# Pinkoo @ Jitendra v. State of U.P

- **Citation:** (2022) 2 ILRA 75
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-01-31
- **Case number:** Criminal Appeal No. 633 of 2013
- **Bench:** Arvind Kumar Mishra-I, Vikas Budhwar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pinkoo-jitendra-v-state-of-u-p-48156
- **Pages:** 24

## Headnote

Criminal Law - Indian Penal Code,1860 -
Sections 302 r/w 34, 114 - Arms Act, 1959
- Section 25, - Criminal Procedure Code,
1973 - Section 313, 154 & 437 (A), -
Indian Evidence Act, 1872 - Sections 3, 8,
27 & 118 - Offence of murder - Delay in FIR -
Effect - FIR was scribed by the constable was
pre-written and the same was not been
explained to the informant - the required
general procedure while lodging an FIR has not
followed which aspects casts doubt - producing
the special report with 14 days delay of lodging
FIR
before
the
Magistrate
&
serious
discrepancies creeping in the testimony of the
prosecution witnesses proofs that the FIR was
suspicious and ante-timed - due to this, the
case of prosecution loses its legal significance
and renders whole prosecution story is full of
doubts.(Para 59, 61, 6, 71, 82)

Criminal Law - Indian Penal Code,1860 -
Sections 302 r/w 34, 114 - Arms Act,1959
- Section 25, - Criminal Procedure Code,
1973 - Sections 313, 154 & 437 (A), -
Indian Evidence Act, 1872 - Sections 3, 8,
27 & 118 - Offence of Murder - Absence of
motive - Effect - Testimony of witnesses is
silent about any motive for causing offence -
Noting on the record which support or
corroborate with the verbal allegation - The
testimony of PW1 & PW2 is full of improvement
and embellishments - which proofs that the
prosecution story have lots of doubts. (Para 43,
55, 56)

Criminal Law - Indian Penal Code,1860 -
Sections 302 r/w 34, 114 - Arms Act, 1959
- Section 25, - Criminal Procedure Code,
1973 - Sections 313, 154 & 437 (A), -
Indian Evidence Act, 1872 - Sections 3, 8,
27 & 118 - Offence of Murder - Examination of
Recovery of Gun, Map of Spot of incident & spot
of recovery - Effect - there is no any testimony
of witnesses stands to supports the recovery
gun (whereas there where allegation that rifle
was used in offence) and also there is
discrepancy in Map of spot of incident - Inaction
on the point in not observing precaution qua the
recovery spot map throws lots of doubts on the
prosecution story. (Para 70, 71, 72, 73)

Criminal Law - Indian Penal Code,1860 -
Sections 302 r/w 34, 114 - Arms Act, 1959
- Section 25, - Criminal Procedure Code,
1973 - Sections 313, 154 & 437 (A), -
Indian Evidence Act, 1872 - Sections 3, 8,
27 & 118 - Offence of Murder - charge sheet
was filed in case crime no. 25 of Arms Act
without awaiting the forensic report - Effect -
recovery memo reveals that Gun at the time of
kept in seal was in functional condition but the
Forensic report shows that it weapon was not in
functional condition - Testimony & records
shows that defence any how either managed
report or weapon was either been changed
which casts doubts on the prosecution story.
(Para 74, 75, 76)

Criminal Law - Indian Penal Code,1860 -
Sections 302 r/w 34, 114 - Arms Act, 1959
- Section 25, - Criminal Procedure Code,
1973 - Sections 313, 154 & 437 (A), -
Indian Evidence Act, 1872 - Sections 3, 8,
27 & 118 - Offence of Murder - credibility &
reliability of witnesses - Effect - contradiction in
76 INDIAN LAW REPORTS ALLAHABAD SERIES
testimony of both Eye-witnesses (PW1 & PW2)
shows that both witnesses either did not see the
occurrence or came to know about the
occurrence and the same has also not
corroborated by any independent witness - a
cumulative analysis and scrutiny of testimony of
Eye witnesses and evidence of formal witnesses
along with forensic reports reveals that story of
prosecution
is
full
of
improvement
and
embellishments - such innocuous circumstance
is self explanatory of real facts and exposes
falsity of the prosecution case - as such while
following the trite law and settled principle of
criminal jurisprudence that '99 guilty persons
should escape the clutches of law, than one
innocent should be punished' the impugned
orders of conviction are not sustainable in the
eyes of law. (Para 43, 56, 57, 62, 83, 84)

Criminal appeal is hereby allowed. (E-11)

## Text

_Characters 0–39,977 of 84,696. This is a partial read: ask again with offset=39977 for what follows._

2 All. Pinkoo @ Jitendra Vs. State of U.P.
75
----------
(2022)02ILR A75
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 31.01.2022

BEFORE

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

Criminal Appeal No. 633 of 2013
Connected with
Criminal Appeal No. 25 of 2013

Pinkoo @ Jitendra ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Amit Misra, Sri Bhavya Sahai, Sri Brijesh
Sahai, Sri J.S. Audichiya, Sri Pawan Kumar
Bhardwaj

Counsel for the Respondent:
A.G.A.,Sri A.K. Umarao, Sri Imran Ullah, Sri
Mohammad Khalid, Sri Shishir Prakash, Sri
K.K. Upadhyaya

