# Satish Nagar v. State of U.P

- **Citation:** (2023) 3 ILRA 946
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-03-17
- **Case number:** Criminal Appeal No. 4587 of 2018
- **Bench:** Siddhartha Varma, Rajiv Joshi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/satish-nagar-v-state-of-u-p-49884
- **Pages:** 16

## Headnote

Criminal Law - Indian Penal Code, 1860 -
Sections 147, 148, 149, 302 & 506 - Code
of Criminal Procedure, 1973 - Sections
157 & 313 - Beyond reasonable doubt -
There were 11 bullet injuries on body of
deceased and not a single exit bullet of
five exit injuries was found in car - Two
of witnesses who claimed themselves to
be there along with deceased have not
received any kind of injury and also no
blood stain was found on them - If PW-1
had picked up the deceased and had taken
him to hospital then blood would have
been there on his clothes - There was noncompliance
of
provisions
of
Police
Regulations, it was duty of Investigating
Officer to looked into affidavits and also
other evidence - It becomes doubtful
because of testimonies of CW-1 and DW-8
- Fact that there was delayed information
to Magistrate u/s 157 Cr.P.C., discovery
u/s 27 of Evidence Act was doubtful,
ballistic report didn't St. that 10 out of 11
empty cartridges were fired from two
pistols which were discovered and also
because of fact that exit bullets and glass
panes
were
not
considered
by
investigating authorities - (Para 38, 42,
43)

Evidence Act, 1872 - Section 27 -
Recovery
Evidence
-
Draw
discovery
panchnama - When accused while in
custody
makes
St.ment
before
two
independent witnesses, exact St.ment
uttered by accused should be incorporated
in panchnama by Investigating Officer -
St.ment by accused was of his own free
will and he was willing to point out place
where weapon was hidden - Police party
along with accused and two independent
witnesses should have gone to place to
which the accused might have led the
police party to, this discovery should have
formed
memo
of
recovery
-
Hence,
evidence of Investigating Officer was not
only unreliable but it could be said that it
did not constitute any legal evidence.
(Para 34, 35)

Appeals are allowed. (E-13)

List of Cases cited:

## Text

_Characters 0–39,955 of 55,094. This is a partial read: ask again with offset=39955 for what follows._

946 INDIAN LAW REPORTS ALLAHABAD SERIES
and manner of its commission. The
supreme court further said that courts must
not only keep in view the right of victim of
crime but also society at large. While
considering
imposition
of
appropriate
punishment, the impact of crime on the
society as a whole and rule of law needs to
be balanced. The judicial trend in the
country has been towards striking a balance
between reform and punishment. The
protection of society and stamping out
criminal proclivity must be the object of
law which can be achieved by imposing
appropriate sentence on criminals and
wrongdoers. Law, as a tool to maintain
order and peace, should effectively meet
challenges confronting the society, as
society could not long endure and develop
under
serious
threats
of
crime
and
disharmony. It is therefore, necessary to
avoid undue leniency in imposition of
sentence.
Thus,
the
criminal
justice
jurisprudence adopted in the country is not
retributive but reformative and corrective.
At the same time, undue harshness should
also be avoided keeping in view the
reformative approach underlying in our
criminal justice system.

20. Keeping in view the facts and
circumstances of the case and also keeping in
view criminal jurisprudence in our country
which is reformative and corrective and not
retributive, this Court considers that no
accused person is incapable of being reformed
and therefore, all measures should be applied
to give them an opportunity of reformation in
order to bring them in the social stream.

21. As discussed above, 'reformative
theory of punishment' is to be adopted and for
that reason, it is necessary to impose
punishment keeping in view the 'doctrine of
proportionality'. It appears from perusal of
impugned judgment that sentence awarded by
learned trial court for life term is very harsh
keeping in view the entirety of facts and
circumstances of the case and gravity of
offence. Hon'ble Apex Court, as discussed
above, has held that undue harshness should
be avoided taking into account the reformative
approach underlying in criminal justice
system.

22. The accused-appellants, Vijay
Shanker & Meena Devi are reported to have
undergone 12 years of sentence and therefore,
we hold that the period undergone will be
sufficient punishment for them. As far as
accused-appellant, Chandrawati (mother-inlaw of deceased) is concerned, it has come in
the Dying Declaration itself that she along
with others has taken the deceased to the
hospital and looking to her age, the period
undergone by her would be sufficient
punishment for her. The accused-appellants be
set free forthwith, if not wanted in any other
case.

23. In view of the above, the appeal is
partly allowed. Judgment and order passed by
the learned Sessions Judge shall stand
modified to the aforesaid extent. Record be
sent back to the Trial Court forthwith.
----------
(2023) 3 ILRA 946
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 17.03.2023

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE RAJIV JOSHI, J.

