# Sushil Kumar Dwivedi @ Sonu Dwivedi v. State of U.P. 96 INDIAN LAW REPORTS ALLAHABAD SERIES

- **Citation:** (2024) 5 ILRA 95
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-14
- **Case number:** Criminal Appeal No. 2558 of 2014
- **Bench:** Siddhartha Varma, Vinod Diwakar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sushil-kumar-dwivedi-sonu-dwivedi-v-state-of-u-p-96-indian-law-reports-52105
- **Pages:** 21

## Headnote

Criminal Law-Indian Penal Code,1860Sections 147, 148, 149 302 & 506- -Criminal
Appeal against the judgment and order whereby
accused persons were sentenced for life
imprisonment- The fact that the PW-2 reached at
the spot on the relevant date is very doubtful-
That PW-2 was only making out a case so as to
show that he was available at the flat when the
incident happened and thus he was a chance
witness who had been created to become an eyewitness-The husband of the deceased was not
produced as a witness who could have definitely
told in the first person as to whether there were
any commercial transaction between him and
Sonu Saxena which had been made to appear to
be a cause for the murders.

The ballistic expert St.d that the empty
cartridges matched, but the bullets which
had entered the body did not, then it creates
a definite doubt that there was some
tampering done with the firearms- The
firearms, as per the St.ment given by PW-13
Ram Sajivan, were taken out from the
Malkhana on 21.05.2009 and again they
were kept inside the Malkhana after one day
and were handed over to PW-13 on
24.05.2009 the time which the prosecution
got, definitely must have enabled the
prosecution to tamper with the firearms- A
doubt is created when the chick is seenChick is transcribed only on one page and if
one looks at the hand-writing then it appears
that efforts had been made to make the chick
FIR fit into one single page-Result- order
passed by the T.C is quashed .

Appeal allowed. (E-15)

List of Cases cited:

## Text

_Characters 0–39,942 of 75,982. This is a partial read: ask again with offset=39942 for what follows._

5 All. Sushil Kumar Dwivedi @ Sonu Dwivedi Vs. State of U.P.
95
she had justified the absence of her husband
and has stated that it was not required to wake
him up. She has stated that the wife and
children of the deceased were present on the
spot but they never cared to come in the
witness box. The eye-witnesses which had
come up to the witness box had turned hostile
and the eye-witnesses with regard to which
she had made a mention in the FIR never
turned up to give their testimony. It was just
possible that due to the fear of the assailants
who were history-sheeters, the eye-witnesses
were not coming forward but in the instant
case we find that the testimony of the witness
of the PW-1-Gyanwati who is the mother is
not at all believable. She has changed stands
very frequently. She has introduced so many
things like the peepal tree and Shiv Sewak at
her convenience and the peepal tree is not to
be found even in the site-plan. In fact the
Investigating Officer who was PW-10 states
that the PW-1 had never told him about the
peepal tree. It appears strange that the site-plan
was prepared at the telling of the PW-1; that
would mean that in fact the site-plan was also
prepared not at the spot but somewhere else.

26. What is more we find that the
mother of the deceased, PW-1 had got the FIR
lodged and despite the fact that she had
mentioned that she did not know the addresses
of the assailants before the Court, in the FIR
she had mentioned the addresses and the
parentage of all the accused persons. This
shows that the police very interestingly, which
had the record of all the history-sheeters, had
mentioned about the addresses and the
parentage of the accused persons in the FIR.
Also, we find that in the FIR the mother of the
deceased had stated that the deceased had died
on the spot and was lying dead but despite that
the police had taken the dead to the Hallet
Hospital. This raises a big question mark to the
fact as to whether the deceased was found at
the spot where, it is alleged, he was killed. The
panchayatnama ought to have taken place at
the place where the deceased lay dead.

27. Under such circumstances, we are
of the view that the eye-witness PW-1, the
mother, is an absolutely doubtful witness. The
conviction cannot be done on the basis of her
testimony. Also, we find that the PW-10 has
stated in so many words that all the facts which
the PW-1 was stating in the Court were never
told to him. The ballistic report from the forensic
lab was also never received and taken into
account by the prosecution. This not only speaks
volumes about the prosecution's functioning but
also makes it unbelievable.

28. For all the reasons, the Criminal
Appeals are allowed. The order dated 22.3.2018
passed by the Additional District & Sessions
Judge, Court No.12, Kanpur Nagar is quashed.
The appellants namely Ratan Pahalwan, Mewa
Lal, Mahesh @ Maheshi, Suresh @ Mandir,
Ram Kumar Mallah and Vikas Maurya, who are
in jail, be released forthwith unless they are
required in any other case.
----------
(2024) 5 ILRA 95
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 14.05.2024

BEFORE

THE HON'BLE SIDDHARTHA VARMA, J.
THE HON'BLE VINOD DIWAKAR, J.

