# Satendra Kumar & Anr v. State of U.P

- **Citation:** (2022) 9 ILRA 912
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-09-09
- **Case number:** Criminal Appeal No. 212 of 2014
- **Bench:** Suneet Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/satendra-kumar-anr-v-state-of-u-p-49287
- **Pages:** 35

## Headnote

Criminal Law - Indian Penal Code, 1860
- Section 302- Arms Act, 1959 - Section
25 -Land dispute-accused fired upon the
deceased-defective, biased and prejudiced
investigation-violation of all norms-implanted
two persons as eye witness-planted cartridges
and country-made revolver-and showed it as
recovered on the pointing of accused-person
cannot be judge in his own cause being
informant/plaintiff of the Arms Act casewithout interrogating the probable personsnot taking blood stained clothes-submitted
chargesheet testimony of eye-witnesses -
place
of
occurrence-doubtful-no
dying
declaration- deceased had inimical relations
with several persons.
Appeal allowed. (E-9)

List of Cases cited:

## Text

_Characters 0–39,937 of 120,855. This is a partial read: ask again with offset=39937 for what follows._

912 INDIAN LAW REPORTS ALLAHABAD SERIES
Gorakhpur
to
revisit
the
petitioner's
application irrespective of her marital
status. The order pertaining to same shall
be passed within a period of six weeks
from the date a copy of this order is
produced before the concerned authority.

14. Consequently, the writ petition
succeed and is allowed. Parties shall bear
their own costs.
----------
(2022) 9 ILRA 912
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 09.09.2022

BEFORE

THE HON'BLE SUNEET KUMAR, J.

Criminal Appeal No. 212 of 2014

Satendra Kumar & Anr. ...Petitioners
Versus
State of U.P. ...Respondent

Counsel for the Petitioners:
Sri Mangala Prasad Rai, Sri Indra Kumar
Chaturvedi, Sri S.K. Rao, Sri Saurabh
Chaturvedi, Sri O.P. Singh (Sr. Advocate)

Counsel for the Respondent:
Govt. Advocate, Sri Ashok Kumar Pandey

Criminal Law - Indian Penal Code, 1860
- Section 302- Arms Act, 1959 - Section
25 -Land dispute-accused fired upon the
deceased-defective, biased and prejudiced
investigation-violation of all norms-implanted
two persons as eye witness-planted cartridges
and country-made revolver-and showed it as
recovered on the pointing of accused-person
cannot be judge in his own cause being
informant/plaintiff of the Arms Act casewithout interrogating the probable personsnot taking blood stained clothes-submitted
chargesheet testimony of eye-witnesses -
place
of
occurrence-doubtful-no
dying
declaration- deceased had inimical relations
with several persons.
Appeal allowed. (E-9)

List of Cases cited:

1. Padam Singh Vs St. of U. P. (2000) 1 SCC 621

2. Rama Vs St. of Raj., reported in (2002) 4 SCC
571

3. Majjal Vs St. of Har. (2013) 6 SCC 798

4. Varkey Joseph Vs St. of Kerala, 1993 Supp (3)
SCC 745

5. Munsi Prasad Vs St. of Bihar, AIR 2001 SC
3031, 3033

6. Raj Kishor Vs St. of Bihar, 2003 (47) ACC
1068 SC

7. Bhagwan Singh Vs St. of M.P., 2002 (44) ACC
1112 SC

8. Satnam Singh Vs St. of Raj., (2000) 1 SCC
662.

9. Bhagwan Jagannath Marked Vs St. of Mah.,
(2016) 10 SCC 537

10. Shyamal Ghosh Vs St. of W. B.l, AIR 2012
SC 3539

11. Sone Lal Vs St. of M.P., AIR 2009 SC 760

12. Sucha Singh Vs St. of Punj., (2003) 7 SCC
639

13. Dilawar Singh Vs St. of Hary., (2015) 1 SCC 737

14. Dhari Vs St. of U.P., AIR 2013 SC 308

15. Anil Rai Vs St. of Bihar, (2001) 7 SCC 318

16. St. of Bihar Vs Ram Padarath Singh, AIR
1998 SC 2606

17. Mehraj Singh Vs St. of U.P., (1994) 5 SCC
188

18. St. of M.P. Vs Dharkole, AIR 2005 SC 44

19. Paramjeet Singh Vs St. of Uttrakhand, AIR
2011 SC 200
9 All. Satendra Kumar & Anr. Vs. State of U.P.
913
20. Nagraj Vs St., (2015) 4 SCC 739

21. Wakkar Vs St. of U.P., 2011 (2) ALJ 452 SC,
Nathuni Yadav Vs St. of Bihar, (1998) 9 SCC 238

22. Arun Bhanudas Pawar Vs St. of Mah.,
MANU/SC/7056/2008, (2008) 11 SCC 232

23. Sumer Singh Umed Shinh Rajput @ Sumer
Shinh Vs St. of Guj., AIR 2008 SC 904

24. Maqbool Vs St. of Andhra Pradesh, AIR 2011
SC 184

25. Khem Ram Vs St. of H. P. , (2018) 1 SCC
202

26. Leela Ram Vs St. of Har., (1999) 9 SCC 525

27. Navinchndra N. Majithia Vs St. of Megh. &
ors., (2000) 8 SCC 323
(Delivered by Hon'ble Suneet Kumar, J.)

1. Heard Shri I.K. Chaturvedi, learned
Senior Advocate assisted by Shri Saurabh
Chaturvedi,
learned
counsel
for
the
appellants, Shri Ashok Kumar Pandey,
learned counsel for the informant and Shri
Vikas Goswami, learned A.G.A. for the the
State and perused the record.

