# Pradeep v. State Of U.P. Opp

- **Citation:** (2022) 3 ILRA 397
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-24
- **Case number:** Criminal Appeal No.6987 of 2009
- **Bench:** Mrs. Sunita Agarwal, J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/pradeep-v-state-of-u-p-opp-48201
- **Pages:** 39

## Headnote

Criminal Law- Code of Criminal Procedure,
1973- Section 154- Indian Evidence Act-
Section 32- The FIR whether admissible as
substantive evidence under Section 32 of
the Evidence Act-Unless the case be one
where the first informant is dead and what
he reports through the FIR are facts related
to the cause of his death, the FIR is not
admissible as substantive evidence under
Section 32 of the Indian Evidence Act, 1872-
If the informant, after lodging the FIR, were
to die a natural death, the FIR cannot be
read as substantive evidence with the aid of
Section 32 of the Evidence Act.

Only where the first informant is proved to be
dead and the contents of the FIR are directly
related to the facts of his death, can the FIR be
read under Section 32 of the Evidence Act as a
dying declaration otherwise the contents of the
FIR would be inadmissible in evidence.

Criminal Law - Code of Criminal Procedure,
1973- Section 154- Indian Evidence Act-
Section 145-The FIR to contradict or
corroborate eye-witness account, where
informant not available at the trial -The FIR
is the earliest account of the occurrence and
it is only the author of the FIR, that is to say,
the first informant, who can prove its
contents. It is he alone who can be crossexamined to contradict or corroborate him.
Once he proves the FIR, the account can be
looked into to judge the probity of other
witnesses and their testimony also. But, in
the absence of the informant entering the
witness-box to prove the FIR, its contents
cannot be held to be proved by examining
the scribe, who has written it, or the police
personnel, who have registered it.

Only the first informant can prove the contents
of the FIR and nobody else. Even the
investigating officer can merely identify the
signature of the first informant and that of his
own on the First Information Report and he can
depose about the factum of the F.I.R. being
registered by him on a particular date on a
particular police station.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 154- The fact
that the FIR is not proved for the
informant's absence does not impair the
prosecution in establishing its case at the
trial on the basis of material collected
during
investigation
and
pro

## Text

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3 All. Pradeep Vs. State of U.P.
397
proved either of them. Two eye-witnesses
were set up. Both were chance witnesses,
one, out of the two, did not support the
prosecution case during cross-examination
and denied the presence of the other at the
spot and claimed it to be elsewhere. The
other eyewitness, apart from being chance
witness, discloses that he witnessed the
incident in the light of a torch from a
distance of about 45-50 paces. The presence
of torch is not disclosed in the FIR and
during investigation no torch was shown to
the I.O. and there is no custody memo of
that torch. Further, that eye witness
statement is recorded during investigation
after 16 days. The ocular account rendered
by PW-2, if accepted, would indicate that
the deceased was being assaulted when PW2 arrived at the spot to give a challenge to
the accused from a distance of about 50
paces, where after, the accused dragged the
deceased and dumped him in a pit, which
had water. But no water was found in the
lungs of the deceased which is indicative of
a dead person having been dumped there.
This suggests that the deceased was either
killed at the spot where he was noticed being
assaulted or elsewhere. Notably, at the time
of autopsy the beard and moustaches of the
deceased were noticed smeared in blood that
had trickled from the nostrils and had also
collected in the ear but no blood was noticed
by the I.O. at the spot. The explanation
offered to explain the delay in lodging the
FIR, that is, first the body was taken out of
the pit, is belied by the testimony of the I.O.
who says that it was he, who got it out of the
pit. Further, when we notice pasty food in
the stomach, as per the autopsy report, in
absence of any evidence as to when the
deceased was served food, by rural
standards and habits, consumption of food
might have been early, say by 8:00 PM, the
possibility of death taking place on or about
midnight, much earlier to the specified time,
also cannot be ruled out. The upshot of the
entire discussion is that it appears to be a
case of a blind murder in the darkness of
night and the prosecution story has been
weaved on suspicion, or is contrived, may
be with ill-motives, by keeping an eye on
the property of the deceased; and the
prosecution evidence does not inspire our
confidence to enable us to hold that the
prosecution has been able to prove the
charges beyond reasonable doubt. Thus, the
benefit of doubt would have to be extended
to the accused-appellants. Consequently, the
appeal is allowed. The judgement and order
of the trial court is set aside. The accusedappellants are acquitted of the charge (s) for
which they have been tried. The appellants
are reported to be in jail. They shall be set at
liberty forthwith unless wanted in any other
case, subject to compliance of Section 437A Cr.P.C. to the satisfaction of the trial court
below.

24. Let a certified copy of this order
along with record of lower court be sent to
the trial court for compliance. The office is
further directed to enter the judgement in
compliance register maintained for the
purpose of the Court.
----------
(2022)03ILR A397
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.02.2022

BEFORE

THE HON'BLE MRS. SUNITA AGARWAL, J.
THE HON'BLE J.J. MUNIR, J.

