# Satya Prakash v. State Of U.P

- **Citation:** (2022) 2 ILRA 688
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2022-02-02
- **Case number:** Criminal Appeal No. 6969 of 2008
- **Bench:** Manoj Misra, Sameer Jain
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/satya-prakash-v-state-of-u-p-48145
- **Pages:** 14

## Headnote

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 374(2) - Indian
Penal Code, 1860 - Section 302-challenge
to-conviction-solitary
eye
witnessstatement of PW-1 remained insconsistent
and
unreliable-PW-4(eye-witness)
examined who stated he saw the accused
running away but this deposition is at
variance with his statement u/s 161 CrPc,
PW-4 testimony is also not reliable-no
evidence, either documentary or oral, of
any kind in respect of treatment or
admission of the deceased in an injured
condition in the hospital-no evidence to
demonstrate that the murder weapon was
recovered and connected with empty
cartridge found on the spot-PW-5 stated
that the nature of the injuries were such
that the deceased would have died
instantaneously- PW-8 (I.O.) arrived
without any delay and he saw the spot
where deceased was shot, including site
plan, is proved to be public road whereas
statement
of
the
PW-1
stated
the
deceased was shot inside the house where
they were sitting on the cot-Hence,
prosecution has failed to prove its case
beyond the pale doubt and therefore, the
appellant is entitled to the benefit of
doubt.(Para 1 to 26)

The appeal is allowed. (E-6)

## Text

_Characters 0–39,822 of 48,347. This is a partial read: ask again with offset=39822 for what follows._

688 INDIAN LAW REPORTS ALLAHABAD SERIES
necessary information and follow up
action.
----------
(2022)02ILR A688
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 02.02.2022

BEFORE

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

Criminal Appeal No. 6969 of 2008

Satya Prakash ...Appellant
Versus
State Of U.P. ...Opposite Party

Counsel for the Appellant:
Sri Ashok Kumar Singh, Sri Chandra
Narayan Mishra, Sri Imran Mabood Khan,
Sri J.S. Sengar, Sri Prashant Kumar
Srivastava,
Jag
Narayan,
Sri
Ramesh
Chandra Agrahari, Sri Rishav Paney, Sri
Kmal Krishna (Senior Counsel)

Counsel for the Opposite Party:
A.G.A.

A. Criminal Law - Code of Criminal
Procedure, 1973 - Section 374(2) - Indian
Penal Code, 1860 - Section 302-challenge
to-conviction-solitary
eye
witnessstatement of PW-1 remained insconsistent
and
unreliable-PW-4(eye-witness)
examined who stated he saw the accused
running away but this deposition is at
variance with his statement u/s 161 CrPc,
PW-4 testimony is also not reliable-no
evidence, either documentary or oral, of
any kind in respect of treatment or
admission of the deceased in an injured
condition in the hospital-no evidence to
demonstrate that the murder weapon was
recovered and connected with empty
cartridge found on the spot-PW-5 stated
that the nature of the injuries were such
that the deceased would have died
instantaneously- PW-8 (I.O.) arrived
without any delay and he saw the spot
where deceased was shot, including site
plan, is proved to be public road whereas
statement
of
the
PW-1
stated
the
deceased was shot inside the house where
they were sitting on the cot-Hence,
prosecution has failed to prove its case
beyond the pale doubt and therefore, the
appellant is entitled to the benefit of
doubt.(Para 1 to 26)

The appeal is allowed. (E-6)

(Delivered by Hon'ble Manoj Misra, J.)

1. This appeal is against the judgment
and order dated 18.09.2008 passed by the
First Additional Sessions Judge, Kannauj in
S.T. No.57 of 1998 convicting the appellant
(Satya Prakash) under Section 302 IPC and
sentencing him to imprisonment for life
with fine of Rs.5,000/- and a default
sentence of additional one month.