Criminal Appeal No. 2558 of 2014
WITH
Criminal Appeal No. 2582 of 2014
WITH
Criminal Appeal No. 2639 of 2014
WITH
Criminal Appeal No.2640 of 2014

Sushil Kumar Dwivedi @ Sonu Dwivedi
 ...Appellant
Versus
State of U.P. ...Respondent
96 INDIAN LAW REPORTS ALLAHABAD SERIES
Counsel for the Appellant:
Balendra Kumar Singh, Arpit Srivastava,
Parijat Kumar Tiwari, Rakesh Chandra
Upadhyay, Ram Surat Patel, S.P. Tewari,
Udai Karan Saxena, Veerendra Singh, Vijay
Singh Senga

Counsel for the Respondent:
Govt. Advocate, Anil Srivastava, B.N.Singh,
Ram Bahadur, Ravi Yadav

Criminal Law-Indian Penal Code,1860Sections 147, 148, 149 302 & 506- -Criminal
Appeal against the judgment and order whereby
accused persons were sentenced for life
imprisonment- The fact that the PW-2 reached at
the spot on the relevant date is very doubtful-
That PW-2 was only making out a case so as to
show that he was available at the flat when the
incident happened and thus he was a chance
witness who had been created to become an eyewitness-The husband of the deceased was not
produced as a witness who could have definitely
told in the first person as to whether there were
any commercial transaction between him and
Sonu Saxena which had been made to appear to
be a cause for the murders.

The ballistic expert St.d that the empty
cartridges matched, but the bullets which
had entered the body did not, then it creates
a definite doubt that there was some
tampering done with the firearms- The
firearms, as per the St.ment given by PW-13
Ram Sajivan, were taken out from the
Malkhana on 21.05.2009 and again they
were kept inside the Malkhana after one day
and were handed over to PW-13 on
24.05.2009 the time which the prosecution
got, definitely must have enabled the
prosecution to tamper with the firearms- A
doubt is created when the chick is seenChick is transcribed only on one page and if
one looks at the hand-writing then it appears
that efforts had been made to make the chick
FIR fit into one single page-Result- order
passed by the T.C is quashed .

Appeal allowed. (E-15)

List of Cases cited:
1. (2023) 2 SCC 352 : Manoj & ors.. Vs St. of
U.P.

2. (2003) 2 SCC 353 : Manoj & Ors. Vs St. of
Madhya Pradesh,

3. (2016) 16 SCC 418 : Harbeer Singh Vs
Sheeshpal & ors.

4. Jarnail Singh & ors. Vs St. of Pun. (2009) 9
SCC 719

5. 1976 Criminal L.J. 1568 : Bahal Singh Vs St.
of Har.

6. AIR 2023 SC 3245 : Pradeep Vs St. of Har.

7. St. of M.P. Vs Ramesh & anr. 2011 Cri.L.J.
2297

8. K. Venkateshwarlu Vs St. of Andhra Pradesh :
2012 Cri.L.J. 4388

9. Radhey Shyam & ors. Vs St. of Raj. : (2023)
6 SCC 151

(Delivered by Hon'ble Vinod Diwakar, J.)

1. Criminal Appeal No.2558 of 2014
has been filed along with Criminal Appeal
Nos.2559 of 2014, 2582 of 2014, 2639 of
2014 and 2640 of 2014 challenging the
judgment and order dated 26.6.2014 passed
by the Court of Additional District &
Sessions Judge, Court No.5, Kanpur Nagar.

2. On 5.3.2014 at about 9.00 pm, it has
been alleged in the FIR which itself was
lodged on 5.3.2014 at 23.00 pm (11.00 pm)
at police station Govind Nagar, District
Kanpur Nagar, that in Flat No.HIG 304
Ratan Lal Nagar Rudra Vatika, Kanpur
Nagar the first informant along with his real
brother's wife Neeta Singh, his maternal
brother (mamera bhai) Tilak Singh along
with Nishi, Nidhi, Abhay, Tushar, the
children of his real brother was present. At
around 9.00 pm the call bell rang and in
5 All. Sushil Kumar Dwivedi @ Sonu Dwivedi Vs. State of U.P.
97
response thereto Neeta, the wife of his
brother, opened the door. Upon opening the
door, Sonu Saxena, who lived in a
neighbouring flat, enquired as to where Puti
(husband of Neeta) was and to this question
Neeta had replied that he had gone to
Lucknow. Along with Sonu Saxena, Sonu
Dwivedi had also come and very abusingly
he said that she would not tell where Puti
was unless they made her naked and was
taken around. When the first informant and
his cousin Tilak heard about this statement
being made by Sonu Dwivedi, then the first
informant along with his nephews and
nieces came to the door to inquire as to who
was being disrespectful to his brother's wife.
Upon reaching there, the first informant has
stated, in the FIR, that he along with others
saw that Sonu Saxena @ Anesh Saxena,
Guddu Dwivedi @ Santosh Kumar Dwivedi
had revolvers in their hands while Sonu
Dwivedi, Anil Shukla and Tanu Shukla had
country made pistols in their hands. Upon
reaching the door, when Tilak the Mama's
son of the first informant told Sonu that he
may not be disrespectful to Neeta Singh then
Guddu Dwivedi said that Tilak be also
picked up from the house and taken away.
While this was happening Tanu Shukla @
Shravan Kumar Shukla and Anil Shukla put
their country made pistols on the temples of
the foreheads of Neeta Singh and Tilak
Singh and took them downstairs and
throughout they kept asking as to where Puti
was and said that if they did not reveal where
Puti was, they would kill them with their
guns. While this was happening, the first
informant and the young nephews and
nieces shouted for help. However, Sonu
Saxena and Guddu Dwivedi who were
having revolvers in their hands shot at Neeta
Singh and Tilak Singh indiscriminately and
thereafter they all got into their Santro Car
which was parked outside and went away. It
has been stated in the FIR that the whole
incident had occurred in a crowded area and
that after the incident had occurred the
whole area was gripped with fear and
everybody of the area closed their doors and
windows. He has categorically stated in the
FIR that the incident occurred due to the fact
that there was some transaction of money
and old enmity. It has further been stated
that after the incident had occurred, the local
police had taken the injured to the Hallet
Hospital where Neeta Singh was declared
dead and Tilak Singh was directed for being
further treated to a better hospital. Through
the FIR, the first informant had prayed that
the FIR be lodged and action be taken.
Specifically the first informant had stated
that other than Sonu Saxena, all the other
three accused persons were residents of
Nauraiya Kheda, Police Station Govindpur.