Criminal Appeal No.6987 of 2009
AND
Criminal Appeal No. 6988 of 2009

Pradeep ...Appellant
Versus
State Of U.P. ...Opposite Party
398 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Sri Vijay Singh Sengar, Sri Azad Khan, Sri
Ramesh Pandey, Sri Sanjeev Mishra, Sri
Shyam Singh Sengar

Counsel for the Opposite Party:
A.G.A., Sri Nitinjay Pandey

Criminal Law- Code of Criminal Procedure,
1973- Section 154- Indian Evidence Act-
Section 32- The FIR whether admissible as
substantive evidence under Section 32 of
the Evidence Act-Unless the case be one
where the first informant is dead and what
he reports through the FIR are facts related
to the cause of his death, the FIR is not
admissible as substantive evidence under
Section 32 of the Indian Evidence Act, 1872-
If the informant, after lodging the FIR, were
to die a natural death, the FIR cannot be
read as substantive evidence with the aid of
Section 32 of the Evidence Act.

Only where the first informant is proved to be
dead and the contents of the FIR are directly
related to the facts of his death, can the FIR be
read under Section 32 of the Evidence Act as a
dying declaration otherwise the contents of the
FIR would be inadmissible in evidence.

Criminal Law - Code of Criminal Procedure,
1973- Section 154- Indian Evidence Act-
Section 145-The FIR to contradict or
corroborate eye-witness account, where
informant not available at the trial -The FIR
is the earliest account of the occurrence and
it is only the author of the FIR, that is to say,
the first informant, who can prove its
contents. It is he alone who can be crossexamined to contradict or corroborate him.
Once he proves the FIR, the account can be
looked into to judge the probity of other
witnesses and their testimony also. But, in
the absence of the informant entering the
witness-box to prove the FIR, its contents
cannot be held to be proved by examining
the scribe, who has written it, or the police
personnel, who have registered it.

Only the first informant can prove the contents
of the FIR and nobody else. Even the
investigating officer can merely identify the
signature of the first informant and that of his
own on the First Information Report and he can
depose about the factum of the F.I.R. being
registered by him on a particular date on a
particular police station.

Criminal
Law
-
Code
of
Criminal
Procedure, 1973- Section 154- The fact
that the FIR is not proved for the
informant's absence does not impair the
prosecution in establishing its case at the
trial on the basis of material collected
during
investigation
and
proved
by
leading cogent evidence.

Merely because the FIR could not be proved due
to the absence of the informant would not dent
the case of the prosecution when the same is
proved by codent and credible evidence of the
witnesses.

Evidence Law - Indian Evidence Act-
1872- Section 145- The evidence of a
witness, whose previous statement has
not been taken down, is not inadmissible.
It has merely to be approached with some
caution and relied upon after seeking
some corroboration.The evidence of such
a witness has to be carefully scrutinized,
given the disadvantage that the accused
suffers from in the absence of a previous
statement to contradict and shake his
veracity.

Where the previous statement of a witness
under Section 161 or Section 164 of the Cr.Pc
has not been taken down then the fact that the
said previous statement is not available during
the trial to contradict the said witness will not
be a ground to discard his testimony but the
same has to be considered with due caution and
circumspection by the court.

Evidence Law - Indian Evidence Act, 1872-
Section 3- Contradiction between ocular
and medical evidence - In a witness's
account
of
the
occurrence
about
something as violent as murder, where
events happen in the split of a second,
observational discrepancies may arise.
Different
persons
may
have
varying
perceptions of an event like the one about
the part of the body, where the bullet
3 All. Pradeep Vs. State of U.P.
399
struck. It is very logical in the nature of
things for two witnesses to perceive the
precise situs of the shot, particularly, in
case of a crime as dangerous and gory as
murder,
with
observational
differences.This discrepancy between the
medico-legal evidence and the testimony
of one of the witnesses of fact is not at all
so material so as to place the prosecution
under a shadow of 'reasonable doubt'.

As reactions of different people to a gory
offence like murder is different, it is not logical
to render with exactitude the author of the
injury as well as the seat of the injury and
therefore any such contradiction with the
medical evidence will not render the case of the
prosecution doubtful.

Evidence Law - Indian Evidence Act, 1872-
Section
7-
Subsequent
conduct-
The
conduct of an accused, absconding from
the place of occurrence, is very relevant as
res
gestae.
Both
the
accused
were
apprehended by the Police on way to Etah.
It is possible that being named in an FIR
and talked about in the community, a
person may abscond out of fear. But,
where the evidence against an accused is
an eye-witness account, the conduct in
fleeing the locale of the occurrence lends
support to the prosecution.

The fact that the accused fled after the
commission of the offence is a relevant fact
indicating their involvement in the offence.

Evidence Law - Indian Evidence Act, 1872-
Section 3 , 45 & 114- Adverse Inference-
It has not been laid down as an infallible
rule, in cases of direct testimony of eyewitnesses,
that
failure
to
send
the
recovered weapon of crime to the Forensic
Science Laboratory or the blood-stained
clothes and earth would subject the
prosecution to any kind of doubt. The well
acknowledged principle is that, where the
testimony
of
eye-witnesses
is
clear,
consistent
and
confidence
inspiring,
forensic co-relation is not essential to
sustain a conviction. Mere failure of the
Investigation Agency in producing reports
of the F.S.L. relating to the weapon of
offence and the blood-stained earth and
clothes would not derogate from the
veracity of the prosecution, established by
a dependable and tested eye-witness
account.PW-9 was not cross-examined at
all about the issue of the country-made
pistol being in working order or the
cartridges being live. Since that question
was not put at all to PW-9, who testified
to the recovery of the weapon and two
live cartridges, it has to be held that the
question,
if
put
and
the
report,
if
summoned, would have established the
fact and gone against the appellant,
Akhilesh.