Criminal Appeal No. 4587 of 2018
with
Criminal Appeal No. 4646 of 2018

Satish Nagar ...Appellant
Versus
State of U.P. ...Respondent
3 All. Satish Nagar Vs. State of U.P.
947
Counsel for the Appellant:
Sri Dileep Kumar, Sri Anshul Kumar Singhal, Sri
Ashwini Kumar Awasthi, Sri Jai Prakash Singh,
Sri Manish Tiwary, Sri Rajrshi Gupta, Sri V.P.
Srivastava(Sr. Advocate)

Counsel for the Respondent:
G.A., Sri indra Kumar Chaturvedi, Sri Kapil Tyagi,
Sri Samarth Sinha, Sri Sanjay Singh, Sri Shivam
Singh, Sri Brijesh Sahai(Sr. Advocate)

Criminal Law - Indian Penal Code, 1860 -
Sections 147, 148, 149, 302 & 506 - Code
of Criminal Procedure, 1973 - Sections
157 & 313 - Beyond reasonable doubt -
There were 11 bullet injuries on body of
deceased and not a single exit bullet of
five exit injuries was found in car - Two
of witnesses who claimed themselves to
be there along with deceased have not
received any kind of injury and also no
blood stain was found on them - If PW-1
had picked up the deceased and had taken
him to hospital then blood would have
been there on his clothes - There was noncompliance
of
provisions
of
Police
Regulations, it was duty of Investigating
Officer to looked into affidavits and also
other evidence - It becomes doubtful
because of testimonies of CW-1 and DW-8
- Fact that there was delayed information
to Magistrate u/s 157 Cr.P.C., discovery
u/s 27 of Evidence Act was doubtful,
ballistic report didn't St. that 10 out of 11
empty cartridges were fired from two
pistols which were discovered and also
because of fact that exit bullets and glass
panes
were
not
considered
by
investigating authorities - (Para 38, 42,
43)

Evidence Act, 1872 - Section 27 -
Recovery
Evidence
-
Draw
discovery
panchnama - When accused while in
custody
makes
St.ment
before
two
independent witnesses, exact St.ment
uttered by accused should be incorporated
in panchnama by Investigating Officer -
St.ment by accused was of his own free
will and he was willing to point out place
where weapon was hidden - Police party
along with accused and two independent
witnesses should have gone to place to
which the accused might have led the
police party to, this discovery should have
formed
memo
of
recovery
-
Hence,
evidence of Investigating Officer was not
only unreliable but it could be said that it
did not constitute any legal evidence.
(Para 34, 35)

Appeals are allowed. (E-13)

List of Cases cited:

1. Arjun Marik & ors. Vs St. of Bihar reported in
1994 Supp. (2) SCC 372

2. Rajeevan & anr. Vs St. of Kerala reported in
(2003) 3 SCC 355

3. Meharaj Singh (L/Nk) Vs St. of U.P. reported
in (1994) 5 SCC 188

4. Ramanand @ Nandlal Bharti Vs St. of U.P.
reported in AIR 2022 SC 5273

5. Subramanya Vs St. of Karn. reported in AIR
2022 SC 5110

6. C. Muniappan & ors. Vs St. of T. N. reported
in 2010 (9) SCC 567

7. Badam Singh Vs St. of M.P. reported in (2003)
12 SCC 792

8. Rishi Kesh Singh & ors. Vs The St. reported in
AIR 1970 Allahabad 51 (FB)

(Delivered by Hon'ble Rajiv Joshi, J.)

1. Upon a First Information Report
being lodged on 19.5.2012 at 23.05 PM,
Case Crime No.169 of 2012 was registered
under sections 147, 148, 149, 302 and 506
of Indian Penal Code. After the matter went
for trial it was numbered as Sessions Trial
No.483 of 2012. Before the case was
committed
to
trial
the
police
had
investigated the matter and had submitted
charge sheets against three accused namely
Sripal Singh son of Khachedu Singh, Jagat
Singh son of Ratan Lal and Satish Nagar
948 INDIAN LAW REPORTS ALLAHABAD SERIES
son
of
Shahmal.
Since,
during
the
investigation arms were recovered viz.-aviz. Sripal and Jagat, two further charge
sheets were submitted under section 25 of
the Arms Act and they were numbered as
Sessions Trial No.484 of 2012 and Sessions
Trial No.485 of 2012. The trials of the three
cases were undergone together with the
Sessions Trial No.483 of 2012 being the
leading case.

2. The case of the prosecution was
that Suresh, the elder brother of the first
informant Naresh had purchased 3-4 days
back certain shops from Data Ram which
were situate at Sutyana Bus Stand. Since
the accused Sripal was also wanting to
purchase the shops, the accused Sripal
along with Satish Nagar and Jagat Singh
had warned the deceased that if he
purchased those shops, then they would kill
him. On the day of occurrence in the
morning also when the first informant
Naresh along with the brother Suresh had
gone to the bus stand then Sripal, Satish
Nagar and Jagat had reached the shop and
had said that despite the fact that they had
warned him not to purchase the shops, he
had purchased the shops and, therefore,
they would teach him a lesson.