2. This appeal has been preferred
against the judgment and order dated
2.1.2014, passed by Additional Sessions
Judge/Special Judge S.C./S.T. (Prevention
of Atrocities) Act, Meerut, whereby the
learned
Trial
Court
convicted
the
appellants/accused persons under Section
302/34 I.P.C. and Section 3 (2) (5) of The
S.C. and S.T. (Prevention of Atrocities)
Act, 1989, and awarded life imprisonment
and fine of Rs. 5,000/- each under Section
302/34
I.P.C.,
10
years
rigorous
imprisonment and fine of Rs. 30,000/- each
under Section 3 (2) (5) of The S.C. and S.T.
(Prevention of Atrocities) Act, 1989, and in
default of payment of fine they have to
undergo three months simple imprisonment
each under Section 302/34 I.P.C. & Section
3 (2) (5) of The S.C. and S.T. (Prevention
of Atrocities) Act, 1989, out of Rs. 30,000/-
Rs. 25,000/- had to go to Smt. Sushma,
widow of the deceased. Accused Subhash
was acquitted under Section 25 of the Arms
Act in S.T. No. 614 of 2007 (State Vs.
Subhash
),
Police
Station-
Lalkurti,
District- Meerut, against which no appeal
has been preferred by the State.

3. In brief the facts of the case are that
on 8.3.2007, informant Narendra Bhan,
moved a Tehrir before S.H.O. Lalkurti,
Meerut at 11:30 A.M., that due to land
dispute, Satendra Kumar and Subhash, sons
of Babu Ram Sharma, with an intention to
kill his brother fired upon him when he was
coming to office at about 10.00 A.M. Both
the miscreants were riding a motorcycle
and his brother was on a scooter bearing
No. UP 15 K-0927. He was admitted in
Jaswant Rai Hospital; it was requested to
take appropriate action.

4. On the basis of the Tehrir, a case
under Section 307 I.P.C, & Section 3 (2)
(5) of The S.C. and S.T. (Prevention of
Atrocities) Act, 1989, bearing Case
Crime No. 64 of 2007, was registered.
Thereafter, the scooter of the deceased
and a bullet was taken into possession
from the spot. A map/site plan of the
occurrence was prepared and medical
report was obtained from Jaswant Rai
Hospital. After death of the injured
inquest report was prepared and Senior
Sub Inspector (S.S.I) Umesh Chandra
Yadav sent the dead body of the deceased
for post-mortem and letters to Chief
Medical Officer (C.M.O.) and Reserve
Inspector (R.I.) Police Line, Meerut, were
also sent. Photo Nash and Challan Lash
were also prepared and accused were
914 INDIAN LAW REPORTS ALLAHABAD SERIES
arrested and sent to Jail. After taking
them on police custody remand they were
taken for recovery of the crime weapon.
An illegal revolver of 38 bore, an empty
cartridge form its barrel and two live
cartridges of the said bore were recovered
on the pointing out of accused Subhash
from near the broken boundary of R.V.C.
Farm, kept in white polythene. Accused
Subhash admitted before the police that
this was the revolver from which he fired
at Bijendra Bhan and thereafter hid it
there. An attempt was also made to
recover
weapon
from
the
accused
Satendra but in vain.

5. As per the prosecution version the
recovery memo was prepared and copy
thereof was provided to the accused
Subhash and a map of the place of recovery
was also prepared and after obtaining
prosecution sanction charge-sheet was
prepared and filed under Section 25 of the
Arms Act, along with, charge-sheet under
Section 307, 302 I.P.C. and Section 3 (2)
(5) of The S.C. and S.T. (Prevention of
Atrocities) Act, 1989, and a report from
Forensic Science Laboratory, Agra, U.P.
was also obtained and the same was kept
on record.

6. Cognizance was taken by the
concerned Magistrate on both the chargesheets and both the cases were committed
to the Court of Sessions on 19.6.2007. On
28.9.2007 charge was framed in both the
sessions trials. The file of S.T. No. 613 of
2007 (Satendra Kumar and Another Vs.
State of U.P.) was made leading file. Both
the sessions trial was decided together by a
common judgment.

7.

Following
witnesses
were
produced to prove the prosecution
version:-
P.W.-1
Dr. Joseph Jamal Jaidi, Dr. Jaswant Rai Hospital,
Meerut.
P.W.-2
Narendra Bhan, brother of the deceased and
informant.
P.W.-3
Ajay Bhan, alleged eye-witness, son of the
informant and nephew of the deceased.
P.W.-4
Dr. Sompal Singh, Dr. who conducted postmortem.
P.W.-5
Shradhhanand Sharma, Constable Clerk.
P.W.-6
Achhendra Kumar Bhanu, alleged eye-witness,
nephew of the deceased and the informant.
P.W.-7
S.I. Umesh Chandra Singh, first I.O.
P.W.-8
S.I. Harpal Singh, I.O. of case under Section 25
of Arms Act.
P.W.-9
Mukesh Kumar Meshram, the then D.M.
Meerut.
P.W.-10
Dr. Brijesh Kumar Singh, C.O., second I.O.

