# Ramautar & Ors v. Awadhesh Narayan Singh & Anr - **Citation:** (2024) 9 ILRA 1225 - **Court:** High Court of Judicature at Allahabad - **Decided:** 2024-09-27 - **Case number:** Capital Cases No. 2 of 2022 - **Bench:** Attau Rahman Masoodi, Ajai Kumar Srivastava-I - **Source:** https://unisonlegal.in/judgment/allahabad-high-court/ramautar-ors-v-awadhesh-narayan-singh-anr-52533 - **Pages:** 31 ## Headnote (A) Criminal Law - Capital case - The Code of Criminal Procedure, 1973 - Section 366 (1) - Reference for confirmation of death penalty, Indian Penal Code, 1860 - Sections 302, 307/34 - Rarest of rare cases - circumstantial evidence - chain of evidence - hostility of witnesses - death penalty - Evidence of a hostile witness not to be rejected in toto - Testimony of police personnel should be treated in the same manner as testimony of other witnesses - when there is choice between a death sentence and a sentence of life imprisonment, the latter is the rule and the former is the exception.(Para - 53,60,70) (B) Indian Evidence Act, 1872 - Circumstantial Evidence - Conviction can be based on circumstantial evidence inspite of hostility of eye-witnesses - Evidence provided by hostile witnesses remains admissible if supported by credible corroboration - Conviction can be based on circumstantial evidence alone but for that prosecution must establish chain of circumstances, which consistently points to the accused and accused alone and is inconsistent with their innocence.(Para - 28,29,30,32) (C) Five golden principles - Panchsheel of the proof of a case based on 1226 INDIAN LAW REPORTS ALLAHABAD SERIES circumstantial evidence - (1) circumstances must be fully established and not merely probable; (2) established facts must exclusively point to the guilt of the accused; (3) circumstances must be conclusive in nature; (4) they must exclude all other possible hypotheses except guilt; and (5) the chain of evidence must be so complete that it leaves no reasonable doubt, proving that the act was committed by the accused.(Para - 34) Dispute over ownership and allocation of shops escalated into violence - Very gruesome murder of two persons and his son - eyewitnesses turned hostile - conviction based on circumstantial evidence - trial Court awarded death sentence to both the appellants for their conviction.(Para -27, 28,71) HELD: - Conviction of appellants based on circumstantial evidence and there are no tangible reasons to interfere with. Conviction under Section 302/34 IPC upheld. Death penalty set aside; life imprisonment awarded. Present case does not fall within the category of 'rarest of rare cases' attracting death penalty. Life imprisonment substituted due to lack of prior criminal antecedent and circumstantial evidence. (Para -69,73) Appeals partly allowed. (E-7) List of Cases cited: ## Text _Characters 0–39,984 of 97,908. This is a partial read: ask again with offset=39984 for what follows._ 9 All. Ramautar & Ors. Vs. Awadhesh Narayan Singh & Anr. 1225 position of law that once a special Act holds the field, the provisions of general law would not apply and only the prosecution can be lodged in accordance with the provisions of such special law and the provisions of Section 26 of the SEBI Act, specifically. Reliance placed on section 26B of the SEBI Act by learned counsel for the opposite party no. 2 is misconceived. It is the applicable only for the purpose of filing of the complaint before the special courts and not for criminal prosecution under the provisions of I.P.C. 20. In view thereof, the instant application is allowed and the entire proceedings of cognizance order dated 12.04.2019 as well as the entire criminal proceedings along with the charge-sheet dated 06.09.2018, in Case No. 21416 of 2019 (State of U.P. Vs. Jitendra Kumar Keshwani), arising out of Case Crime No. 160 of 2018, under Section 420, 409 of I.P.C., Police Station- Hariparvat, District- Agra, pending in the court of Chief Judicial Magistrate, Agra, are hereby quashed. 21. However, it is open for the opposite party no. 2 to approach the Authorities under the SEBI Act for the redressal of his grievance, if any, in accordance with law with the provisions of SEBI Act. If any such application is made to the SEBI by the opposite party no.2, the same shall be considered without any objection with the regard to the limitation. ---------- (2024) 9 ILRA 1225 APPELLATE JURISDICTION CRIMINAL SIDE DATED: LUCKNOW 27.09.2024 BEFORE THE HON'BLE ATTAU RAHMAN MASOODI, J. THE HON'BLE AJAI KUMAR SRIVASTAVA-I, J. Capital Cases No. 2 of 2022 With Criminal Appeal Nos. 2504 of 2022 & 2524 of 2022 Ramautar & Ors. ...Appellants Versus Awadhesh Narayan Singh & Anr. ...Respondents Counsel for the Appellants: Sri Akhilesh Kumar, Sri Suresh Chandra Srivastava Counsel for the Respondents: Sri Ishir Sripat (A) Criminal Law - Capital case - The Code of Criminal Procedure, 1973 - Section 366 (1) - Reference for confirmation of death penalty, Indian Penal Code, 1860 - Sections 302, 307/34 - Rarest of rare cases - circumstantial evidence - chain of evidence - hostility of witnesses - death penalty - Evidence of a hostile witness not to be rejected in toto - Testimony of police personnel should be treated in the same manner as testimony of other witnesses - when there is choice between a death sentence and a sentence of life imprisonment, the latter is the rule and the former is the exception.