# Rama Shanker & Anr. (In Jail) v. State of U.P - **Citation:** (2022) 4 ILRA 1172 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2019-11-16 - **Case number:** Criminal Appeal No. 1248 of 2010 - **Bench:** Manoj Misra, Mrs. Sameer Jain - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/rama-shanker-anr-in-jail-v-state-of-u-p-48393 - **Pages:** 31 ## Headnote A. In evaluating the evidence of an interested or even a partisan witness, it should first be seen whether it's presence at the scene of the crime at the material time was probable. If yes, whether the substratum of the story narrated by the witness, being consistent with the other evidence on record, the natural course of human events, the surrounding circumstances and inherent probabilities of the case, is such which will carry conviction with a prudent person. If the answer to these questions be in the affirmative and the evidence of a witness appears to the court to be almost flawless and free from suspicion it may accept it without seeking corroboration from any other source and form the basis of conviction. B. Ante timed F.I.R. - The most common test adopted for inferring F.I.R. to be ante timed is to find out from the evidence and material on record whether the existence of case details, such as case crime etc. that arise on registration of F.I.R. are reflected in police papers prepared subsequent to the registration of F.I.R. and also when special report or report u/S 157 Cr.P.C. was forwarded, delayed dispatch of the body for autopsy, if unexplained may create doubt regarding the existence of F.I.R. at the specified time. C. The lack of details in the F.I.R. are not ordinarily material, but where there is long standing animosity between the parties then lack of such details would suggest that at the time of lodging the report complete information with regard to the manner in which the incident occurred was not available. This possibility gains strength from the circumstance that the site plan also does not contain the complete information though the ocular account may be consistent with the medical evidence as to the site of injuries are concerned which is not a guarantee for it being trustworthy and reliable because oral deposition can always be improved and polished on legal advice after receipt of autopsy report. D. Civil Law - Arms Act, 1878 - Section 25 - Is not justified when firstly recovery of country made pistol is not evidenced by any member of the public even though it is not a chance recovery but is alleged to be on a disclosure made by accused while in police custody. Secondly when the weapon recovered has not been forensically connected with the bullets recovered from the body of the deceased and thirdly when the alleged recovery is from an open place not under the control or in possession of the accused and, therefore, weapon cannot be said to be in possession of the accused. Appeal allowed. (E-11) List of Cases cited:- ## Text _Characters 0–39,854 of 111,516. This is a partial read: ask again with offset=39854 for what follows._ 1172 INDIAN LAW REPORTS ALLAHABAD SERIES (F) CONCLUSION (A) Capital Case No. 01 of 2019 While affirming the conviction and sentence of the appellants for the offence punishable under Sections 376A, 376D, 377 and 201 of I.P.C., and the conviction of the appellants for the offence punishable under Section 302 IPC, we setaside the 'sentence of death' awarded to the convicts/appellants by the trial Court by means of impugned judgment and order dated 16.11.2019 and direct that for the murder committed by the convicts/appellants, Santosh Kumar Nat and Mamman alias Sonu alias Tejpal, they are sentenced to life imprisonment for the whole span of their natural life without remission instead of death sentence. Appellants Santosh Kumar Nat and Mamman alias Sonu alias Tejpal are in jail and shall serve out their sentence. Subject to this alteration in the sentence, Capital Case/ Reference No. 1 of 2019 is dismissed. (B) Criminal Appeal No. 2322 of 2019 :- The criminal appeal is partly allowed. Although we maintain the conviction and sentence of appellants, Santosh Kumar Nat and Mamman alias Sonu alias Tejpal, for the offence punishable under Sections 376A, 376D, 377 and 201 of I.P.C. and their conviction for the offence punishable under Section 302 I.P.C but we set-aside their sentence of death on the latter count and instead sentence them to imprisonment for life for the whole span of their natural life without remission. Appellants, Santosh Kumar Nat and Mamman alias Sonu alias Tejpal, are in jail and shall serve out their sentence. (61) Before we part with the case, we must candidly express our unreserved and uninhibited appreciation for the distinguished assistance rendered by Shri Amar Singh, Amicus Curiae for the appellant no.1-Santosh Kumar Nat in the instant appeal, therefore, we deem it appropriate to direct for payment to Shri Amar Singh, learned Amicus Curiae for his valuable assistance as per Rules of the Court. (62) Let Shri Amar Singh, learned Amicus Curiae be paid remuneration as per Rules of the Court within a month. (63) Office is directed to send a certified copy of this judgment along with lower court record to the court concerned for information