# Nishu @ Brijesh Dixit & Ors. (In Jail) v. State of U.P

- **Citation:** (2020) 6 ILRA 530
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-04-22
- **Case number:** Criminal Appeal No. 5194 of 2013
- **Bench:** Ramesh Sinha, Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/nishu-brijesh-dixit-ors-in-jail-v-state-of-u-p-45852
- **Pages:** 31

## Headnote

A.G.A., Sri N.K. Maurya, Sri Vinay Saran, Sri
Pravendra Kumar Chauhan, Sri Pradeep
Kumar Mishra

Conduct of PW1 goes to show that he tried to
implicate co-accused Chandan Tiwari during the
course of investigation in the present case
falsely for conspiring the murder of the
deceased, but the said fact was not disclose by
him in the F.I.R. It is true that F.I.R. is not an
encyclopedia of the prosecution case but the
said conduct of PW1 definitely cast doubt about
his credibility and trustworthiness stating about
the
incident
raising
suspicion
about
his
testimony relating to the prosecution case- The
unnatural conduct of PW1 and PW2 soon after
the incident further reflects that their presence
at the place of occurrence is not established on
account of the fact that when the deceased was
dragged from the car by the appellants and was
shot with their respective firearms weapons,
they have stated that they were witnessing the
incident while they were sitting in the car and
did not come out immediately coupled with the
fact that after the incident when the deceased
Ambarish Kumar was lying in a seriously injured
condition, no effort was made by PW1 and PW2
to touch him or to help the other persons who
had picked the injured in the Opel Astra Car of
PW1 as no blood stains were found either on
the clothes of PW1 or PW2 nor, the same was
found in the Opel Astra Car- The recovery of
two weapons from the said accused after one
month of the incident has been disbelieved by
the trial Court when they were put to trial under
the Arms Act- The metallic bullet was recovered
from the occipital region of the deceased but
the same was not sent to the Forensic Science
Laboratory in order to ensure whether the same
was shot by the respective weapons which were
recovered from the two appellants - No doubt
that PW1 and PW2 are the parents of the
deceased and claimed themselves to be the eye
witness of the occurrence, but after going
through their testimony they can be put in
the category of neither wholly reliable nor
wholly unreliable witness as their evidence
does not conclusively prove the guilt of the
accused
appellants
beyond
reasonable
doubt though their evidence examined by
the Court for corroboration in material
particulars by direct and circumstantial
testimony- It is first duty of the prosecution
to establish its case beyond reasonable
doubt against the accused than to question
the accused for their false implication which
the prosecution has failed to prove its case
beyond
reasonable
doubt
against
the
appellants.
6 All. Nishu @ Brijesh Dixit & Ors. Vs. State of U.P.
531
Evidence Law - Indian Evidence Act, 1872-
Section 155- Code of Criminal Procedure-
Section 154- Credibility of witness- Accused
implicated during course of investigation though
not named in FIR- It is true that F.I.R. is not an
encyclopedia of the prosecution case but the
said conduct of PW1 definitely cast doubt about
his credibility and trustworthiness stati

## Text

_Characters 0–39,835 of 109,958. This is a partial read: ask again with offset=39835 for what follows._

530 INDIAN LAW REPORTS ALLAHABAD SERIES
the appellant appears to be doubtful and the
prosecution has not proved its case beyond
reasonable doubt against the appellant
proving the recovery against him in strict
compliance of the provisions of N.D.P.S.
Act, hence his conviction and sentence by
the trial court is not sustainable in the eyes
of law. Thus, the impugned judgment and
order passed by the trial court convicting
and sentencing the appellant is hereby set
aside. The appeal stands allowed.

29. The appellant shall be released
forthwith from the jail, if he is not wanted
in any other case. It is further directed that
the lower court record be sent to the Trial
Court.
----------
(2020)06ILR A530
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 22.04.2020

BEFORE

THE HON'BLE RAMESH SINHA, J.
THE HON'BLE AJIT KUMAR, J.

Criminal Appeal No. 5194 of 2013

Nishu @ Brijesh Dixit & Ors.
 ...Appellants (In Jail)
Versus
State of U.P. ...Respondent

Counsel for the Appellants:
Sri Apul Mishra, Sri Amit Tripathi, Sri Anees
Ahmad, Sri Arvendra Singh, Sri Pradeep
Saxena, Sri Pravin Kumar , Sri Rakesh
Kumar Rathore, Sri Sanjeev Kumar Rathore

Counsel for the Respondent:
A.G.A., Sri N.K. Maurya, Sri Vinay Saran, Sri
Pravendra Kumar Chauhan, Sri Pradeep
Kumar Mishra

