# Ram Bali & Ors v. State of U.P - **Citation:** (2021) 11 ILRA 916 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2021-11-17 - **Case number:** Criminal Appeal No. 1706 of 2004 - **Bench:** Arvind Kumar Mishra-I - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ram-bali-ors-v-state-of-u-p-46680 - **Pages:** 12 ## Headnote Govt. Advocate, Sri Nagesh Kumar, Sri Pandey Balkrishna, Sri S.C. Pandey Probability of FIR being ante-timed cannot be ruled out-no forensic report to confirm that the weapon was used in causing injury-doctor's version about the 11 All. Ram Bali & Ors. Vs. State of U.P. 917 fatality of injury is not based on any supporting material. Appeal allowed. (E-9) ## Text _Characters 0–39,878 of 44,298. This is a partial read: ask again with offset=39878 for what follows._ 916 INDIAN LAW REPORTS ALLAHABAD SERIES has firstly evaded revealing full facts with respect to the arrival of Aparajita (deceased) on Raksha Bandhan i.e. 29.8.2004 when the occurrence took place; and secondly, the testimony as regards the transport of injured to Awadh Hospital is completely blank and the questions were sidetracked by the witness in oblivion. Failure of Investigating Officer to collect any information from densely populated neighborhood was a clear abuse of investigation once he acted so promptly as is evident from the record. The credibility of such a testimony by any stretch of imagination does not satisfy the standard of beyond reasonable doubt unless the material gaps were filled by the investigation. The case of the prosecution had no legs to stand irrespective of the fact how strong the corroborative evidence collected by the investigation was claimed to be. Moreover, the unnamed person in the FIR could not be traced at all. 49. The trial court while dealing with the evidence of PW-1, has drawn overreaching conclusions both on the aspect of arrival of the deceased at the place of occurrence and her transport as injured to Awadh Hospital. The conclusions drawn by the trial court on these two vital facts for want of a definite stand of the witness (PW-1) belie his residual testimony. Thus, the judgement impugned heavily relying upon the direct evidence of PW-1 is erroneous, perverse and shocking to the conscious of justice. A witness whose testimony is tainted must be visited with a consequence but the issue is left open in an appropriate case. 50. Having had the privilege of going through the judgement authored by my esteemed brother, Manish Kumar, J. I fully concur with the reasoning, position of law and the conclusions drawn. The testimony of PW-1 being the main witness was peculiar hence deemed proper to be dealt with in the light of what has been recorded above. 51. For the reasons given and discussions held in the judgment as above, we hold that the prosecution case is not proved and the conviction of the appellants and the sentence awarded by the trial court is not sustainable. 52. The appeals are thus, allowed and the judgment and order dated 23.04.2008 sentencing and convicting the appellants i.e. Vishal Gupta and Alok Gupta under Sections 302 read with Section 120-B IPC is hereby set aside. The appellants, who are in jail shall be released and set free forthwith, if not wanted in any other case. 53. A copy of this judgment shall be kept in the record of Criminal Appeal No. 1479 of 2008 as well as in Criminal Revision No. 294 of 2008. ---------- (2021)12ILR A916 APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 17.11.2021 BEFORE THE HON'BLE ARVIND KUMAR MISHRA-I, J. Criminal Appeal No. 1706 of 2004 Ram Bali & Ors. ...Appellants Versus State of U.P. ...Respondent Counsel for the Appellants: Sri H.N. Singh, Sri Arvind Srivastava, Sri B. Narayan Singh, Sri Rajiv Lochan Shukla, Sri Rishabh Kumar, Sri Manish Dwivedi, Sri Anil Kumar Pandey Counsel for the Respondent: Govt. Advocate, Sri Nagesh Kumar, Sri Pandey Balkrishna, Sri S.C. Pandey Probability of FIR being ante-timed cannot be ruled out-no forensic report to confirm that the weapon was used in causing injury-doctor's version about the 11 All. Ram Bali & Ors. Vs. State of U.P. 917 fatality of injury is not based on any supporting material. Appeal allowed. (E-9) (Delivered by Hon'ble Arvind Kumar Mishra-I, J.) (1) Heard Sri Raijv Lochan Shukla, Sri Arvind Srivastava, learned counsel for the appellants as well as learned counsel for the informant and Sri Bhanu Prakash Singh, learned Brief Holder for the State and perused the record. (2) By way of instant criminal appeal, challenge has been made to the authenticity and sustainability of the judgement and order dated 25.03.2004 passed by Additional Sessions Judge/F.T.C. No.