Introductory Facts

2. In a nutshell, the prosecution story
as narrated in the first information report
(FIR) is that, on 28.06.1998, at about 9 pm,
the informant Harish Chandra (PW-1) and
his brother Phool Chandra (the deceased)
were sitting at the door of their house when
Satya Prakash (the appellant), Kanhaiya
(who died during trial), both sons of Shiv
Balak Tripathi, Bahadur son of Jaijram
Yadav and Ramu Tripathi son of Kailash
Nath Tripathi came armed with country
made pistols and, on exhortation of
Kanhaiya, the appellant (Satya Prakash)
fired from his country made pistol at the
deceased, with a view to take his life,
which hit the deceased. On raising alarm,
Mool Chand Raidas (PW-2), Ram Kumar
Tripathi (not examined), and Shiv Sharan
Tripathi (not examined) and various other
persons came and witnessed the incident.
The accused ran away by extending threats.
The written report (Ex. Ka-1) of the
2 All. Satya Prakash Vs. State of U.P.
689
incident, alleging as above, was submitted
by PW-1 by adding that the brother of the
informant, namely, Phool Chandra (the
deceased), has been taken to the hospital
and after getting him admitted in the
hospital, the informant has come to lodge
the FIR. This written report was registered
as Case Crime No.410 of 1998 at P.S.
Kannauj, District Kannauj, vide G.D. Entry
No.30 (Ex. Ka-5), dated 28.06.1998, at
23.10 hrs, of which the Chik FIR (Ex. Ka4) was prepared and both were proved by
PW-6 (retired Head Constable Chhedi Lal
Gupta). Initially, the case was registered
under Section 307, 504, 506 IPC but, later,
vide report No.3, dated 29.06.1998, at 2.15
am, the case was converted to one
punishable under Section 302, 504, 506
IPC. The carbon copy of the G.D. Entry
No.3 in respect of alteration of the charging
section was proved by PW-6 and exhibited
as Ex. Ka-6. In the meantime, a seizure
memo (Ex. Ka-2), dated 28.06.1998, signed
by Mool Chand Tripathi (PW-3) and Atul
Kumar Tripathi (PW-4), in respect of
lifting blood stained earth and plain earth as
well as one empty 12 bore cartridge from
the spot, was prepared which was proved
by PW-3, PW-4 and the first investigating
officer (I.O.) (PW-8). On 28.06.1998 itself,
site plan (Ex. Ka-8) was also prepared by
PW-8 and, on 29.06.1998, at about 11 am,
inquest was completed at Dixit Hospital,
Kannauj of which inquest report (Ex. Ka9), witnessed by PW-1, amongst others,
was prepared. Thereafter, at about 6.20 pm,
on 29.06.1998, autopsy on the body of the
deceased was carried out at District
Hospital, Fatehgarh of which, post-mortem
report (Ex. Ka-3) was prepared and proved
by Dr. S.K. Saxena (PW-5).

3. The post-mortem report (Ex. Ka-3)
reveals: (i) that Rigor Mortis had passed
away on upper extremities though present
in lower extremities; (ii) that there was a
multiple pellets entry wound on front of the
head, forehead and face including both eyes
and upper part neck with margins inverted
lacerated and ecchymosed; and (iii) that
internal examination disclosed presence of
150 gm of pasty matter in the stomach;
trachea and larynx lacerated; frontal bone
of the skull (occipital region) and nose
fractured. The estimated time of death was
half a day before.

4. After completing the investigation,
the
second
investigating
officer
Om
Prakash Sharma (PW-7) submitted charge
sheet (Ex. Ka-7). On which, cognizance
was taken and the case was committed to
the court of session. All the accused were
charged under section 302 read with
section 34 IPC and section 506 IPC. The
accused pleaded not guilty and claimed for
trial.

5. In the trial, the prosecution
examined:- Harish Chand Tripathi (PW-1-
the informant - the brother of the deceased)
as an eye witness; Mool Chand Raidas
(PW-2), as an eye witness but he was
declared hostile; Mool Chand Tripathi
(PW-3 - the other brother of the deceased)
as witness of the seizure memo (Ex. Ka-2);
Atul Kumar (PW-4 - the son of the
deceased), another witness of the seizure
memo (Ex. Ka-2); Dr. S.K. Saxena (PW-5),
who
conducted
the
post-mortem
examination
of
the
deceased;
Head
Constable Chhedi Lal Gupta (PW-6), who
made GD entry of the written report of the
incident as well as alteration in the
charging section; Om Prakash Sharma
(PW-7), the second investigating officer,
who completed the investigation and
submitted charge sheet; and Ganesh Bajpai
(PW-8), the first investigating officer
(I.O.), who proved various steps of
690 INDIAN LAW REPORTS ALLAHABAD SERIES
investigation including collection of blood
stained earth, plain earth and empty 12 bore
cartridge from the spot; preparation of site
plan; inquest proceedings; preparation of
photo nash, chalan nash, etc; and the steps
to arrest the accused.

6. The incriminating circumstances
appearing in the prosecution evidence were
put to the accused persons including the
appellant for recording their statement
under Section 313 CrPC. The accused
claimed that they are innocent; the
prosecution story is false; and that they
have been implicated on account of
previous enmity.

7. The trial court by placing reliance
on the ocular evidence of PW-1 and upon
finding that no specific role was attributed
to other accused except the present
appellant, convicted and punished the
appellant and acquitted the remaining
accused.

8. We have heard Sri Kamal Krishna,
learned Senior Counsel, assisted by Sri
Chandra Narayan Mishra, for the appellant;
Sri Rajendra Prasad Mishra and Ms. Arti
Agrawal, learned AGA, for the State; and
have perused the record.

Submissions on behalf of the
Appellant

9. The learned counsel for the
appellant has submitted as follows:-

(a) That no serious motive for the
crime has been proved as against the
appellant to kill the deceased because the
motive, if any, to commit crime was as
against PW-1 (the informant), inasmuch as
informant's wife's niece, who was married
to the appellant, had left the appellant and,
therefore, the appellant bore a grudge
against the informant as, despite requests,
he failed to ensure restitution of appellant's
conjugal rights.

