# Umesh Kumar Mishra v. The State

- **Citation:** (2021) 10 ILRA 78
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-10-23
- **Case number:** Criminal Appeal No. 276 of 2011
- **Bench:** Rajeev Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/umesh-kumar-mishra-v-the-state-46416
- **Pages:** 13

## Headnote

Law
-
appeal
against
conviction - The Indian Penal Code, 1860 -
Sections 394, 411, 302/34 and 307/34 -
The Code of criminal procedure, 1973 -
Section 161,313 - interested witness -
considering the critical condition of the
injured persons, delay in lodging the F.I.R.
is not fatal to the case of prosecution -
testimony of the injured witness would be
on higher pedestal and it could not be
doubted
except
the
extreme
contradictions - if the accused persons is
well known by sight, then it would be
waste
of
time
to
put
him
up
for
identification and trial will not be vitiated
as the testimony of the injured witness
cannot be discredited.(Para - 12,13)

Appellants followed P.W.1(injured eye witness)
and his friend - at an isolated place took
advantage - fuel in their motorcycle finished and
asked for some petrol - deceased/friend of
P.W.1 came down - started taking out petrol
from his motorcycle - appellants shot fire on
the P.W.1 and thereafter, looted the ornaments
- P.W.1 and his friend received grievous injuries
- friend of P.W.1 died - conviction - hence
appeal.

HELD:-Motive
and
the
conduct
of
the
appellants
reveals
that
they
were
in
premeditated mind with the common intention
to kill the injured and loot the ornaments.
Appellants failed to establish their case, and
there is no illegality in the judgment and order
passed by Additional Sessions Judge.(Para -
13).

Criminal Appeals dismissed. (E-7)

List of Cases cited:-

## Text

_Characters 0–39,303 of 45,072. This is a partial read: ask again with offset=39303 for what follows._

78 INDIAN LAW REPORTS ALLAHABAD SERIES
innocence as a human right and has gone
on to say that: (SCC pp. 708 & 709, paras
30-31 & 33)

"30. It is now well settled that
benefit of doubt belonged to the accused.
It is further trite that suspicion, however
grave may be, cannot take place of a
proof. It is equally well settled that there is
a long distance between ''may be' and
''must be'.

xxxx

xxxx

xxxx

xxxx

xxxx

xxxx

xxxx

xxxx

xxxx

xxxx

xxxx

xxxx" (emphasized by us)

41. Thus, it can be safely concluded
that the prosecution has projected two
versions of the same incident which are
mutually irreconcilable. Therefore, on the
basis of aforementioned discussions, we are
of the considered view that the prosecution,
in the instant case, has been unable to
answer as to which of the two prosecution
stories is believable. The prosecution has,
thus, failed to prove its case beyond
reasonable doubt. The learned trial court
has failed to consider and appreciate the
material contradictions appearing in the
prosecution case. The learned trial court
has also failed to appreciate and consider
the evidence led by the prosecution and
defence in its right perspective and, thus,
has erred in convicting and sentencing the
appellant, who is entitled to the benefit of
doubt. Therefore, the impugned judgment
and order passed by the learned trial court
is not sustainable in the eyes of law and the
same is liable to be set aside. The accusedappellant is entitled to be acquitted of
charge levelled against him.

42. In view of the aforesaid, the
present criminal appeal is allowed and
consequently impugned judgment and
order dated 22.01.2015 passed by the
learned Additional District & Sessions
Judge, Court No.2, Gonda in Sessions Trial
No.183/2012
arising
out
of
Crime
No.61/2012, under Section 302 of I.P.C.,
Police Station Tarabganj, District Gonda is
hereby set aside.

43. The accused-appellant, Balram is
in jail. Let the accused-appellant, Balram
be released from jail forthwith, if he is not
wanted in any other case.

44. In compliance of provisions of
Section 437A Cr.P.C., it is directed that the
accused-appellant, Balram shall furnish a
personal bond and two sureties each in the
like amount to the satisfaction of the court
concerned within two weeks of his release
from the jail.

45. Before we part with the case, we
express
our
appreciation
for
the
distinguished assistance rendered by Ms.
Ninnie Shrivastava, the learned amicus
curiae in the instant appeal. The learned
amicus curiae shall be paid a sum of
Rs.10,000/-.

46. Let the record of lower court
along with a copy of this order be
transmitted forthwith to the learned trial
court concerned for necessary information
and compliance.
----------
(2021)10ILR A78
APPELLATE JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 23.10.2021

BEFORE

THE HON'BLE RAJEEV SINGH, J

Criminal Appeal No. 276 of 2011
10 All. Umesh Kumar Mishra Vs. The State
79
and
Criminal Appeal No. 583 of 2012

Umesh Kumar Mishra ...Appellant
Versus
The State ...Respondent

Counsel for the Appellant:
Arun Sinha, Anil Kumar, Rajendra Prasad
Mishra, Siddhartha Sinha

Counsel for the Respondent:
G.A.