-3, Mirzapur in Sessions Trial No. 224 of 1998 (State Vs. Ram Bali and others), under Sections 307, 504, 506 IPC, and Sessions Trial No.396 of 1999, under Section 25 Arms Act, Police Station- Kotwali Dehat, District- Mirzapur, whereby in Sessions Trial No.224 of 1998 the appellant- Ram Bali has been convicted and sentenced to undergo 7 years R.I. coupled with fine Rs.3000/- and the two other co- accused- appellants- Prakash Chandra and Subhash Chandra have been convicted and sentenced for offence u/s 307 read with Section 34 IPC to undergo 7 years R.I. coupled with fine Rs.3000/- and default clause stipulated additional R.I. for one year to be suffered by the concerned (defaulter) appellant's- aforesaid. Further, in Sessions Trial No.396 of 1999 appellant- Ram Bali who was tried alone has been convicted and sentenced to undergo two years R.I. coupled with fine Rs.1000/- and default clause stipulated four months additional imprisonment. (3) Prosecution case as discernible from record appears to be that the informant- Servesh Kumar Mishra s/o Radhey Shyam Mishra resident of Bhueli Pandey, Police Station Kotwali Dehat, District Mirzapur lodged written report- Exhibit Ka-1 at Police Station- Kotwali Dehat around 11.20 A.M. on 28.08.1995 regarding the incident that took place at village- Bhueli Pandey around 9.30 A.M. the same day (28.8.1995) by describing that there is enmity on account of landed property between the informant's family and the accused- say- Rambali and others. On 28.08.1995 at about 9.30 A.M. Ram Bali s/o Rajroop Mishra possessing country-made gun in his hand accompanied by his two sons- Prakash Chandra Mishra and Subhash Chandra Mishra both possessing 'lathi' and 'danda' (stick) in their hands, arrived on the spot and insisted for raising construction (wall) over the disputed land. When they were intercepted by the uncle of informant- Bihari, they felt agitated and accused-appellant- Ram Bali with intention to kill fired with the countrymade gun on the uncle of informant- Bihari due to which he fell down on the ground and in the meanwhile, the informant- Servesh Kumar Mishra, Doodh Nath Choubey and Tikori Dubey arrived on the spot, saw the incident and intervened in the matter, when the accused abusing the informant fled away from the scene. This written report is Exhibit Ka-1. (4) Contents of this written report were taken down in the concerned Check FIR on 28.08.1995 at 11.20 A.M. at case crime no.251 of 1995, under Sections 307, 504, 506 IPC at Police Station- Kotwali Dehat, district- Mirzapur. The copy of the Check F.I.R. is Exhibit Ka.5. Consequent upon entries so made in the Check FIR, a case was registered against the accused at aforesaid case crime number, under aforesaid sections of Indian Penal Code vide entry made in the concerned General Diary. The relevant G.D. Entry is Exhibit Ka-6. (5) The investigation ensued and it was taken over by S.I. Ram Dhani C.W.1 on 28.08.1995. He obtained the copies of the 918 INDIAN LAW REPORTS ALLAHABAD SERIES relevant document the written report, check F.I.R. etc. made relevant entries in the case diary arrived on the spot inspected the spot and prepared the site plan, which is Exhibit Ka-2. (6) The injured- Bihari s/o Jag Mohan aged about 42 years resident of Bhuli Pandey, Police Station Kotwali Dehat, District- Mirzapur was brought by Constable Shambhu Nath Yadav at District Hospital, Mirzapur on 28.8.1995 and injured- Bihari was medically examined at 12.00 noon. The following injuries have been noted by Dr. I.N. Tiwari C.W.2 at the time of medical examination on the person of injured Bihari. (1) Firearm injury 0.3 cm x 0.2 cm wound of entry and blackening around the wound in area of 0.4 cm x 0.3 cm with contused swelling in area of 3.5 cm x 2 cm around the wound, situated on left side of forehead 1 cm above the outer part of left eyebrow, serous oozing present, K.U.O., advised X- ray skull (2) Abrasion 0.4 cm x0.4 cm on right side of chest 2 cm medial to right nipple. (3) Abrasion 0.4 cm x0.2 cm on dorsal aspect of left thumb 4 cm proximal to tip of thumb. In the opinion of Doctor all injuries were fresh in duration. Injury no.1 was kept under observation. Advised X-ray skull and injury nos.2 and 3 were stated to be simple in nature caused by friction, whereas injury no.1 was opined to have been caused by firearm and referred to surgeon for expert opinion. This injury report is Exhibit Ka-11. (7) During the course of investigation on 29.8.1995 at 13.30 hours accused- appellant- Ram Bali was arrested and got recovered the country-made gun from his house. The Investigating Officer prepared the memo of arrest and recovery- Exhibit Ka-7- and lodged report under Arms Act against the accused Ram Bali. Consequently, on the basis of aforesaid memo of arrest and recovery, a case was registered at Police Station- Kotwali Dehat at Case Crime No.254 of 1995, under Section 25 Arms Act on 29.8.1995 at 13.30 hours. Consequently, vide relevant GD entry of the above date, case was also registered under aforesaid Section of Arms Act. The relevant General Diary entry is Exhibit Ka-10. (8) After completing the investigation, charge-sheet was filed against the accused- appellants by the Investigating Officer on 3.10.1995 under Sections 307, 504, 506 IPC, Exhibit Ka-4. This witness has also