(b) That the presence of the
informant i.e. sole eye witness of the
incident (PW-1) at the spot appears
doubtful because if he had been present, the
motive being against him, he would not
have been spared; that PW-3 is not an eye
witness; and that though, PW-4, in his
deposition in Court, stated that he saw 4
persons including the appellant running
away from the spot but, that was an
improvement on what he stated under
section 161 CrPC. Thus, no one witnessed
the incident.

(c) That the testimony of PW-1
does not inspire confidence for the
following reasons:

(i) In his examination-in-chief he
states that he and the deceased were sitting
on a Takhat (wooden cot) placed in the
verandah of their house when the accused
arrived with pistol and, on exhortation of
Kanhaiya, the appellant fired at the
deceased, which hit the deceased on the
face and he fell on the spot whereas, the
body of Phool Chandra was not found
inside the house but on the road. This
suggests that the deceased had not
witnessed the incident. However, later, to
make his testimony in sync with the spot
position, during cross examination, by way
of improvement, he stated that when the
accused arrived and were abusing, the
deceased went out and thereafter, shot was
fired. This improvement was during the
course of trial and that too, after
examination-in-chief, whereas, such stand
was not there even in the statement
recorded under section 161 CrPC.
2 All. Satya Prakash Vs. State of U.P.
691

(ii) PW-1 stated that after the
deceased was hit by gunshot, the deceased
was rushed, in an injured condition, to
Vinod Hospital in a cart. There, the doctor,
seeing deceased's condition, advised to take
him to Kanpur, upon which, while PW-3,
the other brother of PW-1, was making
arrangements to take the deceased to
Kanpur, PW-1 came to the police station to
lodge the FIR. This story narrated by PW-1
is at variance with the statement of PW-4,
the son of the deceased, who stated that
when he heard the gunshot he came out to
the spot, saw a gathering of people at the
spot and his father lying on the road; the
police arrived within half an hour, and took
away his father. PW-4 also stated that he
had gone to the police station with the body
of his father and from there, they had taken
the deceased to Vinod Dixit Hospital where
Dr. Vinod told that his father is no more
alive; thereafter, they all waited with the
body at the police station and in the
morning, the inquest report was prepared
and the body was sent for postmortem. If
PW-4 testimony, which finds corroboration
in the testimony of PW-8, is to be accepted,
the deceased had died at the spot therefore,
rushing the deceased to the hospital and,
thereafter, returning back to the police
station to lodge the FIR appears to be a
ploy to buy time to explain the delay in
lodging the FIR as this delay was utilised to
contrive the prosecution story.

(iii)
PW-1's
testimony
is
unreliable also for the reason that in his
statement made during cross examination
on 15.02.2005, he stated as follows:-

"eSus fjiksVZ esa ;g ckr ugh fy[kk;h Fkh
fd Qwypan r[kr ls mrjdj lM+d ij x;sA eSUks
njksxk th dks Hkh ;g ckr ugh crk;hA u eSus 4-6-01
dks eSus U;k;ky; esa Hkh ;g ckr ugh crk;hA tSlk
dksVZ lkgc us le>k oSlk fy[kok;kA eSUks U;k;ky; esa
fnukad 4-6-01 ds c;ku esa ;g ckr ugh dgh fd ^^eSa
o esjs HkkbZ Qwypan edku ds ckgj r[kr ij cSBs Fks
rHkh pkj vfHk;qDr --------------------- bruk dgrs gh
lR;izdk'k us Qwypan ij reaps ls Qk;j dj fn;kA
tks esjs HkkbZ ds psgjs ij yxk o esjs HkkbZ rqjar
yM+[kM+kdj fxj x;sA^^ lgh ckr ;gh gS fd esjs HkkbZ
xksyh yxus ij lM+d ij fxjs FksA lR; izdk'k ds
vykok fdlh us u dksbZ Qk;j fd;k u dksbZ ckr
dghA Qwypan ls lR;izdk'k ds dksbZ jaft'k ugh FkhA
tks Hkh jaft'k Fkh og lR;izdk'k dh eq>ls FkhA
lR;izdk'k ds firk us esjs firk dks ykfB;ksa ls ekjk
FkkA ;gh iqjkuh jaft'k FkhA blh jaft'k dh otg ls
eueqVko FksA^^

The above extracted statement of
PW-1 reflects that PW-1 narrated what he
was tutored to narrate and not what he
actually witnessed.

(d) That not only the FIR but all
police papers prior to inquest appear to
have been prepared at one go therefore, the
FIR appears ante-timed. This is so, because
the FIR, as per record, was registered at
23.10 pm on 28.06.1998 under Sections
307, 504, 506 IPC but the fard recovery of
blood-stained earth, plain earth and the
empty cartridge, which is stated to have
been prepared on 28.06.1998, at about 9.30
pm, not only bears the details of the case
i.e. Case Crime No.410 of 1998, but, also
Sections
302/307/504/506
IPC, which
means that the GD entry made on
29.06.1998 at 2.15 am converting the case
into one punishable under Section 302 IPC
from Section 307 IPC is a sham document.
This suggests that the deceased was killed
by an unknown assailant, he died at the
spot and, later, the entire prosecution story
that the deceased was rushed to the hospital
and, on return from the hospital, the FIR
was lodged has been contrived on guesswork and past enmity.