(A)
Criminal
Law
-
appeal
against
conviction - The Indian Penal Code, 1860 -
Sections 394, 411, 302/34 and 307/34 -
The Code of criminal procedure, 1973 -
Section 161,313 - interested witness -
considering the critical condition of the
injured persons, delay in lodging the F.I.R.
is not fatal to the case of prosecution -
testimony of the injured witness would be
on higher pedestal and it could not be
doubted
except
the
extreme
contradictions - if the accused persons is
well known by sight, then it would be
waste
of
time
to
put
him
up
for
identification and trial will not be vitiated
as the testimony of the injured witness
cannot be discredited.(Para - 12,13)

Appellants followed P.W.1(injured eye witness)
and his friend - at an isolated place took
advantage - fuel in their motorcycle finished and
asked for some petrol - deceased/friend of
P.W.1 came down - started taking out petrol
from his motorcycle - appellants shot fire on
the P.W.1 and thereafter, looted the ornaments
- P.W.1 and his friend received grievous injuries
- friend of P.W.1 died - conviction - hence
appeal.

HELD:-Motive
and
the
conduct
of
the
appellants
reveals
that
they
were
in
premeditated mind with the common intention
to kill the injured and loot the ornaments.
Appellants failed to establish their case, and
there is no illegality in the judgment and order
passed by Additional Sessions Judge.(Para -
13).

Criminal Appeals dismissed. (E-7)

List of Cases cited:-

1. Sonu @ Sunil Vs St. of M.P. , (2020) SCC
OnLine SC 473

2. Mohanlal Gangaram Gehani Vs St. of Mah.,
(1982) 1 SCC 700

3. Dana Yadav @ Dahu & ors. Vs St. of Bihar,
(2002) 7 SCC 295.

4. Rabindra Mahto & anr. Vs St. of Jharkhand ,
(2006) 10 SCC 432

5. Thaman Kumar Vs St. of Union Territory of
Chandigarh, (2003) 6 SCC 380

6. Rakesh & anr. Vs St. of U.P. & anr., (2021)
7 SCC 188

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

1. Both the appeals are being decided
by way of a common order.

2. Both the appeals are filed against
the judgment and order dated 16.12.2010
passed
by
Additional
Sessions
Judge/F.T.C., Court No.9, Pratapgarh in
S.T. No.179 of 2009 (The State vs. Manoj
Kumar Soni @ Manu Verma and others)
arising out of Case Crime No.09 of 2008,
under Sections 394, 411, 302/34 and
307/34 I.P.C., Police Station Hathigawan,
District Pratapgarh, thereby, convicting and
sentencing the appellants under Section
394/34 I.P.C. for 7 years' R.I. and a fine of
Rs.2,000/-, in default of payment of fine, 3
months of further imprisonment; under
Section 411 I.P.C. for 2 years' R.I.; under
Section 307/34 I.P.C. for 7 years's R.I. and
a fine of Rs.3,000/-, in default of payment
of fine, 3 months of further imprisonment;
and
Section
302/34
I.P.C.
for
life
imprisonment and a fine of Rs.5,000/-, in
80 INDIAN LAW REPORTS ALLAHABAD SERIES
default of payment of fine, 6 months of
further imprisonment.

3. In compliance of the order dated
04.08.2021,
on
05.08.2021,
the
accused/appellant Manoj Kumar Soni @
Manu Verma appeared through video
conferencing from Central Jail, Naini,
Prayagraj, who was identified by Shri Kunj
Bihari Singh, Deputy Jailor, Central Jail,
Naini, Prayagraj, who was also present
along with him. On the said date, the
accused/appellant Manoj Kumar Soni @
Manu Verma was asked to engage a
counsel of his own choice or Shri Rajendra
Prasad Mishra, Advocate as Amicus
Curiae,
who
was
appearing
in
the
connected Criminal Appeal No.276 of 2011
for the appellant Umesh Kumar Mishra,
will argue the appeal on his behalf. As the
criminal appeal is expedited by the Hon'ble
Supreme Court, therefore, this Court has no
option except to hear the instant appeal
finally and vide order dated 05.08.2021,
time was also granted to appellant Manoj
Kumar Soni @ Manu Verma for engaging
the counsel of his own choice by the next
date of listing i.e. 11.08.2021, failing
which, Shri Rajendra Prasad Mishra,
Advocate had been appointed as Amicus
Curiae vide order dated 28.07.2021 will
argue the matter on his behalf. On
11.08.2021, Senior Superintendent, Central
Jail, Naini, Prayagraj had reported that the
order dated 05.08.2021 was communicated
to the appellant Manoj Kumar Soni @
Manu Verma, therefore, the appeal was
proceeded.

4. Heard Mr. Rajendra Prasad Mishra,
Advocate as learned Amicus Curiae for the
appellant Manoj Kumar Soni @ Manu
Verma (Criminal Appeal No. 583 of 2012)
and learned counsel for the appellant
Umesh Kumar Mishra (Criminal Appeal
No.276 of 2011), and Mrs. Smiti Sahay,
learned A.G.A. for the State, and perused
the record.