Documentary evidence relied upon
by the prosecution:-

Ex. Ka-1
Medical Report of the deceased
Ex. Ka-2
Tehrir
Ex. Ka-3
Post-Mortem
Ex. Ka-4
F.I.R. of Case Crime No. 64 of 2007
Ex. Ka-5
Kayami Case G.D. dated 8.3.2007
Ex. Ka-6
Entry of Tehrir in G.D.
Ex. Ka-7
Chick F.I.R. of Case Crime No. 73 of
2007
Ex. Ka-8
G.D. Entry dated 15.3.2007
Ex. Ka-9
Recovery Memo of Scooter
Ex. Ka-10
Recovery Memo of Bullet
Ex. Ka-11
Site-plan of Case Crime N. 64 of 2007
Ex. Ka-12
Inquest
Ex. Ka-13
Letter to C.M.O.
Ex. Ka-14
Letter to R.I.
Ex. Ka-15
Photolash
Ex. Ka-16
Challan Lash
Ex. Ka-17
Specimen Seal
Ex. Ka-18
Arrest Memo of the accused Satendra
Kumar and Subhash Chand
Ex. Ka-19
Recovery Memo of illegal revolver of .38
bore and empty and live cartridges
9 All. Satendra Kumar & Anr. Vs. State of U.P.
915
regarding case crime no. 64 of 2007
Ex. Ka-19A
Search Memo of weapon regarding Case
Crime No.64 of 2007
Ex. Ka-20
Site plan regarding Case Crime No. 73 of
2007 under Section 25 of Arms Act
Ex. Ka-20A
Recovery Memo of illegal revolver
alongwith empty and live cartridges of .38
bore regarding Case Crime No. 64 of
2007
Ex. Ka-21
Charge-sheet under Section 25 of Arms
Act against accused Subhash
Ex. Ka-21A
Site plan regarding search of weapon as
alleged by the accused Satendra regarding
Case Crime No. 64 of 2007
Ex. Ka-22
Prosecution Sanction
Ex. Ka-22A
Charge-sheet against accused regarding
Case Crime No. 64 of 2007
Ex. Ka-23A
Report of Forensic Science Laboratory
Agra, U.P.

Material Exhibits produced and
proved by the prosecution:-

Material Ex. 1
Alleged
recovered
country
made revolver
Material Ex. 2
Empty cartridge
Material Ex. 3 & 4
Live cartridges
Material Ex. 5
Clothes
Material Ex. 6
Bullet recovered from the place
of occurrence

It may be noted that the bullet
recovered from the dead body was neither
produced, nor, proved in the Court.

8. After closure of prosecution
evidence statements of accused persons
were recorded under Section 313 Cr.P.C.
wherein, both the accused persons denied
the allegations, documentary and oral
evidences produced by the prosecution.
They stated that false recovery was made
by the I.O. According to them, witnesses
have given false evidence on account of
enmity and both the alleged eye witnesses,
P.W.3 and P.W. 6, are real nephew of the
deceased and son and nephew of informant
P.W.2 Narendra Bhan. Accused Subhash
stated that there is property dispute
between his uncle, deceased- Bijendra
Bhan, Satendra Som and Yogendra Som,
who were tenants of his uncle. His uncle
had sold their property to them and when
they came to take possession then dispute
arose, therefore, his uncle in connivance of
the tenants falsely implicated both the
brothers in the murder of Bijendra Bhan.
When they were sent to jail, Satendra and
Yogendra, again reoccupied their plot.
There was no enmity between the deceased
and the accused persons. All the witnesses
of fact are the family members of the
deceased who have falsely deposed against
them due to enmity. Accused Satendra in
addition to that has clarified that being
brother of Subhash his uncle has falsely
implicated
him
in
connivance
with
Satendra and Yougendra.

9. Oral evidence from the side of
accused persons:-

D.W.-1
Vinod, owner of close tea stall.
D.W.-2
Pankaj Kumar Sharma, Yoga Teacher.
D.W.-3
Mohd. Ayub, a prisoner in lockup of P.S.
Nauchandi.
D.W.-4
Chandra Shekhar, property dealer.
D.W.-5
Vineet Kumar, employee of Sushila Jaswant
Rai Hospital.
D.W.-6
Sanjay Khare, Scientist/Arms specialist, F.S.L.
Agra.

Documentary evidence from the side
of defence:-

Ex. Kha-1
Certified
copy
of
the
admission register of the
deceased in Sushila Jaswant
Rai Hospital.
916 INDIAN LAW REPORTS ALLAHABAD SERIES

10. Submissions:

In brief, the learned counsel for
the appellants has made the following
submissions :-

(a) That the conviction and
sentence passed by the trial Court is against
the weight of evidence. The trial Court has
not considered the material facts available
on record and on the basis of conjectures
and surmises passed the impugned order
which is against the law and facts and is
liable to be set-aside.