(Para - 53,60,70) (B) Indian Evidence Act, 1872 - Circumstantial Evidence - Conviction can be based on circumstantial evidence inspite of hostility of eye-witnesses - Evidence provided by hostile witnesses remains admissible if supported by credible corroboration - Conviction can be based on circumstantial evidence alone but for that prosecution must establish chain of circumstances, which consistently points to the accused and accused alone and is inconsistent with their innocence.(Para - 28,29,30,32) (C) Five golden principles - Panchsheel of the proof of a case based on 1226 INDIAN LAW REPORTS ALLAHABAD SERIES circumstantial evidence - (1) circumstances must be fully established and not merely probable; (2) established facts must exclusively point to the guilt of the accused; (3) circumstances must be conclusive in nature; (4) they must exclude all other possible hypotheses except guilt; and (5) the chain of evidence must be so complete that it leaves no reasonable doubt, proving that the act was committed by the accused.(Para - 34) Dispute over ownership and allocation of shops escalated into violence - Very gruesome murder of two persons and his son - eyewitnesses turned hostile - conviction based on circumstantial evidence - trial Court awarded death sentence to both the appellants for their conviction.(Para -27, 28,71) HELD: - Conviction of appellants based on circumstantial evidence and there are no tangible reasons to interfere with. Conviction under Section 302/34 IPC upheld. Death penalty set aside; life imprisonment awarded. Present case does not fall within the category of 'rarest of rare cases' attracting death penalty. Life imprisonment substituted due to lack of prior criminal antecedent and circumstantial evidence. (Para -69,73) Appeals partly allowed. (E-7) List of Cases cited: 1. Paramjeet Singh @ Pamma Vs St. of Uttrakhand, (2010) 10 SCC 439 2. Bhajju Vs St. of M.P. . (2012) 4 SCC 327 3. Raja & ors. Vs St. of Karn., (2016) 10 SCC 506 4. St. of Raj. Vs Bhawani & anr. (2003) 7 SCC 291) 5. Radha Mohan Singh @ Lal Saheb & ors. Vs St. of U.P. (2006) 2 SCC 450 6. Mahesh Vs St. of Maha. (2008) 13 SCC 271 7. Rajendra & anr. Vs St. of U.P., (2009) 13 SCC 480 8. Koli Lakhman Bhai Chanabhai Vs St. of Guj., (1999) 8 SCC 624 9. Hari & anr. Vs The St. of U.P 10. Sudru Vs St. of Chatt.,2019 (8) SCC 333 11. St. of Guj. Vs Anirudh Singh, (1997) 6 SCC 514 12. Hanurnant Vs The St. of M.P., [1952] 3 SCR 1091 13. Joseph Vs St. of Kerala, (2000) 5 SCC 197 14. St. of Raj. Vs Kashi Ram, (2006) 12 SCC 254 15. Ganesh Lal Vs St. of Raj., (2002) 1 SCC 731 16. St. of Maha. Vs Suresh, (2000) 1 SCC 471 17. St. of T.N. Vs Rajendran, (1999) 8 SCC 679 18. Padala Veera Reddy Vs St. of A.P., (AIR 1990 SC 79) 19. Vijay Shankar Vs St. of Har., (2015) 12 SCC 644 20. Raja @ Rajinder Vs St. of Har., (2015) 11 SCC 43 21. St. of Himachal Pradesh Vs Raj Kumar : (2018) 2 SCC 69. 22. Bachan Singh Vs St. of Punjab, (1980) 2 SCC 684 23. Sunil Dutt Sharma Vs St. (Government of NCT of Delhi) : (2014) 4 SCC 375 (Delivered by Hon'ble Attau Rahman Masoodi, J.) Prelude 9 All. Ramautar & Ors. Vs. Awadhesh Narayan Singh & Anr. 1227 (1) Two accused persons, namely, Vijay Prakash Sharma and Dheeraj Sharma, were tried by the Additional Sessions Judge/Fast Track Court-II, Lucknow in Sessions Trial No. 579 of 2005 : State of U.P. Vs. Vijay Prakash Sharma and another, arising out of Case Crime No. 196 of 2005, under Sections 302, 307/34 of the Indian Penal Code, 1860 (in short, referred hereinafter as 'I.P.C.'), Police Station Hazratganj, District Lucknow. (2) Vide judgment and order dated 13.09.2022, the Additional Sessions Judge/Fast Track Court-II, Lucknow, convicted both accused persons, Vijay Prakash Sharma and Dheeraj Sharma, under Sections 302/34 I.P.C. and vide judgment and order dated 16.09.2022, sentenced them under Sections 302/34 I.P.C. to be hanged to death till they are dead and a fine of Rs.5,00,000/- each, in default of payment of fine to undergo additional two months' imprisonment, however, both accused persons were acquitted under Section 307/34 I.P.C. It was also directed that on payment of the aforesaid fine by the accused persons, Rs.8,00,000/- would be paid to the legal heirs of deceased Kapil Gupta as compensation in terms of Section 357 of the Code of Criminal Procedure, 1973. (3) Aggrieved by the aforesaid conviction and sentences, accused, Vijay Prakash Sharma, has preferred Criminal Appeal No. 2504 of 2022 : Vijay Prakash Sharma vs. State of U.P., whereas accused Dheeraj Sharma preferred Criminal Appeal No. 2524 of 2022 : Dheeraj Sharma Vs. State of U.P.. (4) Capital Case No. 2 of 2022 arises out of the Reference made by the learned trial Court under Section 366 (1) of the Code of Criminal Procedure, 1973 to this Court for confirmation of the death sentence of convicts/appellants Vijay Prakash Sharma and Dheeraj Sharma. (5) Since the above-captioned capital sentence reference and criminal appeals arise out of a common factual matrix and impugned judgment/orders dated 13.09.2022 and 16.09.2022, we proceed to decide the same by the common judgment. Prosecution Case (6) Shortly