Conduct of PW1 goes to show that he tried to
implicate co-accused Chandan Tiwari during the
course of investigation in the present case
falsely for conspiring the murder of the
deceased, but the said fact was not disclose by
him in the F.I.R. It is true that F.I.R. is not an
encyclopedia of the prosecution case but the
said conduct of PW1 definitely cast doubt about
his credibility and trustworthiness stating about
the
incident
raising
suspicion
about
his
testimony relating to the prosecution case- The
unnatural conduct of PW1 and PW2 soon after
the incident further reflects that their presence
at the place of occurrence is not established on
account of the fact that when the deceased was
dragged from the car by the appellants and was
shot with their respective firearms weapons,
they have stated that they were witnessing the
incident while they were sitting in the car and
did not come out immediately coupled with the
fact that after the incident when the deceased
Ambarish Kumar was lying in a seriously injured
condition, no effort was made by PW1 and PW2
to touch him or to help the other persons who
had picked the injured in the Opel Astra Car of
PW1 as no blood stains were found either on
the clothes of PW1 or PW2 nor, the same was
found in the Opel Astra Car- The recovery of
two weapons from the said accused after one
month of the incident has been disbelieved by
the trial Court when they were put to trial under
the Arms Act- The metallic bullet was recovered
from the occipital region of the deceased but
the same was not sent to the Forensic Science
Laboratory in order to ensure whether the same
was shot by the respective weapons which were
recovered from the two appellants - No doubt
that PW1 and PW2 are the parents of the
deceased and claimed themselves to be the eye
witness of the occurrence, but after going
through their testimony they can be put in
the category of neither wholly reliable nor
wholly unreliable witness as their evidence
does not conclusively prove the guilt of the
accused
appellants
beyond
reasonable
doubt though their evidence examined by
the Court for corroboration in material
particulars by direct and circumstantial
testimony- It is first duty of the prosecution
to establish its case beyond reasonable
doubt against the accused than to question
the accused for their false implication which
the prosecution has failed to prove its case
beyond
reasonable
doubt
against
the
appellants.
6 All. Nishu @ Brijesh Dixit & Ors. Vs. State of U.P.
531
Evidence Law - Indian Evidence Act, 1872-
Section 155- Code of Criminal Procedure-
Section 154- Credibility of witness- Accused
implicated during course of investigation though
not named in FIR- It is true that F.I.R. is not an
encyclopedia of the prosecution case but the
said conduct of PW1 definitely cast doubt about
his credibility and trustworthiness stating about
the
incident
raising
suspicion
about
his
testimony relating to the prosecution case.
The fact that one of the accused was
subsequently implicated by the prosecution
witness, assigning him the role of hatching the
conspiracy, during the course of investigation
creates doubt about the credibility of the
witness.

Evidence Law - Indian Evidence Act, 1872-
Section 8 - Conduct of witnesses- The
unnatural conduct of PW1 and PW2 soon after
the incident further reflects that their presence
at the place of occurrence is not established on
account of the fact that when the deceased was
dragged from the car by the appellants and was
shot with their respective firearms weapons,
they have stated that they were witnessing the
incident while they were sitting in the car and
did not come out immediately - When the
deceased was lying in a seriously injured
condition, no effort was made by PW1 and PW2
to touch him or to help the other persons who
had picked the injured in the Opel Astra Car of
PW1 as no blood stains were found either on
the clothes of PW1 or PW2 nor, the same was
found in the Opel Astra Car.
The unnatural conduct of the prosecution
witness at the time of the occurrence and
immediately thereafter would be a relevant fact
reflecting their absence from the place of the
occurrence.

Civil Law - The Arms Act, 1959- Section
25, Indian Evidence Act, 1872- Section
157-Aquittal u/s 25 of the Arms Act- Absence of
independent/
scientific
corroboration-
The
recovery of two weapons from the said accused
after one month of the incident has been
disbelieved by the trial Court when they were
put to trial under the Arms Act- The metallic
bullet was recovered from the occipital region of
the deceased but the same was not sent to the
Forensic Science Laboratory in order to ensure
whether the same was shot by the respective
weapons which were recovered from the two
appellants.
The fact that the accused have been acquitted
u/s 25 of the Arms Act and the recovered bullet
was not sent to the FSL demonstrates that there
is no independent corroboration of the oral
testimony.

Evidence Law - Indian Evidence Act, 1872-
Section 134 - Quality of evidence - Category
of neither wholly reliable nor wholly unreliable
witness - No doubt that PW1 and PW2 are the
parents of the deceased and claimed themselves
to be the eye witness of the occurrence, but
after going through their testimony they can be
put in the category of neither wholly reliable nor
wholly unreliable witness as their evidence does
not conclusively prove the guilt of the accused
appellants beyond reasonable doubt through
their evidence examined by the Court for
corroboration in material particulars by direct
and circumstantial testimony.
Where the witnesses are neither wholly reliable
nor wholly unreliable, then the Court has to be
circumspect and look for corroboration in
material
particulars
and
if
there
is
no
corroboration , then no reliance can be placed
on such witness for the purpose of securing the
conviction of the accused.

Evidence Law - Indian Evidence Act, 1872-
Section 101- Burden of Proof- It is first duty of
the prosecution to establish its case beyond
reasonable doubt against the accused than to
question the accused for their false implication
which the prosecution has failed to prove its
case beyond reasonable doubt against the
appellants.