(e) The learned counsel for the
appellant further submitted that, according
692 INDIAN LAW REPORTS ALLAHABAD SERIES
to the doctor (PW-5), the deceased ate his
meal about 3 to 4 hours before; therefore,
testimony of PW-1 that he and the deceased
have had dinner 15 minutes before is
falsified. Further, PW-1 is an interested
witness as, admittedly, his wife's niece,
married to the appellant, had left the
appellant and therefore, he had a motive to
implicate the appellant. Thus, looking to
the circumstances narrated above, in
absence
of
corroboration
from
an
independent witness, his testimony is not of
that unimpeachable category as to form
basis of conviction. Further, there is no
recovery of the murder weapon to connect
the appellant to the crime. Hence, it is a fit
case where the appellant be extended
benefit of doubt and acquitted. More so,
when he has already suffered incarceration
of over 15 years.

Submissions on behalf of the
State

10. Per contra, learned AGA
submitted that it is well settled that the first
information
report
need
not
be
an
encyclopaedia therefore, even if PW-1 (the
informant) had not stated in the FIR that the
deceased went out and was shot when he was
on the road, the substratum of the prosecution
story that the deceased was shot by the
appellant remaining intact, and the medical
evidence indicated that the appellant died on
account ante-mortem gunshot injury, the
prosecution story is not liable to be
disbelieved merely because all the details of
the manner in which the incident occurred
were neither disclosed in the FIR nor in the
statement recorded under section 161 CrPC.
He further submits that the site plan prepared
by the I.O. refers to the spot as the place
where the injured was found lying, which
means that the deceased was not dead at the
spot. Thus, the story that he was rushed to the
hospital and on return therefrom, the FIR was
lodged appears natural and not contrived.
Otherwise also, when a person is injured,
even if he may be dead, there is always an
attempt to rush him to the hospital to save
him, even if there is no possibility of him
surviving the injury. Hence, the statement of
PW-1 that the deceased was rushed to the
hospital does not at all dents the reliability of
PW-1's testimony. Learned AGA further
submits that assuming that in the seizure
memo prepared on 28.06.1998, case crime
number and section 302 IPC is mentioned at
the top that, by itself, is not sufficient to
discard the first information report as antetimed or bogus because it could be possible
that the seizure memo may have been
completed afterwards. He further submits that
assuming that there may be some lapses in
the investigation and due care was not taken
while filling the papers that, by itself, is not a
ground to discard the ocular testimony of
PW-1 whose presence in the house has not
been questioned and no suggestion has been
put to PW-1 that he was not present in the
house at the time of the incident. He further
submits that the testimony of PW-1 is reliable
and the conviction recorded by the trial court
is justified, more so, because the testimony of
PW-1 finds corroboration from the medical
report. Hence, he prayed that the appeal be
dismissed.

11.

Having
noticed
the
rival
submissions, before we proceed to analyse
the weight of the respective submissions, it
would be appropriate to notice the
testimony of the prosecution witnesses in
brief.

Testimony
of
Prosecution
Witnesses

12. PW-1 (Harish Chandra). In his
examination-in-chief, on 04.06.2001, stated
2 All. Satya Prakash Vs. State of U.P.
693
that the accused Satya Prakash and
Kanhaiya are real brothers. The accused
Ramu is cousin of Satya Prakash whereas
accused
Bahadur
is
Satya
Prakash's
neighbour. Satya Prakash is married to PW1's wife's niece. As Satya Prakash used to
ill treat his wife, she left her matrimonial
home and went to her Maika (parents
house); to have her back, Satya Prakash
used to pressurise PW-1. For that reason,
Satya Prakash had a grudge against PW-1
and his family.

In respect of the incident, in his
examination-in-chief, PW-1 stated that on
28.06.1998, at about 9 pm, he and the
deceased were sitting in their verandah on a
Takhat (wooden cot) when all the four
accused came with country made pistols
and, on exhortation of Kanhaiya, Satya
Prakash fired at the deceased, which hit
him on the face, as a consequence whereof,
the deceased fell on the spot. Upon which,
PW-1 raised alarm, where after Mool
Chand Raidas (PW-2), Shiv Sharan (not
examined) and Ram Kumar Tripathi (not
examined) arrived and the accused escaped
by extending threats. Thereafter, PW-1
made arrangement for a cart to carry the
deceased to Vinod Dixit Hospital where he
was admitted for treatment. There, the
doctor told that his condition is serious
therefore he be taken to Kanpur. While
PW-1's brother Mool Chandra Tripathi
(PW-3) was making arrangement to take
the deceased to Kanpur, PW-1 went to
lodge the FIR. PW-1 also stated that PW-3
took the deceased to Kanpur but on way,
near
Chaubeypur,
the
deceased
died
therefore, he returned with the body to the
hospital.
On
receipt
of
information
regarding death of the deceased, oral
information thereof was given to the police.
Next day, inquest was conducted. He stated
that in the night of the incident itself, the
I.O. had come to the spot; recorded his
statement;
inspected
the
spot;
and
recovered blood stained earth and empty
cartridge. He stated that at the time of the
incident, there was light from electricity
bulb.

