# Subodh Awasthy v. State of U.P

- **Citation:** (2020) 1 ILRA 194
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-11-16
- **Case number:** Criminal Appeal No. 6270 of 2009
- **Bench:** Pritinker Diwaker, Rajeev Mishra
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/subodh-awasthy-v-state-of-u-p-45093
- **Pages:** 27

## Headnote

Criminal Law - Indian Penal Code - Sections
307 & 302 - Arms Act, 1959- Sections
25/27 Arms Act - Appeal against conviction.

Testimony of a family member cannot be
discarded merely on ground that he is a family
member of deceased. However, in such a
situation testimony of such witness has to be
examined with care and caution. Object of the
Court is to find out that when testimony of
such witness is considered as a whole, it has a
circle of truth or not. (para 80)

The various deficiencies in statement of P.W.-1
and P.W.-2 and on that basis he has tried to
dislodge the two prosecution witnesses of fact.
Whether a witness can be discarded on the
basis of evidence of another witness has
already been considered. (para 81)

The testimony of witnesses of fact must prove
basic prosecution case and little disparity or
contradiction in their testimony are liable to be
discarded as being natural. Therefore, what
has to be assessed in present case is whether
P.W.-1 and P.W.-2 have been consistent in
their testimony and whether their testimony
proves basic prosecution case. (para 83)
The scrutinize the oral testimony of P.W.-1 and
P.W.-2
and
find
that
contradictions,
inconsistencies
and
omissions
in
oral
testimonies of prosecution witnesses of fact as
alleged are present. In view of aforesaid, this
Court has no other option but to discard
prosecution witnesses of fact i.e. P.W.-1 and
P.W.-2 as incredible. Consequently, their
testimonies are not worthy of trust. In view of
above the present criminal appeal is liable to
succeed. (para 93)

Appeal is allowed. (E-2)

List of cases cited: -

## Text

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194 INDIAN LAW REPORTS ALLAHABAD SERIES
(2020)1ILR A194

APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 16.11.2019

BEFORE
THE HON'BLE PRITINKER DIWAKER, J.
THE HON'BLE RAJEEV MISHRA, J.

Criminal Appeal No. 6270 of 2009

Subodh Awasthy ...Appellant
Versus
State of U.P. ...Respondent

Counsel for the Appellant:
Sri Kamal Krishan, Sri Phool Singh Yadav,
Sri R.K. Srivastava

Counsel for the Respondent:
A.G.A.

Criminal Law - Indian Penal Code - Sections
307 & 302 - Arms Act, 1959- Sections
25/27 Arms Act - Appeal against conviction.

Testimony of a family member cannot be
discarded merely on ground that he is a family
member of deceased. However, in such a
situation testimony of such witness has to be
examined with care and caution. Object of the
Court is to find out that when testimony of
such witness is considered as a whole, it has a
circle of truth or not. (para 80)

The various deficiencies in statement of P.W.-1
and P.W.-2 and on that basis he has tried to
dislodge the two prosecution witnesses of fact.
Whether a witness can be discarded on the
basis of evidence of another witness has
already been considered. (para 81)

The testimony of witnesses of fact must prove
basic prosecution case and little disparity or
contradiction in their testimony are liable to be
discarded as being natural. Therefore, what
has to be assessed in present case is whether
P.W.-1 and P.W.-2 have been consistent in
their testimony and whether their testimony
proves basic prosecution case. (para 83)
The scrutinize the oral testimony of P.W.-1 and
P.W.-2
and
find
that
contradictions,
inconsistencies
and
omissions
in
oral
testimonies of prosecution witnesses of fact as
alleged are present. In view of aforesaid, this
Court has no other option but to discard
prosecution witnesses of fact i.e. P.W.-1 and
P.W.-2 as incredible. Consequently, their
testimonies are not worthy of trust. In view of
above the present criminal appeal is liable to
succeed. (para 93)

Appeal is allowed. (E-2)

List of cases cited: -

1. Saghir and others Vs. St. of U.P., 2018 (4)
ADJ 286 (DB)

(Delivered by Hon'ble Rajeev Mishra, J.)

1. By means of present criminal
appeal, appellant Subodh Awasthy is
challenging
validity
and
legality
of
judgement and order dated 06.10.2009
passed by Additional District and Sessions
Judge (Court no.2), Kanpur Dehat in
Sessions Trial No. 298 of 2008 (State Vs.
Subodh Awasthy) under Section 302 I.P.C.
P.S. Shivli, District-Kanpur Dehat, arising
out of Case Crime No. 331 of 2007, under
Sections 307 and 302 I.P.C., P.S. Shivli,
District, Kanpur Dehat and connected
Sessions Trial No. 299 of 2008 (State Vs.
Subodh Awasthy) under Sections 25/27
Arms Act, arising out of Case Crime No.
02 of 2008, under Sections 25/27 Arms
Act, P.S. Shivli, District, Kanpur Dehat,
whereby
and
where-under
accused
appellant
has
been
convicted
under
Section 302 I.P.C. and consequently,
sentenced to life imprisonment alongwith
fine of Rs. 20,000/-. In default regarding
payment of fine, accused appellant is to
undergo additional imprisonment of one
year. Accused appellant has also been
convicted under Section 27 Arms Act.
Accordingly, he has been sentenced to two
1 All. Subodh Awasthy Vs. State of U.P.
195
years rigorous imprisonment alongwith
fine of Rs. 2,000/-. In case of default in
payment of aforesaid fine, accusedappellant
is
to
undergo
additional
imprisonment
of
two
months.
All
sentences are to run concurrently.