The burden of proving the guilt of the accused
beyond all reasonable doubt always rests on the
prosecution and it is impermissible for the
prosecution to question the accused for their
false implication when the prosecution has failed
to discharge its burden. (Para 94, 95, 97, 101,
104)

Criminal Appeal Allowed. (E-3)

Case Law relied upon/ Discussed:-

Vedivelu Thevar Vs St. of Madras, AIR (1957)
SC 614
532 INDIAN LAW REPORTS ALLAHABAD SERIES
(Delivered by Hon'ble Ramesh Sinha, J.)

1. The present Criminal Appeal has
been preferred against the judgment and
order dated 30.10.2013 passed by the
Additional Sessions Judge/Special Judge
(S.C./S.T. P.A. Act), Mainpuri in Crime
No.541 of 2006, Police Station Bewar,
District Mainpuri giving rise to S.T.
No.332 of 2007 (State Vs. Nishu @ Brijesh
Dixit and others) convicting the appellant
no.1 Nishu @ Brijesh Dixit and appellant
no.3 Chandan Kumar under Sections
302/120B I.P.C. and sentencing both of
them to imprisonment for life along with
fine of Rs.10,000/- and in default of the
payment of fine to further undergo six
months' Simple Imprisonment. Further
convicting appellant no.2 Lalit Dixit under
Sections 302/120-B I.P.C. and sentencing
him to imprisonment for life along with
fine of Rs.20,000/- and in default of the
payment of fine to further undergo one
year's
Simple
Imprisonment.
Further
convicting the appellant no.2 Lalit Dixit
under Section 504 I.P.C. and sentenced to
one year's Rigorous Imprisonment. Further
convicting all the three appellants under
Sections 384/120-B I.P.C. and sentencing
each of them to three years Rigorous
Imprisonment. All the sentences were
directed to run congruently.

2. The prosecution case as has come
up in the FIR lodged by PW1-Ghurai Lal
who
submitted
a
written
report
on
13.12.2006 (Ext. Ka.1) narrating therein
that he is a permanent resident of Quazi
Tola West, Kasba and Police Station
Bewar,District Mainpuri. On 12.12.2006 at
about 4.35 p.m. in the evening he along
with his wife Smt. Ram Khushi and his son
Ambarish Kumar Gupta alias Guddu was
returning after taking medicine on his car
from Mainpuri to their house. As soon as
his car had come down to District Hospital
and entered in the Kasba, Nishu, son of
Lalit Dixit, Lalit Dixit son of Bal Kishan
Dixit, resident of Mohalla Markichiya,
Kasba and Thana Bewar, Chandan Kumar
son of Nand Kishore Gupta, resident of
Mohalla Brahmnand, Kasba and Thana
Bewar, District Mainpuri, who were armed
with country-made pistols stopped his car
by giving a call. As soon as the car stopped,
the aforesaid three accused came to the
window of the car and after opening the
window, Nishu Dixit and Chandan Kumar
forcibly took out Ambarish Kumar from
the car and by hurling abuses uttered that
he poses himself to be a big ration dealer,
he will have to give them ration and
kerosene oil without any ration card and
further have to pay Rs.5,000/- per month to
them. On which, Ambarish told that he will
distribute the ration as per the rules and he
will not pay any form of Chauth (Gunda
Tax). On this, Lalit Dixit while hurling
abuses stated that since he is becoming a
leader, he will not concede and exhorted to
kill him and then Nishu Dixit and Chandan
Kumar fired shot with their respective
country-made pistols with an intention to
kill Ambarish, on account of which
Ambarish was seriously injured. Thereafter
the informant raised alarm to save his son
and the aforesaid three accused persons had
fled away by displaying their firearms
which they were carrying in their hands and
by firing shot in the air and because of the
terror of the accused persons, all the shop
keepers fled away by closing down the
shutter of their shops. The informant and
his wife took his seriously injured son to
the District Hospital, Mainpuri on their
own car from where his son was referred to
Agra as his condition was critical and in
Kamayani Hospital, Agra his son died
during treatment. After bringing back the
dead body he has come to report.
6 All. Nishu @ Brijesh Dixit & Ors. Vs. State of U.P.
533

3. On the basis of the written report
submitted to the police station concerned,
the First Information Report of the incident
was lodged on 13.12.2006 (Ext. Ka.3) by
PW1 Ghurai Lal which was registered as
Case Crime No.541 of 2006, under
Sections 302, 384, 504, 506 I.P.C. and
under Section 7 Criminal Law Amendment
Act which was registered as Police Station
Bewar, District Mainpuri. The relevant
entries were made in G.D.No.4 at 4 a.m. on
the same day being Ext. Ka.4. The
investigation was entrusted to the Station
Officer Sri Udai Bhan Singh Yadav (PW5).