Settled law that where the ocular evidence
is legal, cogent and trustworthy then failure
of the investigating agency to bring on
record either the report of the F.S.L or the
weapon
of
offence
would
be
of
no
consequence and if the defence fails to
cross-examine the investigating officer on
the said point then the court can take an
adverse inference that the answer to the
question would have been unfavourable to
the defence. (Para 31, 32, 35, 47, 50, 52,
64, 67, 69, 75, 79, 80, 86)

Criminal Appeal rejected. (E-3)

Judgements/ Case law relied upon:-

1. Munnu Raja & anr. Vs The St. of M.P, ( 1976)
3 SCC 104

2. Bhavanbhai Premjibhai Vaghela & ors Vs St.
of Guj., 2017SCC Online Guj 1406.

3. Shanker Vs St. of U.P. ( 1975) 3 SCC 851

4. In Re : Bheemavarapu Subba Reddi & anr, (
1947) 1 MLJ 193

5. Gabbu Vs St. of M.P. ( 2006) 5 SCC 740

6. Babar Ali Vs St. of Assam, Crl. Appl. No. 281
of 2003 ( Gau)

7. Harkirat Singh Vs St. of Punj. (1997) 11 SCC
215

8. Jayaseelan Vs St. of T.N ( 2009) 12 SCC 275
400 INDIAN LAW REPORTS ALLAHABAD SERIES
9. Rizan Vs St. of Chhatt. ( 2003) 2 SCC 661

10. Namdeo Vs St. of Maha. 2007 Cr.Lj 1819 (
1824)

11. Mritunjoy Biswas Vs Pranab @ Kuti Biswas &
anr. 2014 (4) SCC (Cri) 564

12. State of UK Vs Jairnail Singh AIR 2017 SC
5353

13. Rakesh & anr Vs St. of U.P & anr, Crl. Appl.
No. 556 of 2021 dec. on 06/ 07/ 2021 (SC).

14. Saddak Hussain Vs St. (NCT of Delhi), Crl. A.
No. 717 of 2018, LAWS ( DLH) - 2019-5-155

(Delivered by Hon'ble J.J.Munir, J.)

1. This judgment will dispose of
Criminal Appeal No.6987 of 2009 and the
connected Criminal Appeal No.6988 of
2009, both arising from the judgment and
order of Mr. Umesh Chandra, the then
Additional Sessions Judge/ Fast Track
Court
No.1,
Etah
dated
27.10.2009,
convicting the appellants, Pradeep and
Akhilesh in Sessions Trial No.149 of 2007
of the offences punishable under Section
302 read with Section 34 IPC and the
appellant, Akhilesh alone in Sessions Trial
No.148 of 2007 of the offence under
Section 25 of the Arms Act, 19591. The
appellants have been sentenced in the
manner as hereinafter detailed. While the
appellants, Pradeep and Akhilesh have
been sentenced to life imprisonment for the
offences punishable under Section 302 read
with Section 34, Indian Penal Code, 18602,
the appellant, Akhilesh has been sentenced
separately for the offence under Section 25
of the Arms Act to suffer three years'
rigorous imprisonment. The appellants
have further been sentenced to a fine of
Rs.5000/- each for the offence under
Section 302 read with Section 34 IPC and
upon default, ordered to suffer six months'
simple imprisonment additionally. A fine
of Rs.1000/- has been imposed upon the
appellant,
Akhilesh
for
the
offence
punishable under Section 25 of the Arms
Act and upon default, he has been ordered
to suffer a month's simple imprisonment
additionally. So far as the appellant
Akhilesh is concerned, there is a direction
that both sentences shall run concurrently.

2. The facts giving rise to the Appeals
are these:

A First Information Report3
dated 18.11.2006 was lodged by Satya
Prakash son of Buddhpal Singh, a resident
of Village Diuna Kalan, falling within the
local limits of Police Station Jaithra in the
Sessions Division of Etah. The FIR was
registered at 10 minutes past noon (12.10
p.m.) on 18.11.2006, regarding an incident
that took place earlier in the day, at half
past ten (10.30 a.m.), in the morning hours.
The FIR was registered at Police Station
Jaithra as Case Crime No.238 of 2006,
under Sections 302 and 504 IPC, Police
Station Jaithra, District Etah.