proved the Check FIR, Exhibit Ka-5 and has also proved the relevant entries made in the concerned General Diary on 28.8.1995 and has proved copy of General Diary as Exhibit Ka-6. He prepared the site plan of the place of recovery of country-made gun, pertaining to case crime no.254 of 1995, under Section 25 Arms Act which is Exhibit Ka-8 and proved also on the basis of recovery of country-made gun, fact that report was lodged under Arms Act at aforesaid case crime no.254 of 1995 and the relevant check FIR is Exhibit Ka-9. He also has proved the relevant General Diary entry, whereby the case was registered under 25 Arms Act as Exhibit Ka-10. He has also proved the countrymade gun as material Exhibit-1. (9) It is to be clarified that as per the record available and the testimony of doctor witness C.W.2 Dr. I.N. Tiwari, he has proved the medical examination report as Exhibit Ka-11. (10) Perusal of the record and the testimony on record further reveal that the letter dated 28.8.1995 for conducting medical examination of the injured addressed to Medical Officer Incharge Sadar Hospital, district Mirzapur was inadvertently misspelled as Exhibit Ka-11 (due to clerical error), whereas for the purpose of convenience the Exhibit number of the aforesaid letter should be 11 All. Ram Bali & Ors. Vs. State of U.P. 919 anything than 11-A now for sake of convenience the same is re-numbered as Exhibit 11-A and the same shall be referred as such from hence onward as and when so required (hereinafter referred to as paper no. Exhibit no.11-A). (11) Constable Diwakar Rai C.W.3 has proved the death of the Investigating Officer- D.N. Tiwari who conducted investigation in case crime no.254 of 1995, under Section 25 Arms Act, accordingly, he has proved the charge-sheet filed by the aforesaid Investigating Officer in the aforesaid case. (12) Similarly, sanction for prosecution was also obtained by the Investigating Officer from the District Magistrate, Mirzapur which is dated 12th October, 1995 and the same has been proved by Constable Diwaker Rai C.W.3 as Exhibit Ka-13. Both the cases at case crime numbers 251 of 1995 and 254 of 1995, under Sections 307, 504, 506 IPC and u/s 25 Arms Act were consolidated and tried by the Sessions Judge together. After hearing the prosecution and the defence charges under Sections 307, 504 and 506 IPC were framed against the accused- appellants, whereas charge under Section 25 Arms Act was framed against the accused- Rambali. (13) Noticeable that in this case simplicitor charge u/s 307 IPC has been framed against the accused- appellant Rambali, whereas charge under Section 307 IPC read with Section 34 IPC has been framed against other two co- accused Prakash Chandra and Subhash Chandra. To prove its case, prosecution examined as many as six witnesses. Brief sketch of the prosecution witnesses is ut-infra:- Bihari P.W.1 is the injured himself and has proved the written report. Sarvesh Kumar Mishra P.W.2 is eye-witness of the occurrence. Tikori P.W.3 and Doodh Nath P.W.4 are the witness of recovery of country-made gun, but they have not supported the prosecution case and have turned hostile. The Investigating Officer- S.I. Ram Dhani C.W.1 has proved the investigation pertaining to case crime no.251 of 1995 as aforesaid whereas Dr. I.N. Tiwari C.W.2 has proved the medical examination report as Exhibit ka-11 and lastly, Constable Diwaker Rai C.W.3 has proved various papers pertaining to case crime number 254 of 1995, under Section 25 Arms Act. (14) After closure of the prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C., wherein the accused- appellants denied their involvement and claimed to have been falsely implicated, whereas, Prakash Chandra Mishra has taken plea of alibi and stated that he was not present on the spot at the time of the occurrence and accused- appellant- Rambali has stated that some altercation took place on account of point of construction being raised and both the sides pelted stone upon each other and someone suddenly fired from amongst the crowd. The case has been lodged under mis- impression. Report of medical examination was availed and thereafter in collusion with the police, the entire proceeding done was ante-timed. The accused did not lead any evidence on their part, consequently, the matter was heard by the trial Judge and after considering the merit recorded conviction and passed sentence as aforesaid. (15) Consequently this appeal. (16) Contention in brief is that in this case there was no occasion to commit the crime in question like the present one as alleged by the prosecution side. It so happened that out of 920 INDIAN LAW REPORTS ALLAHABAD SERIES animosity, a false case was set up for the specific reason that a number of persons had collected on the spot during the course of altercation between the appellant- Ram Bali and the injured Bihari and both the sides indulged in brick- batting and pelted stones on each other and clamorous circumstances creating confusion on