# Nasir @ Guddu (In Jail) v. State of U.P

- **Citation:** (2022) 12 ILRA 769
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-12-12
- **Case number:** Criminal Appeal No. 5669 of 2018
- **Bench:** Ashwani Kumar Mishra, Shiv Shanker Prasad
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nasir-guddu-in-jail-v-state-of-u-p-48038
- **Pages:** 17

## Headnote

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 161, 313 & 437(A)
- Indian Penal Code, 1860 - Section - 34,
120-B, 302, 307 & 452 - India Evidence
Act, 1872 - Section - 134 - Criminal Appeals
- challenging the order of Conviction &
Sentence - Life imprisonment in U/s 302/34, 10
years of RI U/s 307/24 & 2 years of RI U/s
452/34 of IPC with fines - Evaluation of
Evidence - offence of Murder - FIR - informant
alleged that accused appellants come in green tshirt and with intension to kill fired upon him by
country-made due to which he sustained
gunshot
injuries
resulted
companion
of
informant was died during treatment - in the
St.ment U/s 313 accused appellants denied their
involvement - accused appellant Ravindra has
made it clear that the informant due to harbour
resentment a false accusation has been made
against him - it is note that PW-1 & PW2 has
turned hostile and did not support the
prosecution case in their testimonies - In FIR
alleged that murder has been committed with a
country made pistol but, from investigation &
Post mortem report it reflect that a rifle was
used - court finds that, there are contradiction
with regards to fire arm used as well as
direction gunshot - which creates doubt in the
prosecution story - further conduct & testimony
of PW-8 (wife of deceased) also create grave
doubt in prosecution story against Ravindra
beyond doubtful - resulting, impinged orders of
conviction & sentence is liable to be quashed for
appellant Ravindra
- direction issued
for
releasing him accordingly. (Para - 16, 17, 18,
19)

(B) Criminal Law - Criminal Procedure
Code, 1973 - Sections 161, 313 & 437(A)
- Indian Penal Code, 1860 - Sections 34,
302, 307 & 452 - India Evidence Act, 1872
770 INDIAN LAW REPORTS ALLAHABAD SERIES
- Section 134
-
Criminal Appeals
-
challenging
the
order
of
Conviction
&
Sentence - Life imprisonment in U/s 302/34,
10 years of RI U/s 307/24 & 2 years of RI
U/s 452/34 of IPC with fines - Appreciation
of Evidence of witnesses - offence of Murder
- FIR - informant alleged that accused
appellants come in green t-shirt and with
intension to kill fired upon him by countrymade due to which he sustained gunshot
injuries resulted companion of informant was
died during treatment - PW-8 is solitary eye
witness who is examination-in-chief as well
as in her cross examination fully support the
prosecution case against Nasir @ Guddu and
her St.ment fully corroborates with the
autopsy report and site plan as well as with
other documentary evidence available on
record - it is settled law that court can and
may act on the testimony of a single witness
provided he/she is reliable - further, it is also
a settled law that it is the quality that
matters and not the quantity of witness -
moreover PW-8 clearly assigned the role of
firing only upon the accused-appellant Nasir
@ Guddu - Court finds that, finding of court
below with regards to the accused -appellant
Nasir @ Guddu is correct and the guilt of
Nasir @ Guddu has been proved beyond
reasonable doubt by the prosecution -
consequently, Appeal filed by Nasir @ Guddu
is accordingly dismissed. (Para - 42, 43, 44,
47, 50)

List of Cases cited:

## Text

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12 All. Nasir @ Guddu Vs. State of U.P.
769
of offence. Hon'ble Apex Court, as
discussed above, has held that undue
harshness should be avoided taking into
account
the
reformative
approach
underlying in criminal justice system.

37. Learned AGA also admitted the
fact that appellant is languishing in jail for
the last more than 12 years. Since, the
appellant has already served 12 years in
jail, ends of justice will be met if sentence
is reduced to the period already undergone.

38. Hence, the sentence awarded to
the accused-appellant by the learned trialcourt is modified as period already
undergone and the fine awarded for Rs.1
lacs is set aside. Conviction and sentence
for the offence under Section 302 I.P.C. is
hereby set aside.

39. Accordingly, the appeal is partly
allowed with the modification of the
sentence, as above. The accused-appellant
shall be released forthwith, if not wanted in
any other case.

40. Let a copy of this judgment along
with the trial court record be sent to the
court below and jail authorities concerned
for compliance.
----------
(2022) 12 ILRA 769
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 12.12.2022

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE SHIV SHANKER PRASAD, J.

Criminal Appeal No. 5669 of 2018
With
Criminal Appeal No. 6271 of 2018

Nasir @ Guddu ...Appellant (In Jail)
Versus
State of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Shamsuddin Ahmad, Sri Brijesh Kumar
Pandey, Sri Saghir Ahmad, Sr. Advocate

Counsel for the Opposite Party:
G.A.