and compliance. ---------- (2022)04ILR A1172 APPELLATE JURISDICTION CRIMINAL SIDE DATED: ALLAHABAD 08.04.2022 BEFORE THE HON'BLE MANOJ MISRA, J. HON'BLE MRS. SAMEER JAIN, J. Criminal Appeal No. 1248 of 2010 Rama Shanker & Anr. ...Appellants (In Jail) Versus State of U.P. ...Respondent Counsel for the Appellants: Sri Lav Srivastava, Sri Akhilesh Kumar Ojha, Sri Amrendra Pratap Singh, Sri Jitendra Prasad, Sri Mahesh Kumar, Sri Niraj Tiwari, Sri V.P. Srivastava, Sri Vinay Dubey, Sri Kuldee Bajpal, Sri Avnish Kumar Srivastav, Sri Kuldeep Bajpai, Sri B.N. Singh Rathore, Sri Anurag Tiwari 4 All. Rama Shanker & Anr. Vs. State of U.P. 1173 Counsel for the Respondent: A.G.A., Sri Rajeev Upadhyay A. In evaluating the evidence of an interested or even a partisan witness, it should first be seen whether it's presence at the scene of the crime at the material time was probable. If yes, whether the substratum of the story narrated by the witness, being consistent with the other evidence on record, the natural course of human events, the surrounding circumstances and inherent probabilities of the case, is such which will carry conviction with a prudent person. If the answer to these questions be in the affirmative and the evidence of a witness appears to the court to be almost flawless and free from suspicion it may accept it without seeking corroboration from any other source and form the basis of conviction. B. Ante timed F.I.R. - The most common test adopted for inferring F.I.R. to be ante timed is to find out from the evidence and material on record whether the existence of case details, such as case crime etc. that arise on registration of F.I.R. are reflected in police papers prepared subsequent to the registration of F.I.R. and also when special report or report u/S 157 Cr.P.C. was forwarded, delayed dispatch of the body for autopsy, if unexplained may create doubt regarding the existence of F.I.R. at the specified time. C. The lack of details in the F.I.R. are not ordinarily material, but where there is long standing animosity between the parties then lack of such details would suggest that at the time of lodging the report complete information with regard to the manner in which the incident occurred was not available. This possibility gains strength from the circumstance that the site plan also does not contain the complete information though the ocular account may be consistent with the medical evidence as to the site of injuries are concerned which is not a guarantee for it being trustworthy and reliable because oral deposition can always be improved and polished on legal advice after receipt of autopsy report. D. Civil Law - Arms Act, 1878 - Section 25 - Is not justified when firstly recovery of country made pistol is not evidenced by any member of the public even though it is not a chance recovery but is alleged to be on a disclosure made by accused while in police custody. Secondly when the weapon recovered has not been forensically connected with the bullets recovered from the body of the deceased and thirdly when the alleged recovery is from an open place not under the control or in possession of the accused and, therefore, weapon cannot be said to be in possession of the accused. Appeal allowed. (E-11) List of Cases cited:- 1. Hari Obula Reddy Vs St. of A.P., (1981) 3 SCC 675 2. Jalpat Rai Vs St. of Har., (2011) 14 SCC 208 (Delivered by Hon'ble Manoj Misra, J.) 1. This appeal is against judgment and order of conviction and sentence, dated 23.02.2010 and 24.02.2010, respectively, passed by the Additional Sessions Judge, Court No.5, Azamgarh in connected Sessions Trial Nos. 618 of 2002 and 619 of 2002 whereby, both the appellants, namely, Ram Shanker and Rajesh Pandey, have been convicted under Section 302/34 I.P.C. in Sessions Trial No.618 of 2002; and in Sessions Trial No.619 of 2002 the appellant Rajesh Pandey has also been convicted under Section 25 Arms Act. For their conviction under section 302/34 IPC both the appellants have been sentenced to imprisonment for life with fine of Rs. 5,000/- each and a default sentence of six months R.I.; whereas, for his conviction under section 25 Arms Act, the appellant Rajesh Pandey has been sentenced to one year R.I. with fine of Rs.1,000/- and a default sentence of one month. However, in Sessions Trial No. 618 of 2002, both the appellants were acquitted of the charge of 1174 INDIAN LAW REPORTS ALLAHABAD SERIES offence punishable under Section 504/34 I.P.C. INTRODUCTORY FACTS 2. The prosecution story, in brief, as could be elicited from the written report (Exb. Ka-1) lodged by PW-1, is that the deceased - Munnar Mali (informant's father), had a long standing civil litigation with Ramjeet Pandey (the father of accused Rajesh), giving rise to strong enmity between them. Prior to the incident, on 05.08.2002, in the evening, at about 4 pm, while the deceased was working at the door of his house, Ramjeet, his son Rajesh and Onkar, came, abused and tried to assault informant's father, however, informant's father managed to escape and hide himself in the house. Thereafter, on 07.08.2002, at about 7.15 am, when the informant (PW-1) and his father (the deceased) were returning from Budhanpur Bazaar, after purchasing betel leaves, near