4. The panchayatnama of the
deceased was conducted at the house of the
informant where the dead body was lying at
the door of the house. The Investigating
Officer appointed Panchas and prepared the
inquest report (Ext. Ka.9) between 6.30
a.m.
to
7.35
a.m.
on
12.12.2006.
Thereafter, the dead body of the deceased
was sealed and sent for post mortem
examination through CP 66 Dina Nath and
CP 690 Pawan Kumar to the District
Hospital,
Mainpuri
along-with
eight
relevant papers. The post-mortem of the
deceased was conducted by Dr. R.K. Sagar
on 13.12.2006 at 11.50 a.m. which is
marked as Ext. Ka.2.

5. The investigating officer proceeded
with the investigation on 13.12.2006 itself.
He recorded the statement of the informant
Ghurai Lal Gupta under Section 161
Cr.P.C. and prepared the site-plan (Ext. Ka
5) after inspecting the place of occurrence.
He further prepared the recovery memo of
Opel Astra Car No. MH 008990 (Erxt.
Ka.6) and thereafter handed over the said
car to the informant. He also prepared the
recovery memo (Ext. Ka.7) of three empty
cartridges of 315 bore which were
recovered from the place of incident.
Recovery memo (Ext. Ka.8) regarding the
plain earth and blood-stained concrete
chips taken from the place of occurrence,
was also prepared by him.

6. The accused appellant Lalit Dixit was
arrested on 14.12.2006 and his statement was
also recorded. On 15.12.2006 statements of
eye-witnesses Smt. Ram Khushi and Jitendra
Kumar Gupta were recorded under Section 161
Cr.P.C. Accused Chandan Tiwari was arrested
on 8.1.2007 and his statement was recorded.On
19.1.2007, accused Nishu @ Brijesh Dixit and
Chandan Gupta were arrested in a police
encounter and from their possession illegal
countryman pistols were recovered. The
confessional statements of both the accused
were recorded. The Investigating Officer further
recorded the statements of CP Dina Nath, CP
690 Pawan Kumar, CP 43 Ajant Singh and S.I.
Virendra Kumar on 8.2.2007. The statements
under Section 161 Cr.P.C. of other witnesses,
namely, Ajay Gupta, Jitendra Kumar Gupta,
Anil Kumar, Sudesh Chandra Gupta and
Pradeep
Kumar
were
recorded
on
12.2.2007.After completing the investigation,
the investigating officer submitted charge sheet
against the four accused persons, namely,
Chandan Tiwari, Chandan Kumar, Lalit Dixit
and Nishu @ Brijesh Dixit, under Sections 302,
384, 504, 506, 120-B I.P.C. and under Section 7
Criminal Law Amendment Act being Charge
Sheet No.30 of 2007 (Ext. Ka.13).

7. The competent Court took
cognizance over the charge sheet and after
compliance of Section 207 Cr.P.C. on
20.6.2007 the case was committed to the
Court of Sessions by the then Chief Judicial
Magistrate, Mainpuri.

8. The trial Court framed charges
against the accused appellants and coaccused Chandan Tiwari for the offence
under Sections 120B, 384/120B, 302/120B
534 INDIAN LAW REPORTS ALLAHABAD SERIES
and 504 I.P.C. on 1.11. 2007. the accused
denied the charges and claimed their trial.

9. The prosecution in support of its
case has examined PW1-Ghurai Lal Gupta,
informant of the case (father of the
deceased), PW2-Smt. Ram Khushi, wife of
the informant (mother of the deceased),
who are the two eye-witnesses of the
occurrence, PW3-Dr. Rakesh Kumar Sagar
who conducted the post mortem of the
deceased, PW4 CP 59 Shyam Singh who
was the Head Moharrir posted at Police
Station Bewar and was scribe of the F.I.R.,
PW5-S.I. Udai Bhan Singh, investigating
officer
of
the
case,
PW6-Dr.Subodh
Kumar, who prepared the injury report of
the deceased while being alive at District
Hospital, Mainpuri, PW7- S.I. Virendra
Singh who had conducted the inquest
proceeding and prepared the inquest report
and further prepared the recovery memo of
two pistols found from the possession of
the accused Chandan Kumar and Nishu
Dixit.

10. The documentary evidence
produced by the prosecution and relied
upon by it are Ext. Ka.1 to 16 which are
Written Report, Chik FIR, G.D.No.4 dated
13.12.2006, Site Plan of the place of
occurrence, recovery of Opel Astra Car No.
MH-008990, recovery memo of three
empty cartridges recovered from the place
of occurrence, recovery memo of plain
earth and blood stained concrete chips,
Panchayatnama,
Photo-Nash,
ChallanNash, letter of C.M.O., Charge Sheet,
Injury report of the deceased, recovery of
two country-made pistols of 315 bore, Site
plan of the recovery of two country-made
pistols and arrest of accused Nishu Dixit
and Chandan Kumar, Paper no.104-Areport of Forensic laboratory, Agra, dated
5.10.2007.

11. Material evidence which were
produced by the prosecution are as under:-

Material Ext. 1-Concrete chips
and plain earth recovered from the place of
occurrence.

Material
Ext.2-Blood
stained
concrete chips and blood stained earth
recovered from the place of occurrence.

Material
Ext.3-Under-wear
of
blue colour recovered from the body of the
deceased.