(b) That P.W.-1, the doctor who
examined the injured has categorically
stated that condition of the deceased was
too critical and was immediately kept on
ventilator and while on the ventilator he
succumbed to the injuries. Thus, there was
no
occasion
for
the
deceased
to
communicate anything to any of the
witnesses.

(c) That it is admitted by the
prosecution that informant of the case
Narendra Bhan (P.W.2) was not present at
the time of the incident and he has admitted
in his testimony that he came to know
about the incident and the deceased being
admitted to the hospital in an injured
condition later. P.W. 2 was on duty in the
court and after getting the information from
another employee regarding the incident
and the admission of his brother in the
hospital, firstly, he moved an application
before the Presiding Officer for granting
leave, thereafter, he proceeded to the
hospital where the injured was kept on the
ventilator, thus, he is not the eye witness of
the incident and no pre- death statement
had been given by the deceased to the
informant.

(d)
That
other
alleged
eye
witnesses of the incident are Ajay Bhan
(P.W.3) and Akshendra Kumar Bhan
(P.W.6) who are the son and nephew of the
informant, but their names were also not
mentioned in the F.I.R. Further, no other
evidence corroborates the fact that they
were present at the time of the incident.
They being the close relatives of the
deceased and after lodging of the F.I.R.
they were setup as eye witnesses.

(e) That it is admitted by the
prosecution and established from the
evidence of defence that there was property
dispute (sale deed paper no. 114 Kha) and a
copy of F.I.R. being case crime no. 124 of
2003, wherein charge-sheet, has been
submitted against the informant and the
deceased which indicates admitted enmity
with appellants.

(f) That, further, it appears that
deceased dealing in property was shot by
some other persons in order to take
revenge, the appellants have been falsely
implicated in the present case due to
admitted enmity. It is also evident from the
prosecution
case
that
the
place
of
occurrence is not the actual place of
occurrence as no blood was found on the
spot, though deceased had received six gun
shot injuries, three entry wounds and three
exit wounds, meaning thereby, there should
have been a pool of blood on the spot, but
nothing was recovered by the I.O. in this
regard no recovery memo was prepared.

(g) That it appears that the
deceased was shot somewhere else and his
body was thrown at the place which the
prosecution claims to be the place of
incident.
The
appellants
have
been
convicted on the oral testimony of the
alleged eye witnesses P.W.-3 and P.W.-6
who are close relatives of the deceased and
the confessional statement of the accused.
The testimony of the eye witnesses is false
and untruthful. It is a case of no evidence. .

11. Scope of Appeal under Section
378 Cr.P.C.:
9 All. Satendra Kumar & Anr. Vs. State of U.P.
917

This is an appeal against the
judgment and order of conviction. The duty
of Appellate Court has been highlighted by
the Supreme Court in several cases, some
are noted herein below :

In Padam Singh vs. State of U. P.
(2000) 1 SCC 621, while dealing with the
duty of the Appellate Court, Supreme Court
expressed as follows :

"2.... It is the duty of an appellant
court to look into the evidence adduced in
the case and arrive at an independent
conclusion as to whether the said evidence
can be relied upon or not and even if it can
be
relied
upon,
then
whether
the
prosecution can be said to have been
proved beyond reasonable doubt on the
said evidence. The credibility of a witness
has to be adjudged by the appellate court
in drawing inference from proved and
admitted facts. It must be remembered that
the appellate court, like the trial court, has
to be satisfied affirmatively that the
prosecution case is substantially true and
the guilt of the accused has been proved
beyond all reasonable doubt as the
presumption of innocence with which the
accused starts, continues right through
until he is held guilty by the final Court of
Appeal and that presumption is neither
strengthened by an acquittal nor weakened
by a conviction in the trial court."

Similarly, in Rama Vs. State of
Rajasthan, reported in (2002) 4 SCC 571,
the Hon'ble Apex Court has also cast duty
upon the appellate court in the following
terms:-

"4.........It is well settled that in a
criminal appeal, a duty is enjoined upon
the appellate court to reappraise the
evidence itself and it cannot proceed to
dispose of the appeal upon appraisal of
evidence by the trial court alone especially
when the appeal has been already admitted
and placed for final hearing. Upholding
such a procedure would amount to negation
of valuable right of appeal of an accused,
which cannot be permitted under law."

Furthermore, in Majjal Vs. State
of Haryana (2013) 6 SCC 798, a three
Judge Bench of the Apex Court has ruled
thus: -

"7. It was necessary for the High
Court to consider whether the trial court's
assessment of the evidence and its opinion
that the appellant must be convicted
deserve to be confirmed. This exercise is
necessary because the personal liberty of
an accused is curtailed because of the
conviction. The High Court must state its
reasons why it is accepting the evidence on
record. The High Court's concurrence with
the trial court's view would be acceptable
only if it is supported by reasons. In such
appeals it is a court of first appeal.
Reasons cannot be cryptic. By this, we do
not mean that the High Court is expected to
write an unduly long treatise. The judgment
may be short but must reflect proper
application of mind to vital evidence and
important submissions which go to the root
of the matter."

Accordingly, this Court proceeds
to consider and decide the Appeal in
accordance with the principles laid down
by the Supreme Court.

