# Sanjay Sharma v. State of U.P

- **Citation:** (2021) 11 ILRA 1238
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-12-24
- **Case number:** Criminal Appeal No. 3667 of 2018
- **Bench:** Manoj Misra, Sameer Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sanjay-sharma-v-state-of-u-p-46528
- **Pages:** 10

## Headnote

A. Criminal Law - Indian Penal Code,1860 -
Sections 302 & 504 - Arms Act, 1947 - Section
25 - Code of Criminal Procedure 1973 -
Sections 82 & 161 - The statement recorded
u/s 161 Cr.P.C. is not a substantive piece of
evidence and is inadmissible in evidence. It
cannot be relied upon or used to convict the
accused. The statement recorded u/s 161
Cr.P.C. can be used only to prove the
contradictions and/or omissions. It may be
used for the limited purpose of impeaching the
credibility of a witness. (Para 26 to 30)

Section 162 Cr.P.C. bars use of statement of
witnesses recorded by the police except for the
limited purpose of contradiction of such
11 All. Sanjay Sharma Vs. State of U.P.
1239
witnesses as indicated there. The statements u/s
161 Cr.P.C. recorded during the investigation are not
substantive pieces of evidence but can be used
primarily for the limited purpose: (i) of contradicting
such witness by an accused u/s 145 of the Evidence
Act; (ii) the contradiction of such witness also by the
prosecution but with the leave of the Court; and (iii)
the re-examination of the witness if necessary. (Para
28)

In present case, prosecution has examined five
witnesses of fact. During the course of trial, all of
them denied their earlier statements given by them
before the police i.e. to Investigating Officer u/s
161 Cr.P.C. One of them (PW-1) though supported
the FIR version in his examination-in-chief but this
witness is not an eye witness and his testimony is
based on hearsay, therefore, his testimony given in
examination-in-chief
is
of
no
help
for
the
prosecution. (Para 24)

B. Merely narration of facts in the case diary,
which do not emanate from substantive
evidence cannot be taken into account - Trial
court relied on a circumstance that in the ring
ceremony
(Sagai)
function,
appellant-Sanjay
Sharma fired three celebratory shots, which shows
appellant had used firearm on that day. This fact
could not have been noticed as it does not
emanate from substantive evidence. Though, it
might be part of case diary. Perusal of the
statement of S.I. Paan Singh (PW-9) shows that he
received a C.D., from appellant's brother and noted
its contents in the case diary too, but neither the
C.D. was produced by the prosecution nor the
contents of the C.D. noted in the case diary were
proved during trial. (Para 33)

C. Merely on ground of delay in arrest, the
appellant cannot be convicted. After the
incident, the appellant could be arrested only after
about one year and two months. Although arrest
of the appellant after such a long period of
time may create suspicion against him, but
merely on this basis he cannot be convicted.
Further,
although,
during
investigation,
the
Investigating Officer moved an application u/s
82/83 Cr.P.C. against the appellant, but this
application was rejected by the trial court. (Para
32)

D. In a criminal trial it is the duty of the
prosecution to prove its case beyond all
re

## Text

1238 INDIAN LAW REPORTS ALLAHABAD SERIES
position. At the same time, the Nigam is a public
body charged with the duty of managing water
supply and sewerage all over the State. The
petitioner is obviously a Senior Engineer and
experienced in the particular nature of work, that
is involved in the operations of the Nigam. If the
Nigam say that there has been a reduction in the
work force of their Class-A Officers (which
implies Engineers), it would certainly and preeminently be the Nigam's decision to judge
whether public interest would suffer if the
petitioner is allowed to retire voluntarily and
abandon post. It also cannot be ignored that the
petitioner is not an entry-level Engineer or a
fresh recruit, who can be replaced with another
like him at short notice and before his scheduled
retirement. Therefore, in the circumstances, the
discretion exercised by the Nigam to refuse
voluntary retirement, cannot be said to be
arbitrary, whimsical, capricious or perverse. The
decision is one taken in public interest, which
does not warrant interference by this Court.

24. The decision in Radha Saran (supra)
relied upon by the petitioner to canvass a case of
unreasonableness
by
the
respondents
in
declining the petitioner's notice of voluntarily
retirement is clearly distinguishable, because
that decision was rendered in the context of a
Voluntary Retirement Scheme for servants of
the Indian Railways governed by the Circulars
of 1977 and 1981. The employers in that case
were left option-less in the matter of declining a
notice of voluntary retirement, in view of the
phraseology of Clause (vii) of the 1977 Circular,
where the expression used was "such acceptance
may be generally given in all cases except......"
as would appear from Paragraph 4 of the report
in Radha Saran. The exceptions there were
pending
or
contemplated
disciplinary
proceedings involving the imposition of a major
penalty, or a case where prosecution was
contemplated or launched in a court of law. Else,
the employer was without option but to accept
the notice. This is not the position under
Fundamental
Rule
56(c)
read
with
the
Explanation, as held by the Supreme Court in
State of U.P. v. Achal Singh.

