that there are material
contradictions/omissions
in
the
oral
testimony of PW- 1 Smt. Manorama Devi
and PW- 2 Ajit Narayan Pathak with regard
to their presence at the time of the incident.
There is a contradiction in the testimony of
PW-4 CP Kanhaiya Yadav and PW-7 S.I.
Hasmat Khan in respect of the presence of
eye-witnesses. Though appellants-accused
persons were alleged to have
been
recognized in the light of the lantern, but
the lantern was not recovered by the
investigating officer. The gunshot injury
could not be caused in the manner and from
the place where the appellants were alleged
to be present at the time of firing the
gunshot. There is a material contradiction
between the testimony of PW-1 Smt.
Manorama Devi and PW-5 Dr. B. Narayan
in respect to injury no. 1. The role of
catching hold of the deceased has been
attributed to the appellants Indrajit Mishra
and Sanjit Mishra even though the shot has
allegedly been fired from a point-blank
range and the bullet entered the body from
the middle of the neck just above Supra
external notch and exited the body from the
back of right side of the chest just below
scapula bone, which renders the ocular
account highly unbelievable.

21. Learned counsel for the appellants
further contended that the trial court