3. The prosecution case further is that
the first informant and the deceased to avoid
any kind of altercation after the warnings etc.
had returned home. However, on the same
date i.e. on 19.5.2012 at 9.30 PM when the
first informant, the deceased Suresh and the
third brother Pawan were going by their
Scorpio Car No.UP16T0004 to get their
vehicle fueled and when they had reached the
Habibpur market gate, the accused Sripal in
his Santro Car No.UP16W4011 overtook the
Scorpio car and parked it in front of it and
from the car the three accused Sripal, Jagat
and Satish Nagar came out along with two
other persons whose names the first
informant was not knowing and fired
indiscriminately on Suresh who was sitting
on the driver's seat after breaking the
windowpane. The first informant and his
brother Pawan, to save their lives, got-off the
scorpio car and ran away. Thereafter the
assailants after having killed Suresh got into
the Santro car and went towards Surajpur.
The first informant and the other brother
Pawan took the car of the owner of Pappu
Hotel and took their elder brother to Kailash
Hospital at night where Suresh was declared
dead. It was the case of the prosecution that
the first informant and his brother Pawan
recognized the accused in the light of the
street lights. The First Information Report
was got written by the informant Naresh by
one Lokendra Nagar. The First Information
Report was numbered as Paper No.Ka-1. On
the basis of the First Information Report,
Case Crime No.169 of 2012 was got
registered under sections 147, 148, 149, 302
and 506 I.P.C. The Chik FIR was numbered
as Ka-15 and a corresponding entry was
made in the General Diary as Entry No.46 at
23.05 PM. As a part of the investigation,
inquest report was got prepared which was
numbered
as
Exhibit-Ka-2
by
the
Investigating Officer B.R. Zaidi (PW-6).
Thereafter the body was sent for post-mortem
to
the
Chief
Medical
Officer.
The
Investigating Officer had also prepared a site
map (Exhibit-Ka-7). During investigation,
when it came to the knowledge of the
Investigating Officer that Sripal and Jagat had
hidden their pistols before they were arrested,
then on the pointing of the accused, the
pistols were recovered and the recovery
memo was also prepared and exhibited as
exhibit K-13. This recovery memo was got
proved by PW-6, the Investigating Officer.

4. To prove the case of the
prosecution, 12 prosecution witnesses and
3 All. Satish Nagar Vs. State of U.P.
949
one Court Witness were examined and
cross-examined. They were as follows :-

"PW-1 - Naresh son of Baliram -
PW-1

 PW-2 - Pawan son of Baliram -
PW-2

PW-3 - C.S. Yadav (retired SubInspector) PW-4 - Dr. Rakesh Kumar

PW-5 - HCP 1 Mohd. Naeem PW-6 -
B.R. Zaidi, Inspector

W-7 - HCP 26 Virendra Singh PW-8
- Vijendra Singh Tomar

PW-9 - Mahesh Kumar Tyagi, SI
PW-10- Om Prakash (Retired Inspector)

PW-11- Lokendra Nagar

PW-12- Shiv Prakash Singh

CW-1 - Pappu Kashyap"

The documents which were exhibited
and were used by the prosecution for
proving their case, were as follows :-

"मूल तहरीर शिनांशकत 19.5.2012 (प्रििट क-1)

पंचायतनामा (प्रििट क-2)

ििट लेने कब्जा खून आलूिा सीर् कवर व सािा सीर्
कवर का र्ुकडा (प्रििट क-3)

िव शवच्छेिन आख्या (प्रििट क-5)

काबटन प्रशत नकल रपर् संख्या 46, समय 23.05
शिनांशकत 19.05.2012 (प्रििट क-6)

नक्िा नजरी (प्रििट क-7)

शचट्ठी सी०एम०ओ० (प्रििट क-8)

चालान लाि (प्रििट क-9)

िोर्ो लाि (प्रििट क-10)

नमूना सील (प्रििट क-11)

ििट लेने कब्जे में कार सैन्द्रो (प्रििट क-12)

ििट बरामिगी आला कत्ल (प्रििट क-13)

ििट बरामिगी एक अिि शपस्र्ल 9 एमएम (प्रििट क14)

शचक एि०आई०आर० (प्रििट क-15)

नक्िा नजरी मु०अ०सं० 206/12 (प्रििट क-16)

शजलाशधकारी अनुमशत पि (प्रििट क-17)

आरोप पि मु०अ०सं० 206/12 (प्रििट क-18)

शजलाशधकारी अनुमशत मु०अ०सं० 208/12 (प्रििट क19)

आरोप पि मु०अ०सं० 208/12 (प्रििट क-20)

शचक एि०आई०आर० मु०अ०सं० 206/12 (प्रििट क21)

छायाप्रशत नकल रपर् संख्या 52 समय 21.50 (प्रििट
क-22)

नक्िा नजरी मु०अ०सं० 169/12 (प्रििट क-23)

नक्िा नजरी मु०अ०सं० (प्रििट क-24)

नक्िा नजरी मु०अ०सं० 169/12 (प्रििट क-25)

आरोप पि मु०अ०सं० 169/12 (प्रििट क-26) ता
26/1

नक्िा नजरी (प्रििट क-27)

शचक एि०आई०आर० मु०अ०सं० 208/2012(प्रििट
क-28)

पी०डब्लू०6 वािी द्वारा थानाध्यक्ष को शलखा पि (प्रििट
ख-1)