Criminal Law - Indian Penal Code,1860 -
Sections 302 r/w 34, 114 - Arms Act, 1959
- Section 25, - Criminal Procedure Code,
1973 - Section 313, 154 & 437 (A), -
Indian Evidence Act, 1872 - Sections 3, 8,
27 & 118 - Offence of murder - Delay in FIR -
Effect - FIR was scribed by the constable was
pre-written and the same was not been
explained to the informant - the required
general procedure while lodging an FIR has not
followed which aspects casts doubt - producing
the special report with 14 days delay of lodging
FIR
before
the
Magistrate
&
serious
discrepancies creeping in the testimony of the
prosecution witnesses proofs that the FIR was
suspicious and ante-timed - due to this, the
case of prosecution loses its legal significance
and renders whole prosecution story is full of
doubts.(Para 59, 61, 6, 71, 82)

Criminal Law - Indian Penal Code,1860 -
Sections 302 r/w 34, 114 - Arms Act,1959
- Section 25, - Criminal Procedure Code,
1973 - Sections 313, 154 & 437 (A), -
Indian Evidence Act, 1872 - Sections 3, 8,
27 & 118 - Offence of Murder - Absence of
motive - Effect - Testimony of witnesses is
silent about any motive for causing offence -
Noting on the record which support or
corroborate with the verbal allegation - The
testimony of PW1 & PW2 is full of improvement
and embellishments - which proofs that the
prosecution story have lots of doubts. (Para 43,
55, 56)

Criminal Law - Indian Penal Code,1860 -
Sections 302 r/w 34, 114 - Arms Act, 1959
- Section 25, - Criminal Procedure Code,
1973 - Sections 313, 154 & 437 (A), -
Indian Evidence Act, 1872 - Sections 3, 8,
27 & 118 - Offence of Murder - Examination of
Recovery of Gun, Map of Spot of incident & spot
of recovery - Effect - there is no any testimony
of witnesses stands to supports the recovery
gun (whereas there where allegation that rifle
was used in offence) and also there is
discrepancy in Map of spot of incident - Inaction
on the point in not observing precaution qua the
recovery spot map throws lots of doubts on the
prosecution story. (Para 70, 71, 72, 73)

Criminal Law - Indian Penal Code,1860 -
Sections 302 r/w 34, 114 - Arms Act, 1959
- Section 25, - Criminal Procedure Code,
1973 - Sections 313, 154 & 437 (A), -
Indian Evidence Act, 1872 - Sections 3, 8,
27 & 118 - Offence of Murder - charge sheet
was filed in case crime no. 25 of Arms Act
without awaiting the forensic report - Effect -
recovery memo reveals that Gun at the time of
kept in seal was in functional condition but the
Forensic report shows that it weapon was not in
functional condition - Testimony & records
shows that defence any how either managed
report or weapon was either been changed
which casts doubts on the prosecution story.
(Para 74, 75, 76)

Criminal Law - Indian Penal Code,1860 -
Sections 302 r/w 34, 114 - Arms Act, 1959
- Section 25, - Criminal Procedure Code,
1973 - Sections 313, 154 & 437 (A), -
Indian Evidence Act, 1872 - Sections 3, 8,
27 & 118 - Offence of Murder - credibility &
reliability of witnesses - Effect - contradiction in
76 INDIAN LAW REPORTS ALLAHABAD SERIES
testimony of both Eye-witnesses (PW1 & PW2)
shows that both witnesses either did not see the
occurrence or came to know about the
occurrence and the same has also not
corroborated by any independent witness - a
cumulative analysis and scrutiny of testimony of
Eye witnesses and evidence of formal witnesses
along with forensic reports reveals that story of
prosecution
is
full
of
improvement
and
embellishments - such innocuous circumstance
is self explanatory of real facts and exposes
falsity of the prosecution case - as such while
following the trite law and settled principle of
criminal jurisprudence that '99 guilty persons
should escape the clutches of law, than one
innocent should be punished' the impugned
orders of conviction are not sustainable in the
eyes of law. (Para 43, 56, 57, 62, 83, 84)

Criminal appeal is hereby allowed. (E-11)

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

1. Heard Sri Brijesh Sahai, learned
Senior Counsel assisted by Sri Bhavya
Sahai and Sri J.S. Audichya, learned
counsel for the appellants, Sri Imran Ullah
and Sri K.K. Upadhyay, learned counsel for
the informant and learned A.G.A. for the
State and perused the material on record.

2. The aforesaid two criminal appeals
arise out of judgment and order of
conviction dated 18.12.2012 passed by the
Additional District and Sessions Judge,
Court No.6, Aligarh in Session Trial No.
600 of 2006 (State vs. Pinkoo alias Jitendra
and Smt. Ishwari Devi), concerning Case
Crime No.04 of 2006, under Sections -
302/34 and 114 I.P.C., Police Station-
Gandhi Park, District - Aligarh and
connected Session Trial No.601 of 2006
(State vs. Pinkoo alias Jitendra), concerning
Case Crime No.10 of 2006, under Section -
25 Arms Act, Police Station - Gandhi Park,
District - Aligarh, whereby the aforesaid
two appellants have been sentenced to
imprisonment for life, under Section - 302
read with Section - 34 I.P.C., coupled with
fine against each to the tune of Rs. 20,000/-
and in case of default in payment of it, the
concerned convict would have to suffer
additional rigorous imprisonment for one
year. The appellant - Pinkoo alias Jitendra
has also been sentenced to three years
rigorous imprisonment coupled with fine
Rs.5,000/- with default stipulation to suffer
additional rigorous imprisonment for four
months under Section - 25 Arms Act.