3. Upon the FIR being lodged, the
police got into action and the investigation
thereafter commenced. On 10.3.2009, the
Sub-Inspector B.P. Mishra along with
Constable Ashutosh Mishra and Vinod
Kumar who were in their Jeep along with the
driver J.P. Yadav while they were searching
for the accused of the incident which had
occurred on 5.3.2009 and of which FIR was
lodged on the same date and was registered
as Case Crime No.127 of 2009 under
sections 147, 148, 149, 307, 308, 504 and
506 IPC and section 7 of Criminal Law
Amendment Act, they reached the Dada
Nagar factory area crossing and when they
reached the Factory No.H-10, they spotted
someone who panicked on seeing the police
jeep. Before being spotted, he was hiding
behind the Factory No.H-11. Upon being
suspicious the Sub-Inspector B.P. Mishra
along with the Constables and the Driver
who were accompanying him at 6.30 in the
morning caught hold of that person. When
the name of that person was asked, he
informed that he was Sonu Saxena @ Anesh
98 INDIAN LAW REPORTS ALLAHABAD SERIES
Saxena, resident of 405, Flat Rudra Vatika
Apartment, area 304 Ratan Lal Nagar. Upon
further searching him, it was found that he
had a licensed revolver No.NPG-21798 and
that it was a .32 bore revolver. Along with
the revolver, four live cartridges of .32 bore
were also recovered from him. After the
recovery of the firearm along with bullets, a
case was registered as Case Crime No.134
of 2009 under sections 25/27-A of the Arms
Act read with section 7 of the Criminal Law
Amendment Act. The apprehended person
Sonu Saxena @ Anesh Saxena upon being
questioned, informed that on 5.3.2009 he
had, with his licensed revolver, fired at
Neeta Singh and Tilak Singh. Thereafter
Sonu Singh was arrested.

4. In a similar fashion on 13.3.2009
at around 2.00 am in the morning Santosh
Kumar Dwivedi, Anil Shukla, Shravan
Kumar Shukla @ Tanu Shukla and Sushil
Kumar Dwivedi @ Sonu Dwivedi were
apprehended. On 12.3.2009 the SubInspector
B.P.
Mishra
had
got
an
information from a Mukhbir Khas that four
named accused in the murder case of Puti
Singh's wife and Tilak Singh were hiding in
the factory area and upon getting this
information, the Sub-Inspector B.P. Mishra
had reached the area and had apprehended
the four persons and from Santosh Kumar
Dwivedi a .32 bore licensed revolver
numbered as FG-33215 along with four live
cartridges of .32 bore were recovered. The
second person namely Anil Shukla was also
arrested and from his possession a country
made revolver was recovered. The third
person Shravan Kumar Shukla @ Tanu
Shukla was also arrested with a country
made pistol of .315 bore. The fourth person
arrested was Sushil Kumar Dwivedi @ Sonu
Dwivedi and from his possession also a .315
bore country made pistol was recovered.
Against them along with the earlier case
crime being Case Crime No.127 of 2009,
other cases were added. Case Crime No.
No.137 of 2009 under section 25/27 of the
Arms Act was imposed against Santosh
Kumar Dwivedi; Case Crime No.138 of
2009 under section 25/27 of the Arms Act
was imposed against Anil Shukla; Case
Crime No.139 of 2009 under section 25/27
of the Arms Act was imposed against
Shravan Kumar Shukla @ Tanu Shukla and
Case Crime No.140 of 2009 under section
25/27A of the Arms Act was imposed
against Sushil Kumar Dwivedi @ Sonu
Dwivedi in police station Govind Nagar,
District Kanpur Nagar.

5. Here it may be noted that since
the initial FIR as was lodged by the first
informant Virendra Singh, was lost, the
photocopy was kept on the record of the
case.

6. The recovery memos with regard
to the revolvers and the bullets were also
prepared and were exhibited as Exhibit
Nos.Ka-14, Ka-15, Ka-16, Ka-17, K-18 and
Ka-19 during the sessions trial.