the spot was developed automatically and someone mischievously fired from countrymade gun which caused injury on the person of the victim- Bihari. (17) The two sons of Ram Bali- Prakash Chandra and Subhash Chandra- have been wrongly attributed as playing role of assault by lathi and danda by the prosecution. They were not present on the spot. They never possessed lathi nor present on the spot nor participated in the commission of the offence nor did they cause any lathi blow to the victim- Bihari. The witnesses of fact are highly interested witnesses. One independent witness is said to be Tikori- P.W.3 but he has not supported the prosecution case and has refused to acknowledge fact that the offence was committed by the appellants. This way, things have been manipulated on account of enmity with the informant side and the accused side due to disputed piece of land. (18) The incident is not admitted in the way and in the manner alleged by the prosecution but it is denied that it was so caused by the appellants. The police planted false recovery, which carries no weight for several reasons. The copy of the memo of arrest and the recovery of accused Rambali were not given to the appellant- Ram Bali and there is no independent witness to the fact of recovery of country-made gun from inside the house of the appellant- Ram Bali. That being the case, it is noticeable that two supporting witnesses of fact of recovery of the country-made gun have not supported the factum of recovery being effecuated from the appellant Ram Bali. It is surprising that straight-way the inhabitants residing in the neighbourhood of the Ram Bali had also arrived on the spot but they have not been made witnesses for reasons best known to the Investigating Officer S.I. Ram Dhani. The Investigating Officer could not even spell name of a single person who arrived on the spot. Infact, the entire exercise has been done by the Investigating Officer secretly and a false recovery planted which carries no weight in the eye of law. So far site plan is concerned, it is so vaguely prepared that it tells truth for the reason that there is no place shown from which the shot was fired and no distance shown in the map. It is not shown as to where lathi blow was caused by the other two accused the sons of Ram Bali- Prakash Chandra and Subhash Chandra. (19) That being so, it is obvious that the prosecution case is full of improvement and full of embellishments. Once the site plan itself creates doubt about the spot on which the fire was opened, how can it be said that appellant- Ram Bali infact opened fire which hit above the eye- brow on the forehead of victim- Bihari. Assuming it to be that any offence was so committed, then it would be a case of sudden provocation and sudden fight on account of altercation due to dispute that arose on the point of landed property. (20) F.I.R. is ante-timed. There is no supplementary report and X-ray report prepared, which can establish and affirm claim that the case is fit one for being considered under Section 307 IPC and in the absence of any supporting material which is admitted to the doctor witness- I.N. Tiwari- C.W.2- that he did not prepare any supplementary report nor did he come across any x- ray report, then how can it be said that statement of Dr. I.N. Tiwari C.W.2 11 All. Ram Bali & Ors. Vs. State of U.P. 921 can be read as genuine one and injury no.1 caused on the fore- head of the injured- Bihari could have been serious and fatal. Thus, the basis of grievous injury is altogether missing in this case. (21) So far as the conviction of the two accused Prakash Chandra and Subhash Chandra is concerned, their conviction by way of application of Section 34 IPC is not sustainable in the eye of law. There is no evidence which may indicate that the aforesaid two co- accused acted with the same and identical intention to commit the crime in question and each one of the three accused shard common intention. (22) Further, contended that the site plan is silent about the specific position of the accused as to from which place the fire was shot and the doctor witness I.N. Tiwari C.W.2 has recorded 'blackening' found in the gunshot wound- the injury no.1,- which means the fire was opened from a short range and that cannot be a distance beyond 5-6 steps from the position of the injured and the doctor has opined that the injury in the form/shape of 'blackening' in respect of injury no.1 reveals that fire might have been opened from a distance of six feet and there is nothing of the sort which may prove that any fire was opened from a distance of six feet, whereas the statement of the injured- Bihari also reflects that the fire was opened from a distance of 8-9 feet. Then, it is apparent that the distance of fire being shot as stated by the victim is in utter contrast to the medical examination report. (23) The other two injuries have been caused by friction and they are simple in nature. Then in the absence of any supporting