(A) Criminal Law - Criminal Procedure
Code, 1973 - Sections 161, 313 & 437(A)
- Indian Penal Code, 1860 - Section - 34,
120-B, 302, 307 & 452 - India Evidence
Act, 1872 - Section - 134 - Criminal Appeals
- challenging the order of Conviction &
Sentence - Life imprisonment in U/s 302/34, 10
years of RI U/s 307/24 & 2 years of RI U/s
452/34 of IPC with fines - Evaluation of
Evidence - offence of Murder - FIR - informant
alleged that accused appellants come in green tshirt and with intension to kill fired upon him by
country-made due to which he sustained
gunshot
injuries
resulted
companion
of
informant was died during treatment - in the
St.ment U/s 313 accused appellants denied their
involvement - accused appellant Ravindra has
made it clear that the informant due to harbour
resentment a false accusation has been made
against him - it is note that PW-1 & PW2 has
turned hostile and did not support the
prosecution case in their testimonies - In FIR
alleged that murder has been committed with a
country made pistol but, from investigation &
Post mortem report it reflect that a rifle was
used - court finds that, there are contradiction
with regards to fire arm used as well as
direction gunshot - which creates doubt in the
prosecution story - further conduct & testimony
of PW-8 (wife of deceased) also create grave
doubt in prosecution story against Ravindra
beyond doubtful - resulting, impinged orders of
conviction & sentence is liable to be quashed for
appellant Ravindra
- direction issued
for
releasing him accordingly. (Para - 16, 17, 18,
19)

(B) Criminal Law - Criminal Procedure
Code, 1973 - Sections 161, 313 & 437(A)
- Indian Penal Code, 1860 - Sections 34,
302, 307 & 452 - India Evidence Act, 1872
770 INDIAN LAW REPORTS ALLAHABAD SERIES
- Section 134
-
Criminal Appeals
-
challenging
the
order
of
Conviction
&
Sentence - Life imprisonment in U/s 302/34,
10 years of RI U/s 307/24 & 2 years of RI
U/s 452/34 of IPC with fines - Appreciation
of Evidence of witnesses - offence of Murder
- FIR - informant alleged that accused
appellants come in green t-shirt and with
intension to kill fired upon him by countrymade due to which he sustained gunshot
injuries resulted companion of informant was
died during treatment - PW-8 is solitary eye
witness who is examination-in-chief as well
as in her cross examination fully support the
prosecution case against Nasir @ Guddu and
her St.ment fully corroborates with the
autopsy report and site plan as well as with
other documentary evidence available on
record - it is settled law that court can and
may act on the testimony of a single witness
provided he/she is reliable - further, it is also
a settled law that it is the quality that
matters and not the quantity of witness -
moreover PW-8 clearly assigned the role of
firing only upon the accused-appellant Nasir
@ Guddu - Court finds that, finding of court
below with regards to the accused -appellant
Nasir @ Guddu is correct and the guilt of
Nasir @ Guddu has been proved beyond
reasonable doubt by the prosecution -
consequently, Appeal filed by Nasir @ Guddu
is accordingly dismissed. (Para - 42, 43, 44,
47, 50)

List of Cases cited:

1. Pandurang Vs St. of Hyderabad, AIR 1955 SC
216

2. Suresh & anr. Vs St. of U.P.h, (2001) 3 SCC
673

3. Balbir Singh Vs St. of M.P., (2019) 15 SCC 599

4. Vadivelu Thevar& anr. Vs St. of Madras, AIR
1957 SC 614

5. Prithipal Singh & ors.Vs St. of Punj.& anr.,
(2012) 1 SCC 10

6. Gulam Sarbar Vs St. of Bihar (Now
Jharkhand), (2014) 3 SCC 401
(Delivered by Hon'ble Shiv Shanker
Prasad, J.)

1. These two appeals have been
preferred against a common judgment and
order dated 18th September, 2018 passed
by the Additional District & Sessions
Judge, Court No.2, Ghaziabad in Sessions
Trial No. 787 of 2007 (State Vs. Ravindra
& Nasir @ Guddu), arising out of Case
Crime No. 514 of 2006, under Sections
452/34, 307/34, 302/34 and 120-B/34
I.P.C., Police Station-Vijaynagar, DistrictGhaziabad, whereby both the appellants
have been convicted and sentenced to two
years rigorous imprisonment each under
Section 452/34 I.P.C. with a fine of Rs.
1,000/- each and in default thereof, they
have to further undergo one month
additional imprisonment; ten years rigours
imprisonment each under Section 307/34
I.P.C. with fine of Rs. 10,000/- each and in
default thereof, they have to further
undergo
six
months
additional
imprisonment each; and life imprisonment
under Section 302/34 IPC, with fine of Rs.
10,000/- each and in default thereof, they
have to further undergo six months
additional imprisonment. Both the appeals
are thus being decided by means of this
common judgment and order.

2. We have heard Mr. Saghir Ahmad,
learned Senior Counsel assisted by Mr.
B.K. Pandey, learned counsel for the
accused appellant Nasir @ Guddu and Mr.
Vijay Kumar Srivatava, learned counsel for
the accused appellant- Ravindra and Mr.
Arunendray Singh, learned A.G.A.. for the
State and also perused the entire materials
available on record.

3. The prosecution story is that on the
basis of written report of the informant-
P.W.-1 Sanjay dated 27th August, 2006
12 All. Nasir @ Guddu Vs. State of U.P.
771
(Exhibit-Ka/1) scribed by Balveer Singh, a
first information report (Exhibit-Ka/7) has
been lodged on 27th August, 2006 at 2330
hrs. against the accused-appellant Ravindra
and one unknown person alleging therein
that Guddu used to live in the house of
informant Sanjay on rent. On August 27,
2006, at around 10:00 p.m. (night), while
the informant/P.W.1 was having his dinner
in Guddu's room along with Guddu and his
wife, Ravindra and one other person
wearing a green shirt, came and Ravindra
called Guddu and the informant to come
out on which they came out. Ravindra said
that he after dropping his companion,
would come again within two minutes.
After dropping his companion, Ravindra
came again and called Guddu to come out
from his room. The first informant however
called Guddu to come back in the room.
The companion of Ravindra immediately
came on the door of the room of Guddu and
with a intention to kill Guddu, fired upon
him by country-made pistol (Tamancha),
which was in his hand, due to which Guddu
sustained three gun shots. When the
informant tried to save Guddu, that
unknown
person
i.e.
companion
of
Ravindra with intention to kill fired upon
him due to which he also sustained gun
shot injuries. The people of locality had
taken Guddu to MMG hospital while the
first informant/P.W.-1 got himself treated
at Sanjeevani hospital and then came to
lodge the report.