25. In the result, this petition fails and is
dismissed.

26. There shall be no order as to costs.
----------
(2021)12ILR A1238
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 24.12.2021

BEFORE

THE HON'BLE MANOJ MISRA, J.
THE HON'BLE SAMEER JAIN, J.

Criminal Appeal No. 3667 of 2018

Sanjay Sharma ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Anil Kumar Jaiswal, Sri Diwan Saifullah Khan,
Sri Nazrul Islam Jafri, Sri Ravindra Pratap Singh,
Sri
Akhilesh
Srivastava,
Sri
Shaksham
Srivastava, Sri Khalid Mahmood

Counsel for the Respondent:
A.G.A.

A. Criminal Law - Indian Penal Code,1860 -
Sections 302 & 504 - Arms Act, 1947 - Section
25 - Code of Criminal Procedure 1973 -
Sections 82 & 161 - The statement recorded
u/s 161 Cr.P.C. is not a substantive piece of
evidence and is inadmissible in evidence. It
cannot be relied upon or used to convict the
accused. The statement recorded u/s 161
Cr.P.C. can be used only to prove the
contradictions and/or omissions. It may be
used for the limited purpose of impeaching the
credibility of a witness. (Para 26 to 30)

Section 162 Cr.P.C. bars use of statement of
witnesses recorded by the police except for the
limited purpose of contradiction of such
11 All. Sanjay Sharma Vs. State of U.P.
1239
witnesses as indicated there. The statements u/s
161 Cr.P.C. recorded during the investigation are not
substantive pieces of evidence but can be used
primarily for the limited purpose: (i) of contradicting
such witness by an accused u/s 145 of the Evidence
Act; (ii) the contradiction of such witness also by the
prosecution but with the leave of the Court; and (iii)
the re-examination of the witness if necessary. (Para
28)

In present case, prosecution has examined five
witnesses of fact. During the course of trial, all of
them denied their earlier statements given by them
before the police i.e. to Investigating Officer u/s
161 Cr.P.C. One of them (PW-1) though supported
the FIR version in his examination-in-chief but this
witness is not an eye witness and his testimony is
based on hearsay, therefore, his testimony given in
examination-in-chief
is
of
no
help
for
the
prosecution. (Para 24)

B. Merely narration of facts in the case diary,
which do not emanate from substantive
evidence cannot be taken into account - Trial
court relied on a circumstance that in the ring
ceremony
(Sagai)
function,
appellant-Sanjay
Sharma fired three celebratory shots, which shows
appellant had used firearm on that day. This fact
could not have been noticed as it does not
emanate from substantive evidence. Though, it
might be part of case diary. Perusal of the
statement of S.I. Paan Singh (PW-9) shows that he
received a C.D., from appellant's brother and noted
its contents in the case diary too, but neither the
C.D. was produced by the prosecution nor the
contents of the C.D. noted in the case diary were
proved during trial. (Para 33)

C. Merely on ground of delay in arrest, the
appellant cannot be convicted. After the
incident, the appellant could be arrested only after
about one year and two months. Although arrest
of the appellant after such a long period of
time may create suspicion against him, but
merely on this basis he cannot be convicted.
Further,
although,
during
investigation,
the
Investigating Officer moved an application u/s
82/83 Cr.P.C. against the appellant, but this
application was rejected by the trial court. (Para
32)

D. In a criminal trial it is the duty of the
prosecution to prove its case beyond all
reasonable doubts and prosecution will have
to stand on its own leg. The burden in the
criminal trial is upon the prosecution to prove the
guilt of the accused. The prosecution cannot take
advantage of the weakness of the defence case. If
appellant failed to produce any evidence in his
defence, then also he cannot convicted. His
conviction can only be recorded on the basis of
substantive evidence. (Para 34)

The prosecution, in the present case, has failed to
prove the guilt of the appellant beyond all
reasonable doubt and the evidence produced by
the prosecution is of such nature, on the basis of
which, the conviction of the appellant is not
possible. (Para 35, 36)

Acquitted. Appeal allowed. (E-4)

Precedent followed:

1. Ram Swaroop & ors. Vs St. of Raj., 2005 SCC (Cri)
61 (Para 27)

2. Tehsildar Singh & ors. Vs The St. of U.P., AIR 1959
SC 1012 (Para 28)

3. V.K. Mishra & anr. Vs St. of Uttarakhand & anr.,
(2015) 9 SCC 588 (Para 28)

4. Parvat Singh & ors. Vs St. of M.P., (2020) 4 SCC 33
(Para 29)

Precedent distinguished:

Bhagwan Das Vs State (NCT) of Delhi, (2011) 6 SCC
396 (Para 26)

Present appeal challenges judgment and order
dated 08.06.2018, passed by learned Additional
District
and
Sessions
Judge,
District
Bulandshahar.