Amari village, Rama Shankar son of Kamla Prasad (appellant no.1), Onkar son of Rama Shankar (nonappellant), and Rajesh son of Ramjeet (appellant no.2) came on a motorcycle from behind and, by exhorting each other, fired three shots at the deceased, as a result whereof, the deceased fell on the road and died and his blood, stained informant's shirt. In the FIR it is also alleged that the accused had threatened and chased the informant, who escaped to the adjoining village Amari to hide himself, whereas the accused while threatening the witnesses and brandishing their weapons escaped on their motorcycle, via Bhatti Chatti towards Atrait, and were spotted, inter alia, by Sherai (PW-2) and Gulab Seth (not examined), who all had witnessed the incident. It is also alleged that seeing the entire incident, people in the area were terrified and public order was breached. By stating all that has been narrated above and claiming that informant's father's body and cycle is lying at the spot, written report (Exb. Ka-1) was given at P.S. Atrauliya, District Azamgarh, which was registered as Case Crime No. 257 of 2002, on 07.08.2002, at 8.30 hours, of which Chik FIR (Exb. Ka-3) was prepared by PW-4, vide GD entry no. 15 (Exb. Ka-4). 3. Inquest was conducted at the spot on 07.08.2002 at 10.30 hours of which inquest report (Exb. Ka-7) was prepared by S.I. Lallan Mishra (not examined), which was proved by I.O.(PW-6). PW-1 (Rajaram-informant) and PW-2 (Sherai), inter alia, were witnesses of the inquest. The condition in which the body was noticed at the time of inquest is reported as follows:- "n'kk 'ko & 'ko e`rd eqUuj ekyh cwcwksyk yVdk] ihNs iku dh Vksdjh ca/khA diMk& e`rd ds cnu ij diMk /kksrh] yaxksV] caMh] dqrkZA pksV & e`rd eqUuj ekyh ds 'ko dks myV iyV dj ns[kk x;k rks blds cnu ij fuEufyf[kr pksVs ikbZ x;hA " 4. Autopsy was conducted on 07.08.2002, at about 4.15 pm., by Dr. Nand Lal Yadav - PW-3, who prepared autopsy report (Exb. Ka-2). The Autopsy report notices: External examination: Average body built, eyes closed, mouth closed, Rigor mortis present in all limbs. No sign of decomposition. 4 All. Rama Shanker & Anr. Vs. State of U.P. 1175 Ante-mortem injury: (i) Firearm wound of entry 2 cm x 2 cm x brain cavity deep on right side of head 10 cm above right ear. Blackening and tattooing present (sic) singed. On opening, underlying parietal bone fractured into pieces. Membrane and brain matter lacerated. One metallic bullet recovered from wound. (ii) Firearm wound of entry 2 cm x 2 cm brain cavity deep on back of head, occipital region above root of neck. On opening underlying occipital bone fractured, brain and membrane lacerated. One metallic bullet recovered from wound. (iii) Firearm wound of entry 2 cm x 2 cm x chest deep on left side of back. Lateral from cavity of back; and 7 cm below left scapula. One metallic bullet recovered along with (sic). Internal Examination: Stomach empty, small and large intestine and rectum unloaded. Note: Three metallic bullets were recovered from the body. Cause of death: Death due to coma as a result of ante-mortem firearm injury on head. Estimated Time of Death: About half a day before. 5. During the course of investigation, the investigating officer (I.O.) recovered blood stained shirt of the informant of which recovery memo (Exb. Ka-2) was prepared. The I.O. also recovered blood stained earth and plain earth of which recovery memo (Exb. Ka-19) was prepared. The bicycle and the basket of betel leaves kept on its carrier, recovered from the spot, was handed over to the informant of which custody memo (Exb. Ka-3) was prepared by the I.O. On 25.08.2002, the I.O. allegedly recovered a country made pistol on the pointing out of Rajesh (appellant no.2) after he was arrested of which a recovery memo (Exb. Ka-15) was prepared and, pursuant thereto, a separate FIR, under Section 25 of the Arms Act, was lodged at P.S. Atrauliya, District Azamgarh, as Case Crime No. 280 of 2002, on 25.08.2002 at 8.35 hours of which Chik FIR (Exb. Ka-5) was prepared by PW-5. Investigation of Case Crime No.257 of 2002 was completed by V.B. Singh (PW-6), but charge sheet (Ex. Ka-20) was submitted by S.I. Chandra Shekhar, whose signatures were proved by PW-8. Charge-sheet (Exb. Ka-20) was submitted against Ram Shanker (appellant no.1); Onkar; and Rajesh (appellant no.2) under section 302/ 504/ 34 IPC; whereas, investigation of Case Crime No. 280 of 2002 was completed by PW-7, who submitted charge-sheet (Ex. Ka-17) against Rajesh Pandey (appellant no.2) under section 25 Arms Act. After taking cognisance on the two charge-sheets, both the cases were committed to the Court of Session and were connected with each other. Arising from Case Crime No. 257 of 2002, Sessions Trial No. 618 of 2002 was instituted against all the three accused, namely, Rama Shankar, Onkar and Rajesh; whereas in respect of Case Crime No. 280 of 2002, Sessions Trial No. 619 of 2002 was instituted. 