2. We have heard Mr. Kamal
Krishna, learned Senior Counsel assisted
by Mr. P. S. Yadav, learned counsel for
appellant and Mr. Ajit Ray, learned
A.G.A. for State.

3. Facts giving rise to this criminal
appeal are that an incident is alleged to
have occurred on 31.12.2007 at 8.30 PM,
in which Sanjay Awasthy is alleged to
have sustained gun shot injury caused by
Subodh Awasthy. A written report dated
31.12.2007 (Ext. Ka.-1) was submitted by
Dinesh Chandra Awasthy, first informantbrother of deceased at P.S. Shivli, DistrictKanpur
Dehat
regarding
aforesaid
occurrence. The said written report is
scribed and signed by P.W.-1 Dinesh
Chandra Awasthy.

4. Head Constable 29, Munesh
Shankar Dwivedi (P.W.-4) entered written
report dated 31.12.2007 in General Diary
vide report No. 45. He thereafter scribed
the F.I.R. dated 31.12.2007 (Ext. Ka.-3),
which was registered as Case Crime No.
331 of 2007 under Section 307 I.P.C. P.S.
Shivli, District-Kanpur Dehat.

5. Perusal of aforesaid F.I.R. (Ext.
Ka.-3) shows that same has been lodged
by
Dinesh
Chandra
Awasthy,
first
informant/brother of deceased Sanjay
Awashti on 31.12.2007 at 8.30 PM.
Accused-appellant Subodh Awasthy has
been nominated as solitary named accused.
The date, time and place of occurrence as
mentioned in F.I.R. is 31.12.2007 at 8.30
PM. in front of house of first informant at
Village
Bada
Gaon,
District-Kanpur
Dehat.
Distance
between
place
of
occurrence and Police Station has been
mentioned as 7 Kms. F.I.R. has been
registered on 31.12.2007 at 9.25 PM i.e.
55 minutes after occurrence.

6. As per prosecution story as
unfolded in F.I.R., Sanjay Awasthy,
younger brother of first informant had a
scuffle with one Subodh Awasthy, resident
of same Village. Both were challaned
under Section 151 Cr.P.C. Five to six days
before date of occurrence, battery of
Tractor belonging to Subhodh Awasthy
was stolen when same was parked in front
of house of Subodh Awasthy. As a result
of aforesaid, Subodh Awasthy used to
frequently indulge in abusing others. On
the fateful day i.e. 31.12.2017 at around
8.00 PM, Sanjay Awasthy was returning
home from Aunaha Market. He was
stopped
by
Subodh
Awasthy
and
thereafter,
he
started
abusing
him.
Subsequently, Babu Ram Awasthy, father
of Sanjay Awasthy and his daughter Bitti
reached on spot and brought Sanjay
Awasthy home. After a short-time, Subodh
Awasthy again came to the house of first
informant-Sanjay Awasthy and started
abusing him. On this, Sanjay Awasthy
requested Subodh Awasthy to stop abusing
him whereupon Subodh Awasthy fired at
Sanjay Awasthy. The same struck Sanjay
Awasthy on his chest. Alongwith Sanjay
Awasthy one Naresh @ Sallar Shukla was
also present at the place of occurrence.
After having shot Sanjay Awasthy, both
accused persons fled away from spot. On
account of firearm injury, Sanjay Awasthy
the injured, fell on the spot. Subsequently,
Bitti, sister of Sanjay Awasthy (injured)
and his father Ram Nath Awasthy came on
spot. Injured was carried on Marshal
196 INDIAN LAW REPORTS ALLAHABAD SERIES
Vehicle and brought at Police-Station,
Shivli, District-Kanpur Dehat.

7. Aforesaid F.I.R. dated 31.12.2007
(Ext. Ka.-3) was registered, Police of
Police-Station, Shivli came into motion.
P.W.-8, Subh Suchit, the Station Officer,
Police-Station Shivli was appointed as
Investigating Officer. He accordingly
proceeded with investigation of Case
Crime Number 331 of 2007. On same day,
he entered written report dated 31.12.2007
(Ext. Ka.-1) and F.I.R. dated 31.12.2007
(Ext. Ka.-3) in case diary. Injured Sanjay
Awasthy died on 31.12.2017 while being
taken to Hallet Hospital, Kanpur Nagar by
S. I. Rakesh Chandra and Constable Raj
Bali. Accordingly, first informant Dinesh
Chandra Awasthy submitted an application
dated 31.12.2007 (Ext. Ka.-22) at P.S.
Shivli, District-Kanpur Dehat informing
Police regarding death of Sanjay Awasthy.
The same was entered in General Diary
vide G.D. report No. 47 timing 23.55
hours dated 31.12.2007 (Ext. Ka.-5). In
view of above, Investigating Officer added
Section 302 I.P.C in concerned Case
Crime Number on 01.09.2008.

8. On same day i.e. 01.01.2008,
P.W.-8, S.I., Subh Suchit, Investigating
Officer,
recorded
statement
of
first
informant-Sanjay Awasthy under Section
161 Cr.P.C. He then reached place of
occurrence and inspected it. He thereafter
noted Inspection Memo in case diary. He
also prepared Site Plan dated 01.01.2008
(Ext. Ka.-13) of place of occurrence on
pointing of first informant.