शवशध शवज्ञान प्रयोगिाला, उिर प्रिेि आगरा द्वारा प्रेशषत
आख्या (प्रििट क- 29) लगायत क-33"

6. The accused gave their statements
under section 313 Cr.P.C. and they refused
having committed any crime. They had also
stated that the recovery of the firearms
were wrongly done from the accused Sripal
and Jagat Singh. They had also stated that
on the basis of the faulty investigation, the
prosecution had implicated the accused.
From the side of the accused, 9 Defense
Witnesses were produced and examined.
They were as follows :-

DW-1 - Brajpal

DW-2 - Rupesh Kumar

DW-3 - Jaypal Bhagat Ji

DW-4 - Shahmal

DW-5 - Rammi

DW-6 - Anju Bhati

DW-7 - Satyaprakash

DW-8 - Vinod

DW-9 - Anuj Kashyap
950 INDIAN LAW REPORTS ALLAHABAD SERIES

7. PW-1, the first informant in his
examination-in-chief had stated that the
incident was of 19.5.2012. The name of his
elder brother who had died in the incident
was Suresh Chand. The incident had taken
place at around 9.30 PM at the crossing of
Kacchi Sadak and the Service Road. He
had stated that he along with his younger
brother Pawan and the eldest brother
Suresh had gone to get their Scorpio Car
No.UP16T0004 fueled and while they were
heading towards the Fuel Station, a Santro
Car overtook the Scorpio Car and parked
itself in front of Scorpio Car which was
numbered as UP16W4011. From that car,
Sripal, Satish Nagar, Jagat and two other
persons had come out. The names of the
two others were later on told by his brother
Pawan and he had revealed that they were
called Pappu and Satpal. He had stated in
his statement that he had known the
accused from before. He had stated that
when they got down from the car, they
had small firearms of the type of pistol.
After coming towards the driving seat,
they had tried to open the window. When
that did not open, they broke open the
windowpane with the butts of their
firearm. When Naresh and Pawan, PWs-1
and 2 objected to the actions of the
assailants, the assailants indiscriminately
fired on Suresh. Upon the initiation of the
firing, the first informant and the younger
brother, to save their lives, came out of
the car. They had made a hue and cry but
no-one had responded to it. When they
did not find the ignition key of their car,
they found a Maruti Car standing at the
Pappu Hotel and in that car they took
their brother to the Kailash Hospital.
From the hotel, it has been stated that, a
child had also accompanied them. Upon
reaching
the
hospital,
the
doctors
examined the elder brother of the first
informant and declared him dead. Upon
Suresh being declared dead, Naresh had
gone to the police station and upon his
dictation,
his
cousin
Lokendra
had
written the First Information Report and
on it Naresh had put his signature. He has
thus proved the First Information Report.
Thereafter he has stated that the police
had visited the hospital and had started
off with the investigation which included
the preparation of the inquest report. He
stated that on the inquest report, his
signature was also there. He had also
stated that from the spot, 11 empty
cartridges, along with a live cartridge,
were also recovered which were taken in
possession by the police. The PW-1 had
recognized the accused who were present
in the Santro car namely Sripal, Satish
Nagar and Jagat.

8. PW-2 Pawan has reiterated the
statements as were made by his brother
Naresh.

9. PW-3 C.S. Yadav, who had written
the Panchnama on the dictation of the
Investigating Officer B.R. Zaidi, was also
examined and he proved the Panchnama.

10. PW-4 Dr. Rakesh Kumar who had
performed the post-mortem proved the
post-mortem and gave the details of the
injuries which were found on the body of
the deceased.

11. PW-5 Head Constable Mohd.
Naeem had stated that on 19.5.2012, upon
the receiving of the First Information
Report, he had made an entry in the
General Diary at Entry No.46.

12. PW-6 B.R. Zaidi has given a
detailed statement with regard to the
investigation. He had stated that on the next
date i.e. on 20.5.2012, he had investigated
3 All. Satish Nagar Vs. State of U.P.
951
the spot and had prepared a site plan. He
had stated that from the spot he had
recovered 11 empty cartridges and one live
cartridge. He had taken them all in his
possession and had also sealed them. He
had also stated the manner in which he had
prepared the samples of the blood stains on
the seat cover etc. He had also stated that
on 20.5.2012, the accused Sripal and Jagat
Singh were arrested. On 27.5.2012, the
Santro Car No.UP16W4011 was recovered.
He has further stated that on 30.5.2012
from the District Jail Dasna, he had taken
the statements of the accused Sripal and
Jagat and on their pointing he had
recovered the firearms. The recovery had
taken place on 2.6.2012 from Sripal and on
3.6.2012 from Jagat Singh. He has stated
that after the investigation he had thereafter
submitted his charge sheet. He had also
given his statement that as to how he had
sent the firearms to the forensic laboratory.

13. PW-7 Head Constable Virendra
Singh had stated that he was posted in Police
Station where his duty was to type on the
computer. He had stated that on the basis of
Exhibit Ka-1, he had registered the case.