3. The aforesaid sentences awarded
against appellant- Pinkoo @ Jitendra have
been directed to run concurrently.

4. The factual matrix of the case as
reflected from the F.I.R. pertains to fact that
the written report was lodged by the
informant- Indrabhan Singh Saini, son of
Shri Ram Prasad, resident of Mali Ka
Nagla (Shyam Bihari), Gandhi Park, Police
Station - Gandhi Park, District - Aligarh on
04.01.2006 at 06:15 p.m. at Police Station -
Gandhi Park, District - Aligarh against four
persons
including
the
present
two
appellants
alleging
therein
that
on
04.01.2006, it was around 05:30 p.m., the
younger brother of the informant, Narendra
Saini was standing in front of his house,
when Pinkoo, Sonu, Monu, sons of Nem
Singh arrived on the spot and Pinkoo, with
intention to kill, fired on informant's
brother with licensed rifle, while Sonu and
Monu each gripped one arm of the victim
and the mother of the accused- Ishwari
Devi-was exhorting her sons for firing.
Sonu and Monu were also possessing illicit
arms and they shot fire, due to which, the
informant out of fear could not save his
brother. The written report also includes
description that the incident was witnessed
by Chandrabhan, son of Ramroop and
Vipin Kumar, son of Geetam Singh and
2 All. Pinkoo @ Jitendra Vs. State of U.P.
77
others of the locality. After committing the
offence, the assailants being pressurized by
the locality secured their escape. The dead
body was stated to be lying on the spot,
while the informant came to lodge the
report.

5. The relevant entry of this written
report (Ext. Ka-1) was noted in the
concerned Check F.I.R. on 04.01.2006 at
06:15 p.m. at Case Crime No.04 of 2006 at
Police Station - Gandhi Park, Aligarh, the
same is (Ext. Ka-4) and it was entered by
S.I. Naresh Pal (P.W.-3). He also registered
case against the present appellant and
others named in the F.I.R., vide Rapat No.
39 at 6:15 p.m. on 04.01.2006 at aforesaid
police station under Sections - 302, 114/34
I.P.C.

6. The investigation ensued and was
entrusted to the investigating officer, Jasvir
Singh (P.W.-10), who took note of the
contents of the documents, say the F.I.R.,
recorded statement of Head Moharrir,
Naresh Pal (P.W.-3) and proceeded to the
spot along with S.I. Arvind Kumar Gautam
(P.W.-4) and entrusted him (S.I. Arvind
Kumar Gautam) the task of preparing
inquest report. Bare perusal of the inquest
report and the testimony of S.I. Arvind
Kumar Gautam is reflective of fact that the
inquest was prepared around 09:00 p.m.
after appointing inquest witnesses and it
was decided that for ascertaining the real
cause of death, let the dead body of the
deceased- Narendra Saini be sent for
postmortem
examination.
Consequently
relevant papers for the same were prepared.
The inquest report is Ext. Ka-6, police form
no.13, (challan dead body), photonash,
letter to R.I. and letter to C.M.O. etc. are
Ext.Ka-7, Ext. Ka-8, Ext. Ka-9 and Ext.
Ka-10, respectively. The dead body was
sealed on the spot and was entrusted to
Constable Pramod Kumar and Rajveer
Sharma for sending it to the mortuary.

7. Perusal of the postmortem
examination report is indicative of fact that
the
postmortem
examination
was
conducted
in
the
night
intervening
04/05.01.2006 (as per order of District
Magistrate, Aligarh and C.M.S., District
Hospital), Aligarh, wherein the following
ante-mortem injuries were noted upon
postmortem examination :-

"Gun shot injury of entry of size 3
c.m. x 3 c.m. x bone deep on the left side
present of lower lip, extending from left
upper lip to lower part of chin part clotted
blood
present.
Blackening,
tattooing,
charring present. Underlying bones broken
muscle tendon are severely lacerated. One
wadding piece and seven pellets were
recovered from post pharyngeal wall."

8. Cause of death was stated to be on
account of shock and haemorrhage, as a
result of ante-mortem injuries. The duration
was noted to be 1/3 days. The postmortem
examination report is Ext. Ka-11.

9. As the investigation proceeded
further, the investigating officer recorded
statement of the informant, inspected the
spot, prepared site plan of the occurrence
(Ext. Ka-21) and prepared memo of simple
and blood stained clay (Ext. Ka-3). He
prepared memo of recovery of two empty
cartridges i.e. 315 bore and 12 bore from
the spot, the memo of the same is Ext. Ka2. He arrested appellant- Ishwari Devi on
06.01.2006. He recorded statement of
witnesses Chandrabhan and Vipin Kumar
on 08.01.2006.

10. Thereafter, the investigation was
handed over to Surendra Pal Singh (P.W.-
78 INDIAN LAW REPORTS ALLAHABAD SERIES
7), the S.O. of Police Station - Gandhi
Park, Aligarh, with whom he (P.W.-10)
formed a team and upon tip off information
arrested accused- Pinkoo alias Jitendra on
09.01.2006 at spot Gate No.1 of Mandi
Samiti and upon arrest being effectuated,
got recovered weapon of assault SBBL gun
which the accused allegedly took out from
the iron tank (for keeping grain) kept in his
house in a room whereupon a case was
lodged against accused- Pinkoo alias
Jitendra vide Check F.I.R. No. 8/06 at Case
Crime No. 10 of 2006, under section - 25
Arms Act, at Police Station - Gandhi Park,
Aligarh and entry was made in concerned
G.D., whereby a case was registered at
Rapat No.58 at 23:45 hours on 09.01.2006.
The Check F.I.R. of this case (Crime No.10
of 2006) is Ext. Ka-16, whereas the copy of
general diary entry, whereby the case was
registered is Ext. Ka-17 and the same has
been proved by Constable Bharat Singh
(P.W.-8).