(Delivered by Hon'ble Sameer Jain, J.)

1. The present appeal has been preferred
by the appellant against the judgment and order
dated 8.6.2018 passed by Additional District and
Sessions Judge, Court No.9, Bulandshahar in
Sessions Trial No. 247 of 2017 (State Vs. Sanjay
Sharma) arising out of Case Crime No. 69 of
1240 INDIAN LAW REPORTS ALLAHABAD SERIES
2016, under Section 302 IPC and Sessions Trial
No.69 of 2018 (State Vs. Sanjay Sharma), under
Section 25 of Arms Act arising out of Case
Crime No. 70 of 2016, by which, learned trial
court convicted the appellant under Section 302
IPC and sentenced him to undergo life
imprisonment with fine of Rs.25,000/- (Rs.
Twenty Five Thousand) and in default of
payment
of
fine
one
year
additional
imprisonment; and under Section 25 of Arms
Act and sentenced the appellant to undergo three
years rigorous imprisonment with fine of
Rs.5000/- (Rs. Five Thousand) and in default
thereof three months additional imprisonment.

2. The prosecution story, in nutshell, is that
on 16.02.2016, Rajendra Sharma (PW-1) lodged
First Information Report of the present case under
Sections 302, 504 IPC at Police Station Gulawathi,
District Bulandshahar against appellant-Sanjay
Sharma, which was registered as Case Crime No.
69 of 2016 with the allegation that on 16.02.2016
his wife Smt. Laxmi (PW-3) and his son Ankit @
Lala (deceased) aged about 15 years along with his
nephew Rakesh Sharma (PW-2) went to attend the
function of ring ceremony (Sagai) of his relative,
namely, Dev Dutt Sharma, and in the function of
ring ceremony (Sagai), the appellant, who is sonin-law of Dev Dutt Sharma, was also present; at
about 3.00 P.M. the appellant Sanjay Sharma
called Ankit (deceased) on the roof and asked him
to bring water for liquor; when Ankit (deceased)
refused, appellant Sanjay Sharma started abusing
him. On hearing the noise, PW-1's wife Smt.
Laxmi and nephew Rakesh Sharma (PW-2)
arrived at the roof and they witnessed that
appellant-Sanjay Sharma, in a fit of anger, shot
Ankit at about 3.30 P.M., as a result whereof, his
son Ankit fell down and appellant-Sanjay Sharma
managed to escape. It is mentioned in the FIR that
information of the incident was given by
informant's wife.

3. After registration of the FIR, police
arrived at the house of Dev Dutt Sharma and
investigation was started. During investigation,
on same day i.e. on 16.02.2016, a country made
pistol was recovered from the roof of the house
of Dev Dutt Sharma in the presence of Rajendra
Sharma (informant) P.W.-1 and Sri Nanak
Chandra Sharma. The Investigating Officer
prepared recovery memo of country made pistol
as (Ext.Ka-11). On same day i.e. on 16.02.2016,
Investigating Officer collected blood stained and
plain scrape of roof from the spot and prepared
recovery memo (Ext. Ka-12). Thereafter, inquest
report of the dead body of Ankit was prepared
on 16.02.2016 as (Ext.Ka-2) and post-mortem
report of the deceased (Ankit) was prepared as
(Ext.Ka-8). During post-mortem, doctor found
two firearm wounds on the body of the
deceased, one was entry and the other was exit.
Both injuries communicating to each other.
After
investigation,
Investigating
Officer
submitted charge-sheet on 23.05.2017 against
the appellant, under Sections 302, 504 IPC as
(Ext. Ka-14) and also submitted charge-sheet
against him under Section of 25 Arms Act on
30.06.2017. As the case under Arms Act was
related to the present case both the cases were
committed to the Court of Session. After
committal of the case, on 29.07.2017, the trial
court framed charges against the appellant under
Sections 302 and 504 IPC. On 22.02.2018
charge was also framed under Section 25 of
Arms Act. Appellant pleaded not guilty and
claimed trial.

4. During trial, prosecution examined 13
witnesses. Out of 13 witnesses, 5 witnesses,
namely, Rajendra Sharma (PW-1), Rakesh
Sharma (PW-2), Smt. Laxmi (PW-3), Smt.
Seema (PW-4) and Virendra (PW-5) are the
witnesses of fact whereas the rest are formal
witnesses.

5. After recording the statement of
prosecution
witnesses,
learned
trial
court
examined the appellant-Sanjay Sharma under
Section 313 Cr.P.C. and convicted him on the
11 All. Sanjay Sharma Vs. State of U.P.
1241
basis of evidence available on record, under
Section 302, 504 IPC and Section 25 Arms Act.