7. Even before the FIR was lodged
on 5.3.2009, it is the case of the prosecution
that the Sub-Inspector Akhilesh Kumar
Shukla (PW-11) who was posted at Chowki
Ratan Lal Nagar, Police Station Govind
Nagar, had received information of the
incident on his mobile phone and upon
getting the information, he had rushed along
with two accompanying constables and a
driver of the jeep to Rudra Vatika Apartment
where the Sub-Inspector Akhilesh Kumar
Shukla found that the people who had
assembles at the spot were running away and
that on the spot Shiv Tilak Singh was lying
in an injured state and was gasping for
breath and Neeta Singh was lying injured in
a very quiet state. He picked up both the
5 All. Sushil Kumar Dwivedi @ Sonu Dwivedi Vs. State of U.P.
99
injured persons in his jeep and took them to
the LLR Hospital and upon reaching the
hospital, Neeta Singh was declared dead
while
Shiv
Tilak
Singh
was
given
medication. He has in his statement, before
the Court, stated that because Shiv Tilak
Singh required better treatment, he was
taken to the Regency Hospital where he
died. The PW-11 has stated that thereafter
SHO Dinesh Tripathi (PW-8) had taken over
the investigation and he had directed him to
get the panchayatnama of the two deadbodies done. On the next day i.e. on
6.3.2009, the panchayatnama of the two
bodies was done in the presence of five
witnesses in the presence of Akhilesh
Kumar Shukla, the Sub-Inspector who had
taken the body from the place of incident to
the hospital. Thereafter post mortem had
followed and from the body of Neeta Singh,
three bullets were recovered and from the
body of Shiv Tilak Singh, one bullet was
recovered. The recovery memo of the five
empty cartridges, found at the place of
incident, was prepared. So also the recovery
memo of the bullets recovered from the
body of the deceased was also prepared. The
revolvers, the country made pistols, the live
bullets recovered along with them, the
empty cartridges and the bullets recovered
from the bodies were all kept with the police
after preparing proper recovery memo and
they were also kept in the Malkhana of the
police.

8. After around two days i.e. on
7.3.2009, the Sub-Inspector of Police
Station Govind Nagar, Kanpur Nagar sent
Kumari Nidhi, the daughter of Narendra
Singh Chandel @ Puti and the deceased
Neeta Singh for the examination of her
injury. The doctor's opinion about the injury
was that one injury could be caused by a
firearm and the other injury by a hard object.
It was stated in the injury report that both the
injuries were simple and were two days old.
The
investigation
culminated
in
the
submission of a charge sheet before the
Court and the Court on 8.1.2010, by five
different charge sheets, charge-sheeted the
five accused under section 25/27 of the
Arms Act. The five accused upon reading
and understanding the charges, refused of
having committed the crime and prayed for
trial. Similarly, on 15.9.2010, the five
accused were also charged by the Court of
Additional Sessions Judge, Court No.3
under section 302 read with section 149 and
under section 307 read with section 149 IPC.
Here also, the accused denied the charges
and prayed for trial.

9. Before the trial Court as many as
14 prosecution witnesses were examined
and from the side of the defence, 3 defence
witnesses were examined.

10. PW-1 Head Constable Suraj
Singh has proven the FIR, the photocopy of
which was available on record. He has stated
that the Special Report (SR) of the case was
sent on 6.3.2009 at 7.50 am through
Constable Raj Bahadur. He has also proven
the chik FIR. He has denied the suggestion
that the FIR was actually written on
6.3.2009 and not on 5.3.2009.

11. PW-2 is Virendra Singh who is
the first informant in the case. He has
categorically stated that he personally knew
Anesh Saxena @ Sonu Saxena, Sushil
Dwivedi
@
Sonu
Dwivedi;
Santosh
Dwivedi @ Guddu Dwivedi; Anil Shukla,
Shravan Kumar Shukla @ Tanu Shukla and
he had also recognized them in the Court. He
had very categorically stated that apart from
Anesh Saxena, the other four accused were
living in the village where the first informant
was living. With regard to Narendra Kumar
@ Puti, he has stated that he was his younger
100 INDIAN LAW REPORTS ALLAHABAD SERIES
brother and was staying in Flat No.402 HIG
304 in Rudra Vatika Apartment with his
family and the accused Anesh Saxena was
also living in the same apartment in Flat
No.405 along with his family. He has stated
that before the incident, his brother Puti had
lent Rs.2,10,000/- to Anesh Saxena. On the
date of incident i.e. on 5.3.2009 at around
9.00 pm he was in the same house where
Narendra Kumar @ Puti along with his wife
Neeta Singh and their children Abhay,
Tushar, Nidhi and Nishi was living. On the
date of incident his cousin (mamera bhai)
Shiv Tilak was also present. When the call
bell rang, Neeta Singh had opened the door.
Anesh Saxena had inquired as to where Puti
was and to that Neeta Singh had replied that
he had gone to Lucknow. The other four
accused, who were present in the Court,
were also there with Anesh. Sonu Dwivedi
had said that she would not tell about the
whereabouts of Puti and, therefore, she be
taken out naked. Upon hearing this, the first
informant and his nephews and cousin
reached the door. He saw that Sonu Saxena
and Guddu Dwivedi had revolvers in their
hands and the others had country made
pistols. Shiv Tilak reprimanded the five
accused as to why they were misbehaving
with his cousin's wife (bhabhi). Upon this
Guddu Dwivedi asked the others to catch
hold of Shiv Tilak also. PW-2 has then
stated that Tanu Shukla and Anil Shukla
caught hold of Neeta Singh and Shiv Tilak
and had took them downstairs throughout
flaunting their country made pistols. The
first informant, his brother and nephews
cried for help. The accused had taken Neeta
Singh and Shiv Tilak to the portico of the
building. The accused were throughout,
while they were taking the two i.e. Neeta
Singh and Shiv Tilak, kept saying that they
may tell as to where Puti was otherwise they
would kill them. When Neeta Singh had
nothing else to tell other than that Puti had
gone to Lucknow, the accused did not
believe this and with their firearms shot at
Neeta Singh and Shiv Tilak and thereafter
went away on their Santro Car. He has stated
that a lot many people had seen the incident
specially Amar Singh and Preetam Singh.
After the actual firing had happened, the
police arrived at the spot and they took
Neeta Singh and Shiv Tilak to Hallet
Hospital where Neeta Singh was declared
dead but Shiv Tilak was given the treatment.
There itself the PW-2 had written the report
and had also got it photocopied. Thereafter
the FIR was lodged.