12. Statements of prosecution
witnesses and its analysis/scrutiny :

(a) P.W.-1 Dr. Joseph Jamal
Zaidi, attended the deceased in injured
state at 10:40 A.M. on 8.3.2007, in Sushila
Jaswant Rai Hospital, Meerut, has proved
the injury report Ex. Ka-1 and stated that
when he saw the injured, the injured had
not fallen unconscious, but was in a drowsy
state. Diastolic B.P. was not showing while
systolic B.P. was 60. Pulse was very feeble
and hardly palpable. This witness has found
918 INDIAN LAW REPORTS ALLAHABAD SERIES
that patient sustained multiple fire-arm
entry and exit wounds over lower chest and
upper abdomen. Blood was arranged but
the patient could not be revived. Pupils
became fixed and not responding to light.

Normally
name
of
the
person/hospitalizer of the injured is written
in the beginning, but in this case first four
lines and last few lines of the report appear
to have been written later after preparation
of the injury report. The sentences are in
different handwriting and ink, it is noted,
further, that the deceased was brought by
P.W.-2 Narendra Bhan, brother of the
deceased. It also establishes that the patient
was not brought by P.W.3 and P.W.6, who
claim to be eye-witnesses, otherwise their
names would have found place in the injury
report. Even the name of the patient
Bijendra Bhan has been written, above the
drawn lines, in another handwriting. This
witness admits that he has not written the
particulars of the patient and below the
injury report Left Thumb Impression (LTI)
of Narendra Bhan, son of Harikishan, was
also not in his handwriting.

(b) P.W.-2, Narendra Bhan-
informant, Reader of the then Additonal
Sessions Judge (A.D.J.) Court No. 16, in
Civil Court, Meerut, has deposed that there
was property dispute between him and
accused persons. He proved the Tehrir (Ex.
Ka-2) wherein, he has written that on
8.3.2007, at about 10:00 A.M. when his
brother was coming to the Court, near
Hanuman
Temple,
Sophipur,
accused
Satendra and Subhash, shot his brother
Bijendra Bhan, who was on a scooter, with
an intention to kill him. Accused persons
were on motorcycle. After receiving
information at the Court he reached Sushila
Jaswant Rai Hospital, thereafter, lodged the
F.I.R. Bijendra Bhan died on the same day
in the hospital. He, further, deposed that the
incident was seen by witnesses Ajay
Bhan(P.W.3), Satendra and Achhendra
Bhan (P.W.6). His brother Bijenndra Bhan
had also informed him during treatment
that due to property dispute accused
persons caused fire-arm injuries.

(i) It is noteworthy that only Ajay
Bhan (P.W.3) and Achhendra Bhan (P.W.6),
who are real nephew of the deceased and
son of the informant have come forward in
support of prosecution, but independent
witness Satendra has not been examined.
According to this witness, P.W.6 does his
own business, whereas, Achhendra Bhan,
(P.W.6), in contradiction has stated that he
was working with Marshal Security, Abu
Lane, Meerut. P.W.2 does not claim to be
eye-witness, but stated that deceased before
death had informed him about the incident
and the accused persons. This fact shall be
dealt later in the light of statements of other
witnesses. This witness admittedly received
information of the incident at 10:40 A.M.
from one Arvind Kumar Gupta, Munsarim
Munsif Hawali. Thereafter, he prepared
casual
leave
application
and
got
it
sanctioned from the presiding officer,
thereafter, proceeded to the hospital. As per
F.I.R, deceased was admitted in hospital at
10:40 A.M. Thus, this witness would have
reached the hospital after 11:00 A.M.
During cross-examination this witness has
admitted and expressed ignorance about
several facts, including, enmity of the
deceased within the family, and other
persons, other than the named accused
persons.

(ii) P.W.2 has further deposed that
after inquest, body of the deceased was
carried by the police for post-mortem. He
expressed ignorance about the vehicle on
which the dead body was brought to post
mortem house and also admits that no
family member had accompanied the dead
body to the post-mortem house. He also
expressed ignorance as to who donated
9 All. Satendra Kumar & Anr. Vs. State of U.P.
919
blood; he admits that at the time of the
incident, deceased was having Mobile
Phone bearing No. 9412707982, but its
C.D.R. has not been obtained by the I.O. to
fix the place of occurrence. It is also
noteworthy that no blood stained and plain
earth/soil/part of tar-coal road was taken
from the spot which is essential to establish
the place of occurrence. In this regard no
laboratory report was obtained by the I.O.
In this backdrop it is argued, from the
appellants' side, that place of occurrence is
somewhere else and the body was thrown
at the alleged place of occurrence.

(c) P.W.-3, Ajay Bhan, claims to
be eye-witness, in brief, he claims himself
to be L.I.C. agent in L.I.C. branch Saket
Meerut and eye-witness of the incident,
deposed that at about 9:35 A.M., he on
scooter and his cousin Achhendra Bhan on
motorcycle were going to Meerut. When
they reached on Roorki Road, his uncle,
Bijenrdra Bhan, overtook them by scooter.
On his uncle reaching near Sophipur
Temple, Satyendra and Subhash, both real
brothers, shot at Bijendra Bhan, who fell
down and thereafter both the assailants
fired at him with intention to kill him. This
incident was seen by his cousin Achhendra
Bhan and Satendra Som. He deposed that
Subhash had fired 3-4 bullets at waist and
side of the deceased, thereafter, the
deceased parked the scooter and fell down.
They parked their vehicles and transported
Bijendra Bhan at Sushila Jaswant Rai
Hospital. Relevant part of his statement has
been recorded at paragraph no. 16 to 21.