medico- legal paper, how can it be said that the injury no.1 was fatal in the medical examination report. There is gross contradiction in the testimony of both the witnesses of fact in particular Bihari P.W.1 and Servesh Kumar Mishra P.W.2. Bihari P.W.1 says that he went to the police station on bare foot and on way to police station someone on scooter met him and he sat on the scooter and arrived at the police station, whereas Servesh Kumar Mishra says that he had gone to the police station on bicycle. Further, as per the testimony, it is obvious that the report was scribed in- side the police station- Kotwali Dehat itself, whereas Servesh Kumar Mishra P.W.2 claims that he had scribed the report at home and went to lodge the same along with the victim to the police station. That being so, which of the two version is the truthful version cannot be ascertained. Lastly, learned counsel contended that in this case, punishment awarded against the appellants is too harsh and is not justified under facts and circumstances of the case. The prosecution evidence is shallow and sketchy and it does not inspire confidence. (24) Per contra, learned AGA and the learned counsel for the informant vehemently opposed the contention and have submitted that the trial court rightly evaluated and appraised the testimony on record and it properly scrutinised the same and recorded finding of conviction based on materiel on record. Some variation in the testimony of the witnesses of fact is natural and bound to occur, but minor variation in the testimony of witnesses of fact is not of a degree, which may occasion over throwing case of the prosecution. Ocular testimony of the witnesses of fact of the occurrence inspires confidence. Finding of conviction and the sentence awarded under circumstances of the case is justified. So far as the witnesses of recovery Tikori P.W.3 and Doodh Nath P.W.4 are concerned, they have been won over by the prosecution. (25) Upon consideration of the submissions so raised and the respective claim made by both the sides, the moot point that arises for adjudication of this appeal relates to fact whether the prosecution has been successful 922 INDIAN LAW REPORTS ALLAHABAD SERIES in establishing charges beyond shadow of reasonable doubt against the appellants? Discussion and finding- (26) While proceeding with the case, upon careful perusal of the record of the lower court reveals that the motive behind the crime in question has been stated to be some property dispute pertaining to abadi land and as per the contents of the first information report the incident took place at 9.30 A.M. on 28.8.1995 and the report was lodged promptly at 11.20 A.M. Same day. The report has been scribed by the informant- Servesh Kumar Mishra- and he has proved it as Exhibit Ka-1. Regarding the injuries being caused to the injured Bihari the doctor C.W.2 has opined that these injuries could have been caused on 28.08.1995 around 9.30 A.M. (27) Before proper analysis of merit is made it would be convenient to take into account the narration contained in the written report, Exhibit Ka-1. The written report was lodged by Bihari- the injured though, it was scribed by Servesh Kumar Mishra,- the nephew of the victim Bihari, wherein allegation was made to the ambit that on 28.08.1995 around 9.30 A.M. Ram Bali- the accused appellant possessing country-made gun while his two sons possessing stick (lathi) arrived on the spot which is disputed land and insisted-on for raising construction over there. The injured- Bihari asked them not to do so, then he was abused by the accused- appellant Ram Bali fired with his country-made gun with intention to kill and the fire hit the injured- Bihari- who fell down on the ground. At the same time the informant and Doodh Nath Chaubey and Tikori arrived on the spot, saw the occurrence and intervened when the assailants fled away from the scene after extending threats. (28) So far as perusal of this report is concerned, it does not entail any description that any 'lathi' or danda blow was caused by the two other co-accused- Prakash Chandra and Subhash Chandra. However, in the testimony of both the witnesses of fact Bihari P.W.1- the injured and Servesh Kumar Mishra P.W.2 they have stated that it was around 9.30 A.M. in the morning on 28.8.1995 when the three accused arrived on the spot and insisted for raising construction of wall over the disputed piece of land which is 'abadi' land adjoining to the house of the informant. On being asked not to do so, accused- appellant- Ram Bali fired upon the Bihari (injured), which fire hit on the head due to which he fell down and at that point of time accused- appellants- Prakash Chandra and Subhash Chandra caused lathi blow to him. Besides, they also abused him and it is claimed that P.W.2 Servesh Kumar Mishra, P.W.3 Tikori, P.W.4 Doodh Nath of the village arrived on the spot and saw the incident and intervened only then assailants made their escape good. However, so far as