14. PW-8 Vijendra Singh Tomar was
the Investigating Officer of the case under
the Arms Act viz.-a-viz. Jagat Singh.

15. PW-9 Sub-Inspector Mahesh
Kumar Tyagi was the Investigating Officer
with regard to the case under the Arms Act
viz.-a-viz. Sripal.

16. PW-10 was the retired Inspector
Om Prakash and was the Investigating
Officer for the C.B.C.I.D.

17. PW-11 Lokendra Kumar who had
written the First Information Report on the
dictation of Naresh was also examined.

18. PW-12 Shiv Prakash Singh was also
a police witness.

19. From the side of the defence
Brijpal, Rupesh Kumar, Jaipal Bhagat Ji,
Shahmal, Rammi, Anju Bhati, Satya Prakash,
Anuj Kashyap and Vinod were produced and
examined as DWs-1 to 9 respectively and had
tried to prove the alibi taken by the accused
Satish Nagar.

20. DW-8 Anuj Kashyap had stated on
oath that on 19.5.2012 at around 9.30 PM he
was at the hotel and when he had closed the
hotel and was going homewards then he
found that the Scorpio car was parked near
his hotel and Suresh was profusely bleeding.
He had stated that he had sent a boy to his
father to inform him about the incident.
Thereafter they had put Suresh in their car
and had taken him to Balaji Hospital where
the doctors had advised for a better treatment.

21. Pappu Kashyap who was a
witness of the inquest report and was also
entered as a prosecution witness in the
charge sheet was discharged by the
prosecution but was examined as a Court
Witness. He has stated in his statement that
his hotel was at the T Point of Kacchi
Sadak in Habibpur Market and on the date
and time of the incident, he was not in his
hotel but his two sons Anuj and Ankur were
there at the hotel. He was informed by them
that Suresh had been injured. The children
had informed him that they had taken
Suresh to Balaji Hospital where the doctors
had refused to take him and that thereafter
Pappu had taken the deceased to the
hospital where he was declared dead. In his
cross-examination, he had categorically
stated that Naresh and Pawan, the brothers
of the deceased, were not there along with
him. He has further stated that Jagat, one of
the accused, had reached the hospital.
952 INDIAN LAW REPORTS ALLAHABAD SERIES

22. Upon evaluating all the evidence
which were brought before it, the Court of
Sessions Trial 2nd ADJ, Gautam Budh
Nagar
on
22.6.2018
convicted
the
assailants and hence the instant appeals.

23. Two appeals were filed. One
being Criminal Appeal No.4646 of 2018
which was filed by Sripal and Jagat and the
other being Criminal Appeal No.4587 of
2018 which was filed by Satish Nagar.

24. Sri V.P. Srivastava, Senior
Advocate assisted by Sri J.P. Singh and Sri
Jai Shankar Audichya, learned counsel for
the appellants in Criminal Appeal No.4646
of 2018 and Criminal Appeal No.4587 of
2018 have stated that though the instant
incident had occurred, it was very doubtful
that it was the accused who were
responsible for it. To bolster this argument,
learned Senior Counsel has made the
following submissions :-

i. Learned counsel has questioned the
presence of the eye-witnesses i.e. PW-1 and
PW-2. He has stated that if the testimony of
CW-1 Pappu Kashyap and that of his son
Anuj Kashyap is perused then it would
become abundantly clear that the two
brothers Naresh and Pawan were not there
at the spot. He has made the Court go
through the testimony of Pappu Kashyap
and has submitted that Pappu Kashyap was
the person who had been informed by his
son about the firing which was done on
Suresh. He has stated in his examination
that initially the children had taken Suresh
to Balaji Hospital and when Balaji Hospital
had refused to admit Suresh, then they had
approached him i.e. Pappu Kashyap and
Pappu Kashyap thereafter had driven the
car
to
Kailash
hospital.
He
has
categorically stated that he alone had taken
Suresh to Kailash hospital and no-one else.
He has categorically stated that Naresh and
Pawan were not there at the hospital.

ii. Learned counsel has further drawn
the attention of the Court to the statement
of Anuj Kashyap who has stated that he
was 22 years of age at the time of the
giving of the statement in the year 2018.
This meant that in the year 2012 he must
have been 16 years of age. He has stated
that at the time when the incident had
occurred, he had found Suresh covered in
blood in his Scorpio car. He has further
stated that while he himself and his brother
had taken Suresh to Balaji hospital, he had
also sent words to his father through one
Guddan son of Sabu. After the doctors at
Balaji hospital had refused to admit the
case, Anuj had driven back to his village
where his father had taken charge of the
car. He has also stated that at the time when
he had taken out Suresh from his car,
neither Naresh nor Pawan were present at
the spot. He has also submitted that when
his father Pappu Kashyap had taken Suresh
then also Naresh and Pawan were not to be
found. He has also stated that his village
from the place of occurrence was 100 to
150 meters away only.

iii. The other argument which the
learned counsel for the appellants has
advanced is that on 19.5.2012 from the
telephone number of the deceased Suresh
namely telephone no.9910104300, calls
were made to mobile no.9910669785 at
21.33 PM, 21.40 PM and 21.55 PM.
Learned counsel submits that when PW-1
says that he had taken charge of the mobile
of his brother Suresh at 9.35 PM then how
was it possible that phone calls were made
from that phone to 9910669785.