6. In Sessions Trial No. 618 of 2002, on 02.08.2004, Rama Shankar, Onkar and Rajesh were charged for offences punishable under Sections 302/34 and 504/34 I.P.C. All of them pleaded not guilty and claimed to be tried. In Sessions Trial No. 619 of 2002, the appellant-Rajesh was charged under Section 25 Arms Act. He pleaded not guilty and claimed to be tried. Later, in S.T. No.618 of 2002, co-accusedOnkar was declared a juvenile therefore, his trial was separated. Thus, Sessions Trial No. 618 of 2002 proceeded against Rama 1176 INDIAN LAW REPORTS ALLAHABAD SERIES Shanker (appellant no.1) and Rajesh (appellant no.2) only, whereas, Sessions Trial No. 619 of 2002 proceeded against Rajesh (appellant no.2) alone. 7. As both the trials were connected, a common set of evidence was led. During the course of the trials, the trial court examined eight prosecution witnesses: PW1-Raja Ram - the informant and son of the deceased - the eye-witness of the incident; PW-2 - Sherai Mishra also an eye-witness of the incident; PW-3- Dr. Nand Lal Yadav - autopsy surgeon; PW-4 - Brijnath Dubey - the constable who prepared Chik FIR and GD entry of Case Crime No. 257 of 2002; PW-5 - Ram Bachan Ram - the constable who prepared Chik Report and GD entry of Case Crime No. 280 of 2002; PW-6 - Vijay Bahadur Singh - the investigating officer of Case Crime No. 257 of 2002. He proved the various stages of investigation including collection of blood stained earth, plain earth, blood stained shirt, which the informant was wearing at the time of incident, preparation of inquest report, photo nash, challan nash, site plan etc. He also proved the Supurdaginama (custody memo) of the cycle and the Pan Basket recovered from the spot and handed over to the informant. He also proved the various other steps of investigation including the arrest of the accused and recovery of country made pistol at the instance of accused-Rajesh. He produced the material exhibits such as plain earth, blood stained earth and blood stained shirt etc; PW-7 - Janardan Yadav -. the investigating officer of Case Crime No. 280 of 2002 He proved the submission of charge-sheet against Rajesh Pandey in Case Crime No. 280 of 2002 and proved the sanction accorded by the District Administration for prosecution of Rajesh Pandey. The sanction letter dated 04.10.2002 was exhibited as Exb Ka-18; and PW-8, Head Constable - Mukteshwar Singh proved the signature of Chandra Shekher Lal on charge-sheet relating to case crime no.257 of 2002, paper no. 3 Ka-1, which was exhibited as Exhibit Ka - 20. 8. The incriminating circumstances appearing in the prosecution evidence were put to Rama Shanker and his statement, under section 313 CrPC, was recorded on 26.08.2009. He stated that he has been falsely implicated; that there is land dispute between the informant and his family; that a false report has been lodged in collusion with the police; that the incident has been incorrectly described; that PW-2 made false statement because he is a friend of the deceased and was a co-accused of the deceased in a trial wherein he was convicted; that the FIR had been antetimed; that the investigating officer is in collusion with the informant; that the informant on account of land dispute is inimical and has falsely implicated him in collusion with witness Sherai, who is a friend of the informant. Rama Shanker also stated that the deceased had criminal antecedents and that the deceased as well as Sherai were both convicted and sentenced; that the deceased had enmity with various other persons and that he was killed and his body was thrown by unknown persons but, out of enmity, the informant made a false report against him. Identical explanation was offered by Rajesh (appellant no.2) in Sessions Trial No. 618 of 2002. In Sessions Trial No. 619 of 2002, apart from denying other incriminating circumstances, Rajesh (appellant no.2) claimed that the recovery of country made pistol is false and bogus. 9. After their statements under Section 313 Cr.P.C. were recorded, the accused - 4 All. Rama Shanker & Anr. Vs. State of U.P. 1177 appellants examined three defence witnesses, namely, Dilip Kumar Singh (DW-1); Chandra Jeet Verma (DW-2); and Mohd. Irshad Khan (DW-3). 10. DW-1 is the scribe of the FIR of Case Crime No. 257 of 2002. He stated that while he was going to bazaar he saw a large crowd at the police station and at the gate of the police station he saw a body lying. There he saw the investigating officer and constable. The investigation officer V.B. Singh was known to DW-1 therefore, he called DW-1 to scribe the report. DW-1 stated that the I.O. gave him a paper and a pen and dictated the report to him. He stated that at that time it must have been 11 am or 12 noon. He stated that he wrote the Ex. Ka-1 on the dictation of I.O. In his cross-examination, DW-1 stated that he did not know Munnar Mali and that he does not know the accused. He stated that he has appeared as a witness on service of summons on him by the police. He stated that his house is about 200 mtrs away from the police station. He stated that he did not see the body as it was wrapped in a cloth. He stated that Raja Ram (PW-1) must have met him between 11 and 12 hours though he does not exactly remember the date but it must have been the month of August, 2002. DW-1 denied the suggestion that the I.O. had not dictated the report scribed by him. He also denied that he is telling lies. 11. DW-2 - Chandra Jeet Verma. He is the person who had put his signature on the memorandum of recovery of blood stained