lodging of the FIR is concerned, the same was lodged at 11.20 hours the very same day of the occurrence i.e. 28.08.1995 at Police Station Kotwali Dehat, district Mirzapur. (29) In that regard, bare perusal of the site plan, Exhibit ka-2, indicates that the place where the occurrence took place is marked by word 'A'- it is the place where, no particular positioning of the assailants or the victim has been specified/fixed in the site plan prepared by the Investigating Officer. It has not been mentioned as to where the accused- appellant- Ram Bali was standing and from which side, he fired upon the injured- Bihari. All the relevant details as where required to have been included in the site plan are missing. On the very face, it only says about the place of occurrence marked by word 'A' as the place where the occurrence took place. No other relevant detail. 11 All. Ram Bali & Ors. Vs. State of U.P. 923 (30) Position of the other two co- accused- Subhash Chandra and Prakash Chandra have also not been shown in the entire map. This map was prepared at the strength of Servesh Kumar Mishra P.W.2. This by itself creates a doubt whether the scribe- Servesh Kumar Mishra in fact saw the occurrence or not? And why did not he tell the police about the actual fact, regarding particular position of the assailants and the injured. (31) In so far as testimony of Servesh Kumar Mishra is concerned, he himself says that he had shown the place of occurrence to daroga ji and daroga ji did not ask anything more. He has not stated that he had specified position of each assailant on the spot at the relevant point of time. It is quite interesting to note that this witness says that he wrote the written report at his home whereas P.W.1 Bihari says that the report was written at the police station after the occurrence was narrated to daroga ji and daroga ji asked him to write the report, whereupon, the report was written in the police station- Kotwali Dehat district- Mirazapur itself. These are the slight deviations that cannot be said hit at the route of the prosecution case but in so far as the version of the prosecution witness P.W.2 Servesh Kumar Mishra is concerned then he has categorically stated (at page no.2 of his testimony in his cross- examination) that he included all details in his report (regarding the assault being caused by lathi), whereas the report is silent about the assault being caused to the victim by the other co- accused by using lathi and danda. Now, P.W.2 Servesh Kumar Mishra being nephew of the victim corroboration of his testimony should supported by testimony of other witnesses, whereupon, it is noticeable that the statement of Tikori the witness named in the FIR itself is reflective of fact that Tikori was not present on the spot on 28.8.1995 around 9.30 A.M. at village- Bhueli Pandey within Police Station- Kotwali Dehat, District Mirzapur. (32) That being so, the very authenticity and the veracity of the version of P.W.2 Servesh Kumar Mishra becomes doubtful. As such the scrutiny of the testimony of the eyewitnesses and in particularly that of the victim- Bihari is required to be properly done in this case. If the description of occurrence appearing in the testimony of P.W.1 Bihari is seen then obviously regarding the incident it is stated that the appellants- Prakash Chandra, Subhash Chandra and Ram Bali arrived on the spot- the abadi land- adjoining to the western side of the house of this witness and tried to raise a wall on that land when asked by Bihari, they refused, instead became angry and the accused- appellant Ram Bali with intention to kill fired with his country-made gun, which hit on his head and he fell down. While he fell down appellants- Prakash Chandra and Subhash Chandra dealt with lathi blow on him besides abusing and threatening him. When alarm was raised, victim's nephew Servesh Kumar Mishra P.W.2, Tikori P.W.3, Doodh Nath P.W.4 and a number of villagers arrived on the spot, when they intervened due to which the victim could be saved. (33) Now, in so far this ocular version of the occurrence is concerned, injured- Bihari P.W.1 sustained gunshot wound fired by appellant- Ram Bali. At this stage, it would be appropriate to have a glance and scrutiny of the injury report of the injured- Bihari, which is Exhibit Ka-11 on the record and the same has been proved by Dr. I.N. Tiwari. He has stated that he conducted medical examination of Bihari on 28.8.1995 at 12.00 noon, wherein he found the following injuries; Injury no.1 is stated to be firearm injury 0.3 cm x 0.2 cm wound of entry with 924 INDIAN LAW REPORTS ALLAHABAD SERIES blackening around the wound in an area of 0.4 cm x 0.3 cm with contused swelling in an area of 3.5 cm x 2.00 cm around the wound, situated at left side of forehead. 