11. However, the memo of arrest and
recovery was prepared by Jasvir Singh
(P.W.-10) on the dictation of S.O. Surendra
Pal Singh (P.W.-7), the same is Ext. Ka-15.
This witness Surendra Pal Singh (P.W.-7)
also
recorded
statement
of
various
witnesses including that of S.I. Arvind
Kumar Gautam, Constable Pramod Kumar
and
Constable
Rajveer
Sharma.
He
prepared spot map of the place of recovery
(Ext. Ka-13) and after completing the
evidence filed charge sheet (Ext.Ka-12)
against
the
accused-appellant
under
aforesaid sections of I.P.C. (302/114/34
I.P.C.) at aforesaid case crime number (04
of 2006).

12. However, up to this stage/period,
the forensic examination report regarding
the SBBL gun and the cartridges had not
been obtained. The forensic report dated
12th
March,
2007 was
subsequently
obtained at the instance of the defence,
when it moved application before the trial
court for calling the forensic report in
question, which was signed by the
concerned authority of Vidhi Vigyan
Prayogshala, Agra on 09.02.2007. The
same is marked as Kha-1.

13. The case (Crime No.10 of 2006)
pertaining to arms act against accusedappellant-
Pinkoo
alias
Jitendra
was
investigated by S.I. Vinod Kumar (P.W.-9),
who took note of the contents of Check
F.I.R. on 10.01.2006, recorded statement of
the informant and the witnesses and
prepared the site plan (Ext. Ka-18). He also
obtained sanction for prosecuting the
accused-appellant- Pinkoo alias Jitendra
from District Magistrate, Aligarh, the
sanction is Ext. Ka-20 and after completing
the investigation he filed charge-sheet
under Section - 25 Arms Act at Case Crime
No.10 of 2006, which charge sheet is Ext.
Ka-19.

14. Consequently, the Trial Court
heard the accused-appellants and the
prosecution on the point of charge and it
was prima facie satisfied with the case
against the accused-appellants, therefore,
framed charges against both the accused-
Pinkoo alias Jitendra and Smt. Ishwari Devi
under Sections - 302 read with Section - 34
I.P.C. and 114 I.P.C. in Case Crime No.04
of 2006. Accused Pinkoo alias Jitendra was
also charged under Section - 25 Arms Act
at Case Crime No.10 of 2006. The charges
were read over and explained to the
accused-appellants,
who
abjured
the
charges and opted for trial.

15. In turn, the prosecution produced
in all ten witnesses. A brief sketch of the
same is as here under :-
2 All. Pinkoo @ Jitendra Vs. State of U.P.
79

16. Indrabhan Saini (P.W.-1) is the
informant and eyewitness. Chandrabhan
(P.W.-2) is also eyewitness. Naresh Pal is
P.W.-3, he has prepared the Check F.I.R.
and noted entry in the concerned General
Diary of date 04.01.2006 at Police Station -
Gandhi Park. S.I. Arvind Kumar Gautam is
P.W.-4, who prepared the inquest report. Dr.
R.P. Sharma is P.W.-5, who conducted
autopsy on the dead body of the deceased
Narendra Saini. S.I. Siya Ram Sharma
(P.W.-6) has got nothing to do with the case
of the present appellants, namely, Pinkoo
alias Jitendra and Smt. Ishwari Devi
because he arrested another co-accused,
Sonu son of Nem Singh, which has got no
reference with the merit of the case of the
present two appellants, as such need not be
looked into in this case. The Inspector
Surendra Pal Singh P.W.-7-is the Second
Investigating Officer of this case. Constable
Bharat Singh is P.W.-8, who prepared the
check F.I.R. pertaining to Case Crime No.
10 of 2006, under Section - 25 Arms Act at
Police Station - Gandhi Park, District
Aligarh and noted entry of its content in the
concerned general diary of date on
09.01.2006 and got registered case against
accused-Pinkoo alias Jitendra. S.I. Vinod
Kumar (P.W.-9) is the Investigating Officer
of case pertaining to Case Crime No.10 of
2006, under Section - 25 Arms Act. After
completing the investigation, he filed
charge-sheet (Ext. Ka-19) against accusedappellant- Pinkoo alias Jitendra. S.I. Jasvir
Singh
is P.W.-10
who
is
the
first
investigating officer pertaining to Case
Crime No.04 of 2006.

17. Thereafter, the evidence for the
prosecution was closed and statement of
both the accused-appellants was recorded
under Section - 313 Cr.P.C. Pinkoo alias
Jitendra claimed to have been falsely
implicated in this case and stated in reply to
Question No.17 that his father is employed
as constable in the police department at
Aligarh. He was working as such at the
time of this occurrence. The investigating
officer of this case (Jasvir Singh P.W.-10)
was also posted at Police Station - Lodha
with his father and thereafter he was posted
to Police Station - Gandhi Park and he had
certain scores to settle with his father, on
account of personal as well as departmental
grudge, he colluded with the informant and
cooked up a false case against him. The
accused opted for adducing evidence for
his defence.