earth and plain earth. He stated that when he was going to Budhanpur, police personnel stopped him and requested him to sign on certain papers and when he asked them as to what they relate to, they stated that it relates to recovery of blood stained soil and, on their request, he signed those papers and when he signed those papers, at that spot there was no body; and that the blood stained earth was not picked up in his presence. He stated that similarly signature of Jai Ram was obtained. DW-2 upon seeing Exhibit Ka-14 stated that it carries his signature. He also stated that at the time when his signatures were obtained it must have been 11 or 11.30 hours. In his cross-examination, he described the place where he was requested to sign the papers by stating that towards north there was Chauraha; towards South there was culvert; and east as well as west there were fields. He stated that he is M.A and B.Ed pass; that the paper which he signed had 2-3 lines mentioning certain sections; that, normally, he does not sign without reading the paper. He admitted that the paper Exhibit Ka-19 carries his signature. 12. DW-3 - Mohd. Irshad Khan. He is a villager of Amari village. His statement was recorded in the month of September, 2009. He stated that about seven years back when he heard noise in the village, he went to the spot and saw that on the 'Med' of a Paddy field, a body was lying; by the time he reached the spot, the Sun had not come out though there was light and there were several people and within half an hour thereafter, the police arrived in a Jeep and took away the body. There was nobody to recognise the body there. When police took away the body, he left for home. In his cross-examination, he could not disclose the number of the field in Amari Gaon where body was found; he stated: that when the investigating officer had reached the spot, he was there but the 1178 INDIAN LAW REPORTS ALLAHABAD SERIES I.O. did not inquire from him; that he never disclosed anything to the investigating officer; that though the police had arrived at the spot before sunrise but he does not remember the time when the investigation officer had arrived; that he saw blood on the spot though the body was not bleeding. He denied the suggestion that he was not there at the spot and that he is making a false statement under the influence of the accused. 13. The trial court found the prosecution evidence reliable and the defence evidence unreliable, accordingly, it convicted the appellants, as above, against which, the appellants are in appeal. 14. We have heard Sri Niraj Tiwari for the appellants; Sri H.M.B. Sinha, learned A.G.A., for the State; and have perused the record. SUBMISSIONS OF THE LEARNED COUNSEL FOR THE APPELLANTS 15. Sri Niraj Tiwari, learned counsel for the appellants, submitted as follows:- (a) that PW-1 is not a reliable witness and his presence at the spot is doubtful for the following reasons:- (i) If the manner in which the incident occurred is to be accepted, keeping in mind that PW-1 was allegedly given a chase by the assailants with a view to kill him, PW-1 would not have escaped injuries, particularly when the assailants were fully armed and had bullets to spare; (ii) According to the prosecution case, PW-1 and the deceased on separate bicycles had gone to the Bazaar to purchase goods for the Betel shop run by PW-1. If the goods were for the Betel shop either the journey was to get over before the shop had to open which, according to PW-1, use to open at 6 am, or only one of them would have gone. In either case, the story set up by the prosecution that PW-1 accompanied the deceased to the Bazaar and on their way return, the incident occurred at 7 am does not inspire confidence. Further, from the evidence, it appears, the deceased was carrying the Pan Basket on his bicycle. If the deceased were to carry the merchandise, there was no reason for PW-1 to accompany the deceased to the Bazaar on a separate bicycle. More so, when PW-1 had to sit in the betel shop by 6 am. To address this anomaly in the prosecution story, explanation offered was that there were other goods also, which were purchased by PW-1 for his shop and carried by him on his bicycle. But, interestingly, the police neither noticed such articles nor made recovery of the other bicycle. Further, if the goods were to be used in that Betel shop which had to open by 6 am, the possibility of incident occurring in the wee hours of the morning gains strength and is corroborated by autopsy report wherein stomach, small intestine and large intestine were all found empty. All of this raises a serious doubt about the truthfulness of the prosecution story as also with regard to the presence of PW-1 at the time of incident. (iii) DW-1, who scribed the FIR, as per the prosecution case, gave a statement that he scribed the FIR at the police station at about 11 am on the dictation of the I.O.; therefore, it appears to be a case where the body of the deceased was first picked up by the police, brought to the police station, where it was identified by PW-1 and, thereafter, on the basis of enmity, a false FIR was got lodged by getting it ante-timed. (b) PW-1 is not consistent and makes improvement during his deposition; 4 All. Rama