1 cm above the outer part of left eyebrow, serous oozing present. Kept under observation and advised X-ray skull. Apart from it the doctor witness also noticed the two injuries in the shape of abrasion as follows; Abrasion 0.4 cm x 0.4 cm on right side of chest 2 cm medial to right nipple. Abrasion 0.4 cm x 0.2 cm on dorsal aspect of left thumb 4 cm proximal to tip of thumb. In the opinion of doctor all injuries were fresh in duration. Injury no.1 was kept under observation and advised X-ray skull, whereas injury nos.2 and 3 were stated to be simple in nature and caused by friction whereas it was also opined that injury no.1 was caused by firearm and the case was referred to surgeon for expert opinion. (34) Now, in so far as the description of occurrence as stated by Bihari is concerned, in his cross- examination, he has stated that appellants- Prakash Chandra and Subhash Chandra- the two accused gave lathi blow at full stream while he fell down on the ground. However, he has stated that only one lathi blow on his hand was given, therefore, there is no specification as to whose assault infact hit the victim when it was given by the two accused person- Praksh Chandra and Subhash Chandra, and this version regarding assault by lathi also does not figure in his statement under Section 161 Cr.P.C. when this witness was confronted with the situation of causing lathi blow but no statement recorded under Section 161 Cr.P.C. regarding the same he drew blank and stated that he cannot assign any reason as to why daroga ji did not record this fact. (35) Assuming it to be that it so happened then the testimony of another eyewitness- Servesh Kumar Mishra P.W.2 another eye-witness is also relevant. Servesh Kumar Mishra P.W.2 has not stated in his entire examination-in-chief that any lathi blow was caused by the two accused- Prakash Chandra and Subhash Chandra. Further, in his cross- examination the testimony has come-forth to the effect that after the occurrence he took the injured straight to the police station and further he scribed the report at his home whereas, in that regard the testimony of Bihari P.W.1 on internal page 3 of his cross- examination reveals that prior to the lodging of the report, the injured narrated the incident to the police at the police station then police personnel asked him for giving written report then Servesh Kumar Mishra P.W.2 scribed the report in the presence of the police at the police station and handed it over to them. The testimony of Servesh Kumar Mishra P.W.2 is absolutely silent about any lathi blow being caused. That being so, as a measure of caution in the absence of any independent corroboration to the factum of assault being caused by the two accused- Prakash Chandra and Subhash Chandra also it would not be safer to place reliance on his testimony. However, no independent witness has been produced to consider the ocular version of the occurrence. (36) Now, in so far as causing firearm wound on injured- Bihari is concerned, contention has been made to the magnitude that there was blackening around the wound and that means the fire was shot from a close range and that cannot be beyond 5 to 6 feet from the injured and the doctor witness Dr. I.N. Tiwari C.W.2 in his cross- examination has categorically stated that since the blackening was found in the wound, therefore, the shot must have been fired from a distance of 6 feet. Further, he has stated in his cross- examination that so far as injury nos.2 and 3 are concerned that may be caused by friction due to fall on the ground but these injuries can not be caused by lathi blow. (37) While scrutinizing aforesaid specific testimony regarding the fact of manner and style 11 All. Ram Bali & Ors. Vs. State of U.P. 925 of assault being caused by lathi by the two accused-appellants, a serious doubt is created on fact of participation of the two appellants and in the occurrence. Thus their participation in the occurrence becomes highly improbable. Assuming it to be they were present even then they would have been passive on the spot because there is nothing in the testimony of Bihari P.W.1 and Servesh Kumar Mishra P.W.2 which may attribute any other overt act to the two appellants- Prakash Chandra and Subhash Chandra except the role of causing lathi blow to the injured- Bihari. (38) Now, in so far as the fire wound is concerned, the fire must have been shot from within a distance of 6 feet, whereas the testimony of injured- Bihari in his cross- examination is specific regarding the distance from which the fire was opened and that is 8 to 9 feet. Now, the weapon used is country-made gun is concerned, it is not any specialized weapon and if such a weapon is used from a distance of 9 feet, certainly it would not cause any blackening like the present one caused on Bihari as injury no.1. In the wake of aforesaid specific testimony and the testimony of the the Doctor I.N. Tiwari C.W.2, obviously the argument floated by the learned counsel for the appellants carry force that it so happened that some altercation took place, as per the version of the prosecution witnesses two to four minutes of altercation preceded the occurrence and it is also there in the