Material
Ext.4-Bandage
recovered from the body of the deceased.

Material Ext.5-Cotton recovered
from the body of the deceased.

12. The statements of the accused
under
Section
313
Cr.P.C.
were
recovered
by
the
trial
Court
on
13.10.2011 and the accused denied their
participation in the incident and further
have categorically stated that they have
been falsely implicated in the present
case and the eye-witnesses have falsely
deposed against them. Moreover it was
also categorically stated by the accused
Nishu Dixit and Chandan Kumar that
the country-made pistols which were
said to have been recovered from them,
were false plantation and in fact no
such weapon was recovered from them.

13. In defence, the accused have
examined Dr. P.K.Gupta as DW1. On
behalf of the accused Chandan Kumar
, two documentary evidence were
filed, i.e., Ext. Kha1-Bed Head Ticket
No.7126 of Ambarish Gupta which
was prepared at Raja Tej Singh
District Hospital, Mainpuri and Ext.
Kha-2-Injury
rreport
of
Ambarish
Kumar which was prepared at District
Hospital, Mainpuri on 12.12.2006 at 5
p.m.
6 All. Nishu @ Brijesh Dixit & Ors. Vs. State of U.P.
535

14. PW1-Ghurai Lal in his deposition
before the trial Court has reiterated the
prosecution story as disclosed by him in the
FIR. He stated that his son Ambarish Kumar
was murdered on 12.12.2006 at about 4.35
p.m. in Kasba Bewar near sweet shop and his
son was shot by the accused appellants. On the
day of incident, he along with his wife and son
had gone by his car to Mainpuri for taking
medicine. He had to take medicine and after
taking medicine he was returning to his house
on his vehicle and his son was driving the car.
As soon as his car reached in front of the shop
of Ram Nath, on that moment accused Lalit
Dixit, Nishu Dixit and Chandan Kumar Gupta
carrying country-made pistols in their hands
raised a voice and stopped the car, on which
his son Ambarish Kumar stopped the vehicle.
Soon after the vehicle was stopped, all the
three accused came near window of the car
and dragged his son outside the car.

15. Nishu Dixit and Chandan Gupta
stated that he poses himself to be a big ration
dealer and without ration card he has to give
ration and kerosene oil to them and further
Rs.5000/- per month is to be given to them, on
which his son stated that he would distribute
the ration in accordance with the rules and
would not pay any Chauth to them. On which,
Lalit Dixit stated that he would not concede as
he is a big leader and exhorted to kill him, on
which Nishu Dixit and Chandan Kumar Gupta
fired at Ambarish Kumar with their respective
weapons with an intention to kill him. One
shot which was fired by the accused Chandan
Kumar Gupta hit Ambarish Kumar on his
hand and the shot which was fired by accused
Nishu Dixit hit on his left eye and as soon as
they came out after opening the window of the
car, the accused fired in the air and fled away
and they raised alarm to save his son. When
the shot was being fired on the deceased, he
along with his wife and other persons in the
market had seen the incident. On receiving the
fire shot his son was seriously injured.

16. This witness carried his injured
son to the Bewar Hospital which was
closed and thereafter he took him to
District Hospital, Mainpuri where he was
given
some
medical
treatment
and
medicine and referred to Agra. Thereafter,
he took him to Kamayani Hospital, Agra
and during the treatment at 12.30 a.m. in
the intervening night his son died on
account of the injuries. After the death he
brought the dead body of his to his house at
Bewar.

17. This witnesses in his examinationin-chief has stated that many other relatives
had arrived and he did not go to lodge the
F.I.R. In the night and had gone in the
morning at 4 a.m. to lodge it. The witness
proved the paper no.8A, then identified the
same to be his written report which was in
his hand writing and signature and proved
the same as Ext. Ka.1.

18. This witness further deposed
that his son was a ration dealer having a
fair price shop at Kasba Bewar and his
son had kept the accused Chandan Tiwari
for the work of weighing of essential
commodities at his shop who used to
misappropriate the essential commodities
and sale the same without the knowledge
of his deceased son and when the said act
of
misappropriation
came
into
the
knowledge of his son he removed
Chandan Tiwari from the job. Accused
Chandan Tiwari started pressuring his
son for taking him back in the shop with
the help of appellant Nishu Dixit, Lalit
Dixit and Chandan Kumar Gupta but his
son refused to come under the pressure of
the accused persons.
536 INDIAN LAW REPORTS ALLAHABAD SERIES

19. This witness further stated that 23 days before the present incident, Nishu
Dixit and Chandan Gupta had snatched the
mobile phone of his son and he went to the
house of Lalit Dixit where he found that
Chandan Tiwari, Chandan Gupta , Nishu
Dixit and Lalit Tiwari were talking to each
other and were saying that if Ambarish
Kumar is not agreeing then within 2-3 days
he will be killed and after that he opened
the door and entered in the house and told
Lalit Dixit that his son had snatched the
mobile of Ambarish Kumar, hence, it may
be returned but he did not agree on that and
in lieu of returning the mobile Rs.5000 was
paid by this witness.