12. In the cross-examination, the
first informant had stated that he was 42
years of age and had a Medical Store in
Nauraiya Kheda. The Medical Store was
functional since 1993 and that it was situated
in a small place. It opened at 9.00 am and
closed at 10.00 pm and that it was half a
kilometer away from his house. He has
categorically stated in his cross-examination
that he had six more brothers namely
Jaswant Singh, Pratap Singh, Rajendra
Singh, Babu Singh, Shyam Singh and
Narendra Singh. Shyam Singh was an
Advocate; Jawant Singh was working in ICI
Duncon Factory; Pratap Singh was working
in Animal Husbandry; Rajendra Singh had a
factory and Babu Singh also had a factory.
Narendra Singh also had a factory and was
manufacturing plastic. PW-2 has stated that
his mobile number was 9451140475 and
that all the mobile numbers were fed in his
mobile directory. He has stated that the
mobile number of Puti at the time of incident
was different but at the time of his giving the
testimony it was 9670991199. With regard
to the fact that he knew Amar Singh and
Preetam Singh, he had consistently stated
that he had known them for a fairly long
time and their houses were also near his
house. Upon being asked that why he had
5 All. Sushil Kumar Dwivedi @ Sonu Dwivedi Vs. State of U.P.
101
gone to the house of Puti Singh on the date
of incident, he had stated that his Jija's
daughter was getting married and since Puti
was out of station, he had come to the house
of Puti to take Neeta and her children to the
marriage. He had reached the house at
around quarter to nine. Since, in the FIR, he
had not stated about the fact that he along
with Neeta and children had to go to the
marriage, he had stated that he was stating
the same for the first time in the Court. he
had gone to the house of Neeta on his bike
and thereafter had to take them all to the
marriage in the Santro Car of Narendra. He
had stated that he had owned a revolver and
it was a lincenced one.

13. He has also stated in his crossexamination that at the time when the
incident had occurred, his nephew Tushar
was with him behind a particular pillar. He
has also stated that in the night of the
incident at 01:30 am i.e. on 06.03.2009, he
had seen Puti Singh in the hospital. On the
date of the incident Putti Singh was not in
Kanpur and so was Shyam Singh, another
brother, not in Kanpur. The other brothers
were in Kanpur. Since on the date of
incident the PW-2 had left his mobile at his
own house, he was not in possession of any
mobile phone. When the PW-2 had gone to
get the place of incident inspected, the
children had gone to the house of Babu
Singh, a brother of the first informant. Upon
a question being asked as to whether he had
seen any bullet hitting Nidhi, he replied that
he had never seen any bullet hitting her. In
the
cross-examination,
he
had
very
categorically stated that he had not stated the
fact during investigation that there was a
marriage in the family for which he had
reached the house of Narendra Singh. He
had stated that this fact was also not told by
him in the statement recorded under Section
161 Cr.P.C. No invitation card etc. of the
marriage was placed on record. The
evidence of PW-2 had commenced on
16.12.2010 and on 25.10.2011 for the first
time without producing any invitation card
etc. he only mentioned that on the date of
incident he alongwith Putti's wife was to go
to the marriage of the daughter of one Munni
Singh who was the daughter of his Fufa.
However, he states that the other brothers of
his had not attended the marriage.