6. We have heard Sri Akhilesh Srivastava
and Sri Shaksham Srivastava, learned counsel
for the appellant; and Ms. Sanyukta Singh, Brief
holder and Sri J.K. Upadhyay, learned A.G.A.
for the State.

7. Learned counsel for the appellant
contended that PW-1, Rajendra Sharma, the
informant was not an eye witness. He was not
present at the spot. He arrived at the place of
incident after receiving information and he did
not support the FIR version during his cross
examination. Smt. Laxmi (PW-3) mother of the
deceased also did not support the prosecution
case. Similarly, Rakesh Sharma (PW-2), the
nephew of informant Rajendra Sharma (PW-1)
and cousin brother of deceased Ankit, who
accompanied Ankit along with his mother to
attend the function of ring ceremony (Sagai) at
the house of Dev Dutt Sharma also did not
support the prosecution case before the trial
court. Similarly, Smt. Seema (PW-4) wife of
Rakesh
Sharma
and
Virendra
(PW-5)
independent witnesses have also turned hostile.
Learned counsel further contended that as all the
witnesses of fact have turned hostile, conviction
of the appellant on the basis of their testimony is
unsustainable. Learned counsel further argued
that as country made pistol was not recovered
either from the possession of appellant or on his
pointing out, therefore, his conviction under
Section 25 Arms Act is also unsustainable.

8. Per contra, learned State counsel argued
that the FIR of the present case was lodged
promptly and Rajendra Sharma (PW-1) in his
examination-in-chief supported the version of
FIR though he turned hostile during his cross
examination. The witnesses, who turned hostile
during trial, namely, Smt. Laxmi (PW-3),
Rakesh Sharma (P-2), Smt. Seema (PW-4) and
Virendra
(PW-5),
have
supported
the
prosecution case in their statements recorded
under Section 161 Cr.P.C. by the Investigating
Officer,
therefore,
under
the
facts
and
circumstances of the present case, trial court has
rightly relied on their statements recorded during
investigation. Learned State counsel further
argued that the testimony of a hostile witness
can be believed and in the present case a young
boy of 15 years was murdered on trivial issue
and as the appellant was the person, who caused
the death of deceased Ankit, and, immediately
after the incident, the country made pistol, which
was used in the commission of crime, was
recovered from the roof, possession of recovered
country made pistol can very well be attributed
to appellant Sanjay Sharma. Learned State
counsel
further
contended
that
during
investigation the country made pistol and
cartridges were sent for forensic examination.
As per forensic report, the recovered country
made pistol and empty cartridge matched with
each other, therefore, conviction recorded by the
trial court in respect of appellant is sustainable
and present appeal filed by the appellant is liable
to be dismissed.

9. We have given our thoughtful
consideration on the rival submissions and
perused the entire evidence on record.

10. Before analysing the evidence
available on record, it is necessary to notice in
brief the evidence provided by the prosecution
during trial.

11. Prosecution examined Rajendra
Sharma (informant of the case) as PW-1, who
lodged the FIR of the present case and proved
the FIR as (Ext.ka-1). In his examination-inchief, this witness although supported the
version of the FIR, but in cross examination he
did not support his statement recorded during
examination-in-chief. This witness in cross
examination stated that Panna lal, who is scribe
the FIR, is his brother-in-law and he never told
1242 INDIAN LAW REPORTS ALLAHABAD SERIES
him that appellant Sanjay Sharma caused
firearm injury to his son Ankit. He further stated
that he, under the pressure of villagers, gave his
statement earlier during examination-in-chief.
This witness did not support his statement
recorded by the Investigating Officer under
Section 161 Cr.P.C. This witness is not an eye
witness and FIR (Ext.Ka-1) of the present case
lodged by him was based on hearsay.

12. Next witness produced by the
prosecution is Rakesh Sharma (PW-2). He is the
nephew of Rajendra Sharma (PW-1) and he was
the person, who, accompanied the deceased
Ankit along with Smt. Laxmi (PW-3) to the
function of ring ceremony (Sagai) arranged at
the house of Dev Dutt Sharma. This witness also
did not support the prosecution case and stated
in his examination-in-chief that he is the cousin
brother of deceased (Ankit) and on 16.02.2016
he attended the function of ring ceremony
(Sagai) at the house of Dev Dutt Sharma along
with his wife Smt. Seema (PW-4). He further
stated that his aunt, Smt. Laxmi (PW-3), and his
cousin brother Ankit also attended the function
and at about 3.30 PM, he heard the sound of gun
shot coming from the roof of the house of Dev
Dutt Sharma during the function of ring
ceremony and when he reached there, there were
number of people gathered there. This witness
further stated that his aunt also arrived at the
spot and he did not witness the appellant causing
firearm injury to Ankit because at the time of
incident he was not present. This witness was
also
declared
hostile.
During
his
cross
examination, PW-2 did not support his statement
recorded by the Investigating Officer under
Section 161 Cr.P.C.