20. In his cross-examination this
witness has admitted that in his report (Ext.
Ka.1) he has not mentioned any incident
related with Chandan Tiwari with respect
to the fair price shop but he denied the
suggestion that it is wrong to say that there
was no ration shop with him at the time of
incident or prior to it. The licence of the
shop was in the name of his son Ambarish
Kumar Gupta. He had not lodged any
report against Chandan Tiwari with regard
to
misappropriation
of
the
essential
commodities of the shop. The card holders
used to make oral complaints to his son but
no written complaint was given to him. He
had
no
knowledge
whether
any
investigation was done by the supply
department regarding any shortage in the
shop or was detected or not.

21. This witness has further stated
that about 11⁄2-2 months ago Chandan
Tiwari was ousted from the shop by his
son. His son was receiving threats on phone
to take back Chandan Tiwari on the shop
and regarding the threat his son had told
him and in this regard his son had given an
information about 3-4 days prior to the
incident but he further admitted that no
written report was lodged in this regard.

22. This witness further deposed that
his son was not having good terms with all
the four accused but he had not lodged any
complaint with the police regarding the
said dispute and only oral information was
given to the police. He denied that neither
his son nor he had any relationship with the
accused Chandan Tiwari.

23. On the cross-examination made on
behalf of the appellant Chandan Gupta from
the witness, this witness stated that the said
appellant
used
to
reside
in
mohalla
Brahmanand and this witness resided in
mohalla Quazi Tola and both the mohalla are
adjacent to each other and the distance
between the house of this witness and and
accused Chandan Gupta was about one
furlong and there was no common house of
the witness and Chandan Gupta nor there was
any common land between them. There was
no business dealing of the witness with
Chandan Gupta but it was with his father. He
was having no enmity with Chandan Gupta.
This witness had heard regarding the dispute
between his son and Chandan Gupta but his
son had not lodged any F.I.R. at the police
station.His statement was recorded by the
investigating officer under Section 161
Cr.P.C. and he told him that there was some
quarrel of his son with Chandan Gupta and he
could not tell the reason as to why the
investigating officer has not mentioned about
the same in 161 Cr.P.C.The fact about the
dispute was known to the investigating
officer prior to giving of the application and
hence he did not tell about it. He had further
given a written information regarding the
conspiracy to the police.

24. The car on which he had gone,
was with him and the same was not
6 All. Nishu @ Brijesh Dixit & Ors. Vs. State of U.P.
537
produced in the Court and was only shown
to the investigating officer and he had taken
the car to the police station in the morning
on 13.12.2006. the Station Officer had
given Supurdgi of the said car to him. The
father of the appellant Chandan Gupta was
initially a driver and thereafter he was
running a shop of ornaments. At the time of
the incident, father of the appellant
Chandan Gupta had expired and he used to
run the shop ornaments at Amar Shahid
College. The management of the shop was
supervised by the Manager Updesh Singh
Chauhan of Amar Shahid College.

25. This witness has further deposed
that the fair price shop was being run by his
son Ambarish Kumar since 2000 which
was in his name and now the same is in the
name of his wife. There is no partner in the
said shop. In the city there were eight fair
price shops and his son only used to run the
fair price shop and did not other work.

26. This witness further deposed that
they were returning after taking medicine
from Dr. Pramod Gupta who was an
Orthopedic. He used to have pain in his
knees, shoulder and neck and the doctor
used to give medicine and used to issue
prescription but the doctor did not give any
prescription to him. He had given medicine
to the witness himself. He had gone to take
medicines probably between 3- 3 1⁄2 p.m.
and proceeded back to Mainpuri at about
3.45 p.m. He had not written in the F.I.R.
that he was coming back after taking
medicine from Dr. Pramod Gupta nor he
has given the statement under Section 161
Cr.P.C. to the investigating officer that he
was having pain in his body. He told about
taking of the medicine to the investigating
officer. He had brought the medicine on the
day of the incident only and prior to it he
had never visited Dr. Pramod or had taken
any medicine from him. Prior to the
incident accused Chandan Gupta had not
said any bad words to him, his wife was not
suffering from any disease, except taking
medicine this witness had no work in
District Mainpuri. Firstly, he had gone to
the office of his son Anoop at Bajaj
Alliance and thereafter had gone to the
doctor for taking medicine. His son used to
live in the office of Bajaj Alliance. At the
place of occurrence, the shops were open
and the shop keepers were sitting on their
shops and there were customers also
standing in the market as it was a day of the
market. There were no trees on the either
side of the road where the incident had
taken place. The dispute of his son was
with all the four accused. He had not given
any application. Whether his son had given
any application or not he was not aware of
the same and only oral information was
given. His son had told him that on
telephone he was being abused and when
he came to know about the same he did
nothing. He did not take any action. He was
not aware about the fact that Updesh Singh
Chauhan had grabbed the house of
Chandan Gupta. He was also not aware of
the fact that the shop of the father of
Chandan Gupta was given to some other
person and further he did not know whether
any person of the family of Chandan Gupta
resides in Kasba Bewar or not.