4. After lodging of the first
information
report,
the
Investigating
Officer/P.W.-12 inspected the spot and
prepared the site plan (Exhibit-ka/5). He
also collected the blood stained clothes and
pillow cover and prepared the recovery
memo of the same. He also took blood
stained piece of floor (marble). He also
took an empty cartridge. The Investigating
Officer has also recorded the statement of
the informants, scriber of the written report
and other witnesses. The injured Guddu,
who was admitted in G.T.B. Hospital
Shahdara, Delhi on 27th August, 2006 was
declared dead by the Doctor vide death
report dated 28th August, 2006 (ExhibitKa/10). The dead body of the deceased was
sealed and sent for post-mortem under the
supervision of Assistant Sub-Inspector
Hukum Singh/P.W.-7 after doing inquest of
the body of the deceased at G.T.B.
Hospital.

5. The autopsy of the deceased was
conducted on the same day i.e. 28th
August, 2006 at 03.00 p.m. by Dr. Barkha
Gupta (P.W.-5). In the opinion of P.W.-5,
the cause of death of deceased was
haemorrhage shock due to Ante-mortem
injury of internal abdominal organs. P.W.-5
has further opined that the injuries were
antemortem and caused by projectile of a
rifled firearm ammunition and injury no. 1
is sufficient to cause death in ordinary
course of nature. The P.W.-5 has found
following external ante-mortem injuries on
the body of the deceased, which are as
under:

"1. Firearm entry wound 0.5 cm x
0.5 cm surrounded abrasion collar 0.1 cm
in thickness all around except on upper
part where it is 0.2 cm, situated on midline
at epigastria region 19.0 cm below external
notch and 21.0 cm above umbilicus. On
exploration track of the wound is going
backward and downward and to the left
entering into abdominal cavity after
piercing the peritoneum going through and
through from left lobe of liver than going
through and through from stomach and
injuring the intestine in the path of track
than entering into the muscles of the
anterior wall of abdomen and coming out
772 INDIAN LAW REPORTS ALLAHABAD SERIES
by making an exit wound 0.5 cm x 0.5 cm
with everted margins and fat protruding
out situated 23.0 cm to left from midline
and 3.0 cm above left anterior superior
iliac spine. 1500 ml of liquid and clotted
blood present in abdominal cavity.

2. Firearm entry wound 0.5 cm x
0.5 cm situated on the right shoulder top
with inverted margins. 9.0 cm inside the
shoulder tip and 7.0 cm outer to the right
from the root of the neck. On exploration the
track
of
the
wound
going
medially
downward in the soft tissues of the back of
the chest and bullet was found lodged
between vertebrae T2 and T3. Lead bullet
1.3cm in length and 0.8 cm in diameter."

6. Medico Legal Case Report (ExhibitKa/15) qua the death report/certificate of the
deceased has also been given by Dr. Anil
Yadav (P.W.-11) on 28th August, 2006 and
he has opined as follows:

"1. Penetration injury below the
costal angle ( 0.5 cm in diameter) and at the
left iliac fossa ( 0.5cm in diameter)

Imp- Gunshot injury could not be
ruled out."

7. The informant/P.W.1 has also been
medically examined externally by Dr. Anil
Prakash (P.W.-9) at District (M.M.G.)
Hospital, Ghaziabad and he has found
following injuries on the body of the
informant:

"1. Linear abrasion 8cm x 1cm due
to GSW (Gun Shot Wound) on right side of
chest 4.5 cm below right nipple at 7 o'clock
position. Red colored medicine is present on
this abrasion. Slight blackening in area of 9
cm x 1.5 cm around this wound.

2. Wound of entry of GSW (Gun
Shot Wound) on front and inner aspect of
upper part of left knee, its size 1 cm x 1 cm x
1.5 cm. Adv. X-ray

3. Abrasion 1cm x 1 cm on outer
aspect of middle of left knee, 3cm below and
outer to injury no. 2."

P.W.-9 has opined that Injury no. 1
and 3 found on the body of informant/P.W.-1
are in simple nature. Injury no. 2 is KUO
(Kept Under Observation). Injury no. 1 and 2
are caused by firearm injury. Injury no. 3 is
caused by hard blunt object."

8. The X-ray of left knee joint of the
informant/P.W.1 has been conducted by Dr.
Rajndra Prasad (P.W.-10) and as per the Xray report, he has opined that a radio opaque
of metallic density is found in the left knee
joint of the informant.