(d) P.W.-4, Dr. Sompal Singh,
conducted autopsy/post-mortem and found
the following injuries on the body of the
deceased:-

He found that rigor-mortis was
head downwards. There was dried blood
smeared over the body. There was fracture
of L3 vertebrae. 11th rib of right side was
under injury. Right side pleura was
lacerated, right lung was lacerated, vessels
were lacerated, there were clotted blood
and fluid in the right side pleural cavity.
Peritoneum was lacerated and in its cavity
2.5 kg clotted blood and fluid was present.
In stomach only 50 ml. watery fluid was
present. Small and big intestine were
lacerated. Liver was also lacerated. Spleen
was pale. Both kidneys and gall bladder
was lacerated .

(i)
Following
ante
mortem
injuries were found on the person of the
deceased:-

i. Gun shot wound (GSW) entry 1
- 1x1 c. m. X bone deep on back mid line
lumber vertebral column at the level of L3.
Margins inverted blackening present. Bone
fracture under injury.

ii. GSW exit 2 --1 x 1 c.m.
correspond injury no. 1, wound of entry on
abdomen 5 c.m. below from umbilicus at 6
'O' Clock position. Margin everted.

iii. GSW 3 Entry- 1x 1 c.m. right
lateral side of abdomen involving lower
part of chest. 11 c.m. above. ASIS margin
irregular, blackening present, 11th rib
fracture under injury, no penetration wound
found.

iv. GSW Entry - 1 x 1 c.m. x
chest cavity deep - right lateral side chest
16 cm. above injury no. 3. 6th and 7th ribs
fractured under injury. Margins inverted
with blackening.

v. GSW exit- 1 x 1.5 c.m.
correspond to injury no. 4 wound of entry
on left lateral side of abdomen 8 cm. above
left ASIS. Margin everted.

vi. GSW entry - 1 x 1 c.m. X
abdominal cavity deep on right lateral side
of abdomen 13 c.m. above (right ASIS).

(ii) One metallic bullet was
recovered from soft tissue of left side
abdomen near costal margin. Body was
sent for X-ray for any foreign body. X-ray
920 INDIAN LAW REPORTS ALLAHABAD SERIES
film number 1675 to 1680 dated 8.3.2007,
copy of X-ray slip was also attached with
post-mortem report.

(iii) In cross-examination this
witness has admitted that considering the
nature of the injuries there was possibility
of immediate death of the deceased,
though, as per the death certificate issued
by Jastwant Rai Hospital, the deceased died
at 1:00 P.M. He admits that he has not
written the time of death. He further admits
that having regard to the injuries there is
possibility of death of the deceased on the
spot. On being inflicted serious injuries
deceased would not be in a position to
speak.

(iv) In the backdrop of the
evidence of P.W.-4, the deposition of P.W.2
that the deceased had informed the name of
accused
persons
while
in
ICU
is
improbable or falsified. P.W.4 further
opined that deceased must have taken meal
6 to 8 hours before receiving the fire arm
injuries, as 50 ml. watery fluid was found
in stomach of the deceased. Therefore,
deposition of P.W.2 that deceased left the
house, for the Court, after taking meal in
the morning is falsified. P.W. 4 further
deposed that most of the organs of the
deceased had been torn/lacerated. Having
regard to the nature of the injuries, movingwalking or the possibility of the deceased
driving scooter is not possible. The
testimony of this witness also casts doubt in
the manner of attack explained by the
prosecution. According to this witness the
I.O. had not recorded his statement.

(e) P.W.-5, Shradhha Nand
Sharma, constable/clerk, who on the basis
of Tehrir prepared chick FIR and after
death of the deceased added Section 302
I.P.C. and entered it in GD No. 21 at 11:30
A.M. This witness further states that GD
No. 25 regarding addition of Section 302
I.P.C. was prepared by him at 2:10 PM.
After alleged recovery of fire arm and
bullet on the pointing out of accused
Subhash a case under Section 25 of Arms
Act bearing Case Crime No. 73 of 2007
was lodged at 11:45 AM on 15.3.2007. This
witness has prepared chick F.I.R. Ex. Ka-7.
In this regard G.D. was prepared by him at
1:30 P.M. and has proved it as Ex. Ka-8.

According to this witness he did
not receive the clothes of the deceased, nor,
pathological
or
scientific
report
was
obtained with regard to presence of blood
on the clothes of the deceased. He stated
that after recovery, accused were brought to
the lockup. He admits that clothes received
from post-mortem house was neither sealed
by the I.O., nor, sent for examination.

According to the learned counsel
for the appellants forged and fictitious
recovery memo was prepared on the
pointing out of accused Subhash. As per the
F.S.L.
Report,
bullets
and
cartridges
recovered from the place of occurrence and
from the body of the deceased do not match
with the so called recovered country made
pistol.