9. Upon death of injured Sanjay
Awasthy at Hallet Hospital, Kanpur
Nagar, information regarding same was
given by one Santu ward boy in aforesaid
Hospital at Police-Station Swaroop Nagar,
District-Kanpur Nagar. Accordingly, S. I.
Iqbal Singh, P.S.-Swaroop Nagar, DistrictKanpur Nagar proceeded to conduct
panchayatnama/inquest of deceased. He
appointed
Panch
witnesses
namely,
Subhash Chandra, Ram Ganesh, Vinod
Kumar Tiwari, Majoj Mishra and Santosh
Dwivedi. Upon completion of inquest
proceedings, he prepared inquest report
dated 01.01.2008 (Ext. Ka.-8).

10. Perusal of Panchayatnama/inquest
report dated 01.01.2008 (Ext. Ka.-8) shows
that same was conducted on 01.01.2008 at
Hallet Hospital, Kanpur Nagar. Inquest
proceedings commenced at 11.40AM on
01.01.2008 and concluded on the same day
at 12.45PM. Place of inquest proceedings is
mentioned as Hallet Hospital, P.S.-Swaroop
Nagar, District-Kanpur Nagar. In the
opinion of Panch witnesses, death of
deceased-Sanjay Awathi was held to be
homicidal. Panch witnesses also noted that
cause of death of deceased was gun shot
injury. One gun shot injury was found on the
body of deceased situate on left side of
abdomen
and
was
surrounded
by
blackening. Inquest report, however, does
not contain description of Case Crime
Number 331 of 2007 under Sections 307,
302 I.P.C., P.S.-Shivli, District-Kanpur
Dehat.

11. Body of deceased Sanjay
Awasthy was recovered by SSI, Rudra Pal
Singh on 01.01.2008 itself. He then
prepared detailed Police scroll i.e. Ext.
Ka.-9- letter to C.M.O., Ext. Ka.-10Specimen Seal, Ext. Ka.-11-Photograph of
dead body, Ext. Ka.12-Police Form No.33.

12. P.W.-4, Dr. Bipul Singh,
conducted postmortem of the body of
deceased. He found following antemortem
injuries on the body of deceased:-
1 All. Subodh Awasthy Vs. State of U.P.
197

"Firearm wound of entry 1.5
cm.X1.00 cm. present on part of left
abdomen, 11cm. Front below left nipple at
5 o' clock position, surrounded by
blackening, tattooing and scorching in an
area of 5cm x 6cm, margins of wound are
lacerated
ecchymosed
and
inverted,
direction of wound is found towards right
side and backward. Spleen liver and
intestine with omentum found lacerated.
About 1500 ml. blood mixed fluid present
in abdominal cavity. A single metallic
bullet recovered from abdominal cavity
sealed
in
and
handed
over
to
accompanying constable."

13. After completion of post-mortem
of body of deceased (P.W.-8), S.I. Subh
Suchit, Investigating Officer, recovered
clothes worn by deceased at the time of
occurrence. He sealed them and dispatched
same to Forensic Science Laboratory. An
F.S.L. report dated 14.02.2008 (Ext. Ka.-
20) was submitted. As per aforesaid report,
blood on the clothes of deceased was
disintegrated and therefore, insufficient for
classification.

14. On 02.01.2008, P.W.-8, Subh
Suchit,
Station
Officer,
P.S.
Shivli
District-Kanpur
Dehat/Investigating
Officer arrested the accused Subodh
Awasthy. He physically examined the
accused but nothing was recovered from
his person. He then recorded statement of
accused. Accordingly, he took accused to
the place from where country made pistol
(katta) used in commission of offence was
hidden.
Accused
took
Investigating
Officer to Shivam Road and from a place
behind the Mazar situate on Pitched Road,
accused Subodh Awasthy got the country
made pistol (Katta) used in commission of
crime recovered. Same was sealed by
P.W.-8. A Memo of Recovery dated
02.01.2008 (Ext. Ka.-14) was prepared.
Aforesaid
recovery
is
witnessed
by
Constable Ram Autar Singh and first
informant-Subodh Kumar Awasthy.

15. On the basis of recovery of
country made pistol (katta) on pointing of
accused Subodh Awasthy, an F.I.R. dated
02.01.2008 (Ext. Ka. 6) was lodged by
P.W.-8, Subh Suchit, Station Officer P.S.
Shivli District-Kanpur Dehat and also
Investigating Officer against accused.
Same was registered as Case Crime No.
02/2008 under Sections 25/27 Arms Act.
According to aforesaid F.I.R., occurrence
took place on 02.01.2008 at 15.40 hours,
i.e 3.00 PM. near Ram Ganga Canal
behind the Mazar and same was lodged on
18.03.2008 at 18.30 hours.

16. After completion of statutory
investigation of Case Crime No. 331 of
2009 in terms of Chapter XII Cr.P.C.
(P.W.-8) S.I., Subh Suchit Investigating
Officer, on basis of material collected
during course of investigation opined to
submit
a
charge-sheet.
Accordingly
charge-sheet dated 15.02.2008 (Ext. Ka.-
15) was submitted in Case Crime No.331
of 2007 under Sections 307 and 302 I.P.C.,
P.S.-Shivli, District-Kanpur Dehat. Upon
submission
of
aforesaid
charge-sheet
C.J.M. Kanpur Dehat took cognizance
upon same vide cognizance taking order
dated 26.03.2008. Thereafter case was
committed to Court of Sessions vide
committal order dated 15.09.2008 passed
by C.J.M. Kanpur Dehat. Consequently,
S.T. No. 298 of 2008 (State Vs. Subodh
Awasthy) under Section 302 I.P.C. P.S.
Shivli, District-Kanpur Dehat came to be
registered.