stated, the prosecution case runs as under :- I Informant Uday Swaroop Bhardwaj (P.W.1), resident of Niralanagar, Police Station Hasanganj, Lucknow, was an architect and builder. An agreement was executed between him (P.W.1) and Krishna Kumar Gupta (deceased), resident of C-160 Sector-D, LDA Colony, Kanpur Road, Police Station- Krishnanagar, Lucknow, for construction of shops and office on the place situated above Basant Talkies near Mayfair Tiraha, Hazratganj, which was purchased from Kuber Finance by Krishna Kumar Gupta (deceased). As per agreement, P.W.1 had started the construction work of shops on the aforesaid place. II Convict/appellant Vijay Sharma was the owner of Bajrang Security Agency and V.I.P. Security Agency and its office was situated appurtenant to other portion of the aforesaid place of construction. III P.W.1-Uday Swaroop Bhardwaj gave a written complaint 1228 INDIAN LAW REPORTS ALLAHABAD SERIES (Ext. Ka.1) in the Police Station Hazratganj, district Lucknow, stating that construction of shops was almost completed in the aforesaid place. During construction, convict/appellant Vijay Sharma often used to come and threatened Krishna Kumar Gupta (deceased) that the construction place of shops belongs to Kuber Finance Company upon which Rs.17,00,000/- of him was outstanding and in lieu thereof, he (deceased Krishna Kumar Gupta) would have to give three shops to him (convict/appellant Vijay Sharma). On this matter, Krishna Kumar Gupta (deceased) used to say that he had bought this place, therefore, he (convict/appellant Vijay Sharma) did not have any right on it. IV On 16.04.2005, when he (P.W.1), Krishna Kumar Gupta (deceased), his son Kapil Gupta (deceased) and his friend Rajeev Dixit (P.W.2) were working in the gallery near the stairs of first floor of office and shop, then, around 3:00 p.m., convict/appellant Vijay Sharma and his son Dheeraj Sharma (convict/appellant) came and told to Krishna Kumar Gupta (deceased) that Rs.17,00,000/- was outstanding against Kuber Finance; they (convicts/ appellants) had talked to Kuber Finance; and therefore, he (deceased Krishna Kumar Gupta) would have to give three shops to them (convicts/appellants). On this, Krishna Kumar Gupta (deceased) told them (convicts/ appellants) that they did not have any right on it. On this matter, the discussion amongst them started increasing and then convict/appellant Dheeraj Sharma (son of convict/appellant Vijay Sharma) said that these people would not accept this and by saying this, convict/appellant Dheeraj Sharma ran and picked up a double barrel gun from his office and gave the gun to his father Vijay Sharma (convict/appellant), saying to finish their work today and then they would be able to get shops. Thereafter, Vijay Sharma (convict/appellant) shot with gun on the chest of Krishna Kumar Gupta (deceased), who was sitting on a chair, as a consequence of which, he (deceased Krishna Kumar Gupta) remained sitting on the chair. Seeing this, Kapil (deceased) got into a tussle with Vijay Sharma (convict/appellant) and grabbed his hair. Thereafter, Vijay Sharma (convict/ appellant) stuck Kapil (deceased) and shot in his chest, as a consequence of which, Kapil (deceased) got injured and fell there. After that Vijay Sharma (convict/appellant) started loading the gun again. On seeing this, he (P.W.1) and his friend Rajeev Dixit (P.W.2) ran backwards in fear to save their lives. Thereafter, Vijay Sharma (convict/ appellant) fired a shot at them with the intention to kill them, but they (P.W.1 and P.W.2) quickly reached gallery, therefore, bullet did not hit them. Thereafter, he (P.W.1) hid himself in the office and from there, he also heard two more shots of fire. Thereafter, he (P.W.1) started informing his friends and the police through his mobile phone. He (P.W.1), thereafter, 9 All. Ramautar & Ors. Vs. Awadhesh Narayan Singh & Anr. 1229 looked from his office window towards the road and saw that Vijay Sharma (convict/appellant) was going towards Mayfair Tiraha (intersection) while waving the gun in his hand. V P.W.1 (informant) had also stated that due to the firing opened by Vijay Sharma (convict/appellant), panic spread in the market and the shopkeepers quickly closed their shops and started running away and there was silence due to which public order was disrupted and normal life came to standstill. When the police came and made efforts to restore the normal life, then people started coming out of fear. P.W.1 had further stated that when he came out, he saw that police took away Krishna Kumar Gupta and his son Kapil (deceased). After some time, he (P.W.1) came to know that Krishna Gupta and his son Kapil died. (7) The evidence of Head Moharrir Satyapal Dixit (P.W. 6) shows that on 16.04.2005, at 04:25 p.m., informant Uday Swaroop Bhardwaj (P.W.1) and Ramesh Singh son of Vishwanath Singh came at Police Station Hazratganj, district Lucknow and Uday Swaroop Bhardwaj (P.W.1) lodged his written F.I.R. at Police Station Hazratganj, district Lucknow, on the basis of which Case Crime No. 196 of 2005, under Sections 302, 307, 34 I.P.C. was registered against the convicts/ appellants. His evidence also shows that he prepared the chick F.I.R., a perusal of which shows that the distance between the place of the