14. PW-3 is the daughter of
Narendra
Singh
Chandel
and
Neeta
(deceased). When she gave her statement,
she was 13 years of age and the Court had
tested whether she could give the statement
and whether she knew the importance of
taking oath. The Court after being convinced
that PW-3 had the capacity of understanding
what she said and she was conscious of the
importance of taking oath, she was
permitted to give her statement-in-chief. She
had reiterated what had been stated by the
first informant. She had stated in her crossexamination that she was not aware if any
bullet had hit her. She only came to know
about the fact that a bullet had hit her when
the medical was done. She had never stated
that she had also been injured in the event.
She has stated in her cross-examination that
her elder sister was Rishi and had been
studying in Doon International School and
that all the four brothers and sisters were
studying in that school for the past 4-5 years.
However, in her cross-examination she has
again stated that till the standard 5th, she had
studied at Nauraiya Kheda and at the
moment she had given the statement, she
was studying in class six. However, she has
stated that before she was studying in class
VI, she was studying in Kedar Singh Inter
College. A lot of other things had been
stated in her cross-examination but only the
the relevant portion of her statement has
been reproduced in this paragraph.
102 INDIAN LAW REPORTS ALLAHABAD SERIES
15. PW-4 was the doctor who had
examined the injuries of Nidhi, daughter of
Narendra Singh and he had given his
statement with regard to the two injuries
which were found on the body of Nidhi. He
had stated that the injuries were not serious
ones and that they were not in any manner
infected despite the fact that no medicine
was applied on them.

16. PW-5 was the doctor who had
conducted the postmortem on Shiv Tilak
and he has proven the postmortem report.

17. PW-6 Sri Dileep Singh Sachan
who was the Pharmacist of the postmortem
house and has proven the postmortem report
of the deceased Neeta W/o Narendra Singh.

18. PW-7 who was the Head
Constable Promod Kumar Yadav and he has
proven the First Information Reports under
the Arms Act.

19. PW-8 Inspector Dinesh Tripathi
who had, upon information being received,
reached the spot where the shooting had
occurred and he had taken the two victims
Neeta Singh and Shiv Tilak to the hospital.
He has stated that on the spot he had not met
Narendra Singh and his brother Babu Singh
but had met the PW-2 Virendra Singh.

20. PW-9 was the Sub-Inspector
V.P. Mishra who was the first Investigating
Officer. He has narrated throughout as to
how the incident had occurred and how he
had taken the statements of various persons.

21. PW-10 Ashutosh Mishra,
Constable had proven the arrest memo of the
accused persons and had also proven the
recovery memo of the firearms which had
been recovered.

22. PW-11 the Sub-Inspector
Akhilesh Kumar Shukla was the person who
had reached on the spot on the date of the
incident upon getting an information on his
mobile. He has also stated the story of the
prosecution as was narrated by the other
prosecution witnesses. He had stated that he
did not go back to the place of incident as he
was suspended from service on that very
date.

23. PW-12 the Sub-Inspector
Santosh Kumar Awasthi was the formal
witness who had proven the recovery
memos of the various fire arms.

24. PW-13 is the prosecution
witness Ram Sajivan who had carried the
firearms, the empty cartridges and the
bullets which were recovered from the spot
to the forensic laboratory at Agra from
Kanpur. He has stated that he had reached
Agra on 24.05.2009. He had stated that the
Exhibits Ka-33 and Ka-34 were given to him
on that very date. He has further stated that
for the first time the fire arm, empty
cartridges and the bullets were taken out
from the Malkhana on 21.05.2009 and on
that date they were again deposited in the
Malkhana and thereafter, on 24.05.2009 the
fire arm, empty cartridges and the bullets in
a sealed cover were given to him. On
21.05.2009 the date which is there on
Exhibit Ka-33 was the date when the articles
were taken out from the Malkhana and
24.05.2009 (Exhibit 34) was the date when
he had left station. In between 21.05.2009
and 24.05.2009, taking out of the fire arms
and the bullets etc. and of them being again
kept in the Malkhana, there was no record.
There was no entry in any register.

25. PW-14 was the Sub-Inspector
Raghuvar Dayal who had proven the
5 All. Sushil Kumar Dwivedi @ Sonu Dwivedi Vs. State of U.P.
103
recoveries of the various fire arms and was
a formal witness.

26. Thereafter the statements of the
five accused were recorded under Section
313 Cr.P.C. and they had denied the
commission of the crime.

27. DW-1 was Dr. Shailendra
Gupta who had been produced to show that
Sonu Saxena on the date of occurrence was
not in Kanpur but was in Muzaffar Nagar.

28. DW-2 is one Pramod Kumar
Srivastava who had told that Anesh @ Sonu
Saxena was the husband of her niece Shalini
and that he was the uncle (Mama) of Shalini.
He had also stated that on 25/26.02.2009
Sonu Saxena had gone to Muzaffar Nagar to
get a chek up done of Shalini but in fact he
had fallen ill over there and was admitted in
a hospital at Muzaffar Nagar. DW-2 had
also stated that Anil Shukla also was, on
05.03.2009, with him.

29. After the completion of trial, the
accused persons Anesh Saxena @ Sonu
Saxena and Santosh Kumar Dwivedi @
Guddu Dwivedi were convicted under
Section 302 of IPC and were sentenced for
life imprisonment with a fine of Rs. 10,000/-
. Whereas, Shushil Kumar Dwivedi @ Sonu
Dwivedi, Shravan Kumar Shukla @ Tanu
Shukla and Anil Kumar Shukla were
convicted under Section 302 read with
section 149 of IPC and they were sentenced
for life imprisonment with a fine of Rs.
10,000/- each. All the accused were also,
under Section 147 of IPC, sentenced for one
year of imprisonment and under section 148
of IPC three years sentence was awarded.
Again under Section 506 of IPC they were
sentenced for one year. In the event, the
accused convicted persons did not deposit
the fine, then they had to further undergo six
months' additional imprisonment. The
punishments were to run concurrently. The
accused persons were acquitted under
Section 307 read with sections 149 and 506
of IPC and under Section 7 of the Criminal
Law Amendment Act. They were also
acquitted under Section 25/27 of the Arms
Act.