(f) P.W.-6- Achhendra Kumar
Bhan, is the real nephew of the deceased.
According to him on the date of incident he
was serving in Abu Lane Marshal Security,
Meerut. On 8.3.2007 he started his journey
from his house at 9:45 A.M. for Meerut.
According to him when he and P.W.3 Ajay
Bhan, reached near Roorkee Road, his
uncle overtook them by scooter. When he
reached in front of Sophipur then a
motorcycle driven by accused Satendra
overtook them on which accused Subhash
was a pillion rider. When they (accused)
reached near the deceased, first Subhash
shot the deceased and accused fell down.
Thereafter, Satendra and Subhash both
fired with an intention to kill the deceased,
thereafter, ran away towards Modipuram.
According to P.W.5 this incident was
9 All. Satendra Kumar & Anr. Vs. State of U.P.
921
witnessed
by
him, Ajay
Bhan
and
Satyendra Som of his village. The incident
took place at 10:00 A.M. on 8.3.2007.
Thereafter, it is stated that they carried their
uncle in injured state to the hospital and
handed him to the officials of the hospital,
who carried the injured to I.C.U. After
sometime his uncle (P.W.2) reached and
completed the admission formalities. On
the same day injured Bijendra Bhan died
during treatment. P.W.5 and Ajay Bhan
narrated the story of the incident to his
uncle Narendra Bhan(informant).

According to P.W.5 the informant
Narendra Bhan reached the hospital after
admission of the injured in I.C.U. It has
come in evidence that the deceased
immediately was intubated and put on
ventilator. The doctor did not find the
injured
in
position
to
give
dying
declaration, therefore, no information was
sent to police/Magistrate. In case of
intubation and patient being put on
ventilator, there was no possibility that the
injured could speak or had told anything to
anyone. This witness does not say that prior
to death of the deceased there was any talk
between the informant and the deceased.

(g) P.W.-7, Umesh Chandra
Singh Yadav:- This witness has proved the
alleged recovered revolver ( M Ex. 1),
empty cartridge (M Ex. -2), live cartridges
(M Exs. 3 and 4), clothes (M Ex. 5). Bullet
alleged to be recovered from the place of
occurrence was produced unsealed in the
Court. It is proved (M Ex. 6). He admits
that C.O. Brijesh Kumar Singh is the
informant/plaintiff of the case under
Section
25 Arms Act,
but
it
was
investigated by S.I. Mithun Dixit (it is
against the procedure and principle of
natural justice, though the accused has been
acquitted on the basis of F.S.L. report for
the charge of Section 25 Arms Act, finding
him to have been falsely implicated and no
appeal has been preferred by the State).
This witness admits that since beginning.
Section 3 (2) (5) of The S.C and S.T
(Prevention of Atrocities) Act, 1989, was
mentioned in the Chick F.I.R. But Circle
Officer (C.O.) was out of station therefore
on the oral direction of the Inspector he
started the investigation but he did not
mention this fact in G.D. Further, he
deposed that after one hour when he
received death memo of the injured, he
added Section 302 IPC. (i) He reached the
hospital and completed inquest proceeding
there. He admits that he started inquest at
14:30 hours and finished at 14:45 hours but
by mistake he has written A.M. He also
admits that he faulted in writing 15:45
instead of 14:45 (time of closure of inquest
proceeding). He admitted that he did not
receive the signature of the constables by
whom the dead body was sent for postmortem. He admits that being I.O. he had
not taken clothes of the deceased. He
further stated that he had visited the place
of occurrence with the informant, no one
else accompanied them.

(ii) It is material to note that if
informant is not the eye-witness, whereas,
P.W.3 and P.W. 6 have seen the occurrence,
but the I.O. prepared site plan in absence of
both or anyone of them. Meaning thereby,
till then prosecution had not decided that
Ajay Bhan P.W.3 and Achhendra Bhan
P.W.6 were to be produced as eyewitnesses. Further, he admits that where the
incident took place is in midst of military
area. There is Gol Bhatta, Military Check
Post and Military Farm, where armed
military guards always remain present.
According to P.W.7 at the time of his visit,
no guards were there so he did not record
the statement of anyone. According to him
priest of the temple was also not present.
He admits that he visited the spot only
once. He admits that he did not enquire
922 INDIAN LAW REPORTS ALLAHABAD SERIES
about the scooter because according to him
there was no abnormality in it as it was in
running condition, so he did not send the
scooter for technical examination. He
found no damage to the scooter but he was
unable to say whether there was blood on
the scooter or not.

(iii) Further P.W.7 deposed that
he found 315 bore empty cartridge on the
spot but the recovered revolver relates to 32
bore from which recovered cartridge can
not be operated ( as per FSL report the .38
revolver and the 315 cartridge was not sent
for examination to FSL and in this regard
no investigation has been done by any of
the I.O.). According to him they had not
operated the revolver recovered from
Subhash. Further, he deposed that soiled
bullet was found on the spot. He admits his
mistake that he had not sent the soil for
examination. He admits that no empty
cartridges or bullet of 9 m.m. was
recovered from the spot. But in view of Ex.
Ka- 23 FSL report bullet recovered from
the dead body EB1 and bullet EB2 found
from the place of occurrence are 9 mm
bullets.