incident and the aforesaid police station was 500 metres. (8) S.I. Shyamakant Tripathi (P.W.9) was the Investigating Officer of the case. In his examination-in-chief, he deposed that on 16.04.2005, he was posted as Inspector-in-charge at police station Hazratganj and he was on duty along with police personnel to maintain law and order in the vicinity of police station. At about 03:10 p.m., he received information through wireless that firing took place in Basant Cinema Building. On this information, when he reached Basant Cinema Building, he saw that there was stampede and also there was an atmosphere of chaos all around. When he along with police personnel reached on the first floor of the building, he saw that a man sat on a chair in the gallery with his neck hanging in an injured condition; other man was also lying in the gallery in an injured state; and blood of both persons was oozing out. Both these persons were sent for treatment to Medical College along with police force. Thereafter, on being inquired on the spot, informant Uday Swaroop Bhardwaj (P.W.1) told him about the incident. He recorded the statement of informant Uday Swaroop Bharwaj (P.W.1), who informed him that he lodged the F.I.R. about the incident and the incident took place in the presence of him, his friend and other persons. P.W.9 had further stated that after collecting chick F.I.R. and other papers, he commenced the investigation. After recording the statement of informant Uday Swaroop Bhardwaj, he got information from police station through wireless that accused Vijay Kumar Sharma was caught in front of Gandhi Ashram, upon which he also reached there, wherein he met with SSI Harendra Pratap Singh, police personnel and accused Vijay Prakash Sharma and also recovered Double Barrel Gun from Vijay Prakash Sharma 1230 INDIAN LAW REPORTS ALLAHABAD SERIES (convict/appellant). He also recorded the statement of Vijay Prakash Sharma. Thereafter, he reached the place of occurrence and on the pointing out of informant, he inspected the place of occurrence and prepared the site plan (Ext. Ka. 17). He also collected the tiles stained with blood; tiles without blood; concrete with blood; and without blood from the place of occurrence and prepared recovery memo of it (Ext. Ka. 6). Apart from it, he also took possession of a black iron chair on which deceased Krishna Kumar Gupta was sitting and blood was present thereon after he being shot. By taking possession of that chair, the blood-soaked cushion was cut and all were sealed under recovery memo (Ext. Ka. 7). He also recovered an empty cartridge, wad (tickli), dafti and a bullet from the spot under recovery memo (Ext. Ka. 8). Thereafter, he recorded the statement of witnesses of recovery memo, namely, Riyaz and Asfaq. On 17.04.2005, he recorded the statement of Rajeev Dixit (P.W.2) and Bharat (P.W.3); statement of Sub-Inspector Ramkrishna Singh Yadav, who collected the hair of accused under recovery memo; the statement of Constable Sri Ram, who brought the dead bodies for post-mortem; statement of Virendra Kumar Mittal and Virendra Prakash Bansal. On 18.04.2005, he recorded the statement of witnesses of panchayatnama, namely, Virendra Kumar Mittal, Rajesh Dubey, Kamlesh Kumar Verma and Ajay Pratap Singh. On 20.04.2005, he got information about the surrender of accused Dheeraj Sharma in the Court. On 23.04.2005, he recorded the statement of Smt. Pushplata, wife of deceased Krishna Kumar Gupta and also the statement of Nidhi Gupta, daughter of deceased Krishna Kumar Gupta. On 03.05.2005, he recorded the statement of accused Dheeraj Sharma in District Jail, Lucknow. On 25.05.2005, he recorded the statement of Ms. Monika, daughter of deceased Krishna Kumar Gupta. On 09.06.2005, he recorded the statement of Smt. Meghna, wife of Kapil Gupta. He proved the recovery memo Ext. Ka. 15, which was in relation to recovery of one D.B.B.L. gun, three live cartridges, one empty cartridge 12 bore and the arrest of the accused under Sections 302/307/34 IPC by SSI Shri Harendra Pratap Singh, which was written by SI Shri Rajkumar Singh. In his cross-examination, P.W.9 had deposed that after 2-3 minutes in getting the information through wireless, he reached at the place of occurrence and at that time, informant Uday Swaroop Bhardwaj (P.W.1) was not present at the place of occurrence. Both witnesses Asfaq and Riyaz were present at the place of occurrence and both of them were present along with him at the place of occurrence about one hour and he prepared the recovery memos in their presence. He also deposed that he himself signed all the packets exhibited in the Court but he could not get signature of any witnesses thereon. He further deposed that only a double barrel gun was used in the incident. He further deposed that he did not sealed the chair but he sealed blood stained cloth of the chair. He further deposed that after reaching on spot till completion of all the formalities on spot, informant Uday Swaroop Bhardwaj was present, however, he could not make him witness in any documents prepared on the spot. He was present about 5-6 hours at the place of occurrence. He further deposed that when he was present on spot, F.I.R. of the incident was already lodged. When he got information from wireless, case