30. Learned counsel for the
appellants Sri V.P. Srivastava, Senior
Advocate assisted by Sri P.K. Singh and Sri
Vijay Singh Sengar, Advocates argued as
under :-

(i) The FIR was an ante-dated FIR.
He has submitted that even though in the
FIR which is a photocopy of the original, it
was written that the incident had happened
on 5.3.2009 at around 9.00 pm, the Chik
which was prepared shows that the FIR was
actually lodged at 23.00 hours i.e. at 11.00
pm. Learned counsel for the appellants
further states that if the Panchayatnama is
seen of both the deceased i.e. Neeta Singh
and Shiv Tilak then it becomes clear that the
time of the information received by
Akhilesh Kumar Srivastava (PW-11) was
9.00 pm. Learned counsel for the appellants
took the Court through the original record
and drew the attention of the Court to the
date on the Chik FIR which had an
overwriting over the digit 5. There was
overwriting on page one and he submits that
there was overwriting also in page 2 at the
end of the FIR. He submits that in fact at the
time of the lodging of the FIR, the names of
the accused persons were not known and a
plain paper on which the GD was to be
written was left unused in the record of the
Police which was filled-up later on. He
submits that this was the reason why the
chick was written on both sides of only one
page and in fact the continuation of it was
written in the left hand margin of the second
104 INDIAN LAW REPORTS ALLAHABAD SERIES
page. After the informant side had made up
its mind as to who had to be made the
accused, the FIR was got registered.
Learned counsel for the appellants states
that the original Tahreer was made to
disappear and a photocopy of it was placed
on the record. He submits that in the crossexamination,
the
chick
writer
PW-1
Constable
Sooraj
Singh
has
very
conveniently only stated that he had
forgotten to sign over the overwritings.
Learned counsel for the appellants further
states that when the FIR was lodged at 23.00
hours, how in the Panchayatnama it had
been said that the PW-11 i.e. Akhilesh
Kumar Shukla had got the information at
09:00 pm.

(ii) Learned counsel for the
appellants next submitted that the presence
of PW-2 Virendra Singh at the place of
incident was absolutely doubtful. He
submits that in the FIR the PW-2 who has
lodged the FIR has stated that he was there
at the spot and he had also overheard what
conversation the assailants had with the
deceased-Neeta Singh but nowhere in the
FIR had he stated that why he was present in
the flat in question. Learned counsel for the
appellants, therefore, suggests that in fact
the PW-2 was not there on the spot and that
only to have an eye-witness, as an
afterthought, when the FIR was being got
lodged by him, he was made to give an eyewitness account. To bolster this argument of
his, learned counsel for the appellants states
that in the FIR and in the statement under
Section 161 CrPC, the PW-2, the first
informant, had never stated that he had
reached the flat of his brother Putti to take
Putti's wife i.e. Neeta (deceased) and the
children to some marriage which they had to
attend. Learned counsel for the appellants
states that for the first time on 07.02.2011
while being cross-examined by the counsel
of accused Santosh and Sushil Dwivedi, he
had stated that on the date of the incident he
had gone to Putti Singh's house as there was
a marriage of the daughter of his Jija and
since Putti Singh was out of station i.e. in
Lucknow, he had gone to fetch Putti Singh's
wife Neeta Singh and the children. He had
stated that he had reached there at around
08:45 pm and he categorically states that for
the first time he was stating this fact in the
Court. The relevant portion of the statement
is being reproduced here as under :-

"घटना वाले दिन पूती द िंह के यहााँ जाने का कारण
था। मेरे जीजा जी की बेटी की शािी थी और पूती द िंह बाहर
(लखनऊ) थे इ दलए दववाह मारोह में दममदलत होने के दलए बहू
और बच्चो को लाने के दलए गया था। मैं पूती द िंह के घर लगभग
पौने नौ के आ पा पह ाँचा था। उनको पहले पता था दक ाथ जाना
है। मेरे पह ाँचने के लगभग आधे पौपन घण्टे बाि मारोह में जाना था।
यह शािी में जाने वाली बात आज न्यायालय में ववप्रथम बता रहा हूाँ।
मैं अपनी बाइक े गया था उनके पा ेन्रो कार नीचे खडी थी उ े
जाना था। मैनें अपनी बाइक नीचे पोदटवको में खडी की थी।"
 He had also stated that he had
gone on his motorcycle and not on his car as
Putti Singh's car was there which could be
taken to go to the marriage. Learned counsel
for the appellant has further stated that
during trial on 25.10.2011, after a long lapse
of time, PW-2 the first informant had stated
that he alongwith the family of Putti Singh
was to go to the marriage of the daughter of
his Behnoi Sri Sultan Singh Chauhan who
was his Fufa's daughter's husband. He had
stated that all the family members were to go
but he has also very categorically stated that
in the marriage neither Putti Singh nor
Shyam Singh Chandel had gone. The
extremely
important
information
with
regard to the name of the father of the girl
who was to get married was made known to
the Court on 25.10.2011 whereas the
evidence of PW-2 had begun on 16.12.2010.
Learned counsel, therefore, states that the
story was a cooked up story. Learned
counsel for the appellants further states that
if it was so important for everybody to
5 All. Sushil Kumar Dwivedi @ Sonu Dwivedi Vs. State of U.P.
105
attend the marriage then Putti Singh and
Shyam Singh also ought to have been there
in Kanpur to attend the marriage. Since the
learned counsel for the appellants relied
upon the statement which was given on
25.10.2011, the same is being reproduced
here as under :-