(iv) According to P.W.7 revolver
relates to 32 bore while it is a country made
pistol of .38 bore. The witness admits that
the bullet can not be operated from the
recovered revolver. P.W.7 arrested the
accused persons next day at 7:00 A.M. and
produced them at 12 hours in Court. He
admits that accused persons had not
resisted, nor, received any injury during the
course of their arrest and they had not
escaped after the incident, (this proves that
they had no apprehension of being named
for the murder of deceased and that they
would be arrested for the crime, otherwise,
they would have in normal circumstances
left the house and absconded). No cash was
recovered from their possession. P.W.7
admits that he had not sent the revolver to
the finger print expert. He further states
surprisingly that the case diary dated
8.3.2007 and 9.3.2007 was not written by
him but might have been written by the
driver. He admits that he had not taken
clothes of the deceased in his possession.

(j) P.W.-8 - S.I. Harpal Singh is
the second I.O. of the case under Section
25 Arms Act, he received the investigation
from S.I. Mithun Dixit. According to this
witness first of all he read over the CD
recorded by the first I.O., thereafter,
recorded the statement of informant C.O.,
B.K. Singh and witnesses of recovery HCP
Keshav Dutt Sharma, constable Ratan
Singh and driver Ashok Singh. On the
pointing of HCP K.D. Sharma, visited the
place of recovery and prepared site plan
and proved it (Ex. Ka-20). He also recorded
the statement of S.S.I. Umesh Chandra
Yadav, HC Devendra Singh, constable
Shyoraj Singh and constable Bijendra
Singh. On 7.5.2007 he received sanction
order from the then D.M. (while as per
sanction order Ex. Ka-22 and statement of
P.W.9, Mukesh Kumar Meshram, the then
D.M., sanction was given on 9.4.2007) and
finding accused Subahsh guilty under
Section 25 Arms Act submitted the chargesheet and has proved it (Ex. Ka-21). In
cross-examination he admits that he had
not moved any application to receive the
case property from Malkhana. It proves that
from the Malkhana of P.S. Lalkurti Meerut,
any case property could be easily taken out
any time and could be deposited any time
in any manner. According to him the sealed
arm and ammunition was opened before the
City
Magistrate
(not
before
District
Magistrate). According to him clerk of City
Magistrate has taken the case property. He
admits that he has not disclosed in CD that
the case property was produced before the
D.M. He admits that CD paper was seen by
DM and in this case the same C.O. was the
9 All. Satendra Kumar & Anr. Vs. State of U.P.
923
informant (of the case under Section 25
Arms Act). He admits that any person is
accessible to the farm where from case
property was recovered. He could not say
which crop was sown there. He could not
remember that marks of police visit were
present on spot or not. (These shortcomings
show that this witness did investigation in
casual manner and under the undue
influence of the informant CO who
approved the charge-sheet in violation of
natural law as impliedly he was capable of
making
unwarranted
interference
and
controlling the investigation). He could not
remember the kind of truss on the case
property. He admits that City Magistrate
had seen the revolver by operating it. (City
Magistrate can not do so, it was to be sent
to the FSL only in the condition that it was
found). He admits that he went to D.M.
with the case property but he was not there
(meaning thereby it is not established that
he produced the case property before D.M.
and after satisfying himself the DM had
given prosecution sanction under Section
39 of the Arms Act).

(j)
P.W.-9
Shri
Mukesh
Meshram, District Magistrate, Meerut,
deposed that on 9.4.2007 he, after reading
the whole case diary and after opening the
truss of the case property observed the case
property and after that he had granted the
prosecution sanction. After sealing the case
property it was returned with the case diary.
He has proved the prosecution sanction as
Ex. Ka-22. He has denied the suggestions
given by the defence counsel that the
sanction was granted without looking the
case diary and the case property or it was
not again sealed before him.

(k) P.W. 10- Circle Officer (C.O.
)- Brijesh Kumar Singh, I.O. of the case
deposed that on 10.3.2007, he was posted
as C.O. Sadar Meerut. He recorded the
additional statement of informant Narendra
Bhan, Ajay Bhan and Achhendra Bhan the
eye
witnesses
(meaning
thereby
till
10.3.2007 they were not found, nor,
considered by the previous I.O. as eye
witnesses, and this I.O. finding no evidence
case has shown them as eye witnesses to
make up for the shortfall).

(i) On 12.3.2007 he recorded the
statements of Vinod and Sukhpal. He
moved application on 14.3.2007 for getting
police custody remand of the accused
persons which was allowed and on
15.3.2007, the alleged arm and ammunition
was recovered from inside the RVC Farm.
No arm could be recovered from accused
Satyendra. According to this witness the
recovered revolver was sealed on the spot.
Recovery memo was written by S.S.I.
Umesh Yadav on his dictation. He with
police personnel and accused had signed
the recovery memo (Ex, Ka 19 A).
According to him site map was prepared by
him on 16.3.2007 (Ex. Ka 20A). On
16.3.2007,
he prepared
another
map
regarding failed attempt to make recovery
from accused Satynedra (Ex. Ka 21A).

(ii) It is to be noted that the
informant is reaching on the spot of
recovery next day and the map is prepared
by the S.I., whereas, it is the duty of the
I.O.