9. The investigation proceeded and after
completion of statutory investigation in terms
of Chapter XII Cr.P.C., the Investigating
Officer submitted the charge-sheet (ExhibitKa/6) dated 8th November, 2006 against the
accused-appellants.
The
Magistrate
concerned took cognizance of the offence on
the charge-sheet and as the case was triable
by the court of sessions, committed the case
to the court of Sessions resultantly, the same
was registered as Sessions Trial No. 787 of
2007 (State Vs. Ravindra & Nasir @ Guddu),
arising out of Case Crime No. 514 of 2006,
under Sections 452/34, 307/34, 302/34 and
120-B/34 I.P.C., Police Station-Vijaynagar,
District-Ghaziabad.

10. On 27th August, 2007, the learned
Trial Court framed following charges against
the accused-appellants for the offence under
Sections 452/34, 307/34, 302/34 and 120B/34 I.P.C.:

'मैं, िीपक कुमार श्रीवास्तव, अपर सत्र
न्यायाधीश, कोर्ट सीं० 8, गादियाबाि आप रदवन्द्र,
12 All. Nasir @ Guddu Vs. State of U.P.
773
नादसर उर्ट गुड्डू व हबीब उर्ट भोला को दनम्न
आरोप से आरोदपत करता हूः-

प्रथम- यह दक दि०27.8.06 को समय
करीब रादत्र के 10 बिे के बाि स्थान मौ० माता
कालौनी में पररवािी के मकान स्स्थत थाना दविय
नगर गादियाबाि में आपने एक राय होकर गुड्डू के
ऊपर िान से मारने की नीयत से तमींचे से र्ायर कर
गींभीर रूप से घायल कर दिया दिससे उसकी मृत्यु
हो गयी। इस प्रकार आपने धारा 302/34 भा०ि०सीं०
के अींतगटत िण्डनीय अपराध काररत दकया िो दक
इस न्यायालय के प्रसींज्ञान में है।

दिवतीय- यह दक उक्त दिनाींक, समय व
स्थान पर आपने िब मृतक गुड्डू पर िान से मारने
की नीयत से र्ायर दकये तब पररवािी गुड्डू को
बचाने के दलये उठा तो आपने पररवािी पर िान से
मारने की दनयत से उस पर र्ायर दकये और यदि इन
र्ायर के पररणामस्वरूप उसकी मृत्यु हो िाती तो
आप पररवािी सींिय की हत्या के िोषी होते और इस
प्रकार आपने धारा 307/34 भा०ि०सीं० के अींतगटत
िींडनीय अपराध काररत दकया िो दक इस न्यायालय
के प्रसींज्ञान में है।

तृतीय- यह दक उक्त दिनाींक, स्थान व
समय पर आपने गुड्डू को िान से मारने की दनयत
से पररवािी के घर में अनादधकृत प्रवेश कर गृह
अदतचार दकया और इस प्रकार आपने धारा 452/34
भा०ि०सीं० के अींतगटत िींडनीय अपराध काररत दकया
िो दक इस न्यायालय के प्रसींज्ञान में है।

चतुथट- यह दक आपका मृतक गुड्डू से
रूपयोीं के लेन िेन पर दववाि था और मृतक गुड्डू
उधार के रूपये नहीीं लौर्ा रहा था इसी विह से
आपने दि० 27.8.06 को रादत्र 10 बिे से पूवट दकसी
समय गुड्डू की हत्या करने का षडयींत्र रचा और
षडयींत्र के अनुपालन में आपने उसकी हत्या कर िी
और इस प्रकार आपने धारा 120बी/34 भा०ि०सीं० के
अींतगटत िींडनीय अपराध काररत दकया िो दक इस
न्यायालय के प्रसींज्ञान में है।

एततिवारा दनिेश दिया िाता है दक उक्त
आरोप का दवचारण इस न्यायालय िवारा दकया िाये।"

11. In order to prove its case, the
prosecution
relied
upon
documentary
evidence, which were duly proved and
consequently marked as Exhibits. The same
are catalogued herein below:-

"i). Written report dated 27th
August, 2006 submitted by the informantP. W.1, which has been scribed by one
Balvir Singh, which has been marked as
Exhibit-Ka/1;

ii). The first information report
dated 27th August, 2006 has been marked
as Exhibit- Ka/7;

iii). Recovery memo of blood
stained clothes and pillow cover dated 28th
August, 2006 has been marked as Exhibitka/2;

iv). Recovery memo of blood
stained and plain marble of floor dated 28th
August, 2006 has been marked as Exhibitka/3;

v). Recovery memo of empty
cartridge dated 28th August, 2006 has been
marked as Exhibit-ka/4;

vi). Injury report and X-ray report
of the informant/P.W.-1 dated 28th August,
2006 and 4th September, 2006 respectively
have been marked as Exhibit-Ka/14;

vii). Death report of the deceased
given by the Doctor of G.T.B. Hospital
dated 28th August, 2006 has been marked
as Exhibit-ka/10;

viii). The post-mortem/autopsy
report of the deceased dated 28th August,
2006 has been marked as Exhibit-Ka-9;

ix). Site plan with index prepared
by the Investigation Officer dated 28th
August, 2006 has been marked as Exhibitka/5;

x). Medical paper regarding death
of the deceased issued by P.W.-11 dated
28th August, 2006 has been marked as
Exhibit-ka/16;

xi). Medico Legal Case Report of
the informant/P.W.1 has been marked as
Exhibit-ka/15; and
774 INDIAN LAW REPORTS ALLAHABAD SERIES

xii).
Charge-sheet
dated
8th
November, 2006 has been marked as
Exhibit- Ka/6."