was not registered. He got chik F.I.R. of the case on the spot after one hour of the incident. He 9 All. Ramautar & Ors. Vs. Awadhesh Narayan Singh & Anr. 1231 denied that F.I.R. was lodged ante-timed by him. He had not arrested accused Vijay Sharma but accused Vijay Sharma was arrested by SSI Harendra Pratap Singh. (9) The evidence of S.I. Harendra Pratap Singh (P.W.10) shows that on 16.04.2005, he, while posted as S.S.I. in police station Hazratganj, district Lucknow, got information through wireless R.T. set that firing was ocurring on the first floor of the cinema hall at Mayfair Tiraha near Basant Cinema in which two people have died. On this information, at about 03:10 p.m., he, S.I. Ashok Kumar and other police personnel were going towards the place of occurrence and when he reached in front of the showroom of Gandhi Ashram, he saw that Vijay Sharma armed with a gun was coming from the cinema side and some people from the public were running behind him by shouting 'catch-catch'. When they signalled the accused Vijay Sharma to stop, he got very nervous and stopped and no clear voice was coming from his mouth. When he was questioned, after washing his face with water and feeling normal, accused Vijay Sharma told his name as Vijay Prakash Sharma, son of Bajrangi Sharma and also told that he runs a security agency. P.W.10 had also stated that accused Vijay Sharma was arrested at 04:10 p.m. and one D.B.B.L. gun, one empty cartridge and one live cartridge were recovered from his possession under recovery memo (Ext. Ka.18). The recovered items were sealed and sent for Forensic Science Laboratory. In cross-examination, P.W.10 had stated that signature of accused Vijay Sharma was not present in the sealed packet of gun and cartridges. He also stated that he could not say the name and address of any independent witnesses who refused to give statement. While preparing recovery memo, S.H.O. had come to the spot and also interrogated the accused. The signature of S.H.O. was not present on recovered items. The Inspector-in-Charge, after recovery of gun and during preparation of recovery memo, told him that FIR of the incident has already been lodged in the police station. One and half hours took place in preparing the recovery memo. S.H.O. came at about 5:15 p.m. on the spot. He denied the suggestion that S.H.O. caught the accused along with gun from his house and on his direction, recovery memo was prepared. (10) The evidence of P.W.7-Asfaq Ali alias Guddu shows that he was residing at 120/24, Lalbagh, Hazratganj, Lucknow since birth. On 16.04.2005, on coming to know the incident and on calling by the police, he went to Basant Cinema Building, wherein from the first floor, police took possession of pieces of tiles, pieces of blood stained tiles, pieces of bloodless tiles, blood stained concreate, without blood concreate, blood stained iron chair, one empty cartridge 12 bore and one plastic wad (tikli) and prepared recovery memo of it and sealed it and the Inspector put his signature on it. In cross-examination, P.W.7 had stated that by sending a Constable, he was called by the police at the place of occurrence. He did not know the accused person prior to the incident but the accused was present at the place of occurrence. (11) The evidence of P.W.8-Ram Krishna Yadav shows that on 16.04.2005, he was posted as Sub-Inspector at police station Chowk. The proceeding of panchayatnama of the dead bodies were made by him at Medical College in the presence of witnesses Virendra Kumar 1232 INDIAN LAW REPORTS ALLAHABAD SERIES Bansal, Virendra Kumar Mittal, Kamlesh Kumar Verma and Ajay Pratap Singh. The panchayatnama was prepared by Head Constable Mahatam Yadav on his dictation. After completion of proceeding of panchayatnama, he handed over the deadbodies for post-mortem to Constable 1040 Sriram. He also stated that since the deadbodies were lying in safe custody in the mortury of Medical College, therefore, he could not deem it appropriate to seal the deadbodies. (12) The evidence of P.W.11Digvijay Singh shows that on 14.06.2005, he was posted as Inspector-in-Charge at police staiton Hazratganj, district Lucknow. He took the investigation of Case Crime No. 196 of 2005, under Sections 302, 307/34 I.P.C., police station Hazratganj, district Lucknow. After going through the investigation report of earlier Investigating Officer and also after completion of other proceedings, he submitted charge-sheet No. 84 of 2005 against the accused persons, Vijay Prakash Sharma and Dheeraj Sharma. In cross-examination, P.W.11 had stated that he did not receive the report of forensic labarotary till the submission of the charge-sheet nor he received the report of ballistic expert. (13) The evidence of P.W.12Anwar Jamal shows that on 12.08.2005, he was posted as Ballistic Expert in Forensic Science Laboratry, Mahanagar, Lucknow. On the said date, he received a letter of S.S.P., Lucknow dated 11.08.2005 along with two sealed bundles and one sample seal. On opening bundle no.1, he found D.B.B.L. 12 bore gun, bearing No. 4810D/2, one empty cartridge 12 bore, one live cartridge 12 bore and one license book. The D.B.B.L. Gun and cartridge 1/2005 fired from D.B.B.L. were marked as E.C.1 and live cartridge was marked as L.C.1. Licence