5. As per the prosecution case, on
05.02.2008, Rajesh Kumar and Vikas
Kumar Soni, running a jewelry business,
went to Allahabad in relation to their
business and after completing their work,
they were coming back with the purchased
ornaments of gold and silver on one
motorcycle to Kunda. At about 09:30 p.m.
when they reached Yadav Dhaba near
Allahabad-Unnao road, Village Mahrupur,
then Manoj @ Manu Soni S/o Ravi Soni
R/o
Manzhanpur
(Netanagar),
P.S.
Manzhanpur, District Kaushambi (who was
residing near Main Chauraha Kunda four
years ago) along with one unknown person,
coming on another motorcycle, overtook
their bike and asked them for petrol saying
that petrol in his motorcycle is finished, as
Manoj was known to them, therefore, they
stopped their bike for giving petrol, then
Manoj @ Manu shot Rajesh Kumar and the
other accused shot Vikas Kumar with the
intention to kill them, then both of them fell
down. Thereafter, both the accused persons
looted their ornaments amounting of
Rs.60,000/- and Mobile of Rajesh Kumar,
and fled away. Thereafter, both the injured
were admitted to the hospital. Information
of the aforesaid incident was given in
writing by P.W.2 Rambabu (uncle of P.W.1
Vikas Kumar Soni (injured)) to the police
station on 07.02.2008 and the F.I.R. was
lodged on the same day (07.02.2008) at
17:30 hours as Case Crime No.9 of 2008,
under Section 394 I.P.C., P.S. Hathigawan,
District Pratapgarh against the appellant
Manoj @ Manu Soni (named in the F.I.R.)
and one unknown.

6. After the said incident, both the
injured persons were brought to hospital at
10 All. Umesh Kumar Mishra Vs. The State
81
Kunda, but due to their serious condition,
they were referred to Allahabad and were
admitted
at
Jeevan
Jyoti
Hospital,
Allahabad and during the course of
investigation, Rajesh Kumar Kesharwani
died on 19.02.2008. The appellant Manoj
Kumar Soni @ Manu Verma was arrested
on 12.02.2008 and the appellant Umesh
was arrested on 16.02.2008. On their
pointing out, weapon was recovered and
during the course of investigation, site plan
was prepared by the Investigating Officer
as well as the inquest report of the deceased
Rajesh Kumar Kesharwani was prepared
and thereafter, postmortem of the body was
also conducted. The recovered weapon and
other articles were also sent for forensic
examination to F.S.L.

7. During the course of investigation,
statements of Ram Babu Soni, Ram
Bahadur, Nanke @ Pushpendra Kumar,
Harsihchandra Kesarwani, Shrinath Soni,
Vikas Soni (injured), Vinod Kumar Vaish,
Sanjay Kumar, Shiv Lal Kesharwani,
Gulabchand Kesarwani, Constable Habib
Siddiqui,
Constable
Narsingh
Sharan
Yadav,
Constable
Vinod
Kumar
Kushwaha,
Constable
Vinod
Dubey,
Constable Murli Singh, Constable Ashok
Kumar Shukla, S.I. Shiromani Bhaskar,
S.H.O. Vikas Yadav, P.S. Hathigawan,
Investigating Officer were recorded under
Section
161
Cr.P.C.
and
thereafter,
Investigating Officer prepared charge sheet
against the appellants under Sections 394,
411, 302 I.P.C. and submitted to the court
below and after taking cognizance, the case
was committed to the court of Sessions and
after framing of charges, the prosecution
relied on the oral testimony of 10 witnesses
i.e. P.W.1 Vikas Soni (injured), P.W.2
Rambabu
Soni
(informant),
P.W.3
Harishchandra, P.W.4 Dr. Shivcharan Lal,
P.W.5 Ashok Kumar Shukla, P.W.6 Dr.
C.K. Gupta (Emergency Medical Officer of
Jeevan Jyoti Hospital, Allahabad), P.W.7
S.I. Ram Ashrey Yadav, P.W.8 S.I.
Shiromani Bhaskar, P.W.9 S.I. Shri Nivas
Yadav, P.W.10 Dr. Raksha Gupta (Vijay
Diagnostic Center, Allahabad).