3. According to the FIR, the
informant was a native of Village Diuna
Kalan, Police Station Jaithra. To the south
of the village, the informant and Pradeep
son of Jagdish, also a native of the same
village, had a common tubewell (described
in the FIR as a boring). It was said that on
18.11.2006, that is the day when the FIR
was lodged, the informant, along with his
son Harveer, had proceeded to the tubewell
to irrigate his fields. They had reached the
tubewell to start the engine when Pradeep
and Akhilesh alighted there, and abusing
the two, asked the informant and his son
not to run the tubewell. This led to a
dispute between them with two on each
side, whereupon Pradeep and Akhilesh
3 All. Pradeep Vs. State of U.P.
401
went back to the village and fetched a
country-made pistol and a country-made
rifle. The informant and his son, upon
seeing the two approach carrying fire-arms,
fled towards the village. Both the brothers
gave the informant and his son a chase and
at 10:30 in the morning, shot the
informant's son in front of one Ram
Prakash's house. The informant's son died
on the spot. The first information further
records that Rajendra Singh son of Khem
Karan, Ajaypal son of Ramdeen and Ram
Prakash son of Pokhpal Singh, besides
other natives of the village, were present,
who witnessed the occurrence. It was also
reported that the dead body was lying at the
site of occurrence. This written information
was signed by the first informant and
scribed by Ram Autar son of Gokul Singh,
also a resident of Village Diuna Kalan.

4. On the basis of the said
information, Case Crime No.238 of 2006,
under Sections 302, 504 IPC was registered
at Police Station Jaithra vide G.D. No.30.
The Station Officer left the station at 12:10
hours. The Police reached the spot at 12:45
p.m. and held inquest. The inquest report
was drawn up under the directions of the
Station Officer by Head Constable Nepal
Singh. The Station Officer, Udai Vir Singh
Malik took up the investigation. He
collected samples of blood-stained and
plain earth from the spot, drawing up a
common memorandum for the purpose.
The place of occurrence was inspected and
on identification by the first informant, a
site plan was drawn up.

5. After proceedings of the inquest
were
over,
the
Investigating
Officer
addressed a memo to the Chief Medical
Officer, requiring him to do an autopsy. He
also did a sketch of the corpse (photo lash)
and sent the dead body for autopsy. Dr.
Pradeep
Kumar
Gupta,
PW-5,
who
conducted the autopsy on 18.11.2006 at
4:55 p.m., found the following antemortem injuries on the person of the
deceased :

"(1) A Firearm wound of entry:
2cm X 1cm X through & through on the
right side lower part of chest and only
10cm below right nipple at 7 o'clock
position margins inverted.

(2) A Firearm wound of exit 2.5
cm X 1.5cm X communicating e injury
no.(1) on the lower back left side 4cm from
middle and 15cm from left ant. sup. Iliac
spine, margins everted.

Direction: anterior to posterior."

6. In the opinion of the Doctor, death
had occurred one-third of a day before
autopsy and it was due to shock and
haemorrhage as a result of ante-mortem
injuries.

7. On 20th November, 2006, that is to
say, the third day following the occurrence,
PW-9, Udai Vir Singh left the station at
7:30 a.m. in his official Jeep in connection
with investigation into Case Crime No.238
of 2006, under Sections 302, 504 IPC. He
had with him Constable No.718 Mahesh
Chandra, Constable No.1158 Nand Lal,
Constable No.529 Vinod Kumar and the
driver of the official Jeep, Constable-Driver
No.824 Brijesh Kumar. He was on the
lookout for the wanted accused in the case.
The Investigating Officer was proceeding
on the Jaithra - Dariyabganj Road and had
reached the Baniadhara Trivium, when he
received information from a secret informer
that near Village Baniadhara at the trivium
of the kachcha road, that connects Village
Diuna Kalan, the appellants were waiting to
402 INDIAN LAW REPORTS ALLAHABAD SERIES
board a vehicle to escape to Etah. They
could be apprehended if prompt action
were taken. The Investigating Officer
proceeded to the spot, and on the pointing
out of the informer, found the appellants
sitting by the side of the Trivium of the
roads leading to Baniadhara and Diuna
Kalan.

8. Shorn of unnecessary detail, the
appellants were arrested employing of
necessary force. Nothing was recovered
from possession of the appellant, Pradeep,
but a search of the appellant, Akhilesh led
to the recovery of a country-made pistol of
.315 bore from his right pocket and two
live cartridges of the same caliber from the
left. A recovery-cum-arrest memo was
drawn up, where it is mentioned that the
appellant, Akhilesh confessed that this was
the weapon that he had used in murdering
Harveer on 18.11.2006. Arrest followed as
both the appellants were wanted in Case
Crime No.238 of 2006. It was also recorded
in the recovery-cum-arrest memo that no
member of the public volunteered to
witness the recovery and the recovery-cumarrest memo was signed by members of the
police party and the two accused.

9. On the basis of the recovery-cumarrest memo dated 20.11.2006, Case Crime
No.239 of 2006, under Section 25 of the
Arms Act, Police Station Jaithra, District
Etah was registered against Akhilesh alone.
The aforesaid crime was registered on
20.11.2006 at 1:15 p.m. The investigation of
this case was entrusted to Sub-Inspector, Shiv
Nandan Singh, while Case Crime No.238 of
2006 was investigated by the Station Officer,
Udai Vir Singh Malik, PW-9, who after
investigation, filed a charge sheet dated
24.11.2006 against the appellants in Case
Crime No.238 of 2006, under Sections 302,
504 IPC. Sub-Inspector Shiv Nandan Singh
filed a charge sheet against the appellant,
Akhilesh Singh on 27.12.2006 in Case Crime
No.239 of 2006, under Section 25 of the
Arms Act.