12. The prosecution also examined
total nine witnesses in the following
manner:-

"i). P.W.-1/Informant, namely,
Sanjay, who is said to be an injured eye
witness;

ii).
P.W.-2,
namely,
Chhota
brother of the deceased ;

iii)
P.W.-3,
namely,
SubInspector Lokendra Pal Singh, who has
recorded the statements of the witnesses
under Section 161 Cr.P.C.;

iv) P.W.-4, namely, Constable506 Kiran Pal Singh, who has prepared the
chik first information report and has also
proved the same before the Court below;

v). P.W.-5, namely, Dr. Barkha
Gupta, who has conducted the autopsy of
the deceased and prepared the post-mortem
report;

vi). P.W.-6, namely, Rinku Bhati,
who knew the accused-appellant Ravindra
Jatav;

vii). P.W.-7, namely, Assistant
Sub-Inspector Hukum Singh, who has done
the inquest of the body of the deceased and
made a request to the Hospital for postmortem of the deceased;

viii).
P.W.-8,
namely,
Smt.
Babita, wife of the deceased Guddu, who is
said to be an eye-witness;

ix). P.W.-9, namely, Dr. Anil
Prakash who has medically examined the
injuries
of
the
injured
Sanjay
i.e.
informant/P.W.-1;

x).
P.W.-10,
namely,
Dr.
Rajendra Prasad, who has done the X-ray
of left knee of the injured/informant/P.W.1;

xi) P.W.-11, namely, Dr. Anil
Yadav, who has given the Medico Legal
Case report about the death of the
deceased; and

xii)
P.W.-12,namely,
SubInspector Hargovind Singh, who has
conducted the investigation of the case;

13. After recording of the prosecution
evidence, the incriminating evidence were
put to the accused-appellants for confronting
with the same under Section 313 Cr.PC. In
their statements recorded U/s 313 Cr.P.C. the
accused appellants denied their involvement
in the commissioning of the offence 452/34,
307/34, 302/34 and 120-B/34 I.P.C. The
accused-appellant Ravindra has made it clear
that the informant/P.W.-1 Sanjay used to park
his auto in front of his house, which caused
his father to repeatedly ask the informant to
move the auto and he also file a complaint
with the police at the Vijay Nagar police
station. The informant/P.W.-1 used to
harbour
resentment
due
to
the
aforementioned complaint, and as a result, a
false accusation has been made against him
on the basis of suspicion. Ravindra, the
accused-appellant, also claimed that he had
been wrongfully accused of being involved in
the incident. The deceased had a criminal
mindset himself. The defence side has only
produced one witness, D.W.-1 Akhand
Singh, to prove the alibi of accused Ravindra.

14. The accused-appellant Naasir @
Guddu under Section 313 Cr.P.C. has
stated that Guddu and his wife were
criminals and they suspected that he is an
informer of them and because of the said
reason, they harbored a grudge against him
and a complaint has also been made in that
regard. He has further stated that he has
been falsely implicated in the case. The
deceased himself was a criminal.

15. The trial court after relying upon
the evidence adduced by the prosecution
12 All. Nasir @ Guddu Vs. State of U.P.
775
and recording its finding that there is no
significant
contradiction
between
the
statements of the witness and the medical
evidence, nor is there any inconsistency in
the statements of the witness, has come to
the conclusion that the prosecution has
been able to prove beyond reasonable
doubt that the accused Ravindra and Nasir
alias Guddu entered into the room of the
deceased on 27.08.06 at about 10.00 p.m.
with the common intention, in which the
deceased was tenant. It has also been
recorded that with the intention of killing
the informant Sanjay and the deceased
Guddu,
accused-appellants
fired
and
injured them, as a result Guddu died.
Therefore, the accused Ravindra and Nasir
alias Guddu are liable to be convicted
under the charges of Section 452/34,
307/34, 302/34 IPC. The trial court has
further recorded that so far as the question
of allegation under Section 120B I.P.C. is
concerned, the prosecution has failed to
prove the same beyond reasonable doubt.
Therefore, the accused Ravindra and Nasir
alias Guddu deserve to be acquitted of the
offence u/s 120B I.P.C. It is against this
judgment and order of conviction passed by
the trial court that the present jail appeal
has been filed on the ground that conviction
is against the weight of evidence on record
and against the law and the sentence
awarded to the accused-appellant is too
severe.

16. Assailing the impugned judgment
and order of conviction Mr. Saghir Ahmad,
learned Senior Counsel assisted by Mr.
B.K. Pandey, learned counsel for the
accused appellant Nasir @ Guddu and Mr.
Vijay Kumar Srivatava, learned counsel for
the accused appellant- Ravindra submits
that the first informant/P.W.-1 Sanjay has
not recognized the assailants/the accused
appellants. P.W.1 has turned hostile and did
not support the prosecution case. Further
submission is that PW-2 Chhota is the
brother of the deceased but he has also not
supported the prosecution case and has
turned hostile. He said that he did not know
about the murder of his brother deceased-
Guddu. Next submission is that the murder
has been committed by a rifle, as is evident
from the post-mortem report, which has
been marked as Exhibit ka-9, but as per the
first information report, the deceased
Guddu was killed by a country-made pistol
(Tamancha). From the aforesaid, it is clear
that there is a contradiction with regard to
fire arm used in the murder of the deceased,
which makes the prosecution case doubtful.

17. Learned counsel for the accusedappellants has also asserted that the
deceased sustained a gunshot wound on his
right side of the body. If the case of the
prosecution is accepted that the accused
fired on the deceased from the front side,
then he would have sustained a gunshot
wound on his front side rather than on his
right side, which also creates doubt in the
prosecution story.