Book was marked as L-2. P.W.12 had further stated that on opening of bundle no.2, he found four 12 bore Shaktiman Express cartridges, one ball-shot, three plastic cartridges and three cardboard boxes. The fired cartridges were marked as EC2, EC3, EC4 and EC5 and ball-shot was marked as M-1. He also stated that percussion cap was absent in EC-5. P.W.12 had further stated that after examining, he reached to the conclusion that (i) cartridges in question i.e. E.C.1 and E.C.3 marked as 1/2005 were fired from the left barrel of DBBL Gun No. 4810-D/2; (ii) the cartridge in question i.e. E.C.2 marked as 1/2005 was fired from the right barrel of DBBL Gun No. 4810-D/2; (iii) on comparison of the cartridges in question EC1 with the DBBL Gun, there is lack of sufficient personal characteristics to do so; (iv) on comparison of the cartridges in question EC5 with the DBBL Gun, no comparison marks were found; (v) it is not possible to give opinion whether ball-shot in question marked as M.1 is the part of three pieces of plastic fence and three pieces of cardboard of boxes and cartridges in question marked as EC1 and EC5 or not. He proved the report of Forensic Science Laboratry dated 16.08.2012. In cross-examination, P.W.12 had stated that out of cartridges sent for examination, he found that one cartridge was fired from one barrel of said DBBL Gun and two cartridges were fired from another barrel but he could not give any definite opinion on two cartridges whether it was fired or not. All the cartridges were made by Shaktiman Company. In the 9 All. Ramautar & Ors. Vs. Awadhesh Narayan Singh & Anr. 1233 report, no difinite opinion on report nos. 3, 4 and 5 was given. He denied that report nos. 1 and 2 were different from the facts. He also denied that report was not prepared by him. (14) The evidence of P.W.13-Nidhi Bansal, daughter of Krishna Kumar Gupta (deceased) shows that Vijay Sharma used to live in the building as a security guard. He used to cause disturbance while coming and going on the road and had a dispute with her father (deceased) that his money was invested in Kuber Finance so give him 2-3 shops. Vijay Sharma used to visit her house to threaten her father. Vijay Sharma had told her father to give him shops else he would kill him. On the day of incident, her father and brother had gone to the under-construction buidling, whereafter on argument, Vijay Sharma with the help of his son shot her father and brother. Her father and brother died at the place of occurrence. Further she has stated that she was a housewife and her mohter was also a housewife. Both were financially dependent. Her brother was married and his wife's name was Meghana. Her father was not an I.A.S. but he used to do a job. Neither she nor her mother has a bank account. She do not know whether her father purchased any property from any peron or Kuber Finance. She did not receive any reward for the contract that she had made with her father. In cross-examination, P.W.13 had stated that her father had taken power of attorney from her. It is true that after giving the power of attorney, she did not go to her father's office. She and her mother never opened any account in Kuber Company. She got a call at home that accident had occurred. She do not know who took them to the hopsital. (15) Going backwards, the autopsy on the dead body of deceased Krishna Kumar Gupta was conducted on 17.04.2005, at 09:10 a.m. by Dr. Prabhu Nath (P.W. 4), at Dr. Shyma Prasad Mukherjee Hospital, Lucknow, who found on it the following ante-mortem injuries :- (1) Firearm injury 2 cm x 2 cm x chest cavity wound present over right firing and present sematic Rt nipple. Margins are inverted blackening and tatooing is present wound all around with collar of abrasion ring present around the wound. (2) Firearm wound of exit 2.5 cm x 2 cm x Chest cavity deep present in posterior lateral aspect of Rt. Back chest, 5 cm below Rt inferior of the scapula, Margins are everted. (3) On opeing ecchymosis present undernath (sic.) fracture of sternum and fracture of 5 to 6 ribs on Rt side of back and underneath the injury and fracture Rt lung with pleura lacerated, the track of ecchymosis extends from (sic.) Rt side chest. The direction of firearm injury is straight from front of Rt. Side of chest up to downward to Rt side of back of chest about one litre clotted & fluid mixed blood present in chest cavity. (4) Firearm injury entry wound 2 cm x 2 cm x chest cavity deep present (sic.) of left side of chest 5 cm (sic.) margins are inverted, blackening & tatooing present all over the wound with 1234 INDIAN LAW REPORTS ALLAHABAD SERIES collar of abrasion ring present around the wound. (5) Firearm (sic.) left side of abdomen, 12 cm above left scapular (sic.) left side of back of shoulder, extending from above to downward. On opening ecchymosis is present underneath above vertebral injury fracture of 4th & 5th ribs on left side of chest present underneath the fracture and injury in left lung with pluera, heart and peritonium, diaphram left side, both instentines lacerated, about one litre of clottd & fluid mixed blood present on chest & abdominal cavity. The cause of death spelt out in the postmortem report was due to shock and haemorrhage as a result of ante-mortem