10. Cognizance of the charge sheet in
Case Crime No.238 of 2006 was taken by the
Magistrate on 20.12.2006, whereas of the
charge sheet in Case Crime No.239 of 2006
against the appellant, Akhilesh, cognizance
was taken cognizance on 18.01.2007. The
cases were committed to the Court of
Sessions by the Magistrate. After committal,
the case was received by the Sessions Judge
on 14.02.2007, but cognizance of both cases
was taken vide separate orders dated
24.09.2007 passed by the learned Sessions
Judge. Sessions Trial No.149 of 2007 was
assigned to the case arising out of Case
Crime No.238 of 2006, under Sections 302
read with 34, 504 IPC whereas Sessions Trial
No.148 of 2007 was assigned to the case
arising out of Case Crime No.239 of 2006,
under Section 25 of the Arms Act against the
appellant Akhilesh alone. Both the trials were
consolidated, with S.T. No.149 of 2007 being
tried as the leading case. Charges were
framed in both the Sessions Trials also on
24.09.2007. For more than obvious reasons,
common evidence was recorded in both the
trials.

11. In order to prove their case, the
prosecution have examined the following
witnesses:

(1) PW-1, Rajendra Singh (a
native of the informant's village and a
witness of fact who turned hostile);

(2) PW-2, Ram Autar (scribe of
the written report);

(3) PW-3, Ajay Pal (witness of
fact);
3 All. Pradeep Vs. State of U.P.
403

(4) PW-4, Smt. Girja Devi
(another witness of fact and the deceased's
mother);

(5) PW-5, Dr. Pradeep Kumar
Gupta
(the
doctor
who
conducted
postmortem examination on the deceased's
corpse);

(6)
PW-6,
Constable-Clerk
Makkhan Lal (who registered the case,
drew up the Check FIR relating to Crime
No.238 of 2006 and made the requisite
G.D. Entry in the Station Diary. He is a
formal witness);

(7) PW-7, Constable Mahesh
Chandra (a witness of recovery-cum-arrest
memo);

(8) PW-8, Constable Raj Narain
(who registered the case, drew up the
Check FIR relating to Crime No.239 of
2006 and made the requisite G.D. Entry in
the Station Diary. He is a formal witness);

(9) PW-9, S.O. Udaivir Singh
Malik (Investigating Officer of the leading
case); and,

(10) PW-10, Constable Gopi
Chandra (who proved the site-plan and
charge-sheet relating to Crime No.239 of
2006).

12. The prosecution have relied on the
following documentary evidence:

Sr. No. Exhibit No. Exhibited
documents with brief particulars

1. Ex. Ka-1 Written report
lodged with the Police Station Jaithra by
 Satya Prakash and
proved by PW-2, Ram Autar, scribe of the
 written report.
 2. Ex. Ka-2 Postmortem report
of the deceased dated 18.11.2006, proved
by
 PW-5, Dr. Pradeep
Kumar Gupta.

3. Ex. Ka-3 Check FIR dated
18.11.2006 relating to Crime No.238 of
2006,
 drawn up by PW-6,
Constable Makkhan Lal.
4. Ex. Ka-4 Carbon Copy of
G.D. Entry No.30 time 12:10 p.m. relating
to
 Crime
No.238
of
2006, made by PW-6, Constable Makkhan
Lal.
5. Ex. Ka-5 Recovery-cumarrest memo proved by PW-7, Constable
Mahesh
 Chandra.
6. Ex. Ka-6 Check FIR dated
20.11.2006 relating to Crime No.239 of
2006,
 drawn up by PW-8,
Constable Raj Narain.

7. Ex. Ka-7 Carbon Copy of
G.D. Entry No.19 time 13:15 p.m. relating
to
 Crime No.239 of
2006, made by PW-8, Constable Raj
Narain.
8. Ex. Ka-8 Site plan of the
place of occurrence, where the deceased
was
 done to death, dated
18.04.2006, proved by PW-9, S.O. Udai
 Vir Singh Malik.
404 INDIAN LAW REPORTS ALLAHABAD SERIES
9. Ex. Ka-9 Inquest report
drawn up by HCP-Nepal Singh and proved
by
 PW-9, S.O. Udai Vir
Singh Malik.
10. Ex. Ka-10 Letter sent by the
S.S.P.,
Etah
to
the
C.M.O.
dated
18.04.2006
 requesting
an
autopsy, proved by PW-9, S.O. Udai Vir
Singh
 Malik.
11. Ex. Ka-11 Sketch of the corpse
(Photo Lash), dated 18.04.2006, proved
 by PW-9, S.O. Udai
Vir Singh Malik.
12. Ex. Ka-12 Challan Lash (Police
Form - 13), dated 18.04.2006,
 proved
by
PW-9,
S.O. Udai Vir Singh Malik.
13. Ex. Ka 13 Letter to the
C.M.O. dated 18.11.2006 drawn up by
HCP
 Nepal
Singh,
proved by PW9 S.O. Udai Vir Singh
Malik
14. Ex. Ka-14 Memo regarding
collection of plain and blood-stained earth,
 proved by PW-9,
S.O. Udai Vir Singh Malik.
15. Ex. Ka-15 Recovery
memo
of
empties, proved by PW-9, S.O. Udai Vir
 Singh Malik.
16. Ex. Ka-16 Charge-sheet no.143/06
relating to Crime No.238 of 2006,
 dated 24.11.2006,
drawn up and proved by PW-9, S.O. Udai
Vir
 Singh Malik.
17. Ex. Ka-17 Site plan relating to
Crime No.239 of 2006, dated 27.12.2006,
 drawn up by S.I.
Shiv Nandan and proved by PW-10,
Constable
 Gopi Chandra.
18. Ex. Ka-18 Charge-sheet relating
to
Crime
No.239
of
2006,
dated
27.12.2006,
 drawn up by S.I. Shiv
Nandan and proved by PW-10, Constable
 Gopi Chandra.
19. Ex. Ka-19 Case Diary (S.C.D.-I
dated
17.01.2007)
relating
to
Crime
No.239
 of
2006,
under
Section 25 of the Arms Act, drawn up by
S.I. Shiv
 Nandan
Singh,
proved
by
PW-10,
Constable
Gopi
Chandra.
20. Ex. Ka-20 Sanction of
prosecution relating to Crime No.239 of
2006, under
 Section 25 of the Arms
Act granted by the District Magistrate,
Etah.