In his cross examination, held on
14.02.2005, he disclosed the dimensions of
the verandah where PW-1 and the deceased
were sitting on a Takhat at the time of the
incident. He also disclosed that the main
door of his house opens towards east on
that very verandah; whereas, just after the
verandah there is road.

In his cross-examination, held
on 15.02.2005, he disclosed that the
marriage of Satya Prakash (the appellant)
with PW-1's wife's niece was held in the
year 1996 and that Satya Prakash's wife
remained in her matrimonial home for
about two years. Describing the spot, he
stated that outside the door there was bulb,
which had been shown to the investigating
officer and that in the street also, there was
an electricity pole having a bulb; and he
had informed the investigating officer
about the source of light, though, it was not
written in the report or in his statement. He
also stated that at the time of the incident,
the deceased was sitting on right side of
PW-1 and that no other person was present
at that time. On suggestion that he was
sleeping inside the house, he stated that
though, they used to sleep inside the house
but, as they had meal (dinner) 10-15
minutes before, they (i.e. PW-1 and the
deceased) were sitting on the wooden cot in
the
verandah.
On
further
crossexamination, in respect of the manner in
which the incident occurred, he stated that
Satya Prakash and the other accused came
hurling abuses and when he first saw the
accused, they were at a distance of 4-5
694 INDIAN LAW REPORTS ALLAHABAD SERIES
meters from the verandah. Leading them
was Satya Prakash. PW-1 stood there at the
verandah whereas the deceased stood up
from the wooden cot and came out on the
road; there, the deceased was shot at from a
distance of about 3 meters. Before the shot
was fired, hot words were exchanged for 12 minutes. As soon as the gunshot hit the
deceased, PW-1 raised alarm. On raising
alarm, several neighbours arrived. The first
three to arrive were Ram Kumar Tripathi,
Shiv Sharan and Mool Chand Raidas (PW2). When they arrived, the deceased was
lying injured; they all lifted the deceased
and took him on a cart to the hospital. Atul
(PW-4) also arrived at the hospital. They
reached the hospital at about quarter to 10
pm. At the hospital, doctor gave some
treatment and told that the condition of the
deceased is serious and he should be taken
to Kanpur. At this stage, PW-1 stated as
follows:-

"eSus fjiksVZ esa ;g ckr ugh fy[kk;h
Fkh fd Qwypan r[kr ls mrjdj lM+d ij x;sA
eSUks njksxk th dks Hkh ;g ckr ugh crk;hA u eSus
4-6-01 dks eSus U;k;ky; esa Hkh ;g ckr ugh
crk;hA tSlk dksVZ lkgc us le>k oSlk
fy[kok;kA eSUks U;k;ky; esa fnukad 4-6-01 ds
c;ku esa ;g ckr ugh dgh fd ^^eSa o esjs HkkbZ
Qwypan edku ds ckgj r[kr ij cSBs Fks rHkh pkj
vfHk;qDr --------------------- bruk dgrs gh lR;izdk'k
us Qwypan ij reaps ls Qk;j dj fn;kA tks esjs
HkkbZ ds psgjs ij yxk o esjs HkkbZ rqjar yM+[kM+kdj
fxj x;sA^^ lgh ckr ;gh gS fd esjs HkkbZ xksyh
yxus ij lM+d ij fxjs FksA lR; izdk'k ds
vykok fdlh us u dksbZ Qk;j fd;k u dksbZ ckr
dghA Qwypan ls lR;izdk'k ds dksbZ jaft'k ugh
FkhA tks Hkh jaft'k Fkh og lR;izdk'k dh eq>ls
FkhA lR;izdk'k ds firk us esjs firk dks ykfB;ksa
ls ekjk FkkA ;gh iqjkuh jaft'k FkhA blh jaft'k
dh otg ls eueqVko FksA^^

In addition to above, PW-1 stated
that 45-46 years before also, some incident
had taken place as a result of which there
was enmity between the families of the
deceased and Satya Prakash.

In respect of light, PW-1 stated
that it was a dark night and the Moon had
come out late.

On further cross examination, he
stated that he had not gone to Kanpur with
the deceased; that the police informed him
between 1.30 am to 1.45 am that his brother
(Phool Chandra) i.e. the deceased is not alive.
On receiving this information, he again went
to the hospital at about 2 am where the police
and the body of his brother was there.
Thereafter, he returned back home and
delivered information to the family. Next
day, the body was taken for postmortem. On
further cross examination, he stated that he
gave information to the police about half an
hour after his brother (the deceased) was
taken to Kanpur. PW-1 also stated that his
other brother Mool Chandra (PW-3) and two
police personnel had accompanied his brother
(the deceased) to Kanpur.