17. Court-below vide order dated
05.03.2009 framed charge under Section
198 INDIAN LAW REPORTS ALLAHABAD SERIES
302 I.P.C. against accused Sanjay Kumar
Awasthy to the following effect:-

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18. During pendency of S.T. No. 298
of 2008 (State Vs. Subodh Awasthy) under
Section 302 I.P.C., investigation of Case
Crime No. 02 of 2008 under Sections
25/27 Arms Act, P.S. Shivli Road,
District-Kanpur
Dehat
was
also
completed. On the basis of material
collected during course of investigation,
Investigating Officer submitted a chargesheet dated 25.01.2008 (Ext. Ka.-12)
under Section 25/27 Arms Act against
accused Subodh Awasthy.

19. C.J.M. Kanpur Dehat vide
congnizance taking order dated 25.02.2008
took cognizance upon the charge-sheet
dated 25.01.2008.

20.

Subsequently,
District
Magistrate,
Kanpur-Dehat
accorded
sanction in terms of Section 39 of Arms
Act to launch prosecution against accused
Subodh Kumar Awasthy under Section 25
Arms Act vide sanction order dated
10.03.2008.

21. After completion of aforesaid
formalities,
C.J.M.,
Kanpur
Dehat
committed case to Court of Sessions vide
committal
order
dated
15.09.2008.
Accordingly S.T. No. 299 of 2008 (State
Vs. Subodh Awasthy) under Sections
25/27 Arms Act came into existence.

22. S.T. No. 299 of 2008 (State Vs.
Subodh Awasthy) under Sections 25/27
Arms Act was transferred to Court of 2nd
Additional District and Sessions Judge,
Kanpur Dehat. Court-below vide order
dated 05.03.2009 framed charge under
Sections 25/27 Arms Act against accused
Subodh Awasthy to the following effect:-

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1 All. Subodh Awasthy Vs. State of U.P.
199
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23. The country made pistol
(material exhibit no.1) recovered on
pointing of accused-appellant and also the
bullet recovered from body of deceased by
P.W.-3, Dr. Bipul Singh, who conducted
autopsy on body of deceased, were sent to
Forensic Science Laboratory. According to
FSL report dated 23.02.2008 (Ext. Ka-21),
bullet recovered from body of deceased
was not fired from the weapon recovered
on pointing of accused.

24. Both of the above mentioned
trials were consolidated and accordingly,
they were tried together by Court-below.

25. Accused-Sanjay Awasthy denied
the charges so framed and demanded trial.
Consequently, trial commenced. Burden to
bring home the charges was upon
prosecution.
Accordingly,
prosecution
adduced following witnesses to establish
the same:-

P.W.-1,
Dinesh
Chandra
Awasthy

P.W.-2, Babu Ram

P.W.-3, Dr. Bipul Singh

P.W.-4,
Munesh
Shankar
Dwivedi, Head Constable 29, P.S.-Shivli,
District-Kanpur Dehat.

P.W.-5, Ashok Kumar Singh,
S.I.S., Police Office, Kanpur Dehat

P.W.-6, Pradeep Kumar Tiwari,
Constable Moharrir P.S. Baraur, DistrictKanpur Dehat.

P.W.-7, Rudra Pal Singh, SubInspector,
P.S.
Kandhai,
DistrictPratapgarh

P.W.-8,
Subh
Suchit,
SubInspector,
P.S.-
Bhognipur,
DistrictKanpur Dehat

P.W.-9, Rakesh Chandra, SubInspector, P.S. G.R.P. District-Kanpur
Nagar.

P.W.-10, Jagdev Prasad, SubInspector, Akbarpur Chauki Incharge,
P.S.-Akbarpur, District-Kanpur Dehat.

26. Apart from relying upon
aforesaid
prosecution
witnesses,
prosecution also relied upon following
documentary evidence:-

Ext. Ka.-1 is written report
submitted by P.W.-1, Dinesh Chandra
Awasthy, first informant / brother of
deceased and was proved by him.

Ext. Ka.-2 is post-mortem report
dated 01.01.2008 prepared by P.W.3 Dr.
Bupil Singh and was proved by him.
200 INDIAN LAW REPORTS ALLAHABAD SERIES

Ext. Ka.-3 is check F.I.R. dated
31.12.2007 lodged by P.W.-1, Dinesh
Chandra Awasthy, first informat/brother of
deceased registered as Case Crime No.
331 of 2007 under Section 307 I.P.C.,
P.S.-Shivli, District-Kanpur Dehat. It was
proved by P.W.-4, Head Constable 29,
Munesh Shanker Dwivedi.

Ext. Ka.-4 is Carbon Copy of
General Diary Report No. 41 timing 23.55
dated 31.12.2007, prepared by P.W.-4,
Head Constable 29, Munesh Shanker
Dwivedi and was proved by him.