18. So far as accused- Ishwari Devi is
concerned, she refuted charge framed
against her and claimed to have been
falsely implicated in this case and in her
statement in reply to Questionnaire No.17.
She adopted statement of Pinkoo alias
Jitendra as stated by him in reply to
questionnaire no.17 as above. She also
wished to adduce her testimony in her
defence.

19. The Trial Court after appraisal of
facts and circumstances of the case and
after evaluating evidence on record and
vetting merit of the case, returned finding
of conviction and passed sentence against
the
aforesaid
two
appellants
to
imprisonment for life, under Section - 302
read with Section - 34 I.P.C., coupled with
fine against each to the tune of Rs.
20,000/- and in case of default in payment
of it, the concerned convict was directed
to suffer additional rigorous imprisonment
for one year. The trial court also sentenced
the appellant - Pinkoo alias Jitendra to
three years rigorous imprisonment coupled
with
fine
Rs.5,000/-
with
default
stipulation to suffer additional rigorous
imprisonment for four months under
Section - 25 Arms Act.
80 INDIAN LAW REPORTS ALLAHABAD SERIES

20. Consequently, this appeal.

21. It has been vehemently claimed
on behalf of the appellants that in fact, no
one saw the occurrence. The informant in
collusion with the police has concocted and
set up a false story in order to falsely
implicate the appellants in the commission
of the offence in question. The face value
of the F.I.R. itself is doubtful and it is
suspicious on account of description in it of
various aspects of the case, in particular
that the informant is acquainted with
specific weapons used in the commission
of the offence. The written report (Ext. Ka1), describes, inter-alia, that accused-
Pinkoo alias Jitendra fired with licensed
rifle, whereas two co-accused are stated to
have
been
in
possession
of
illicit
countrymade weapon. The F.I.R. is almost
cryptic and silent about any motive being
assigned to the accused-appellants. When
the very import of the F.I.R. is gathered
from the above three dimensions, then
things appear to have been cleverly
articulated, fishy and managed in order to
falsely implicate the present accusedappellants in this case.

22. Now, it so happened that in order
to give colour to this false case, a false
motive was subsequently introduced and it
was suggested by the prosecution that the
appellant-accused- Pinkoo alias Jitendra
was a drunkard, he used to demand money
from the persons of the locality, which was
opposed by the brother (deceased) of the
informant,
which
factual
aspect,
the
prosecution, if asserted, subsequently was
required to strictly prove it and to establish
it reasonably and satisfactorily, but that is
miserably wanting in this case.

23. Further, we have been persuaded
to the ambit that the entire proceeding was
initiated after it was decided to falsely
implicate the accused-appellants in this
blind case. F.I.R. is ante time. There are
interpolations and cuttings in the dates on
various prosecution papers. Neither the
inquest was prepared by the investigating
officer himself nor was he present on the
spot during course of preparation of inquest
but the proceeding was conducted by
another police personnel, S.I. Arvind
Kumar Gautam (P.W.-4). The memo of
recovery (Ext. Ka-2) regarding recovery of
two empty cartridges one 315 and the
another 12 bore was wrongly prepared and
is admitted to the Investigating Officer,
Jasvir Singh (P.W.-10).

24. Now, it so happened that the
postmortem examination on the dead body
of Narendra Saini, aged about 23 years was
conducted the very intervening night
04/05.01.2006 at 01:00 a.m., as per the
order of District Magistrate, Aligarh and
C.M.S., Aligarh as has been endorsed upon
the post-mortem examination report by Dr.
R.P. Sharma (P.W.-5). No bullet of any sort
was ever recovered from the body of the
deceased, which may indicate that any rifle
was used in the commission of the offence,
instead the doctor recovered one wadding
piece and seven pellets and this startled
both
the
police
and
the
informant,
therefore, description of use of weapon was
twisted and the weapon rifle was tried to be
obviated by managing the statement of the
informant under Section - 161 Cr.P.C. by
divulging that the informant per chance
described the weapon of assault used by the
appellant- Pinkoo alias Jitendra as licensed
rifle, whereas, it was 'licensed gun'. This
aspect serves as additional link. Now, it so
happened that in the night intervening
04/05.01.2006 autopsy was conducted at
01:00 a.m., which revealed use of gun
instead of rifle and this being so the matter
2 All. Pinkoo @ Jitendra Vs. State of U.P.
81
was tried to be winced in statement made
under Section - 161 Cr.P.C. Further, the
F.I.R. is ante timed and it is not believable,
as such.

25. No doubt, the F.I.R. is claimed to
have been lodged on 04.01.2006 at police
station Gandhi Park at 06:15 p.m., but the
special report (SR) of the same was sent to
the Chief Judicial Magistrate, Aligarh on
18.01.2006 and the entire prosecution story
is silent about this considerable delay and
there is no whisper as to when the special
report was in fact sent to the Magistrate
from the police station. Another vital aspect
of this case is that the F.I.R. pertains to
lodging of a cognizable case but it does not
bear signature of the informant on check
F.I.R., whereas the informant- Indrabhan
Saini (P.W.-1) claims to have appended his
signature on the check F.I.R. The aforesaid
aspects create a series of discrepancies
committed both by the police and the
informant,
thus
the
F.I.R.
becomes
vulnerable and suspicious and is proved to
be result of deliberation and collusion with
the police. The circumstances so created
throw away the very foundation of the case
set up by the prosecution. The very
statement of the investigating officer in that
regard is evasive. Nicety of lodging of
F.I.R. and follow up action speaks louder
than the reality.