13. In the statement under Section
313 Cr.P.C., the appellants have denied the
incriminating circumstances appearing in
the evidence against them, but have not
entered defence. To the last question under
Section 313 Cr.P.C., asking the accused if
they had anything else to say in their
defence that they wished, they answered in
the negative. The Trial Judge, upon
conclusion of the trial, has proceeded to
convict the appellants by the judgment
impugned.

14. While Pradeep has preferred
Criminal Appeal No.6987 of 2009 from the
impugned judgment and order, Akhilesh
3 All. Pradeep Vs. State of U.P.
405
has preferred Criminal Appeal No.6988 of
2009. Both the Appeals have been
connected and heard together with Criminal
Appeal No.6987 of 2007 being treated as
the leading case.

15. Heard Mr. Shyam Singh Sengar,
learned Counsel for the appellants and Mr.
Mohd. Shoeb Khan, learned A.G.A. for the
State.

16. The prosecution seek to establish
the charge against the two appellants about
the deceased being done to death by them
in furtherance of a common intention on
18.11.2006 at 10:30 a.m. in front of the
house of one Ram Prakash son of Pokhpal
at the parties' Village Diuna Kalan within
the local limits of Police Station Jaithra,
District Etah. It would be convenient to
evaluate the prosecution case under distinct
heads of relevant facts, relating to which
evidence has been led.

Time, place and manner of
occurrence

17. There is not much issue about the
date and time of incident. It is 18.11.2006
at 10:30 a.m. The place of occurrence, that
the prosecution urge, is in front of the
house of Ram Prakash in Village Diuna
Kalan, Police Station Jaithra, District Etah.
The earliest account about the manner of
occurrence is to be found in the FIR, where
it is said by the first informant, Satya
Prakash that he had gone to the tubewell,
located towards the south of the village,
along with the deceased, his son on
18.11.2006 in order to irrigate his fields.
There, the informant and his son were
abused by the appellants, who prevented
them from starting up the engine. This led
to
a
dispute
between
parties,
in
consequence whereof, the appellants went
back to the village and fetched illegal
weapons.
Seeing
the
two
appellants
approach armed, the father and the son
made a dash for the village. They were
given a chase. The appellants shot the
deceased, employing their illicit firearms at
10:30 in the morning hours, in front of Ram
Prakash's door. The deceased died on the
spot. The prosecution seek to sustain the
charges largely by the evidence of two out
of the four witnesses of the fact, to wit,
Ajaypal, PW-3 and Smt. Girja Devi, PW-4.

18.

Ajaypal,
PW-3,
in
his
examination-in-chief, has said that the
deceased, Harveer was murdered about a
year or a year and a quarter ago. He was
murdered at 10:30 in the day, 20-25 paces
away from his house. Those, who killed
him, are Akhilesh and Pradeep. Pradeep
was wielding a rifle, while Akhilesh was
armed with a country-made pistol. It is also
said that Pradeep and the first informant,
Satya Prakash had a common tubewell. The
two had a quarrel over it, that led to the
murder. In his cross-examination, this
witness has testified as follows:

"घटना वाले णदन मैं अपने गाुंव में था।
मैं अपने घर पर मौजूदा था। जब फायर की
आवाज सुनी तब अपने घर से चल णदया। कुल
20 कदम का फासला है। इुंजन रखने की बात
कहााँ हई मुझे नहीुं मालुम। जब तक मैं पहाँचा
एक फायर हो चुका था। दूसरा हआ था। गोली
हरवीर के पीठ में लगी थी। गोली मारते ही दोनोुं
आदमी भाग गये थे। दोनोुं ने हरवीर पर फायर
णकये। णजस समय मैं पहाँचा वहााँ पूरा ही गााँव
मौजूद था। णकस णकसका नाम बतााँऊ।

घटना स्थल पर मैं वहीुं बना रहा तथा
लाश के साथ साथ ही रहा। जब तक दफना नही
णदया तब तक साथ ही रहा कहीुं नहीुं गया।
ररपोटट मेरे सामने नहीुं णलखी गई थी।"
406 INDIAN LAW REPORTS ALLAHABAD SERIES