13. Next witness examined by the
prosecution is Smt. Laxmi (PW-3). This witness
is the mother of deceased (Ankit) and wife of
PW-1 Rajendra Sharma (informant). During her
examination-in-chief, this witness also did not
support the prosecution case and stated that in
the function of ring ceremony (Sagai), at about
3.30 PM, she heard gun shot. At that time she
was attending ladies sangeet and when she
reached the spot, she saw that somebody had
shot his son Ankit. She further stated that she
did not witness the appellant fire the shot upon
his son Ankit because she was not present at the
spot. Prosecution also declared her hostile. In
her cross examination, this witness also did not
support her earlier statement recorded by the
Investigating Officer during investigation. She
futher stated that she never told her husband
Rajendra Sharma (PW-1) that appellant shot
dead Ankit.

14. Smt. Seema was examined by the
prosecution as PW-4. She is the wife of Rakesh
Sharma (PW-2). She also accompanied her
husband Rakesh Sharma in the function of ring
ceremony (Sagai) arranged at the house of Dev
Dutt Sharma along with Laxmi (PW-3) and
Ankit (deceased). She, in her examination-inchief, denied the prosecution case and stated that
as soon as she reached the spot, the person who
had caused firearm injury to Ankit had already
managed to escape and she did not witness the
appellant firing at Ankit (deceased). This
witness further stated that she was also sitting
along with Laxmi (PW-3) in the programme of
ladies sangeet. In her cross examination, she also
did not support her statement recorded by the
Investigating Officer during investigation. This
witness was also declared hostile by the
prosecution.

15. Virendra was examined by the
prosecution as PW-5. This witness is an
independent witness, who was a resident of the
village of Dev Dutt Sharma, where the function
of ring ceremony (Sagai) was arranged. This
witness also did not support the prosecution case
and was declared hostile. This witness in his
cross examination stated that the incident did not
occur in his presence and he reached the spot
after hearing the sound of gunshot and he did not
11 All. Sanjay Sharma Vs. State of U.P.
1243
witness the appellant causing gunshot injury to
Ankit. In his cross examination, this witness also
did not support his earlier statement recorded
under Section 161 Cr.P.C. during investigation
by the Investigating Officer.

16. The prosecution next examined
Brijesh Kumar Yadav, S.S.I. as PW-6. This
witness was the first Investigating Officer of
the case. He stated in his examination-in-chief
that he was posted as Station House Officer at
Police Station Jewar, District Gautam Budh
Nagar and he started investigation of the case
and recorded the statement of informant
Rajendra Sharma (PW-1) and arrived at the
spot and made the recovery of country made
pistol and cartridge. Recovery memo of the
same was prepared by S.S.I. Paan Singh and
inquest report of deceased (Ankit @ Lala) was
prepared by S.I. Neeraj Kumar under his
supervision. This witness proved the inquest
report as (Ext. Ka-2). After sending the body
for post mortem examination, this witness
prepared site plan and proved the same as (Ext.
Ka-7). PW-6 further stated that in spite of his
best effort, appellant could not be arrested as he
was trying to avoid his arrest, therefore, he
moved an application under Section 82 Cr.P.C.
against the appellant. This witness also
recorded statements of Smt. Laxmi (PW-3),
Rakesh Sharma (PW-2) and scribe of the FIR,
Panna Lal (not examined). In his cross
examination, he stated that he tried to receive
finger print from the country made pistol, but
he could not get the finger print.

17. The prosecution next examined Dr.
Pushpendra Kumar as PW-7. He is the doctor,
who conducted post mortem of the dead body of
deceased. He stated that on 17.02.2016 at about
11.05 AM he started the post mortem
examination of the deceased, which was
completed by about 11.35 AM. He found
following injuries on the body of deceased
Ankit:-

"(1) A firearm wound of entry size 1.0
cm x 1.0 cm abdominal cavity deep present on
right upper part of abdomen 12 cm below right
nipple at 4 o' clock position blackening and
tattooing present. Margins are inverted on
exploration liver found lacerated about one liter
blood present in abdominal cavity.

(2) A firearm wound of exit size 1.0
cm x 1.5 cm abdominal cavity deep present on
left side back of abdomen 18 cm below from left
scapula at 3 o' clock position margins are
everted on exploration left kidney found
lacerated.

Injury
no.1
and
injury
no.2
communicating to each other."

He proved the post mortem of
deceased Ankit as (Ext. Ka-8). According to this
witness, rigor mortis was present all over the
body.

18. The prosecution next examined
constable Adesh Kumar as PW-8. This witness
proved the chik FIR of the case as (Ext Ka-9)
and G.D. entry as (Ext. Ka-10). This witness in
his cross examination stated that at the police
station informant of the case came along with
some other person, but scribe of the FIR Panna
Lal did not come with him.