In respect of time of arrival of the
I.O. at the spot, PW-1 stated that before his
brother (the deceased) was taken to the
hospital, though, the I.O. had not arrived but
two constables had come. PW-1 denied the
suggestion that he lodged the FIR after the
death of his brother on the suggestion of the
police personnel. He, however, he admitted
that the written report was prepared at the
hospital. He also denied the suggestion that it
was a dark night and some unknown person
had killed his brother and that no one
witnessed the incident and that with the help
of police on the basis of past enmity, false
implication was made.

13. PW-2 (Mool Chand Raidas). He
stated that he did not witness the incident.
2 All. Satya Prakash Vs. State of U.P.
695
Consequently, the prosecution declared him
hostile. During his cross-examination by
the public prosecutor, he stated that in the
night of the incident he was at his in-laws
place at Bilgram, District Hardoi and that
he
returned
after
five
days.
When
confronted with his previous statement
recorded under Section 161 CrPC, he
denied having given any such statement. In
his cross examination by the defence, he
stated that when he returned from his inlaws place, he came to know that some
unknown miscreants had killed Phool
Chandra (the deceased).

14. PW-3 (Mool Chandra). He is
brother of the deceased. He stated that at
the time when the incident took place he
had gone to Bazaar. When he returned
back, he came to know that his brother
Phool Chandra (the deceased) has been
shot by Satya Prakash and that Phool
Chandra's family members have taken him
to the hospital. He stated that the police had
arrived at the spot and had collected plain
earth and blood stained earth in two
separate boxes and had also lifted one
empty cartridge. PW-3 stated that the
inquest was conducted at the hospital and
he was a signatory to the inquest report. He
reiterated what PW-1 had stated in respect
of the motive for the crime.

In his cross examination, PW-3
reiterated that when he arrived, just after
the incident, Phool Chandra (the deceased)
had already been taken to the hospital. He
stated that at 9.30 p.m. the police had
arrived on a Jeep. He could not tell whether
I.O. was there or not, but constables were
there; and a seizure memo was prepared.
The police had stayed there for half an hour
and had visited the house of Satya Prakash
(the appellant) and had enquired from the
neighbours there. He stated that his brother
(the deceased) was in the hospital; and that
he had taken him to Kanpur with 3-4 other
persons including police men. He admitted
his signature on Ex. Ka-2 and also admitted
that in Ex. Ka-2, case crime No.410 of
1998 was written. He, however, denied the
suggestion that the first information report
was lodged after the death of Phool
Chandra.

15. PW-4 (Atul Kumar). He is the
son of the deceased. He stated that at the
time of the incident, at about 9 pm, he was
having dinner. His uncle (PW-1) and his
father (the deceased) were having talks. A
bulb was lit there. On hearing noise and
gunshot, he went out and saw four persons,
namely, Satya Prakash, Kanhaiya, Bahadur
and Ramu, running away. His father was
lying on the road and his uncle (PW-1) and
others told him that those were the four
persons who have killed PW-4's father. He
stated that his uncle (PW-1) had written the
report. He stated that the police had arrived
at the spot and had lifted the empty
cartridge, blood stained earth and plain
earth from the spot. He stated that he had
signed the seizure memo (Ex. Ka-2). He
reiterated the same motive as narrated by
PW-1.

In his cross examination, he
stated that at the time of the incident, he
was eating food inside the house. He heard
a gunshot and on noise coming from
outside, he went out immediately and saw
that crowd had gathered and his father (the
deceased) was lying on the road, at a
distance of 10 paces from the verandah.
Police came within half an hour and lifted
his father and before lifting his father, they
lifted blood stained earth and plain earth
from the spot as also the empty cartridge
and got his signature on the memorandum.
On being confronted with his previous
696 INDIAN LAW REPORTS ALLAHABAD SERIES
statement recorded under Section 161
CrPC, PW-4 admitted that earlier he had
not made a statement that he saw Satya
Prakash, Kanhaiya, Bahadur and Ramu
running away.

On further cross examination,
he stated that he had gone with his father to
the police station and from there, he went
to Vinod Dixit Hospital. Where, Vinod
Dixit told him that his father had died.
Upon getting that information, he took back
the body to the police station. He remained
with the body at the police station through
the night and in the morning, inquest report
was prepared and the body was sent for
post-mortem. PW-4 stated that they had
taken the body to the police station at 10
pm. He denied the suggestion that on
suggestion of the police he made the
statement that he saw the accused running
away. He also denied the suggestion that
seizure memo was prepared on the next day
at the police station.