Ext. Ka.-5 is Carbon Copy of
General Diary Report No. 47 timing 23.55
dated 31.12.2007, prepared by P.W.-4,
Head Constable 29, Munesh Shanker
Dwivedi and proved by him

Ext. Ka.-6 is Check F.I.R. dated
02.05.2008 pertaining to Case Crime No.
02 of 2008 under Section 25/27 Arms Act
lodged by P.W.-8, S.I. Subh Suchit,
Investigatin Officer. The same was proved
by
P.W.-6,Constable
Moharrir
558,
Pradeep Kumar Tiwari.

Ext. Ka.-7 is Carbon Copy of
General Diary Report No. 38 timing 18.30
dated 02.01.2008, prepared by P.W.-6.,
Constable Moharrir 558, Pradeep Kumar
Tiwari and proved by him.

Ext.
Ka.-8
is
Panchayatnama/Inquest
Report
dated
01.01.2008 pertaining to deceased Sanjay
Awasthy. The same was prepared by
P.W.-7, S.I., Rudra Pal Singh and proved
by him.

Ext. Ka.-9 is Letter Dated
01.01.2008 sent by P.W-7, S. I. Rudra Pal
Singh addressed to C.M.O., Kanpur Nagar
for getting postmortem of deceased
conducted. Same was proved by P.W.-7,
S.I., Rudra Pal Singh himself.

Ext. Ka.-10 is Specimen of Seal
on packed dead body of deceased. Same
was prepared and proved by P.W.7, S.I.,
Rudra Pal Singh.

Ext. Ka.-11 is Police Form No.
371 (Photo Nash) of the deceased. Same
was prepared and proved by P.W.-7, S.I.,
Rudra Pal Singh.

Ext. Ka.-12 is Police Form No.
33, prepared and proved by P.W.-7, S.I.,
Rudra Pal Singh.

Ext. Ka.-13 is Site Plan dated
01.01.2008 prepared by P.W.-7 , Rudra
Pal Singh and proved by P.W.-8, S.I.,
Subh Suchit, Investigating Officer.

Ext. Ka.-14 is Memo of Arrest
and Recovery of country made pistol
(katta) from accused Subodh Awasthy.
Same was prepared by P.W.-7, Rudra Pal
Singh and proved by P.W.-8, S.I., Subh
Suchit, Investigating Officer.

Ext. Ka.-15 is Charge-sheet
dated 15.02.2008 submitted by P.W.7,
Rudra Pal Singh in Case Crime No. 331 of
2007 under Section 302 I.P.C. Same was
proved by P.W.-8, S.I. Subh Suchit,
Investigating Officer.

Ext. Ka.-16 is Site Plan dated
04.01.2008 prepared by P.W.-9, S.I.
Rakesh Chand regarding place of arrest of
accused on 04.01.2008. Same was proved
by P.W.-9, S.I. Rakesh Chandra

Ext.
Ka.-17
is
Site
Plan
regarding place of recovery of country
made gun, which was recovered on
pointing of accused. Same was proved by
P.W.-9, S.I. Rakesh Chandra.

Ext. Ka.-18 is charge-sheet dated
25.01.2008 submitted by P.W.-10, S. I.,
Jagdeo Prasad in Case Crime No. 02 of
2008 under Section 25/27 Arms Act. Same
was proved by P.W.-10, S.I. Jagdev
Prasad..

Ext. Ka.-19 is Order dated
10.03.2008 passed by District Magistrate,
Kanpur Dehat according Sanction under
Section 39 Arms Act for launching
1 All. Subodh Awasthy Vs. State of U.P.
201
prosecution
against
accused
Subodh
Awasthy.

Ext. Ka.-20 is Report of Forensic
Science Laboratory dated 01.02.2008.

Ext. Ka.-21 is Report of Forensic
Science Laboratory dated 23.02.2008.

Ext. Ka.-22 is application dated
13.12.2007 submitted by P.W.-1, Dinesh
Chandra Awasthy at P.S.-Shivli, DistrictKanpur Dehat regarding death of Sanjay
Awasthy. Same was proved by P.W.-1,
Dinesh Chandra Awasthy.

27. The country made pistol (Katta)
recovered on pointing of accused, was also
relied upon by prosecution and was
marked as Material Ext.-1.

28.

P.W.-1,
Dinesh
Chandra
Awasthy is first informant and also brother
of deceased. This witness in his statement
in chief alleges himself to be an eyewitness of the occurrence and has
supported prosecution story.

29. P.W.-2, Babu Ram is father of
deceased. According to this witness, he
has seen the occurrence, which took place
in front of his house. He has also tried to
support prosecution case in his statement
in chief.

30.

P.W.-3,
Dr.
Bipul
Ram
conducted autopsy on body of deceased.
He has proved postmortem report dated
01.01.2008 (Ext. Ka.-2). According to this
witness, cause of death of deceased was
ante-mortem fire arm injury sustained by
him. At the time of autopsy, this witness
recovered a bullet from body of deceased,
which was sent to Forensic Science
Laboratory for examination. In the opinion
of this witness, injury found on body of
deceased could have been caused by
firearm.