18. It is further argued that as per the
prosecution version, when the incident took
place, wife of the deceased i.e. P.W.-8 was
present at the place of occurrence, when as
a matter of fact, when her husband i.e.
injured (since deceased) sustained gun
shots, she went to call his brother-in-law,
namely, Chhota (brother of the deceased).
The said conduct of P.W.-8 seems to be
unnatural as if a husband due to gun shot
injuries, is on the verge of his death, his
wife's major concern will be to save the life
of her husband by taking him to the nearby
hospital with the help of nearby available
people rather than leaving him and
proceeding to call her brother-in-law, who
was residing at a distance of one kilometer
776 INDIAN LAW REPORTS ALLAHABAD SERIES
away from the place of occurrence. Such
acts of P.W.-8 creates grave doubt
regarding the prosecution story.

19. Learned counsel for the appellant
has next contended that it has come on
evidence that when the incident occurred,
there was no source of light at the place of
occurrence, therefore, it is not ascertained
as to how the assailants have been
identified by the prosecution witnesses in
the absence of light. Since the prosecution
case is completely silent on this aspect and
is not supported by any evidence, the
accused-appellants are not guilty of the
offence under Section 452/34, 307/34,
302/34 I.P.C beyond reasonable doubt.
On the cumulative strength of the aforesaid
submissions, learned counsel for the
appellants submits that the impugned
judgment and order of conviction cannot be
legally sustained and is liable to be
quashed.

20. On the other hand, Sri Arunendra
Singh, learned A.G.A. for the State while
supporting the prosecution version submits
that although P.W.-1, P.W.-2, P.W.-6 have
turned hostile but they admitted that
incident occurred in which the deceased
died due to gun shot injuries. They have
also proved the Exhibit Ka-2, Exhibit Ka-3
and Exhibit Ka-4 and PW-8/wife of the
deceased Smt. Babita has fully supported
the prosecution version and she is an
eyewitness of the entire incident and has
clearly disclosed about the commissioning
the offence of murder, therefore, the trial
court has not committed any error in
convicting and sentencing the accused
appellants to undergo life imprisonment
with fine.
On the basis of the aforesaid submissions
learned A.G.A. submits that as this is a case
of direct evidence and impugned judgment
and order of conviction does not suffer
from any illegality and infirmity so as to
warrant any interference by this Court. As
such both the appeals filed by the accusedappellants, who committed heinous crime
by murdering the deceased Guddu are
liable to be dismissed.

21.

We
have
considered
the
submissions made by the learned counsel
for the parties and have gone through the
records of present appeals specially the
judgment and order of conviction and
evidence adduced before the Trial Court.

22. The question to be addressed and
determined in these appeals is whether the
accusation of guilt arrived at by the Trial
Court and the sentence awarded is legal and
sustainable and suffers from no infirmity
and perversity.

23. The facts as have been noticed
above clearly shows that the incident took
place on 27th August, 2006 at 10:00 p.m
and the first information report qua the said
incident has been lodged on the same day
i.e. 27th August, 2006 at 11.30 p.m. (2330
hrs.). According to the prosecution the first
information report is well within time and
prompt.