19. Again, about the manner of
occurrence, the other witness, who has
testified, is Smt. Girja Devi, PW-4. She has
said in her examination-in-chief that the
incident happened a year and five months
ago. Her husband and son had left for the
tubewell at 8 o'clock in the morning. The
tubewell is a common facility with the
appellant Pradeep. There was an exchange
of sharp words, involving use of the
tubewell, after which Akhilesh and Pradeep
(the appellants) went home. They fetched a
rifle and a country-made pistol. Her
husband, Satya Prakash and her son,
Harveer (the deceased) were standing at the
house of Ram Prakash. Akhilesh shot her
son. Pradeep had fired the first shot. When
Pradeep had fired, the witness was at home.
She has then corrected herself to say that
she was just outside. It is then said that it
was Akhilesh who shot the deceased. The
deceased died on the spot. In her crossexamination recorded on the same day,
PW-4 has stated thus:

"मेरे लडके ने 10 बजे कलेऊ
(नाश्ता) णकया था। मेरे लडके ने फूलगोभी की
सब्जी व रोटी खाई थी। 2 रोटी खाई थी। पानी
भी णपया था। रोटी खाने के बाद 1/2 घुंटा घर पर
ही रहे। उसके बाद प्रकाश के दरवाजे पर
प्रकाश ये अजय पाल, राजेन्द्र, सत्य प्रकाश थे
और कोई नहीुं था। गोली लगने के बाद सभी
गााँव के लोग आ गये। 10 बजे मैं अपने घर में
खाना बना रही थी णफर कहा णक 10 बजे तक
खाना बना चुकी थी। उसके बाद घर के बाहर मैं
अपना काम कर रही थी। प्रकाश के दरवाजे पर
अखलेश व प्रदीप ने कहा णक आप इुंजन मत
लगाइये इुंजन मेरा लगा था बोररुंग साझे-2 का था
इुंजन सुबह लगाया था। इस बोररुंग से 3-4 साल
से हम खेत भरते चले आ रहें हैं। इस घटना से
पहले हमारे और प्रदीप के बीच कोई वाद णववाद
बोररुंग के बारे में नही हआ। प्रदीप व अखलेश
मेरी सगी बहन के लडके हैं। पहले फायर के
बाद तुरन्त ही दूसरा फायर कर णदया था। फायर
करीब 20-25 कदम की दूरी से णकया था। गोली
तमुंचे की लगी थी जो करीब एक हाथ लम्बा
होगा। जो पीतल की लम्बी वाली पतली गोली
होती है वहीुं चलाई थी। गोली कोख में लगी थी।
जहााँ गोली लगी थी वह जगह देखी थी मेरा
लडका पेंट शटट पहने था। टी शटट चोखना था
नेक नेक काली नेक नेक हरी थी। पेंट आसमानी
रुंग की थी। चप्पल पहने था। बणनयान पहने था।
इसके अलावा और कोई कपडा नहीुं था बोररुंग
घर से करीब 100 कदम दूर होगा। बोररुंग के
पास झगडा नही हआ था। वहााँ मुाँह चावर हई
थी। मुाँह चावर सुबह 9 बजे के करीब हई थी मैं
उस समय बोररुंग पर मौजूद थी। जब मुाँह चावर
हई थी। मैं उन्हें वहीुं छोड आई थी और घर चली
आई थी। उसके बाद वही 10 बजे लौट कर
आये। मुाँह चावर के समय हमारे व अखलेश
और प्रदीप के अलावा और कोई नहीुं था। मैं
इसकी णशकायत करने अपनी बहन के यहााँ नहीुं
गई थी। अपने घर चली आई थी।"

20. There is a distinctive feature about
this case, where the first informant, Satya
Prakash has been abducted some time in
the year 2007, a fact that can be reckoned
about the time of its occurrence from the
testimony of PW-2, Ram Autar. Ram
Autar, in his examination-in-chief on
02.04.2008, has stated that Satya Prakash
was abducted 6-7 months ago. He does not
know, whether he is dead or alive. It has
figured in the judgment of the learned Trial
Judge that a photostat copy of the FIR is on
record, where, relating to the abduction of
Satya Prakash, a crime was registered
against Pradeep and some other persons
under Section 364 IPC. Thus, Satya
Prakash was no longer available to testify
in the dock. It is for this reason that the FIR
lodged by Satya Prakash has been proved
3 All. Pradeep Vs. State of U.P.
407
by PW-2, Ram Autar, who is the scribe of
the written first information.

21. It is argued by the learned
Counsel for the appellants that the manner
of occurrence described in the FIR is quite
different from what the two witnesses of
fact, PW-3 and PW-4 have said. While the
FIR clearly makes it out to be a case where
the deceased along with the first informant,
Satya
Prakash,
was
chased
by
the
appellants and the deceased shot in front of
Ram Prakash's house, the testimony of PW3, Ajaypal shows that the deceased was
standing outside Ram Prakash's house,
when the appellants came over and shot
him. The testimony of PW-4, Smt. Girja
Devi also suggests that the deceased, after
eating his breakfast, had gone out of his
home, when he was shot by the appellants
in front of Ram Prakash's house. It is urged
that in the account of the two witnesses,
there is nothing about an immediate quarrel
at the tubewell, followed by the appellants
fetching firearms and then chasing the
victim party to shoot the deceased. It is
urged, therefore, by the learned Counsel for
the
appellants
that
the
manner
of
occurrence, or to speak more precisely, the
manner
of
assault
is
so
differently
described by the two witnesses of fact from
the way it is put in the FIR that the
prosecution falls under a cloud of doubt.