19. The prosecution next examined S.I.
Paan Singh as PW-9. This witness in his
statement stated that after registration of the
FIR, he along with Brijesh Kumar arrived at the
place of incident, which was roof of the house of
Dev Dutt Sharma. This witness further stated
that on 16.02.2016 at about 07.50 PM he
prepared recovery memo of the country made
pistol under the direction of Station House
Officer, Brijesh Kumar (PW-6). He sealed the
pistol. This witness proved recovery memo of
pistol as (Ext. Ka-11). He also prepared the
memo of blood stained and plain scrape of roof
of the house of Dev Dutt Sharma and proved the
same as (Ext. Ka-12). This witness further stated
that he registered the case against the appellant
1244 INDIAN LAW REPORTS ALLAHABAD SERIES
Sanjay Sharma, under Section 25 of Arms Act.
This witness proved that the sealed bundle was
sent to Forensic Science Laboratory. He further
stated that he did not recover the country made
pistol and cartridge from the possession of
appellant Sanjay Sharma. He further stated that
at the time of preparing the recovery memo, he
did not try to take finger print from country
made pistol and he did not call any expert in this
regard.

20. Prosecution next examined Prabhat
Kumar Sharma, S.H.O. as PW-10. This witness
was second Investigating Officer of the case. He
recorded statements of informant (PW-1), Smt.
Laxmi (PW-2) and other witnesses under
Section 161 Cr.P.C. On 24.08.2016, he sent the
recovered country made pistol and its cartridge
for Forensic Examination. In his examination-inchief, this witness further stated that on
29.10.2016, the brother of appellant Sanjay
Sharma provided him a C.D., but after that he
was transferred and the case was further
investigated by some other Investigating Officer.
In his cross examination, this witness stated that
the C.D. provided by the brother of appellant
was visualized by him and its contents were
noted by him in the case diary. This witness
neither proved the contents of C.D. nor he
proved his noting made in the case diary in this
regard.

21. The prosecution next examined H.C.P.,
Shri Ram Kashyap as PW-11. He was head
constable and was posted at Police Station
Gulawati. He stated in his statement that he
received the investigation of the case under
Section 25 Arms Act in respect of appellant
Sanjay Sharma. He, during investigation,
reached at the spot and prepared site plan and
proved the same as (Ext. Ka-13) and recorded
statement of witnesses. This witness in his
examination-in-chief stated that on 26.04.2017
he received an information that on 25.04.2017
appellant was arrested and with the permission
of the Court, he recorded the statement of the
appellant in jail. This witness after receiving
sanction from District Magistrate submitted
charge-sheet against the appellant and proved
the same as (Ext. Ka-14). He also proved the
sanction given by the District Magistrate,
Roshan Jaikab and proved the same as (Ext. Ka15). In his cross examination, he stated that he
conducted the investigation of the case under
Section 25 Arms Act on the instruction of
S.H.O. concerned. He further stated that the
country made pistol was not recovered on the
pointing out of the appellant.

22. The prosecution next examined
Prabhas Chand as PW-12. This witness is the
third Investigating Officer of the case. He stated
in his statement that he received investigation of
the case from S.O. Mahaveer after his transfer
and during investigation he recorded the
statement of Smt. Seema (PW-4) and other
witnesses and after investigation on 23.05.2017
he submitted charge-sheet against the appellant
under Sections 302, 504 IPC and proved the
same as (Ext. Ka-16). This witness also proved
the report of Forensic Science Laboratory as
(Ext.Ka-17). In his cross examination, this
witness stated that when he received the
investigation of the case, its investigation was
almost complete. He further stated in his cross
examination that it is true that he did not inquire
about the innocence of the appellant.

23. Last witness examined by the
prosecution was Md. Shadab (PW-13). He was
the person, who made G.D. entry in respect of
the case registered under Section 25 Arms Act
and he proved the G.D. Entry as (Ext. Ka-18).

Arguments and analysis

24. Perusal of the record of the present case
reveals that prosecution has examined five
witnesses of fact, namely, Rajendra Sharma (PW1), Rakesh Sharma (PW-2), Smt. Laxmi (PW-3),
11 All. Sanjay Sharma Vs. State of U.P.
1245
Smt. Seema (PW-4) and Virendra (PW-5). During
the course of trial, PW-2 to PW-5 have turned
hostile. They did not support the prosecution
version. During their cross examination, these
witnesses denied their earlier statements given by
them before the police i.e. to Investigating Officer
under Section 161 Cr.P.C. These four witnesses
(PW-2 to PW-5) did not support the prosecution
version even in their examination-in-chief. As far
as PW-1, Rajendra Sharma (informant) is
concerned, he though supported the FIR version in
his examination-in-chief, but in his cross
examination he did not support his earlier version
given in examination-in-chief. This witness even
discredited the FIR, which was lodged by him
against the appellant by stating that on Nakal
Tehrir he put his signature on the instructions of
the villagers. PW-1 also disapproved his earlier
statement recorded by the Investigating Officer
during investigation under Section 161 Cr.P.C.
Nonetheless, this witness is not an eye witness and
his testimony is based on hearsay, therefore, his
testimony given in examination-in-chief is of no
help for the prosecution.