"मेरे बदहनोई श्री ल्तान द िंह चौहान मेरे गााँव में रहते
है। यह मेरे गे बदहनोई नहीं बदल्क फुफेरे बदहनोई है। गे फूफा? का
नाम श्री लल्लन द िंह है। लल्लन द िंह की दवदटया और ुल्तान द िंह
की पत्नी का नाम श्रीमती मुन्नी है। इन्ही श्रीमती मुन्नी द िंह की गी
बदटया की शािी में घटनावाले दिन मेरे पररवार के भी लोग पररवार
आमिंदित थे। और इ भान्जी की शािी में न पूती द िंह आये और न
श्याम द िंह चन्िेल आये थे।"

Upon being asked as to whether
any invitation card of the marriage was
there, PW-2 had stated that the marriage
card was not there on record at all. The
statement with regard to the marriage card
was given by the PW-2 on 22.10.2011.
Learned counsel for the appellants further to
prove this fact, has relied upon the statement
which the PW-2 had given on 22.10.2011.
The relevant portion with regard to the
invitation card is being reproduced here as
under :-

"यह कहना ही है दक 'मेरे घर में आज शािी है"
वाली बात न एफ०आई०आर० में है और न बयान 161
 ी०आर०पी० ी० में दलखवायी थी। यह कहना गलत है दक अिालत
में पहली बार द खाने पर झूठा ब्यान दिया दक घर में शािी थी। शािी
के दनमिण पि या अन्य कोई िस्तावेज प्रमाण पिावली पर उपलब्ध
नहीं है। यह कहना गलत है दक मैं दबल्कुल झूठ बोल रहा हूाँ दक उ
दिन मेरे घर में शािी थी। यह कहना भी गलत है दक शािी के द लद ले
में वहााँ गये ही नहीं क्योदक वहााँ कोई शािी थी ही नहीं।"

Learned
counsel
for
the
appellants, to show that the PW-2 was a
chance witness, has further stated that the
family of the first informant had its ancestral
home in village Nauraiya Kheda and he
states that in his statement he had also stated
that Sonu Dwivedi, Anil Shukla and Tanu
Shukla also belonged to the same village
and, therefore, he stated that they were very
well known to the PW-2 and it was just
possible that he had some enmity with them
and, therefore, the names were introduced in
the FIR. Learned counsel submitted that
only to give credence to the story about the
fact that there was some money transaction,
the accused Sonu Saxena was introduced in
the FIR as he lived across the house of his
younger brother Putti Singh. Learned
counsel for the appellants further states that
the PW-2 had stated that he had a mobile but
he had left it at his ancestral house. He had
stated that he had a car also but that car was
also not brought and he had come on a
motorcycle as he was aware that Putti Singh
had a car and in that car he was to take the
family of Putti Singh. Upon a question being
put that Putti Singh had talked to Anil
Shukla (an accused) on 05.03.2009 at
around 09:35 pm and also at around 09:56
pm, the PW-2 had denied that he had known
about the phone call from Putti Singh to Anil
Shukla. Upon being confronted with regard
to the call details of the phone number of
Putti Singh being 9918560533 by which he
had dialled the phone number of Anil Shukla
being 9335632772, he clearly states that he
was not aware of the fact that Putti Singh
had called Anil Shukla. Learned counsel for
the appellants relying upon a judgment of
the Supreme Court reported in (2023) 2
SCC 352 : Manoj and Ors. vs. State of
U.P. has stated that a chance witness is one
who appears on the scene suddenly when
something is happening and then disappears
after noticing the occurrence about which he
was required to come later on and give his
evidence.

Learned counsel for the appellants
states that as per the law laid down by the
Supreme Court a testimony of a chance
witness should be utilised by the prosecution
very cautiously. He submits that the
evidence of the chance witness requires a
very cautious and strict scrutiny and if there
was any slackness in the explanation about
106 INDIAN LAW REPORTS ALLAHABAD SERIES
the presence of the chance witness at the
place of incident then his deposition ought
to be rejected. Since learned counsel for the
appellants relied heavily on paragraphs 102,
103 and 104 of the judgment reported in
(2003) 2 SCC 353 : Manoj & Ors. vs. State
of Madhya Pradesh, the same are being
reproduced here as under :-

"102. A chance witness is one,
who appears on the scene suddenly.