Shanker & Anr. Vs. State of U.P. 1179 whereas, PW-2 is a chance witness whose explanation for his presence there does not at all inspire confidence. Therefore, as both the eye witnesses fall in the category of interested and partisan witnesses, keeping in mind that their testimony does not inspire confidence and no independent witness of the village has been examined to support the prosecution case, benefit of doubt is to be extended to the appellants. (c) According to the prosecution case, the assailants were armed with country made pistol. Rajesh fired two shots, whereas Rama Shankar fired single shot. If two shots were fired by one person from a country made pistol, the weapon would have to be re-loaded. But, no empty cartridge was found. Absence of an empty cartridge at the spot suggests that the incident occurred in some other manner than alleged by the prosecution; (d) The presence of blood on the shirt of PW-1, seized by the police, is no guarantee for the presence of PW-1 at the spot because PW-1 stated that blood stain on his shirt appeared at the time when he lifted his father's body. Father's body could have been lifted later also, than at the time of the incident; (e) The deceased had a criminal record and, therefore, would have had multiple enemies. Thus, merely because there was litigation between the accused (including his family) and the informant party, it was not the accused party alone who held motive for the crime; (f) The weapon recovered at the pointing out of the appellant Rajesh (appellant no.2) was not sent for ballistic report to connect it with the bullets found in the body of the deceased therefore, the prosecution is guilty of hiding the truth; and (g) The weapon was recovered from an open place, accessible to all, therefore, it cannot be said that the appellant-Rajesh was in possession of the weapon. Consequently, his conviction under Section 25 Arms Act is not at all justified. 16. In a nutshell, the submission of the appellant is that the case at hand appears to be a case where the incident occurred in the wee hours of the morning, not witnessed by anyone, later, when the body was found and identified, the prosecution story was developed on the basis of past enmity and suspicion. SUBMISSIONS ON BEHALF OF THE STATE 17. Per contra, the learned A.G.A., submitted that the motive for the crime was duly proved; that place of occurrence is proved without doubt as there is no suggestion that the incident occurred at any other place; that the distance between place of residence of PW-1, or the place where PW-1's shop is, and the place of occurrence is about 4 km therefore, if PW-1 had to be called, or to come, from his residence to the spot, the FIR could not have been lodged with that promptitude, as it has been. Hence, there appears no reason to doubt the presence of PW-1 at the spot. Further, the defence had not made suggestion to the investigating officer, or any member of his team, of having any ill motive to falsely implicate the accused therefore, there is no occasion to accept the submission that the FIR has been antetimed, particularly, when the record and the GD entry proves prompt lodging of the FIR. Further, as there is no specific suggestion to the prosecution witnesses that the incident occurred at some other spot, merely because DW-2 made a statement that he was made to sign papers regarding 1180 INDIAN LAW REPORTS ALLAHABAD SERIES recovery of plain earth and blood stained earth by the police whilst there was no body on spot, would not render the place of occurrence doubtful. In respect of presence of PW-1 at the spot, no suggestion has been given to PW-1 that at the time of the incident he was at the betel shop therefore could not have witnessed the incident. Thus, the defence cannot take a plea that because the betel shop opens at 6 am, the presence of PW- 1 is doubtful at the spot. Moreover, PW-1 has given a graphic description of the incident which finds corroboration in the medical evidence as also the position in which the body was noticed at the time of inquest proceeding. It was urged that absence of ballistic report would not make a material difference as this is a case based on ocular account and since the ocular account has a ring of truth about it, absence of ballistic report would not make a material difference. It was urged that conviction under Section 25 of the Arms Act is sustainable because though the place from where weapon was recovered might be accessible to others but it was hidden in a hay-stack (Sarpat), hence, it was under the control of the appellant-Rajesh. The learned A.G.A. accordingly prayed to dismiss the appeal. PROSECUTION EVIDENCE 20. Before we proceed to weigh the respective submissions, it would be apposite to notice the testimony of prosecution witnesses in some detail. The testimony of prosecution witnesses is as below: 20 (i). PW-1-Rajaram - Informant - son of the deceased. He stated that Ram Shanker, Onkar and Rajesh are of his village; informant side had civil litigation with the family of the accused in respect of Abadi land; the litigation had been there for the last 25 years and had generated strong enmity between the two sides. In that background, on 05.08.2002, at about 4 pm, when