26. Apart from that, it has been
claimed that neither Indrabhan Saini (P.W.-
1) nor Chandrabhan (P.W.-2), the two
witnesses of fact were present on the spot
nor have they seen the occurrence.
Indrabhan Saini himself admits that he
arrived on the spot after the witnesses
named in the F.I.R. had arrived on the spot,
whereas, his testimony belies his own
version when he says that P.W.-2 followed
him, when he rushed to the spot. The
statement of prosecution witnesses of fact
as well as that of the investigating officers
are cryptic, contradictory and not inspiring
confidence but give way to lot of confusion
and irregularities. The place of occurrence
has also been substantially changed by the
prosecution. Both the witnesses of fact are
highly interested witnesses.

27. As per the F.I.R., the incident took
place in front of the house of informant,
whereas,
in
the
description
of
the
prosecution witnesses, the incident is stated
to have taken place at the corner of
'chabutra' of Devi Ram. The site plan of
the place of occurrence has been changed
as such. The house of the appellant has not
been sketched or marked in the site plan
(Ext. Ka-21). Besides, site plan is silent
about specific positions of all the accused.
The recovery of SBBL gun was planted by
the police which is absolutely fake. The
recovery memo contains description that
SBBL gun when kept under seal was in
working condition, whereas, at the time
when the SBBL gun was received by the
forensic laboratory the alleged gun was
found to be not functional. It can be seen
with convenience and ease that the houses
of a number of persons were located in the
neighborhood of the accused- Pinkoo alias
Jitendra but not a single witness was
obtained or tried to be obtained by the
police to give thrust to the point of
recovery of the SBBL gun. The entire
prosecution testimony lacks corroboration
of occurrence by independent source of
evidence. Apart from that, learned counsel
for the appellants also explained various
inconsistencies
vis-a-vis
facts
and
circumstances emerging in the case, which
they claimed to pose serious question to the
entire occurrence. The recovered gun was
stated to have not been used in the
commission of the crime.
82 INDIAN LAW REPORTS ALLAHABAD SERIES

28. The learned counsel for the
appellant further proceeded to claim that
the trial Judge failed to take stock of the
aforesaid factual and legal aspects of this
case which were very much apparent to it,
but it erroneously recorded conviction
against
the
accused-appellants,
which
finding of conviction is not based on
material on record. The prosecution has
failed to prove its case beyond all
reasonable
doubt.
The
judgment
of
conviction is illegal and perverse.

29. Per contra, Mr. Imranullah,
learned counsel for the informant, while
retorting to the aforesaid argument has
claimed that so far as the testimony of both
the prosecution witnesses of fact- P.W.1,
Indrabhan Saini and P.W.-2, Chandrabhan
is concerned - the same is pin pointing,
consistent, unflinching and direct on the
point of occurrence which gives coherence
to the description about the manner and
style of the occurrence as it took place on
04.01.2006 at 05:30 p.m. at Nagla Mali.
Now, in so far as the point of F.I.R. being
ante time as claimed by the defence is
concerned, this much can be pointed out
that the F.I.R. is prompt one. No time was
left for deliberation. Each prosecution
paper, in particular the inquest report and
the papers prepared on the spot bear case
crime number. The F.I.R. was lodged soon
after the occurrence at 06:15 p.m. at the
police station concerned, which is one
kilometer
away
from
the
place
of
occurrence. In so far as point of charge in
the use of weapon of assault is concerned,
the same was licensed gun, which was
inadvertently described as licensed rifle in
the F.I.R. and that aspect stood corrected by
the informant at the first opportunity, when
his statement was recorded in the same
night intervening 04/05.01.2006 by the
investigating officer and the fact stands
substantiated even by the testimony of the
investigating officer (P.W.-10) Jasvir Singh.

30. In so far as the story of motive not
being described in the F.I.R. is concerned,
then it is claimed that F.I.R. is not an
encyclopaedia and the motive brought forth
subsequently
by
the
informant
has
sufficient nexus with the crime has been
proved
satisfactorily.
Not
only
the
witnesses of fact (P.W.-1 & P.W.-2) but also
the formal witness say - Dr. R.P. Sharma
(P.W.-5) have proved the factum of death
being caused by ante mortem gun shot
injury and death in his opinion might have
been caused around 05:30 p.m. Presence of
witnesses of fact on the spot is natural and
their testimony inspires confidence. The
factum of recovery of licensed gun has
been proved cogently by the prosecution
witness Surendra Pal Singh (P.W.-7) and he
has identified it before the trial court.

31. As regards the distortion in
functioning of the recovered gun as pointed
out by the defence, it is stated by P.W.-7 in
the recovery memo that the recovered gun
was functioning, however, while the gun
was sent for forensic examination, it was
found to be non functional on account of
mechanical defect in firing pin. That being
so, how can the investigating officer/sub
inspector be supposed to have skilled
knowledge of internal mechanism and its
functioning, particularly, in case of the
recovered gun. Therefore, only external
examination of gun was done at the time of
its recovery and whatever was found on the
spot of recovery was noted in the recovery
memo. Therefore, recovery of gun is
satisfactorily proved. Moreover, it has also
been proved that 12 bore empty cartridge
was found on the spot may have been fired
from the recovered gun. That being the
case, the prosecution has proved guilt of
2 All. Pinkoo @ Jitendra Vs. State of U.P.
83
the appellant beyond all reasonable doubt.
Appellant-Pinkoo
alias
Jitendra
has
criminal antecedents and he committed the
offence inter-alia under Section - 307
I.P.C., while he was on bail during the trial
and the learned trial judge has taken note of
all the aforesaid aspects and the evidence
adduced on record and it passed the just
order.