27. He had taken his son in the
injured condition to Mainpuri Hospital at 5
p.m. and except him and his wife there was
no other person. They stayed at District
Hospital for about 10-15 minutes. In the
District Hospital his son was given bottle of
glucose and thereafter referred to Agra.
After the incident he had not gone to the
police station. The boundary wall of the
police station is probably by the side place
of the incident. The police station might be
538 INDIAN LAW REPORTS ALLAHABAD SERIES
at a distance of 200 meters from the place
of occurrence.

28.

This
witness
denied
the
suggestion that he was deposing falsely and
was not with his son nor, had taken his son
in the injured condition to the District
Hospital. On the day of incident he had
reached at 8.30 p.m. at Kamayani Hospital,
Agra
where
he
was
given
medical
treatment four about 3 1⁄2 hours. At 12.30
a.m. in the night his son was declared dead.
He took his son up to Mainpuri in the car in
which the incident had taken place.
Thereafter, he was taken by Ambulance. At
3 a.m. in the night he had returned to
Bewar. In the night he did not go straight to
the police station as he was disturbed,
therefore, he directly went to his house.

29. This witness further deposed that
that he had gone to the police station at 4
a.m. where he found a Constable sitting and
showed his written report and further
informed about the incident. He got a copy
of the F.I.R. within an hour. Head Moharrir
had called the Station Officer at the police
station.
The
Station
Officer
had
interrogated him at the police station
regarding the fact that where he had gone
and was returning back and whether he had
not shown to any one in Bewar. No X-ray
was got conducted at Mainpuri and got it
done afterwords. The mobile phone of his
son was snatched three days prior to the
incident and the same was snatched by
Nishu Dixit, Chandan Tiwari and Chandan
Gupta. He did not lodge any F.I.R.
regarding snatching of the mobile but had
informed about the said incident to Babloo
Mishra, Chunnu Dixit, Vinay and others
and the said fact was known to all the
persons of his mohalla but did not inform at
the police station. He did not face any
proceeding in the Court. He denied the
suggestion that he faced any case in
Maharashtra nor, his son was having any
case for which he faced any proceedings.
The mobile phone was of Motorola and his
son was having several sims and his son
was having receipts of the same and this
witness had no receipts about it.

30.

This
witness
denied
the
suggestion that In-charge S.O. had brought
him in the Court for the offence for cutting
of the vehicles. He had written the report at
his house and at the time of writing the
report,Pradep Kumar, Anil Kumar, Jitendra
Kumar, Suresh Chandra and Ajay Kumar
were present and he had written the report
within 20-30 minutes and all the five
persons had gone with him to the police
station.

31. This witness further deposed that
it took about one hour for conducting
panchayatnama by the police and dead
body was sent by the police at 7.30 p.m. to
Mainpuri and again stated that it was sent
at 8 p.m. by vehicle Tata No.407 and he did
not go along with the dead body and all the
five
persons
were
the
witness
of
panchayatnama. When he had gone to
Mainpuri, his son son Ambarish was
wearing jeans and printed shirt. At the time
of panchayatnama he was not asked about
the names of the persons who have shot the
deceased, hence, he did not state about
them.

32. He further deposed that after the
incident Ambarish was taken in the car in a
serious condition to the hospital but as the
channel of the same was closed hence he
was taken to Mainpuri Hospital. He could
not identify the persons who had put
Ambarish in the car and the said persons
could not be traced out by him till date. In
the incident his son had received fire shot
6 All. Nishu @ Brijesh Dixit & Ors. Vs. State of U.P.
539
due to which he became helpless, hence, he
could tell whether the shop keepers of the
nearby areas had arrived or not and after
the incident within 2-3 minutes he had
proceeded. The vehicle which was given in
his supurdgi he had taken the deceased to
the hospital in the said vehicle. No blood
was fallen in the vehicle and the place
where the deceased was shot, the blood had
fallen there and while he was sitting in the
car the shot was fired and on account of
which he could not tell as to in which
direction the gun of the accused were. He
denied the suggestion that he was not
present at the place of occurrence nor, had
seen the incident.