31. P.W.-4, Head Constable, Munesh
Shankar Dwivedi was posted as Head
Constable at P.S.-Shivli, Kanpur Dehat, on
the date of occurrence. He entered written
report dated 31.12.2007 (Ext. Ka.-1) in
General Diary and thereafter, prepared
check F.I.R. dated 31.12.2007 registered
as Case Crime No. 221 of 2007 under
Section 302 I.P.C. He also prepared check
F.I.R. dated 02.01.2008 registered as Case
Crime No. 02 of 2008 under Sections
25/27 Arms Act. This witness has proved
check F.I.R. (Ext. Ka.-3), Carbon Copy of
G.D. pertaining to entry of written report
dated 02.01.2008 (Ext. Ka.-4) and also
amended copy of G.D. (Ext. Ka.-5). This
witness was cross-examined by defence
but he remained firm.

32. P.W.-5, SSI Ashok Kumar Singh
was posted at P.S.-Shivli, District-Kanpur
Dehat. On 02.01.2008, this witness headed
the police team which went out to arrest
accused-Subodh Awasthy. At around 3.40
P.M. this witness arrested accused-Subodh
Awasthy. On the pointing of accused, this
witness recovered the country made pistol
(Katta), used in the commission of crime,
from a place near the Mazar. He
accordingly prepared recovery memo of
weapon alleged to have been used in
commission of crime. This witness has
proved the recovery i.e. Material Ext. -1
which is country made pistol of .315 bore.

33. P.W.-6, Constable Moharir 558,
Pradeep Kumar Tiwari was posted as Head
Constable at P.S.-Shivli, District-Kanpur
Dehat.
On
02.01.2008,
this
witness
prepared Check F.I.R. registered as Case
Crime No.02 of 2008 under Section 25/27
Arms Act, P.S.-Shivli, District- Kanpur
Dehat. He proved original F.I.R. dated
02.08.2008 and accordingly, same was
marked as Ext. Ka.-6. He further proved
202 INDIAN LAW REPORTS ALLAHABAD SERIES
G.D. Entry No. 38 timing 18:30 hours by
producing carbon copy as well as Original
G.D. Carbon Copy of G.D. Entry No. 38
was accordingly marked as Ext. Ka.-7. This
witness was cross-examined but prosecution
failed to dislodge his testimony.

34. P.W.-7, S.I. Rudra Pal Singh was
posted as SSI, P.S.-Swaroop Nagar,
District-Kanpur Nagar on 01.01.2008.
This witness had got conducted the
panchayatnama/inquest
of
deceased
Sanjay
Awasthy
at
Hallet
Hospital,
Kanpur Nagar on 01.01.2008. After
completion of panchayatnama/inquest of
deceased,
he
prepared
panchayatnama/inquest report of deceased
dated 01.01.2008. He proved the same and
accordingly, panchayatnama/inquest report
was
marked
as
Ext.
Ka.-8.
Upon
completion of aforesaid exercise, this
witness prepared detailed police scroll i.e.
letter to C.M.O. with a request to conduct
postmortem
of
body
of
deceased,
Specimen Seal, Photograph of dead body,
Police Form No.33. He proved aforesaid
documents and accordingly, they were
exibited as Ext. Ka.-9, Ext. Ka.-10, Ext.
Ka.-11, Ext. Ka.12. This witness was
cross-examined. A suggestion was made to
him doubting the proceedings of inquest.
However, this witness remained firm and
categorically stated that inquest was
conducted on information received from
ward body of Hallet Hospital, Kanpur
Nagar. Further, none of the Panches
disclosed to this witness as to who
committed the crime or how and when the
occurrence took place. This witness has
also stated that he did not receive any
F.I.R., which explains the absence of detail
regarding Case Crime No. 221 of 2007 in
the inquest report. Consequently, this
witness could not be dislodged by
prosecution.