32. Learned A.G.A. has submitted
that the eye account testimony inspires
confidence and there is no reason to
disbelieve the same as that would amount
to brushing aside cogent testimony merely
on suspicion. It is established law that
mistake committed during investigation by
the Investigating Officer would not be
sufficient justifying to throw away the
entire case of the prosecution. Evidence on
record profusely indicates involvement of
the accused-appellant in the occurrence.
The trial court has taken correct view of
law and facts and has justifiably recorded
conviction against the accused-appellant.

33. In the light of rival submission
and the claim raised by both the sides, the
following question crops up for our
consideration,
as
to
whether
the
prosecution has been able to prove
satisfactorily the charges against the
accused-appellants beyond all reasonable
doubt ?

34. To began with, a bare perusal of
the F.I.R. would be appropriate.

35. We gather from the perusal of the
F.I.R. as described in it by the informant-
Indrabhan Singh Saini that the incident
took place in front of his house on
04.01.2006 at 05:30 p.m. at place Mali Ka
Nagla within Police Station - Gandhi Park,
District - Aligarh. The younger brother of
the informant- Narendra Saini (deceased)
was standing in front of his house, when
the accused-appellants arrived on the spot
and Pinkoo alias Jitendra fired from his
licensed gun with intention to kill his
brother, while Sonu and Monu each held
one arm of the deceased and the mother of
the aforesaid accused- Ishwari Devi was
exhorting them. The first information report
further contains description that Sonu and
Monu also fired with their illicit arms,
which created panic and due to which, the
deceased could not be saved.

36. The written report proceeds on to
say that the incident was seen by a number
of persons of his locality including
Chandrabhan, son of Ramroop and Vipin
Kumar, son of Geetam Singh. Pressure of
the locality on the spot compelled the
accused to secure their escape from the
scene. This is the fact position as narrated
in the written report (Ext. Ka-1). The
written report is stated to have been scribed
by one Sardar Mukesh Saini, resident of
Mohalla - Gandhi Nagar, Aligarh, who is
claimed to have been one among the
persons/crowd gathered on the spot after
the occurrence. However, the scribe has not
been examined by the prosecution. As we
proceed further, we gather that this
information was given at Police Station -
Gandhi Park, where it was taken down in
the concerned Check F.I.R. at Case crime
No.04 of 2006 on 04.01.2006, under
Sections - 302, 114, 34 I.P.C. This Check
F.I.R. is Ext. Ka-4.

37. The above being the information
regarding the occurrence, certain aspects of
the case need be inquired into carefully;
firstly the place of occurrence, secondly the
use of weapon, thirdly the manner of
assault being caused on the deceased and
the claim regarding the F.I.R. being ante-
84 INDIAN LAW REPORTS ALLAHABAD SERIES
timed and suspicious. Now insofar as
testimony in regard to the place of
occurrence is concerned, we come across
testimony of two witnesses of fact namely
P.W.-1 the informant- Indrabhan Singh
Saini and P.W.-2 Chandrabhan. Rest of the
witnesses of this case are formal witnesses.
Testimony of these two witnesses is in line
with the description of the occurrence as
contained in the first information report
with difference that the weapon used by
appellant- Pinkoo alias Jitendra for killing
the deceased is stated to be licensed gun,
whereas, use of rifle has been described in
the F.I.R.

38. Explanation has come forth from
the testimony of Indrabhan Saini - P.W.1
that the scribe inadvertently wrote in the
F.I.R. name of the weapon used as licensed
rifle, whereas, it was licensed gun.
However,
he
admits
that
after
the
occurrence, he was sure that the weapon
used is gun and not rifle, which fact he had
told the investigating officer, who recorded
his statement as such, under Section - 161
Cr.P.C.

39. At this stage, a suggestion was
made to the informant (P.W.1) by the
defence that in fact, he was not present on
the spot and he did not see the occurrence.
The witnesses are highly interested, tutored
and their testimony regarding the manner
of occurrence is highly improved. The
suggestion so put forth by the defence has
been denied. However, it has been testified
by the informant - P.W.1 that in the very
night of the occurrence i.e. 04.01.2006
around 12:00 mid night or at about 12:30
a.m., his statement was recorded. Now, in
order to assess properly the veracity and
truthfulness of aforesaid specific piece of
testimony and the attendant circumstances,
we upon perusal of Parcha No.1 (of date
04.01.2006) pertaining to this case come
across the fact that the investigation
proceeded on after lodging of the F.I.R. and
took practical shape after arrival of the
police on the spot around 07:15 p.m. - the
very same day on 04.01.2006 and the
inquest was prepared by S.I. Arvind Kumar
Gautam (P.W.-4), for which instructions
were given to him by the investigating
officer, Jasvir Singh (P.W.10). Inquest was
completed by 9:00 p.m. the same night.