8. The prosecution also relied on 30
documentary evidences i.e. Ext. Ka- 1
memo of identification of recovery of
articles, Ext. Ka-1A G.D. Entry in relation
to lodging of the F.I.R., Ext. Ka-2
postmortem report of Rajesh Kumar
Kesharwani, Ext. Ka-3 Chick F.I.R., Ext.
Ka-4 G.D. Entry in relation to F.I.R., Exts.
Ka-5 & 6 injury reports of Vikas and
Rajesh Kumar Kesharwani, Ext. Ka-7 death
report of Rajesh Kumar Kesharwani, Ext.
Ka-8 Photo Naash, Ext. Ka-9 Namoona
seal, Ext. Ka-10 Jeevan Jyoti Hospital,
Police form No.13, Ext. Ka-12 report of
P.S. Kotwali, District Allahabad in relation
of letter to C.M.O. for conducting the
postmortem of the body of the deceased,
Ext. Ka-13 arrest of accused and recovered
ornaments and mobile, Ext. Ka-14 site
plan, Ext. Ka-15 recovery memo of taking
of plain and blood stained mud, Ext. Ka-16
recovery memo of taking two mufflers,
Ext. Ka-17 memo of recovery of one blank
cartridge, Ext. Ka-18 arrest memo of
appellant Manoj Kumar Soni, Ext. Ka-19
arrest memo of appellant Umesh Kumar
Soni, Ext. Ka-20 site plan, Ext. Ka-21
memo of recovery of weapon and other
articles on the pointing out of the appellant
Umesh Kumar Mishra, Ext. Ka-22 site plan
in relation to the arrest of the accused, Ext.
Ka-23 ballistic experts report of country
made pistol of two cartridges of 315 bore,
Ext. Ka-24 report of F.S.L. in relation to
blood stained mud, Ext. Ka-25 recovery
memo in relation to mufflers, spectacles
and blood stained mud, Ext. Ka-26 report
of F.S.L. in relation to the blood stained
82 INDIAN LAW REPORTS ALLAHABAD SERIES
mud and ballistic report of country made
pistol and other articles, Ext. Ka-26A C.T.
Scan report of neck and cervical spine plain
of injured Vikas, Ext. Ka-27 CT Scan
report of Brain Plain of Vikas, Ext. Ka-28
CT Scan report of neck and cervical spine
plain of Rajesh Kumar, Ext. Ka-29 CT
Scan report of Brain Plain of Rajesh
Kumar, Ext. Ka-30 charge sheet submitted
against the accused persons, under Sections
394, 411, 302 I.P.C.

9. After the prosecution evidence, the
statement of the appellants under Section
313 Cr.P.C. were recorded and appellants
denied the prosecution case and submitted
their statements.

10. After hearing the arguments of
parties,
the
judgment
and
order
of
conviction dated 16.12.2020 was passed by
the trial court and the same is under
challenge before this Court by way of the
present appeals.

11. Learned counsel for the appellants
has submitted that the judgment of trial
court is not sustainable on the grounds
that:-

A. Only one eye witness namely
Vikas Soni (P.W.1) was produced by the
prosecution, who is the interested witness,
therefore, his statement is not reliable.

B. It is undisputed that the
incident was taken place on 05.02.2008 at
about 09:30 p.m., but the F.I.R. in question
was lodged on 07.02.2008 at 17:30 hours
by uncle of Vikas Soni (injured), therefore,
prosecution sotry is not reliable.

C. As per the prosecution case,
both the persons namely Vikas Soni and
Rajesh had received injury on their neck,
therefore, it was not possible to speak and
narrate the incident.

D. The identification of the
alleged recovered ornaments was not done
in accordance with law, therefore, the same
is not reliable.

E. As per the prosecution case,
both the appellants shot fire, but only one
weapon was recovered and the recovery of
one weapon shown by the police is also not
reliable.

F. No identification parade of
accused-appellant Umesh Kumar Mishra
was conducted as per the law.

11.1 Learned counsel for the
appellants has further submitted that P.W.-
1 Vikas Soni (injured) has deposed in his
cross-examination that after the said
incident, injured persons were lying on the
place of incident and within 10 minutes, his
father Srinath Soni and his friend Sahjade
reached on the spot and his uncle (Tau)
Rambabu Soni (PW-2) informant do not
reached there, thereafter, both the injured
were brought to the hospital at Kunda and
after treating them, they were sent to
Allahabad, and father of Rajesh namely
Harish Chand P.W.3 was with them when
they were sent to Allahabad. He also stated
in his cross-examination that he narrated
the story to the informant Rambabu Soni
(P.W.2) when he regain the consciousness
after 2-3 days from the date of incident. He
also submitted that as per the prosecution
case deposed by P.W.1 that both the
appellants opened fire with their respective
pistols and caused injury to P.W.1 as well
as to his friend Rajesh Kesharwani, but
recovery of one country made pistol of 315
bore is shown, which is not reliable, but
this fact was not considered by the court
below. He further submitted that as the
appellant Umesh Kumar Mishra was not
known to the P.W.1 Vikas Soni, but no
identification parade was conducted and
during the course of trial in court, P.W.1
identified the appellant Umesh Mishra as
10 All. Umesh Kumar Mishra Vs. The State
83
one of the assailant, therefore, prosecution
story is not reliable and court below
committed
error
in
considering
the
evidences deposed by the witnesses.

11.2. Learned counsel for the
appellants has further submitted that only
P.W.1 Vikas Soni is placed by the
prosecution as an eye witness and no any
other eye witness was placed by the
prosecution before the trial court. As other
witnesses namely P.W.2 Ram Babu Soni
and P.W.3 Harishchandra were examined
as witnesses of the fact, but they were not
an eye witnesses, therefore, the prosecution
story is not reliable and the learned court
below committed error in considering the
fact that no any independent eye witness
was placed by the prosecution, therefore,
the prosecution story is not reliable.