25. Learned trial court while convicting the
appellant in the present case relied upon the
judgment of Hon'ble Supreme Court in Bhagwan
Dass Vs. State (NCT) of Delhi (2011) 6 SCC 396
and accepted the testimonies of witnesses, namely,
Rakesh Sharma (PW-2), Smt. Laxmi (PW-3), Smt.
Seema (PW-4) and Virendra (PW-5) recorded by
the Investigating Officer during investigation
under Section 161 Cr.P.C.

26. The law is well settled that the statements
recorded under Section 161 Cr.P.C. can only be
used for the purpose of contradiction and it is not a
substantive piece of evidence and such statements
cannot be used against the accused persons.

27. In Ram Swaroop and others Vs.
State of Rajasthan 2005 SCC (Cri) 61, the
Apex Court in paragraph no.23 of the said
judgment observed as follows:-

"We have also noticed that the High
Court has attached undue importance to the
statements made in the course of investigation
and recorded under Section 161 of the Code of
Criminal Procedure. It is well settled that a
statement recorded under Section 161 of the
Code of Criminal Procedure cannot be treated
as evidence in the criminal trial but may be used
for the limited purpose of impeaching the
credibility of a witness."

28. In Tahsildar Singh and others Vs.
The State of Uttar Pradesh AIR 1959 SC
1012, six Judges Bench of the Apex Court
observed that the statements recorded by the
police officer during the course of investigation
can only be used to contradict the evidence and
not for other purpose. Further three Judges
Bench of the Apex Court in V.K. Mishra and
another Vs. State of Uttarakhand and
another (2015) 9 SCC 588 after scrutinizing the
scope of Section 162 Cr.P.C. observed in
paragraph 16 as follows:-

"Section 162 Cr.P.C. bars use of
statement of witnesses recorded by the police
except for the limited purpose of contradiction of
such witnesses as indicated there. The statement
made by a witness before the police under
Section 161(1) Cr.P.C. can be used only for the
purpose of contradicting such witness on what
he has stated at the trial as laid down in the
proviso
to
Section
162(1)
Cr.P.C.
The
statements under Section 161 Cr.P.C. recorded
during the investigation are not substantive
pieces of evidence but can be used primarily for
the limited purpose: (i) of contradicting such
witness by an accused under Section 145 of the
Evidence Act; (ii) the contradiction of such
witness also by the prosecution but with the
leave of the Court; and (iii) the re-examination
of the witness if necessary."

29. Recently in Parvat Singh and others
Vs. State of Madhya Pradesh (2020) 4 SCC
1246 INDIAN LAW REPORTS ALLAHABAD SERIES
33, Hon'ble Apex Court observed that "as per
settled position of law, the statement recorded
under Section 161 Cr.P.C. is inadmissible in
evidence and cannot be relied upon or used to
convict the accused. As per the settled position
of law the statement recorded under Section 161
Cr.P.C. can be used only to prove the
contradictions and/or omissions".

30. Thus law with regard to use of the
statement recorded by the Investigating Officer
during investigation under Section 161 Cr.P.C.
is well settled that on the basis of such
statements, accused cannot be convicted.

31. The judgment of Bhagwan Das (supra)
relied upon by the trial is distinguishable on
facts. In Bhagwan Das case (supra) mother of
accused turned hostile during trial and she
resiled from her earlier statement recorded under
Section 161 Cr.P.C. during investigation.
Hon'ble Supreme Court accepted her statement
recorded under Section 161 Cr.P.C. only due to
the fact that accused was her son and in view of
the Apex Court she obviously wanted to save
her son. In the present case, appellant is not even
related to any of the witnesses of facts produced
by prosecution including PW-1 (informant),
PW-2 (mother of deceased) and PW-3, PW-4
and PW-5. Therefore, in our view, statement of
prosecution witnesses recorded under Section
161 Cr.P.C. cannot be used against appellant in
present case.

32. One more fact, which was taken into
account by the learned trial court against the
appellant is that after the incident, the appellant
could be arrested only after about one year and
two months. In this regard, our considered view
is that although arrest of the appellant after such
a long period of time may create suspicion
against him, but merely on this basis he cannot
be
convicted.
Further,
although,
during
investigation, the Investigating Officer moved
an application under Section 82/83 Cr.P.C.
against the appellant, but the application under
Section 83 Cr.P.C. moved by the Investigating
Officer was rejected by the trial court, therefore,
merely on ground of delay in arrest, the
appellant cannot be convicted.