informant's father Munnar Mali (the deceased) was at the door of his house, Munnar Mali was attacked by Ramjeet Pandey, his son Rajesh (the appellant no.2) and Onkar (the coaccused) as a consequence whereof, his father had to run and hide himself in the house. PW-1 stated that on 07.08.2002, while the deceased and PW-1 were returning from Budhanpur Bazaar after purchasing Pan etc. for PW-1's betel shop, at about 7.15 am, when they crossed Rokha Pul (culvert) near Amari village, the accused, namely, Rama Shanker, Rajesh and Onkar came on Hero Honda motorcycle, driven by Onkar, from behind, crossed the bicycle of his father, stopped their motorcycle in front of the bicycle of his father and, on exhortation of Onkar to finish off the deceased so that all litigation could come to an end, Rajesh (appellant no.2) fired from his country made pistol at the deceased, which hit the deceased on his head, as a result whereof, the deceased fell on the ground. Seeing the deceased falling, PW-1 came running to hold the deceased; whereafter PW-1 pleaded that his father be spared but the accused threatened PW-1 to run away or he too will be killed; immediately thereafter, Rajesh fired a second shot which hit the deceased at the back of his head; following that, Rama Shanker fired a third shot, which hit the deceased on his back. Thereafter, the accused chased PW-1 to finish him off too, but PW-1 ran away towards Amari village to save himself, whereas, the accused, brandishing their weapons, escaped towards north. At that time, PW-2 (Sherai Mishra) and Gulab Seth, amongst others, were there on the road to witness the 4 All. Rama Shanker & Anr. Vs. State of U.P. 1181 incident. PW-1 stated that after the accused had left, he returned back to find his father dead. Thereafter, PW-1 gave his bicycle to a person to give information at home and found one Dilip Kumar (DW-1) at the spot, who wrote the first information report on PW-1's dictation, after which, the written report was lodged as a first information report. PW-1 proved the written report, which was marked as Exb. Ka-1. PW-1 stated that police had arrived at the spot and had taken his statement. PW-1 also stated that when he was lifting his father, his shirt got blood-stained and the police took possession of the shirt of which memorandum was prepared. PW-1 stated that the police had prepared a memorandum in respect of handing over custody of deceased's bicycle and Pan ki Tokri (basket of betel leaves). He proved the seizure memo of the shirt, which was marked as Exb. Ka-2, and Supurdaginama (custody memo) of the bicycle, which was marked as Exb. Ka-3. He stated that after punchnama (inquest), the body was taken to Azamgarh for post-mortem. After postmortem, the body was handed over to him and he cremated the body. 20 (ia). In his crossexamination, he was confronted with two cases, namely, (a) Case No. 454 of 1995 (State v. Rajaram and others), in respect of which, PW-1 feigned ignorance; and (b) a judgment dated 13.12.1967 in S.T. No. 229 of 1966 (State v. Shivmurat and others) in which PW-1's father (the deceased) and Sherai Mishra (PW-2) were co-accused, in respect of which, again, PW-2 feigned ignorance and denied the suggestion that he is deliberately feigning ignorance. PW-1 also denied the suggestion that his father was a 'Tantrik' and a man with bad character. PW-1 stated that the deceased used to sell flowers. In respect of the alleged incident dated 05.08.2002, PW-1 stated that he has no knowledge whether it was reported by his father or not. He stated that at the time when that incident occurred, only PW-1 and his father were present. He denied the suggestion that he has framed a false case on account of land dispute with the accused. PW-2, however, admitted that he has a betel shop at a distance of about half a kilometer from his house where he sits from 6 am in the morning, after taking a bath. He stated that Budhanpur Bazaar is about 8-9 kms. away from his shop. There are two rasta to go to Budhanpur. One is a Kachha (non-paved) rasta (route) of about 5 kms. and the other is Pakka (paved) rasta of about 9 km. From the place of incident, PS. Atrauliya is about 4-5 kms and from the place of incident Budhanpur is about 1 km. On further examination, he stated that to reach the place of incident from Budhanpur, they took about 5 minutes. PW-1 and his father (the deceased) had left Kasturipur (name of village where they resided) at 4.30 hours to go to Budhanpur for purchasing Betel leaves, etc. By the time, they reached Budhanpur, it was about sun rise time. They stayed at Budhanpur bazaar for about one and a half to two hours and in the meantime purchased Pan, Biscuits, Toffee, Tobacco etc. His father carried the Pan Basket whereas the carton of Biscuit was kept on the cycle of the informant and the toffees were kept in a bag. Neither he nor his father ate anything at the bazaar. Between the bazaar and the spot of the incident, except the accused, nobody else of the village was present. PW-1 added that he and his father were on two separate cycles. Onkar had stopped the motorcycle about two feet in front of his father's cycle. PW-1's cycle was about three feet away from Onkar's motorcycle. He stated that he had shown