11.3. Learned counsel for the
appellants has further submitted that incident
was taken place on 05.02.2008 at about 09:30
p.m. and the F.I.R. was lodged by P.W.2
Ram Babu Soni (uncle of P.W.1 Vikas Soni)
on 07.02.2008. He further submitted that
P.W.2 deposed before the trial court in his
examination-in-chief that the injured persons
were in serious condition and they were
unconscious, and after gaining consciousness,
P.W.1 Vikas Soni narrated the incident to
him, then the written complaint was given at
the police station concerned and later on, the
F.I.R. in question was lodged, but he failed to
give reply that why the F.I.R. in question was
not lodged on the same day and he also stated
that Vikas Soni and Rajesh were seriously
injured, therefore, they were focusing for
their medical treatment. In his deposition,
P.W.2 has also stated that on the date of
incident at 10:30 p.m., Sahjade had informed
him about the incident that his nephew Vikas
and Rajesh were shot, then he reached on the
spot, but he found that injured were brought
to hospital at Kunda and thereafter, he again
received phone call of Sahjade that due to
serious condition of injured, they were
referred to Allahabad. Thereafter, he reached
at Jeevan Jyoti Hospital, Allahabad on the
same day and he found that Rajesh was in his
senses and he was talking, but Vikas Soni
(P.W.1) was critical and Rajesh informed him
about the incident. He further submitted that
though, P.W.2 was informed by Rajest about
the incident on the same day, even then, the
F.I.R. was not lodged on the same day,
therefore, the prosecution story is not reliable.

11.4. Learned counsel for the
appellants has submitted that as per the
prosecution case, the F.I.R. in question was
lodged by P.W.2 (informant) on the
narration of P.W.1 Vikas Soni after
regaining his consciousness and informed
him
about
the
incident. He
further
submitted that the alleged injury is found
on the neck of P.W.1, therefore, it is not
possible to speak, and Dr. C.K. Gupta
(P.W.6) categorically deposed before the
court below in his cross-examination that
both the injured persons were not in
position to speak. In such circumstances,
there is contradiction that the F.I.R. lodged
by the P.W.2 on the narration of P.W.1
(injured eye witness). The injuries found on
the body of the injured Vikas Soni (P.W.1)
and the deceased Rajesh Kesharwani are as
under :-

Injuries of P.W.1 Vikas Soni
(injured witness)

1. Gunshot wound of entry 2 cm
x 2 cm on back of Rt. side of the neck
below Hairline. Blackening & tattooing
present around the wound.

2. Gunshot wound of exit 3 cm x
2 cm on Rt. side of face. Just anterior to
angle of Mandible, Pieces of fracture
mandible seen through the wound. No
Blackening & tattooing present. Margin
Everted.

Injuries
of
Rajesh
Kumar
Kesarwani (deceased)
84 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Gunshot wound of entry 2 cm
x 2 cm on back of Rt. side of the neck.
Blackening & tattooing present around the
wound. Margin Inverted.

2. Gunshot wound of exit 2 cm x
1 cm part of Rt. side of neck 4 cm below
angle of Mandible. Margin Everted. No
Blackening & Tattooing present.

11.5. Learned counsel for the
appellants has further submitted that the
identification of the recovered ornaments
was not done in accordance with law. He
also submitted that all the recovered articles
were taken from the shop of father of
appellant Manoj Kumar Soni and planted.
He also submitted that recovery of one piece
of silver was shown from the appellant
Umesh and the identification was also not
conducted in accordance with law. He also
submitted that during the course of
investigation not even a single receipt or
evidence in relation to the purchase of
ornaments was procured by the Investigating
Officer and this fact was also not
investigated that whether any article was
purchased by the Rajesh Kesharwani and
Vikas Soni or not, and even the shop were
also not disclosed from which the alleged
ornaments were purchased, therefore, the
prosecution story is not reliable. He also
submitted that alleged recovered ornaments
were not weighed and it is admitted by
P.W.8 in his deposition before the trial court
and
only
on
assumption,
weight
of
ornaments were mentioned about 600 grams
in the recovery memo, this shows that all the
exercise of recovery was done in the most
mechanical manner.

11.6. Learned counsel for the
appellants also relied on the following
judgments of Hon'ble Supreme Court in
support of his submissions :-

A. Sonu @ Sunil vs. State of
Madhya Pradesh (2020) SCC OnLine SC
473.

B. Mohanlal Gangaram Gehani
vs. State of Maharashtra (1982) 1 SCC
700.

C. Dana Yadav @ Dahu &
Others vs. State of Bihar (2002) 7 SCC
295.

11.7. Learned counsel for the
appellants has further submitted that as per
the prosecution case, it is a case of single
fire which is alleged to be fired by each
appellants, therefore, conviction u/s 302
I.P.C. may be converted into Section 304
Part II I.P.C. and sentence of the appellants
be reduced in the interest of justice.