24. As per the first information report,
the incident took place on 27th August,
2006 at about 10:00 p.m. alleging therein
that Guddu used to live in house of Sanjay
on rent, when he (Sanjay) was eating food
in the room of Guddu along with him and
his wife, the accused-appellant Ravindra
and one other person who was wearing
green shirt came. The accused-appellant
Ravindra called Guddu, when Guddu and
informant came out, the accused-appellant
Ravindra said that after dropping his
companion he would come back once
12 All. Nasir @ Guddu Vs. State of U.P.
777
again, then the informant and Guddu
returned to room. After dropping his
companion, Ravindra came again and
called Guddu to come out from his room.
The first informant called Guddu to come
in the room, the companion of Ravindra
immediately came on the door of the room
of Guddu and with intention to kill Guddu,
fired thrice upon him by country-made
pistol (Tamancha). When the informant
tried to save Guddu that the said
companion had also fired upon him due to
which he also sustained gun shot injuries.
The people of the locality and wife of
Guddu took him to the hospital. The
occurrence of this incident has been
supported by P.W.-1 informant Sanjay in
his examination-in-chief, but he has denied
that the present accused persons have killed
the deceased. This witness has also stated
that two unknown persons came to the
place of occurrence, one of them wore
green shirt. The unknown person wearing
green shirt had killed the deceased. The
said statement has also been supported by
the wife of the deceased I.e. P.W.-8 in her
examination-in-chief and in the crossexamination. PW-8 has stated in her
examination-in-chief that after selling the
house, her husband (Guddu) and her Devar
Chhota (brother-in-law) i.e. P.W.-2 used to
live in Vijay Nagar on rent. After selling
the said house, from the money of his
share, which was received by the brotherin-law of P.W.-8, Chhota P.W.-2 purchased
another house in Mata Colony. Rs.
1,50,000/- whichever was left to him P.W.-
2 lended to Habib. When the husband of
P.W.-8 demanded the money from Habib,
which was lended by P.W.-2 i.e. the
brother-in-law of P.W.8, some altercation
took place between them and thereafter
they stopped talking to each other. P.W.-8
has further stated that 20 to 25 days before
the incident, when Habib, Nasir and
Babban were consuming alcohol and
abusing each other, there was also some
altercation between Habib, Nasir, Babban,
Lala and Mullad due to which Lala and
Mullad attacked Habib, Nasir and Babban
by knife and sword, as a result whereof
Habib and Nasir sustained injuries. From
that time, on the suspicion that the said
attack has been made by Lala and Mullad
on the instigation of the husband of P.W.-8
i.e. deceased Guddu, these persons started
having a grudge against her husband. Due
to the aforesaid grudge, Habib and Nasir
threatened the husband of P.W.-8 i.e.
deceased saying "दक इसे ऐसा मिा चखाएगें दक
याि रखोगे" but P.W.-8 and her husband
ignored the same. On the date of incident,
when the first informant/P.W.1 Sanjay,
who is landlord and her husband Guddu
were sitting on a cot in her room and she
was sitting on the floor and serving meal,
there was electricity at that time. The
neighbour i.e. accused-appellant Ravindra
came there and he called her husband
Guddu and landlord Sanjay to come out
from the room and when they went outside
the room, began talking to each other at the
door. The accused-appellant Ravindra said
that after dropping his companion, he
would come back, then the informant and
Guddu returned to room. After sometime
the
neighbour
i.e.
accused-appellant
Ravindra came to the room of P.W.-8 once
again and called the deceased Guddu to talk
with him for two minutes. On calling of
accused-appellant Ravindra, the husband of
P.W.-8 i.e. deceased went out from the
room. When the deceased and the accusedappellant talked to each other, P.W.-1 i.e.
first informant Sanjay called Guddu to
come and eat food, which was served by
P.W.-8, then the deceased Guddu came and
started eating food. It is that the companion
of accused-appellant Ravindra i.e. accusedappellant Nasir @ Guddu, who wore green
778 INDIAN LAW REPORTS ALLAHABAD SERIES
shirt, came once again and with intention to
kill, he fired indiscriminately upon her
husband Guddu and P.W.1 Sanjay, while
Guddu and P.W.1 were sitting on the cot.
The husband of P.W.-8 Guddu sustained
three gun shot injuries, whereas the
informant/P.W.-1 Sanjay also sustained
two gun shot injuries. P.W.-8 has further
stated that the said incident was seen by her
with
her
own
eyes.
In
the
crossexamination also this witness has supported
the prosecution version.

25. In the site plan, mark "→" shows
for arrival and escaping routes of accused
after firing, whereas the point "(C)" shows
the place from where the accused called the
deceased Guddu and informant/P.W.-2 to
come out from the room. Point "(B)" shows
the place from where the accused fired,
whereas point "(A)" shows the place where
the first informant/P.W.1 and the deceased
Guddu were sitting on a cot and sustained
gun shot injuries. On the place between
point "(A)" and point "(B)" blood stained
clothes, dried blood and empty cartridge
were lying. From the site plan it is apparent
that on the date of incident, Sanjay and
deceased Guddu were sitting on cot i.e. at
point-"(A)" in the room of Guddu, whereas
assailant was standing on the point "(B)",
which is the entrance point of the room.
When assailant will stand on the point-
"(B)" then he has to move from left side to
fire at point-"(A)". PW-8 has also stated in
her cross-examination that one assailant,
who was standing at the entrance of the
room i.e. point "(B)", shot fire by swinging
his arm. The cot on which the deceased
Guddu was sitting was on the opposite side
(left side) of the entrance i.e. point "(A)".
At the time of incident the deceased Guddu
was eating food. P.W.-8 has also stated in
her cross-examination that at the time of
incident electricity was there. She has
admitted that Investigating Officer has
recorded her statement, within two or three
days of the incident. She has next stated
that assailant was wearing green shirt and
she has recognized him. From the aforesaid
facts, it is apparently clear that the
statement of P.W.-8 fully corroborates the
site plan prepared by the Investigating
Officer with regard to the place and manner
of incident.

26. P.W.-2 Chhota has not supported
the prosecution story and he has been
declared hostile. PW-3, Sub-Inspector
Lokendra Pratap Singh is the Investigating
Officer, who has proved the Exhibit Ka-5
and other prosecution papers. He has also
admitted in his cross-examination that
P.W.-8 i.e. Babita wife of deceased had
told him that the assailant wore green shirt.
It was also told by her that other person i.e.
accused-appellant Ravindra had not fired
on deceased. He further stated that P.W.-8
had also told him that the accused-appellant
Nasir @ Guddu had fired thrice on the
deceased.

27. P.W.-4 Constable-506 Kiran Pal
Singh is the writer of chik first information
report, who has proved Exhibit ka-7 and
Exhibit ka-8. P.W.-5 Dr. Barkha Gupta is
the autopsy surgeon and at the time of post
mortem, she has opined that the cause of
death was haemorrhage shock due to antemortem injury of internal abdominal
organs. The injuries are ante-mortem and
caused by projectile of a rifle fire arm
ammunition.

28. Witness Rinku Bhati has been
adduced as P.W.-6 but he too has turned
hostile. Hukum Singh Assistant SubInspector has been adduced as P.W.-7, who
has prepared the inquest report and
supported the prosecution version and has
12 All. Nasir @ Guddu Vs. State of U.P.
779
proved Exhibit Ka-10, Exhibit Ka-11 and
Exhibit Ka-12.