to the police the spot where the incident had occurred. He reiterated that he 1182 INDIAN LAW REPORTS ALLAHABAD SERIES had caught his father when he was hit by gun shot but when he caught his father he himself could not stand and had to sit. PW1 stated that the accused fired shots at the deceased from separate spots. First shot was fired by Rajesh at the deceased from a distance of two feet; thereafter, the second shot was fired from a distance of two and a half feet; and the third shot was fired by Rama Shanker from a distance of about two feet. He stated that he does not remember whether the police collected the empty cartridge from the spot or not. He stated that except three gunshot injuries, he did not notice any other injury on the body of his father. PW-1 stated that when the accused extended threat, he ran towards west. Accused gave him a chase for some distance. He stated that the rasta which he took to escape was shown by him to the investigating officer. PW-1 stated that the distance of Amari village abadi from the place of incident is about 1 km. He took about 10 to 15 minutes to reach village abadi. PW-1, however, could not tell the name of the person in whose house he hid himself in village Abadi though, he could disclose that the door of that house opened towards North. He stated that he informed the villagers of Amari gaon about his father's murder. He stated that he stayed in the village Amari for about 4-5 minutes and thereafter, about 25-30 persons of the village Amari arrived with him at the spot. He stated that he arrived at the spot from village Amari within 20-25 minutes though he could not remember the name of the villagers of village Amari who accompanied him to the spot. He admitted that statement with regard to arrival of 2025 persons with him at the spot is being made for the first time in Court. He denied the suggestion that he was not present at the time of the incident and that he had not seen the incident. He denied that his father was a characterless person and that he lodge the report after deliberation on account of enmity. 20 (ib). In his cross-examination on 21.09.2004, he stated that Pan ki Tokri (Betel leaves basket) was on the cycle of his father whereas the remaining goods, namely, Biscuits, toffee were on his cycle. He admitted that seizure memo of the blood stained shirt carried signature of one Chunnilal, who is a person of his village, and the other witness is Phool Chand Gaur, who is having a medical consultancy business near his shop at a place owned by him. He denied the suggestion that he was not present at the spot and that he smeared blood on the shirt to develop a false story. He stated that memo of custody of the bicycle and seizure memo of the shirt was prepared at the spot. He stated that he went to the police station alone; that he accompanied the body to the police station and the from there, the body had gone to the hospital. The body was handed over to him at about 4.30 pm in the evening. He admitted that he had not stated in the FIR that he had sent information to his house about the incident. He stated that he had disclosed that Rama Shanker, Rajesh and Onkar had come on Hero Honda motorcycle and had stopped the motorcycle in front of his father's (the deceased) cycle but if the the same was not mentioned in the report, he cannot tell its reason. He also stated that he had mentioned in his report that the accused alighted from their motorcycle, Onkar exhorted to finish off the deceased and Rajesh had fired at the deceased, as a result whereof, the deceased stumbled and fell but if it was not written in the report he does not know the reason for the same. He also stated that he had mentioned in the report that seeing his father falling, he ran to support him and begged the accused to spare him upon 4 All. Rama Shanker & Anr. Vs. State of U.P. 1183 which, the accused threatened him and, soon thereafter, the second shot was fired by Rajesh and the third was fired by Rama Shanker, but if all this has not been written in the report, he does not know the reason for the same. He also stated that he had dictated in his report that while lifting his father, his shirt got blood stained but if that was not written in the report, he does not know the reason for it. He was also confronted by his statement under Section 161 Cr.P.C. in respect of which he stated that he had given statement to the investigating officer that after the second shot was fired, he got scared and ran towards Bhatahi Chatti where he noticed Sherai (PW-2) and Gulab Sheth, who also witnessed the incident. He stated that Bhatahi Chatti is at a distance of about one furlong towards North of the place of incident. He stated that his statement in the Court that he ran towards the West is correct. He denied the suggestion that first information report was not lodged at 8.30 am but later, he also denied the suggestion that the body was found unattended at Sherwa Pul (culvert) and that the police was informed and later the body was got identified. He denied the suggestion that the accused has been falsely implicated on account of enmity. He also denied the suggestion that he lodged the first information report after consultation and deliberation. 20 (ii).