12.
Learned
A.G.A.
has
submitted that there is no illegality in the
judgment of learned court below and made
following submissions :-

12.1. P.W.1 Vikas Soni is the
injured witness and he was examined
before the trial court and identified the
accused persons and he also deposed that
on 05.02.2008, Manoj Soni shot Rajesh
Kesarwani and Umesh shot him, as a result,
they fell down and the appellants looted the
ornaments. P.W.1 also identified the
recovered ornaments and submitted that
ornaments were purchased from the shop of
Chotelal Agarwal and purchase slip was
given by him which was with Rajesh
Kesarwani who died due to fire arm injury
caused by the accused persons. She also
submitted that P.W.1 was cross-examined
by the counsels of the appellants on
24.09.2009,
31.10.2009,
07.11.2009,
09.02.2010 and 16.02.2010 in detail, who
deposed the manner of assault by the
appellants with their respective weapons.
She also submitted that the injury report of
the
P.W.1
and
Rajesh
Kesarwani
(deceased) are corroborating with the
deposition of P.W.1 Vikas Soni and learned
court below has rightly appreciated the
evidence of prosecution as well as the
statement of appellants under Section 313
10 All. Umesh Kumar Mishra Vs. The State
85
Cr.P.C. She also submitted that the
statement
of
witnesses
cannot
be
considered in part and complete statement
of the witnesses is to be considered,
therefore, there is no illegality in the
judgment which is under challenge.

12.2. In reply to the argument of
the learned counsel for the appellants that
the incident was taken place on 05.02.2008
at about 04:30 p.m., but the F.I.R. was
lodged on 07.02.2008 at 17:30 hours,
learned A.G.A. submitted that the P.W.1,
P.W.2 and P.W.3 have categorically
deposed before the trial court that P.W.1
and Rajesh Kesharwani were seriously
injured and therefore, there first obligation
was to facilitate them proper treatment and
they were hoping for their recovery. In
such circumstance, delay in lodging the
F.I.R. is not fatal to the case of prosecution.
She also submitted that P.W.1 is the injured
witness and he categorically supported the
prosecution version and narrated the
manner of assault by the appellants,
therefore, trial court has rightly considered
the aforesaid fact, and on this point, the
learned court below has rightly appreciated
the law laid down by the Supreme Court in
the case of Rabindra Mahto and Another
vs. State of Jharkhand reported in (2006)
10 SCC 432 and submitted that considering
the critical condition of the injured persons,
delay in lodging the F.I.R. is not fatal to the
case of prosecution.

12.3. P.W.1 as well as P.W.2
were examined before the trial court and
they categorically deposed that when P.W.1
regained his consciousness after two days
from the date of incident, then he narrated
the incident to P.W.2 and thereafter, the
F.I.R. in question was lodged by P.W.2
Ram Babu Soni and he was also crossexamined by the counsels for the appellants
but nothing was gained, and trial court
came to the conclusion that due to critical
condition of the injured persons, priority
was given for their treatment and after their
recovery, the F.I.R. in question was lodged
and this fact was rightly dealt by the
learned court below.

12.4. In reply to the submission
of learned counsel for the appellants that
the injured persons were not in position to
speak as seat as deposed by P.W.6. Learned
A.G.A. submitted that in his crossexamination, P.W.6 deposed before the
trial court that the injured persons were not
in position to speak and their admission
timings 12:05 a.m. and 12:10 a.m.
respectively, then they were medically
examined, but he did not refute that the
injured persons were also not in position to
speak later on; as in his cross-examination,
P.W.1 categorically deposed before the trial
court
that
after
he
regained
his
consciousness, he narrated the whole
incident to Rambabu Soni (P.W.2). She
further submitted that in his crossexamination, P.W.2 also deposed before
the trial court that when he reached to the
Jeevan Jyoti Hospital, Allahabad, then he
found that injured Rajesh was conscious
and he was speaking, but Vikas was
unconscious. She further submitted that
P.W.3 Harishchandra also deposed before
the trial court that when he reached on the
spot, then Rajesh was conscious and he told
him that Manoj Soni had shot him and
friend of Manoj Soni had shot Vikas and
they looted all the ornaments and his
(Rajesh) mobile phone was also snatched.
Therefore, the argument of learned counsel
for the appellants is not sustainable and the
aforesaid point was also rightly dealt by the
court below. She also submitted that due to
excessive bleeding, condition of Rajesh
deteriorated and he died, and also deposed
by P.W.4 Dr. Shivcharan Lal before the
trial court that after such type of injuries,
the injured would not be able to speak
86 INDIAN LAW REPORTS ALLAHABAD SERIES
clearly and in absence of medical facilities,
he will be conscious for about one hours.
She further submitted that in the present
case, Harishchandra (P.W.3) reached on the
spot within 10-15 minutes and both the
injured were in condition to speak,
therefore, the court below has rightly dealt
the issue on the strength of law laid down
by the Hon'ble Supreme Court in the case
of Thaman Kumar vs. State of Union
Territory of Chandigarh (2003) 6 SCC
380 in which it was held that the testimony
of the injured witness would be on higher
pedestal and it could not be doubted except
the extreme contradictions.