33. In the cross examination done on
behalf of the appellant Nishu Dixit, this
witness has stated that the doctor from
whom he had taken the medicine belonged
to his caste and his name was Pramod
Gupta. He stated that neither in the F.I.R.
nor in his161 Cr.P.C. statement he
disclosed that he took the medicine from
Dr. Pramod Gupta. After lodging the F.I.R.
he proceeded to his house at 6 a.m. From
the police station he had gone to the place
of occurrence at 5.15 a.m. and remained
there for about 45 minutes. The distance of
police station from the place of occurrence
is 200 meters. When his son was shot, then
no police personnel arrived at the place of
occurrence. At the place of occurrence
three fires were shot and the fire shots were
loud one. There was a great chaos and
panic in the market. The car was being
driven by Ambarish. He was dragged by
pulling his collar and whether the same was
torn or not, he could not remember. When
the first shot was fired, Ambarish did not
fall, which hit him on his right hand and at
that time his injured hand was on his
forehead.The said shot was fired by
country-made pistol. The person who had
fired shot, was at a distance of 1 ft. towards
the south of deceased Ambarish. Thereafter
the second shot was fired which hit him
below the left eye, while this witness was
coming out of the car. Both the shots hit the
deceased and it was heavily bleeding. This
witness did not pick up Ambarish after fire
was shot on him and people of nearby area
had picked the Ambarish and he did not
remember their names. He had put
Ambarish in his car and his blood stained
were found in the car. The Sub Inspector
did not see the blood. The police had given
supurdgi of the vehicle to him. By that time
his relatives had wiped off the blood from
the seat as the vehicle had been taken to
Agra. The blood was wiped off at Mainpuri
Hospital. In Mainpuri Hospital, Ambarish
had stayed for about 10-15 minutes. The
doctor after examining Ambarish had given
some medicine to him. This witness told
the doctor that the shot was fired by some
miscreants and he had also told the doctor
at Agra that some miscreants had fired
shot. None of the miscreants had fired shot
while the car was moving.No pellets hit the
vehicle. Pellets and tikli were recovered on
the next day from the place of occurrence.

34. On 10.12.2006 a conspiracy of
murder to kill Ambarish was hatched. It
was about 7.30 a.m. in the morning. This
witness has further admitted that in the
F.I.R. he did not mention about the
conspiracy. The accused suddenly came out
from a lane with country-made pistols. It
was a busy place. The vehicle was stopped
and he did not ask Ambarish to stop the
vehicle. All of sudden the accused came
out armed with country-made pistols and
asked to stop the vehicle. They only asked
once to stop the vehicle. The said fact was
not stated by him in the report nor, the
same was disclosed in the statement before
the investigating officer. He did not lodge
540 INDIAN LAW REPORTS ALLAHABAD SERIES
the report either at Mainpuri or Agra. In
Mainpuri the police of Bewar had reached.
The police personnel and the son of this
witness were signing. This had happened in
the evening of 12.12.2006 at about 5.15
p.m.

35. Amongst the police personnel,
there was one Sub Inspector and two
Constables. The said police personnel did
not go to Agra. By 5.15 p.m. to 5.30 p.m.
Ambarish had gone by Ambulance to Agra
whereas this witness had gone by his car to
Agra.

36. This witness further deposed that
in the F.I.R. he has rightly mentioned that
he came to the police station with the dead
body of the deceased and also about the
snatching of the mobile phone was not
mentioned in the report nor, about giving of
the money, for which he cannot tell any
reason.This witness denied the suggestion
that the police had not recorded his
statement under Section 161 Cr.P.C. on
13.12.2006 and recorded thereafter. On
13.12.2006 the police had arrived his house
and remained there for about more than an
hour and at that time police had not
interrogated his wife.

37. He further deposed that his son
had purchased the vehicle 2-3 months prior
to the incident. This witness did not possess
any paper of the vehicle because it was not
transferred. The blood was oozing out from
the injuries of his son who had fallen at a
distance of two paces towards South-East.

38.

This
witness
denied
the
suggestion that he had not seen the incident
and police personnel had informed him at
his house and thereafter he came to the
place of occurrence. He further denied the
suggestion that Ambarish shot dead by
unknown person at an unknown place and
accused Lalit and Nishu were falsely
implicated in the present case.

39. On the cross-examination done by
this witness on behalf of the Lalit Dixit,
this witness denied the suggestion that he
had not admitted his son Ambarish in the
hospital but he was admitted by Constable
Shyam Singh and he is falsely deposing.
He further denied the suggestion that he has
falsely implicated Chandan Gupta as he
owed some money from his father, which
he did not want to pay, who was doing the
work of jewellery.

40. This witness further denied the
suggestion that he was confined in
Muzaffarnagar jail prior to 4-5 days of the
incident and was not present at the place of
occurrence. He also denied the suggestion
that he had shown the stolen car for which
he did not produce papers in the Court and
also denied the suggestion that accused
Lalit Dixit was not involved in the present
case and he is falsely deposing against him.

41. Similarly, statement of PW-2 Smt.
Ram Khushi who is mother of the deceased
and wife of PW1 was also recorded by the
trial Court. She in her deposition has
reiterated the prosecution case as has been
set up by his husband PW1 and for the sake
of brevity her evidence is discussed in short
by the Court.

42. This witness has stated in her
examination-in-chief that her husband had
got the deceased picked up from the place
of occurrence in the car with the help of
passer by and took him to the District
Hospital, Mainpuri from where he was
given some medical treatment and taken by
her husband to Agra where he was referred
and when they had reached to Mainpuri
6 All. Nishu @ Brijesh Dixit & Ors. Vs. State of U.P.
541
Hospital,
Bewar
police
had
arrived.
Thereafter they took their son to Agra and
got him medically treated at Kamayani
Hospital where his son succumbed to his
injuries at 12.30 in the night. They had
brought the dead body of the deceased back
to their house.