Further he submits that from the
mobile no.9910104300 there was a phone
call on the phone number of PW-1 Naresh
being mobile no.8510004300 at 21.57 and
3 All. Satish Nagar Vs. State of U.P.
953
21.56 PM on 19.5.2012. Learned counsel
for the appellant, therefore, states that how
it was possible that when the PW-1 was
saying that the deceased was killed at 21.30
PM,
phone
calls
were
being
made
thereafter at 21.33 PM, 21.40 PM, 21.55
PM, 21.57 PM and 22.56 PM from the
phone of the deceased. Learned counsel
states that the call details were brought on
record by the prosecution and nobody had
denied them.

iv. Learned counsel for the appellants
to bolster his argument that PW-1 and PW2 were not present at the spot and that the
deceased had been taken by Pappu
Kashyap, has shown to the Court the memo
of the Kailash hospital which shows that
the deceased was brought by Pappu
Kashyap to the hospital.

v. Learned counsel for the appellants
has thereafter laid much stress on the fact
that when Naresh had lodged the First
Information Report and which is exhibited
as Exhibit Ka-1, this report was preceded
by a First Information Report which was
also written in the handwriting of Lokendra
and was placed in the police station for
being lodged as a First Information Report.
This document has been exhibited as
Exhibit Kha-1. This First Information
Report was, as per learned counsel for the
appellants, taken note of by the Police
Officer stationed at the police station
namely Constable Rajesh Jindal. This fact
is corroborated from the statement of PW-7
Sri Virendra Singh who in his crossexamination clearly says that the first
informant Naresh had brought a First
Information report and which was given to
Constable Rajesh Jindal and Sri Rajesh
Jindal had marked it for being fed in the
computer and had put it in the basket. PW-7
had further stated that Sri Rajesh Jindal had
shown that document to him and that it was
signed by Naresh-PW-1. On the document
there was signature of Rajesh Jindal which
was proved by PW-7. He has stated that by
that document Naresh had informed the
police that Suresh had been killed by
unknown assailants. He further states that
the Exhibit-Ka-15, the chik report, was
placed before him after the computer was
got repaired and in his statement, he had
stated that the computer was out of order
from 19.5.2012 to 21.5.2012. This witness,
by an order of the Court dated 20.11.2017,
was again brought into the witness box for
re-examination. In his examination-in-chief
on 2.1.2018, PW-7 stated that Exhibit Kha1 was not placed before him and that
Rajesh Jindal had never given that Tahrir to
him. However, in his cross-examination
when he was confronted with his earlier
statement, he stated that the statement
which he had earlier given i.e. the
statement which he had given on 19.8.2016
was correct. He further states that when the
computer was repaired only then the
subsequent First Information Report was
brought before him. He in fact emphatically
states that Exhibit-Kha-1 was put in the
basket on 19.5.2012. He also states that on
Exhibit Kha-1 the seal of the police station
was also there.

vi. Learned counsel for the appellants
further submitted that when the inquest
report was prepared, the body was
thereafter sent for post-mortem and with
the request for the post-mortem, the list of
papers which accompanied the dead body
was also there. This list clearly showed that
Panchayatnama was of three pages; photo
nash was of one page; challan nash was of
one page; namoona nash was of one page;
the report of the Reserve Inspector was of
one page; report of the CMO was of one
page and the FIR was also of one page.
Learned counsel, therefore, submits that
when the computer was out of order from
19.5.2012 to 21.5.2012, then the request for
954 INDIAN LAW REPORTS ALLAHABAD SERIES
post-mortem which was sent on 20.5.2012
could not have had three paged chik
(Exhibit Ka-15) and, therefore, the Exhibit
Kha-1 which was the First Information
Report, which was lodged earlier in the
point of time, alone was there which was of
one page. He, therefore, submits that if
Exhibit Kha-1 is perused, it would become
clear that there was no eye-witness present
at the spot.

vii. Learned counsel for the appellant
further submits that Pappu Kashyap, who
was
a
witness
of
the
Panchayatnama/inquest report, was also a
prosecution witness mentioned in the
charge sheet which was submitted by the
police then it did not stand to reason as to
why the prosecution removed him from the
list of prosecution witnesses. He submits
that the Court upon being convinced that
the prosecution witness Pappu Kashyap
was removed mala-fidely from the list of
prosecution witness, summoned Pappu
Kashyap as CW-1. Learned counsel further
submits that the testimony of Pappu
Kashyap definitely spoke volumes about
the fact that PW-1 and PW-2 were not
present at the spot. Learned counsel for the
appellants further submitted that if the
statement of PW-1 is seen then it becomes
clear that he had stated that he was sitting
on the back seat whereas Pawan, his
brother was sitting on the front seat along
with the driver. On the contrary, Pawan
(PW-2) had stated that he was sitting at the
back seat whereas in the front seat along
with the driver, Naresh was sitting. Learned
counsel for the appellants, therefore,
submits
that
there
was
a
major
contradiction in the statements of PW-1 and
PW-2. Learned counsel submits that this
contradiction could have been ignored but
in the instant case when the witnesses are
unable to clearly state as to where they
were sitting at the time of incident then it
definitely becomes a major point for
consideration. Learned counsel for the
appellants further states that had it been just
a mistake as to on which side of the back
seat which witness was sitting then also it
could have been ignored but when the
witnesses are confused as to whether they
were sitting in the front seat or the back
seat then definitely it becomes a point
which
requires
consideration
and,
therefore, he submits that in fact the PW-1
and PW-2 were not there on the spot and
that they were coming up with a concocted
story.