12.5. In reply to the submission
of the learned counsel for the appellants
that the manner of identification of the
alleged recovered ornaments was not done
in accordance with law, learned A.G.A.
submitted that the identification of the
recovered articles was done before the
Magistrate
complying
the
established
procedure and P.W.1 Vikas Soni (Injured
eye witness), in his cross-examination, has
deposed
before
the
trial
court
that
ornaments i.e. One pairs of Chhagal, Six
pairs of Anklet, One silver plate as well as
Silver coconut and Silver areca nut were
purchased from the shop of Chotelal
Agarwal, and on all the Anklets, monogram
of ML was stamped. The identification
memo for recovery of articles was prepared
as Ext. Ka-1 and it was duly signed &
proved by the P.W.1 (injured eye witness).
She further submitted that receipt of the
aforesaid articles was with the Rajesh
Kesharwani who died in the incident. She
also submitted that P.W.9 Shri Nivas
Yadav also proved the identification memo
of the recovered articles and opportunity to
cross-examine him was also given to the
counsels for the appellants, but they did not
got any material in his cross-examination
and they could not refute his argument.
Therefore, the learned trial court has rightly
dealt the aforesaid issue.

12.6. In reply to the submission
of learned counsel for the appellants that
recovery of only one weapon was shown,
but it was alleged in the F.I.R. that both the
appellants
shot
fire,
therefore,
the
prosecution case is not reliable, learned
A.G.A. submitted that after the arrest of
appellant Umesh Kumar Mishra, on his
pointing out, one country made Pistol of
315 bore along with looted piece of silver
was recovered from the bush adjoining to
the house of Devendra Shukla and recovery
memo was prepared as Ext. Ka-26 which
has been duly proved. One cartridge of 315
bore was also recovered from the place of
incident. She further submitted that the
recovered cartridge as well as country
made pistol were sent for the ballistic
analysis to F.S.L. and the ballistic report
reveals that the cartridge was fired with the
recovered pistol, and it is also deposed by
P.W.1 that Umesh Mishra shot fire on him.
Therefore, merely on the ground that
second
weapon
was
not
recovered,
therefore, recovery from appellant Umesh
Mishra is not reliable, is not acceptable.
She also submitted that report of F.S.L. as
well as the statement of injured witness
P.W.1 and the injury report of the injured
corroborates with the prosecution case,
therefore, the arguments of the learned
counsel
for
the
appellants
is
not
sustainable.
12.7. In reply to the point argued by
learned counsel for the appellants that
identification parade of the appellant
Umesh Mishra was not conducted in
accordance with law and the learned court
below has not rightly dealt the aforesaid
point, learned A.G.A. submitted that the
aforesaid point is not correct as in the
written complaint, appellant Manoj Soni
was named and the P.W.1, in his deposition
10 All. Umesh Kumar Mishra Vs. The State
87
before the court below, stated that he was
known to the appellant Umesh Mishra by
face, but he could not recollect his name
earlier and later on, the name of Umesh
Mishra
came
into
his
knowledge.
Therefore, the testimony of injured witness
cannot be discredited and the benefit of
doubt cannot be given to the appellant
Umesh Mishra who shot fire on the injured
and looted the ornaments. She further
submitted that appellant Umesh Mishra was
rightly identified by P.W.1 (injured eye
witness) and this point was also rightly
dealt by the learned trial court.

13. Considering the arguments of
learned counsel for the appellants as well as
learned A.G.A. and going through the
record, it is evident that :