FIR that a number of persons arrived on the spot and on alarm being raised by Bihari- the injured, stone pelting took place on the spot between the informant side and the accused side and in that regard perusal of the site plan itself indicates presence of brick pieces/stone pieces at the place of occurrence. Even in the testimony of prosecution witnesses of fact, this factual aspect has been confirmed that a number of brick pieces were also lying at the place of occurrence. That being so, possibility of pelting stones by both the sides cannot be ruled out. It is also contended by the appellants that someone from inside the crowd fire opened which hit the injured- Bihari. Now, the version of doctor, vis a vis, the injury caused and the version of gunshot wound being caused as given by Bihari show that the shot must have been fired by someone else rather than the present accused- appellant- Ram Bali, because the distance of Ram Bali at that point of time when he opened fire must be within 6 feet reach to the victim, but this reach cannot be extended upto 8 or 9 feet otherwise there would be no blackening around the wound (pertaining to injury no.1). None other than the injured himself says that fire was shot from a distance of 8 to 9 feet. (39) That way bare perusal of the site plan of this occurrence Exhibit ka-2 as has been discussed herein above appears to relevant for consideration but at the cost of repetition it can be summed up that in the entire map no place shown as the very place where the shot hit (the injured) and from which side it was opened and there is no locations fixed, no specific point shown as to whose either assailant or the victim was standing on a particular place. Even Servesh Kumar Mishra P.W.2 who has specifically stated that he visited the spot with the daroga ji around 2.00 P.M. had shown the spot to daroga ji and daroga ji did not find any blood on the spot, although, the victim says that blood oozed out from his wound. (40) Now, in so far as the point of recovery of the country-made gun from the accused Ram Bali is concerned, it is stated that this was the country-made gun used for commission of the offence. But there is no forensic report obtained by the Investigating Officer in this case which may confirm and establish fact that this weapon was used in causing injury (no.1) to the victim- Bihari. 926 INDIAN LAW REPORTS ALLAHABAD SERIES Bare perusal of the arrest and recovery memo Exhibit ka-7 indicates that recovery was effectuated from inside the house of Ram Bali, however, the factum of recovery has not been supported by any worthy witness and in that regard no witness confirming to the fact of recovery has been produced by the prosecution, therefore, it is hard to believe the bald statement of the police officials regarding the recovery of country-made gun from inside the house. If the recovery was so made then how and why the weapon which was allegedly used in the occurrence was not sent for forensic examination. The recovery map is Exhibit ka-8 and in the absence of any corroboration by any witness of fact of recovery it is hard to believe it to be so in reality. This recovery was effectuated on 29.8.1995. Thus in the absence of any witness to support the factum of recovery it would not be in the interest of justice, as under prevailing circumstances to accept the police version that country-made gun was infact recovered from the possession of Ram Bali the accused and it was used in the commission of the offence. The two witnesses Tikori P.W.3 and Doodh Nath P.W.4 have not supported the incident, though, they have been named as the person who arrived on the spot when the alarm was raised by the injured- Bihari. There is no independent corroboration of the fact of occurrence. In view of gross contradiction on material fact as to where the report was written; and the testimony of Servesh Kumar Mishra P.W.2 is silent about any lathi blow being caused by the accused- Subhash Chandra and Prakash Chandra, and the nature of injury caused hollowness of the prosecution version is exposed. (41) These are the vital aspects of this case which escaped attention of the trial Judge. Things have been tried to be explained by way of imagination rather than the evidence on record and the attendant facts and circumstances of this case. It can be added here that the doctor witness has categorically stated that he did not prepare any supplementary report of injury no.1 nor is there any paper before him, nor he came across any X-ray examination plate. That being so, the nature of the injuries caused shall remain be confined to the state of simple in nature. In view of above, injury no.1 becomes doubtful to have been caused infact by Ram Bali in the manner and the style alleged by the prosecution for specific reason that there being blackening around the wound the distance given by the injured does not match the medical report. The distance from which the fire was opened also becomes question mark.