viii. Learned counsel for the appellants
submits that the First Information Report as
is required to be sent after the lodging of it
to the Magistrate under section 157 Cr.P.C.
ought to have been sent forthwith to the
Magistrate empowered to take cognizance
of the offence upon the police report. He
submits that if the report was not sent under
section 157 Cr.P.C. "forthwith" then it was
a major lacuna on the part of the
prosecution. Learned counsel for the
appellants relied upon the decision of the
Supreme Court in Arjun Marik & Others
vs. State of Bihar reported in 1994 Supp.
(2) SCC 372 to support his case. In this
regard, learned counsel for the appellants
also relied upon the decision of the
Supreme Court in Rajeevan & Anr. vs.
State of Kerala reported in (2003) 3 SCC
355 and Meharaj Singh (L/Nk) vs. State of
U.P. reported in (1994) 5 SCC 188.

ix. Learned counsel for the appellants
further submitted that at the place of
occurrence 11 empty cartridges along with
one live cartridge were found. The postmortem indicates that there were as many
as 11 entry wounds and 5 exit wounds. He
submits that when 11 empty cartridges
were found then definitely 11 wounds were
there but the five bullets which caused exit
wounds were not found anywhere in the
3 All. Satish Nagar Vs. State of U.P.
955
scorpio car. He, therefore, submits that
definitely the deceased was pulled out of
the car and killed outside the car and
thereafter placed inside the scorpio car at
the driver's seat.

x. Learned counsel for the appellants
further submitted that when the assailants
had broken the windowpane and then had
fired
from
the
outside,
then
the
Investigating Officer should have collected
the glass pieces of the broken window. He,
therefore, suggested that it appears that at
the time when the body was discovered, the
windowpane was intact and mischievously
later on the glass pane was smashed and,
therefore, there was no mention of the
broken glass pieces in the report of the
Investigating Officer.

xi. Learned counsel for the appellants
further submits that when there was such an
incessant firing taken place, it was but
natural that the two other eye witness who
had claimed were sitting inside the car also
ought to have been hit by the bullets and
that at least some blood stains ought to
have been there on their clothes.

xii. Learned counsel for the appellants
submits that if the eye-witnesses had taken
the deceased out from the scorpio car and
had placed him in a Maruti car of Pappu
Kashyap then also there would have been
some blood stains on their clothes and since
no blood was found on their clothes, the
story that they had carried the deceased to
the hospital was improbable. Learned
counsel states that the PW-1 and PW-2 had
wrongly stated that they had washed their
clothes. He submits that when such a major
murder had taken place then they would not
have got the time to wash clothes..

xiii. Learned counsel for the appellants
states that on 2.6.2012 on the pointing of
Sripal in village Jalpura near Pani Ki Tanki
at the T point of Hindon Pushta, the
Investigating Officer had got recovered a
9mm pistol made in Bulgaria. He also
stated that the Investigating Officer had
also got recovered a 9mm pistol made in
USA on the pointing of Jagat Singh on
3.6.2012 from near the Hindon Pushta.
Learned counsel for the appellants submits
that these two recoveries which were
allegedly under section 27 of the Evidence
Act were absolutely bad in law as under
Section 27 of the Evidence Act, the accused
who is in the custody when intends to show
that he is the author of the concealment of
an armed weapon and he wishes to get it
discovered then all his statements ought to
have been made before two independent
witnesses and the exact statements uttered
by him ought to have been incorporated in
the
Panchnama
and
therefore,
the
Investigating Officer ought to have drawn
the recovery memo as per law. This ought
to have been done at the police station in
the presence of the independent witnesses
so as to lend credence that the particular
statement was made in fact by the accused
expressing his willingness that he was on
his own free will and volition wanting to
lead to the place where the weapon of the
offence had been hidden. Learned counsel
for the appellants submitted that once that
part of the Panchnama was completed, the
police party along with the accused and two
independent witnesses ought to have
proceeded to that particular place where the
accused might have led the police party and
if from that particular place the weapon of
the offence had been discovered then the
process would have formed the second part
of the Panchnama.

25. In the instant case, learned
counsel for the appellants states that on
both dates i.e. 2.6.2012 and 3.6.2012, the
recovery was not made as was required to
be made under section 27 of the Evidence
Act. In this regard, learned counsel for the
956 INDIAN LAW REPORTS ALLAHABAD SERIES
appellants relied upon two judgments of the
Supreme Court in Ramanand @ Nandlal
Bharti vs. State of Uttar Pradesh reported
in AIR 2022 SC 5273 and in Subramanya
vs. State of Karnataka reported in AIR
2022 SC 5110.