firearm injuries. (16) In his deposition before the trial Court, Dr. Prabhu Nath (P.W.4) reiterated the said cause of death and stated that the deceased could have died at 03:00 pm on 16.04.2005 and injury Nos. 1 to 4 were attributable to firearm. He also stated therein that injuries suffered by him were sufficient in the ordinary course of nature to cause death. (17) The autopsy on the dead body of deceased Kapil Gupta was conducted on 17.04.2005, at 09:15 a.m. by Dr. Ashok Kumar Yadav (P.W. 5) at Dr. Shyma Prasad Mukherjee Hospital, Lucknow, who found on it the following ante-mortem injuries :- (1) Firearm wound of entry 2 cm x 2 cm x abdominal cavity deep present on right side of back 10 cm above the right iliac crest, 8 cm lateral to the mid line. Blackening and tatooing and charring present all around the wound. Margins are inverted with collar abrasion ring present all around the wound. (2) Firearm wound of exit - 3 cm x 3 cm x abdominal cavity deep present on lateral aspect of left side of abdomen, 17 cm below the left nipple. Margins are everted, loops of putentive coming out of the wound. On opening ecchymosis present underneath including small intestine & ascending colon & Transverse colon are lacerated (sic.). Two litres of blood and mixed fluid present in abdominal cavity, direction of firearm wound, entry & exit is in straight line, straight from right side towards upwards & forwards upto left upper part of abdomen. (3) Firearm wound of entry - 2 cm x 2 cm x chest cavity deep present on blood aspect of left side of back 8 cm below the inferior angle of left scapula and 10 cm lateral to mid line. Margins are inverted blackening, tatooing and charring is present all around the wound. On opening the injury No.3 ecchymosis present underneath the above mentioned injury. Fracture of the rib on left side present underneath the fracture of injury in left (sic.) and (sic.) lacerated trail of (sic.) chest, right (sic.) one metallic (sic.) one litre of clotted blood. (4) Contusion with abrasion 3 cm x 3 cm present on postero lateral aspect of chest right side 5 cm the inferior angle of right scapula. 9 All. Ramautar & Ors. Vs. Awadhesh Narayan Singh & Anr. 1235 (5) Abrason - 3 cm x 2 cm present on back of right elbow joint on opening injury no. (4) & (5) ecchymosis present underneath the injuries. The cause of death spelt out in the postmortem report was due to shock and haemorrhage as a result of ante-mortem firearm injuries. (18) Dr. Prabhu Nath (P.W.5), in his deposition, had reiterated the said cause of death and stated that the decease could have died at 03:00 pm on 16.04.2005 and all the injuries were attributable to fire arm. He also stated therein that injuries suffered by him were sufficient in the ordinary course of nature to cause death. (19) The case was committed to the Court of Sessions in the usual manner, where the appellants were charged on counts mentioned in paragraph-1. They pleaded not guilty to the charges and claimed to be tried. Their defence was of denial. (20) During trial, in all, the prosecution examined thirteen witnesses which are as under:- P.W.1 Uday Swaroop Bhardwaj Informant/eyewitness P.W.2 Rajeev Dikshit Eye-witness P.W.3 Bharat Eye-witness P.W.4 Dr. Prabhu Nath Conducted postmortem of the deceased Krishna Kumar Gupta P.W.5 Dr. Ashok Kumar Conducted postmortem of the Yadav deceased Kapil Gupta P.W.6 Satyapal Dikshit On the basis of written report of informant (P.W.1), chik F.I.R. has been prepared. P.W.7 Asfaq Ali Witness of recovery from the place of occurrence P.W.8 H.C.P. Ram Krishna Yadav Conducted panchayatnama of deadbodies of both the decease Krishna Kumar Gupta and Kapil Gupta P.W.9 Shyamakant Tripathi Investigating Officer of the case P.W.10 S.I. Harendra Pratap Singh Arrested convict/appellant Vijay Prakash Sharma and also recovered D.B.B.L. Gun and cartridges from his possession P.W.11 Digvijay Singh Submitted charge-sheet against both the convicts/ appellants Vijay Prakash Gupta and Kapil Gupta P.W.12 Anwar Jamal Submitted ballistic report P.W.13 Nidhi Bansal Daughter of deceased Krishna Kumar Gupta and Kapil Gupta 1236 INDIAN LAW REPORTS ALLAHABAD SERIES (21) The prosecution, in order to prove its case, has also produced following documents :- Description of documents Dated Exhibits Written Report 16.04.2005 Ext. Ka. 1 Postmortem report 17.04.2005 Ext. Ka. 2, 3 F.I.R. 16.04.2005 Ext. Ka. 24 Copied Report 16.04.2005 Ext. Ka. 5 Recovery memo of bloodstained tiles and without blood tiles and blood stained concreate 16.04.2005 Ext. Ka. 6 Recovery memo of bloodstained iron chair 16.04.2005 Ext. Ka. 7 Recovery memo of empty cartridge 12 bore, plastic wed (tikli), dafti and bullet 16.04.2005 Ext. Ka. 8 Police Papers No. 211, A 12/1 16.04.2005 Ext. Ka. 9 Constable paper no. 13 16.04.2005 Ext. Ka. 10 Photonash 16.04.2005 Ext. Ka. 11 Police paper No. 211, A, 14/1 17.04.2022 Ext. Ka. 12 U.P. Constable/ Police A10/1 17.04.2005 Ext. Ka.13 Photonash 17.04.2005 Ext. Ka. 14 Papers Number 17.04.2005 Ext. Ka. 15 Recovery Memos police 16.04.2005 Ext. Ka. 16 Site plan 16.04.2005 Ext. Ka. 17 Recovery Memo D.B.B.L. Gun 16.04.2005 Ext. Ka. 18 Chargesheet 14.06.2005 Ext. Ka. 19 Forensic Science Laboratory Report 16.12.2005 Ext. Ka. 20 (22) The accused/appellants were