35. P.W.-8, S.I. Subh Suchit was
posted as Sub-Inspector at P.S.-Shivli,
District-Kanpur Dehat on 31.12.2007. This
witness was nominated as Investigating
Officer and accordingly, he took up
investigation of Case Crime No. 221 of
2007 under Section 307 I.P.C. P.S.-Shivli,
District-Kanpur Dehat. This witness in his
statement in chief has stated that on
31.12.2007, he entered the written report
and the F.I.R. in Case Diary. On
01.01.2008, he added Section 302 I.P.C. in
above-mentioned case crime number by
making necessary endorsement in the case
diary. On the pointing of first informant,
he inspected place of occurrence and
prepared site plan himself under his
signature on 01.01.2008. He proved Site
Plan
dated
02.01.2008,
which
was
accordingly marked as Ext. Ka.-13. On
same day i.e. 02.01.2008, this witness
arrested accused. On pointing of accused,
this witness recovered country made pistol
(Katta) used in commission of crime and
accordingly, prepared a recovery memo of
same. He proved recovery memo dated
02.01.2008 and accordingly, same was
exhibited as Ext. Ka.-14. On 02.01.2008
entry regarding aforesaid fact was got
made in G.D. and thereafter, this witness
incorporated the same in Case Diary. On
02.01.2008, this witness lodged an F.I.R.
against accused-Subodh Awasthy, which
was registered as Case Crime No. 02 of
2008 under Sections 25/27 Arms Act,
P.S.-Shivli, District-Kanpur Dehat. This
witness
has
further
stated
that
on
06.01.2008, he recorded statement of Babu
Ram Awasthy, father of deceased. On
07.01.2008,
this
witness
received
panchayatnama/inquest
report
and
postmortem
report
of
deceased.
On
10.01.2008, this witness recorded the
statement of Bitti, sister of deceased and
other witnesses. On 11.01.2008, this
1 All. Subodh Awasthy Vs. State of U.P.
203
witness recorded statement of another
named accused, namely, Naresh @ Jhallar
Shukla. On 13.01.2008, this witness
recorded statements of Panch Witnesses.
On 16.01.2008, this witness obtained
remand of accused and on 18.01.2008, this
witness recorded statements of remaining
Panch witnesses and also statement of
Police Sub-Inspector, namely, Rudra Pal
Singh, who got the postmortem conducted
and also the statement of Constable
Dharam Pal. On 03.02.2008, this witness
recorded statements of witnesses Vinod
Kumar and Constable Rajendra Singh. He
submitted charge-sheet dated 15.02.2008
and proved the same. Accordingly, same
was exhibited as Ext. Ka.-15. This witness
was cross-examined by defence. In his
cross-examination, this witness has stated
that information regarding the occurrence
was received by him at about 8.45 PM on
R.T. Set, when he was away from policestation. According to this witness, upon
receipt of aforesaid information, he
proceeded to village Aunaha, the place of
occurrence. On way to Village-Aunaha, he
met family members of injured, who was
being carried by his family members. This
witness further states that he had himself
seen the injured with his eyes and had
instructed his family members to go to
police-station and lodge an F.I.R. He
further states that prior to lodging of
F.I.R., there is no information entered at
P.S.-Shivli,
District-Kanpur
Dehat
regarding firing having taken place. This
witness also states that he did not make an
entry in G.D. regarding information
received by him that was transmitted
through R.T. Set. This witness further
states that when he reached village at
around 9.00PM, he did not meet any
family member of deceased. Injured was
carried to Hospital by father, sister and
other villagers, whom he had met while
coming to village Aunaha. This witness
stayed at place of occurrence the whole
night but did not meet any person, who
was residing near place of occurrence.
This witness further states that it was a
dark night but there was no necessity of
light for him. He stayed near place of
occurrence in village the whole night.
According to this witness, even upon
inspection of place of occurrence, he could
not locate any such circumstance denoting
happening of occurrence as alleged. This
witness has also stated that he did not find
any blood on spot. He has also stated that
he did not notice any blood on clothes of
family members of injured. During course
of investigation this witness could not
ascertain ownership as well as Registration
Number of Jeep on which injured was
taken. This witness has not explained the
absence of Majroobi Chitthi even when
injured is alleged to be taken to PoliceStation first and then to Hallet Hospital.
This witness was cross-examined by
prosecution but his testimony does not
corroborate the prosecution story.

36. P.W.-9, S.I. Rakesh Chandra was
posted as Sub-Inspector at P.S.-Shivli,
District-Kanpur Dehat on 03.01.2008. This
witness was entrusted with investigation of
Case Crime No. 02 of 2008 under Sections
25/27 Arms Act, P.S.-Shivli, DistrictKanpur Dehat. This witness during course
of
investigation,
inspected
place
of
recovery from-where weapon i.e. country
made pistol (Katta) used in commission of
crime was recovered. He also prepared a
site plan of the same. He duly proved
inspection-memo as well as Site-Plan
prepared by him which were exhibited as
Exts. Ka.-16 and Ka.-17. This witness was
cross-examined by defence but nothing
adverse to prosecution case could be
culled out from him. This witness was
204 INDIAN LAW REPORTS ALLAHABAD SERIES
further recalled. However, even on further
cross-examination this witness remained
firm.

37. P.W.-10, S.I. Jagdeo Prasad was
posted as Sub-Inspector on 18.01.2008. He
was nominated as Investigating Officer of
Case Crime No. 02 of 2008 under Sections
25/27 Arms Act. Upon completion of
investigation of aforesaid Case Crime
Number, this witness prepared chargesheet dated 25.01.2008 and submitted
same before Court. The charge-sheet was
proved by him and accordingly, same was
marked as Ext. Ka.-18. This witness was
also cross-examined by defence but he
remained firm.

38. After prosecution witnesses were
examined, all the incriminating material
and circumstances were disclosed to
accused to have his version of occurrence
as per the mandate of Section 313 Cr.P.C.
Accused denied the questions put to him
one by one by repeatedly saying that either
it is false or it has been engineered
maliciously. However, in reply to the last
question, accused stated that he is innocent
and occurrence has taken place out side
the village.