22. We have perused the evidence on
record and considered the totality of
circumstances. We are afraid that the
learned Counsel for the appellants is not
right about his submission on this score.
For one, the testimony of the first
informant is not available and for that
reason, the contents of the FIR cannot be
looked into, except the fact that it was
dictated by the informant, written by the
scribe, signed by the two and lodged at the
police station on the date and time
recorded. Therefore, the testimony of the
two eye-witnesses has to be evaluated,
putting aside the account of the occurrence
carried in the FIR. We would shortly dwell
upon the law that impels us to discount the
FIR for the contents of it. We are of
opinion that the evidence of both witnesses,
about the occurrence, is truthful from their
individual vantage. The two witnesses,
who, according to their account, were in
their homes located a few paces away from
the place of occurrence, came out on
hearing the first shot ring. The first shot is
attributed to Pradeep, using his rifle, which
did not hit target. The second shot by
Akhilesh, employing his country-made
pistol, was the fatal one, that the witnesses
saw.

23. It is fallacious for the learned
Counsel for the appellants to say that the
version of the two witnesses, PW-3 and
PW-4 be tested with reference to the
account of the occurrence in the FIR. That
would be a possibility if the first informant
were available and produced in the dock to
prove the FIR. He could then be
contradicted or corroborated with reference
to it. The other witnesses' account would
also then be tested on the anvil of the first
information version. Here, the contents of
the FIR, for reasons that we would
presently indicate, cannot be looked into at
all. There is absolutely no warrant to test
the veracity of the dock evidence of PW-3
and PW-4 with reference to the first
information version, that has not been
proved
because
of
the
informant's
disappearance attributed to an abduction.
The testimony of PW-3 and PW-4 has to be
assessed for its worth on other parameters.
What is consistent about the account of the
two witnesses relating to the manner of
occurrence is that the deceased was shot at
by the two appellants. PW-4 says that
408 INDIAN LAW REPORTS ALLAHABAD SERIES
Pradeep missed target and Akhilesh fired
the fatal shot from his country-made pistol.
PW-3 does not go into this detail, but says
that both the appellants opened fire. It is
also the consistent version of the two
witnesses of fact that the deceased was shot
in front of Ram Prakash's house.

24. The fact that it was the appellants
who shot the deceased employing their
respective weapons and they shot him in
front of Ram Prakash's house at 10:30 in
the morning is a consistent account in the
evidence of both the eye-witnesses. PW-4
has specified and attributed the fatal shot to
Akhilesh. PW-3, in his account, is
generally consistent about the assault by
the appellants, employing firearms, though
he does not specify as to which of the
appellants hit target.

25. It also figures in the testimony of
both PW-3 and PW-4 that the genesis of
the dispute was a quarrel over a shared
tubewell facility. PW-4 Smt. Girja Devi,
being the mother of the deceased and the
informant's wife, has naturally described
the details of events about the verbal
altercation between the two sides a little
earlier over the use of the shared tubewell.
Her account is logically more detailed
about the genesis of the occurrence, which
was a dispute over use of the tubewell,
compared to the other witness. But, there is
nothing in the evidence of these witnesses,
that may cast a shadow of doubt over the
projected manner of occurrence, which
originated in a dispute between parties
regarding use of the common tubewell and
ended in this crime.

26. We are, therefore, not in
agreement with the submission of the
learned Counsel for the appellants that
there is any doubt about the manner of
occurrence, which the prosecution allege.
We, therefore, hold that the time, place and
manner of occurrence is established by the
prosecution beyond reasonable doubt.

The FIR whether admissible as
substantive evidence under Section 32 of
the
Evidence
Act
or
available
to
contradict or corroborate eye-witness
account, where informant not available
at the trial

27. There is a peculiar feature of this
case, where the first informant has
disappeared some 6-7 months back prior to
the case going to trial. The prosecution say
that the informant had been abducted and
an FIR was lodged against Pradeep for an
offence punishable under Section 364 IPC.
In the examination-in-chief of PW-2, Ram
Autar, it has been testified:

"सत्य प्रकाश का आज 6-7 माह
पहले अपहरि हो गया था। मुझे नहीुं पता णक
वह मर गये हैं या णजन्दा है।"

28. The learned Sessions Judge has
remarked that PW-2 proved that Satya
Prakash
had
been
abducted.
This
conclusion appears to have been drawn
because the testimony of PW-2 in the
examination-in-chief extracted above was
never challenged or contradicted. The
learned Sessions Judge has taken additional
note of the fact that a photostat copy of the
FIR relating to the case reporting Satya
Prakash's abduction is on record, where the
appellant, Pradeep and some other men are
the accused. We must take judicial notice
of the fact, on the basis of records of this
Court, that Pradeep was tried on the charge
of
abducting
Satya
Prakash
by
the
Additional Sessions Judge, Court No.4,
Etah in S.T.