33. Trial court also relied on a
circumstance that in the ring ceremony (Sagai)
function, appellant-Sanjay Sharma fired three
celebratory shots, which shows appellant had
used firearm on that day. In our view, this fact
could not have been noticed as this fact does not
emanate from substantive evidence. Though, it
might be part of case diary. Perusal of the
statement of S.I. Paan Singh (PW-9) shows that
he received a C.D., which was given by the
brother of appellant, and he noted the contents of
the C.D. in the case diary too, but neither the
C.D. was produced by the prosecution nor the
contents of the C.D. noted in the case diary were
proved during trial. Therefore, merely on
narration of these facts in the case diary, it
cannot be accepted that the appellant Sanjay
Sharma fired three shots by way of celebratory
fire.

34. Trial court also observed that there was
an opportunity to the appellant to produce
evidence in his defence, but he failed to do so.
This observation, in our considered view, is
misconceived. In a criminal trial it is the duty of
the prosecution to prove its case beyond all
reasonable doubts and prosecution will have to
stand on its own leg. The burden in the criminal
trial is upon the prosecution to prove the guilt of
the accused. The prosecution cannot take
advantage of the weakness of the defence case
and, therefore, if appellant failed to produce any
evidence in his defence, then also he cannot
convicted. His conviction can only be recorded
on the basis of substantive evidence.

35. Trial court further noticed that during
investigation eye witnesses had filed their
respective affidavits before the Investigating
11 All. Eeda Khan Vs. State of U.P.
1247
Officer to the effect that appellant is innocent
but in any of the affidavit it was not mentioned
as to who caused the death of the deceased.
Further, on the basis of the affidavit filed by
Virendra (PW-5), trial court drew an inference
that there was pressure to compromise the
matter. Whereas, PW-5 stated that the affidavit
was typed by the villagers with the help of a
lawyer and his signature was taken without
reading out the contents of the affidavit to him.
Hence, the affidavit cannot be taken as evidence.
Similarly, Smt. Seema (PW-4) in her statement
stated about the affidavit that the affidavit was
prepared by the villagers with the help of a
lawyer and the contents of the affidavit were not
read over to her, therefore, the affidavit filed by
PW-4 could also not be used in the evidence.
The finding of the learned trial court that eye
witnesses only with the intention to save the
appellant did not support the prosecution case
and have not given true facts in their statements
during trial, in our view, is uncalled for and is
also not sustainable, as it is based purely on
surmises and conjectures. The trial court
accepted the report of Forensic Science
Laboratory to connect the firearm, recovered
from the roof of Dev Dutt Sharma with the
empty cartridge. But, admittedly, the country
made pistol was neither recovered from the
possession of appellant nor at his pointing out.
There is no evidence in this regard that the
recovered country made pistol belongs to him,
therefore, it cannot be said that appellant was the
person, who used the country made pistol in the
commission of crime. Thus, conviction of the
appellant under Section 25 of Arms Act is also
unsustainable.

36. From the discussion made above, we
are of the considered view that the prosecution,
in the present case, has failed to prove the guilt
of the appellant beyond all reasonable doubt and
the evidence produced by the prosecution is of
such nature, on the basis of which, the
conviction of the appellant in the present case is
not possible.

37. As a result, the appeal is allowed. The
judgement and order of conviction as well as
sentence recorded by the trial court vide order
dated 8.6.2018 passed by Additional District and
Sessions Judge, Court No.9, Bulandshahar in
Sessions Trial No. 247 of 2017 (State Vs. Sanjay
Sharma) arising out of Case Crime No. 69 of
2016, under Section 302 IPC and Sessions Trial
No.69 of 2018 (State Vs. Sanjay Sharma), under
Section 25 of Arms Act arising out of Case
Crime No. 70 of 2016 are hereby set aside. The
appellant is acquitted of all the charges for
which he has been tried. The appellant (Sanjay
Sharma) is said to be in Jail, he be set at liberty
forthwith, if not wanted in any other criminal
case. The appellant (Sanjay Sharma) will fulfill
the requirement of Section 437-A Cr.P.C. to the
satisfaction of the trial court at the earliest.

38. Let a copy of this order/judgement and
the original record of the lower court be
transmitted to the trial court concerned forthwith
for necessary information and compliance. The
office is further directed to enter the judgement
in compliance register maintained for the
purpose of the Court.
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(2021)12ILR A1247
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 15.12.2021

BEFORE

THE HON'BLE DR. KAUSHAL JAYENDRA
THAKER, J.
THE HON'BLE AJAI TYAGI, J.

Criminal Appeal No. 7945 of 2007

Eeda Khan ...Appellant
Versus
State Of U.P. ...Opposite Party