39. Prosecution pleaded before courtbelow that there is no delay in lodging
F.I.R. inasmuch as occurrence has taken
place at 8.30PM and F.I.R. had been
lodged at 9.25PM. Accused has not been
falsely implicated. First informant has
alleged that it is accused alone who caused
gun shot injury on deceased and all
prosecution witnesses have been consistent
in narrating the aforesaid story. Had it
been a case of false prosecution, then other
family members of accused could also
have been nominated in F.I.R. Naresh @
Jhallar Shukla was nominated as an
accused in F.I.R. on account of his
presence
near
place
of
occurrence.
However, no criminality was conducted by
him, therefore, no role was assigned to
him in commission of offence. Police upon
investigation excluded his name in chargesheet. Prosecution did not file any
application under Section 319 Cr.P.C. to
summon aforesaid accused. There is no
dispute regarding place of occurrence as
same has taken place near house of first
informant. Even if place of occurrence has
not specifically been specified in F.I.R.
same will not make much difference.
Panchayatnama/Inquest of deceased was
got conducted by Police of Swaroop
Nagar. But, that by itself will not make
any difference as Panchayatnama/Inquest
report and postmortem report have duly
been proved in evidence and exhibited.
There is only one firearm injury on body
of deceased caused by accused himself. As
such, there can be no doubt regarding
manner of occurrence. Accused was
arrested two days after occurrence and on
his
pointing
out,
weapon
used
in
commission of crime, i.e. country made
pistol (Katta) was got recovered. Failure to
recover any empty cartridge from place of
occurrence will not make any dent in
prosecution case. Testimony of P.W.-1,
Dinesh Chandra Awasthy, first informant/
brother of deceased and P.W.-2, Babu
Ram Awasthy cannot be discarded on
grounds that they are brother and father of
deceased. Testimony of even one eyewitness is sufficient to convict an accused.
No benefit can be derived by defence from
FSL report dated 23.02.2008 (Ext. Ka.-
21). Occurrence is of night and therefore,
it is not necessary that blood might have
fallen on the ground. It may also be
possible that winter clothing worn by
deceased may have absorbed blood, which
explains absence of blood on spot. Failure
1 All. Subodh Awasthy Vs. State of U.P.
205
to mention source of light in F.I.R. will not
make any difference as deceased and
accused are neighbours residing in same
village and therefore, well known to each
other. Absence of Majroobi Chitthi on
record, will not weaken prosecution case
as there is clear recital in Ext. Ka.-4 that
Majroobi Chitthi was handed over to
Constable Raj Bali and S.I., Rakesh
Chandra. If same has been misplaced by
aforesaid
two
police
personnel,
prosecution cannot be made to suffer on
account of their laxity. If there is defect in
investigation, same cannot be a ground for
acquittal of accused. Even though it is
alleged that deceased was a man of
criminal antecedents but no certified copy
of F.I.R. or charge-sheet against deceased
has been filed to substantiate aforesaid.
There is strong motive for commission of
crime as there is previous enmity and
suspicion in mind of accused that deceased
has stolen battery of his tractor. Absence
of any independent witness at time and
place of occurrence is attributable to the
fact that occurrence took place at around
8.30PM on a cold winter night. Even if
there
are
minor
contradictions
in
statements
of
eye-witnesses
yet
prosecution
case
cannot
be
termed
improbable or doubtful on that ground. No
videography of occurrence is possible.
Therefore, merely on basis of minor
contradictions in testimony of prosecution
witnesses, it cannot be said that accused
has been falsely implicated. Lastly, it was
urged that accused himself has not given
any evidence to prove his innocence.

40. On behalf of accused, it was
pleaded before Court-below that place of
occurrence is not definite. The prosecution
witnesses of fact as well as Investigating
Officer have pointed place of occurrence
differently. As such, prosecution case is
doubtful. It was next contended that P.W.-
1, Dinesh Chandra Awasthy is not an eyewitness as he was not present at the place
of occurrence. This witness has not seen
the occurrence but he arrived only after
receiving information regarding happening
of occurrence. This witness has falsely
implicated accused on account of enmity.
As such, F.I.R. is false. P.W.-2, Babu Ram
was also not present on spot as such he did
not witness the occurrence. It was also
contended that deceased Sanjay Awasthy
was a man of criminal antecedents and
therefore, he had enmity with large
number of people. As such, deceased
might have been killed by some unknown
person at an unknown place. Defence in
support of its case also pleaded that there
is clear contradiction in testimony of P.W-
1 and P.W.-2. As such, they cannot be
treated
as
reliable
and
independent
witnesses. They are the brother and father
of deceased and have deposed as interested
witnesses. In continuation of its defence, it
was urged on behalf of defence that there
is no motive behind alleged occurrence. In
absence of any strong motive or otherwise,
it is impossible to believe that a man will
commit ghastly act of murder. Pointing out
to loopholes in prosecution case, it was
urged that according to prosecution injured
was first brought to P.S.-Shivli, DistrictKanpur Dehat from-where he was taken to
Hallet Hospital, Kanpur Nagar. However,
there is no Majrubi Chitthi in respect of
injured/deceased. Injured Sanjay Awasthy
was brought to Hallet Hospital, Kanpur
Nagar by S.I. Rakesh Chandra and
Constable Raj Bali. Their entry in Hospital
was made at 11.55 PM, whereupon Doctor
declared that patient has been brought
dead. Accordingly, an information was
given at P.S.-Swaroop Nagar. Thus,
deceased was not brought to Hallet
Hospital by Dinesh Chandra Awasthy nor
206 INDIAN LAW REPORTS ALLAHABAD SERIES
any family member of deceased was
present at Hallet Hospital. On aforesaid
factual premise, it was then urged that
deceased Sanjay Awasthy was shot at an
unknown place and from that place, S.I.
Rakesh Chandra and Constable Raj Bali
recovered the injured and brought him to
Hallet Hospital. Pointing out deficiencies
in investigation, it was submitted by
defence that the inquest and postmortem of
the deceased were got conducted by Police
of Swaroop Nagar whereas F.I.R. had
already been registered at P.S.-Shivli,
District-Kanpur Dehat for which there is
no
explanation.
In
continuation
of
aforesaid,
it
was
also
urged
that
Investigating Officer did not investigate
S.I. Rakesh Chandra and Constable Raj
Bali. As such, without collecting sufficient
evidence, Investigating Officer submitted
charge-sheet against accused.