29. P.W.-9 Dr. Anil Prakash has
examined
injuries
of
the
first
informant/P.W.1 Sanjay and has opined
that injury no. 1 and 3 found on the body of
informant/P.W.-1 were simple in nature.
Injury no. 2 is KUO (Kept Under
Observation). Injury no. 1 and 2 were
caused by firearm. Injury no. 3 was caused
by hard blunt object.

30. P.W.-10, Dr. Rajendra Prasad has
also examined the informant/P.W.-1 and
has opined that a radio opaque of metallic
density is found in the left knee joint of the
informant. He has proved the X-rays (no.
3769 and 3770) material exhibits- 1 and 2
which have been done in the case of
injured/first informant/ P.W.1. He found in
X-ray report a radio opaque of metallic
density which was caused by fire arm.

31. P.W.-11, Dr. Anil Yadav has also
been adduced by prosecution who has
proved Exhibit Ka-16 and other relevant
papers. P.W.-12, Inspector Sri Hargovind
Singh has also been examined and has
proved Exhibit ka-5 and other relevant
papers and objects.

32. From the perusal of the aforesaid
statements of the prosecution witnesses, the
prosecution has established its case beyond
reasonable
doubt.
Defence
has
also
adduced Akhand Veer Singh as defence
witness-1. The defence witness (DW-1) has
also admitted in his examination-in-chief
that
on
27.08.2006
he
heard
about
occurrence of incident.

33. In the case in hand PW-8/wife of
the deceased has seen the occurrence and
has fully supported the prosecution story.
She has recognized the accused assailant
Nasir @ Guddu who wore green shirt at the
time of incident which has been supported
by PW-1 Sanjay/informant also in his
statement before the Court. Hence there is
no doubt that this offence has been
committed by accused appellant Nasir @
Guddu with rifle or country-made pistol
(Tamancha).

34. Learned Senior Counsel for the
accused appellant has argued that the injury
caused to deceased was by a rifle (fire arm)
which is also opined by doctor in post
mortem report. The rifle and country-made
pistol (Tamancha) both adopts 315 bore
cartridge,
hence
the
argument
that
injured/deceased sustained injuries with
rifle only and not country made pistol
(tamancha), has no legs to stand.

35. The argument of learned counsel
for the appellant with regard to the wound
on the right side of the deceased does not
creates doubt in the prosecution story
because as per the site plan, deceased
Guddu and Sanjay were sitting on cot i.e. at
point "(A)", which is left side from the
point "(B)" i.e. the place of entrance. On
fire from the point "(B)" to point "(A)" the
injury will most probably be caused on the
right side of the body of the deceased.
Hence considering these circumstances,
this argument is also liable to be rejected.

36. Learned counsel for the appellant
has also argued about the conduct of PW-8.
He stated that when her husband got
injured it was her duty to take care of him
but instead she went to call her brother-inlaw i.e. P.W.2 Chhota, whose house was
situated 1 k.m. away from the place of
occurrence as per the statement of P.W.-8.
To ascertain the exact distance between the
house P.W.2 to place of incident i.e. house
780 INDIAN LAW REPORTS ALLAHABAD SERIES
of P.W.8, it is important for us to refer the
statement of P.W.2. He has stated in his
examination-in-chief that his house is
situated 250 meter away from the place of
incident in the same locality meaning
thereby the house of P.W.-2 i.e. Dewar
(brother-in-law) of P.W.8 was nearby the
house of deceased. P.W.8. i.e. wife of the
deceased is a women and when her
husband got injured she must have got
perturbed and it must have been difficult
for her to decide at that point of time and
was in dire need of help. P.W.-2 Chhota
being in her vicinity as closest kith and kin,
she went to call him for his help. This
conduct of P.W.-8 very much natural. It
cannot be said that such conduct of P.W.8
was unnatural and creates doubt in
prosecution story.

37. Having analysed the prosecution
evidence placed on record, we find that there is
no specific allegation attributed to the accusedappellant Ravindra of having either fired gun
shot on the deceased or in any manner
committed the offence itself. Although the
accused-appellant initially came with the main
accused i.e. the accused-appellant Nasir @
Guddu to call the deceased Guddu and again
asked the deceased to come out of the room but
he was not present on the spot at the time of
actual commissioning of the offence nor has
been participated in it. It appears that the
accused-appellant Ravindra was only mediating
between two parties i.e. the deceased Guddu
and the accused-appellant Nasir @ Guddu for
some amicable resolution of differences
between the parties and lastly the offence itself
was committed by the main accused-appellant
Nasir @ Guddu wearing green shirt. The
aforesaid facts have also been supported by
Akhand Veer Singh, who has been adduced as
defence witness i.e. D.W.-1. In his statement,
D.W.-1 has stated that on 27th August, 2006 at
9.15 p.m. (night), when he was purchasing
some goods from the grocery shop of one
Khemraj, the accused-appellant Ravindra was
also purchasing some goods. D.W. 1 has also
stated that at the shop of Khemraj they stayed
for about 15 to 20 minutes. When the accusedappellant
Ravindra
and
D.W.-1
were
purchasing goods, they heard sound of firing.
On hearing the same, D.W.-1 rushed to the
room of deceased Guddu and saw that first
informant/P.W.1 and the deceased were shot by
a firearm.

38. From the aforesaid facts, it appears
that there was some dispute between the
deceased Guddu and Nasir @ Guddu. Ravindra
was simply mediating to resolve the dispute
arose between both of the them. Neither the
accused-appellant Ravindra had ever instigated
to kill Guddu nor there was premeditation of
mind between accused-appellants, namely,
Nasir and Ravindra.