40. As per the description contained
in the case diary (in Parcha No.1 of date
04.01.2006) regarding night activity, it
invariably shows that after doing certain
work connected with maintaining the law
and order situation in the area where the
offence took place, the investigating officer
(P.W.-10) tried to apprehend the culprits but
could not succeed in apprehending them.
Further the Parcha proceeds on to contain
description that it being late hours of night,
the investigation for the day (04.01.2006)
was closed. This Parcha No.1 ends with the
noting that rest of the investigation shall be
taken,
the
"next
morning"
i.e.
on
05.01.2006 and Parcha No.2 pertaining to
the date 05.01.2006 reflects that the
statement
of
the
informant
P.W.1,
Indrabhan Saini was recorded on that date
i.e. 05.01.2006, but not in the midnight or
at 12:30 a.m. as stated by PW-1.

41. Apparently, reading of Parcha
No.1 (04.01.2006) of the case diary
explicitly shows that it is no denying fact
that after the inquest was prepared in the
night of 04.01.2006 at about 09:00 p.m. the
dead body was sent for postmortem
examination and no statement was recorded
and night activity of the Investigating
Officer was confined to apprehending
culprits and maintaining the law and order
situation and it being late hours of night,
2 All. Pinkoo @ Jitendra Vs. State of U.P.
85
there is no whisper in it (case diary Parcha
No.1) that statement of informant was
recorded in the night i.e. 04.01.2006 or
thereafter upto the next morning after 12:00
midnight up to 06:00-07:00 a.m. in the
morning of 05.01.2006. Certainly the next
course of investigation was adjourned for
05.01.2006 and Parcha No.2 starts with the
statement of the informant (P.W.-1) Thus
P.W.-1 Indrabhan Saini is not telling the
truth, when he says that his statement was
recorded under Section - 161 Cr.P.C.
around 12:00 midnight of 04/05.01.2006 -
the same night. Obviously, P.W.-1 has tried
to fill vital loophole on point of use of
weapon and cleverly hid the truth which he
first stated in the F.I.R. to be licensed rifle.
Therefore, statement of P.W.1 before the
trial court that he got his statement
recorded under Section - 161 Cr.P.C. at
12:00 midnight (04.01.2006) or 12:30 a.m.
(05.01.2006) (in the very night of the
occurrence) is found to be highly improved
and full of embellishment. This aspect of
the case connotes to fact that it was not
known up to and till the time of conduction
of postmortem examination as to what
weapon, in fact, has been used in
committing the offence. His testimony in
this regard is tutored. We can conveniently
observe that the postmortem examination
was done the same night of the occurrence
(04/05.01.2006) at 01:00 a.m. which proves
that one wadding piece along with seven
pellets were recovered from the body - thus
negating use of any rifle in the commission
of the offence.

42. In view of above discussion, it
becomes relevant that in case P.W.-1 was
present on the spot and saw the occurrence,
then the description of occurrence as has
been given by P.W.-1 in his statement to the
police regarding the manner of occurrence
is at great variance to the impact that there
is no whisper of fact that he saw two
accused each holding one arm of the
deceased, while Pinkoo fired on the
deceased. But his statement (under Section
161 Cr.P.C.) discloses fact that Pinkoo was
chased,
surrounded
and
killed
near
'chabutra' (terrace) of Devi Ram, which
place is far away (at a distance of 35-40
steps) from the house of the informant. In
the F.I.R. the place, where the incident took
place is stated / described to be in front of
house of the informant. This aspect of the
case throws doubt on the veracity and
genuineness of the witness and establishes
that he is not believable.

43. The manner of the assault has
been contradicted by the defence by putting
specific question to both the prosecution
witnesses of fact (PW-1 and PW-2) to the
ambit that the incident took place in
manner that the accused tried to catch/over
power the deceased, however he tried to
save himself by running away and while he
reached to the corner of 'chabutra' (terrace)
of Devi Ram, he was surrounded by the
accused and in the meanwhile, accusedappellant- Pinkoo alias Jitendra fired with
licensed gun. Both the witnesses have
denied any such statement given to the
Investigating Officer. This statement of
P.W.-1, under Section - 161 Cr.P.C. is in
utter contrast to the one recorded by the
trial court. Positively the above scrutiny of
evidence is fair enough to show that the
witness either did not see the occurrence or
came to know about the occurrence after it
had occurred.

44. The veracity of the testimony of
P.W.-1
becomes
highly
doubtful
the
moment it is found that he is not telling the
truth about the manner of occurrence, for
specific reason that he tried to manipulate
things
existing
and
articulated
by
86 INDIAN LAW REPORTS ALLAHABAD SERIES
prevarication to show that prior to the
conduction of postmortem examination of
the dead body of the decased- Narendra
Saini,- his statement had been recorded by
the Investigating Officer Jasvir Singh
(P.W.10), whereas, Parcha No.1 exposes
falsity of the claim that nothing of the sort
like recording the statement of the
informant
took
place
in
the
night
intervening 04/05.01.2006, whereas, the
next course of investigation of the case,
which began with the recording of the
statement of the informant Indrabhan Saini
took shape on 05.01.2006 - either in the
morning of 05.01.2006 or afterwards but
not prior to that. This being the case and the
witness P.W.1 being brother of the deceased
is found to be interested witness on this
point and he is improving his version in
order to show that the use of licensed rifle
was, in fact, inadvertently described in the
written report (Ext. Ka-1).