16. PW-5 (Dr. S.K. Saxena). He
proved the post-mortem report, which has
already been noticed above, and stated that
the injury sustained by the deceased could
have been caused at 9 pm on 28.06.1998
and as there was no blackening, charring or
tattooing, the shot must have been fired
from a distance of 6 feet or more. He also
stated that he found 12 pellets embedded in
the brain and the shot could have resulted
in instantaneous death. He added that the
nature of injuries were such that the victim
could not have survived for long without
medical support. He also stated that the
deceased may have had his meals 2 to 3
hours before.

17. PW-6 (retired Head Constable
Chhedi Lal Gupta). He prepared the GD
entry of the first information report. He
also proved that at 2 am on 29.06.1998,
upon receipt of information with regard to
the death of Phool Chandra, the case was
converted to that of murder.

In his cross examination, he
stated that initial investigation of the case
was handed over to S.I., M.D. Verma, who
was present at the Thana when the report
was lodged. He denied the suggestion that
the deceased was killed by miscreants and
information in respect of his death having
been received earlier, the GD was kept
vacant to enter the case later.

18. PW-7 (Om Prakash Sharma,
retired
Deputy
Superintendent
of
Police). He was the second Investigating
Officer
who,
after
completing
the
investigation, submitted charge sheet which
was proved by him as Ex. Ka-7.

In his cross examination, he
stated that he had not visited the spot.

19 . PW-8 (Ganesh Bajpai, SubInspector, Police Lines, Lucknow). He
stated that he was the Station House
Incharge of Police Station Kannauj on the
date and time of the incident. Initially, the
investigation was handed over to M.D.
Verma but as the injured died in the night,
he took over the investigation. He proved
various stages of investigation such as
collection of blood-stained, plain earth and
empty cartridge from the spot vide Ex. Ka2; preparation of site plan vide Ex. Ka 8;
and preparation of inquest report (Ex. Ka
9), photo nash (Ex Ka-10), challan nash
(Ex. Ka10) under his direction by S.I. M.D.
Verma as well as arrest /surrender of the
accused persons.

In his cross examination, he
stated that he received information about
2 All. Satya Prakash Vs. State of U.P.
697
the incident on RT set while he was on
round in the area. Though he could not
remember the time of receipt of such
information but stated that immediately,
thereafter, he had arrived at the spot and
when he reached the spot, he saw the body
there. Immediately, he inspected the spot.
Existence of bulb in the verandah was not
shown to him. He did not record the
statement of Atul, which was recorded by
O.P. Sharma. He denied the suggestion that
FIR was written after inquest.

Analysis

20. On a conspectus of the entire
prosecution evidence, the features that
stand out are as follows:-

(i) PW-1 is the only eye witness
of the incident because, though, PW-4
claims that he saw the accused running
away but, the fact that he saw the accused
running away was not disclosed by him in
his statement recorded under section 161
CrPC with which he was confronted during
his deposition. PW-2, the other eye witness
turned hostile and stated that he was
elsewhere and not at the spot. In so far as
PW-3 is concerned, he arrived at the spot,
after the body was lifted.

(ii) PW-1 states that the deceased
was rushed to the hospital for treatment;
there he was advised to be taken to Kanpur
but, on way to Kanpur, he died. In between,
PW-1 lodged the report. Whereas, PW-4,
the son of the deceased, states that within
half an hour of the incident, the police had
arrived, they lifted the body of his father.
He also accompanied the body to the police
station and from there the body was taken
to Vinod Dixit Hospital. There Vinod Dixit
declared him dead and, thereafter, the body
was taken back to the police station where
it was kept overnight and in the morning,
inquest was conducted; whereafter, the
body was sent for postmortem.

(iii) PW-1, neither in the written
report (FIR), nor in the statement recorded
under section 161 CrPC, stated that the
deceased, during the course of the incident,
went out of the house and was shot at on
the road, whereas, the site plan, as well as
the evidence, suggests that the deceased
was shot at on the road just outside his
house. Notably, even in his statement-inchief, during his deposition in court, it was
not disclosed by PW-1 that the deceased
had gone out and was shot at on the road.
Rather, he stated that PW-1 and the
deceased were sitting on the wooden cot
(Takhat) when the accused arrived and, on
exhortation of co-accused Kanhaiya, Satya
Prakash (the appellant) fired at the
deceased which hit the deceased on his face
and he fell on the spot. Importantly, in his
statement-in-chief, PW-1 did not disclose
that the deceased went out on the road and,
there,
was
shot
by
the
accused.
Interestingly, to explain this major lacuna,
in the cross examination, he made an
improvement by stating that the shot was
fired after a brief altercation, which lasted 1
to 2 minutes; and, when the accused party
arrived and hurled abuses, the deceased
stood up from the wooden cot and went out
on the road, where he was shot at. To
further explain his improved stand during
cross-examination, he stated that what he
stated earlier on 04.06.2001 was as was
told to him by "Court Sahab". We inquired
from the learned counsel for the parties as
to what Court Sahab means, to which they
responded by saying that it is a colloquial
term for public prosecutor. Be that as it
may, the improvement in the eye witness
account noticed above, was for the first
time
during
the
course
of
PW-1's
698 INDIAN LAW REPORTS ALLAHABAD SERIES
deposition in court and that too, at the time
of cross examination.