13.1. Submission made by learned
counsel for the appellants is that testimony
of P.W.1 Vikas Soni (injured witness) is not
reliable on the ground that in his crossexamination, he deposed that within 10
minutes of the incident, his father Shrinath
Soni along with his friend Sahjade reached
on the spot and thereafter, both the injured
were brought to the hospital at Kunda and
from there, they were shifted to Allahabad
and P.W.3 Harishchandra (father of the
deceased Rajesh) was also with them, and
the incident was narrated to Rambabu Soni
(P.W.2) when he regained his consciousness
after 2-3 days from the date of incident; and
P.W.1 is an interested witness as there was
business rivalry in between him and
appellant Manoj Soni, but it is evident from
the deposition of P.W.1 that he was crossexamined by the counsels for the appellants
before the trial court and he categorically
deposed the incident and the manner of
assault and medico-legal report of the
injured
and
the
deceased
Rajesh
corroborates with the deposition of P.W.1
and in his cross-examination he also
deposed that he was known to the appellant
Manoj Soni and also known to the coaccused by face, who was the pillion rider of
Manoj Soni. He narrated the incident before
the trial court that at Chowk, Meerganj Main
Market, Allahabad, he and his friend Rajesh
(deceased) went to Jewelry shop for
purchasing the ornaments. He purchased
ornaments amounting to Rs.60,000/- but he
was not aware about the amount of
purchased ornaments by Rajesh. In the
market, appellant Manoj Soni @ Manu
Verma, who was familiar to P.W.1 and his
friend Rajesh, along with appellant Umesh
(whose face was familiar to P.W.1 but not
well known) met them. At about 07:00 p.m.,
after purchasing the ornaments, when they
started moving for home at Kunda, then the
appellant Manoj Soni & his friend Umesh
Mishra also moved for their home at Kunda,
and P.W.1 & his friend Rajesh were riding
on one motorcycle and Manoj Soni & his
friend Umesh Mishra were on the other
motorcycle. When they reached near 20
meter away from Madri Intersection, then
the appellant Manoj Soni stopped his
motorclyce after overtaking them and asked
for fuel as petrol in his motorcycle was
finished, P.W.1 was driving the motorcycle
and Rajesh was the pillion rider, and when
Rajesh was getting off from the motorcycle
for taking out petrol, then he was advised by
him (P.W.1) that in few distance Yadav
Dhaba is situated where there is appropriate
light and he can takeout the petrol there,
then Manoj Soni told him that who will
carry the motorcycle there give it here. Then
Rajesh (deceased) started taking out the fuel.
Manoj Soni first shot Rajesh with the
intention to kill and Umesh shot him
(P.W.1). Learned A.G.A. submitted that
P.W.1 was confronted by the counsel for the
appellants but the testimony of the witness
was intact and the manner of assault and
88 INDIAN LAW REPORTS ALLAHABAD SERIES
respective injuries with the respective
weapon are corroborating. In the statement
of appellants under Section 313 Cr.P.C.,
questions were framed on the basis of
prosecution evidence relied during the
course of trial, but both the appellants had
given answers to the questions as incorrect,
wrong and implicated with the intention to
harass them. It is also evident from the
aforesaid statement of the appellant Umesh
Kumar Mishra that he denied to place any
defence witness and in his additional
statement, he stated that he was having
inimical relations with Bachha Yadav, and
Constable Santosh Yadav is his relative,
therefore, he was falsely implicated in the
present case. Appellant Manoj Kumar Soni
also stated in his additional statement, in
writing, with the narration that he is the
goldsmith and was working with the P.W.2
(informant) prior to the date of incident, and
Rs.20,000/- as labour charges was due to
him, and earlier dispute was taken place
between them, as a result, merely on the
basis of suspicion, he was implicated in the
present case. He also narrated that the
ornaments those were shown by the police
as recovered articles were taken from the
shop of his father; but he failed to produce
any witness in support of his additional
statement and neither any detail that when
the ornaments were taken away from the
shop of his father nor the detail of ornaments
which were taken away are mentioned,
therefore, such statement is a vague one and
the trial court has rightly considered the
evidence of the P.W.1
(injured
eye
witnesses) as the testimony of injured
witnesses cannot be discredited when the
manner of assault was properly deposed and
an opportunity was also given to the
counsels of accused-appellant to cross
examine, but they failed to refute, therefore,
the arguments of learned counsel for the
appellants has no force.

13.2.
Second
submission
of
learned counsel for the appellants is that the
incident was taken place on 05.02.2008 at
about 09:30 p.m., but the F.I.R. in question
was lodged on 07.02.2008 at 17:30 hours
by P.W.2 (uncle of injured Vikas Soni)
after well thought, therefore, prosecution
story is not reliable; but in the present case,
it is evident that the injury was caused by
the appellants to P.W.1 and his friend
Rajesh with intention to kill & loot them
and in their depositions, P.W.2 and P.W.3
have categorically stated that the injured
were in critical condition and they were
focusing for their treatment first, therefore,
delay has been caused in lodging the F.I.R.
In the present case, merely delay in lodging
the F.I.R. does not vitiate the trial, as the
injured eye witness has categorically
defined the role of informant, and the
learned court below has rightly dealt the
issue by relying on the decision of Hon'ble
Supreme Court in the case of Rabindra
Mahto
and
Another
vs.
State
of
Jharkhand
(supra),
therefore,
the
submission of learned counsel for the
appellants is not sustainable.

13.3. Third submission of learned
counsel for the appellants is that as per the
injury report of the injured and his friend
Rajesh who later on died and as per
deposition of Dr. C.K. Gupta (P.W.6),
injured persons were not in position to
speak, therefore, it is highly improbable
that P.W.1 narrated the whole incident to
P.W.2 and then the F.I.R. was lodged; but
as per the record, P.W.6 Dr. C.K. Gupta
was examined and cross-examined and he
categorically deposed that that the injured
persons were not in position to speak, but
he did not depose that the injured persons
were not in position to speak later on also
and P.W.1 has categorically deposed before
the trial court in his cross-examination that
when he regained his consciousness, he
10 All. Umesh Kumar Mishra Vs. The State
89
narrated the incident to P.W.2. The
testimony of P.W.2 also corroborates and
he also deposed in his cross-examination
that Rajesh was not in sense when he
reached to the hospital, and P.W.3 also
deposed
before
the
trial
court
and
supported
the
prosecution
version.
Therefore, the submissions of learned
counsel for the appellants has no force and
the trial court has rightly considered the
deposition in accordance with the law laid
down by Hon'ble Supreme Court in the
case of Thaman Kumar vs. State of Union
Territory of Chandigarh (supra).

13.4.
Fourth
submission
of
learned counsel for the appellants is that in
relation to recovery of alleged ornaments,
established procedure was not adopted and
without mixing sample of ornaments of
identical nature, identification of ornaments
was conducted, therefore, the recovery
memo is not reliable and he also relied on
the decision of Hon'ble Supreme Court in
the case Sonu @ Sunil vs.