examined under Section 313 of the Code of Criminal Procedure, wherein they had denied the prosecution evidence and stated that a false case was lodged against them; in order to protect the real accused, case was lodged against them; they were innocent; due to misunderstanding, a case was filed against them under police pressure; in regard to P.W.12, who is the expert of Forensic Science Laboratary, they stated that P.W.12 is a departmental person, due to which he gave statement in favour of the Government; they denied their presence at the place of occurrence; and also denied to give clarifying evidence in defence. (23) On conclusion of the trial, the trial Court, vide judgment/order dated 13.09.2022, held the accused persons/appellants herein guilty of committing the murder of two persons, namely, Krishna Kumar Gupta and Kapil 9 All. Ramautar & Ors. Vs. Awadhesh Narayan Singh & Anr. 1237 Gupta and accordingly convicted the appellants herein for offences punishable under Section 302/34 I.P.C. The trial Cout, observing the offences committed by the appellants herein to have been falling in the ambit of the rarest of rare cases, imposed sentence of capital punishment to the appellants herein for the offence punishable under Section 302/34 I.P.C. (24) Feeling aggrieved, convict/appellant Vijay Prakash Sharma, has preferred Criminal Appeal No. 2504 of 2022, whereas convict/appellant Dheeraj Sharma preferred Criminal Appeal No. 2524 of 2022. Submissions (25) Learned Counsel representing the convicts/appellants addressed us on merits of the matter. He would urge that the order of conviction under Section 302/34 I.P.C. as passed by the trial Court is not at all sustainable. Substantiating this, he made the following submissions :- a) There are material inconsistencies and ambiguites in the prosecution's case. The prosecution examined P.W.1-Uday Swaroop Bhardwaj, P.W.2-Rajeev Dixit and P.W.3-Bharat as eyewitnesses, however, all of them have not supported the prosecution case and have turned hostile. Their testimonies are not in consonance with the allegations made against the appellants in the F.I.R. and lend no credence to the baseless prosecution case. P.W.1 has categorically denied the allegations levelled by him in the F.I.R. and has specifically stated that he had neither seen the accused persons at the place of incident extending any threats to the deceased persons nor was he a witness to alleged incident. P.W.1 had also stated that he had given a written report about the alleged incident at the intance of the police personnel as dictated by the concerned police official. During cross-examination, P.W.1 has deposed that he was not present at the place of occurrence during the course of alleged incident, however, he was taken to the police station by police where he was made/pressurized by them to write a report against the appellants, as dictated by the police. P.W.2 has categorically stated that he had not seen the occurrence of the alleged incident and had arrived at the place of occurrence later upon hearing the sounds of 'firecracker'. Furthermore, P.W.2 has also denied that he has given any statement to the police officials implicating the appellants and has also denied the fact that he knows or had seen the accused persons/appellants at the place of the incident on the fateful day. P.W.3 has also not supported the allegations of the present case and categorically stated that he had not witnessed the alleged act of shooting at the deceased. In this backdrop, submission is that despite there being no support/corroboration of the alleged incident by P.W.1, P.W.2 and P.W.3 and the alleged eyewitness of the case and were declared hostile and in absence of any cogent evidence vis-a-vis the commission of the alleged offence by the present appellants, the trial court had proceeded to impose 1238 INDIAN LAW REPORTS ALLAHABAD SERIES harshest punishment upon the appellants. b) The present case does not fall within the four corners of the wall inasmuch as the alleged incident took place in the heat of passion without any pre-planning nor did the appellants acted in a cruel manner. According to the learned Counsel, the appellants had been made an accused in the present case merely with the aid of Section 34 I.P.C. According to him, in order to invoke Section 34 I.P.C., it ought to be successfully shown that the criminal act complained against was done by one of the accused persons in furtherance of the common intentention of all. If this is shown, then liability for the crime may be imposed on any one of the persons in the same manner as if the act was done by him alone. Thus, the presence of the appellants at the place of occurrence is not established/ proved by the prosection in any manner whatsoever; none of the alleged eye-witnesses of the case have testified to have seen the appellants at the place of occurrence; there is no active participation or commission of any blatant act which manifests common intention by the appellants; and the false allegations, as levelled in the F.I.R., are not corroborated by any evidence brought on record. Thus, the trial Court has lost sight of the fact in not considering the aforesaid aspect of the matter while convicting the appellants under Section 302/34 I.P.C.