(iv) The FIR is stated to have
been lodged at 23.10 hrs on 28.06.1998
while the deceased was in an injured state
though not dead; and the conversion of the
case into one punishable under Section 302
IPC is post midnight i.e. on 29.06.1998,
whereas, the seizure memo (Ex. Ka 2) and
the site plan (Ex. Ka 8), both dated
28.06.1998,
prepared
immediately
on
arrival of the police at the spot at 9.30 p.m.,
reflects not only the case crime number but
also section 302 IPC. This indicates that the
seizure memo as well as the site plan was
not prepared at the spot as is also the
finding of the trial court. But, what is
interesting is that PW-4, the witness to Ex
Ka-2, states that it was prepared before the
body was lifted by the police, whereas,
according to the PW-3, this was prepared at
about 9.30, when the deceased, in an
injured condition, had already been taken to
the hospital. What assumes importance is
that, in any case, Ex. Ka-2 and Ex Ka-8
though, on record, were prepared before
lodging the FIR yet, they reflect the entry
of the case crime number of the case as also
the charging Section 302 IPC suggesting
that these papers were prepared when the
deceased was dead. It also suggests that the
investigating
agency
had
not
been
meticulous and it had been preparing the
records at its convenience.

(v)
PW-8,
the
investigating
officer, states that he had received
information of the incident through RT set;
and that he arrived at the spot without any
delay and saw the body at the spot. This
suggests that the deceased was dead on the
spot.

(vi) PW-5, the doctor, who
conducted post-mortem, on suggestion,
admitted that the nature of the injuries were
such that the deceased would have died
instantaneously
and
could
not
have
survived for long without medical support.

(vii)
No
evidence,
either
documentary or oral, of any kind in respect
of treatment or admission of the deceased
in an injured condition in the Hospital has
been brought on record to demonstrate that
the deceased in an injured condition was
taken to the hospital for treatment or
medical attention.

(viii) That there does not appear
any evidence to demonstrate that the
murder
weapon
was
recovered
and
connected with the empty cartridge found
on the spot.

21. Having noticed the aforesaid key
features in the prosecution evidence, the
issue that arises for our consideration is
whether
the
testimony
of
solitary
eyewitness (PW-1) is confidence inspiring
and whether it could form the basis of
conviction. To test the credibility of a
witness, first, it has to be seen whether the
presence of the witness from where he
witnessed the incident at the spot is natural
or is duly proved. In the instant case, the
spot where the deceased was shot, by
cogent evidence including the site plan, is
proved to be a public road, in front of the
house of the deceased. The time of the
incident is also proved to be at 9.00 pm
from the testimony of the witnesses to
which there is no challenge. Further, there
is no challenge to the presence of PW-1 in
the house where he, his family and the
deceased used to reside. In fact, there is no
suggestion to PW-1 that he resided
elsewhere or that he was at some other
place when the incident occurred. The
defence did, however, make suggestion to
2 All. Satya Prakash Vs. State of U.P.
699
PW-1 that no one witnessed the incident,
which occurred in the darkness of night;
and that some unknown person did the act;
whereas,
the
accused
were
falsely
implicated on the basis of past enmity. So
far as enmity is concerned, that is admitted
with PW-1, inasmuch as, PW-1's wife's
niece had deserted the appellant; as a result
whereof,
the
appellant
had
been
pressurising PW-1 to send her back. This
might be a reason for being inimical
towards the deceased as well but not to the
extent the enmity was with PW-1. Be that
as it may, what needs to be ascertained is
whether PW-1 was with the deceased at the
time of the incident or was inside the
house, like other members, and only when
gun shot was heard, he, with others, rushed
out to witness the deceased lying injured or
dead, as the case may be.

22. To test whether a witness is
trustworthy and reliable; and whether he is
speaking the truth, there are no cut-and-dry
formulae. Ordinarily, reliability of a
witness is to be tested after going through
his entire testimony and weighing it in
conjunction with other material/ evidence
on record so as to find out whether it has a
ring of truth about it or is contrived. While
testing the reliability and credibility of a
witness, minor contradictions or omissions
in his deposition which have no material
bearing
on
the
substratum
of
the
prosecution case are to be overlooked, if,
otherwise, the testimony is intrinsically
natural, reliable and trustworthy. But where
the witness appears to be lying on material
particulars and making improvements to fill
up lacunae, credibility of that witness gets
hit. Another important test, though not
conclusive, is whether the witness at the
first opportunity to make a disclosure of
what he knows, has made that disclosure.
Because, where, even on opportunity, the
disclosure is withheld, or delayed, a doubt
arises as to whether the story is contrived,
based on guess-work or ill motives,
particularly, where several persons are
implicated
with
either
no
role
or
ornamental role.

23.