26.

Learned
counsel
for
the
appellants, therefore, submits that when the
recovery under section 27 of the Evidence
Act becomes erroneous, the whole case of
the prosecution, so far as the recovery of
firearm is concerned becomes erroneous.

27. Learned counsel for the appellants
further submitted that the firearms were
sent to the ballistic experts much after the
charge sheet was submitted. He further
submitted that if the report of the Forensic
Laboratory is seen then it becomes clear
that there were 11 empty cartridges sent.
One empty cartridge which was marked as
EC-1 was of 9mm; 8 empty cartridges were
of 7.62mm and two empty cartridges were
of 7.65mm. There was one live cartridge of
7.65mm. There were other bullets also
found from the body of the deceased. When
the ballistic report came from the Forensic
Laboratory, it was of the view that one
9mm empty cartridge could have been fired
from the pistol numbered as 11111 and was
marked as 1/2012. This was the pistol
which was found, as per the prosecution
case, from the pointing of Sripal. The other
cartridges could not be related to either the
pistol no.11111 marked as 1/2012 or with
the pistol no.7700 marked as 2/2012 which
was found from the pointing of Jagat
Singh. Learned counsel for the appellants,
therefore, submitted that when just one
empty cartridge matched the gun which
was found from the pointing of Sripal,
made
the
whole
case
doubtful.
He
submitted that the gun which was found
from the pointing of Sripal was the gun
which was made in Bulgaria and this fact
was mentioned in the recovery memo but
the ballistic report does not mention about
the fact as to which country the pistol was
made in. Further, learned counsel for the
appellants submitted that in the recovery
memo with regard to the pistol which was
found from the pointing of Jagat Singh, it
was found that it was a 9mm pistol
numbered as 7700 and was made in USA
but this fact as to which country the pistol
was made in was not to be found in the
ballistic
report.
He,
therefore,
again
submitted that the whole case becomes
doubtful.
Learned
counsel
for
the
appellants further submitted that when the
pistols were produced in the Court, then
PW-6, the Investigating Office Sri B.R.
Zaidi had stated that he had not sealed the
pistols and empty cartridges himself. He
had categorically stated upon seeing a
string (dori) attached to one of the pistols,
that there was no string (dori) on the pistols
which he had sent. Learned counsel for the
appellants stated that therefore the pistol
which was sent by the Investigating Officer
did not have any string (dori) but once it
was opened in the Court, the pistol had a
string (dori). Learned counsel for the
appellants, therefore, submitted that the
recovery of the pistol becomes doubtful in
view of the fact that the ballistic report did
not match the empty cartridges with the
gun which was found from the pointing out
of Jagat. He also submitted that in all
probability, the pistol which was attributed
to the pointing of Sripal was a planted
pistol. He, therefore, submitted that the
case became absolutely doubtful.

28. With regard to the Criminal
Appeal No.4587 of 2018 (Satish Nagar vs.
State of U.P.), learned counsel for the
appellant argued that Satish Nagar was not
there on the spot. The Investigating Office
3 All. Satish Nagar Vs. State of U.P.
957
(PW-6) Sri B.R. Zaidi has stated that during
the course of investigation, he was
informed
that Satish
Nagar
was
in
Rajasthan for some religious purpose. PW10 Om Prakash has stated that he had
received 31 affidavits in support of the fact
that Satish Nagar was in Rajasthan. He has
also stated that the phone of Satish Nagar
was not found within the NCR. Learned
counsel for the appellant took the Court
through various statements of various DWs
who had deposed in support of the fact that
Satish Nagar was not on the spot but was in
Rajasthan. No recovery of any firearm had
also been found from Satish Nagar.
Learned counsel, therefore, stated that
Satish Nagar was not on the spot.

29. In reply, learned AGA Sri S.N.
Mishra and Sri Brijesh Sahai, learned
Senior Advocate assisted by Sri Sanjay
Singh, learned counsel appearing for the
first
informant
argued
that
minor
contradictions/discrepancies
in
the
statements of witnesses would not affect
the prosecution case. To bolster his case,
Sri Brijesh Sahai relied upon a decision of
the Supreme Court in C. Muniappan &
Ors. vs. State of Tamil Nadu reported in
2010 (9) SCC 567 and since learned
counsel specially relied upon paragraph 85
of the judgment, the same is being
reproduced here as under :-

"85. It is settled proposition of law that
even
if
there
are
some
omissions,
contradictions and discrepancies, the entire
evidence cannot be disregarded. After
exercising care and caution and sifting
through the evidence to separate truth from
untruth, exaggeration and improvements,
the court comes to a conclusion as to
whether the residuary evidence is sufficient
to convict the accused. Thus, an undue
importance should not be attached to
omissions, contradictions and discrepancies
which do not go to the heart of the matter
and shake the basic version of the
prosecution's witness. As the mental
abilities of a human being cannot be
expected to be attuned to absorb all the
details of the incident, minor discrepancies
are bound to occur in the statements of
witnesses."

30. Learned counsel for the first
informant had stated that the manner of
assault had to be seen.